Bombay High Court
M/S. Premium Transmission Pvt. ... vs Aurangabad Mazdoor Union Citu And ... on 18 March, 2021
Bench: R. G. Avachat
Writ Petition No.8080/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8080 OF 2020
M/s Premium Transmission Pvt. Limited
(through Mahesh Bhagwan Vaidya -
Sr. Manager HR)
Plot No.B-36, five Star Shendra MIDC,
Aurangabad ...PETITIONER
VERSUS
1. Auranghabad Mazdoor Union (CITU)
(through its President/ General Secretary)
CITU Bhavan, Near Shivaji High School,
Ajabnagar, Khokadpura,
Aurangabad - 431 001
2. Kishan Subhash Rathod,
Age 30 years, Occu. Service,
R/o H.No.80, Rajnagar,
Railway Station, Mukundwadi,
Aurangabad
3. Ravindra Krushna Wahul,
Age 26 years, Occu. Service,
R/o 04-22/402, Ramnagar,
Galli No.4, Nalanda School,
Kranti Chowk, Aurangabad
4. Sharad Dilip Hivrale,
Age 28 years, Occu. Service,
R/o Brijwadi, MIDC Area,
Chikalthana, Aurangabad
5. Kishor Devidas Patil,
Age 28 years, Occu. Service,
R/o Gokulnagar,
Jadhavwadi, Aurangabad
6. Kalyan Bhanudas Dugale,
Age 33 years, Occu. Service,
R/o Plot No.54/7, Aaisahebnagar,
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Harshul Pisadevi Road,
Aurangabad
7. Rahul Pandurang Mhaske,
Age 34 years, Occu. Service,
R/o At Post Shevga, Taluka
and District Aurangabad
8. Sachin Janardhan Kakde,
Age 30 years, Occu. Service,
R/o Jay Bhavaninagar,
N-2, CIDCO, Aurangabad
9. Pradip Hari Wahule,
Age 37 years, Occu. Service,
R/o House No.5/11/269,
Galli No.12, Ambedkarnagar
N-7, Aurangabad
10. Dnuaneshwar Damodhar Sangale,
Age 25 years, Occu. Service,
R/o At Satala, Post Chauka,
Taluka and District Aurangabad
11. Ramchandra Sudhakar Suke,
Age 27 years, Occu. Service,
R/o Gokulnagar, Jadhavwadi,
Aurangabad
12. Dadasaheb Shivaji Khandagale,
Age 26 years, Occu. Service,
R/o N-6, CIDCO, Aurangabad
13. Tushar Diliprao Ambulkar,
Age 24 years, Occu. Service,
R/o N-7, Ayodhya Nagar,
CIDCO, Aurangabad
14. Arjun Raosaheb Gaikwad,
Age 23 years, Occu. Service,
R/o Daregaon, Post Padhali,
Tq. Khultabad, District Aurangabad
15. Chetan Babanrao Landge,
Age 30 years, Occu. Service,
R/o Sanjaynagar, Mukundwadi,
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Aurangabad
16. Amol Mukundrao Hud,
Age 26 years, occu. Service,
R/o N-2, CIDCO, Jaybhavaninagar,
Aurangabad
17. Bharat Bhausaheb Gaikwad,
Age 32 years, Occu. Service,
R/o Satana, Tq. and Dist. Aurangabad
18. Suryabhan Damodhar Salve,
Age 33 years, Occu. Service,
R/o Shevga, Tq. & Dist. Aurangabad
19. Hemant Kailash Dhumal,
Age 22 years, Occu. Service,
R/o N-9, CIDCO,
New Swami Samarth Mandir,
Aurangabad
20. Rahul Ram Jadhav,
Age 28 years, Occu. Service,
R/o N-2, J-8-3,
Sant Dnyaneshwar Colony,
Mukundwadi, Aurangabad
21. Rahul Sidharth Navture
Age 18 years, Occu. Service,
R/o Brijwadi MIDC Area,
Chikalthana, Aurangabad
22. Rahul Bhaurao Jadhav,
Age 26 years, Occu. Service,
R/o Aurangabad
23. Dnyaneshwar Bhanudas Pathade,
Age 30 years, Occu. Service,
R/o Karajgaon, Post Gadhejalgaon,
Tq. & Dist. Aurangabad
24. Hanuman Kakasaheb Ghavate,
Age 26 years, Occu. Service,
