IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1218 OF 2009
Executive Engineer,
Central Public Works Department,
Plot No.110, Shastri Nagar,
Aurangabad .. Petitioner
(Orig. Respondent)
VERSUS
Raju Banduji Raut,
Age : 31 years, Occu.: Nil,
R/o : Airport Quarter,
Chikalthana, Aurangabad .. Respondent
(Orig. Complainant)
Mr. Nitin S. Chaudhari, Advocate for the Petitioner
Mr. V.D. Hon, Advocate h/f. Mr. S.S. Piwal, Advocate
for the Respondent
CORAM : S.B. DESHMUKH, J.
DATED : 30.03.2009
ORAL JUDGMENT:-
1. Heard learned counsel for the parties. Rule,
made returnable forthwith. Heard finally by consent
of the parties.
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2. The petitioner, is the respondent in complaint
(ULP) no. 43 of 2007 pending in the Court of learned
Judge, Labour Court at Aurangabad. Said complaint is
filed by the respondent. Parties hereinafter are
referred to their status as complainant and
respondent for convenience. Copy of the complaint is
on record. (Page 19 of the compilation). In
paragraph no.1 statement is made that complainant and
respondent are having relationship of employer and
employee. In paragraph no.2 it is pleaded that
complainant has been appointed as a Clerk in the
stores
department of the respondent. Said
appointment is oral, made in the month of January,
1994. From the appointment, complainant was in
continuous service for more than 240 days till the
date of oral termination. This oral termination is
alleged in the month of January, 2007. In paragraph
no.2 it is stated that cause of action arose on
January 24, 2007. He claims that he was drawing
salary of Rs.5000/- on the date of oral termination,
was required to remain present for 24 hours, was
working with stores department, quarter was allotted
to the complainant for residence purpose, quarter was
in possession of the complainant. Overtime was paid
to the complainant. Grievance is raised in paragraph
no.4 that complainant has been terminated without
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following due process of law and thus respondent is
engaged in unfair labour practise. There is no
compliance of provisions of section 25 of the
Industrial Disputes Act according to the complainant.
In paragraph no.7 contention is raised that all
concerned documents in respect of service of
complainant are in custody of the respondent. Some
documents which were in possession of the complainant
have been filed alongwith the complaint. This
complaint seems to have been filed on 24.1.2007 under
section 28, 30 r/w. item no.1 (a), (b), (f) of
Schedule IV of M.R.T.U. and P.U.L.P. Act, 1971
(“Act, 1971” for short). After filing the complaint,
application has been filed by the complainant seeking
allotment of work and setting aside oral termination
dated 24.1.2007. After entering appearance
respondent filed written statement/say to the
complaint. Annexure “B” is copy of the said written
statement (page 44). In paragraph no.1, it has been
pleaded that complainant was never employed by the
answering respondent in any of the capacity and the
employer and employee relationship never exist
between complainant and respondent. In paragraph
no.7 same thing is reiterated with further pleading
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that the watch and ward of CPWD. Stores located at
Air-port premises, Chikalthana, Aurangabad was
arranged by calling tenders from different security
Agencies/service providers. It is further pleaded
that security agency to whom the work contract is
given by the CPWD., has employed the complainant.
Further it is pleaded that on account of termination
of the contract it seems that the security agency has
terminated the services of the complainant. Further
statement is
made that CPWD. is not at all
responsible for termination. This written statement
seems to have been filed on 21.7.2007.
3. Learned trial Court after hearing the parties,
on Exh. U-2 application framed four issues for
determination. Issue no.1 framed by the trial Court
was in respect of prima facie case, if proved by the
complainant. Second issue was in respect of balance
of convenience. Third issue was regarding
irreparable loss. Fourth issue is as to whether the
complainant approached the Court with clean hands.
