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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 5317, 5318 & 5319 OF 2009.
.........
WRIT PETITION No. 5317/2009.
Birla Cotsyn (India) Ltd.,
A-82, MIDC, Khamgaon, Tah. Khamgaon
District Buldhana, through its General
Manager (P&A), Shri O.B. Sharma,
r/o. Khamgaon, Tah. Khamgaon,
District Buldhana. ....PETITIONER.
VERSUS
1. Tarachand s/o Chiranjilal Sharma,
Aged 53 years, R/o. Smruti sadan,
Sarafa, Tahsil Khamgaon,
District Buldhana.
2. The Labour Court,
Deosingh Bhavan, Bhonde Sarkar
Chowk, Near General Hospital,
Buldhana.
3. The Member, Industrial Court,
Shrikant Super Market, APMC Road,
Near Rajkamal Talkies,
Akola. ....RESPONDENTS
.
.........
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WRIT PETITION No. 5318/2009.
Birla Cotsyn (India) Ltd.,
A-82, MIDC, Khamgaon, Tah. Khamgaon
District Buldhana, through its General
Manager (P&A), Shri O.B. Sharma,
r/o. Khamgaon, Tah. Khamgaon,
District Buldhana. ....PETITIONER.
VERSUS
1. Shatrughna s/o Purnaji Bhise,
Aged 53 years, Residing Near Hanuman
Mandir, Gopal Nagar, at and post Khamgaon,
Tah. Khamgaon, District Buldhana.
2. The Labour Court,
Deosingh Bhavan, Bhonde Sarkar
Chowk, Near General Hospital,
Buldhana.
3. The Member, Industrial Court,
Shrikant Super Market, APMC Road,
Near Rajkamal Talkies,
Akola. ....RESPONDENTS
.
.........
WRIT PETITION No. 5319/2009.
Birla Cotsyn (India) Ltd.,
A-82, MIDC, Khamgaon, Tah. Khamgaon
District Buldhana, through its General
Manager (P&A), Shri O.B. Sharma,
r/o. Khamgaon, Tah. Khamgaon,
District Buldhana. ....PETITIONER.
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VERSUS
1. Sawarmal s/o Laluram Sharma,
Aged about 52 years, R/o. Near
Natraj Garden Road, at and Post
Khamgaon, Tah. Khamgaon,
District Buldhana.
2. The Labour Court,
Deosingh Bhavan, Bhonde Sarkar
Chowk, Near General Hospital,
Buldhana.
3. The Member, Industrial Court,
Shrikant Super Market, APMC Road,
Near Rajkamal Talkies,
Akola. ....RESPONDENTS
.
-----------------------------------
Shri V.R. Thakur with Shri H.V. Thakur, Advocate for Petitioner.
Shri S.D. Thakur with Shri P.S. Kshirsagar, Advocate
for respondent no.1 in all petitions.
Learned AGP for respondent nos. 2 and 3 in all petitions.
------------------------------------
CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the Judgment. - 4th August, 2010.
Date of Pronouncement. - 26th August, 2010.
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JUDGEMENT.
1. Challenge in all this three writ petitions is to identical orders
passed by Labour Court appeal by Industrial Court in revisions. All
complaints are under Section 28 of Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter
referred to as ULP Act). Contention of Employer Petitioner in short in
all matters is Labour Court or Industrial Court could not have gone into
the question of disputed status of respective respondent no.1 in all these
Writ Petitions as these courts under Section 28 exercise summary
jurisdiction. Hence, only when relationship of employer and employee is
either undisputed or indisputable, the jurisdiction can be exercised.
Looking to the nature of controversy and at the request of parties,
matters have been heard finally at admission stage by making Rule
returnable forthwith.
I have heard Shri V.R. Thakur with Shri H.V. Thakur, learned
Counsel for Employer/Petitioner and Shri S.D. Thakur with Shri P.S.
Kshirsagar, learned Counsel for respective respondent no.1. Learned AGP
has appeared for respondent nos. 2 and 3.
