{"id":211061,"date":"2009-07-20T00:00:00","date_gmt":"2009-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/satpur-vs-mr-athar-jameel-on-20-july-2009"},"modified":"2016-04-02T18:49:24","modified_gmt":"2016-04-02T13:19:24","slug":"satpur-vs-mr-athar-jameel-on-20-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/satpur-vs-mr-athar-jameel-on-20-july-2009","title":{"rendered":"Satpur vs Mr. Athar Jameel on 20 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Satpur vs Mr. Athar Jameel on 20 July, 2009<\/div>\n
Bench: R. C. Chavan<\/div>\n
                                      1\n\n\n\n\n                                                                          \n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                          NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                  \n                          Writ Petition No.3904 of 1999\n\n    V.I.P. Industries Limited,\n    having its registered office at\n\n\n\n\n                                                 \n    Satpur, Nasik and factory at\n    L-4, MIDC Area, Hingna Road,\n    Nagpur-440 016.                                 ... Petitioner\n\n      Versus\n\n\n\n\n                                         \n    1. Mr. Athar Jameel,     \n       House No.369, Golchha Marg,\n       Sadar, Nagpur.\n                            \n    2. Mr. Ashok Fulsunge,\n       C\/o Prasad Shende,\n       Karim Layout,\n       Plot No.22, Gopal Nagar,\n       Nagpur.\n           \n\n\n    3. Keshao Mahadeo Bante,\n        \n\n\n\n       aged 31 years,\n\n    4. Bhaskar Rupraoji Shahakar,\n       aged 37 years,\n\n\n\n\n\n    5. Chandu Warluji Moharle,\n       aged 46 years,\n\n    6. Raibhan Shankarrao Borkute,\n\n\n\n\n\n       aged 42 years,\n\n    7. Dilip Nathhuji Gurnule,\n       aged 37 years,\n\n    8. Motiram Dajiba Kadu,\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 14:48:29 :::\n                                     2\n\n\n\n\n                                                                         \n       aged 56 years,\n\n    9. Ramprasad Laxman Tiwari,\n\n\n\n\n                                                 \n       aged 50 years,\n\n    10.Murli Madhaorao Shahakar,\n       aged 38 years,\n\n\n\n\n                                                \n    11.Chagan Dukru Raut,\n       aged 33 years.\n\n    Respondents 3 to 11,\n\n\n\n\n                                         \n    all c\/o Keshao Bante,\n    Nehru Nagar,            \n    Khamla Road,\n    Plot No.42,\n    Nagpur.\n                           \n    12.Member,\n       Industrial Court of Maharashtra,\n       Nagpur Bench,\n       Civil Lines,\n           \n\n\n       Nagpur.                                     ... Respondents\n        \n\n\n\n    Shri H.V. Thakur, Advocate for Petitioner.\n    Shri A.A. Naik, Advocate for Respondent No.2.\n\n\n\n\n\n    Shri B.M. Khan, Advocate for Respondent Nos.3 to 7 and 9 to 11.\n\n\n                 CORAM : R.C. Chavan, J.\n<\/pre>\n
                 Reserved on : 2-7-2009<\/p>\n
                 Pronounced on : July 20th, 2009<\/p>\n
        Judgment :\n<\/p>\n
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\n                                  3<\/span><\/p>\n
    1.       The petitioner – V.I.P. Industries Ltd. – seeks to assail<\/p>\n
    the order passed by the learned Member, Industrial Court,
\n    Nagpur, in Complaint (ULP) No.288 of 1989, whereby the
\n    learned Member directed the petitioner to absorb services of<\/p>\n
    nine complainants before him and to regularize them with all
\n    consequential benefits.\n<\/p>\n
    2.       Facts, which are material for decision of this petition,
\n    are as under :\n<\/p>\n
             The petitioner – V.I.P. Industries Ltd. – has a factory in
\n    MIDC at Nagpur. It has a small garden in the factory premises
\n    and, therefore, engaged a gardening contractor by name<\/p>\n
    Parasram Labde with effect from 1-3-1987 for a period of one
\n    year. He engaged less than 20 labourers for the gardening<\/p>\n
    work. Since the contract with him was terminated before the
\n    expiry of its term, respondent No.1 Athar Jameel was engaged
\n    as contractor with effect from 15-2-1988. The complainants<\/p>\n
    were engaged by the said respondent No.1 Athar Jameel as
\n    labourers for carrying out the work of gardening. They filed a
\n    complaint before the Industrial Court under Section 28 of the<\/p>\n
    Maharashtra Recognition of Trade Unions and Unfair Labour
\n    Practices Act, 1971 complaining of unfair labour practice
\n    under Items 5, 6 and 9 of Schedule IV of the MRTU and PULP
\n    Act claiming a declaration of unfair labour practice against the<\/p>\n
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\n                                 4<\/span><\/p>\n
    petitioner and respondent No.1 Athar Jameel.\n<\/p>\n