R/o at Satara,
Tq. & Dist. Aurangabad
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25. Bharat Bhausaheb Ghawate,
Age 32 years, Occu. Service,'
R/o at Satara,
Tq. & Dist. Aurangabad
26. Ganesh Devrao Mate,
Age 29 years, occu. Service,
R/o Jalgaon, Taluka and
District Aurangabad
27. Vikramsing Bhilesing Girase,
Age 27 years, Occu. Service,
R/o At Post Shara Swapnagan,
Gangapur Jahangir,
Shendra MIDC, Aurangabad
28. Suresh Damodhar Narwade,
Age 35 years, Occu. Service,
R/o Sanjay Nagar, Mukundwadi,
Aurangabad
29. Mahendra Ramrao Wahul,
Age 33 years, Occu. Service,
R/o Brijwadi,
Chikalthana MIDC, Aurangabad
30. Satish Ramdas Kharat,
Age 32 years, Occu. Service,
R/o At Post Dhasla, Tq. Badnapur,
District Jalna
31. Sachin Dadarao Bankar,
Age 28 years, Occu. Service,
R/o Ramanagar, Kranti Chowk,
Galli No.4, Aurangabad
32. Amol Sahebrao Nannaware,
Age 27 years, Occu. Service,
R/o Brijwadi, MIDC Area,
Chikalthana, Aurangabad
33. Sanjay Sandulal Jaiswal,
Age 35 years, Occu. Service,
R/o Gajanan Maharaj Mandir,
Kumbhefal, Aurangabad
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34. Kakasaheb Bajirao Bhosale,
Age 30 years, Occu. Service,
R/o Jalgaon, Post Karmala,
Tq. and Dist. Aurangabad
35. Naser Mujeeb Baig,
age 47 years, Occu. Service,
R/o Plot No.14, Gut No.13,
Ekta Nagar, Itkheda, Aurangabad
36. Dhananjay Sanjay Divekar,
Age 30 years, Occu. Service,
R/o Mukundwadi, CIDCO,
Ramnagar M-2, 26/6,
Aurangabad
37. Raosaheb Damodhar Bhujang,
Age 30 years, Occu. Service,
R/o At Kumbhefal,
Tq. and Dist. Aurangabad
38. Dattatray Radakeshan Nalge,
Age 37 years, Occu. Service,
R/o Mali Galli, Chikalthana,
Aurangabad
39. Abhimanu Narayan Barde,
Age 26 years, Occu. Service,
R/o Ambikanagar, Galli No.4,
Mukundwadi, N-2, CIDCO,
Aurangabad
40. Santosh Anandrao Mudgal,
Age 40 years, Occu. Service,
T/o Kolghar, Tq. & Dist. Aurangabad
41. Mahendra Bhivsan Shirsath,
Age 24 years, Occu. Service,
R/o Savitrinagar, Chikalthana,
Aurangabad
42. Radhakisan Narayan Kakde,
Age 28 years, Occu. Service,
R/o At Wadkha, Post Warzadi,
Tq. Dist. Aurangabad
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43. Ganesh Kundlik Kakde,
Age 27 years, Occu. Service,
R/o At Wadkha, Post Warzadi,
Tq. Dist. Aurangabad
44. Mangesh Tatyrao Dehade,
Age 24 years, Occu. Service,
R/o Garkheda, No.2, Post Pimpriraja
Tq. Dist. Aurangabad
45. Ravindra Janardhan Gaikwad,
Age 38 years, Occu. Service,
R/o House No.5-9-2072,
Prakashnagar (East), Ramnagar,
CIDCO, N-2, Aurangabad
46. Prakash Haribhau Nimbalkar,
Age 24 years, Occu. Service,
R/o At Deugaon, Tq. Badnapur,
Dist. Aurangabad
47. Bhagwan Uttam Bankar,
Age 39 years, Occu. Service,
R/o Ambedkarnagar,
N-7, CIDCO, Aurangabad
48. Pradip Parmeshwar Ghodke,
Age 25 years, Occu. Service,
R/o Post Shevga,
Tq. Dist. Aurangabad
49. Krushna Baban Rajale,
Age 24 years, Occu. Service,
R/o At Karal, Post Golatgaon,
Tq. Dist. Aurangabad
50. Krushna Dattatray Sargar
Age 28 years, Occu. Service,
R/o Hanumannagar, N-4, CIDCO,
Aurangabad
51. Baliram Madan Raut,
Age 21 years, Occu. Service,
