{"id":2597,"date":"2003-06-25T00:00:00","date_gmt":"2003-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nagaraj-gowda-and-ors-vs-tata-hydro-electric-power-supply-on-25-june-2003"},"modified":"2015-07-17T20:20:18","modified_gmt":"2015-07-17T14:50:18","slug":"nagaraj-gowda-and-ors-vs-tata-hydro-electric-power-supply-on-25-june-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nagaraj-gowda-and-ors-vs-tata-hydro-electric-power-supply-on-25-june-2003","title":{"rendered":"Nagaraj Gowda And Ors. vs Tata Hydro Electric Power Supply … on 25 June, 2003"},"content":{"rendered":"
Bombay High Court<\/div>\n
Nagaraj Gowda And Ors. vs Tata Hydro Electric Power Supply … on 25 June, 2003<\/div>\n
Equivalent citations: 2004 (1) BomCR 201, 2003 (4) MhLj 619<\/div>\n
Author: R Khandeparkar<\/div>\n
Bench: R Khandeparkar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 R.M.S. Khandeparkar, J. <\/p>\n
 1. Heard the learned Advocates for the petitioners
\nand the respondent No. 1. Perused the records.\n<\/p>\n
2. The petitioners are challenging the judgment and order dated 27-1-2000,
\npassed by the Industrial Court dismissing the Complaint (ULP) No.889 of 1994,
\nfiled by the petitioners, holding that the workers employed by the respondent No.
\n2 in the canteen in question are not the employees of the respondent No. 1 and,
\ntherefore, the complaint under Section 28 of the Maharashtra Recognition of
\nTrade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter
\ncalled as “the said Act”, was not maintainable.\n<\/p>\n
3. While challenging the impugned judgment and order, the learned
\nAdvocate for the petitioners has submitted that the Court below has totally
\noverlooked the fact that the respondent No. 1 was statutorily bound to have a
\ncanteen in the premises of the undertaking and accordingly had such canteen
\nwherein the petitioners were continuously employed irrespective of change of the
\ncontractors from time to time, and therefore the respondent No. 1 is their
\nemployer within the meaning of the said expression under Section 3(14) of the
\nBombay Industrial Relations Act, 1946, hereinafter called as “the BIR Act”, and
\nthereby has acted illegally in dismissing the complaint. He has further submitted
\nthat in any case a canteen being a facility provided for the workmen employed in
\nthe undertaking of the respondent No. 1, it has to be considered as part of the
\nundertaking and, therefore, the petitioners are the employees of the respondent
\nNo. 1 considering the definition of the said expression under Section 3(14) of the
\nBIR Act. In spite of the fact that all the relevant statements disclosing
\njurisdictional facts in the complaint itself, the Industrial Court has illegally
\ndismissed the complaint. Drawing attention to the decisions of the Apex Court in
\nthe matter of The Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal and Ors.,<\/a>
\nreported in 7975 Lab.I.C. 1040 and in the case of Basti Sugar Mills Ltd. v. Ram Ujagar and Ors.,<\/a>  as well as the decision of
\nthe learned single Judge, as he then was, of this Court, in the matter of
\nDattatraya Kashinath and Ors. v. Chhatrapati Sahakari Sakhar Karkhana Ltd.,
\nPune and Ors., reported in 1996 (2) LLJ 169 and in the matter of Sakhar
\nKamgar Union v. Shri Chhatrapati Rajaram Sahakari Sakhar Karkhana Ltd.,
\nand Anr.,<\/a> reported in 1996 (1) Mh.L.J. 556 = 1996 (2) LLJ 134, it is sought to
\nbe argued that the decisions of the Apex Court as well as of this Court on the
\nissue of absence of jurisdiction to the Industrial Court to entertain the complaint
\nunder the said Act were not delivered in the matters arising under the BIR Act
\nand therefore those decisions are clearly distinguishable and cannot be applied to
\nthe 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
\ndisclose the statutory liability of the respondent No. 1 to have a canteen as being
\na part of its undertaking, except mere submission in that regard in the complaint.