Finding on this issue/issues is recorded in
affirmative in favour of the complainant. The trial
Court allowed the application Exh. U-2, directed the
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respondent to keep the complainant on work
(reinstatement) with wages. This order by the trial
Court was dated 11.4.2008.. This order was subjected
to Revision under section 44 of the Act of 1971 by
the respondent. This revision complaint (ULP) no.
66 of 2008 has been dismissed by the Member,
Industrial Court, Aurangabad by order passed on
January 14, 2009, annexure “E” to the petition. It
is this order which is challenged in this Petition.
4. I heard learned counsel for the parties.
Advocate Mr. Chaudhari for the petitioner relied on
three judgments of the Supreme Court. Mr. Hon
learned counsel for the respondent relied on two
judgments of this Court; (i) Judgment of the learned
Single Bench of this Court and (ii) judgment of
Larger Bench of this Court. I would refer to these
judgments at appropriate stage.
5. Act of 1971, is a local act applicable to the
State of Maharashtra. Sub section 3 of Section 2 of
Act, 1971 provides that except as otherwise
hereinafter provided, this act shall apply to the
industries to which the Bombay Industrial Relations
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Act, 1946 (Bom.) (XI of 1947), for the time being
applies and also to any industry as defined in clause
(j) of section 2 of the Industrial Disputes Act, 1947
and the State Government in relation to any
industrial dispute, concerning such industry is the
appropriate Government in this Act. Definitions are
given under section 3 of Act of 1971. “Central Act”
means the Industrial Dispute Act, 1947 (2) of 3 Act
of 1971. “Court” is also defined under section 3 sub
section 4,
for the purposes of chapter VI and VII
meaning thereby the Industrial Court, or as the case
may be Labour Court. Definition of employee is
covered by section 3(5) and of employer is provided
under section 3 sub section 6 of the Act, 1971. The
State Government appointed committee, called
“Committee on unfair labour practices” for defining
certain activities of employers and workers and their
organisation which could be treated as unfair labour
practices and have suggested action which could be
taken against employers or workers or their
organisations for engaging in such unfair labour
practices. It was the aim and object of the State
Government while bringing this statute in
operation-enforcement-application to provide for the
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recognition of the trade unions for facilitating the
collective bargaining for certain undertaking;
undertaking to
state their rights and obligations; to confer
certain powers on un-recognised unions, to provide
for declaring certain strikes and lock-outs as
illegal strikes and lock outs, to define and provide
for the prevention of certain unfair labour
practices, to constitute Courts (as independent
machinery) for carrying out the purposes of
recognition
to start unions and for enforcing the
provisions relating to unfair practices and to
provide for matters connected with the purposes
aforesaid.
6. On my query to both the learned counsel as to
which statute applies to the parties in the case on
hand, learned counsel Mr. Hon could not reply. Mr.
Chaudhari learned counsel for the petitioner made
available, copy of the Central Civil Services Manual,
according to him, classification has been provided as
A, B, C and D. According to him present complainant
is not employee of the respondent, however if it is
accepted or presumed in that circumstances, he comes
in “C” class. He however, strongly contended that
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complainant is not employee of the petitioner.
. Central Civil Services (Classification,
Control and Appeal) Rules, 1965 (hereinafter referred
to as “Rules, 1965”). These Rules, 1965, have been
framed, under Article 309 of the Constitution of
India. It is clarified under these rules that these
rules are framed under Article 309 subject to Article
311 of the Constitution and therefore these rules are
not applicable to civil employees of Defence
Department. In part II of the Rules of 1965,
classification of services is enumerated as (i)
Central Civil Services, Group-A (ii) Central Civil
Services, Group-B; (iii) Central Civil Services,
Group-C; (iv) Central Civil Services, Group-D. Part
III, of Rules of 1965 is titled as “Appointing
Authority”. Under Rule 8 it is provided that all
appointments to Central Civil Services, Class I and
Central Civil Posts, Class-I, shall be made by the
President. There is rider i.e. proviso to this Rule
8. So far other appointments are concerned Rule 9 is
relevant i.e. appointments to other services and
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posts. While parting from this part of the order it
is noticed that the rules of 1965, are holding the
filed. Classification of the post, appointments to
be made by the specific authorities, procedure for
suspension is provided in these rules. Mr.