R/o Karol, Tq. Dist. Aurangabad
52. Atish Arjun Nikalje,
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Age 31 years, Occu. Service,
R/o P-4-7/1, Vithalnagar,
N-2, CIDCO, Aurangabad
53. Nitin Baliram Bhosale,
Age 25 years, Occu. Service,
R/o Jalgaon, Karmad,
Dist. Aurangabad
54. Dharmendra Govindrao Ghorpade,
Age 34 years, Occu. Service,
R/o Brijwadi, MIDC, Chikalthana Area,
Aurangabad
55. Shikandar Kakasaheb Wagh,
Age 26 years, occu. Service,
R/o Post Shekta,
Tq. Dist. Aurangabad
56. Santosh Hanumatrao Bhchake
Age 33 years, Occu. Service,
R/o Varud Kajinath Nagar Road,
Aurangabad
57. Sunil Baburao Bankar,
Age 44 years, Occu. Service,
R/o At Post Pisadevi,
Dist. Aurangabad
58. Kishor Shitaram Diwandhothre,
Age 36 years, Occu. Service,
R/o Plot No.58, Mukundnagar,
Mukundwadi, Aurangabad
59. Eknath Pathaji Gaikwad,
Age 46 years, Occu. Service,
R/o Uttaranagari, Brijwadi,
Aurangabad
60. Ganesh Sominath Shelke,
Age 34 years, Occu. Service,
R/o Kumbhefal,
Tq. Dist. Aurangabad
61. Akash Prakash Kasare,
Age 22 years, Occu. Service,
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Writ Petition No.8080/2020
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R/o Naygaon, Post Sawangi,
Tq. Dist. Aurangabad
62. Tukaram Pujaram Kulkarni,
Age 32 years, Occu. Service,
R/o Karmad, Tq. Dist. Aurangabad
63. Ganesh Balasaheb Shinde,
Age 28 years, Occu. Service,
R/o Brijwadi MIDC Chikalthana,
Aurangabad
64. Rajendra Bhimrao Shejwal,
Age 26 years, Occu. Service,
R/o CIDCO N-7, Gris Colony,
Indra Market, Plot No.45,
Tq. Dist. Aurangabad
65. Amol Vilasrao Gavli,
Age 30 years, occu. Service,
R/o N-4, Jaybhavaninagar,
Galli No.11, Aurangabad
66. Vitthal Vishwanath Mhetre,
Age 48 years, Occu. Service,
R/o Galli No.5, East Prakashnagre,
N-2, CIDCO, Aurangabad 431 001
67. Aurangabad Multi Services,
Akshay Deep Plaza, Gala No.102,
N-1, CIDCO, Aurangabad
68. Om Sai Manpower Services Ltd.
Plot No.5, Near Saint Lawrence School,
Town Centre, N-5, CIDCO,
Aurangabad
...RESPONDENTS
.......
Shri B.R. Kawre, Advocate for petitioner
Shri T.K. Prabhakaran, Advocate with
Shri Ashutosh S. Kulkarni, Advocate for respondents No.1 to 66,
Shri Y.R. Marlapalle, Advocate for respondents No.67 & 68
.......
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Writ Petition No.8080/2020
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CORAM : R. G. AVACHAT, J.
Date of reserving order : 18th January, 2021
Date of pronouncing order : 18th March, 2021
ORDER :
Heard learned counsel appearing for the parties.
2. The challenge in this Writ Petition is to the orders
dated 28/9/2020 and 9/11/2020, passed by Industrial Court,
Aurangabad below application Exh.C-11 and C-18
respectively. Vide impugned orders, the applications moved
by the petitioner - Company for deciding the issue as to
maintainability of the complaint as a preliminary issue and
one raising objection as to maintainability of the complaint
have been rejected.
3. The petitioner is a private limited Company
engaged in manufacturing of power transmission equipments.