\nHe has further submitted that Section 46 of the Factories Act, 1948 clearly
\nrequires the Government to issue a notification specifying the undertaking to
\nrequire to have a canteen for the use of the workers and the Rules 79 to 85 of the
\nMaharashtra Factories Rules, 1963 are applicable in that regard and that Rule
\n79(1) clarifies the necessity of a notification which is required to be issued by the
\nGovernment in order to attract the provisions of Section 46 in case of any
\nparticular undertaking. In the case in hand, according to the learned Advocate for
\nthe respondent No. 1, it is nobody’s case that there has been any such notification
\nissued and that therefore there is no statutory liability upon the respondent No. 1
\nto maintain a canteen for its workers. As regards the contention that irrespective
\nof the statutory liability to maintain a canteen and that the canteen which has
\nalready been maintained, forms ordinarily a part of the undertaking, according to
\nthe learned Advocate, it is not only a disputed question of fact but there are
\nneither any pleadings to that effect nor that was the case of the petitioners in the
\ncomplaint and even assuming that it was the case of the petitioners, it was
\nnecessary for the petitioners to get the issue of existence of employer and
\nemployee relationship within the meaning of the relevant provisions of the BIR
\nAct being established independently prior to approaching the Industrial Court
\nunder the provisions of the said Act, and admittedly there is no such adjudication
\nin relation to such an issue. Reliance is sought to be placed in the decisions in the
\nmatters of Indian Petrochemicals Corporation Ltd. and Anr. v. Shramik Sena
\nand Ors.,<\/a> reported in 1999 Lab. I.C. 3078, Hari Shankar Sharma and Ors. v. Artificial Limbs Manufacturing Corporation of India and Ors.,<\/a> reported in
\n(1997) II CLR 631, Cipla Ltd. v. Maharashtra General Kamgar Union and Ors.,<\/a>
\nreported 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
\nCLR 1025, General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. &
\nCalico Printing Co. Ltd. and Ors.,<\/a> reported in 1995 Supp (1) SCC 175.\n<\/p>\n
4. It cannot be disputed that the issue as to the jurisdiction of the Industrial
\nCourt in the matter of complaint under the said Act is well-settled by a series of
\ndecisions of the Apex Court as well as by the decision of the Division Bench of
\nthis Court in Hindustan Coca Cola Bottling S\/W Pvt. Ltd. v. Bhartiya Kamgar
\nSena and Ors. (supra). After taking note of its earlier decisions on the issue in
\nquestion, it was clearly observed that:–\n<\/p>\n
  “In that case the learned Judge has not agreed with the view taken by
\nKochar, J. in the present case and held that in view of the decisions of the
\nSupreme Court in Cipla Ltd. and Kalyani Steels Ltd., that only
\nprecondition to seek remedy under the MRTU & PULP Act is necessity
\nof existence of employer-employee relationship between the parties and
\nwhen its existence is not already established or is disputable, the party
\nhas to first seek relief under the Central Act, i.e. the Industrial Disputes
\nAct or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if
\nsuccessful therein to seek remedy under the said Act thereafter. We are
\nin agreement with the observations of the learned single Judge but with a rider that in cases where the employer-employee relationship was
\nrecognised at some stage and thereafter it was disputed, the Industrial
\nCourt has jurisdiction to decide this issue as an incidental issue under Section 32 of the MRTU & PULP Act.”\n<\/p>\n
While approving the decision in Indian Seamless Metal Tubes Ltd. v. Sunil
\nRambhau Iwale, reported in 2002 (4) Mh.L.J. 151 = 2002 Lab.I.C. 1662, the
\nDivision Bench has specifically expressed full agreement with the views
\nexpressed by me in the said decision to the effect that:–\n<\/p>\n
  “Once it is clear that the jurisdiction of the Industrial Court depends upon
\nthe fact of existence of employer-employee relationship between the
\nparties which is a jurisdictional fact, which should exist to enable the
\nIndustrial Court to assume jurisdiction to entertain the complaint under
\nthe said Act, in the absence of the same, any attempt on the part of the
\nIndustrial Court to adjudicate upon the issue of such relationship would
\namount to mistake of fact in relation to jurisdiction.”\n<\/p>\n
5. The issue as to the jurisdiction of the Industrial Court or the Labour
\nCourt to entertain a complaint under the said Act has been conclusively decided
\nby the above referred decisions irrespective of the fact whether the employer-
\nemployee relationship arises either in terms of the provisions of the Industrial
\nDisputes Act, 1947 or the BIR Act. What is necessary to give jurisdiction to the
