Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
CASE NO.:
Appeal (civil) 8452 of 2003
PETITIONER:
Sarva Shramik Sangh
RESPONDENT:
M/s. Indian Smelting & Refining Co. Ltd. & Ors.
DATE OF JUDGMENT: 28/10/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 4103 of 2002)
[With C.A. No. 8453/2003 (Arising out of S.L.P (C) No. 4105/2002, C.A.
No.8454-8459/2003 (Arising out of S.L.P (C).20005-20010/2003 CC No. 625-
630/03, C.A. No.8460/2003 (Arising out of S.L.P (C) No. 7210/2002, C.A.
No. 8461/2003 (Arising out of SLP(C) No.7151/2002, C.A. No.8462/2003
(Arising out of SLP(C) No.18341/2002, C.A.No. 8463/2003 (Arising out of
SLP(C) No.18521/2002)
ARIJIT PASAYAT, J
Leave granted.
Appellants contend that the view which was first expressed by this
Court in General Labour Union (Red flag), Bombay v. Ahmedabad Mfg. And
Calico Printing Co. Ltd and Ors. (1995 Supp (1) SCC 175), subsequently
echoed in many cases including Vividh Kamgar Sabha v. Kalyani Steels
Ltd. and Anr. (2001 (2) SCC 381) and finally in CIPLA Ltd. v.
Maharashtra General Kamgar Union and Ors. (2001 (3) SCC 101) is legally
unsound and needs a fresh look.
It was held in first of the three cases that the workmen have to
establish that they are workmen of the respondent-company before they
can file any complaint under the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (in short the
’Maharashtra Act’). Similar was the view expressed in Vividh Kamgar’s
case (supra) and CIPLA Ltd.’s case (supra).
According to the appellants a fresh look is necessary in the
matter, as various relevant provisions were not kept in view when the
above decisions were rendered.
Ms. Indira Jaisingh, made leading submissions followed by Shri
V.A. Mohta,, Mr. Chander Udai Singh, Sr. Advocates and others on behalf
of the appellants, whereas Shri P.P. Rao. learned Senior Counsel
followed by Sarvashri D.A. Dave, B.R. Naik and Shekhar Naphade, Sr.
Advocates and others responded on behalf of the respondents. On behalf
of the appellants-workmen, relying upon Section 59 of the Maharashtra
Act, it was urged strenuously that the machinery under the said Act as
well as Industrial Disputes Act, 1947 (in short the ’ID Act’) are co-
extensive and equally wide and the scope of judicial determination under
both the Acts is the same and that therefore there was no warrant to
assume that the procedure envisaged under the Maharashtra Act is
summary. While pursuing further the said stand it is claimed that in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
cases where the workmen seek to obtain a declaration that they were at
all times the workmen of the principal employer and the interposition of
contractor or engagement through him was neither bona fide nor genuine
but merely a camouflage designed to defeat the rights of the laborers
remedies are available under both the above enactments to be availed of
at the option and choice of the workman concerned under anyone or other,
though not under both. It was also contended that Section 7 or Section
28 and 32 of the Maharashtra Act cannot be construed so as to keep out
of the purview of the Act, even an adjudication as to the existence of
relationship of the workmen vis-a-vis the principal employer not
withstanding that it is disputed or denied by the principal employer and
being a beneficial legislation meant to provide workmen a more
beneficial and expeditious additional remedy a liberal construction has
to be placed in furtherance of the avowed object. Further, it is
contended that when more than one statute governed the situation the
provisions have to be harmoniously construed, giving each of them a full
play rationally without whittling down the scope of anyone of them,
keeping in view the basic principle that where there is no express bar
to a jurisdiction, ouster of jurisdiction could not be lightly inferred,
to avoid rendering provisions in a statute otiose or redundant. Most
rational way of such an harmonious construction would therefore,
according to the appellants lead to the ultimate conclusions a) of
questions relating to abolition of contracts and consequential
absorption can be raised before Industrial Courts, though by virtue of
Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970
(in short the ’Contract Labour Act’) the question relating to abolition
will be decided only by the Government and the Industrial Forums will
keep the matter pending, to finally dispose of the other issues after
the decision of Government under the said Act and b) the dispute
relating to the sham nature of the employment through contractor can be
raised under the Maharashtra Act or ID Act at the option or choice of
the workmen. The expression ’enquiry’ as appearing under the Maharashtra
Act is said to go far beyond the ’adjudication’ contemplated in
Industrial Law and therefore convey wider powers and jurisdiction.