The respondent No.1 is a Labour Union. Respondents No.2 to
66 claim to be employees working with the petitioner -
Company. Respondents No.67 and 68 are Companies
engaged in supply of manpower (labour contractors).
Respondent No.1 Union preferred a dispute in conciliation to
Writ Petition No.8080/2020
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Deputy Commissioner of Labour, Aurangabad. The petitioner
Company had not been served with pre-intimation/ pre-
conciliation regarding admission of dispute in conciliation.
Respondent No.1 Union did not issue any demands. The
Assistant Labour Commissioner was compelled to admit the
dispute. The Conciliation Officer submitted failure report. The
dispute thus came to be referred to Industrial Tribunal for
adjudication.
Respondents No.67 and 68 provided the petitioner
Company some workforce on contract. As the petitioner
Company was facing financial constraints, it had instructed
the respondents No.67 and 68 to reduce workforce to some
extent. These respondents also issued a letter to the
petitioner company expressing their inability to provide
workforce as labourers were not reporting for duty.
4. The respondents No.1 to 66 filed a complaint
before the Industrial Court claiming direct relationship with
the petitioner Company. It is Complaint (ULP) No.64/2020. It
has been filed to declare the petitioner Company to have
committed unfair labour practices falling under Item No.1 of
Schedule II and Items No.5 and 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of
Writ Petition No.8080/2020
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Unfair Labour Practices Act, 1971 (the Act for short). It has
also been prayed that the petitioner Company be directed to
desist from indulging in such unfair labour practices. It be
directed to provide work to the complainants No.2 to 65 in the
petitioner's factory and pay them full back wages from the
date of refusal of employment as detailed in Annexure A to
the complaint etc.
5. Relevant averments in the complaint are :-
"2.1. Respondent No.2 & 3 are claimed to be
proprietor concerns. They are name-lenders in relation
to Respondent no.1. Respondent No.2 & 3 have
provided documentary support to Respondent No.1 to
show that the workmen are not directly employed by
Respondent No.1. Respondent No.2 & 3 create such
records such as application for employment;
attendance records; payment records; Employees State
Insurance Records; Provident Fund records and such
other statutory records. It is assumed that the
Respondents have secured statutory support also under
the Contract Labour (Regulation and Abolition) Act,
1970 such as registration and license in their
respective names. For doing so, they have falsified the
claim by concealing the actual nature of duties
performed by the workmen. The names and details of
such workmen who are robbed off their rights under
various statutes or shown to be dissociated their
relationship directly with Respondent No.1 are shown
in the list Annexure "A" annexed hereto.
2.2. All these workmen are employed to do the
work directly related to manufacturing process of
Respondent No.1. Their work is directly integrated in
the Factory which manufactures coupling and gear-
Writ Petition No.8080/2020
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boxes required for Conveyor systems of assemble
lines for Industrial Applications. The conveyor
systems are used in power sector for feeding hold to
the furnaces for production of thermal energy and in
Sugar Industries for conveying the Sugar canes. The
product of the Company are used for domestic
consumption as well as for exports to various
countries like Germany, Brazil, Australia etc.
2.3 The workmen named in Annexure-A are
required to work along with the workmen directly
appointed by Respondent No.1. There is no separate
or identifiable work performed by these workmen as
all these workmen jointly perform their job. They
jointly put in their efforts for a common product. The
workmen named in Annexure-A are paid between
Rs.10,000 - Rs.15,000 per month, whereas the
workmen working the same work directly appointed
by Respondent No.1 paid Rs.40,000/-. There is no
difference in the work in terms of quality or quantity
by and between the said groups. The workmen
claimed uniformity in wages with respect to work
assigned to them."
6. The petitioner Company appeared before the
Industrial Court and disputed employer-employee relationship
between it and the complainants No.2 to 65. The petitioner
Company, therefore, first preferred the application C-11 for
framing of preliminary issue relating to maintainability of the
complaint. On the application having been rejected vide order
dated 28/9/2020, it preferred another application - C-18
challenging maintainability of the complaint. The said
application came to be rejected on 9/11/2020.