    3.       During the pendency of the complaint, respondent
\n    No.1 Athar Jameel terminated his contract and respondent
\n    No.2 Ashok Fulsunge was engaged as contractor from<\/p>\n
    26-4-1991. Respondent Nos.3 to 7 and 9 to 11, who had been
\n    engaged by the earlier contractor, were terminated by
\n    respondent No.1 Athar Jameel, who offered them notice pay<\/p>\n
    and retrenchment compensation.       Respondent No.2 Ashok
\n    Fulsunge intervened in the complaint pending before the<\/p>\n
    Industrial Court and offered employment to the original
\n    complainants and, therefore, they continued to serve with<\/p>\n
    respondent No.2 Ashok Fulsunge.\n<\/p>\n
    4.       The manufacturing operation of the petitioner’s<\/p>\n
    factory were suspended with effect from 9-8-1993.                  The<\/p>\n
    contract with respondent No.2 was terminated by him by
\n    notice dated 15-1-1994.    Respondent No.2 terminated the
\n    services of respondent Nos.3 to 7 and 9 to 11 by offering<\/p>\n
    notice pay and retrenchment compensation. Respondent No.8
\n    was not in service.\n<\/p>\n
    5.       The proceedings before the Industrial Court were
\n    contested by the petitioner as well as respondent Nos.1 and 2,
\n    the contractors, who had engaged the complainants. It was
\n    specifically stated by the contractors that they had engaged<\/p>\n
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\n                                 5<\/span><\/p>\n
    the complainants as labourers and the petitioner too had
\n    claimed that there was no employee-employer relationship<\/p>\n
    between the complainants and the petitioner. It was denied
\n    that the petitioner or the contractors had indulged in unfair
\n    labour practice as described in Items 5, 6 and 9 of Schedule IV<\/p>\n
    of the MRTU and PULP Act.       It was contended that in the
\n    absence of any notification under Section 10 of the Contract
\n    Labour (Regulation and Abolition) Act, 1970, it could not be<\/p>\n
    held that the complainants were employees of the petitioner
\n    and in the absence of employee-employer relationship, such a<\/p>\n
    complaint against the petitioner was not tenable.\n<\/p>\n
    6.       The learned Member, Industrial Court, framed certain
\n    points for determination and held that the complainants had
\n    established that though respondents Athar Jameel and Ashok<\/p>\n
    Fulsunge had to some extent concern with the work,<\/p>\n
    ultimately the complainants were the employees of the
\n    petitioner. He also held that Athar Jameel and Ashok Fulsunge
\n    did not hold licences to work as contractors under the<\/p>\n
    provisions of the Contract Labour (Regulation and Abolition)
\n    Act, and, therefore, they did not have employee-employer
\n    relationship with the complainants.       He held that the<\/p>\n
    complainants had established that they were rendering
\n    continuous service for more than two years and thus were
\n    entitled to be regularized and, therefore, proceeded to allow
\n    the complaint by his impugned order dated 30-9-1999.\n<\/p>\n
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\n                                      6<\/span><\/p>\n
    Aggrieved thereby, the petitioner is before this Court.\n<\/p>\n
    7.       I have heard Shri H.V. Thakur, learned counsel for
\n    the petitioner; Shri A.A. Naik, learned counsel for respondent
\n    No.2; and Shri B.M. Khan, learned counsel for respondent Nos.\n<\/p>\n
    3 to 7 and 9 to 11.\n<\/p>\n
    8.       The learned counsel for the petitioner submitted that<\/p>\n
    the petitioner had obtained requisite registration after making
\n    an application in Form I and had obtained certificate about<\/p>\n
    gardening contract, which is at pages 67 and 68 (Annexures
\n    E1 and F to the paper book). This shows that Parasram Labde<\/p>\n
    was engaged as gardening contractor on 1-3-1987.                   Fresh
\n    registration showing the name of respondent Athar Jameel
\n    dated 15-2-1988 is at Annexure H to the petition. Respondent<\/p>\n
    Ashok Fulsunge came on the scene after the complaint was<\/p>\n
    filed by respondent Nos.3 to 11. The learned counsel for the
\n    petitioner submitted that since the number of labourers
\n    engaged by respondent Athar Jameel and Ashok Fulsunge<\/p>\n
    were less than 20, the provisions of the Contract Labour
\n    (Regulation and Abolition) Act did not apply to those
\n    contractors in view of clause (b) of sub-section (4) of Section 1<\/p>\n
    of the Act.   Sub-section (4) of Section 1 of the Act may be
\n    reproduced for ready reference as under :\n<\/p>\n
             “(4)         It applies –\n<\/p>\n
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\n                                   7<\/span><\/p>\n