\nLabour Court or the Industrial Court to entertain a complaint under the said Act
\nis the existence of such employer-employee relationship, to be disclosed from the
\ncontents of the complaint filed by the complainant. Undoubtedly, the contents
\nmust be corroborated by necessary materials on record, more particularly when
\nthere is scope to dispute the claim of existence of such relationship. Once the
\ncomplaint fails to disclose the necessary jurisdictional fact i.e., the existence of
\nthe employer-employee relationship between the parties, the question of the
\nLabour Court or the Industrial Court going into the issue as regards such a
\nrelationship does not arise. It is immaterial whether the relationship of employee-
\nemployer is claimed in accordance with the provisions of the Industrial Disputes
\nAct or pursuant to the provisions of the BIR Act. What is essential is that the
\ncomplaint itself should disclose all the facts which can reveal the existence of
\nsuch a relationship between the parties.\n<\/p>\n
6. The contention that since the decisions in Cipla Ltd. v. Maharashtra
\nGeneral Kamgar Union and Ors.<\/a> (supra) and Vividh Kamgar Sabha v. Kalyani
\nSteels Ltd. and Anr.,<\/a> reported in 2001 AIR SCW 170 = 2001 Lab.I.C. 499 and
\nIndian Seamless Metal Tubes Limited and Hindustan Coca Cola Bottling S\/W
\nPvt. Ltd., by this Court are in respect of the relationship arising under the
\nIndustrial Disputes Act and not under the BIR Act and, therefore, the said
\ndecisions can be distinguished and cannot be applied to the case in hand is devoid
\nof substance. As already observed above, it is not mere reference to the
\nprovisions of law which would suffice to disclose the employer-employee
\nrelationship, but it is necessary that the jurisdictional fact should exist on the face
\nof the record to enable the Industrial Court or the Labour Court to entertain a
\ncomplaint under the said Act. The facts pleaded should reveal the existence of the
\nrelationship of the employer-employee, irrespective of the claim being either
\nunder 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
\nof the Industrial Disputes Act, the same would also apply with equal force to the
\nmatters where the claim of relationship is in accordance with the provisions of
\nlaw contained in the BIR Act.\n<\/p>\n
7. As regards the contention that the complaint discloses the necessary
\nfacts pertaining to the statutory liability of the respondent No. 1 to have a canteen
\nas part of the undertaking, bare reading of the complaint, and more particularly
\npara Nos. 3(b) and 3(c) reveal that the contention of the petitioners to the effect
\nthat the petitioners were continuously working in the canteen in question
\nirrespective of change in the contractors for all those years and that the
\nrespondent No. 1 was legally bound to maintain a canteen for the benefit of its
\nemployees in terms of Section 46 of the Factories Act, 1948. If one considers
\nthese 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
\ntherein which can reveal that the canteen, wherein the petitioners were employed,
\nformed “ordinarily part of the undertaking” of the respondent No. 1. Section 46
\nof the Factories Act, 1948 provides that the State Government may make rules
\nrequiring that any specified factory wherein more than 250 workers are ordinarily
\nemployed, a canteen or canteens shall be provided and maintained by the
\noccupier for the use of the workers. Undisputedly, the State Government has
\nframed the Maharashtra Factories Rules, 1963 in terms of the provisions of the
\nsaid Act and the Rule 79(1) thereof provides that the occupier of every factory
\nwherein more than 250 workers are ordinarily employed and which is specified
\nby the State Government by a notification in that behalf shall provide, in or near
\nthe factory, an adequate canteen according to the standards prescribed in the
\nRules, It is neither the case of the petitioners that the factory of the respondent
\nNo. 1 has either been specified by the State Government in terms of Section 46 of
\nthe Factories Act, 1948 r\/w Rule 79 of the Maharashtra Factories Rules, 1963,
\nthat there is any notification, either pleaded or placed on record in that regard,
\neither before the Industrial Court along with the complaint or in this Court along
\nwith the present petition. Being so, the question of holding the respondent No. 1
\nto be statutorily liable to have a canteen for the use of the workers does not arise,
\nand in the absence of the pleadings and materials in support of the basic facts
\nwhich are necessary to disclose the statutory liability of the respondent No. 1 to
\nhave a canteen for the use of the workers in terms of Section 46 of the Factories
\nAct, 1948 read with Rule 79 of the Maharashtra Factories Rules, 1963, it cannot
