BIRLA COTSYN INDIA LTD Vs. TARACHAND

JUDGEMENT

(1.) Challenge in all this three writ petitions is to identical orders passed by Labour Court appeal by Industrial Court in revisions. All complaints are under Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ULP Act). Contention of Employer Petitioner in short in all matters is Labour Court or Industrial Court could not have gone into the question of disputed status of respective respondent no.1 in all these Writ Petitions as these courts under Section 28 exercise summary jurisdiction. Hence, only when relationship of employer and employee is either undisputed or indisputable, the jurisdiction can be exercised. Looking to the nature of controversy and at the request of parties, matters have been heard finally at admission stage by making Rule returnable forthwith.

(2.) Respondent no.1 in Writ Petition No. 5318/2009 has filed ULP complaint 26/2008 challenging his oral termination dated 22/7/2008 on 19/8/2008. Petitioner / Employer filed written statement and also an application at Exhibit 10 to dismiss that complaint as not tenable stating that employee was working as finishing supervisor/shiftincharge in managerial and administrative capacity at the time of his termination. Labour Court passed an order on this objection on 03.03.2009 and framed preliminary issue about maintainability of complaint. It recorded evidence on that issue and passed order holding complaint to be maintainable. It held that employee was working in supervisory capacity but his basic pay was only Rs. 5852/i. e. less than Rs. 6500/per month and hence, he did not go out of definition of employee as given in Section 3 (13) of Bombay Industrial Relations Act, 1947; hereinafter referred to as BIR Act. Petitioner then challenged that order in revision under section 44 of ULP Act in ULP Revision No.24/2009. On 12/8/2009 Industrial Court dismissed that revision. Labour Court thereafter on 6/10/2009 passed order below Exhibit 2 and granted relief of interim reinstatement with direction to pay 50% back wages from the date of termination till his reinstatement . These orders dated 21/4/2009 and 6/10/2009 of Labour Court and order dated 12/8/2009 of Industrial Court are questioned in Writ Petition No. 5318/2009. Respondent no. 1 in Writ Petition No.5317/2009 filed ULP complaint 20/2008 challenging oral termination on 23/7/2008. Similar type of application at Exhibit 16 to dismiss his ULP complaint was preferred by Employer and on 3/3/2009, Labour Court framed preliminary issue. After appreciating evidence of parties, on the 21/4/2009 it rejected that application holding that there was no evidence that duties of employee were either managerial or supervisory and his basic pay was Rs. 5446/i. e. less than Rs. 6500/per month. Employer challenge this in ULP Revision No. 25/2009 and by common judgment dated 12/8/2009 that revision came to be rejected. Thereafter on 6/10/2009, Labour Court allowed prayer of employee for interim relief and directed employer to reinstate him with further direction to pay 50% back wages from termination till reinstatement. These three orders form subject matter of challenge in Writ Petition No. 5317/2009. Respondent no. 1/Employee in Writ Petition No. 5319/2009 filed ULP Complaint No.28/2008 alleging oral termination on 1/9/2008. Petitioner raised similar objection then by filing application at Exhibit 11 and vide order dated 3/3/2009, Labour Court framed preliminary issue. On 21/4/2009 it passed an order rejecting application at Exhibit 11 holding that employee was not performing administrative or supervisory function. It also found that his basic pay was Rs. 5754/only. ULP Revision No. 24/2009 preferred by Employer was dismissed by Industrial Court by common judgment dated 12/8/2009 mentioned above. Thereafter on 6/10/2009, Labour Coat granted employee relief of interim reinstatement with further direction to pay him 50% back wages from the date of termination till his reinstatement. These three orders are challenge by Employer in Writ Petition No. 5319/2009.

(3.) Shri V.R. Thakur, learned Counsel for Employer/Petitioner has contended that basically three issues arise for determination in these matters. Various judgments cited before Labour Court or Industrial Court to show summary nature of its jurisdiction have not been appreciated correctly and hence, when status of respondent no.1 as employee is in dispute, Courts could not have embarked upon enquiry to determine that status. After noticing that the objection was not raised malafide, ULP Complains ought to have been dismissed. His contention is presence of independent contractor is not essential and restriction is upon power of Court. He has invited attention to various judgments to urge that finding about limited jurisdiction recorded there is not on account of presence of contractor. He also cited some precedents where similar restriction is found even in absence of contractor. In view of this line of arguments, I find it appropriate to consider the same along with relevant judgments . His next contention is "basic pay" as envisaged in section 3 (13) of BIR Act also includes contribution to provident fund by employer and bonus paid every year. He is taking support from definition of "wages" in Section 3 (39) of BIR Act. He has invited attention to salary certificate dated 3/3/2009 of the respondent no.1 in Writ Petition No. 5318/2009 to show that if employers PF contribution of Rs.702/and proportionate monthly bonus of Rs.825/is added to his basic, it exceeds ceiling of Rs. 6500/and said respondent no.1 travels out of definition of "employee".