JUDGMENT
R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the petitioners
and the respondent No. 1. Perused the records.
2. The petitioners are challenging the judgment and order dated 27-1-2000,
passed by the Industrial Court dismissing the Complaint (ULP) No.889 of 1994,
filed by the petitioners, holding that the workers employed by the respondent No.
2 in the canteen in question are not the employees of the respondent No. 1 and,
therefore, the complaint under Section 28 of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter
called as “the said Act”, was not maintainable.
3. While challenging the impugned judgment and order, the learned
Advocate for the petitioners has submitted that the Court below has totally
overlooked the fact that the respondent No. 1 was statutorily bound to have a
canteen in the premises of the undertaking and accordingly had such canteen
wherein the petitioners were continuously employed irrespective of change of the
contractors from time to time, and therefore the respondent No. 1 is their
employer within the meaning of the said expression under Section 3(14) of the
Bombay Industrial Relations Act, 1946, hereinafter called as “the BIR Act”, and
thereby has acted illegally in dismissing the complaint. He has further submitted
that in any case a canteen being a facility provided for the workmen employed in
the undertaking of the respondent No. 1, it has to be considered as part of the
undertaking and, therefore, the petitioners are the employees of the respondent
No. 1 considering the definition of the said expression under Section 3(14) of the
BIR Act. In spite of the fact that all the relevant statements disclosing
jurisdictional facts in the complaint itself, the Industrial Court has illegally
dismissed the complaint. Drawing attention to the decisions of the Apex Court in
the matter of The Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal and Ors.,
reported in 7975 Lab.I.C. 1040 and in the case of Basti Sugar Mills Ltd. v. Ram Ujagar and Ors., as well as the decision of
the learned single Judge, as he then was, of this Court, in the matter of
Dattatraya Kashinath and Ors. v. Chhatrapati Sahakari Sakhar Karkhana Ltd.,
Pune and Ors., reported in 1996 (2) LLJ 169 and in the matter of Sakhar
Kamgar Union v. Shri Chhatrapati Rajaram Sahakari Sakhar Karkhana Ltd.,
and Anr., reported in 1996 (1) Mh.L.J. 556 = 1996 (2) LLJ 134, it is sought to
be argued that the decisions of the Apex Court as well as of this Court on the
issue of absence of jurisdiction to the Industrial Court to entertain the complaint
under the said Act were not delivered in the matters arising under the BIR Act
and therefore those decisions are clearly distinguishable and cannot be applied to
the facts of the case in hand. On the other hand, the learned Advocate for the respondent No. 1 has submitted that the complaint filed by the petitioner did not
disclose the statutory liability of the respondent No. 1 to have a canteen as being
a part of its undertaking, except mere submission in that regard in the complaint.
He has further submitted that Section 46 of the Factories Act, 1948 clearly
requires the Government to issue a notification specifying the undertaking to
require to have a canteen for the use of the workers and the Rules 79 to 85 of the
Maharashtra Factories Rules, 1963 are applicable in that regard and that Rule
79(1) clarifies the necessity of a notification which is required to be issued by the
Government in order to attract the provisions of Section 46 in case of any
particular undertaking. In the case in hand, according to the learned Advocate for
the respondent No. 1, it is nobody’s case that there has been any such notification
issued and that therefore there is no statutory liability upon the respondent No. 1
to maintain a canteen for its workers. As regards the contention that irrespective
of the statutory liability to maintain a canteen and that the canteen which has
already been maintained, forms ordinarily a part of the undertaking, according to
the learned Advocate, it is not only a disputed question of fact but there are
neither any pleadings to that effect nor that was the case of the petitioners in the
complaint and even assuming that it was the case of the petitioners, it was
necessary for the petitioners to get the issue of existence of employer and
employee relationship within the meaning of the relevant provisions of the BIR
Act being established independently prior to approaching the Industrial Court
under the provisions of the said Act, and admittedly there is no such adjudication
in relation to such an issue. Reliance is sought to be placed in the decisions in the
matters of Indian Petrochemicals Corporation Ltd. and Anr. v. Shramik Sena
and Ors., reported in 1999 Lab. I.C. 3078, Hari Shankar Sharma and Ors. v. Artificial Limbs Manufacturing Corporation of India and Ors., reported in
(1997) II CLR 631, Cipla Ltd. v. Maharashtra General Kamgar Union and Ors.,
reported in (2001) I CLR 754, Hindustan Coca Cola Bottling S/W Pvt. Ltd. v. Bhartiya Kamgar Sena and Ors., reported in 2002 (1) Mh.L.J. 559 = (2001) III
CLR 1025, General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. &
Calico Printing Co. Ltd. and Ors., reported in 1995 Supp (1) SCC 175.
