Satpur vs Mr. Athar Jameel on 20 July, 2009

                                      1




                                                                          
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR




                                                  
                          Writ Petition No.3904 of 1999

    V.I.P. Industries Limited,
    having its registered office at




                                                 
    Satpur, Nasik and factory at
    L-4, MIDC Area, Hingna Road,
    Nagpur-440 016.                                 ... Petitioner

      Versus




                                         
    1. Mr. Athar Jameel,     
       House No.369, Golchha Marg,
       Sadar, Nagpur.
                            
    2. Mr. Ashok Fulsunge,
       C/o Prasad Shende,
       Karim Layout,
       Plot No.22, Gopal Nagar,
       Nagpur.
           


    3. Keshao Mahadeo Bante,
        



       aged 31 years,

    4. Bhaskar Rupraoji Shahakar,
       aged 37 years,





    5. Chandu Warluji Moharle,
       aged 46 years,

    6. Raibhan Shankarrao Borkute,





       aged 42 years,

    7. Dilip Nathhuji Gurnule,
       aged 37 years,

    8. Motiram Dajiba Kadu,




                                                  ::: Downloaded on - 09/06/2013 14:48:29 :::
                                     2




                                                                         
       aged 56 years,

    9. Ramprasad Laxman Tiwari,




                                                 
       aged 50 years,

    10.Murli Madhaorao Shahakar,
       aged 38 years,




                                                
    11.Chagan Dukru Raut,
       aged 33 years.

    Respondents 3 to 11,




                                         
    all c/o Keshao Bante,
    Nehru Nagar,            
    Khamla Road,
    Plot No.42,
    Nagpur.
                           
    12.Member,
       Industrial Court of Maharashtra,
       Nagpur Bench,
       Civil Lines,
           


       Nagpur.                                     ... Respondents
        



    Shri H.V. Thakur, Advocate for Petitioner.
    Shri A.A. Naik, Advocate for Respondent No.2.





    Shri B.M. Khan, Advocate for Respondent Nos.3 to 7 and 9 to 11.


                 CORAM : R.C. Chavan, J.

Reserved on : 2-7-2009

Pronounced on : July 20th, 2009

Judgment :

::: Downloaded on – 09/06/2013 14:48:29 :::
3

1. The petitioner – V.I.P. Industries Ltd. – seeks to assail

the order passed by the learned Member, Industrial Court,
Nagpur, in Complaint (ULP) No.288 of 1989, whereby the
learned Member directed the petitioner to absorb services of

nine complainants before him and to regularize them with all
consequential benefits.

2. Facts, which are material for decision of this petition,
are as under :

The petitioner – V.I.P. Industries Ltd. – has a factory in
MIDC at Nagpur. It has a small garden in the factory premises
and, therefore, engaged a gardening contractor by name

Parasram Labde with effect from 1-3-1987 for a period of one
year. He engaged less than 20 labourers for the gardening

work. Since the contract with him was terminated before the
expiry of its term, respondent No.1 Athar Jameel was engaged
as contractor with effect from 15-2-1988. The complainants

were engaged by the said respondent No.1 Athar Jameel as
labourers for carrying out the work of gardening. They filed a
complaint before the Industrial Court under Section 28 of the

Maharashtra Recognition of Trade Unions and Unfair Labour
Practices Act, 1971 complaining of unfair labour practice
under Items 5, 6 and 9 of Schedule IV of the MRTU and PULP
Act claiming a declaration of unfair labour practice against the

::: Downloaded on – 09/06/2013 14:48:29 :::
4

petitioner and respondent No.1 Athar Jameel.

3. During the pendency of the complaint, respondent
No.1 Athar Jameel terminated his contract and respondent
No.2 Ashok Fulsunge was engaged as contractor from

26-4-1991. Respondent Nos.3 to 7 and 9 to 11, who had been
engaged by the earlier contractor, were terminated by
respondent No.1 Athar Jameel, who offered them notice pay

and retrenchment compensation. Respondent No.2 Ashok
Fulsunge intervened in the complaint pending before the

Industrial Court and offered employment to the original
complainants and, therefore, they continued to serve with

respondent No.2 Ashok Fulsunge.

