Full Judgment Text
1
2005:BHC-OS:10826
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 983 of 2003 WRIT PETITION NO. 983 of 2003 WRIT PETITION NO. 983 of 2003
Maharashtra General Kamgar Union .. Petitioner
versus
Royal Western India Turf Club Ltd.
and others .. Respondents
...
Mr.N.M. Ganguli for the petitioner
Mr.J.P. Cama for the respondent no.1.
Mr.K.P. Anilkumar for the respondent no.3 absent.
CORAM : D.G. KARNIK,J.
DATED : 3rd August 2005.
ORAL JUDGEMENT :- ORAL JUDGEMENT :- ORAL JUDGEMENT :-
1. By this petition, the petitioner challenges
the judgement and order dated 30th January 2003
passed by the Industrial Court, Mumbai dismissing the
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2
complaint ULP no.1549 of 1991 filed under the
Maharashtra Recognition of Trade Unions and Unfair
Labour Practices Act (for short ’the ULP Act’) for
want of jurisdiction.
2. Petitioner no.1 is a registered trade union
which is espousing the cause of the workmen.
Respondent no.1 is a public limited company which
carries on business of conducting horse races.
Respondent no.2 is also a public limited company and
horse owners are its members. Respondent no.3 is
also a public limited company and the horse trainers
are its members. Several workmen are employed by
respondent no.3 in its activity of training the
horses. The petitioner filed a complaint under ULP
Act alleging that the workman employed by respondent
no.3 in the course of training of the horses were the
employees of respondent nos.1 and 2. In the
complaint, the petitioner alleged unfair labour
practices on the part of the respondents under item 6
of Schedule II and item 9 of schedule IV of the ULP
Act. The respondent nos.1, 2 and 3 filed separate
written statements. The respondent nos.1 and 2 each
pleaded that the employees of respondent no.3 were
not their employees and also denied the allegations
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3
of unfair labour practises. Respondent no.3 admitted
that the employers were its employees but denied the
allegations of unfair labour practices. In March
2001 the respondent no.1 moved an application stating
that in view of the judgement of the Supreme Court in
Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. & Anr.
reported in 2001 I CLR 532, the Industrial Court
exercising the powers under the ULP Act had no
jurisdiction to entertain and try the complaint as
the factum of existence of the relationship of
employer and employees between the respondent no.1
and the workmen was denied. In the application, it
further pleaded that the application was made
immediately on knowledge of the decision. It
therefore requested the Industrial Court to frame a
preliminary issue as to the jurisdiction and decide
it as a preliminary issue. The Industrial Court
acceded to the said request and after hearing the
parties, by a judgement and order dated 3rd July
2002, held that it had the jurisdiction to entertain
and try the complaint and rejected the application
filed by the respondent no.1. Aggrieved respondent
challenged that order by filing of a writ petition
bearing no. 4841 of 2002 in this Court. By an order
dated 3rd September 2002 passed by consent of the
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4
parties, this Court set aside the order and remanded
the matter back to the Industrial Court for
consideration afresh in accordance with law laid down
by the Supreme Court in the case of Cipla Limited Vs.
Maharashtra General Kamgar Union & ors. reported in
2001 I CLR 754. After the remand, the Industrial
Court considered the application made by the
respondent no.1 afresh and held that as the the
Industrial Court exercising the powers u/s.30 of the
ULP Act had no jurisdiction to entertain and try the
dispute. Such dispute could only be decided in a
reference u/s.10 of the Industrial Disputes Act (for
short ’the I.D. Act’ or the Bombay Industrial
Relations Act (for short ’the BIR Act’) as the case
may be. In view of this finding, the Industrial
Court allowed the application made by respondent no.1
and dismissed the complaint filed by the petitioner.
That judgement and order is impugned by this
petition.