             (a)   to every establishment in which twenty or
\n             more workmen are employed or were employed on<\/p>\n
             any day of the preceding twelve months as contract
\n             labour;\n<\/p>\n
             (b)   to every contractor who employs or who<\/p>\n
             employed on any day of the preceding twelve
\n             months twenty or more workmen :\n<\/p>\n
             Provided that the appropriate Goverment may, after,
\n             giving not less than two months’ notice of its<\/p>\n
             intention so to do, by notification in the Official
\n             Gazette, apply the provisions of this Act to any<\/p>\n
             establishment or contractor employing such number
\n             of workmen less than twenty as may be specified in
\n             the notification.”\n<\/p>\n
    9.       The learned counsel for the petitioner as well as the
\n    learned counsel for respondent No.2 submitted that the
\n    learned Member, Industrial Court, had discussed these<\/p>\n
    provisions in para 10 of his judgment. However, he failed to
\n    notice that the Act would apply only to establishment in which
\n    20 or more workmen were employed as contract labours. As<\/p>\n
    far as the principal employer, i.e. the petitioner, is concerned,
\n    since the petitioner employs more than 20 labourers, the
\n    petitioner has obtained requisite licences for engaging
\n    contract labours.    However, as far as the contractors are<\/p>\n
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\n                                 8<\/span><\/p>\n
    concerned, since they are not shown to have employed more
\n    than 20 labourers, the provisions of the Act would obviously<\/p>\n
    not apply to them and, therefore, they would not be obliged to
\n    obtain licences under Section 12 of the Act. Section 12 of the
\n    Act provides that no contractor to whom the Act applies, shall<\/p>\n
    undertake or execute any work through contract labour
\n    except under and in accordance with a licence issued in that
\n    behalf by the licensing officer. Since as regards contractors it<\/p>\n
    is not shown that even if they employ less than 20 labourers
\n    the provisions of the Act would apply, it would be improper to<\/p>\n
    hold that they had not obtained licences though required
\n    under the Act.\n<\/p>\n
    10.      The learned Member, Industrial Court, had relied on
\n    a number of judgments for the proposition that for valid<\/p>\n
    employment of contract labour, principal employer of the<\/p>\n
    establishment must be registered and the contractor too must
\n    have a valid licence. Mere registration by principal employer
\n    or more holding of a licence by the contractor will not be<\/p>\n
    enough to claim that the workmen concerned were contract
\n    labours. Both these conditions are required to be fulfilled and,
\n    therefore, in the absence of licence of the contractors,<\/p>\n
    according to the learned counsel, the learned Member rightly
\n    concluded that the workmen concerned had to be treated as
\n    employees of the principal employer. He had principally relied
\n    on a judgment of this Court in United Labour Union and others<\/p>\n
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\n                                   9<\/span><\/p>\n
    v. Union of India and others, reported at (1991) I L.L.J. 89.\n<\/p>\n
    11.       The learned counsel for the petitioner submitted that
\n    this view no longer reflects the correct position of law. In Dina
\n    Nath and others v. National Fertilisers Ltd. and others,<\/p>\n
    reported at 1992 I CLR 1, the Supreme Court had considered
\n    this question. It had also noted the judgment of this Court in
\n    United Labour Union and others v. Union of India,<\/a> reported at<\/p>\n
    1991 I CLR 363. In para 14, the Supreme Court noted that in<\/p>\n
    United Labour Union and others v. Union of India, the<\/a> question
\n    was really about appropriate Government for the purpose of
\n    notification under Section 10 of the Act.       In para 22 of the<\/p>\n
    judgment, the Court observed that the only consequences
\n    provided in the Act, where either the principal employer or the
\n    labour contractor violates the provision of Section 9 and 12<\/p>\n
    respectively, is the penal provision, as envisaged under the<\/p>\n
    Act for which reference may be made to Sections 23 and 25 of
\n    the Act. Thus the Court was of the view that in proceedings
\n    under Article    226 of the       Constitution merely because<\/p>\n
    contractor or the employer had violated any provisions of the
\n    Act or the rules, the Court could not issue any mandamus for