4. It cannot be disputed that the issue as to the jurisdiction of the Industrial
Court in the matter of complaint under the said Act is well-settled by a series of
decisions of the Apex Court as well as by the decision of the Division Bench of
this Court in Hindustan Coca Cola Bottling S/W Pvt. Ltd. v. Bhartiya Kamgar
Sena and Ors. (supra). After taking note of its earlier decisions on the issue in
question, it was clearly observed that:–
“In that case the learned Judge has not agreed with the view taken by
Kochar, J. in the present case and held that in view of the decisions of the
Supreme Court in Cipla Ltd. and Kalyani Steels Ltd., that only
precondition to seek remedy under the MRTU & PULP Act is necessity
of existence of employer-employee relationship between the parties and
when its existence is not already established or is disputable, the party
has to first seek relief under the Central Act, i.e. the Industrial Disputes
Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if
successful therein to seek remedy under the said Act thereafter. We are
in agreement with the observations of the learned single Judge but with a rider that in cases where the employer-employee relationship was
recognised at some stage and thereafter it was disputed, the Industrial
Court has jurisdiction to decide this issue as an incidental issue under Section 32 of the MRTU & PULP Act.”
While approving the decision in Indian Seamless Metal Tubes Ltd. v. Sunil
Rambhau Iwale, reported in 2002 (4) Mh.L.J. 151 = 2002 Lab.I.C. 1662, the
Division Bench has specifically expressed full agreement with the views
expressed by me in the said decision to the effect that:–
“Once it is clear that the jurisdiction of the Industrial Court depends upon
the fact of existence of employer-employee relationship between the
parties which is a jurisdictional fact, which should exist to enable the
Industrial Court to assume jurisdiction to entertain the complaint under
the said Act, in the absence of the same, any attempt on the part of the
Industrial Court to adjudicate upon the issue of such relationship would
amount to mistake of fact in relation to jurisdiction.”
5. The issue as to the jurisdiction of the Industrial Court or the Labour
Court to entertain a complaint under the said Act has been conclusively decided
by the above referred decisions irrespective of the fact whether the employer-
employee relationship arises either in terms of the provisions of the Industrial
Disputes Act, 1947 or the BIR Act. What is necessary to give jurisdiction to the
Labour Court or the Industrial Court to entertain a complaint under the said Act
is the existence of such employer-employee relationship, to be disclosed from the
contents of the complaint filed by the complainant. Undoubtedly, the contents
must be corroborated by necessary materials on record, more particularly when
there is scope to dispute the claim of existence of such relationship. Once the
complaint fails to disclose the necessary jurisdictional fact i.e., the existence of
the employer-employee relationship between the parties, the question of the
Labour Court or the Industrial Court going into the issue as regards such a
relationship does not arise. It is immaterial whether the relationship of employee-
employer is claimed in accordance with the provisions of the Industrial Disputes
Act or pursuant to the provisions of the BIR Act. What is essential is that the
complaint itself should disclose all the facts which can reveal the existence of
such a relationship between the parties.