4. In Vividh Kamgar Sabha Vs. Kalyani Steels
Ltd & Anr. (Supra), the Supreme Court has held that
the provisions of ULP Act can only be enforced by
persons who admittedly are workmen. If there is a
dispute as to whether the complainants are the
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5
employees of the company then the dispute must first
be got resolved by raising a dispute before the
appropriate forum. It is only after the status as
the workmen is established in appropriate forum that
the complaint can be made under the provisions of ULP
Act.
5. In Cipla Limited Vs. Maharashtra General
Kamgar Union & ors (Supra), a union of workmen had
filed a complaint for unfair labour practice. The
union alleged that the appellant company had been
engaging the workmen but on paper they were shown as
employees of a labour contractor, the second
respondent therein. The second respondent was only a
name lender whereas the appellant company was the
real employer of the workmen. The company denied the
relationship of the employer and employees and
contended that the workmen were not its employees but
employees of the labour contractor. The labour court
after consideration of the pleadings and evidence
came to the conclusion that the arrangement between
the appellant company and respondent no.2 labour
contractor was bonafide and that the workmen were the
employees of the labour contractor. It therefore
dismissed the complaint. In the Writ Petition, the
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6
High Court took a different view and held that the
workmen in question were the employees of the
appellant company and therefore the labour court had
the jurisdiction to hear the complaint. Reversing
the judgement of the High Court the Supreme Court
held that when the question as to whether the workmen
concerned were the employees of the company was
disputed and was not undisputable, a Labour Court or
Industrial Court hearing the complaint under the ULP
cannot decide the question whether the workmen were
the employees of the company. Such an issue would
have to be decided in a reference u/s.10 of the
Industrial Disputes Act or in a proceeding under the
BIR Act as the case may be.
6. Following the decision of the Supreme Court
in Vividh Kamgar Sabha vs. Kalyani Steel Ltd (Supra)
this Court in Lokmat Vs. Prabhakar R. Choudhary
reported in 2003 I CLR 550 has held that the
Industrial Court hearing the complaint under the ULP
Act would not have a jurisdiction to decide an issue
whether the complainants were the workmen of the
respondent company or not if such issue arose on
pleadings between the parties. Similar view has been
taken by another single Judge of this Court in Indian
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7
Seamless Metal Tubes Ltd. Vs. Sunil Rambhau Iwale &
ors. reported in 2001 III CLR 728.
7. In Quadricon Pvt.Ltd. & ors. Vs. Maxi
D’Souza & ors reported in 2004 III CLR 530, the
complainants had filed a complaint of unfair labour
practices against the appellant company and made an
application for grant of interim relief. The company
opposed the complainant’s prayer for grant of interim
relief and denied the relationship of employer and
employee between the parties. The Industrial Court
granted the interim relief in favour of the
complainants and restrained the appellant from
terminating the services of the complainants without
following due process of law pending hearing and
final disposal of the complaint. The Industrial
Court held that the contention of the company that
there was no employer and employee relationship
between the company and the complainants could not be
prima facie believed. A Writ Petition filed by the
company was dismissed by a Single Judge of the Court
observing that the appellant had made patently
unsustainable attempt to defeat the jurisdiction of
the Industrial Court by a bold denial of existence of
employer and employee relationship. Reversing the
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8
judgement of the Single Judge, the Division Bench
held that the Industrial Court constituted under the
ULP Act had no jurisdiction to adjudicate the
employer employee relationship nor was there anything
like prima facie consideration of employer-employee
relationship in a complaint under the ULP Act. The
jurisdiction of the Industrial Court in passing an
interim order u/s.30(2) was founded upon the
consideration of the aspect whether the complaint
u/s.28 was entertainable and that depended on the
relationship of employer-employee. In a case where
the relationship was called in question, the
Industrial Court would be required to consider the
aspect whether the employer - employee relationship
existed which could not be done under the ULP Act and
the jurisdiction vested only u/s.10 of the Industrial
Disputes Act or the BIR Act as the case may be.
8. In view of the aforesaid decisions referred
to above, it is clear that where an issue arises as
to whether the relationship of employer - employee
exists between the parties, that an issue cannot be
adjudicated even incidentally by a Labour Court or an
Industrial Court exercising powers under the ULP Act.