Chaudhari submits that forum available to complainant
is Central Administrative Tribunal.
7. In foregoing paragraphs of this order, I have
referred to the provisions of Act of 1971, provisions
of Rules, 1965, brief pleadings of complainant and
respondent in their plaint and written statement as
well as reference in nut shell is made to the order
passed by the learned trial Court and the revisional
Court.
8. I would refer to the judgment of the larger
Bench of this Court since the judgments of the
Supreme Court pointed out by Mr. Chaudhari have been
referred to and considered by the larger Bench. It
is in the matter of Tukaram Tanaji Mandhare and anr.
v. Raymand Woolen Mills Ltd. and others 2005(4)
Mh.L.J. 1045. In this judgment, the judgments of
the Supreme Court in the matter of Vividh Kamagar
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Sabha V. Kalyani Steels Ltd. (2001) 2 SCC 381,
Sipla Ltd. V. Maharashtra General Kamgar Union
(2001) 3 SCC 101, Sarva Shramik Sangh V. Indian
Smelting and Refining Company Ltd. (2003) 10 SCC 455
have been referred to. This was writ petition no.
1204 of 2003 with other two writ petition decided by
the larger Bench of this Court on June 6, 2005 at
Mumbai. Some other judgments of this Court were also
considered by the larger Bench of this Court. The
facts have
been narrated by the larger Bench in
paragraph no.1 of the judgment. There the respondent
Company had disputed the status of the employees and
contended in written statement that there is no
relationship of employer-employee with any of the
petitioners. Employment of the complainant was
through contractors. Contention was raised on behalf
of the Company, that complaints would have to be
decided regarding maintainability by the Court.
There the Industrial Court-Labour Court had upheld
the preliminary objection raised by the respondent
Company and it was upheld that complaints deserve to
be dismissed. Accordingly complaints were dismissed,
i.e. how petitioners in that case filed the writ
petitions challenging the dismissal of the
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complaints. The learned Single Judge of this Court,
before whom the writ petitions came up for hearing
had noted that all the cases decided by the Supreme
Court, (which are also referred to in foregoing
paragraphs) are covered by provisions of Act of 1947
whereas the petition before the Court relate to
industries covered by the provisions of Bombay
Industrial Relations Act, 1946. (B.I.R. for short)
Noticing conflicting judgments/orders of the Court
the learned
ig Single Bench of this Court made the
reference. Questions which are referred for
resolution to larger Bench have been recorded in
paragraph no.2 of the judgment. Question no.1 was
whether a person who is an employee with a contractor
who undertakes that execution of any or whole of the
work or any part of the work which is ordinarily the
work of the undertaking is an employee within the
meaning of section 3(5) of M.R.T.U. and P.U.L.P.
Act, 1971. Two other questions formulated were
pertaining to definition under section 3(3) of Bombay
Industrial Relations Act. Answers recorded by the
larger Bench to the questions referred are noted in
paragraph no.19 of the judgment.
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. Mr. Chaudhari the learned counsel has cited
the judgments of the learned Single Bench of this
Court in the matter of Janprabha Offset Works V.
Sarva Shramik Sangh and anr. 2007 (3) Bom. C.R.
91. . Counsel Mr. V.D. Hon for the petitioner has
relied on judgment of the learned Single Bench of
this Court in the matter of Akhil Bharatiya Shramik
Kamgar V. Buildtech Constructions and ors. reported
in 2004(3) Mh.L.J. 142. There the counsel Mr. V.D.