It was submitted that the Maharashtra Act is a complete code in
itself. If the forum provided therein can co-exist with the Tribunal
under the ID Act, it is essentially an alternative forum with additional
remedies. Definition of "workman" was by the logic of incorporation
and, therefore, the Tribunal under the ID Act alone can not held
competent to effectively decide the question whether the claimant in
reality was a workman or not. It was also submitted that this Court
erroneously proceeded on the footing as if the proceedings under the
Maharashtra Act are summary in nature.
Per contra, on behalf of the respondents-
Management/establishments, it was contended that when three different
Benches of this Court have consistently taken the view that the basic
question as to existence of relationship of employer-employee is not
within the purview of the Maharashtra Act and the same hold the field
for over 10 years it would require very strong reasons for any one to
doubt the correctness of such a view and that the mere reason that there
may even be scope for another possible view, is no ground for
reconsideration of the earlier decisions as held by this Court in Keshav
Mills Ltd. vs. Commissioner of Income Tax [1965(2) SCR 908 at pages 921,
928).
On the merits of the contentions raised on behalf of the
appellants while reiterating the plea that the principles laid down in
CIPLA’s case (supra) are unexceptionable and well merited having regard
to the scheme, purpose and object of the legislations under
consideration and legislative intent as expressed in the language of the
various provisions therein and do not call for any reconsideration,
merely because there was no reference to a particular provision or
other, wherein according to the respondents all relevant principles and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
criteria necessary for the purpose have been found effectively kept into
consideration. According to the respondents the scope for the
Maharashtra Act is limited in nature and confined to consideration of
claims and grievances of unfair labour practices of certain kind by
prohibiting employer or union and employees from engaging in any unfair
labour practice and the existence of an undisputed or indisputable
relationship of employer-employee is an essential pre-requisite for the
labour or Industrial Court under the Maharashtra Act to entertain any
proceedings in respect of any grievance under the said Act. Section 32
of the Maharashtra Act, it is urged is to be considered in the context
of Sections 26 and 27 read with the relevant entries in the Schedules in
these cases, particularly items 5, 6, 9 & 10 and in the absence of
accepted or existing relationship of employer-employee duly declared in
competent proceedings, neither Section 5 nor Section 7 or even Section
28 enabled a complaint to be entertained for consideration of such
grievances as are sought or permitted to be agitated under the
Maharashtra Act.
The further plea on behalf of the respondents was that the scope
of adjudication under the ID Act is much wider in which all or any types
and nature of industrial disputes including claims for declaration of
status or relationship of "Master and Servant or Employer and Employee"
can also be agitated and determined and not under the Maharashtra Act.
Consequently, it is claimed that questions as to whether the contract
under which contract labour was engaged was a sham and nominal or a mere
camouflage and if so whether by piercing the veil they should be
declared to be really the employees of the principal employer are
matters which could be got referred to for adjudication by seeking a
reference under ID Act only and are totally outside the jurisdiction of
the Courts constituted under the Maharashtra Act.
The decision of the Constitution Bench in Steel Authority of India
Ltd. and Ors. v. National Union Waterfront Workers and Ors. (2001 (7)
SCC 1) in several paragraphs particularly paras 65, 108, 112, 113, 117,
125 makes the position clear that a dispute of the nature previously
projected has perforce to be adjudicated on the issue as to whether a
person was a workman under the employer.
The relevant paragraphs so far as relevant read as follows:
"65. The contentions of the learned counsel for the
parties, exhaustively set out above, can conveniently
be dealt with under the following two issues :
A. Whether the concept of automatic absorption of
contract labour in the establishment of the principal
employer on issuance of the abolition notification,
is implied in Section 10 of the CLRA Act; and
B. Whether on a contractor engaging contract labour
in connection with the work entrusted to him by a
principal employer, the relationship of master and
servant between him (the Principal employer) and the
contract labour, emerges.