\n    deeming the contract labour as having having become the<\/p>\n
    employees of the principal employer.           The Court further
\n    observed as under :\n<\/p>\n
              “22. … we would place on record that we do not<\/p>\n
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\n                                 10<\/span><\/p>\n
              agree with the aforequoted observations of the
\n              Madras High     Court   about   the    effect      of     non-<\/p>\n
              registration of the principal employer or the non-
\n              licensing of the labour contractor nor with the view
\n              of Bombay High Court in the aforesaid case. …”\n<\/p><\/blockquote>\n
    12.      The learned counsel for the respondent-workmen
\n    submitted that the observations in Dina Nath and others v.\n<\/p>\n
    National Fertilisers Ltd. and others would apply to issuing of
\n    mandamus by the High Court in proceedings under Article 226<\/p>\n
    of the Constitution and not to an adjudication by the Industrial
\n    Court. He submitted that the Industrial Court was, therefore,<\/p>\n
    justified in placing reliance upon the judgment of this Court in
\n    United Labour Union and others v. Union of India and others<\/a>.\n<\/p>\n
    13.      The learned counsel for the petitioner submitted that<\/p>\n
    a restriction, which would apply to High Court exercising
\n    jurisdiction under Article 226 of the Constitution, would
\n    equally apply to an Industrial Court, which is adjudicating<\/p>\n
    upon a complaint of unfair labour practice, which pre-
\n    supposes existence of employee-employer relationship.                  He
\n    submitted that it was not at all open to the Industrial Court to<\/p>\n
    proceed to adjudicate in the complaint without admitted
\n    employee-employer relationship, or an order of competent
\n    Court or Tribunal, holding that such relationship existed. For
\n    this purpose, he placed reliance on a judgment of the<\/p>\n
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\n                                     11<\/span><\/p>\n
    Supreme Court in Vividh Kamgar Sabha v. Kalyani Steels Ltd.
\n    and<\/a> another, reported at 2001 I CLR 532.             A complaint had<\/p>\n
    been filed in respect of several Items under Schedules II and
\n    IV of the MRTU & PULP Act by a union representing workmen
\n    of a canteen, who claimed that they were employees of the<\/p>\n
    principal employer and had notionally been engaged through
\n    contractors. The Industrial Court dismissed the complaint. The
\n    Apex Court entertained a Special Leave Petition directly, since<\/p>\n
    the Bombay High Court had already held that the Industrial
\n    Court could not, in a complaint under the MRTU and PULP Act,<\/p>\n
    abolish contract labour and treat the employees as direct
\n    employees of the company.            The Supreme Court held that<\/p>\n
    unless the employees get the disputed fact as to whether they
\n    were employees of the respondent-company decided in a
\n    proper forum, the complaint under the MRTU and PULP Act is<\/p>\n
    not maintainable and, therefore, dismissed the appeal.\n<\/p>\n
    14.       In Cipla Ltd. v. Maharashtra General Kamgar Union
\n    and others<\/a>, reported at 2001 I CLR 754, relied on by the<\/p>\n
    learned   counsel   for   the    petitioner,   the     employer          had
\n    categorical denied that the employees, who had filed a
\n    complaint under Section 28 of the MRTU and PULP Act were<\/p>\n
    the employees of the company and stated that there had
\n    never been an employee-employer relationship. In para 7 of
\n    the judgment, the Supreme Court held that unless it is
\n    undisputed or indisputable that there is employer-employee<\/p>\n
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\n                                  12<\/span><\/p>\n
    relationship between the parties, the question of unfair labour
\n    practice cannot be inquired into at all.\n<\/p>\n
    15.      In Sarva Shramik Sangh v. Indian Smelting & Refining
\n    Co. Ltd. and<\/a> another, reported at (2003) 10 SCC 455, on which<\/p>\n
    the learned counsel for the petitioner placed reliance, the
\n    Court observed in paras 24 and 25 as under :\n<\/p>\n
              “24. The common thread passing through all these<\/p>\n
              judgments is that the threshold question to be
\n              decided is whether the industrial dispute could be
\n              raised for abolition of the contract labour system in<\/p>\n
              view of the provisions of the Maharashtra Act. What
\n              happens to an employee engaged by the contractor
\n              if the contract made is abolished, is not really<\/p>\n
              involved in the dispute. There can be no quarrel with<\/p>\n
