TUKARAM TANAJI MANDHARE Vs. RAYMOND WOOLLEN MILLS LTD

JUDGEMENT

(1.) The facts of these cases are briefly as follows. The petitioners filed complaints under section 28 read with Items l (a) , (b) , (d) and (f) of schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter referred to as the MRTU and pulp Act, before the Industrial Court/labour Court for certain reliefs claiming that they are employees of the respondent company. The respondent company in all these writ petitions has disputed the status of the employees and has contended in its written statement that there is no relationship of employer employee with any of the petitioners. The company has contended that the complainants were employed through the contractors and that the issue regarding maintainability of the complaints would have to be decided by the court. During the pendency of these complaints, the judgments in the case of (Viuidh Kamgar Sabha v. Kalyani Steel Ltd. ) , 2001 (2) Bom. C. R. (S. C. ) 324 : 2001 (2) S. C. C. 381 and in the case of (Cipla Ltd. v. Maharashtra General kamgar Union) , 2001 (2) Bom. C. R. (S. C. ) 822 : 2001 (3) S. C. C. 101 were pronounced by the Supreme Court and relying upon these decisions, an application was made by the respondent company before the Court that the complaints were liable to be dismissed as there was no employer employee relationship between it and the complainants. The Industrial Court/labour Court upheld the preliminary objection raised by the respondent company by holding that the judgments in Kalyani Steel Ltd. and Cipla Ltd (supra) were applicable to the facts involved in the complaints and, therefore, the complaints deserve to be dismissed. The complaints were accordingly dismissed. Thereafter the petitioners filed the present writ petitions challenging the dismissal of the complaints. In the meantime by judgment in the case of (Sarva Shramik sangh v. Indian Smelting and Refining Co. Ltd. ) , (2003) 10 S. C. C. 455 the Supreme court has reiterated the view taken in Kalyani Steel Ltd and Cipla Ltd. The learned Single Judge (Nishita Mhatre, J. ) before whom the writ petitions came up for hearing noted that all these cases decided by the Supreme Court were in respect of industries governed by the Industrial Disputes Act, 1947 whereas present petitions relate to industry covered by the provisions of the bombay Industrial Relations Act, 1946, hereinafter referred to as the BIR Act. The learned Single Judge noted that in the case of (Dattatraya Kashinath and ors v. Chhatrapati Sahakari Sakhar Karkhana Ltd and ors) , 1996 (11) L. L. J. 169 and in (Sakhar Kamgar Unionv. Shri Chhatrapati Rajaram Sahakari Sakhar karkhana Ltd and ors) , 1996 (2) Bom. C. R. 49 : 1996 (11) C. L. R. 67 Srikrishna, j. , as he then was, has held that conjoint reading of section 3 (5) of the MRTU and PULP Act and section 3 (13) and 3 (14) of the BIR Act would indicate that even a person employed through a contractor in an industry governed by the bir Act is regarded as an employee under the MRTU and PULP Act and the complaint filed by such an employee is maintainable under the MRTU and pulp Act. The learned Single Judge however, felt that another learned Single judge of this Court (Khandeparkar, J. ) in the case of (Nagraj Gowda and ors v. Tatahydro Electric Power Supply Co Ltd, Bombay and ors. ) , 2004 (1) Bom. C. R. (O. O. C. J. ) 201 : 2003 (111) C. L. R. 358 has expressed a contrary view considering the judgments of the Supreme Court in Kalyani Steel Ltd, Cipla Ltd and sarva Shramik Sanghas also the judgment of the Division Bench of this Court in the case of (Hindustan Coca Cola Bottling Pvt Ltd v. Bharatiya Kamgar Sena) , 2002 (3) Bom. C. R. (O. O. C. J. ) 129 : 2001 (111) C. L. R. 1025. The learned Single judge therefore decided to make a reference to a larger Bench in view of what is regarded as conflicting decisions of the learned Single Judges of this Court.

(2.) The questions, which have been referred to the Full Bench, have been formulated as under: 1) Whether a person who is employed with a contractor who undertakes contracts for the execution of any of the whole of the work or any part of the work which is ordinarily work of the undertaking is an employee within the meaning of section 3 (5) of the MRTU and PULP Act 2) Whether a complaint filed under the MRTU and PULP Act by an employee as defined under section 3 (13) of the Bombay Industrial Relations Act, is maintainable although no direct relationship of employer employee exists between him and the principal employer 3) Whether a complaint filed under the MRTU and PULP Act by employees under section 3 (13) of the BIR Act can be dismissed if the employer claims that they are not his direct employees but are employed through a contractor, in view of the judgments of the Cipla (supra) , Kalyani steels Ltd (supra) and Sarva Shramik Sangh v. Indian Smelting and Refining co. Ltd. (supra)

(3.) In order to appreciate these questions it is necessary to refer to relevant provisions of the MRTU and PULP Act and BIR Act. A complaint filed under the MRTU and PULP Act is maintainable at the instance of an employee. The term 'employee' is defined in section 3 (5) of the Act as under:"3. In this Act, unless the context requires otherwise. . . 5) "employee" in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in Clause (13) of section 3 of the Bombay Act; and in any other case, means a workman as defined in Clause (s) of the section 2 of the Central Act. "