Bombay High Court
Potain India Pvt. Ltd vs Dinesh Ganesh Shinde And Ors on 6 October, 2021
Bench: G. S. Kulkarni
Digitally
signed by
VIDYA
VIDYA SURESH
SURESH AMIN
Date:
AMIN 2021.10.07
18:10:52
+0530
3.WP2017_2020.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2017 OF 2020
Potain India Pvt. Ltd. ... Petitioner
V/s.
Dinesh Ganesh Shinde & Ors. ... Respondents
WITH
WRIT PETITION NO. 2004 OF 2020
M/s. Potain India Ltd. ... Petitioner
V/s.
Shankar Madhukar Salokhe & Ors. ... Respondents
WITH
WRIT PETITION NO. 3358 OF 2020
M/s. Potain India Ltd. ... Petitioner
V/s.
Shriniwas Sopanrao Gawale ... Respondent
WITH
WRIT PETITION (ST.) NO. 28013 OF 2019
Potain India Pvt. Ltd. ... Petitioner
V/s.
Amol Arun Kapse & Ors. ... Respondents
WITH
WRIT PETITION (ST.) NO. 28014 OF 2019
Potain India Pvt. Ltd. ... Petitioner
V/s.
Vijay Tukaram Lokhande & Ors. ... Respondents
WITH
WRIT PETITION NO. 1991 OF 2020
Potain India Pvt. Ltd. ... Petitioner
V/s.
Shridhar Tukaram Gaikwad & Ors. ... Respondents
1/7
3.WP2017_2020.doc
WITH
WRIT PETITION (ST.) NO. 28020 OF 2019
M/s. Potain India Pvt. Ltd. ... Petitioner
V/s.
Dnyaneshwar Ganpati Jadhav & Ors. ... Respondents
WITH
WRIT PETITION NO. 2927 OF 2020
Potain India Pvt. Ltd. ... Petitioner
V/s.
Bapurao Sahebrao Ingle & Ors. ... Respondents
WITH
WRIT PETITION NO. 3257 OF 2020
Potain India Pvt. Ltd. ... Petitioner
V/s.
Shankar Pandhari Devmane & Ors. ... Respondents
Mr. Kiran Bapat a/w. Mr. T.R. Yadav, Mr. Sameer Paranjape i/b. M/s.
Desai & Desai Associates for the petitioner.
Mr. Niranjan Bhavake i/b. Chaitali Pachpute for respondent nos. 1,
2, 6, 9, 11, 1, 14, 15, 16 in WPSt. No. 28022/2019,
WPSt.28019/2019, WPSt. 28021/2019, WPSt. 28013/2019, WPSt.
27963/2019 and WPSt. 27963/2019.
CORAM : G.S.KULKARNI, J.
DATE : 6 October, 2021
P.C.:
1. Heard Mr. Bapat, learned counsel for the petitioner and Mr.
Bhavake, learned counsel for the respondents.
2. The challenge in these petitions is to a common order dated
25 June, 2019 passed by the learned Member, Industrial Court,
Pune whereby the complaint filed by the respondents/ workmen
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has been allowed by grant of a declaration that the
petitioner(original respondent no. 6) has indulged in an unfair
labour practice under Item No. 9 of Schedule IV of MRTP and PULP
Act, 1971 with a further direction to the petitioner to desist and
cease therefrom. It is also declared that the petitioner has illegally
terminated the services of respondents/complainants through the
contractors S.S.K. Enterprises and Shriram Enterprises who had no
concern with the services of the respondents/complainants in the
petitioner-company. There is a further direction that the petitioner
shall allow the respondents/complainants to join their services in
its company forthwith.
3. Mr. Bapat, learned counsel for the petitioner in assailing the
impugned order has many submissions. The foremost contention is
that the complaint itself was not maintainable under section 28 of
MRTU & PULP Act for the reason that the petitioner in paragraph 2
of the written statement had categorically raised a contention that
there was no employer-employee relationship between the
petitioner and the complainants/workmen and that they were the
workers of the contractor. He has drawn my attention to the
issues which came to be framed and more particularly to issue no.