108. The next issue that remains to be dealt with is
:
B. Whether on a contractor engaging contract labour
in connection with the work entrusted to him by a
principal employer, the relationship of master and
servant between him (the principal employer) and the
contract labour emerges.
112. The decision of the Constitution Bench of this
Court in Basti Sugar Mill’s case (supra), was given
in the context of reference of an industrial dispute
under the Uttar Pradesh Industrial Disputes Act,
1947. The appellant-Sugar Mills entrusted the work of
removal of press-mud to a contractor who engaged the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
respondents therein (contract labour) in connection
with that work. The services of the respondents were
terminated by the contractor and they claimed that
they should be reinstated in the service of the
appellant. The Constitution Bench held :
"The words of the definition of
workmen in Section 2(z) to mean "any
person (including an apprentice)
employed in any industry to do any
skilled or unskilled, manual,
supervisory, technical or clerical work
for hire or reward, whether the terms of
employment be express or implied" are by
themselves sufficiently wide to bring in
persons doing work in an industry
whether the employment was by the
management or by the contractor of the
management. Unless however the
definition of the word "employer"
included the management of the industry
even when the employment was by the
contractor the workmen employed by the
contractor could not get the benefit of
the Act since a dispute between them and
the management would not be an
industrial dispute between "employer"
and workmen. It was with a view to
remove this difficulty in the way of
workmen employed by contractors that the
definition of employer has been extended
by sub-clause (iv) of Section 2(i). The
position thus is : (a) that the
respondents are workmen within the
meaning of Section 2(z), being persons
employed in the industry to do manual
work for reward, and (b) they were
employed by a contractor with whom the
appellant company had contracted in the
course of conducting the industry for
the execution by the said contractor of
the work of removal of press-mud which
is ordinarily a part of the industry. It
follows therefore from Section 2(z) read
with sub-clause (iv) of Section 2(i) of
the Act that they are workmen of the
appellant company and the appellant
company is their employer."
113. It is evident that the decision in that case
also turned on the wide language of statutory
definitions of the terms "workmen" and "employer". So
it does not advance the case pleaded by the learned
counsel.
117. We find no substance in the next submission of
Mr. Shanti Bhushan that a combined reading of the
definition of the terms contract labour,
establishment and workman would show that a legal
relationship between a person employed in an industry
and the owner of the industry is created irrespective
of the fact as to who has brought about such
relationship.
125(5). On issuance of prohibition notification under
Section 10(1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
dispute brought before it by any contract labour in
regard to conditions of service, the industrial
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
adjudicator will have to consider the question
whether the contractor has been interposed either on
the ground of having undertaken to produce any given
result for the establishment or for supply of
contract labour for work of the establishment under a
genuine contract or is a mere ruse camouflage to
evade compliance of various beneficial legislations
so as to deprive the workers of the benefit
thereunder. If the contract is found to be not
genuine but a mere camouflage, the so-called contract
labour will have to be treated as employees of the
principal employer who shall be directed to
regularise the services of the contract labour in the
concerned establishment subject to the conditions as
may be specified by it for that purpose in the light
of para 6 hereunder."
In view of the rival submissions it would be appropriate to take
note of the conclusions arrived at by this Court earlier. First at
point of time is the General Labour Union’s case (supra). This Court,
inter alia, observed as follows:
"The workmen have first to establish that they
are the workmen of the respondent-company before they
can file any complaint under the Act. Admittedly,
this has not been done. It is open for the workmen to
raise an appropriate industrial dispute in that
behalf if they are entitled to do so before they
resort to the provisions of the present Act".
In V. Kamgar’s case (supra) it was, inter alia, observed as
follows:
"At this stage it must be mentioned that this
Court has also in the case of General Labour Union
(Red Flag), Bombay v. Ahmedabad Mfg. And Calico
Printing Co. Ltd. held that where the workmen have
not been accepted by the company to be its employees,
then no complaint would lie under the MRTU and PULP
Act. We are in full agreement with the above-
mentioned view.