2. Respondent no.1 in Writ Petition No. 5318/2009 has filed
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ULP complaint 26/2008 challenging his oral termination dated
22/7/2008 on 19/8/2008. Petitioner / Employer filed written
statement and also an application at Exhibit -10 to dismiss that
complaint as not tenable stating that employee was working as finishing
supervisor/shift-in- charge in managerial and administrative capacity at
the time of his termination. Labour Court passed an order on this
objection on 03.03.2009 and framed preliminary issue about
maintainability of complaint. It recorded evidence on that issue and
passed order holding complaint to be maintainable. It held that
employee was working in supervisory capacity but his basic pay was only
Rs. 5852/- i.e. less than Rs. 6500/- per month and hence, he did not go
out of definition of employee as given in Section 3 (13) of Bombay
Industrial Relations Act, 1947; hereinafter referred to as BIR Act.
Petitioner then challenged that order in revision under section 44 of ULP
Act in ULP Revision No.24/2009. On 12/8/2009 Industrial Court
dismissed that revision. Labour Court thereafter on 6/10/2009 passed
order below Exhibit 2 and granted relief of interim reinstatement with
direction to pay 50% back wages from the date of termination till his
reinstatement . These orders dated 21/4/2009 and 6/10/2009 of Labour
Court and order dated 12/8/2009 of Industrial Court are questioned in
Writ Petition No. 5318/2009. Respondent no. 1 in Writ Petition
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No.5317/2009 filed ULP complaint 20/2008 challenging oral
termination on 23/7/2008. Similar type of application at Exhibit 16 to
dismiss his ULP complaint was preferred by Employer and on 3/3/2009,
Labour Court framed preliminary issue. After appreciating evidence of
parties, on the 21/4/2009 it rejected that application holding that there
was no evidence that duties of employee were either managerial or
supervisory and his basic pay was Rs. 5446/- i.e. less than Rs. 6500/- per
month. Employer challenge this in ULP Revision No. 25/2009 and by
common judgment dated 12/8/2009 that revision came to be rejected.
Thereafter on 6/10/2009, Labour Court allowed prayer of employee for
interim relief and directed employer to reinstate him with further
direction to pay 50% back wages from termination till reinstatement.
These three orders form subject matter of challenge in Writ Petition No.
5317/2009. Respondent no. 1/Employee in Writ Petition No. 5319/2009
filed ULP Complaint No.28/2008 alleging oral termination on 1/9/2008.
Petitioner raised similar objection then by filing application at Exhibit 11
and vide order dated 3/3/2009, Labour Court framed preliminary issue.
On 21/4/2009 it passed an order rejecting application at Exhibit 11
holding that employee was not performing administrative or supervisory
function. It also found that his basic pay was Rs. 5754/- only. ULP
Revision No. 24/2009 preferred by Employer was dismissed by Industrial
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Court by common judgment dated 12/8/2009 mentioned above.
Thereafter on 6/10/2009, Labour Coat granted employee relief of
interim reinstatement with further direction to pay him 50% back wages
from the date of termination till his reinstatement. These three orders
are challenge by Employer in Writ Petition No. 5319/2009.
3.
Shri V.R. Thakur, learned Counsel for Employer/Petitioner
has contended that basically three issues arise for determination in these
matters. Various judgments cited before Labour Court or Industrial Court
to show summary nature of its jurisdiction have not been appreciated
correctly and hence, when status of respondent no.1 as employee is in
dispute, Courts could not have embarked upon enquiry to determine that
status. After noticing that the objection was not raised mala-fide, ULP
Complains ought to have been dismissed. His contention is presence of
independent contractor is not essential and restriction is upon power of
Court. He has invited attention to various judgments to urge that
finding about limited jurisdiction recorded there is not on account of
presence of contractor. He also cited some precedents where similar
restriction is found even in absence of contractor. In view of this line of
arguments, I find it appropriate to consider the same along with relevant
judgments . His next contention is “basic pay” as envisaged in section 3
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(13) of BIR Act also includes contribution to provident fund by
employer and bonus paid every year. He is taking support from
definition of “wages” in Section 3 (39) of BIR Act. He has invited
attention to salary certificate dated 3/3/2009 of the respondent no.1 in
Writ Petition No. 5318/2009 to show that if employers PF contribution
of Rs.702/- and proportionate monthly bonus of Rs.825/- is added to his
basic, it exceeds ceiling of Rs. 6500/- and said respondent no.1 travels
out of definition of “employee”.
