Dismissed

Milind Nandkumar Kulkarni and Ors. v. Kirloskar Ebara Pumps Ltd.

Bombay HC2 Apr 2024CAW/621/2006

Case brief

AI extract

What is this about?

Contract workers challenged Labour Court awards rejecting their references for reinstatement against the principal employer on the ground that no employer-employee relationship existed with it and the contractors were necessary parties. The High Court found the workmen failed the tests for such relationship, including admissions in cross-examination, and dismissed both petitions.

What did the court decide?

None granted; writ petitions dismissed without costs, rule discharged, civil and interim applications disposed.

Milind Nandkumar Kulkarni and Ors. Vs… — Labour and Industrial Disputes | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.4701 OF 2005 WITH CIVIL APPLICATION NO.621 OF 2006 IN

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WRIT PETITION NO.4701 OF 2005

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1 Milind Nandkumar Kulkarni

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2 Shahaji Shankar Farane

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3 Vijay Ramchandra Nikam

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4 Avinash Sajerao Mohite

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5 Niranjan Maruti Kadam

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6 Jotiram Baburao Tatugade

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7 Jagannath Akaram Patil

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8 Rajahmad Badshah Jamdar

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9 Hanamand Ramchandra More

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10 Chandrakant Sarjerao Patil

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11 Makaran Shamrao Joglekar

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12 Sampat Mahadeo Sawant

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All resideing at -
C/o Chandrakant Sarjerao Patil
R/At Post - Palus Andhali Road,
Taluka Palus, District Sangli.

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....Petitioners/Applicants

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V/S

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Kirloskar Ebara Pumps Ltd.
Sawantpur Vasahat Kirloskar Wadi,
Taluka Palus, District Sangli ....Respondent

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WITH INTERIM APPLICATION NO.16330 OF 2023 IN

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WRIT PETITION NO.4701 OF 2005

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1 Vaishali Shahajirao Pharne Aged 40 years, Occ. Housewife

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2 Shekhar Shahajirao Pharne Aged 21 years, Occ. --Both r/o Nagthane, Taluka Palus, District Sangli. ....Applicants

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IN THE MATTER BETWEEN:

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1 Milind Nandkumar Kulkarni

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2 Shahaji Shankar Farne

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3 Vijay Ramchandra Nikam

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4 Avinash Sajerao Mohite

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5 Niranjan Maruti Kadam

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6 Jotiram Baburao Tatugade

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7 Jagannath Akaram Patil

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8 Rajahmad Badshah Jamdar

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9 Hanamand Ramchandra More

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10 Chandrakant Sarjerao Patil

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11 Makaram Shamrao Joglekar

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12 Sampat Mahadeo Sawant

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All resideing at -
C/o Chandrakant Sarjerao Patil
R/At Post - Palus Andhali Road,
Taluka Palus, District Sangli. ....Petitioners

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V/S

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Kirloskar Ebara Pumps Ltd.
Sawantpur Vasahat Kirloskar Wadi,
Taluka Palus, District Sangli ....Respondent

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WITH WRIT PETITION NO.4702 OF 2005 WITH

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CIVIL APPLICATION NO.648 OF 2006 IN

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WRIT PETITION NO.4702 OF 2005

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1 Suresh Govind Dhokale

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2 Jagannath Balu Hiragade

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3 Ashok Dnyandeo Chavan,

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4 Vilas Bhimrao Patil

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5 Baban Sadashiv Khot

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6 Vishnu Ishwara Mane

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7 Ravindra Mahadev Todkar

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8 Atul Shivaji Shinde

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9 Sandeep Bhagwan Kamble

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All R/at
C/o Atul Shivaji Shinde
At Post - Palus, Taluka Palus,
District Sangli. ....Petitioners

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V/S

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Kirloskar Ebara Pumps Ltd.
Sawantpur Vasahat Kirloskar Wadi,
Taluka Palus, District Sangli. ....Respondent

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Ms. Seema Sarnaik for the Petitioners.

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Mr. Kiran S. Bapat, Senior Advocate i/b Mr. Gaurav S. Gawande for
Respondent.

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CORAM: SANDEEP V. MARNE, J.
RESERVED ON : 28 MARCH 2024.
PRONOUNCED ON : 02 APRIL 2024.