6. The contention that since the decisions in Cipla Ltd. v. Maharashtra
General Kamgar Union and Ors. (supra) and Vividh Kamgar Sabha v. Kalyani
Steels Ltd. and Anr., reported in 2001 AIR SCW 170 = 2001 Lab.I.C. 499 and
Indian Seamless Metal Tubes Limited and Hindustan Coca Cola Bottling S/W
Pvt. Ltd., by this Court are in respect of the relationship arising under the
Industrial Disputes Act and not under the BIR Act and, therefore, the said
decisions can be distinguished and cannot be applied to the case in hand is devoid
of substance. As already observed above, it is not mere reference to the
provisions of law which would suffice to disclose the employer-employee
relationship, but it is necessary that the jurisdictional fact should exist on the face
of the record to enable the Industrial Court or the Labour Court to entertain a
complaint under the said Act. The facts pleaded should reveal the existence of the
relationship of the employer-employee, irrespective of the claim being either
under the BIR Act or not or under the said Act. Being so, irrespective of the fact that the decisions are in relation to the claim of existence of relationship in terms
of the Industrial Disputes Act, the same would also apply with equal force to the
matters where the claim of relationship is in accordance with the provisions of
law contained in the BIR Act.
7. As regards the contention that the complaint discloses the necessary
facts pertaining to the statutory liability of the respondent No. 1 to have a canteen
as part of the undertaking, bare reading of the complaint, and more particularly
para Nos. 3(b) and 3(c) reveal that the contention of the petitioners to the effect
that the petitioners were continuously working in the canteen in question
irrespective of change in the contractors for all those years and that the
respondent No. 1 was legally bound to maintain a canteen for the benefit of its
employees in terms of Section 46 of the Factories Act, 1948. If one considers
these facts vis-a-vis the definition clause of the employer to be found in Section 3(14) of the BIR Act, it would at once reveal that there is nothing disclosed
therein which can reveal that the canteen, wherein the petitioners were employed,
formed “ordinarily part of the undertaking” of the respondent No. 1. Section 46
of the Factories Act, 1948 provides that the State Government may make rules
requiring that any specified factory wherein more than 250 workers are ordinarily
employed, a canteen or canteens shall be provided and maintained by the
occupier for the use of the workers. Undisputedly, the State Government has
framed the Maharashtra Factories Rules, 1963 in terms of the provisions of the
said Act and the Rule 79(1) thereof provides that the occupier of every factory
wherein more than 250 workers are ordinarily employed and which is specified
by the State Government by a notification in that behalf shall provide, in or near
the factory, an adequate canteen according to the standards prescribed in the
Rules, It is neither the case of the petitioners that the factory of the respondent
No. 1 has either been specified by the State Government in terms of Section 46 of
the Factories Act, 1948 r/w Rule 79 of the Maharashtra Factories Rules, 1963,
that there is any notification, either pleaded or placed on record in that regard,
either before the Industrial Court along with the complaint or in this Court along
with the present petition. Being so, the question of holding the respondent No. 1
to be statutorily liable to have a canteen for the use of the workers does not arise,
and in the absence of the pleadings and materials in support of the basic facts
which are necessary to disclose the statutory liability of the respondent No. 1 to
have a canteen for the use of the workers in terms of Section 46 of the Factories
Act, 1948 read with Rule 79 of the Maharashtra Factories Rules, 1963, it cannot
be said that the respondent No. 1 was legally bound to maintain a canteen for the
benefit of its employees. Mere submissions in that regard, without factual
foundation in support thereof in the complaint itself are not sufficient to disclose
the existence of the employer-employee relationship between the parties so as to
give jurisdiction to the Industrial Court to entertain the complaint under Section 28 of the said Act.