Such an issue can be decided only by an appropriate
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forum under the appropriate Act like section 10 of
the I.D. Act or the BIR Act.
9. In sub para (d) and (e) of paragraph no.3,
the petitioner has alleged that the activities
carried on by the respondent no.1 and the horse
owners and the trainees formed parts of one common
activity namely the horse racing carried out by an
under the supervision and control of the respondent
no.1. It was further alleged that the entire
activity or business of conducting horse races was an
industry in which over 1500 workmen were employed in
the various capacities as Jamadars, Asstt. Jamadars
etc. The petitioner was aware that the workmen were
not directly employed by the respondent no.1 and
therefore it had taken the recourse to allege
functional integrality between respondent nos.1, 2
and 3 alleging them to be parts of a single industry.
The basis of employment of the workmen by respondent
no.1 was on the basis of functional integrality
between of the industry. The respondent no.1 had
categorically denied these allegations in the written
statement and has contended :
"........ as there is no
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10
relationship of an employer and
employee direct and or indirect
remote or proximate between
Respondent No.1 and the persons
alleged to be members of the
Complainant/union and referred to
in the present complaint."
10. In paragraph no.3 of the separate written
statement, the respondent no.2 had also denied the
relationship in the following words:
"The Respondent no.2 further submits
that there is no privity of contract
of employment as between the workers
enrolled with Complainant union and
Respondent no.1. At no point of
time, any members of Respondent no.2
had directly or otherwise engaged
any workmen of the Complainant
union, and hence, the wild and vague
allegations against the Respondent
no.2 having indulged in any alleged
unfair labour practices as set out
in the complaint are false,
frivolous, vexatious and malicious."
The petitioner had alleged the relationship of
employer and employee while the respondent nos.1
and 2 had denied the existence of such
relationship. The defence raised by the respondent
nos.1 and 2 was bonafide and in fact the petitioner
himself had indirectly admitted that there was no
direct employer - employee relationship between the
respondent no.1 and the workmen but was claiming
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11
relationship on the basis of alleged functional
integrality of operations. As held by the Supreme
Court in the case of Vividh Kamgar Sabha Vs.
Kalyani Steels Ltd. & ors. (Supra) and Cipla Ltd.
Vs. Maharashtra General Kamgar Union & ors.
(Supra) that issue could not be heard and decided
by the Industrial Court exercising powers u/s.28 of
the ULP Act. That issue had to be decided first by
an appropriate forum u/s.10 of the I.D. Act or the
BIR Act as the case may be. The Industrial Court
was thus right in holding that it had no
jurisdiction to entertain and try the complaint so
far as respondent nos.1 and 2 were concerned.
11. Learned counsel for the petitioner submits
that in any event, the respondent no.3 had admitted
the relationship of employer - employees between it
and the workmen. Therefore, the entire complaint
could not have been dismissed. Whether the
respondent no.3 was indulging into unfair labour
practices or not as alleged in the complaint was an
issue which could be decided by the Industrial
Court. The Industrial Court could not have
dismissed the complaint in its entirety. It could
and should have proceeded with the complaint
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12
atleast against respondent no.3. The submission
has to be accepted. In the circumstances, the
impugned order in so far as it relates to the
dismissal of a complaint against the respondent
nos.1 and 2 is concerned has to be maintained while
the dismissal of a complaint against the respondent
no.3 has to be set aside.
12. Accordingly, Writ Petition is partly
allowed. Impugned order in so far relating to the
dismissal of the complaint against the respondent
nos.1 and 2 is confirmed. However, the order in so
far as it relates to the dismissal of the complaint
against the respondent no.3 the order is set aside
and the matter is remanded back to the Industrial
Court for decision in accordance with law. In view
of the mixed success, parties are directed to bear
and pay their own costs throughout.
13. Rule is made partly absolute to the extent
indicated above.