4. The manufacturing operation of the petitioner’s

factory were suspended with effect from 9-8-1993. The

contract with respondent No.2 was terminated by him by
notice dated 15-1-1994. Respondent No.2 terminated the
services of respondent Nos.3 to 7 and 9 to 11 by offering

notice pay and retrenchment compensation. Respondent No.8
was not in service.

5. The proceedings before the Industrial Court were
contested by the petitioner as well as respondent Nos.1 and 2,
the contractors, who had engaged the complainants. It was
specifically stated by the contractors that they had engaged

::: Downloaded on – 09/06/2013 14:48:29 :::
5

the complainants as labourers and the petitioner too had
claimed that there was no employee-employer relationship

between the complainants and the petitioner. It was denied
that the petitioner or the contractors had indulged in unfair
labour practice as described in Items 5, 6 and 9 of Schedule IV

of the MRTU and PULP Act. It was contended that in the
absence of any notification under Section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970, it could not be

held that the complainants were employees of the petitioner
and in the absence of employee-employer relationship, such a

complaint against the petitioner was not tenable.

6. The learned Member, Industrial Court, framed certain
points for determination and held that the complainants had
established that though respondents Athar Jameel and Ashok

Fulsunge had to some extent concern with the work,

ultimately the complainants were the employees of the
petitioner. He also held that Athar Jameel and Ashok Fulsunge
did not hold licences to work as contractors under the

provisions of the Contract Labour (Regulation and Abolition)
Act, and, therefore, they did not have employee-employer
relationship with the complainants. He held that the

complainants had established that they were rendering
continuous service for more than two years and thus were
entitled to be regularized and, therefore, proceeded to allow
the complaint by his impugned order dated 30-9-1999.

::: Downloaded on – 09/06/2013 14:48:29 :::
6

Aggrieved thereby, the petitioner is before this Court.

7. I have heard Shri H.V. Thakur, learned counsel for
the petitioner; Shri A.A. Naik, learned counsel for respondent
No.2; and Shri B.M. Khan, learned counsel for respondent Nos.

3 to 7 and 9 to 11.

8. The learned counsel for the petitioner submitted that

the petitioner had obtained requisite registration after making
an application in Form I and had obtained certificate about

gardening contract, which is at pages 67 and 68 (Annexures
E1 and F to the paper book). This shows that Parasram Labde

was engaged as gardening contractor on 1-3-1987. Fresh
registration showing the name of respondent Athar Jameel
dated 15-2-1988 is at Annexure H to the petition. Respondent

Ashok Fulsunge came on the scene after the complaint was

filed by respondent Nos.3 to 11. The learned counsel for the
petitioner submitted that since the number of labourers
engaged by respondent Athar Jameel and Ashok Fulsunge

were less than 20, the provisions of the Contract Labour
(Regulation and Abolition) Act did not apply to those
contractors in view of clause (b) of sub-section (4) of Section 1

of the Act. Sub-section (4) of Section 1 of the Act may be
reproduced for ready reference as under :

“(4) It applies –

::: Downloaded on – 09/06/2013 14:48:29 :::
7

(a) to every establishment in which twenty or
more workmen are employed or were employed on

any day of the preceding twelve months as contract
labour;

(b) to every contractor who employs or who

employed on any day of the preceding twelve
months twenty or more workmen :

Provided that the appropriate Goverment may, after,
giving not less than two months’ notice of its

intention so to do, by notification in the Official
Gazette, apply the provisions of this Act to any

establishment or contractor employing such number
of workmen less than twenty as may be specified in
the notification.”