The provisions of the MRTU and PULP Act can
only be enforced by persons who admittedly are
workmen. If there is dispute as to whether the
employees are employees of the company, then that
dispute must first be got resolved by raising a
dispute before the appropriate forum. It is only
after the status as a workmen is established in an
appropriate forum that a complaint could be made
under the provisions of the MRTU and PULP Act.
Then comes the last of the cases i.e. CILPA’s case (supra) where
detailed analysis have been made of the legal position. In paras 8 and 9
and 10 it was observed as under:
"8. But one thing is clear- if the employees
are working under a contract covered by the Contract
Labour (Regulation and Abolition) Act then it is
clear that the Labour Court or the industrial
adjudicating authorities cannot have any jurisdiction
to deal with the matter as it falls within the
province of an appropriate Government to abolish the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
same. If the case put forth by the workmen is that
they have been directly employed by the appellant
company but the contract itself is a camouflage and,
therefore, needs to be adjudicated is a matter which
can be gone into by appropriate Industrial or Labour
Court. Such question cannot be examined by the
Labour Court or the Industrial Court constituted
under the Act. The object of the enactment is,
amongst other aspects, enforcing provisions relating
to unfair labour practices. If that is so, unless it
is undisputed or indisputable that there is employer-
employee relationship between the parties, the
question of unfair practice cannot be inquired into
at all. The respondent Union came to the Labour Court
with a complaint that the workmen are engaged by the
appellant through the contractor and though that is
ostensible relationship the true relationship is one
of master and servant between the appellant and the
workmen in question. By this process, workmen
repudiated their relationship with the contractor
under whom they are employed but claim relationship
of an employee under the appellant. That exercise of
repudiation of the contract with one and
establishment of a legal relationship with another
can be done only in a regular Industrial
Tribunal/Court under the ID Act.
9. Shri K.K. Singhvi, the learned Senior Advocate
appearing for the respondent, submitted that under
Section 32 of the Act the Labour Court has the power
to "decide all matters arising out of any
application or complaint referred to it for decision
under any of the provisions of the Act." Section 32
would not enlarge the jurisdiction of the court
beyond what is conferred upon it by other provisions
of the Act. If under other provisions of the Act the
Industrial or the Labour Court has no jurisdiction to
deal with a particular aspect of the matter, Section
32 does not give such power to it. In the cases at
hand before us, whether the workman can be stated to
be the workman of the appellant establishment or not,
it must be held that the contract between the
appellant and the second respondent is a camouflage
or bogus and upon such a decision it can be held that
the workman in question is an employee of the
appellant establishment. That exercise, we are
afraid, would not fall within the scope of either
Section 28 or Section 7 of the Act. In cases of this
nature where the provisions of the Act are summary in
nature and give drastic remedies to the parties
concerned elaborate consideration of the question as
to relationship of employer-employee cannot be gone
into. If at any time the employee concerned was
indisputably an employee of the establishment and
subsequently it is so disputed, such a question is an
incidental question arising under Section 32 of the
Act. Even the case pleaded by the respondent Union
itself is that the appellant establishment had never
recognized the workmen mentioned in Exhibit ’A’ as
its employees and throughout treated these persons as
the employees of the second respondent. If that
dispute existed throughout, we think, the Labour
Court or the Industrial Court under the Act is not
the appropriate court to decide such question, as
held by this Court in General Labour Union (Red Flag)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
v. Ahmedabad Mfg. & Calico Printing Co. Ltd. (1995
Supp (1) SCC 175), which view was reiterated by us in
Vividh Kamgar Sabha v. Kalyani Steels Ltd. (2001 (2)
SCC 381).