D.G. KARNIK, J
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2005:BHC-OS:10826
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 983 of 2003 WRIT PETITION NO. 983 of 2003 WRIT PETITION NO. 983 of 2003
Maharashtra General Kamgar Union .. Petitioner
versus
Royal Western India Turf Club Ltd.
and others .. Respondents
...
Mr.N.M. Ganguli for the petitioner
Mr.J.P. Cama for the respondent no.1.
Mr.K.P. Anilkumar for the respondent no.3 absent.
CORAM : D.G. KARNIK,J.
DATED : 3rd August 2005.
ORAL JUDGEMENT :- ORAL JUDGEMENT :- ORAL JUDGEMENT :-
1. By this petition, the petitioner challenges
the judgement and order dated 30th January 2003
passed by the Industrial Court, Mumbai dismissing the
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2
complaint ULP no.1549 of 1991 filed under the
Maharashtra Recognition of Trade Unions and Unfair
Labour Practices Act (for short ’the ULP Act’) for
want of jurisdiction.
2. Petitioner no.1 is a registered trade union
which is espousing the cause of the workmen.
Respondent no.1 is a public limited company which
carries on business of conducting horse races.
Respondent no.2 is also a public limited company and
horse owners are its members. Respondent no.3 is
also a public limited company and the horse trainers
are its members. Several workmen are employed by
respondent no.3 in its activity of training the
horses. The petitioner filed a complaint under ULP
Act alleging that the workman employed by respondent
no.3 in the course of training of the horses were the
employees of respondent nos.1 and 2. In the
complaint, the petitioner alleged unfair labour
practices on the part of the respondents under item 6
of Schedule II and item 9 of schedule IV of the ULP
Act. The respondent nos.1, 2 and 3 filed separate
written statements. The respondent nos.1 and 2 each
pleaded that the employees of respondent no.3 were
not their employees and also denied the allegations
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3
of unfair labour practises. Respondent no.3 admitted
that the employers were its employees but denied the
allegations of unfair labour practices. In March
2001 the respondent no.1 moved an application stating
that in view of the judgement of the Supreme Court in
Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. & Anr.
reported in 2001 I CLR 532, the Industrial Court
exercising the powers under the ULP Act had no
jurisdiction to entertain and try the complaint as
the factum of existence of the relationship of
employer and employees between the respondent no.1
and the workmen was denied. In the application, it
further pleaded that the application was made
immediately on knowledge of the decision. It
therefore requested the Industrial Court to frame a
preliminary issue as to the jurisdiction and decide
it as a preliminary issue. The Industrial Court
acceded to the said request and after hearing the
parties, by a judgement and order dated 3rd July
2002, held that it had the jurisdiction to entertain
and try the complaint and rejected the application
filed by the respondent no.1. Aggrieved respondent
challenged that order by filing of a writ petition
bearing no. 4841 of 2002 in this Court. By an order
dated 3rd September 2002 passed by consent of the
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4
parties, this Court set aside the order and remanded
the matter back to the Industrial Court for
consideration afresh in accordance with law laid down
by the Supreme Court in the case of Cipla Limited Vs.
Maharashtra General Kamgar Union & ors. reported in
2001 I CLR 754. After the remand, the Industrial
Court considered the application made by the
respondent no.1 afresh and held that as the the
Industrial Court exercising the powers u/s.30 of the
ULP Act had no jurisdiction to entertain and try the
dispute. Such dispute could only be decided in a
reference u/s.10 of the Industrial Disputes Act (for
short ’the I.D. Act’ or the Bombay Industrial
Relations Act (for short ’the BIR Act’) as the case
may be. In view of this finding, the Industrial
Court allowed the application made by respondent no.1
and dismissed the complaint filed by the petitioner.
That judgement and order is impugned by this
petition.
