Writ Petition No. 657 of 2004. Case: Uni Klinger Ltd. Vs Subhash Baburao Kambale and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 657 of 2004 |
| Counsel | For Appellant: V.N. Upadhye, Learned Advocate and For Respondents: P.L. Shahane, Learned Advocate |
| Judges | R. V. Ghuge, J. |
| Issue | Industrial Disputes Act, 1947 - Sections 32, 33C(2); Maharashtra Recognition of Trade Union & Prevention of Unfair Labour Practices Act, 1971 - Section 28 |
| Judgement Date | January 29, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
R. V. Ghuge, J.
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This petition was admitted by this Court by order dated 13.08.2004. Prior thereto, by an order dated 09.02.2004, ad-interim relief in terms of prayer clause (C) was granted, which was confirmed while admitting the petition. Prayer clause (C) reads as under:-
"Grant stay to the operation and execution of the impugned judgment and order dated 28/08/2003 passed by the Learned Member, Industrial Court, Ahmednagar in Complaint (ULP) Nos. 222, 223, 224 and 225 of 1991 marked at Exhibit "C" to the petition during the pendency of the petition."
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The order dated 13.08.2004 reads as under:-
"Heard Shri V.N. Upadhye, learned counsel for the petitioner and Shri Pradeep Shahane, learned counsel for the respondent Nos. 1 to 4. Respondent No. 5, though served, absent.
Rule.
Interim stay in terms of clause (4) of the order dated 28/08/2003, impugned in this petition and status quo in respect of employment, as on today."
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It is undisputed that except Respondent No. 1 in this petition, namely, Shri Subhash Baburao Kambale, the remaining three employees Babulal Shaikh, Madhav Tatyaji and Ashok Shinde are not in employment from 1999 during the pendency of the complaints.
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The Petitioner/ Employer is aggrieved by the judgment of the Industrial Court dated 28.08.2003 delivered in Complaint (ULP) Nos. 222 of 1191 upto 225 of 1991 filed by Respondent Nos. 1 to 4 respectively. The said complaints were allowed and the Petitioner was directed to grant status and benefits of permanency to Respondent Nos. 1 to 4/ original Complainants from the date of filing of the complaints.
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The Petitioner submits that there was no Employer-Employee relationship between the Petitioner and the Respondents/ Employees on the date they filed the complaints. Paragraph 3 of the complaints is pointed out to indicate that these four Employees were working from 1986 on the premises of the Petitioner, however, through the labour contractor.
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Attention is drawn to paragraph 5 of the Written Statement filed by the Petitioner to contend that the Respondents/ Employees were deployed by a contractor and there was no privity of contract/ relationship between the Petitioner and these four employees.
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Shri Upadhye, learned Advocate for the Petitioner, then draws my attention to the cross-examination of the Complainants/ Employees to indicate that they admitted therein that they were deployed through the labour contractor. He, therefore, submits that these factors would, therefore, clearly indicate that these four employees were admittedly the contract labourers and they were not directly appointed by the Petitioner- Principal Employer.
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He places reliance upon the judgment of the Guwahati High Court in the case of Jatin Rajkonwar and others Vs. The Management of Oil and Natural Gas Corporation Ltd., and others, 2015 LLR 1170 to contend that the Employer-Employee relationship has to be proved by the workman. Completion of 240 days in continuous employment has to be proved by the workman.
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He also places reliance upon the judgments of the Apex Court in the cases of Vividh Kamgar Sabha Vs. Kalyani Steels Limited, reported in 2001[1] CLR, page 532 and Cipla Ltd., Vs. Maharashtra General Kamgar Union, 2001(2) Bom.C.R. (S.C.) 822: (2001) 2 SCC 381. He specifically relies upon the observations of the Apex Court in paragraph 5 of Kalyani Steels Limited (supra) and in paragraphs 7, 8 and 9 of Cipla Limited (supra).
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Shri Shahane, learned Advocate for Respondent Nos. 1 to 4/ Employees, submits that though they were working directly through the Principal Employer on core activities, they were made to believe that Respondent No. 5 herein was their Labour Contractor. Since they were working with the Principal Employer on the main activities, they realized that they were being deprived of regularization by the Principal Employer. Therefore, they preferred the complaints before the Industrial Court at Ahmednagar claiming regularization in the service of the Petitioner.
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Shri Shahane clarifies that on the date of filing of the complaints by the Respondents/ Employees, the judgments of the Apex Court in the cases of Kalyani Steel and Cipla Limited (supra) as well as in the case of General Labour Union (Redflag) vs. Ahmedabad MIT, 1995 Supplement (1) SCC 175, were not delivered. He, therefore, submits that the Industrial Court invoked it's jurisdiction and the Respondents/ Employees continued in employment with the Petitioner.
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Shri Shahane submits that the Respondents/ Employees did not suppress any fact from the Industrial Court. They pointed out that Respondent No. 5 was only indicated as a labour contractor. However, the labourers were engaged directly by the Petitioner/ Management. In the Written Statement, the Petitioner only denied the Employer-Employee relationship and claimed that the Respondents/ Employees were engaged through a labour contractor.
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He further submits that the recording of oral evidence commenced before the Industrial Court sometime in the year 2007. Not a single document for the period 1985 till 1999 was produced by the Petitioner on record before the Industrial Court to support its contention that the Respondents/ Employees were working through the labour contractor and they were working on the garden activities.
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He submits that it is a matter of record and is evident from the record and proceedings available before the Court that all the documents that the Petitioner produced, were from the year 2000 onwards. He, therefore, submits that the only inference that can be drawn is that the Petitioner manufactured the documents from the year 2000 onwards only to mislead the Industrial Court on the ground that there was no Employer-Employee relationship.
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He further submits that one license under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as "the CLRA Act, 1970") was produced by Respondent No. 5/ Contractor which was dated 30.10.1990. However, the said contractor was exposed by the fact that the said license was not with regard to the Petitioner Company, but was with regard to a totally different company which was neither party to the proceedings, nor was it subject matter of the litigation.
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He further submits that from the year 2000 onwards, the Petitioner surreptitiously converted the Respondents/ Employees on paper as contract labourers and started maintaining the attendance record and payment record through Respondent No. 5/ Contractor from the year 2000 onwards. The provident fund record was also created through Respondent No. 5 from the year 2000 only to create a make believe picture that the original Complainants were contract labourers and hence, the complaints would not be maintainable in the light of the judgments of the Apex Court in the cases of Redflag and Cipla Limited (supra).
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He further submits that whatever documents that were prepared by the Petitioner were keeping in view the judgments of the Apex Court in the cases of Kalyani Steel and Cipla Limited (supra) only to defeat the claims of the Complainants/ Employees and oust the jurisdiction of the Industrial Court. He, therefore, submits that this petition deserves to be dismissed.
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Respondent No. 5 is served and has caused an appearance through an Advocate. None appeared for Respondent No. 5 on 28.01.2016 and even today. However, Shri Upadhye submits that Respondent No. 5 supports the case of the Petitioner.
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I have considered the submissions of the learned Advocates as have been recorded herein above.
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It needs to be noted that this...
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