2, i.e., "Whether employer-employee relationship is undisputed or
3.WP2017_2020.doc
indisputable?". Mr. Bapat, however, would submit that when the
matter was taken up for adjudication, the issue as framed was
altered as referred to in paragraph 7 of the impugned judgment,
by which the Industrial Court shifted the burden on the petitioner,
when the issue came to be framed as - "Whether the respondents
prove that there is no relation as employer-employee between
them and the complainants?", which has been answered in
negative.
4. It is Mr. Bapat's submission that the burden of proof ought to
have been on the respondents/complainants. It is his contention
that the primary issue is of the jurisdiction of the tribunal, which
goes to the root of the matter and more particularly, in view of the
judgment of the Supreme Court in Sarva Shramik Sangh vs.
Indian Smelting & Refining Co. Ltd. & Ors., (2003) 10 SCC
455. He has drawn my attention to various paragraphs of the said
judgment to contend that unless the condition precedent of a pre-
existing relationship of an employer and employee was
established, the complaints as filed on behalf of the
respondents/workmen were not maintainable under the MRTU &
PULP Act. In paragraph 24 of the said decision, it is his submission
that the Supreme Court has categorically observed that it is most
3.WP2017_2020.doc
essential for the Court to look at the pleadings and once the
pleadings in the complaint itself showed that there is a dispute on
the relationship between the employer and employee, proper
course for the respondents-complainants for adjudication of such
dispute is under the provisions of the Industrial Disputes Act. Mr.
Bapat has also pointed out that some of the workmen in 2012 had
approached the Industrial Court by filing complaints against the
contractors and failed in such proceedings and thereafter filed the
present complaint under MRTU & PULP Act.
5. On the other hand, learned counsel for the
respondents/workmen would submit the legal position as urged on
behalf of the respondents may not be relevant, as according to
him, there was no dispute that the respondents/workmen were the
employees of the petitioner, inasmuch as in paragraph 4 of the
written statement, the petitioner had contended that earlier the
workmen were employed with the petitioner as temporary
employees and subsequently they were terminated from 31
August, 2008 and thereafter the respondents/complainant had
approached the labour contractor and joined his service.
6. Having perused paragraph 4 of the written statement, prima
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facie, in my opinion, it is not possible to accept the respondents
contention that such averment in the written statement would be
an impeachable material to brush aside the objection which was
raised by the petitioner that the respondents/complainants were
not the employees of the petitioner. On a plain reading of
paragraph 4, it is certainly clear that the petitioner raised a dispute
on the relationship of respondents/workmen, being employees of
the petitioner.
7. In my prima facie opinion, the approach of the Industrial
Court certainly appears to be contrary to the legal position as laid
down by the Supreme Court in Sarva Shramik Sangh (supra).
The Supreme Court after taking into consideration the earlier
decisions on the said issue, has laid down to be a settled principle
in law that when there is a dispute on the factual aspect as to
whether there at all exists a relationship of employer-employee,
the provisions of the MRTU & PULP Act as invoked by the
respondents/complainants could not have been invoked unless
such issue was resolved, for which, the course of action was an
adjudication under the Industrial Dispute Act and not the
provisions of MRTU & PULP Act.
3.WP2017_2020.doc
8. I am hence of a strong prima facie opinion that the Industrial
Tribunal lacked jurisdiction to entertain the complaint of the
respondents/workmen under the MRTU & PULP Act.
9. These petitions, hence, are required to be admitted. Hence
Rule.
10. For the above reasons, the petitioners have made out a case
for interim reliefs. There shall be an interim order of stay of the
impugned order dated 25 June, 2019 passed by the Industrial
Court.
11. Hearing expedited. The parties to complete the pleadings
and after pleadings are completed, liberty to the parties to apply
for Final Hearing.
(G.S.KULKARNI, J.)