Writ Petition No.8080/2020
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7. Both the applications came to be rejected on
somewhat similar grounds. The learned Member, Industrial
Court, observed : -
"I do agree that unless relationship as employee-
employer is established, no relief can be granted,
nor question arise about unfair labour practices.
Indeed, a question of framing of issue or holding of
summary inquiry does not arise at all. Once, it is
clear that the Industrial Court under MRTU &
PULP Act has no jurisdiction to decide the issue
relating to employer-employee relationship, the
occasion for framing of issue on the point which is
beyond its jurisdiction cannot arise. Consequently
said issue cannot be framed. It needless to say the
jurisdiction of this Court depends upon the fact of
existence of employer-employee relationship
between the parties, which is a jurisdictional fact,
which should exist to enable this Court to assume
jurisdiction to entertain the complaint under the said
Act, in the absence of the same, any attempt on the
part of this Court to adjudicate upon the issue of
such relationship would amount to mistake of fact
in relation to jurisdiction. Further, a jurisdictional
fact is one on existence or non-existence of which
depends assumption or refusal to assume
jurisdiction by a Court, Tribunal or an authority,
which is a fact which must exist before a Court can
properly assume jurisdiction of a particular case.
Mistake of fact in relation to jurisdiction is an error
of jurisdictional fact. No statutory authority or
Tribunal can assume the jurisdiction in respect of
subject matter which the statute does not confer on
it and if by deciding erroneously the fact on which
jurisdiction depends the Court or Tribunal exercises
its jurisdiction then the order is vitiated. Error of
jurisdictional fact renders the order ultra vires and
bad. In short, the issue regarding maintainability of
complaint is a mixed question of facts and law.
Writ Petition No.8080/2020
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Consequently, it cannot be framed. Apart from this
when issue regarding relationship cannot be
adjudicated by this Court, it would be futile exercise
to frame the issue and endorse the findings. The
issue regarding maintainability of complaint can be
decided at the time of final hearing of complaint."
8. In its order rejecting application C-18, the
Industrial Court observed :-
"However, the documents on record clearly show
that all the complainants have worked in the
premises of respondent No.1 till 18/4/2020 though
they are deployed by respondent Nos.2 & 3. In this
case the complainants are not seeking the relief of
permanency. They are only claiming the relief of
status-quo for continuation of allotment of work and
payment of wages from the respective dates of
refusal of employment. In short, the complainants
want to continue and enforce pre-existing
relationship and arrangement prior to 18/4/2020
until disposal of Reference (IT) No.1/2020. The
claims of the parties on employer-employee
relationship shall be a subject matter of Reference
(IT) No.1/2020. The determination of respective
claims will be adjudicated in the Reference, but that
has no relevance to the subject matter of the
complaint."
It also observed that, in case of Hindustan Lever
Ltd. Vs. Hindustan Lever Research Centre Employees Union
and another [2010 (1) CLR 309], it is held that the complaint
for the limited purpose of adjudicating the grievance
regarding unfair labour practice within the meaning of MRTU &
PULP Act is maintainable.
Writ Petition No.8080/2020
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9. Shri B.R. Kawre, learned counsel for the petitioner
Company would submit that, the learned Member, Industrial
Court did uphold legal submissions made on behalf of the
petitioner Company. It, however, found that issue as to
maintainability of the complaint is a mixed question of fact
and law and, therefore, would be decided along with the
complaint itself. According to learned counsel, the findings
recorded by leaned Member are unsustainable in law.
According to him, unless and until employer-employee
relationship is admitted or indisputable, the Industrial Court
does not have jurisdiction to enter into the arena of the
dispute between the two. Every Court has, however, the
jurisdiction to decide the issue as regards its own jurisdiction.
The learned counsel relied on the judgments of Apex Court
and this Court as well. A reference thereto would be made in
the course of deciding the issue involved in this petition.
10. Shri Y.R. Marlapalle, learned counsel for
respondents No.67 and 68 reiterated the submissions made
by learned counsel for the petitioner Company. According to
learned counsel, the complaint is not maintainable. The Court
ought to have allowed the application Exh. C-18.