9. The learned counsel for the petitioner as well as the
learned counsel for respondent No.2 submitted that the
learned Member, Industrial Court, had discussed these

provisions in para 10 of his judgment. However, he failed to
notice that the Act would apply only to establishment in which
20 or more workmen were employed as contract labours. As

far as the principal employer, i.e. the petitioner, is concerned,
since the petitioner employs more than 20 labourers, the
petitioner has obtained requisite licences for engaging
contract labours. However, as far as the contractors are

::: Downloaded on – 09/06/2013 14:48:29 :::
8

concerned, since they are not shown to have employed more
than 20 labourers, the provisions of the Act would obviously

not apply to them and, therefore, they would not be obliged to
obtain licences under Section 12 of the Act. Section 12 of the
Act provides that no contractor to whom the Act applies, shall

undertake or execute any work through contract labour
except under and in accordance with a licence issued in that
behalf by the licensing officer. Since as regards contractors it

is not shown that even if they employ less than 20 labourers
the provisions of the Act would apply, it would be improper to

hold that they had not obtained licences though required
under the Act.

10. The learned Member, Industrial Court, had relied on
a number of judgments for the proposition that for valid

employment of contract labour, principal employer of the

establishment must be registered and the contractor too must
have a valid licence. Mere registration by principal employer
or more holding of a licence by the contractor will not be

enough to claim that the workmen concerned were contract
labours. Both these conditions are required to be fulfilled and,
therefore, in the absence of licence of the contractors,

according to the learned counsel, the learned Member rightly
concluded that the workmen concerned had to be treated as
employees of the principal employer. He had principally relied
on a judgment of this Court in United Labour Union and others

::: Downloaded on – 09/06/2013 14:48:29 :::
9

v. Union of India and others, reported at (1991) I L.L.J. 89.

11. The learned counsel for the petitioner submitted that
this view no longer reflects the correct position of law. In Dina
Nath and others v. National Fertilisers Ltd. and others,

reported at 1992 I CLR 1, the Supreme Court had considered
this question. It had also noted the judgment of this Court in
United Labour Union and others v. Union of India, reported at

1991 I CLR 363. In para 14, the Supreme Court noted that in

United Labour Union and others v. Union of India, the question
was really about appropriate Government for the purpose of
notification under Section 10 of the Act. In para 22 of the

judgment, the Court observed that the only consequences
provided in the Act, where either the principal employer or the
labour contractor violates the provision of Section 9 and 12

respectively, is the penal provision, as envisaged under the

Act for which reference may be made to Sections 23 and 25 of
the Act. Thus the Court was of the view that in proceedings
under Article 226 of the Constitution merely because

contractor or the employer had violated any provisions of the
Act or the rules, the Court could not issue any mandamus for
deeming the contract labour as having having become the

employees of the principal employer. The Court further
observed as under :

“22. … we would place on record that we do not

::: Downloaded on – 09/06/2013 14:48:29 :::
10

agree with the aforequoted observations of the
Madras High Court about the effect of non-

registration of the principal employer or the non-
licensing of the labour contractor nor with the view
of Bombay High Court in the aforesaid case. …”

12. The learned counsel for the respondent-workmen
submitted that the observations in Dina Nath and others v.

National Fertilisers Ltd. and others would apply to issuing of
mandamus by the High Court in proceedings under Article 226

of the Constitution and not to an adjudication by the Industrial
Court. He submitted that the Industrial Court was, therefore,

justified in placing reliance upon the judgment of this Court in
United Labour Union and others v. Union of India and others.

13. The learned counsel for the petitioner submitted that

a restriction, which would apply to High Court exercising
jurisdiction under Article 226 of the Constitution, would
equally apply to an Industrial Court, which is adjudicating

upon a complaint of unfair labour practice, which pre-
supposes existence of employee-employer relationship. He
submitted that it was not at all open to the Industrial Court to

proceed to adjudicate in the complaint without admitted
employee-employer relationship, or an order of competent
Court or Tribunal, holding that such relationship existed. For
this purpose, he placed reliance on a judgment of the

