Amar Bhaskar Vernekar and Ors. Vs Empire Industries Ltd.and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.2894 OF 2002

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 Amar Bhaskar Vernekar & Ors. : Petitioners

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 V/s.

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 Empire Industries Ltd. & Ors. : Respondents

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 Ms Gayatri Singh for the petitioners.

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 Mr.K.M.Naik for respondent no.1.

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 Mr.Kiran Bapat with Mr.T.R.Yadav for respondent no.5.

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 Mr.M.S.Paranjape for respondent no.6.

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 CORAM : S.A. BOBDE, J.

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 DATE : SEPTEMBER 22 & 23, 2008.
 P.C.

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 1. This is a petition challenging the order of the

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 Industrial Court dated 4.3.2002 in complaint under the
 MRTU & PULP Act, 1971. The Industrial Court has held that
 there is no unfair labour practice under Item 9 of
 Schedule IV of the MRTU & PULP Act and in particular it
 was not necessary for the respondent no.2, Empire Dyeing,
 to seek protection under section 25-O of the Industrial
 Disputes Act because the number of employees were less
 than 100.

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 2. The issue that arises for consideration is whether the

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 finding of the Industrial Court that it has no

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 jurisdiction to decide the matter since the status of the
 workmen alleged to be workmen of the respondent no.2,
 Empire Dyeing, was denied as such by the employer who had
 pleaded that they were workmen of the contractor i.e.
 Maruti Tare. It was contended on behalf of the workmen
 that 15 workmen whose names appear in exh.A-3 were, in
 fact, direct employees of the principal employer because
 the respondent no.6, Maruti Tare, was the contractor
 employed by the respondent no.2. The learned Industrial
 Court has observed vide paragraph 54 that exh.C-20 is a
 written contract given to him by the company i.e. Empire
 Industries. Thereafter, in paragraph 57 the Industrial
 Court has observed that the respondent no.2, Empire
 Dyeing, has denied that apart from the 15 contract workmen
 referred to above, there is an issue of 41 workmen who are
 denied by Empire Dyeing to be their workmen. These 41
 employees, according to the respondent no.2, Empire
 Dyeing, are employees of M/s.Rendil. Having regard to the
 law laid down by the Supreme Court in Vividh Kamgar Sabha

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Kalyani Steels Ltd. (2001 AIR SCW 170) and in Cipla
Ltd. v. Maharashtra General Kamgar Union & Ors. (2001 I

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 CLR 754), the Industrial Court held that the complaint is
 not maintainable. In Cipla Ltd.’s case (supra), the
 Supreme Court observed as follows:-

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 "7. But one thing is clear - if the
 employees are working under a contract
 covered by the Contract Labour (Regulation
 and Abolition) Act then it is clear that
 the Labour Court or the industrial
 adjudicating authorities cannot have any
 jurisdiction to deal with the matter as it
 falls within the province of an appropriate
 Government to abolish the same. If the
 case put forth by the workmen is that they
 have been directly employed by the
 appellant-company but the contract itself
 is a camouflage and, therefore, needs to be
 adjudicated is a matter which can be gone
 into by appropriate Industrial Tribunal or
 Labour Court. Such question cannot be
 examined by the Labour Court or the
 Industrial Court constituted under the Act.
 The object of the enactment is, amongst
 other aspects, enforcing provisions
 relating to unfair labour practices. If
 that is so, unless it is undisputed or
 indisputable that there is
 employer-employee relationship between the
 parties, the question of unfair practice
 cannot be inquired into at all. The
 respondent union came to the Labour Court
 with a complainant that the workmen are
 engaged by the appellant through the
 contractor and though that is ostensible
 relationship the true relationship is one
 of master and servant between the appellant
 and the workmen in question. By this
 process, the workmen repudiate their
 relationship with the contractor under whom
 they are employed but claim relationship of
 an employee under the appellant. That
 exercise of repudiation of the contract
 with one and establishment of a legal
 relationship with another can be done only
 in a regular Industrial Tribunal/Court
 under the I.D. Act."

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 3. In Vividh Kamgar Sabha’s case (supra), the Supreme
 Court observed as follows:-

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 "4. At this stage it must be mentioned
 that this Court has also in the case of
 Central Labour Union (Red Flag) Bombay v.
 Ahmedabad Mfg. & Calico Printing Co. Ltd.
 & Ors. reported in 1995 II LLJ 765, held
 that where the workmen have not been
 accepted by the company to be its
 employees, then no complaint would lie
 under the MRTU & PULP Act. We are in full
 agreement with the abovementioned view.

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 5. The provisions of MRTU & PULP Act can
 only be enforced by persons who admittedly
 are workmen. If there is dispute as to
 whether the employees are employees of the
 company, then that dispute must first be
 got resolved by raising a dispute before
 the appropriate forum. It is only after
 the status as a workmen is established in
 an appropriate forum that a complaint could
 be made under the provisions of MRTU & PULP
 Act."

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 4. Ms Singh, the learned counsel for the petitioners,
 relied on the judgement of a Full Bench of this Court in
Tukaram Tanaji Mandhare & Anr. v. Raymond Woollen Mills
Ltd. & Ors. (2006 I CLR 126) for the proposition that
 where the industry is covered by the BIR Act, merely
 because the employer takes a plea that the workmen are
 employed by his contractor, the complaint under the ULP
 Act cannot be dismissed as not tenable. The Full Bench
 has arrived at this view on the basis of the definition
 of "employee" and "employer" in sections 3(13) and (14)
 of the B.I.F.R Act. In the present case, however, the
 ratio would have no application since the plea of the
 employer is not that the complaint is barred because the
 workmen are employed by a contractor. The plea is that

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 the workmen are not employed by them at all and are
 workmen of one Maruti Tare, who is the contractor of
 Empire Industries.

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 5. In this view of the matter, it is clear that the
 respondent no.2, Empire Dyeing, had denied the
 relationship of employer and employee with the workmen
 alleged by the petitioner Union to be their workmen.
 This issue could not have been decided by the Industrial
 Court who has rightly dismissed the application as not
 maintainable, in accordance with law.

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 6. In this view of the matter, there is no merit in the
 Writ Petition which is hereby dismissed.

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 S.A. BOBDE, J.

Amar Bhaskar Vernekar and Ors. v. Empire Industries Ltd.and Ors.

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Amar Bhaskar Vernekar and Ors. v. Empire Industries Ltd.and Ors.

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