10. However, Shri Singhvi very strenuously
contended, by adverting to the scope of the Payment
of Wages Act, 1936 and the scope of Section 33-C(2)
of the Industrial Disputed Act, that these questions
can be gone into by the courts and, in this context,
he relied upon the decision of the High Court of
Bombay in Vishwanath Tukaram v. G.M. Centeral Rly.,
V.T. In determining whether the wages had been
appropriately paid or not, the authority under the
Payment of Wages Act was held to have jurisdiction to
decide the incidental question of whether the
applicant was in the employment of the railway
administration during the relevant period. It means
that at one time or the other the employee concerned
was indisputably in employment and later on he was
found to be not so employed and in those
circumstances, the court stated that it was an
incidental question to be considered."
Reference has also been made to Sections 27, 28, 29 (d) and 32 of
the Maharashtra Act. While Section 27 deals with prohibition on engaging
in unfair labour practices, Section 28 empowers filing of a complaint.
Any union or an employee or an employer or any investigating agency has
the locus to file a complaint. Section 29 (d) categorises parties on
whom order of Court is binding. Great emphasis was laid on Section 32 of
the Maharashtra Act by the appellant to contend that matters connected
with the dispute can be gone into under the provision. The expression
"all matters arising out of" clearly emphasizes that it has
connections, and not that it is the basic issue. There is a gulf of
difference between a basic issue and something connected with or arising
of the application. In Rex v. Basudev (1950 FC 67), it was observed
that the connection contemplated must be real and proximate not far
fetched or problematical. By no logic it can be a substitute of the
other. "In connection with any assessment" (Canada: Income War Tax Act
R.S.C. 1927 (C.97)S.66) has been interpreted as "having to do with" in
Re Nanaino Community Hotel (1945) 3 D.L.R. 225. The basic question which
was raised also in CIPLA’s case (supra) relates to the existence of the
relationship, and of any dispute connected with that. For getting
protection under the Maharashtra Act, it has first to be established
that the complainant is an employee of a person under whom he claims to
be an employee, and against whom he files a complaint. In other words,
the determinative question is can anybody who is not an ’employee’ of or
under a person against whom a grievance is sought to be made file a
complaint under the Act and the answer is inevitably ’No’. The
fundamental issue therefore is whether the complainant is an employee of
the person against whom a complaint is made under the Maharashtra Act
and if there is a dispute, he has to establish it, first before the
appropriate forum designated for adjudication of such industrial
disputes. Section 32 does not aid the appellant in the sense that it is
not a matter arising out of the application, when the pre-existing
relationship of employer-employee is a must and an essential pre-
requisite. It is the core issue on which only the very locus to make a
complaint can at all be claimed. A person who does not answer the
description has no legal locus to file a complaint. A jurisdictional
fact is one on the existence or otherwise of which depends assumption or
refusal to assume jurisdiction by a court, tribunal or the authority.
Said fact has to be established and its existence proved before a Court
under the Maharashtra Act can assume jurisdiction of a particular case.
If the complaint is made prima facie accepting existence of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
contractor in such a case what has to be first established is whether
the arrangement or agreement between the complainant and the contractor
is sham or bogus. There is an inherent admission in such a situation
that patently the arrangement is between the complainant and the
contractor and the claim for a new and different relationship itself is
a disputed fact. To put it differently, the complainant seeks for a
declaration that such arrangement is not a real one but something which
is a façade. There is no direct agreement between the complainant and
the principal employer and one such is sought to be claimed but not
substantiated in accordance with law. The relief in a sense relates to a
legal assumption that the hidden agreement or arrangement has to be
surfaced. Entries 5, 6, 9 and 10 of Schedule IV of Maharashtra Act read
as follows:
"5- To show favouritism or partiality to one set of
workers, regardless of merits.
6. To employ employees as "badlis", casuals or
temporaries and to continue them as such for years,
with the object of depriving them of the status and
privileges of permanent employees.
9. Failure to implement award, settlement or
agreement.