4. Shri S.D. Thakur with Shri P.S. Kshirsagar, learned Counsel
for respective respondent no.1/Employee has urged that arguments
being advanced or objection as raised is too technical and none of the
precedents cited before this Court support the same. According to
learned Counsel Hon’ble Apex Court has nowhere laid down a law that
disputed issue of status cannot be resolved by Courts functioning under
ULP Act . He vociferously argued that there is nothing in ULP Act to
show that jurisdiction exercised thereunder is summary in nature. In
any case, according to him controversy stands concluded by Division
Bench judgment of this Court and as in present facts, there is no
contractor, learned Single Judge cannot take any other view and
impugned orders deserve to be upheld. He has invited attention to a
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consideration of nature of duties by Labour Court to urge that issue of
“basic pay” is totally irrelevant. He has also cited some judgments of
Hon’ble Apex Court to explain how the ratio in precedents needs to be
deciphered and applied under Article 141. Judgment reported at 1994
Mah.L.J. 1004 – (Municipal Corporation of City of Amraoti vs. Ashok
Ramkrishna Kamble) is relied upon by him to show meaning of phrase
“basic pay”. According to him, no allowance can be added to basic pay to
find out whether it exceeds ceiling limit.
5. I find it appropriate first to consider the question of basic pay.
Both learned Counsel have taken recourse to definition of wages in
Section 3(39) to explain it. Section 3 (13) of Bombay Industrial
Relations Act, 1946 defines employee as under: —
“employee” means any person employed to do
any skilled or unskilled work for hire orreward in any industry, and includes —
(a) a person employed by a contractor to do
any work for him in the execution of a
contract with an employer within the
meaning of sub-clause (e) of clause (14);
(b) a person who has been dismissed,
discharged or retrenched or whose services::: Downloaded on – 09/06/2013 16:19:59 :::
10have been terminated from employment on
account of any dispute relating to change in
respect of which notice is given or an
application made under Section 42 whetherbefore or after his dismissal, discharge,
retrenchment or, as the case may be,
termination from employment.
but does not include —
(i) a person employed primarily in the
managerial, administrative, supervisory ortechnical capacity drawing basic pay
excluding allowances exceeding 6500 rupees
per month:
(ii) any other person or class of persons
employed in the same capacity as those
specified in clause (i) above irrespective of the
amount of the pay drawn by such personswhich the State Government may, by
notification in the official Gazette, specify in
this behalf.
Other relevant definition is contained in subclause (39) of
Section 3 and it reads :-
(39) “wages” means remuneration of all kinds
capable of being expressed in terms of money and
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11or work done in such employment and includes —
(i) any bonus, allowances (including dearness
allowance), reward or additional remuneration;
(ii) the value of any house accommodation, light,
water, medical attendance or other amenity or
service;
(iii) any contribution by the employer to any pension
or provident fund;
(iv) any travelling allowance or the value of any
travelling concession;
(v) any sum paid or payable to or on behalf of an
employee to defray special expenses entailed on him
by the nature of his employment;
(vi) gratuity payable, if any.
6. Bare perusal of definition of wages above shows what is to be
included in it and not that that cannot be included. Its opening part uses
the word “means” and thus shows legislative intention of its exhaustive
nature. But then words therein give it a very wide sweep to cover all
entitlements of an employee. Despite this, it also uses the words “and
includes” and then lists various other payments in the shape of
reimbursement or concession or allowances. Contribution to pension or
provident fund and also payment of gratuity depends upon number of
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employees available in the establishment of employer. Hence, that
payment may not be available where though employment is of a same
nature, number of employees is less or then because power i.e. electricity
is not used in manufacturing process. Similarly traveling allowance or
value of any traveling concession may not be a service condition in all
employments. Payment under sub-clause (v) also will depend upon
terms and conditions of contract which individual has or then upon the
nature of his employment. Reward or additional remuneration under
sub-clause (i), reimbursement towards accommodation, light, water
charges, medical attendance or other similar amenity or service is not a
uniform service condition everywhere and its quantum is bound to differ
from employer to employer. In present facts, in Writ Petition No.