Hon relied
on observations that mere statement of
denial of relationship in the reply affidavit or for
that matter written statement, by itself cannot be
the basis for taking the view that the Court has no
jurisdiction to try and decide the complaint. There
in paragraph nos. 4 and 6 this Court has observed
that Industrial Court in that case has held that it
had no jurisdiction to try and decide his complaint
as filed by the petitioners under the provisions of
M.R.T.U. and P.U.L.P. Act, 1976.
9. Mr. Hon learned counsel submits that though
written statement is filed on behalf of the
respondent, specific ground is not raised, that the
learned Judge Labour Court does not have the
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jurisdiction to entertain the complaint. According
to him, in the absence of such contention raised in
the pleadings, it was not for the Courts to
investigate and record any finding on
employer-employee relationship. He further submits
that the learned Labour Judge in paragraph no.12,
though has referred the contention of defendant
disputing the relationship as employer and employee
no evidence is led on behalf of the respondent and
the Court
therefore prima facie has considered the
material on record and granted relief at interim
stage in favour of the complainant. He also points
out from the judgments of the revisional Court
paragraph nos. 5 and 6 that the issue of
jurisdiction has not been raised in the written
statement by the respondent and learned revisional
Court has observed that such issue can be raised by
amending the written statement. He supports the
order passed by the Courts below.
10. The learned Judge, Labour Court, in paragraph
no.6, has noticed the contentions raised in the
written statement denying the alleged relationship of
employer and employee amongst the complainant and
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respondent. In paragraph no.12 learned Judge has
made a brief reference to this contention however,
proceeded to examine prima facie case and recorded a
finding in favour of the complainant. The revisional
Court while considering the revision application
filed by the petitioner in paragraph no.6 observed
that the point of jurisdiction which goes to the root
of the matter can be raised by the petitioner herein
by way of amending the written statement. Further it
has been
observed that in the written statement no
such point is raised though such point may be a law
point however at this stage cannot be concluded.
. It is not possible to accede to the
observations of the learned revisional Court. Copy
of the written statement is on record. There the
petitioner has in clear terms denied the alleged
relationship of employer and employee among the
parties i.e. complainant and respondent. Noticing
such pleadings it was for the Courts below i.e.
learned Judge as well as revisional Court, to find
out as to whether they have jurisdiction to entertain
and decide the complaint. Issue of jurisdiction hits
the Court or authority, at the thresh hold and such
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issue in fact goes to the root of the matter. Once
it is held that Court is having jurisdiction, there
is no difficulty for the Court to proceed with the
case before the Court. These are the Courts,
functioning under the provisions of the Act, 1971.
It was for these Courts, to take into consideration,
the case of the complainant himself as to whether he
is being governed by a particular or specific statute
and/or can resort to provisions of Act, 1971. Unless
Courts
are satisfied that the complaint filed by the
complainant is maintainable, Court should not have
proceeded to examine and decide the application for
interim relief under section 30 of the Act of 1971.
11. Second aspect of the matter which I have
noticed is that relief claimed in the main complaint
virtually is sought in the interim application under
section 30 of the Act, 1971. The trial Court awarded
the said relief which is in the nature of final
relief at the interim stage. The revisional Court
which is expected to consider this aspect of the
matter, dismissed the revision and confirmed the
order passed by the trial Court. In my view orders
impugned in this writ petition requires to be quashed
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and set aside.
12. Having considered the conspectus of the
judgments cited, in my view case for allowing the
petition is established. However it is made clear
that this Court has not recorded a finding, on the
issue of maintainability of the complaint before the
learned Judge, Labour Court under the provisions of
Act, of 1971. It is for the Court concerned before
whom to
decide maintainability of the complaint on
merits, after hearing the parties and affording
opportunity to lead evidence, if they desire to do
so.
13. In this view of the matter, writ petition is
allowed. Orders impugned in this writ petition are
quashed and set aside. Rule made absolute in above
terms without any order as to costs.
(S.B. DESHMUKH, J.)
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arp/3039/1218
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