10. To indulge in act of force or violence".
The ID Act is undisputedly a comprehensive statute which provides
for investigation and settlement of industrial disputes. The term
’industrial dispute’ as defined in Section 2(k) is of a wide amplitude
and can encompass the nature of dispute raised by the complainant. The
Contract Labour Act is also a self-contained legislation aiming at
regulations and abolition of contract labour. What is conferred under
Section 18 of the said Act is to be exercised having regard to the
relevant factors which are mentioned in clauses (a) to (d) of sub-
section (2) thereof. It is significant that both the ID Act and the
Contract Labour Act were in existence and operation when the Maharashtra
Act was enacted. The method of availing benefit of the Contract Labour
Act is indicated in Gujarat Electricity Board, Thermal Power Station,
Ukai, Gujarat v. Hind Mazdoor Sabha and Ors. (1995 (5) SCC 27) where it
was specifically held by this Court that the status of erstwhile
contract labourers can only effectively be determined under the ID Act.
As noted above, considerable emphasis was laid on the fact that
Section 59 of the Maharashtra Act was not noticed in CIPLA’s judgment. A
bare reading of the said provision makes it clear that no proceeding
under the Bombay Industrial Relations Act, 1946 or the ID Act shall be
entertained when proceedings in respect of any matter falling within the
purview of the Maharashtra Act is already instituted. A complaint in
which relief is sought for a declaration of a status as a direct
employee of the principal employer and other consequential reliefs in
terms of benefits and conditions of service applicable to workers
directly employed by the principal employer is not a matter which falls
within the purview of the Maharashtra Act. Therefore, Section 59 has no
application in such a case. Under the Maharashtra Act the Designated
Court decides the complaint as provided under Sections 5 and 7 of the
said Act. For the purpose of deciding the complaint enquiry under
Section 30(3) of the said Act read with Section 28 is contemplated. The
power to decide the complaint revolves round the question whether
ingredients for constituting unfair labour practice exist or not.
However, the power of adjudication under the ID Act is not circumscribed
by the existence or non-existence of unfair labour practice and goes far
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
beyond it.
The meaning and intention of the legislature, which must govern
the interpretation of a provision in a statute, have to be ascertained
not only from the language in which it is clothed but also by
considering its nature, its design and the consequences, which would
follow in construing it either way. Reports of Commissions or Inquiry
Committees preceding the introduction of a Bill for the enactment have
been always viewed as providing evidence of the historical facts or of
surrounding circumstances or of mischief or evil intended to be remedied
and at times even for interpreting the Act, as external aids to
construction of the Act (vide R.S. Nayak vs. A.R. Antulay [1984(2) SCC
183 @ 214) and Mithilish Kumar vs. Prem Bihari Khare [1989 SC 1247 @
1252] and Shriram Chits & Investments (P) Ltd. vs. U.O.I. [1993 SC 2063
@ 2066, 2080]. The report of the Committee on unfair labour practices
which preceded the Maharashtra Act, while noticing the fact that the
expression ’unfair labour practices’ was being used in all fields and
areas connected with industrial relations in a wider sense and loosely
worded manner and not always to mean certain activities connected with
collective bargaining, sought to enumerate the types of such practices
as were illustrated during course of enquiries by the employees and
their organizations, unions and also individual workers or groups of
individual workers and specifically states that "after a careful
scrutiny, we have selected only a few of them because we are of the view
that the net of unfair labour practices should not be cast too wide."
As the preamble to the Maharashtra Act would recite, the State
Legislature after taking into consideration the report of the Committee,
thought fit to decide among other things to define and provide for the
prevention of certain unfair labour practices and to constitute courts
for carrying out the purposes of according recognition to trade unions
and for enforcing in that context the provisions relating to unfair
practices. The fact that there were in existence and force, at that
point of time several related laws such as ID Act, Contract Labour Act,
Bombay Industrial Relations Act, etc. and the provisions of the
Maharashtra Act was not to be in derogation of those laws cannot also be
overlooked in trying to understand and interpret the provisions in
question, and the issue now the subject matter of these appeals.
As pointed out supra the main grievance voiced is about the so-
called omission to specifically notice Section 59 while rendering the
decision in Ciplas case (supra). Section 59 reads as follows:
"59. Bar of proceeding under Bombay or Central
Act:- If any proceeding in respect of any matter
falling within the purview of this Act is
instituted under this Act, then no proceeding
shall at any time be entertained by any
authority in respect of that matter under the
Central Act or, as the case may be, the Bombay
Act; and if any proceeding in respect of any
matter within the purview of this Act is
instituted under the Central Act, or as the case
may be, the Bombay Act, then no proceedings
shall at any time be entertained by the
Industrial or Labour Court under this Act."