5318/2009, though there is a finding that respondent no. 1- S.P. Bhise is
working in supervisory capacity as his basic wage/pay is found to be Rs.
5852/– per month which is below the prescribed limit of Rs.6,500/– per
month, he is held an “employee”. Effort of petitioner employer is to add
bonus of PF contribution so that his basic exceeds that limit. Submission
is to construe phrase “basic pay” in the light of definition of “wages” and
to add the allowances or reimbursement or concession falling in its
inclusive portion. It is apparent that such an interpretation is not
available because it then defeats the legislative intention in using both
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words like “means” and “includes” in Section 3 (39) of the BRA Act. This
interpretation introduces different concept for examining whether a
person is or is not an employee in different establishments depending
upon his service conditions in that regard. A person showered with any
allowance or concession may cross the prescribed limit and therefore will
fall outside that definition while with other employer, he may qualify to
be an employee. This will thus permit employers to manipulate said
status and importance given to nature of duties will be lost. The
paramount consideration in Section 3 (13) is to nature of duties and not
to total wages. Word “basic pay” has been used deliberately there to
indicate the fixed portion falling in substantive part of Section 3 (39)
specified by using the word “means” is only intended to be covered and
to ignore its variable part. This puts it beyond doubt that all contractual
and statutory amounts payable on account of work done are not
contemplated under it. Otherwise, there was no point in using different
words and same word “wages” could have been employed in Section
3(13) also. Even word “basic wages” has not been used there. Basic pay
always is understood as that part of total wage left after excluding all
such variables like dearness allowance, over time, any reimbursement or
concession etc. If the quantum of any such variable payment in the shape
of allowance or reimbursement or concession is added, use of word
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“basic” stands defeated. Word basic has been employed to indicate
original remuneration shown of all these additions which may be as per
contract or as per law on the point. Language in substantive Section
3(39) is very wide because it is designed to meet a different contingency.
Same meaning to “basic pay” in scheme of Section 3 (13) of BIR Act
militates not only with that scheme but also with intention in Section 3
(13) itself. Different norms cannot be applied to find out whether
particular person is or is not an “employee” and primacy has to be given
to nature of his duties. Legislature has made managerial, administrative,
supervisory or technical work relevant only when it forms primary duty
of such person and it is coupled with further requirement of excluding
allowances. Words employed “drawing basic pay excluding allowances”
clearly mandate elimination of all allowances from consideration and
said allowances find mention in inclusive part of Section 3 (39).
Legislation has attempted to apply one standard of earning on uniform
basis for all such employees. Contention that payment of bonus or
contribution of employer to PF or pension fund or gratuity is not an
allowance and must be treated as part of “basic pay” also cannot be
accepted looking to the spirit of both provisions. The use of words ” pay”
or “wages” in the matter is not to indicate any different yardsticks and it
is word “basic” qualifying the word “pay” which is decisive. It is also clear
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that words “basic pay” in Section 3 (13) can be and need to be
construed in the light of Section 3(39) of BIR Act itself.
7. Perusal of judgment of Learned Single Judge of this Court in
Municipal Corporation of City of Amraoti vs Ashok Ramkrishna Kamble
(supra) shows that there the employee was working as junior engineer
on the wages of Rs 72/-. He was an engineering graduate. In this
background it has been found that a person who is being paid meagre
salary even if he’s doing managerial, administrative, supervisory or
technical work is extended the protection and the words “basic pay
excluding allowances” need to be interpreted with this idea in mind.