              the proposition as contended by the appellants that
\n              the jurisdiction to decide a matter would essentially
\n              depend upon pleadings in the plaint. But in a case<\/p>\n
              like the present one, where the fundamental fact
\n              decides the jurisdiction to entertain the complaint
\n              itself, the position would be slightly different.                In<\/p>\n
              order   to   entertain   a       complaint       under         the
\n              Maharashtra Act it has to be established that the
\n              claimant was an employee of the employer against
\n              whom complaint is made under the ID Act.                   When<\/p>\n
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\n                           13<\/span><\/p>\n
     there is no dispute about such relationship, as noted
\n     in para 9 of Cipla case the Maharashtra Act would<\/p>\n
     have full application.       When that basic claim is
\n     disputed obviously the issue has to be adjudicated
\n     by the forum which is competent to adjudicate. The<\/p>\n
     sine qua non for application of the concept of unfair
\n     labour    practice   is    the    existence        of    a     direct
\n     relationship of employer and employee.                   Until that<\/p>\n
     basic question is decided, the forum recedes to the
\n     background in the sense that first that question has<\/p>\n
     to be got separately adjudicated.                 Even if it is
\n     accepted for the sake of arguments that two forums<\/p>\n
     are available, the court certainly can say which is the
\n     more     appropriate      forum    to    effectively         get      it
\n     adjudicated and that is what has been precisely said<\/p>\n
     in the three decisions.          Once the existence of a<\/p>\n
     contractor is accepted, it leads to an inevitable
\n     conclusion that a relationship exists between the
\n     contractor and the complainant. According to them,<\/p>\n
     the contract was a facade and sham one which has
\n     no real effectiveness.      As rightly observed in Cipla
\n     case it is the relationship existing by contractual<\/p>\n
     arrangement which is sought to be abandoned and
\n     negated and in its place the complainant’s claim is to
\n     the effect that there was in reality a relationship
\n     between the employer and the complainant directly.\n<\/p><\/blockquote>\n
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\n                         14<\/span><\/p>\n
     It is the establishment of the existence of such an
\n     arrangement which decides the jurisdiction.                That<\/p>\n
     being the position, Cipla case rightly held that an
\n     industrial dispute has to be raised before the
\n     Tribunal under the ID Act to have the issue relating<\/p>\n
     to actual nature of employment sorted out.                 That
\n     being the position, we find that there is no scope for
\n     reconsidering Cipla case the view which really<\/p>\n
     echoed the one taken about almost a decade back.”\n<\/p>\n
     “25. That apart, as held by a seven-member
\n     Constitution Bench judgment of this Court in Keshav<\/p>\n
     Mills case though this Court has inherent jurisdiction
\n     to reconsider and revise its earlier decisions, it would
\n     at the same time be reluctant to entertain such pleas<\/p>\n
     unless it is satisfied that there are compelling and<\/p>\n
     substantial reasons to do so and not undertake such
\n     an exercise merely for the asking or that the
\n     alternate view pressed on the subsequent occasion<\/p>\n
     is more reasonable. For the reasons stated supra,
\n     we are of the view that the decision in Cipla case
\n     was taken not only in tune with the earlier decisions<\/p>\n
     of this Court in General Labour Union (Red Flag) case
\n     and   Vividh   Kamgar    Sabha   case      but      quite      in
\n     accordance with the subject of the enactment and
\n     the object which the legislature had in view and the<\/p>\n
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\n                                15<\/span><\/p>\n
             purpose sought to be achieved by the Maharashtra
\n             Act and consequently, there is no scope or necessity<\/p>\n
             to reconsider the question once over again by a
\n             larger Bench.”\n<\/p>\n
    16.      The   Supreme    Court   had   thus     reiterated          the
\n    principles enunciated in Cipla Ltd. v. Maharashtra General
\n    Kamgar Union and others<\/a>, making it clear that a complaint<\/p>\n
    under Section 28 of the MRTU & PULP Act would have to<\/p>\n
    precede a declaration about employee-employer relationship.