8. In the case of The Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal and
Ors. (supra), the Apex Court while dealing with the question as to whether the
canteen workers employed by the co-operative society could be treated as
employees of the Saraspur Mills Company within the meaning of the provisions
of the BIR Act, held that since under the Factories Act it was the duty of the appellant to run and maintain the canteen for the use of its employees, the ratio of
the decision of the High Court in the matter of The Ahmedabad Manufacturing
and Calico Printing Company Ltd. (Calico Mills) and Ors. v. Their Workmen
(supra) was applicable and the ratio of the said decision was to the effect that the
workers in order to come within the definition of the ’employee’ need not
necessarily be directly connected with the manufacture of textile fabrics. What is
pertinent to note about this decision is that while considering the point as to
whether on proper construction of the amended Clauses (13) and (14) of Section 3
of the BIR Act, the workers employed in the canteen which was run by the co-
operative society could be held to be employees of the Saraspur Mills Company,
the Apex Court had taken note of the fact that there was statutory obligation
under Section 46 of the Factories Act under which the Saraspur Mills Company
was bound to maintain the canteen for its workers. Obviously, there was no
dispute in the said case that under Section 46 of the Factories Act, the Saraspur
Mills Company was duty bound to maintain the canteen for its workers. Being
so, it is not the case where there was absence of notification in terms of the rules
framed under Section 46 by the concerned State Government or that the Saraspur
Mills Company was not specified undertaking in terms of the provisions of Section 46 of the Factories Act, 1948. In those circumstances, there being
statutory obligation under the Factories Act, 1948 to maintain a canteen, it was
held that the employees of the society, employed in the canteen run for the
benefit of the workers were the employees of the Saraspur Mills Company. This
decision rather than being of any assistance to the petitioners, it clearly supports
the case of the respondent No. 1 that in the absence of statutory obligation to
maintain a canteen, the question of the contractor’s employees being held to be
employees of the company in terms of Section 3(14) of the BIR Act does not
arise.
9. The ratio of the decision in Dattatraya Kashinath and Ors. v. Chhatrapati Sahakari Sakhar Karkhana Ltd., Pune and Ors. (supra) as well as
in Sakhar Kamgar Union v. Shri Chhatrapati Rajaram Sahakari Sakhar
Karkhana Ltd., and Anr. (supra) can be ascertained from the contents of para
9 and 6 of the respective decisions. In para 9 of the decision in Dattatraya
Kashinath and Ors., it was held that a conjoint reading of Section 3(13)(a) with Section 3(14)(e) leads to the conclusion that, where an employer of an industry
covered by the provisions of the BIR Act, in the course of or for the purpose of
conducting the undertaking, contracts with any person for the execution by or
under the contractor of the whole or any part of any work which ordinarily part
of the undertaking, the owner of such undertaking would be the ’employer and
the person employed by the contractor to do such work would be the employee’.
In Sakhar Kamgar Union’s case, in para 6 thereof, it was held that a combined
reading of these definitions suggests that in an undertaking covered by the BIR
Act, if any work which is ordinarily part of the undertaking has been entrusted to
a contractor for execution by or under him and, for executing such work, the
contractor engages contract labour, then notwithstanding the fact that there is no
relationship of employer and employee between the principal employer and the
contractor’s workmen, for the purpose of the BIR Act, such contractors workmen
are deemed to be employees within the meaning of Section 3(13) of the Act. Both these decisions disclose that in order to establish the relationship of employer-
employee between the undertaking or the company and the contractor’s
workmen, what is absolutely necessary is that “any work which is ordinarily part
of the undertaking” has to be entrusted by the contractor to his workmen for
execution thereof. Though it is sought to be contended that the canteen is
otherwise ordinarily a part of the undertaking of the respondent No. 1, no factual
foundation has been laid in that regard either in the complaint or in the evidence.
Being so, the decisions in the cases of Dattatraya Kashinath and others as well
as in Sakhar Kamgar Union, which are squarely on the basis of “the work being
ordinarily part of the undertaking” in relation to the work which was entrusted to
the workmen of the contractor, can be of no assistance to the petitioners to
contend that in the facts and circumstances in which they were employed by the
contractor for the canteen in question would lead to the conclusion that they are
also the employees of the respondent No. 1 within the meaning of the provision
of law contained in Section 3(14) of the BIR Act. Being so, both the decisions are
of no assistance to the petitioners in any manner in the matter in hand.