Section 7 reads as follows:
"7. Duties of Labour Court:- It shall be the
duty of the Labour Court to decide complains
relating to unfair labour practices described in
item 1 of Schedule IV and to try offences
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
punishable under this Act."
Section 28 reads thus:
"28. Procedure for dealing with complaints
relating to unfair labour practices: -(1) Where
any person has engaged in or is engaging in any
unfair labour practice, ten any union or any
employee or any employer or any Investigating
Officer may, within ninety days of the
occurrence of such unfair labour practice, file
a complaint before the Court competent to deal
with such complaint either under section 5, or
as the case may be, under section 7, of this
Act:
Provided that, the Court may entertain a
complaint after the period of ninety days from
the date of the alleged occurrence, if good and
sufficient reasons are shown by the complainant
for the late filing of the complaint.
(2) The Court shall take a decision on every
such complaint as far as possible within a
period of six months from the date of receipt of
the complaint.
(3) On receipt of a complaint under sub-section
(1), the Court may, if it so considers
necessary, first cause an investigation into the
said complaint to be made by the Investigating
Officer, and direct that a report in the matter
may be submitted by him to the Court, within the
period specified in this direction.
(4) While investigating into any such complaint,
the Investigating Officer may visit the
undertaking, where the practice alleged is said
to have occurred, and make such enquiries as he
considers necessary. He may also make efforts
to promote settlement of the complaint.
(5) The Investigating Officer shall, after
investigating into the complaint under sub-
section (4) submit his report to the Court,
within the time specified by it, setting out the
full facts and circumstances of the case, and
the efforts made by him in setting the
complaint. The Court shall, on demand and on
payment of such fee as may be prescribed by
rules, supply a copy of the report to the
complainant and the person complained against.
(6) If, on receipt of the report of the
Investigating Officer, the Court finds that the
complaint has not been settled satisfactorily,
and that facts and circumstances of the case
require, that the matter should be further
considered by it, the Court shall proceed to
consider it, and give its decision.
(7) The decision of the Court, which shall be in
writing, shall be in the form of an order. The
order of the Court shall be final and shall not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
be called in question in any civil or criminal
court.
(8) The Court shall cause its order to be
published in such manner as may be prescribed.
The order of the Court shall become enforceable
from the date specified in the order.
(9) The Court shall forward a copy of its order
to the State Government and such officers of the
Stat e Government as may be prescribed."
Section 32 reads as hereunder:
"32. Power of Court to decide all connected
matters:- Notwithstanding anything contained in
this Act, the Court shall have the power to
decide all matters arising out of any
application or a complaint referred to it for
the decision under any of the provisions of this
Act. "
Inferentially, from the above it is sought to be asserted that
there is a statutory recognition in Section 59 as to the entitlement of
a worker, at his option or choice to have recourse to anyone of the
statutory remedies under the different Acts and therefore all and every
question relating to the redress sought including as to whether a person
is an ’employee’ can also be decided by the Courts under the Maharashtra
Act. This too general and wide assertion completely overlooks the
stipulation made, "If any proceeding in respect of any matter falling
within the purview of this Act is instituted" in the said provision.
As to what matters fall within the purview of the Act is to be found
outside Section 59 and there is no such indicator, in this regard in
Section 59 itself. That was, what has been specifically, elaborately
and analytically found dealt with in CIPLA’s case (supra) by the learned
Judges and mere non-mention of Section 59 in the judgment is no
justification to contend that they were either unaware of it or that a
relevant and necessary provision which ought to have been considered has
been overlooked, which if had been adverted to the result would or ought
to be different from the one taken, in that case. We have carefully
gone through the construction placed upon the statutory provisions
noticed and conclusions drawn as to the class or category of matters
which only would fall within the purview of the Maharashtra Act and the
necessity for any complainant to answer the description, as a condition
precedent, to be or having been treated by the employer as his
’employee’ and the relationship of employee and employer with the
employer against whom any such complaint of unfair labour practice is
made and relief therefor is sought is beyond controversy and common case
or accepted position and that we are in respectful agree with the same.