\n    This view has been followed by this Court in Indian Seamless
\n    Metal Tubes Limited v. Sunil Rambhau Iwale and others<\/a>,<\/p>\n
    reported at 2002(4) Mh.L.J. 151, and Hindustan Coca Cola
\n    Bottling S\/W Pvt. Ltd. v. Bhartiya Kamgar Sena and others<\/a>,
\n    reported at 2001 III CLR 1025. In para 17 of the judgment in<\/p>\n
    Hindustan Coca Cola Bottling S\/W Pvt. Ltd. v. Bhartiya Kamgar<\/p>\n
    Sena and others<\/a>, the Court observed as under :\n<\/p>\n
             “17. In his judgment Khandeparkar, J. has referred<\/p>\n
             to a judgment of another single Judge Rebello, J. in
\n             Writ Petition No.1365 of 2001 (Raigad Mazdoor
\n             Sangh v. Vikram Bapat) 2001 II CLR 553 Rebello, J.<\/p><\/blockquote>\n
             has, inter alia, held that while deciding the question
\n             of maintainability of the complaint under MRTU &
\n             PULP Act, the Industrial Court is bound to frame an
\n             issue as a preliminary issue on that count and after<\/p>\n
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\n                        16<\/span><\/p>\n
     framing the preliminary issue decide the point of
\n     jurisdiction.    Khandeparkar,       J.    has,      however,<\/p>\n
     disagreed with this view and held that the question
\n     of framing such issue does not arise if on a perusal
\n     of the complaint under the MRTU & PULP Act it is<\/p>\n
     found that there is no jurisdiction to try the
\n     complaint. He observed :\n<\/p>\n
               “20. It is was sought to be contended that<\/p>\n
               mere denial of status of the complainant as
\n               that of employee by the opponent, cannot<\/p>\n
               non-suit the employees and such denial
\n               would not oust the jurisdiction to the<\/p>\n
               Industrial   Court   to   ascertain the             fact
\n               situation by framing issues and asking the
\n               parties to lead evidence in that regard, and<\/p>\n
               to decide the same, possibly by summary<\/p>\n
               manner. In fact, similar was the contention
\n               sought to be raised in Vividha Kamgar
\n               Sabha’s case by saying that such denials<\/p>\n
               can be raised in each and every case to
\n               defeat the claim of the employee.                   The
\n               contention was rejected by the Apex Court.\n<\/p><\/blockquote>\n
               Indeed, a question of framing of issue or
\n               holding of summary inquiry does not arise
\n               at all. Once, it 9is clear that the Industrial
\n               Court under the said Act has no jurisdiction<\/p>\n
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\n                        17<\/span><\/p>\n
              to decide the issue relating to employer-
\n              employee relationship, the occasion for<\/p>\n
              framing of issue on the point which is
\n              beyond its jurisdiction cannot arise. Once
\n              it is clear that the jurisdiction of the<\/p>\n
              Industrial Court depends upon the fact of
\n              existence of employer-employee relation
\n              between       the    parties     which         is      a<\/p>\n
              jurisdictional fact, which should exist to
\n              enable the Industrial Court to assume<\/p>\n
              jurisdiction to     entertain the        complaint
\n              under the said Act, in the absence of the<\/p>\n
              same, any attempt on the part of the
\n              Industrial Court to adjudicate upon the
\n              issue of such relationship would amount to<\/p>\n
              mistake of fact in relation to jurisdiction.”<\/p><\/blockquote>\n
            We are in respectful agreement with the
\n      above view expressed by Khandeparkar, J. If, on a
\n      bare reading of the complaint, the Industrial Court<\/p>\n
      or the Labour Court as the case may be, is satisfied
\n      that it has no jurisdiction to decide the complaint
\n      as there is no undisputed or indisputable employer<\/p>\n
      employee relationship, the occasion for framing an
\n      issue on that count would not arise.                   If the
\n      Industrial Court or the Labour Court is satisfied that
\n      there is no undisputed or indisputable (the)<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                                  18<\/span><\/p>\n
               employer-employee relationship, it cannot assume
\n               jurisdiction to entertain the complaint and the<\/p>\n
               complaint will have to be dismissed as not
\n               maintainable.”\n<\/p>\n
    17.       The learned counsel for the petitioner, therefore,
\n    submitted that it would not even be open for the Industrial
\n    Court to frame an issue as to whether there existed employee-\n<\/p>\n
    employer relation, when such relationship was not undisputed
\n    or indisputable.\n<\/p>\n
    18.       In Quadricon Pvt. Ltd. and others v. Maxi D’Souza<\/p>\n
    and others<\/a>, reported at 2004 III CLR 530, on which the learned
\n    counsel   for   the   petitioner     placed   reliance,       the     Court
\n    disapproved grant of interim relief when employee-employer<\/p>\n
    relationship was disputed.         It is not necessary to refer to<\/p>\n
    several other judgments, which were referred to by the
\n    learned counsel for the petitioner on this point. It is clear from
\n    the foregoing discussion that first, the Industrial Court would<\/p>\n
    have no jurisdiction to entertain a complaint under Section 28
\n    of the MRTU & PULP Act in the absence of undisputed or