::: Downloaded on – 09/06/2013 14:48:29 :::
11

Supreme Court in Vividh Kamgar Sabha v. Kalyani Steels Ltd.
and another, reported at 2001 I CLR 532. A complaint had

been filed in respect of several Items under Schedules II and
IV of the MRTU & PULP Act by a union representing workmen
of a canteen, who claimed that they were employees of the

principal employer and had notionally been engaged through
contractors. The Industrial Court dismissed the complaint. The
Apex Court entertained a Special Leave Petition directly, since

the Bombay High Court had already held that the Industrial
Court could not, in a complaint under the MRTU and PULP Act,

abolish contract labour and treat the employees as direct
employees of the company. The Supreme Court held that

unless the employees get the disputed fact as to whether they
were employees of the respondent-company decided in a
proper forum, the complaint under the MRTU and PULP Act is

not maintainable and, therefore, dismissed the appeal.

14. In Cipla Ltd. v. Maharashtra General Kamgar Union
and others, reported at 2001 I CLR 754, relied on by the

learned counsel for the petitioner, the employer had
categorical denied that the employees, who had filed a
complaint under Section 28 of the MRTU and PULP Act were

the employees of the company and stated that there had
never been an employee-employer relationship. In para 7 of
the judgment, the Supreme Court held that unless it is
undisputed or indisputable that there is employer-employee

::: Downloaded on – 09/06/2013 14:48:29 :::
12

relationship between the parties, the question of unfair labour
practice cannot be inquired into at all.

15. In Sarva Shramik Sangh v. Indian Smelting & Refining
Co. Ltd. and another, reported at (2003) 10 SCC 455, on which

the learned counsel for the petitioner placed reliance, the
Court observed in paras 24 and 25 as under :

“24. The common thread passing through all these

judgments is that the threshold question to be
decided is whether the industrial dispute could be
raised for abolition of the contract labour system in

view of the provisions of the Maharashtra Act. What
happens to an employee engaged by the contractor
if the contract made is abolished, is not really

involved in the dispute. There can be no quarrel with

the proposition as contended by the appellants that
the jurisdiction to decide a matter would essentially
depend upon pleadings in the plaint. But in a case

like the present one, where the fundamental fact
decides the jurisdiction to entertain the complaint
itself, the position would be slightly different. In

order to entertain a complaint under the
Maharashtra Act it has to be established that the
claimant was an employee of the employer against
whom complaint is made under the ID Act. When

::: Downloaded on – 09/06/2013 14:48:29 :::
13

there is no dispute about such relationship, as noted
in para 9 of Cipla case the Maharashtra Act would

have full application. When that basic claim is
disputed obviously the issue has to be adjudicated
by the forum which is competent to adjudicate. The

sine qua non for application of the concept of unfair
labour practice is the existence of a direct
relationship of employer and employee. Until that

basic question is decided, the forum recedes to the
background in the sense that first that question has

to be got separately adjudicated. Even if it is
accepted for the sake of arguments that two forums

are available, the court certainly can say which is the
more appropriate forum to effectively get it
adjudicated and that is what has been precisely said

in the three decisions. Once the existence of a

contractor is accepted, it leads to an inevitable
conclusion that a relationship exists between the
contractor and the complainant. According to them,

the contract was a facade and sham one which has
no real effectiveness. As rightly observed in Cipla
case it is the relationship existing by contractual

arrangement which is sought to be abandoned and
negated and in its place the complainant’s claim is to
the effect that there was in reality a relationship
between the employer and the complainant directly.

::: Downloaded on – 09/06/2013 14:48:29 :::
14

It is the establishment of the existence of such an
arrangement which decides the jurisdiction. That

being the position, Cipla case rightly held that an
industrial dispute has to be raised before the
Tribunal under the ID Act to have the issue relating

to actual nature of employment sorted out. That
being the position, we find that there is no scope for
reconsidering Cipla case the view which really

echoed the one taken about almost a decade back.”