4. In Vividh Kamgar Sabha Vs. Kalyani Steels
Ltd & Anr. (Supra), the Supreme Court has held that
the provisions of ULP Act can only be enforced by
persons who admittedly are workmen. If there is a
dispute as to whether the complainants are the
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5
employees of the company then the dispute must first
be got resolved by raising a dispute before the
appropriate forum. It is only after the status as
the workmen is established in appropriate forum that
the complaint can be made under the provisions of ULP
Act.
5. In Cipla Limited Vs. Maharashtra General
Kamgar Union & ors (Supra), a union of workmen had
filed a complaint for unfair labour practice. The
union alleged that the appellant company had been
engaging the workmen but on paper they were shown as
employees of a labour contractor, the second
respondent therein. The second respondent was only a
name lender whereas the appellant company was the
real employer of the workmen. The company denied the
relationship of the employer and employees and
contended that the workmen were not its employees but
employees of the labour contractor. The labour court
after consideration of the pleadings and evidence
came to the conclusion that the arrangement between
the appellant company and respondent no.2 labour
contractor was bonafide and that the workmen were the
employees of the labour contractor. It therefore
dismissed the complaint. In the Writ Petition, the
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6
High Court took a different view and held that the
workmen in question were the employees of the
appellant company and therefore the labour court had
the jurisdiction to hear the complaint. Reversing
the judgement of the High Court the Supreme Court
held that when the question as to whether the workmen
concerned were the employees of the company was
disputed and was not undisputable, a Labour Court or
Industrial Court hearing the complaint under the ULP
cannot decide the question whether the workmen were
the employees of the company. Such an issue would
have to be decided in a reference u/s.10 of the
Industrial Disputes Act or in a proceeding under the
BIR Act as the case may be.
6. Following the decision of the Supreme Court
in Vividh Kamgar Sabha vs. Kalyani Steel Ltd (Supra)
this Court in Lokmat Vs. Prabhakar R. Choudhary
reported in 2003 I CLR 550 has held that the
Industrial Court hearing the complaint under the ULP
Act would not have a jurisdiction to decide an issue
whether the complainants were the workmen of the
respondent company or not if such issue arose on
pleadings between the parties. Similar view has been
taken by another single Judge of this Court in Indian
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7
Seamless Metal Tubes Ltd. Vs. Sunil Rambhau Iwale &
ors. reported in 2001 III CLR 728.
7. In Quadricon Pvt.Ltd. & ors. Vs. Maxi
D’Souza & ors reported in 2004 III CLR 530, the
complainants had filed a complaint of unfair labour
practices against the appellant company and made an
application for grant of interim relief. The company
opposed the complainant’s prayer for grant of interim
relief and denied the relationship of employer and
employee between the parties. The Industrial Court
granted the interim relief in favour of the
complainants and restrained the appellant from
terminating the services of the complainants without
following due process of law pending hearing and
final disposal of the complaint. The Industrial
Court held that the contention of the company that
there was no employer and employee relationship
between the company and the complainants could not be
prima facie believed. A Writ Petition filed by the
company was dismissed by a Single Judge of the Court
observing that the appellant had made patently
unsustainable attempt to defeat the jurisdiction of
the Industrial Court by a bold denial of existence of
employer and employee relationship. Reversing the
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8
judgement of the Single Judge, the Division Bench
held that the Industrial Court constituted under the
ULP Act had no jurisdiction to adjudicate the
employer employee relationship nor was there anything
like prima facie consideration of employer-employee
relationship in a complaint under the ULP Act. The
jurisdiction of the Industrial Court in passing an
interim order u/s.30(2) was founded upon the
consideration of the aspect whether the complaint
u/s.28 was entertainable and that depended on the
relationship of employer-employee. In a case where
the relationship was called in question, the
Industrial Court would be required to consider the
aspect whether the employer - employee relationship
existed which could not be done under the ULP Act and
the jurisdiction vested only u/s.10 of the Industrial
Disputes Act or the BIR Act as the case may be.
8. In view of the aforesaid decisions referred
to above, it is clear that where an issue arises as
to whether the relationship of employer - employee
exists between the parties, that an issue cannot be
adjudicated even incidentally by a Labour Court or an
Industrial Court exercising powers under the ULP Act.