\n    indisputable employer-employee relationship, and secondly,<\/p>\n
    that in such a complaint, it could not frame an issue of
\n    existence of employer-employee relationship and decide it.\n<\/p>\n
    19.       The learned counsel for the respondent-workmen<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                                    19<\/span><\/p>\n
    submitted that the question, whether employee-employer
\n    relationship existed could not be decided while disposing of<\/p>\n
    the complaint under Section 28 of the MRTU & PULP Act, was
\n    raised for the first time by the petitioner by an amendment to
\n    the petition on 29-6-2009. He submitted that the petitioner<\/p>\n
    should not be permitted to raise this question before this
\n    Court for the first time and the finding of the learned Member,
\n    Industrial    Court,   about   existence   of   employee-employer<\/p>\n
    relationship need not be disturbed.\n<\/p>\n
    20.<\/p>\n
                 The learned counsel for the petitioner submitted that
\n    the question has not been raised for the first time. He pointed<\/p>\n
    out that in the written statement filed before the Industrial
\n    Court, in para 7, it had been specifically contended that the
\n    workmen were not the employees of the petitioner and had no<\/p>\n
    locus standi to invoke Item 5 of Schedule IV of the MRTU &<\/p>\n
    PULP Act.      It was also mentioned in para 8 of the written
\n    statement that the Court, i.e. the Industrial Tribunal, has no
\n    jurisdiction to grant relief claimed by the complainants.\n<\/p>\n
    Therefore, it is clear that it is not for the first time that this
\n    question is being raised.\n<\/p>\n
    21.          The learned counsel for the respondent-workmen
\n    submitted that when the learned Member, Industrial Court,
\n    decided the complaint, the judgment in Air India Statutory
\n    Corporation v. United Labour Union,<\/a> reported at 1997 (1) CLR<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                                20<\/span><\/p>\n
    292, held the field, namely that upon abolition of contract
\n    labour system, the principal employer was under a statutory<\/p>\n
    obligation to absorb the contract labour, since linkage
\n    between the contractor and the employee stood snapped and
\n    direct relationship stood restored between the principal<\/p>\n
    employer and the contract labour.           He submitted that
\n    when the learned Member, Industrial Court, rendered the
\n    judgment on 30-9-1999, this was the law holding the field and,<\/p>\n
    therefore, the conclusions drawn are correct.           The learned
\n    counsel for the respondent-workmen overlooks that there has<\/p>\n
    been no abolition of contract labour by any notification under
\n    Section 10 of the Contract Labour (Regulation and Abolition)<\/p>\n
    Act by the appropriate Government in respect of the
\n    petitioner-Industry and, therefore, there is no question of
\n    applying the judgment in Air India Statutory Corporation v.\n<\/p>\n
    United Labour Union.\n<\/p>\n
    22.      The learned counsel for the respondent-workmen
\n    submitted that the workmen were in fact employed by the<\/p>\n
    petitioner itself and the contractors were a mere facade, who
\n    were brought on scene later on. He submitted that had it not
\n    been so, one after the other successive contractors would not<\/p>\n
    engage   the   respondent-workmen     for     the      same        work.
\n    Factually, he may be right in contending that the continuation
\n    of workmen under different contractors may not be in tune
\n    with the claim of the petitioner that it had in fact engaged<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                                  21<\/span><\/p>\n
    contractors and it was the choice of the contractor to bring
\n    their own work force for doing the work of gardening.\n<\/p>\n
    However, this may not be a question, which could be decided
\n    by the Industrial Court while entertaining a complaint under
\n    Section 28 of the MRTU & PULP Act, and consequently even by<\/p>\n
    this Court in the present petition.\n<\/p>\n
    23.      The learned counsel for the petitioner relied on a<\/p>\n
    judgment of the Supreme Court in Ram Singh and others v.
\n    Union Territory, Chandigarh and others<\/a>, reported at 2003(9)<\/p>\n
    Scale 459, where the Court observed in para 17 as under :\n<\/p>\n
             “17. In case of Steel Authority of India (supra) after
\n             recording the above conclusions, the Constitution
\n             Bench added :-\n<\/p><\/blockquote>\n
                        “We have used the expression “industrial<\/p>\n
                        adjudicator” by design as determination of
\n                        the   questions   aforementioned          requires
\n                        enquiry into disputed questions of facts<\/p>\n
                        which cannot conveniently be made by
\n                        High Courts in exercise of jurisdiction under
\n                        Article 226 of the Constitution. Therefore,<\/p>\n
                        in such cases the appropriate authority to
\n                        go into those issues will be the Industrial
\n                        Tribunal\/Court whose determination will be
\n                        amenable to judicial review.”\n<\/p><\/blockquote>\n<\/blockquote>\n
                                               ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                                 22<\/span><\/p>\n
    In any case, no material had been placed before the Industrial<\/p>\n