“25. That apart, as held by a seven-member
Constitution Bench judgment of this Court in Keshav

Mills case though this Court has inherent jurisdiction
to reconsider and revise its earlier decisions, it would
at the same time be reluctant to entertain such pleas

unless it is satisfied that there are compelling and

substantial reasons to do so and not undertake such
an exercise merely for the asking or that the
alternate view pressed on the subsequent occasion

is more reasonable. For the reasons stated supra,
we are of the view that the decision in Cipla case
was taken not only in tune with the earlier decisions

of this Court in General Labour Union (Red Flag) case
and Vividh Kamgar Sabha case but quite in
accordance with the subject of the enactment and
the object which the legislature had in view and the

::: Downloaded on – 09/06/2013 14:48:29 :::
15

purpose sought to be achieved by the Maharashtra
Act and consequently, there is no scope or necessity

to reconsider the question once over again by a
larger Bench.”

16. The Supreme Court had thus reiterated the
principles enunciated in Cipla Ltd. v. Maharashtra General
Kamgar Union and others, making it clear that a complaint

under Section 28 of the MRTU & PULP Act would have to

precede a declaration about employee-employer relationship.
This view has been followed by this Court in Indian Seamless
Metal Tubes Limited v. Sunil Rambhau Iwale and others,

reported at 2002(4) Mh.L.J. 151, and Hindustan Coca Cola
Bottling S/W Pvt. Ltd. v. Bhartiya Kamgar Sena and others,
reported at 2001 III CLR 1025. In para 17 of the judgment in

Hindustan Coca Cola Bottling S/W Pvt. Ltd. v. Bhartiya Kamgar

Sena and others, the Court observed as under :

“17. In his judgment Khandeparkar, J. has referred

to a judgment of another single Judge Rebello, J. in
Writ Petition No.1365 of 2001 (Raigad Mazdoor
Sangh v. Vikram Bapat) 2001 II CLR 553 Rebello, J.

has, inter alia, held that while deciding the question
of maintainability of the complaint under MRTU &
PULP Act, the Industrial Court is bound to frame an
issue as a preliminary issue on that count and after

::: Downloaded on – 09/06/2013 14:48:29 :::
16

framing the preliminary issue decide the point of
jurisdiction. Khandeparkar, J. has, however,

disagreed with this view and held that the question
of framing such issue does not arise if on a perusal
of the complaint under the MRTU & PULP Act it is

found that there is no jurisdiction to try the
complaint. He observed :

“20. It is was sought to be contended that

mere denial of status of the complainant as
that of employee by the opponent, cannot

non-suit the employees and such denial
would not oust the jurisdiction to the

Industrial Court to ascertain the fact
situation by framing issues and asking the
parties to lead evidence in that regard, and

to decide the same, possibly by summary

manner. In fact, similar was the contention
sought to be raised in Vividha Kamgar
Sabha’s case by saying that such denials

can be raised in each and every case to
defeat the claim of the employee. The
contention was rejected by the Apex Court.

Indeed, a question of framing of issue or
holding of summary inquiry does not arise
at all. Once, it 9is clear that the Industrial
Court under the said Act has no jurisdiction

::: Downloaded on – 09/06/2013 14:48:29 :::
17

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. Once
it is clear that the jurisdiction of the

Industrial Court depends upon the fact of
existence of employer-employee relation
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.”

We are in respectful agreement with the
above view expressed by Khandeparkar, J. If, on a
bare reading of the complaint, the Industrial Court

or the Labour Court as the case may be, is satisfied
that it has no jurisdiction to decide the complaint
as there is no undisputed or indisputable employer

employee relationship, the occasion for framing an
issue on that count would not arise. If the
Industrial Court or the Labour Court is satisfied that
there is no undisputed or indisputable (the)

::: Downloaded on – 09/06/2013 14:48:29 :::
18

employer-employee relationship, it cannot assume
jurisdiction to entertain the complaint and the

complaint will have to be dismissed as not
maintainable.”

17. The learned counsel for the petitioner, therefore,
submitted that it would not even be open for the Industrial
Court to frame an issue as to whether there existed employee-

employer relation, when such relationship was not undisputed
or indisputable.