The interpretation of the relevant provisions of the Maharashtra Act
appears to be in tune with the legal sense of the words construed in the
context of the statute and the jurisdiction of the authorities
constituted thereunder. Such a construction paves way for avoiding
uncertainty as well as possible inconsistency or expression of
contradictory views when more than one group chose to avail different
forums for similar kind of relief and therefore could not be said to
have resulted in serious injustice, hardship or anomaly to warrant the
countenance of a different view. A careful, critical and analytical
scrutiny of the various provisions which consciously and conspicuously
use the words ’employee’ and ’employer’ in all the relevant provisions
would postulate the pre-existing relationship of such employee and
employer being an accepted/acceptable fact. Consequently, the question
of ousting the jurisdiction of an assumed and unfound jurisdiction to be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
otherwise existing, does not at all arise.
The common thread passing through all these judgments is that the
threshold question to be decided is whether the industrial dispute could
be raised for abolition of the contract labour system in view of the
provisions of the Maharashtra Act. What happens to an employee engaged
by the contractor if the contract made is abolished is not really
involved in the dispute. There can be no quarrel with the proposition as
contended by the appellants that the jurisdiction to decide a matter
would essentially depend upon pleadings in the plaint. But in a case
like the present one, where the fundamental fact decides the
jurisdiction to entertain the complaint itself the position would be
slightly different. In order to entertain a complaint under the
Maharashtra Act it has to be established that the claimant was an
employee of the employer against whom complaint is made, under the ID
Act. When there is no dispute about such relationship, as noted in
paragraph 9 of CILPA’s case (supra) the Maharashtra Act would have full
application. When that basic claim is disputed obviously the issue has
to be adjudicated by the forum which is competent to adjudicate. The
sine qua non for application of the concept of unfair labour practice is
the existence of a direct relationship of employer and employee. Until
that basic question is decided the forum recedes to the background in
the sense that first that question has to be got separately adjudicated.
Even if it is accepted for the sake of arguments that two forums are
available, the Court certainly can say which is the more appropriate
forum to effectively get it adjudicated and that is what has been
precisely said in the three decisions. Once the existence of contractor
is accepted, it leads to an inevitable conclusion that a relationship
exists between the contractor and the complainant. According to them,
the contract was a façade and sham one which has no real effectiveness.
As rightly observed in CIPLA’s case (supra), it is the relationship
existing by contractual arrangement which is sought to be abandoned and
negated and in its place the complainant’s claim is to the effect that
there was in reality a relationship between the employer and the
complainant directly. It is the establishment of the existence of such
an arrangement which decides the jurisdiction. That being the position,
CIPLA’s case (supra) rightly held that an industrial dispute has to be
raised before the Tribunal under the ID Act to have the issue relating
to actual nature of employment sort out. That being the position, we
find that there is no scope for re-considering CIPLA’s case (supra), the
view which really echoed the one taken about almost a decade back.
That apart, as held by a seven member Constitution Bench judgment
of this Court in Keshav Mills’s case (supra), though this Court has
inherent jurisdiction to reconsider and revise its earlier decisions, it
would at the same time be reluctant to entertain such pleas unless it is
satisfied that there are compelling and substantial reasons to do so and
not undertake such an exercise merely for the asking or that the
alternate view pressed on the subsequent occasion is more reasonable.
For the reasons stated supra, we are of the view that the decision in
CIPLA’s case (supra) was taken not only in tune with the earlier
decisions of this Court in General Labour Union (Red Flag) Bombay’s case
(supra) and Vividh Kamgar Sabha’s case (supra) but quite in accordance
with the subject of the enactment and the object which the legislature
had in view and the purpose sought to be achieved by the Maharashtra Act
and consequently, there is no scope or necessity to reconsider the
question once over again by a larger Bench.
That being the position, these appeals are without merit and
deserve dismissal. Costs made easy.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13