    Court to show that employee-employer relationship existed
\n    between the respondent-workmen and the petitioner and that
\n    the contractors were a mere facade.       The Industrial Court<\/p>\n
    seems to have principally excluded the contractors from the
\n    chain, because they were not shown to be holding licences.\n<\/p><\/blockquote>\n
    Since they did not employ more than 20 labourers, licences<\/p>\n
    were not required, and in any case absence of a licence would
\n    lead to only penal consequences under the Act, but would not<\/p>\n
    result in snapping the relationship between the principal
\n    employer and the contractors or creating a direct link<\/p>\n
    between the principal employer and the employees.\n<\/p>\n
    24.       The learned counsel for the respondent-workmen<\/p>\n
    relied on a judgment of Division Bench of this Court in<\/p>\n
    Creative Garments v. Kunwar Prasad and<\/a> another, reported at
\n    2003(1) Bom.LC 235, which was on the facts peculiar to the
\n    case and does not lay down any principle of law, which may<\/p>\n
    be applicable for deciding the case at hand.\n<\/p>\n
    25.       In M\/s. Bharat Heavy Electrical Ltd. v. State of U.P.,<\/a><\/p>\n
    reported at 2003 Lab.I.C. 2630, relied on by the learned
\n    counsel   for   the   respondents, the   Supreme Court               was
\n    considering concurrent findings of fact by the Labour Court
\n    and the High Court that the workmen were employees of the<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                                23<\/span><\/p>\n
    principal employer and refused to interfere with those
\n    concurrent findings of fact, which were not shown to be<\/p>\n
    perverse or untenable or based on no evidence.                 Had the
\n    learned Member, Industrial Court been entitled to consider the
\n    evidence about employee-employer relationship and had first<\/p>\n
    rendered a finding at the threshold and then proceeded to
\n    assume jurisdiction to entertain a complaint, things might
\n    have been different.   In such a case, the jurisdiction of the<\/p>\n
    Industrial Court in a complaint under Section 28 of the MRTU
\n    & PULP Act to decide existence of employee-employer<\/p>\n
    relationship could also have been raised.\n<\/p>\n
    26.      In Indian Farmers Fertilizer Coop. Ltd. v. Industrial
\n    Tribunal I, Allahabad and others<\/a>, reported at 2002 SCC (L&S)
\n    421, on which the learned counsel for the respondents placed<\/p>\n
    reliance, the Court was considering a matter arising out of a<\/p>\n
    reference made to the Industrial Court regarding validity of
\n    termination of services of 88 workmen, who were allegedly
\n    working under a contractor. In the reference, there was no<\/p>\n
    indication that the workmen had been employed by the
\n    contractor.   The Tribunal had considered the question
\n    whether the workmen were employees of the principal<\/p>\n
    employer or not while deciding the reference, since such a
\n    plea was raised. The Tribunal came to the conclusion that the
\n    workmen were employees of the principal employer and then
\n    proceeded to decide the reference. The Supreme Court found<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                                 24<\/span><\/p>\n
    that there was nothing wrong in such a course.\n<\/p>\n
    27.      In this case, the question as to whether the
\n    petitioner is the employer of respondent Nos.3 to 11 had been
\n    raised by the petitioner before the Industrial Court.                The<\/p>\n
    Industrial Court seems to have concluded merely on the basis
\n    of absence of licence by the contractor that the respondent-
\n    workmen were the direct employees of the petitioner, which<\/p>\n
    was not correct in view of judgment of the Supreme Court in<\/p>\n
    Dina Nath and others v. National Fertilisers Ltd. and others,
\n    reported at 1992 I CLR 1. In the absence of undisputed or
\n    indisputable employer-employee relationship, the complaint<\/p>\n
    under Section 28 of the MRTU & PULP Act itself was
\n    untenable. Also there is no finding by the learned Member,
\n    Industrial Court, as to whether any unfair labour practice, as<\/p>\n
    defined in Items 5, 6 and 9 of Schedule IV of the MRTU & PULP<\/p>\n
    Act was actually committed, if it is presumed for a while that
\n    the   respondent-workmen      were   the   employees           of     the
\n    petitioner. Therefore, there was no occasion for the Industrial<\/p>\n
    Court to direct absorption or regularization of respondent
\n    Nos.3 to 11.\n<\/p>\n
    28.      In view of this, the direction by the learned Member,
\n    Industrial Court, to absorb the services of the complainants
\n    before him and to regularize them with all consequential
\n    benefits, cannot at all be sustained. The petition is, therefore,<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>
\n                               25<\/span><\/p>\n
    allowed. The impugned order is quashed and set aside.\n<\/p>\n
                                         JUDGE<\/p>\n
    Lanjewar<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:48:29 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Satpur vs Mr. Athar Jameel on 20 July, 2009 Bench: R. C. Chavan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-211061","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSatpur vs Mr. Athar Jameel on 20 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/satpur-vs-mr-athar-jameel-on-20-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Satpur vs Mr. Athar Jameel on 20 July, 2009 - 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