\nbe said that the respondent No. 1 was legally bound to maintain a canteen for the
\nbenefit of its employees. Mere submissions in that regard, without factual
\nfoundation in support thereof in the complaint itself are not sufficient to disclose
\nthe existence of the employer-employee relationship between the parties so as to
\ngive jurisdiction to the Industrial Court to entertain the complaint under Section 28 of the said Act.\n<\/p>\n
8. In the case of The Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal and
\nOrs.<\/a> (supra), the Apex Court while dealing with the question as to whether the
\ncanteen workers employed by the co-operative society could be treated as
\nemployees of the Saraspur Mills Company within the meaning of the provisions
\nof 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
\nthe decision of the High Court in the matter of The Ahmedabad Manufacturing
\nand Calico Printing Company Ltd. (Calico Mills) and Ors. v. Their Workmen<\/a>
\n(supra) was applicable and the ratio of the said decision was to the effect that the
\nworkers in order to come within the definition of the ’employee’ need not
\nnecessarily be directly connected with the manufacture of textile fabrics. What is
\npertinent to note about this decision is that while considering the point as to
\nwhether on proper construction of the amended Clauses (13) and (14) of Section 3
\nof the BIR Act, the workers employed in the canteen which was run by the co-
\noperative society could be held to be employees of the Saraspur Mills Company,
\nthe Apex Court had taken note of the fact that there was statutory obligation
\nunder Section 46 of the Factories Act under which the Saraspur Mills Company
\nwas bound to maintain the canteen for its workers. Obviously, there was no
\ndispute in the said case that under Section 46 of the Factories Act, the Saraspur
\nMills Company was duty bound to maintain the canteen for its workers. Being
\nso, it is not the case where there was absence of notification in terms of the rules
\nframed under Section 46 by the concerned State Government or that the Saraspur
\nMills Company was not specified undertaking in terms of the provisions of Section 46 of the Factories Act, 1948. In those circumstances, there being
\nstatutory obligation under the Factories Act, 1948 to maintain a canteen, it was
\nheld that the employees of the society, employed in the canteen run for the
\nbenefit of the workers were the employees of the Saraspur Mills Company. This
\ndecision rather than being of any assistance to the petitioners, it clearly supports
\nthe case of the respondent No. 1 that in the absence of statutory obligation to
\nmaintain a canteen, the question of the contractor’s employees being held to be
\nemployees of the company in terms of Section 3(14) of the BIR Act does not
\narise.\n<\/p>\n
9. The ratio of the decision in Dattatraya Kashinath and Ors. v. Chhatrapati Sahakari Sakhar Karkhana Ltd., Pune and Ors. (supra) as well as
\nin Sakhar Kamgar Union v. Shri Chhatrapati Rajaram Sahakari Sakhar
\nKarkhana Ltd., and Anr.<\/a> (supra) can be ascertained from the contents of para
\n9 and 6 of the respective decisions. In para 9 of the decision in Dattatraya
\nKashinath 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
\ncovered by the provisions of the BIR Act, in the course of or for the purpose of
\nconducting the undertaking, contracts with any person for the execution by or
\nunder the contractor of the whole or any part of any work which ordinarily part
\nof the undertaking, the owner of such undertaking would be the ’employer and
\nthe person employed by the contractor to do such work would be the employee’.
\nIn Sakhar Kamgar Union’s case, in para 6 thereof, it was held that a combined
\nreading of these definitions suggests that in an undertaking covered by the BIR
\nAct, if any work which is ordinarily part of the undertaking has been entrusted to
\na contractor for execution by or under him and, for executing such work, the
\ncontractor engages contract labour, then notwithstanding the fact that there is no
\nrelationship of employer and employee between the principal employer and the
\ncontractor’s workmen, for the purpose of the BIR Act, such contractors workmen
\nare 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-
\nemployee between the undertaking or the company and the contractor’s
\nworkmen, what is absolutely necessary is that “any work which is ordinarily part
\nof the undertaking” has to be entrusted by the contractor to his workmen for
\nexecution thereof. Though it is sought to be contended that the canteen is
\notherwise ordinarily a part of the undertaking of the respondent No. 1, no factual
\nfoundation has been laid in that regard either in the complaint or in the evidence.