18. In Quadricon Pvt. Ltd. and others v. Maxi D’Souza

and others, reported at 2004 III CLR 530, on which the learned
counsel for the petitioner placed reliance, the Court
disapproved grant of interim relief when employee-employer

relationship was disputed. It is not necessary to refer to

several other judgments, which were referred to by the
learned counsel for the petitioner on this point. It is clear from
the foregoing discussion that first, the Industrial Court would

have no jurisdiction to entertain a complaint under Section 28
of the MRTU & PULP Act in the absence of undisputed or
indisputable employer-employee relationship, and secondly,

that in such a complaint, it could not frame an issue of
existence of employer-employee relationship and decide it.

19. The learned counsel for the respondent-workmen

::: Downloaded on – 09/06/2013 14:48:29 :::
19

submitted that the question, whether employee-employer
relationship existed could not be decided while disposing of

the complaint under Section 28 of the MRTU & PULP Act, was
raised for the first time by the petitioner by an amendment to
the petition on 29-6-2009. He submitted that the petitioner

should not be permitted to raise this question before this
Court for the first time and the finding of the learned Member,
Industrial Court, about existence of employee-employer

relationship need not be disturbed.

20.

The learned counsel for the petitioner submitted that
the question has not been raised for the first time. He pointed

out that in the written statement filed before the Industrial
Court, in para 7, it had been specifically contended that the
workmen were not the employees of the petitioner and had no

locus standi to invoke Item 5 of Schedule IV of the MRTU &

PULP Act. It was also mentioned in para 8 of the written
statement that the Court, i.e. the Industrial Tribunal, has no
jurisdiction to grant relief claimed by the complainants.

Therefore, it is clear that it is not for the first time that this
question is being raised.

21. The learned counsel for the respondent-workmen
submitted that when the learned Member, Industrial Court,
decided the complaint, the judgment in Air India Statutory
Corporation v. United Labour Union, reported at 1997 (1) CLR

::: Downloaded on – 09/06/2013 14:48:29 :::
20

292, held the field, namely that upon abolition of contract
labour system, the principal employer was under a statutory

obligation to absorb the contract labour, since linkage
between the contractor and the employee stood snapped and
direct relationship stood restored between the principal

employer and the contract labour. He submitted that
when the learned Member, Industrial Court, rendered the
judgment on 30-9-1999, this was the law holding the field and,

therefore, the conclusions drawn are correct. The learned
counsel for the respondent-workmen overlooks that there has

been no abolition of contract labour by any notification under
Section 10 of the Contract Labour (Regulation and Abolition)

Act by the appropriate Government in respect of the
petitioner-Industry and, therefore, there is no question of
applying the judgment in Air India Statutory Corporation v.

United Labour Union.

22. The learned counsel for the respondent-workmen
submitted that the workmen were in fact employed by the

petitioner itself and the contractors were a mere facade, who
were brought on scene later on. He submitted that had it not
been so, one after the other successive contractors would not

engage the respondent-workmen for the same work.
Factually, he may be right in contending that the continuation
of workmen under different contractors may not be in tune
with the claim of the petitioner that it had in fact engaged

::: Downloaded on – 09/06/2013 14:48:29 :::
21

contractors and it was the choice of the contractor to bring
their own work force for doing the work of gardening.

However, this may not be a question, which could be decided
by the Industrial Court while entertaining a complaint under
Section 28 of the MRTU & PULP Act, and consequently even by

this Court in the present petition.

23. The learned counsel for the petitioner relied on a

judgment of the Supreme Court in Ram Singh and others v.
Union Territory, Chandigarh and others, reported at 2003(9)

Scale 459, where the Court observed in para 17 as under :

“17. In case of Steel Authority of India (supra) after
recording the above conclusions, the Constitution
Bench added :-

“We have used the expression “industrial

adjudicator” by design as determination of
the questions aforementioned requires
enquiry into disputed questions of facts

which cannot conveniently be made by
High Courts in exercise of jurisdiction under
Article 226 of the Constitution. Therefore,

in such cases the appropriate authority to
go into those issues will be the Industrial
Tribunal/Court whose determination will be
amenable to judicial review.”

