M G BHIDE Vs. BRITANNIA INDUSTRIES LTD

JUDGEMENT

(1.) THIS petition though filed under Articles 226 and 227 of the Constitution of India, prays for quashing and setting aside the judgment and order dated 25-4-1996 passed by the learned Member of the Industrial Court at pune in Complaint (ULP) No. 416 of 1996 and it further prays for a declaration that the petitioner was the workman of the respondent-company and for a further declaration that he was a permanent employee entitled for a consequential benefits of wages and other allowances. If regards be had to the reliefs prayed for and the law laid down in Lokmat Newspapers Private Limited vs. Shankarprasad, air 1999 SC 2423, it is clear that the petition is one under Article 227 of the constitution. Brief facts leading to this petition could be stated as under : complaint (ULP) No. 416 of 1992 came to be filed by the petitioner before the Industrial Court at Pune under Item Nos. 5, 6, 9 and 10 of Schedule IV of the mrtu and PULP Act, 1971 (the Act for short) praying for declaration that the respondent No. 1 company had engaged in acts of unfair labour practices and that the complainant was permanent employee of respondent No. 1 from 1-7-1997. He had claimed that he was appointed as a salesman by the respondent No. 1 on 1-7-1986 but no appointment order was issued to him, though he was in continuous employment till the date of filing of the complaint on a monthly salary of Rs. 1200/- and other allowances to defray the expenses of conveyance. He further claimed that he was working at Pune under the strict control and supervision of the respondent No. 1 and he was required to visit various shops in the areas allotted and to book the orders. He alleged that his salary was paid by the first respondent through the second respondent who was the agent of the first respondent company. He claimed that he was entitled for permanency from 1-7-1987 under the Model Standing Orders and by not doing so the respondent No. 1 had engaged in acts of unfair labour practices under Item Nos. 9 and 10 of schedule IV of the Act. By denying the payment of other benefits available to a salesman, the company had engaged in acts of unfair labour practice under Item 6 of the Schedule IV of the said Act. The other employees working as salesmen have been given the benefits of D. A. , H. R. A. and L. T. C. etc. under the various settlements. The respondent No. 1 discriminated the complainant and thus showed partiality and favouritism to other employees regardless of merits. On this count, unfair labour practices under Item No. 5 of Schedule IV of the Act, was alleged.

(2.) THE respondent Nos. 1 and 2 filed separate written statements and opposed the complaint. The respondent No. 1 had raised the following issues in its written statement.

(3.) MRS. Doshi, the learned counsel for the petitioner at the threshold referred to the written statement filed by the respondents and the contradictory oral evidence as recorded through their witnesses inasmuch as in its written statement the respondent No. 1 had accepted that the complainant had worked for it for sometime but has supplementary and not as a regular employee. Whereas, in the oral evidence before the Industrial Court the said respondent No. 1 took the plea that the complainant was an employee of respondent No. 2. On the other hand, respondent No. 2 in its written statement denied that the complainant was working for it but its witness before the Industrial Court stated that the complainant was working for the said Agency from 1989 and he started working with Cadburry since October, 1992 without tendering his resignation from the employment of respondent No. 2. By referring to the documents placed on record vide lists at Exh. U-4- and U-13-A, she submitted that these documents were duly proved and they went to establish the employee-employer relationship between the complainant and respondent No. 1. As per the learned counsel for the petitioner, the Industrial Court fell in gross errors in appreciating the evidence on record and it ought to have held that the complainant was the employee of respondent No. 1 and not respondent No. 2. Once this conclusion would have been recorded, the consequent order of granting reliefs as available to the employees of the respondent No. 1 would flow. In short, the petitioner contends that the evidence on record before the Industrial Court went to prove that he was an employee of respondent No. 1 and therefore, he was entitled for a declaration that he was a permanent employee eligible for the consequential benefits as available to the regular salesman of respondent No. 1.