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JUDGMENT:

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1 These two Petitions are filed by contract workers of Kirloskar Ebara Pumps Ltd. challenging the common Award dated 6 November 2004 passed by the Presiding Officer, Labour Court, Sangli, rejecting the respective

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References by holding that there is no employer-employee relationship
between Petitioners and the Respondent and further holding that the
respective contractors of the Petitioners were necessary parties to the
References, in whose absence the References could not be adjudicated. The
workers involved in Writ Petition No.4701 of 2005 were contract workers of
M/s. Shree Datta Agencies, whereas the workers involved in Writ Petition
No.4702 of 2005 were engaged by M/s. Allied Engineering Services. The
workers however did not implead the said contractors nor sought any relief
against them and therefore the Labour Court has held that adjudication of
References relating to termination of the workers against Respondent-
Kirloskar Ebara Pumps Ltd. was impermissible on account of absence of
employer-employee relationship. The References are therefore held to be not
maintainable and are accordingly rejected.

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2. The factual background of the case is that – Respondent-Kirloskar
Ebara Pumps Limited is engaged in manufacture and sale of pumps. It has its
Head Office at Pune and factory at Sawantpur Vasahat, Kirloskarwadi,
District Sangli. It is the case of the Petitioners that they were engaged by the
Respondent since the year 1995 for performing various jobs in machine and
assembly sections and that they performed work of perennial nature
completing more than 240 days of service in each calendar year. That they
were falsely shown to have been engaged through contractors even though the
Respondent-Company used to directly control their service conditions as well
as allotting work to them and supervising their work. It is their case that
Petitioners in Writ Petition No.4701 of 2005 were illegally shown as workers

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of contractor M/s. Shree Datta Agencies whereas the Petitioners in Writ
Petition No.4702 of 2005 were shown as workers engaged by the contractor
M/s. Allied Engineering Services.

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3. Since the workers were denied benefit of permanency, Complaint
(ULP) No.699 of 2001 was filed before the Industrial Court, Kolhapur
seeking permanency. In that Complaint, interim order was passed on 21 June
2001 directing the Respondent to maintain status quo with regard to services
of the Petitioners. The Interim Application for stay was however rejected by
Industrial Court, Kolhapur by order dated 27 August 2001. Immediately
thereafter services of Petitioners were terminated by Respondent-Company
on 29 August 2001. Later, the Industrial Court dismissed the Complaint
(ULP) No.699 of 2001 holding that there was no employer-employee
relationship between the Petitioners and Respondent.

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4. Aggrieved by the terminations effected on 29 August 2001, Petitioners
individually raised demands before Conciliation Officer under the Industrial
Disputes Act 1947. Upon failure of the conciliation proceedings, reference
order was made by the appropriate Government about termination and
reinstatement of Petitioners to Labour Court, Sangli. Petitioners accordingly
filed their statements of claim before the Labour Court, Sangli. Petitioners
also filed Interim Applications for seeking interim stay on termination.
Respondent-Company resisted both by filing Reply to the Interim
Applications as well as Written Statement to the Statements of Claim.
Petitioners examined themselves as witnesses and the Respondent-Company
also examined Mr. Anand Gumaste as its witness.

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5. After considering the pleadings and evidence on record, the Labour
Court delivered two separate Awards on 6 November 2004 and held that
there was absence of employer-employee relationship between the Petitioners
and Respondent-Company. It further held that the contractors Shree Datta
Agencies and M/s. Allied Engineering Services were necessary parties, in
whose absence, references could not be decided. All the references were
therefore treated as not maintainable. This is how the references initiated at
the behest of the Petitioners came to be rejected.

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6. Petitioners have filed the present Petitions challenging the Awards
dated 6 November 2004. The Petitions came to be admitted by order dated 15
September 2005. By order dated 1 December 2015, this Court granted liberty
to the Petitioners to withdraw the amount deposited in their respective
Provident Fund Accounts.

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7. Ms. Sarnaik, the learned counsel appearing for Petitioners would
submit that the Labour Court has erred in holding that employer-employee
relationship could not be established between Petitioners and Respondent
Company. She would take me through compilation of documents, which were
produced before Labour Court to prove complete supervision and control by
the Respondent-Company over the workers. She would submit that Provident
Fund of the workers was deducted and deposited by Respondent-Company
that whenever accident occurred, the accident report was prepared by
Respondent-Company. That assignment of work to Petitioners was always
decided by Respondent-Company. She would take me through various shift

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charts to prove allocation of work to the workers by the Respondent-
Company. She would also place reliance on various communications between
Kirloskar Ebara Pumps Limited and Kirloskar Brothers Limited in which
various materials/equipment were sent alongwith the Petitioners. That
Machines Non-Conformity Reports again demonstrate supervision of work of
the workers by Respondent-Company. She would also place reliance on initial
engagement of one of the workers by Respondent-company through
Employment Exchange.