Dictionary meaning of “pay” from concise Oxford dictionary has been
looked into and similarly meaning of word “basic” from said dictionary is
also noticed. Basic has been found to mean simplest or lowest pay and
in case of respondent therein it is found to exceed Rs 1000/- per month –
a ceiling limit then in force. Hence it was concluded that respondent
was pushed out of protective zone of enactment. Rate of Rs 72/- per day
was without any allowances and finding reached is on that basis. Here,
respondent no. 1 is not receiving basic pay in excess of Rs 6500/- per
month and payments like employers’ share of provident fund or bonus or
gratuity cannot be added to it. I, therefore, do not find anything wrong
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with application of mind by Labour Court in U.L.P. complaint filed by
S.P. Bhise ie. respondent no.1 in Writ Petition No. 5318/2009.
In remaining 2 petitions, controversy pales into insignificance
as duties of respective respondent no.1 therein are not found to be
managerial, administrative, supervisory or technical in nature. Ceiling of
Rs 6500/- per month is therefore irrelevant in their matters. It is
important to note that findings on fact in this respect about nature of
duties are not disputed by respective Counsel in any of 3 writ petitions.
8. The question about absence of jurisdiction needs to be
addressed in the light of various pronouncements by this Court and by
Hon’ble Apex Court. To avoid prolixity and reiteration, I will like to
refer to recent judgment of this Court. Various judgments were required
to be considered by me in 2006 (3) All M.R. 552– (Maharashtra
Industrial Development Corporation vs Member Industrial Court) and
more recently in case of Bhaskar Vaidya vs. Member, Industrial Court
reported at 2010 (3) Mh.L.J. 349. Recent judgment of Division Bench of
this Court is reported at 2008 (1) LLJ 271–(Sarva Shramik Sangha vs.
Janprabha Offset Works). Division Bench found that U.L.P. complaint
filed by union was on behalf of of employees in printing presses who
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were claiming wages equal to employees in newspaper establishment.
Plea was printing presses and newspaper were part of same
establishment and Industrial Court after denial in this respect by both
establishments framed an issue and held that they were not separate
establishments. Single Judge held that Industrial Court had no
jurisdiction to entertain U.L.P. complaint raising such dispute. Various
judgments on which both Counsel have relied before me were pressed in
the service even in that matter and in paragraph 13, Division Bench
proceeded to decide issue about jurisdiction. In paragraph 15 request
made to Hon’ble Apex Court in Sarva Shramik Sangha vs. Indian
Smelting & Refining Co Ltd and others (A.I.R. 2004 SC 269) to
reconsider its earlier view by constituting a larger Bench and its rejection
is also noticed. In paragraph 16, Division Bench found that when
relationship is in dispute, Labour or Industrial Court has no jurisdiction
to record a finding in that respect. It is apparent that no contractor is
placed in said matter between employee and the employer, but ultimate
relationship is being traced to newspaper establishment through
immediate employer i.e. printing press. This judgment has been
considered by me in Bhaskar Vaidya vs. Member, Industrial Court
(supra). There employment with Sports Academy (public employment)
was alleged contending that employee/he was employee of a private
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body and was orally asked for option to start work in sports academy
and accordingly, employee claimed that he had started work. His
grievance was, he received only meagre amount as honorarium that too
through the private body. Consideration there shows that this Court
noticed absence of contractor but then found some arrangement
between private body and sports academy under which 5 employees
were made available on loan by private body to latter and in view of
other facts on record there, absence of direct relationship was also
noticed. Even in Maharashtra Industrial Development Corporation vs
Member Industrial Court (supra), I, have considered in detail all
precedents and judgment of Hon’ble Apex Court in Sarva Shramik
Sangha vs. Indian Smelting & Refining Co Ltd and others (others) in
paragraph 9G, where observations of Hon’ble Apex Court in para 21 are
extracted and relied upon. The extent to which Labour or Industrial
Court can go is examined therein. It has been noticed that employee
there nowhere asserted in his U.L.P. complaint that he was receiving
wages from M.I.D.C. and he was contending that M.I.D.C. was his
principal employer. He thus did not plead any direct relationship and
only pointed out that his name appeared in the logbook of vehicle as
driver. Employer had pleaded that employee had worked as driver
under various contractors on rate list basis. Consideration in paragraph
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11 shows various facts looked into by this Court to note that relationship
was neither undisputed nor indisputable. It is therefore obvious that in
absence of direct relationship, same was sought to be pleaded and
proved in that matter. Several judgments on which petitioner has placed
reliance are looked into in above judgments either by me or by Division
Bench. I, therefore, do not find it necessary to again individually
mention or consider the same here.