\nBeing so, the decisions in the cases of Dattatraya Kashinath and others as well
\nas in Sakhar Kamgar Union, which are squarely on the basis of “the work being
\nordinarily part of the undertaking” in relation to the work which was entrusted to
\nthe workmen of the contractor, can be of no assistance to the petitioners to
\ncontend that in the facts and circumstances in which they were employed by the
\ncontractor for the canteen in question would lead to the conclusion that they are
\nalso the employees of the respondent No. 1 within the meaning of the provision
\nof law contained in Section 3(14) of the BIR Act. Being so, both the decisions are
\nof no assistance to the petitioners in any manner in the matter in hand.\n<\/p>\n
10. As regards the decision of the Apex Court in Basti Sugar Mills Ltd. v. Ram Ujagar and Ors.<\/a> (supra), undoubtedly it was held therein that on the
\nfacts of the case the relationship of the employer and the employee was being
\ndisclosed. The said decision can be of no help for consideration in the matter in
\nissue as it does not deal with the point of jurisdiction of the Court to entertain the
\ncomplaint.\n<\/p>\n
11. The decision in General Labour Union (Red Flag) Bombay v. Ahmedabad Mfg. & Calico Printing Co. Ltd. and Ors.<\/a> (supra) though it is an
\norder and not a judgment, it clearly holds down that “The workmen have first to
\nestablish that they are the workmen of the respondent-company before they can
\nfile any complaint under the said Act”. Bearing in mind the decisions of the Apex
\nCourt in the matters of Cipla Ltd., and Vividh Kamgar Sabha as well as of the
\nDivision Bench of this Court in Hindustan Coca Cola Bottling S\/W Pvt. Ltd.,
\ncertainly the contention of the learned Advocate for the petitioners that the
\ndecision in General Labour Unions case is merely an order and therefore is not
\nbinding, or that it does not lay down any binding precedent as such, does not
\narise for consideration in the matter.\n<\/p>\n
12. As rightly submitted by the learned Advocate for the respondent No. 1,
\nthe decision of the Allahabad High Court in Hari Shankar Sharma and Ors. v. Artificial Limbs Manufacturing Corporation of India and Ors.<\/a> (supra) also
\nclearly supports the contention on behalf of the respondent No. 1. Therein, taking
\nnote of the provisions of Section 46, it was clearly ruled that in order to fulfil the
\nrequirement of Section 46(1) not only must be ordinarily more than two hundred
\nand fifty workers employed, but the additional requirement is that the factory
\nmust be a specified factory, and that it is not that every factory which employees
\n250 workers or more is required to maintain canteen but only such factories
\nwhich are specified by the State Government.\n<\/p>\n
13. As regards the decision in Indian Petrochemicals Corporation Ltd. and
\nAnr. v. Shramik Sena and Ors.<\/a> (supra), it was undoubtedly held therein
\nthat the workmen of a statutory canteen would be the workmen established for
\nthe 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
\nnote of the fact that prior to the institution of the proceedings which were the
\nsubject-matter of the decision of the Apex Court, there were proceedings between
\nthe parties thereto and therein the Industrial Court had held that the workmen
\nwere entitled for continuity in service in the same canteen irrespective of the
\nchange of the contractor, and the said decision was never challenged by the
\nCorporation. On the contrary, it was revealed that that those workmen had
\ncontended before the Industrial Court that the management was indulging in
\nunfair labour practice and in fact they were employed by the company. They had
\nspecifically contended that they were entitled to continue in the employment of
\nthe company irrespective of the change in the contractor. The Industrial Court
\nhad accepted their contention as against the plea put forth by the management
\ntherein. The employer did not think it proper to challenge the said decision of the
\nIndustrial Court, and consequently it became final. The same clearly suggested
\nthat the management had accepted the fact that the respondent-workmen were
\npermanent employees of the management’s canteen. This was a very significant
\nfact which apparently established the relationship of employer-employee between
\nthe parties. In those facts and circumstances, therefore, it was apparently clear
\nthat the respondents therein were the employees of the management. That is not
\nthe case in the matter in hand.\n<\/p>\n
14. Being so, the findings arrived at regarding absence of jurisdiction to
\nentertain the complaint under the said Act against the respondent No. 1 at the
\ninstance of the petitioners cannot be found fault with. They are clearly borne out
\nfrom the records. The complaint does not disclose the necessary jurisdictional
\nfacts to enable the Industrial Court to entertain the complaint against the
\nrespondent No. 1 under the said Act.\n<\/p>\n
15. In the result, therefore, there is no case made out for interference in the
\nimpugned order and hence the petition fails and is hereby dismissed. The rule is
\ndischarged with no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Nagaraj Gowda And Ors. vs Tata Hydro Electric Power Supply … on 25 June, 2003 Equivalent citations: 2004 (1) BomCR 201, 2003 (4) MhLj 619 Author: R Khandeparkar Bench: R Khandeparkar JUDGMENT R.M.S. Khandeparkar, J. 1. Heard the learned Advocates for the petitioners and the respondent No. 1. Perused the records. 2. […]<\/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-2597","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nNagaraj Gowda And Ors. vs Tata Hydro Electric Power Supply ... on 25 June, 2003 - 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\/nagaraj-gowda-and-ors-vs-tata-hydro-electric-power-supply-on-25-june-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nagaraj Gowda And Ors. vs Tata Hydro Electric Power Supply ... on 25 June, 2003 - 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