::: Downloaded on – 09/06/2013 14:48:29 :::
22

In any case, no material had been placed before the Industrial

Court to show that employee-employer relationship existed
between the respondent-workmen and the petitioner and that
the contractors were a mere facade. The Industrial Court

seems to have principally excluded the contractors from the
chain, because they were not shown to be holding licences.

Since they did not employ more than 20 labourers, licences

were not required, and in any case absence of a licence would
lead to only penal consequences under the Act, but would not

result in snapping the relationship between the principal
employer and the contractors or creating a direct link

between the principal employer and the employees.

24. The learned counsel for the respondent-workmen

relied on a judgment of Division Bench of this Court in

Creative Garments v. Kunwar Prasad and another, reported at
2003(1) Bom.LC 235, which was on the facts peculiar to the
case and does not lay down any principle of law, which may

be applicable for deciding the case at hand.

25. In M/s. Bharat Heavy Electrical Ltd. v. State of U.P.,

reported at 2003 Lab.I.C. 2630, relied on by the learned
counsel for the respondents, the Supreme Court was
considering concurrent findings of fact by the Labour Court
and the High Court that the workmen were employees of the

::: Downloaded on – 09/06/2013 14:48:29 :::
23

principal employer and refused to interfere with those
concurrent findings of fact, which were not shown to be

perverse or untenable or based on no evidence. Had the
learned Member, Industrial Court been entitled to consider the
evidence about employee-employer relationship and had first

rendered a finding at the threshold and then proceeded to
assume jurisdiction to entertain a complaint, things might
have been different. In such a case, the jurisdiction of the

Industrial Court in a complaint under Section 28 of the MRTU
& PULP Act to decide existence of employee-employer

relationship could also have been raised.

26. In Indian Farmers Fertilizer Coop. Ltd. v. Industrial
Tribunal I, Allahabad and others, reported at 2002 SCC (L&S)
421, on which the learned counsel for the respondents placed

reliance, the Court was considering a matter arising out of a

reference made to the Industrial Court regarding validity of
termination of services of 88 workmen, who were allegedly
working under a contractor. In the reference, there was no

indication that the workmen had been employed by the
contractor. The Tribunal had considered the question
whether the workmen were employees of the principal

employer or not while deciding the reference, since such a
plea was raised. The Tribunal came to the conclusion that the
workmen were employees of the principal employer and then
proceeded to decide the reference. The Supreme Court found

::: Downloaded on – 09/06/2013 14:48:29 :::
24

that there was nothing wrong in such a course.

27. In this case, the question as to whether the
petitioner is the employer of respondent Nos.3 to 11 had been
raised by the petitioner before the Industrial Court. The

Industrial Court seems to have concluded merely on the basis
of absence of licence by the contractor that the respondent-
workmen were the direct employees of the petitioner, which

was not correct in view of judgment of the Supreme Court in

Dina Nath and others v. National Fertilisers Ltd. and others,
reported at 1992 I CLR 1. In the absence of undisputed or
indisputable employer-employee relationship, the complaint

under Section 28 of the MRTU & PULP Act itself was
untenable. Also there is no finding by the learned Member,
Industrial Court, as to whether any unfair labour practice, as

defined in Items 5, 6 and 9 of Schedule IV of the MRTU & PULP

Act was actually committed, if it is presumed for a while that
the respondent-workmen were the employees of the
petitioner. Therefore, there was no occasion for the Industrial

Court to direct absorption or regularization of respondent
Nos.3 to 11.

28. In view of this, the direction by the learned Member,
Industrial Court, to absorb the services of the complainants
before him and to regularize them with all consequential
benefits, cannot at all be sustained. The petition is, therefore,

::: Downloaded on – 09/06/2013 14:48:29 :::
25

allowed. The impugned order is quashed and set aside.

JUDGE

Lanjewar

::: Downloaded on – 09/06/2013 14:48:29 :::