11. Shri T.K. Prabhakaran, learned counsel for the
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respondents No.1 to 66 would, on the other hand, submit
that, when the Member, Industrial Court has arrived at a
finding based on proper appraisal of material, interference
therewith is not warranted in exercise of jurisdiction under
Articles 226 and 227 of the Constitution of India. The learned
counsel tried to distinguish the authorities relied on by the
learned counsel for the petitioner. According to him, in view
of Section 21 of the Contract Labour (Regulation and
Abolition) Act, 1970. The responsibility to pay wages to
employees lies on the person who employees people on
contract. If the contractor makes a default in payment of
wages, the petitioner company is entitled to have recovered
from contractor. Based on authoritative pronouncement, he
would submit that, whenever a reference comes before the
Industrial Court, the establishment, in order to delay the
proceedings, raises the dispute whether it is an industry as
defined in Section 2(J). It also raises a question as to
whether the employee is workman within the meaning of
Section 2(S). A request is also made to decide such question
as a preliminary issue, with a view to delay the hearing of
complaint.
12. Relying on the judgment of this Court in Universal
Ferro and Allied Chemicals Limited Vs. Member, Industrial
Writ Petition No.8080/2020
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Court & others [ 2002(3) All.M.R. 191 ], learned counsel
would submit that, the Tribunal should decide all issues in
dispute at the same time without trying some of them as
preliminary issues. Learned counsel also relied on the
judgment in the case of Hindustan Lever Limited (supra) to
submit that, relationship of registered employer and Security
Guard exists for limited purpose, considering the claim of
unfair labour practice. The learned counsel would, therefore,
submit for dismissal of the Writ Petition.
13. In case of CIPLA Ltd. Vs. Maharashtra General
Kamgar Union & ors. [ (2001) 3 SCC 101 ], it has been
observed in paragraph No.8 as under :
"8. But one thing is clear - if the employees are
working under a contract covered by the Contract
Labour (Regulation and Abolition) Act then it is
clear that the Labour Court or the industrial
adjudicating authorities cannot have any
jurisdiction to deal with the matter as it falls within
the province of an appropriate Government to
abolish the same. If the case put forth by the
workmen is that they have been directly employed
by the appellant Company but the contract itself is
a camouflage and, therefore, needs to be
adjudicated is a matter which can be gone into by
appropriate Industrial Tribunal or Labour Court.
Such question cannot be examined by the Labour
Court or the Industrial Court constituted under the
Act. The object of the enactment is, amongst other
aspects, enforcing provisions relating to unfair
labour practices. If that is so, unless it is
Writ Petition No.8080/2020
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undisputed or indisputable that there is employer-
employee relationship between the parties, the
question of unfair practice cannot be inquired into
at all. The respondent Union came to the Labour
Court with a complaint that the workmen are
engaged by the appellant through the contractor
and though that is ostensible relationship the true
relationship is one of master and servant between
the appellant and the workmen in question. By this
process, workmen repudiate their relationship with
the contractor under whom they are employed but
claim relationship of an employee under the
appellant. That exercise of repudiation of the
contract with one and establishment of a legal
relationship with another can be done only in a
regular Industrial Tribunal/ Court under the ID
Act."
14. In case of Vividh Kamgar Sabha V/s Kalyani Steel
[ 2001 (1) CLR 532 (SC) ], the Apex Court observed :-
"5. The provisions of the MRTU & PULP Act
can only be enforced by persons who admittedly
are workmen. If there is dispute as to whether the
employees are employees of the company, then
that dispute must first be got resolved by raising a
dispute before the appropriate forum. It is only
after the status as a workmen is established in an
appropriate forum that a complaint could be made
under the provisions of the MRTU & PULP Act."
Same/ similar observations have been made in
host of authorities of Apex Court and this Court as well. I do
not propose to cite them heareat. Suffice it to say, those
authorities have been relied on by the learned counsel for the
Writ Petition No.8080/2020
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petitioner.
15. In view of the aforesaid legal proposition and the
averments in the complaint, the Industrial Court ought to
have observed the complaint to have not been maintainable.
In view of there being Apex Court judgments referred to
hereinabove, I have to prefer them over the judgment in case
of Hindustan Lever (supra) relied on by the learned counsel
for the respondents No.1 to 66.
16. For the reasons given hereinabove, the Writ
Petition succeeds. The same is allowed in terms of prayer
clause (B).
( R. G. AVACHAT )
JUDGE
fmp/-
