MAHINDRA AND MAHINDRA LTD Vs. GENERAL EMPLOYEES UNION

JUDGEMENT

(1.) The Petitioner filed an application in a complaint instituted by the first Respondent of unfair labour practices under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("the Act"). Besides the Petitioner, the Third Respondent which is an Employees Co-operative Canteen Society has been impleaded as a party to the proceedings in the Industrial Court. The relief which is sought in the complaint is a direction to the petitioner to treat the workmen engaged in the canteen as regular and permanent workmen of the Petitioner with retrospective effect from the date on which they joined service and to extend benefits to them at par with similarly situated workmen. The maintainability of the complaint was questioned in the application filed by the Petitioner on the ground that there is no relationship of employer and employee between the workmen of the Canteen and the Petitioner herein. A complaint under the Act is not maintainable in the absence of a relationship of employer and the employee in view of the Judgments of the Supreme Court in Vividh Kamgar Sabha V/s. Kalyani Steels Ltd. [2001 CLR 532 (S.C.)], Cipla Ltd. V/s. Maharashtra General Kamgar Union [2001 I CLR 754 (S.C.)] and Sarva Shramik Sangh V/s. Indian Smelting & Refining Co. Ltd. [(2003) 10 Supreme Court 455] Cases,455]. The Petitioner prayed for the rejection of the complaint since the canteen employees on whose behalf the complaint was moved have been engaged by a Co-operative Society. The Industrial Court by its order dated 28th June, 2006 dismissed the said application. A Review Application was also rejected by an order dated 27th March, 2003. That led to the institution of these proceedings.

(2.) The first Respondent has filed a complaint under Items 5 & 9 of Schedule IV of the Act. The complaint relates to the workmen engaged in the Canteen at the Automotive unit of the Petitioner at Kandivli. The basic averment is that, according to the first Respondent, the workmen are in fact employees of the Petitioner and not of the Co- operative Canteen Society, which has been incorporated in order to manage the affairs in the Canteen. The allegation in the complaint is that the Petitioner and the Co- operative Society have colluded to show that the workmen are employees of the Society. The complainant Union alleges that the workmen are supervised by Officers of the Company and perform work of a perennial nature. According to the complainant, the Co-operative Society is only a camouflage. The averment in paragraph 2(e) of the complaint is to the following effect:

(3.) The law in regard to the maintainability of a complaint under the M.R.T.U. & P.U.L.P., 1971 is settled. The Act requires for the assumption of jurisdiction by the Industrial Court, the existence of a relationship of employer and employee. In the absence of a relationship of employer and employee, the Industrial Court does not have jurisdiction to entertain a complaint of unfair labour practice. When a complainant alleges that a contractor or an intermediary acting between the principal employer and the workmen is a camouflage or sham, that will require adjudication by an appropriate forum in a reference under the Industrial Disputes Act, 1947. Only when a direct relationship of employer and employee is established in a complaint under the provisions of the M.R.T.U. & P.U.L.P. Act, 1971 maintainable.