10. As regards the decision of the Apex Court in Basti Sugar Mills Ltd. v. Ram Ujagar and Ors. (supra), undoubtedly it was held therein that on the
facts of the case the relationship of the employer and the employee was being
disclosed. The said decision can be of no help for consideration in the matter in
issue as it does not deal with the point of jurisdiction of the Court to entertain the
complaint.
11. The decision in General Labour Union (Red Flag) Bombay v. Ahmedabad Mfg. & Calico Printing Co. Ltd. and Ors. (supra) though it is an
order and not a judgment, it clearly holds down that “The workmen have first to
establish that they are the workmen of the respondent-company before they can
file any complaint under the said Act”. Bearing in mind the decisions of the Apex
Court in the matters of Cipla Ltd., and Vividh Kamgar Sabha as well as of the
Division Bench of this Court in Hindustan Coca Cola Bottling S/W Pvt. Ltd.,
certainly the contention of the learned Advocate for the petitioners that the
decision in General Labour Unions case is merely an order and therefore is not
binding, or that it does not lay down any binding precedent as such, does not
arise for consideration in the matter.
12. As rightly submitted by the learned Advocate for the respondent No. 1,
the decision of the Allahabad High Court in Hari Shankar Sharma and Ors. v. Artificial Limbs Manufacturing Corporation of India and Ors. (supra) also
clearly supports the contention on behalf of the respondent No. 1. Therein, taking
note of the provisions of Section 46, it was clearly ruled that in order to fulfil the
requirement of Section 46(1) not only must be ordinarily more than two hundred
and fifty workers employed, but the additional requirement is that the factory
must be a specified factory, and that it is not that every factory which employees
250 workers or more is required to maintain canteen but only such factories
which are specified by the State Government.
13. As regards the decision in Indian Petrochemicals Corporation Ltd. and
Anr. v. Shramik Sena and Ors. (supra), it was undoubtedly held therein
that the workmen of a statutory canteen would be the workmen established for
the purpose of the Factories Act only and not for any other purposes. Irrespective of the same, it is also to be noted that in the said case the Apex Court had taken
note of the fact that prior to the institution of the proceedings which were the
subject-matter of the decision of the Apex Court, there were proceedings between
the parties thereto and therein the Industrial Court had held that the workmen
were entitled for continuity in service in the same canteen irrespective of the
change of the contractor, and the said decision was never challenged by the
Corporation. On the contrary, it was revealed that that those workmen had
contended before the Industrial Court that the management was indulging in
unfair labour practice and in fact they were employed by the company. They had
specifically contended that they were entitled to continue in the employment of
the company irrespective of the change in the contractor. The Industrial Court
had accepted their contention as against the plea put forth by the management
therein. The employer did not think it proper to challenge the said decision of the
Industrial Court, and consequently it became final. The same clearly suggested
that the management had accepted the fact that the respondent-workmen were
permanent employees of the management’s canteen. This was a very significant
fact which apparently established the relationship of employer-employee between
the parties. In those facts and circumstances, therefore, it was apparently clear
that the respondents therein were the employees of the management. That is not
the case in the matter in hand.
14. Being so, the findings arrived at regarding absence of jurisdiction to
entertain the complaint under the said Act against the respondent No. 1 at the
instance of the petitioners cannot be found fault with. They are clearly borne out
from the records. The complaint does not disclose the necessary jurisdictional
facts to enable the Industrial Court to entertain the complaint against the
respondent No. 1 under the said Act.
15. In the result, therefore, there is no case made out for interference in the
impugned order and hence the petition fails and is hereby dismissed. The rule is
discharged with no order as to costs.