9. Shri V.R. Thakur, learned counsel has attempted to draw a
line of distinction by contending that law as settled by Hon’ble Apex
Court or then by Division Bench of this Court does not lay down that
only when contractor exists, the relationship can be said to be in dispute.
Shri S.D. Thakur, learned counsel has gone a step further to urge that
appreciation of controversy by Hon’ble Apex Court in Sarva Shramik
Sangha vs. Indian Smelting & Refining Co Ltd and others (supra) and all
earlier matters is itself vitiated as it does not consider relevant provisions
of U.L.P. Act. He has invited attention to judgment of Hon’ble Apex
Court reported at (1995) 3 SCC 78 — AIR 1995 S.C. 1137 (Shramik
Utkarsh Sabha v. Raymond Woollen Mills Ltd.) to urge that U.L.P. Act
and BIR Act are complementary to each other and jurisdiction of either
Labour Court or Industrial Court under U.L.P. Act has been wrongly
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construed to be summary in nature. Hon’ble Apex Court has held that
the B.I.R. Act was enacted to provide for the regulation of the relation of
employers and employees in certain matters and to consolidate and
amend the law in relation to the settlement of industrial disputes. The
U.L.P. Act was enacted to provide for the recognition of trade unions for
facilitating collective bargaining for certain undertakings; to state their
rights and obligations; to confer certain powers on unrecognized unions;
and to define and provide for the prevention of unfair labour practices;
and to constitute courts in this behalf. It cannot, therefore, be said that
the B.I.R. Act and the U.L.P. Act operate in different fields. A
commonality in their objects and their provisions is found by Hon’ble
Apex Court. The obvious intent of the legislature which enacted them
was that they should operate in tandem and complement each other in
respect of industries to which the B.I.R. Act had been made applicable.
Hence Hon’ble Apex Court stated that the two statutes must be read
together. I do not find anything in these observations which militates
with conclusions by Hon’ble Apex Court in Sarva Shramik Sangha vs.
Indian Smelting & Refining Co Ltd and others (supra). In latter
judgment, in paragraph 23 Hon’ble Apex Court has also given reasons
for arriving at a particular construction. In paragraph 24, it is further
pointed out that even if 2 forums are presumed to be available, the Court
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can always state which is more appropriate forum to have effective
adjudication. In view of this law, I do not find any merit in contentions
of respondent no. 1 and judgments relied upon by Shri S.D. Thakur like
(2008) 1 SCC 494 – (Sarva Shramik Sanghatana (KV) v. State of
Maharashtra) and (2010) 5 SCC 513– (V. Kishan Rao v. Nikhil Super
Speciality Hospital), to explain how the binding nature of a precedent is
to be appreciated or understood, need not be gone into. Shri V.R.
Thakur, learned counsel has attempted to show that Division Bench
view of this Court in Fulchand Baburao Gedam vs. Lokmat Newspapers
Ltd. reported at 2007 III CLR 619 that U.L.P. complaint is maintainable
when issue of contract Labour is not involved either directly or
indirectly, is also not correct. There the defence of employer was that
employees were engaged by some of the officers for their personal work
and were attending to their requirements and might be visiting the
establishment of employer for that purpose. The facts therefore show
that no relationship was being shown with any third employer over
whom newspaper had no control and defence was of employment with
some officers who were themselves in employment of respondent
newspaper. I do not find anything even in said judgment to assist cause
of petitioner even indirectly. Division Bench there has also considered
several judgments and SLP against said view is also dismissed in motion
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by Hon’ble Apex Court. It is settled law that principle of merger is not
attracted and such dismissal does not tantamount to declaration of law
by Hon’ble Apex Court to constitute it in binding precedent. However
developments in field of law need to be noticed in the background of all
earlier judgments. In present matters, neither Labour Court nor
Industrial Court has rejected preliminary objection of
Petitioner/Employer because there is no intervention of an independent
contractor. I therefore, do not find it necessary to delve more into said
controversy here.