Such an issue can be decided only by an appropriate
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9
forum under the appropriate Act like section 10 of
the I.D. Act or the BIR Act.
9. In sub para (d) and (e) of paragraph no.3,
the petitioner has alleged that the activities
carried on by the respondent no.1 and the horse
owners and the trainees formed parts of one common
activity namely the horse racing carried out by an
under the supervision and control of the respondent
no.1. It was further alleged that the entire
activity or business of conducting horse races was an
industry in which over 1500 workmen were employed in
the various capacities as Jamadars, Asstt. Jamadars
etc. The petitioner was aware that the workmen were
not directly employed by the respondent no.1 and
therefore it had taken the recourse to allege
functional integrality between respondent nos.1, 2
and 3 alleging them to be parts of a single industry.
The basis of employment of the workmen by respondent
no.1 was on the basis of functional integrality
between of the industry. The respondent no.1 had
categorically denied these allegations in the written
statement and has contended :
"........ as there is no
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10
relationship of an employer and
employee direct and or indirect
remote or proximate between
Respondent No.1 and the persons
alleged to be members of the
Complainant/union and referred to
in the present complaint."
10. In paragraph no.3 of the separate written
statement, the respondent no.2 had also denied the
relationship in the following words:
"The Respondent no.2 further submits
that there is no privity of contract
of employment as between the workers
enrolled with Complainant union and
Respondent no.1. At no point of
time, any members of Respondent no.2
had directly or otherwise engaged
any workmen of the Complainant
union, and hence, the wild and vague
allegations against the Respondent
no.2 having indulged in any alleged
unfair labour practices as set out
in the complaint are false,
frivolous, vexatious and malicious."
The petitioner had alleged the relationship of
employer and employee while the respondent nos.1
and 2 had denied the existence of such
relationship. The defence raised by the respondent
nos.1 and 2 was bonafide and in fact the petitioner
himself had indirectly admitted that there was no
direct employer - employee relationship between the
respondent no.1 and the workmen but was claiming
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11
relationship on the basis of alleged functional
integrality of operations. As held by the Supreme
Court in the case of Vividh Kamgar Sabha Vs.
Kalyani Steels Ltd. & ors. (Supra) and Cipla Ltd.
Vs. Maharashtra General Kamgar Union & ors.
(Supra) that issue could not be heard and decided
by the Industrial Court exercising powers u/s.28 of
the ULP Act. That issue had to be decided first by
an appropriate forum u/s.10 of the I.D. Act or the
BIR Act as the case may be. The Industrial Court
was thus right in holding that it had no
jurisdiction to entertain and try the complaint so
far as respondent nos.1 and 2 were concerned.
11. Learned counsel for the petitioner submits
that in any event, the respondent no.3 had admitted
the relationship of employer - employees between it
and the workmen. Therefore, the entire complaint
could not have been dismissed. Whether the
respondent no.3 was indulging into unfair labour
practices or not as alleged in the complaint was an
issue which could be decided by the Industrial
Court. The Industrial Court could not have
dismissed the complaint in its entirety. It could
and should have proceeded with the complaint
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12
atleast against respondent no.3. The submission
has to be accepted. In the circumstances, the
impugned order in so far as it relates to the
dismissal of a complaint against the respondent
nos.1 and 2 is concerned has to be maintained while
the dismissal of a complaint against the respondent
no.3 has to be set aside.
12. Accordingly, Writ Petition is partly
allowed. Impugned order in so far relating to the
dismissal of the complaint against the respondent
nos.1 and 2 is confirmed. However, the order in so
far as it relates to the dismissal of the complaint
against the respondent no.3 the order is set aside
and the matter is remanded back to the Industrial
Court for decision in accordance with law. In view
of the mixed success, parties are directed to bear
and pay their own costs throughout.
13. Rule is made partly absolute to the extent
indicated above.
D.G. KARNIK, J
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