SHABARI V NAWALKAR Vs. JUHU VILE PARLE GYMKHANA

JUDGEMENT

(1.) THE first respondent is a club, inter alia providing sports facilities to its members. The petitioner was engaged in June 1985 by a Contractor with whom the first respondent had an agreement for carrying out the operations in relation to the maintenance of the Swimming Pool. The petitioner was engaged as a Swimming Pool Attendant. According to the petitioner, she had made an application for employment on 7th June, 1985 since she was informed by the first respondent to apply to the Contractor for being engaged in service. The services of the petitioner were orally terminated on 8th May, 1989. A reference for adjudication under section 10 of the Industrial Disputes Act, 1947 was made before the First Labour Court at Mumbai by the appropriate Government. The Labour Court by its Award dated 9th December, 1990, dismissed the reference. The Labour Court held that the petitioner was not an employee of the first respondent and is not entitled to any relief as against the first respondent.

(2.) WHEN the present petition came up for hearing, the learned Counsel appearing on behalf of the petitioner submitted that from the evidence on record and the statement of the witness who deposed on behalf of the first respondent before the Labour Court, it is clear that the first respondent had been registered under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, only in December 1985. In June 1985, at the time when the petitioner was employed, the first respondent had no registration under the Act. Similarly it was sought to be submitted that the Contractor did not have a licence. In so far as the licence of the Contractor is concerned, the learned Counsel appearing on behalf of the first respondent submitted that since the Contractor engaged only 10-12 employees (the number of employees being referred to in para 5 of the Notes of Evidence of the first respondents witness), he did not require any licence under the provisions of the Act. The learned Counsel appearing on behalf of the petitioner, however, submitted that in any event the first respondent required registration for engaging the Contractor and in the absence of the registration, a contract will have to be disregarded and the petitioner must be held to be an employee of the first respondent. Reliance was placed on the judgment of the Supreme Court in (Secretary, Haryana State Electricity Board v. Suresh), A. I. R. 1999 S. C. 1160, particularly on para 19 of the judgment. The learned Counsel appearing for the contesting parties have fairly stated before the Court that this point was not raised before the Labour Court, nor indeed has it been squarely taken in the writ petition before this Court. In the circumstances, it would be only appropriate and proper that the matter be remanded back to the Labour Court for determination of the said question. The case is accordingly remanded, by consent. The Labour Court is directed to hear and dispose of the matter on remand within a period of 3 months from today. The parties will be at liberty to produce available material and documents before the Labour Court and it would be open to the Labour Court to consider any application that would be moved by the parties for adducing additional evidence limited to the aforesaid question. In the circumstances, the Award of the Labour Court is quashed and set aside. The Labour Court shall consider the matter afresh in the light of the contention which has now been sought to be urged on behalf of the petitioner. The writ petition is accordingly allowed. The impugned award of the Labour Court is quashed and set aside. Rule made absolute. In the circumstances, there shall be no order as to costs. Petition allowed.