10. All the judgments referred to above clearly contemplate
undisputed or indisputable relationship between contesting parties to
enable Labour Court or Industrial Court to exercise jurisdiction under
U.L.P. Act. Once relationship is accepted, contention that said Court can
not examine nature of duties of such complainant employee or his status
cannot be accepted. In present matters, only dispute is about nature of
duties and petitioner has accepted master — servant relationship with
respective respondent no.1. Acceptance of that relationship itself confers
jurisdiction even on courts functioning under U.L.P. Act to take
cognizance. Whether such “servant” fits into the definition of “employee”
is a secondary question which can then be gone into by those courts in
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the light of law as settled. I find reliance by petitioner upon observations
in paragraph 24 of Hon’ble Apex Court in Sarva Shramik Sangha vs.
Indian Smelting & Refining Co Ltd and others (supra) is misconceived in
present facts.
Judgment of learned Single Judge of this Court in 2009(6)
Mh.L.J. 212 — (Vidyut Metallics Pvt. Ltd. vs. Maharashtra Rajya
Rashtriya Kamgar Sangh) considers the issue of maintainability of civil
suit against union seeking recovery of damages for loss of business and
notes that courts functioning under U.L.P. Act do not possess such
jurisdiction. This judgment cannot be interpreted to state that even
status of servant as an employee cannot be gone into by said courts.
(2005) 12 SCC 433- (Oswal Petrochemicals vs Government of
Maharashtra) only follows settled law and does not advance the stand of
petitioner.
2004 III CLR 530- (Quadricon Pvt. Ltd vs Maxi D’Souza and
other) is the Division Bench judgment of this Court where in matter
came to be remanded back to Industrial Court to find out whether
relationship was undisputed or indisputable.
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Facts in 2005 I CLR 658 — (Maharashtra Engineering Plastics
and General vs Little Kids and others) show that a stranger in the shape
of respondent 3 was joined as party in U.L.P. complaint and respondent
nos. 1 and 2 had no relation or connection with it. Respondents no.1
and 2 had pointed out that they had engaged eight employees and
complainants were not in their employment. In 2006 II CLR 815– (ICICI
Bank Ltd vs Narendra R. Parmar), services were terminated by a
subsidiary company and in U.L.P. complaint Bank as also its that
subsidiary were joined as parties. In 2007 III CLR 982– (Maharashtra
State Cooperative Cotton Growers Marketing Federation vs Asha Josef
D’mello), it was shown to learned Single Judge of this Court that witness
for petitioner never admitted that respondents were appointed in clear
post and legal relationship between parties was in dispute. However,
this Court only noticed that Industrial Court has ignored the limited
jurisdiction available to it and did not record any final finding about
absence of jurisdiction. Challenge to termination was allowed to be
prosecuted by employee before Labour Court in accordance with law.
None of the judgments therefore come to the rescue of present employer
in these writ petitions. After the relationship is accepted, Court
functioning under U.L.P. Act can examine nature of duties and find out
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basic pay to note whether provisions of welfare legislation can be
extended to Complainant before it.
11. U.L.P. Act deals with various unfair labour practices and
while recording of finding in relation to several of them, examination of
nature of duties of complainant becomes relevant. While finding out
whether transfer of complainant is to an equivalent post, whether there
is unmerited promotion or reversion or then any reduction in rank or
undue favour to any employee, victimization etc. such questions
frequently arise. It cannot be accepted that Labour Court or Industrial
Court can record evidence & deliver a finding about such equivalence or
its absence at that stage and same exercise cannot be undertaken only
because status of said Complainant employee is being assailed by
pointing out that his work is primarily of managerial, supervisory,
administrative or technical type. Only when there is genuine dispute
about existence of employer-employee relationship which includes
master-servant relationship, the summary jurisdiction prohibits further
inquiry. Here, petitioner has not even attempted to point out why and
how alleged dispute in relation to nature of duties performed by
respective respondent no.1 in Writ Petition Nos. 5317 and 5319/2009
can be labeled as genuine and bonafide. It is not in dispute that their
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basic pay does not exceed Rs 6500/– per month. In case of respondent
no. 1 in Writ Petition No. 5318/2009, finding reached by Courts below
is though he does work supervisory in nature, his basic pay is less than
Rs 6500/–. Question whether amount of PF contribution, bonus can be
added to basic pay to find out whether it exceeds Rs 6500/– is already
answered against petitioner above. No specific arguments as to why this
question cannot be answered by Courts functioning under U.L.P. Act has
been advanced. I find that a misconceived objection has been raised by
petitioners and inquiry into status of complainant before it by Courts
under U.L.P. Act cannot be equated with inquiry undertaken by it to find
out whether relationship is undisputed or indisputable in the light of
various judgments. Inquiry into relationship is an inquiry into fact
whether it possesses necessary jurisdiction. Inquiry into status of
complainant stands on altogether different pedestal and therein Court’s
jurisdiction to grant relief is not being scrutinized. In a given case, there
may be more than one complainant before such Court and one or more
of them may be found to possesses status necessary to invoke the
jurisdiction of Court under U.L.P. Act. Entitlement of such complainant
to such relief is under scanner here and hence, this inquiry cannot be
equated with inquiry about its jurisdiction in case of disputed
relationship. Inquiry into its own competence by such Court and an
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inquiry into entitlement of the complainant in U.L.P. complaint cannot
be confused together. In summary jurisdiction also objection to such
locus or entitlement can be gone into and answered by Court U.L.P.
complaint. I, therefore, do not find anything wrong in jurisdiction as
exercised by the Labour Court and as upheld by Industrial Court.
12.
Grant of relief of back wages however cannot be viewed as
interim relief and hence contention of petitioner that final relief has been
given by Labour Court by awarding 50% back wages from the date of
termination till date of reinstatement deserves to be accepted. Perusal of
its orders show that same are passed on an application for grant of
interim relief moved under Section 30 (2) of U.L.P. Act. It is also clear
that parties have not produced any evidence on merits to justify or to
assail alleged termination. However in last paragraph of this order,
Labour Court has held that grant of full back wages would amount to
deciding main complaint. Hence at interim stage, it has awarded 50% of
said amount as back wages. It has not envisaged the situation in which
it may be required to dismiss U.L.P. complaints finally on merit. Grant of
back wages cannot be seen as an interim relief at least in the facts
apparent from the impugned orders dated 6/10/2009 of Labour Court.
After recording a finding of unfair labour practice prima facie and
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possibility of irreparable loss, relief of interim reinstatement has been
correctly awarded. No reasons are recorded why grant of 50% back
wages is warranted as an interim measure and there is no consideration
as to how petitioner Employer can recover back that amount if ultimately
U.L.P. Complaints as filed are required to be dismissed. Hence said grant
of back wages is unsustainable and deserves to be quashed and set aside.
13. In view of discussion above, all three writ petitions are
accordingly partly allowed and impugned orders of Labour Court,
Buldhana dated 6/10/2009 passed below Exhibit 2 in U.L.P. Complaint
No. 26/2008, below Exhibit 2 in U.L.P. Complaint No.20/2008 and
below Exhibit 2 in U.L.P. Complaint No.28/2008 are modified and
respective direction to pay 50% back wages from the date of termination
till reinstatement therein stands quashed and set aside. Its remaining
portion and rest of the orders are maintained unaltered. Rule made
absolute only to that extent with no orders as to costs.
JUDGE
Rgd.
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