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8. Ms. Sarnaik would submit that the above documents placed before the
Labour Court proved beyond any iota of doubt that there was complete
supervision and control over Petitioners by Respondent-Company. That they
were shown to have been engaged through contractors only on paper with a
view to avoid liability under the Labour Laws. That for all practical purposes,
Petitioners were always the employees of Respondent-Company. That their
services were terminated only on account of vacation of interim stay by the
Industrial Court and such termination was ordered to be effected by the
Respondent-Company. She would take me through various findings recorded
by the Labour Court to demonstrate as to how existence of employer-
employee relationship ought to have inferred by the Labour Court.
Ms. Sarnaik would therefore pray for setting aside the Awards passed by the
Labour Court.

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9. Per Contra, Mr. Bapat, the learned senior advocate appearing for the
Respondent-Company would oppose the Petitions and support the Awards

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passed by the Labour Court. He would submit that there are specific
admissions in the evidence given by the concerned workmen of they being
employees of contractors. That in the light of such specific admissions, the
claim of Petitioners of they being employees of Respondent- Company was
belied before the Labour Court. He would submit that the Labour Court has
recorded its findings by applying its mind to the entire evidence on the
record. That the findings recorded by the Labour Court do not suffer from
the vice of perversity so as to warrant interference by this court in exercise of
writ jurisdiction. Mr. Bapat would further submit that since the issue of
existence of employer employee relationship is already concluded while
deciding Complaint (ULP) No.699 of 2001 by the Industrial Court, the
Labour Court has rightly answered the references in negative. He would rely
upon the judgment of this court inKalyan Dombivli Municipal
Corporation vs. Municipal Labour Union, 2023 SCC OnLine Bom 2266.
Mr. Bapat would pray for dismissal of the Petition.

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10.Rival contentions of the parties now fall for my consideration.

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11.The References in the present Petitions were made by the appropriate
Government at the behest of the Petitioners for adjudication of disputes
relating to their termination and reinstatement. One of the termination letters
is placed on record in Writ Petition No.4701 of 2005. The said letter dated 30
August 2001 is issued by Shree Datta Agencies to Shri Sampath Mahadev
Sawant. The letter states that the contract of Shree Datta Agencies with
Respondent-Company was over and that the contractor did not have any work

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available for the workers and accordingly the services were terminated by
paying an amount of Rs.24,440/-, which consisted of retrenchment
compensation, gratuity and one month notice. Thus the termination letters
are issued by the contractors and not by Respondent-Company. Despite this,
Petitioners raised disputes with regard to their termination against
Respondent-Company and not against the contractors who had terminated
their services. This is how Petitioners took the risk of getting their grievance
relating to termination adjudicated against Respondent-company, even
though termination letters were issued to them by their respective
contractors. For Petitioners to succeed in their claims, it therefore became
necessary for them to establish existence of employer-employee relationship
with Respondent Company. The Labour Court, after considering the
evidence on record, has arrived at a conclusion that Petitioners could not
establish employer-employee relationship with the Respondent-Company.

¶107

12. Ms. Sarnaik has relied on several documents to establish existence of
employer employee relationship. I have gone through those documents,
which are produced with a view to prove the test of control and management.
However, control and management is not the only test to be satisfied for
establishing employer-employee relationship. The law relating to
establishment of employer employee relationship is crystallized in the
judgment of the Apex Court in Balwant Rai Saluja vs. Air India Limited,
(2014) 9 SCC 407, in which the Apex Court has prescribed following six
factors for establishment of employer-employee relationship in paragraph 65
of the judgment as under:

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“65. Thus, it can be concluded that the relevant factors to be taken into
consideration to establish an employer-employee relationship would include,
inter alia:

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(i) who appoints the workers;

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(ii) who pays the salary/remuneration;

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(iii) who has the authority to dismiss:

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(iv) who can take disciplinary action;

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(v) whether there is continuity in service; and

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(vi) extent of control and supervision i.e. whether there exists complete control and supervision.

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As regard extent of control and supervision, we have already taken note of
the observations in Bengal Nagpur Cotton Mills case (2011) 1 SCC 635,
International Airport Authority of India case (2009) 13 SCC 374 and Nalco
case (2014) 6 SCC 756.”

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13. True it is that the Labour Court did not have the benefit of judgment of
the Apex Court in Balwant Singh Saluja (supra), which has been delivered in
the year 2014. However, considering the material placed on record by the
Petitioners and the evidence led by them, it cannot be said that the above
tests are satisfied by them for establishment of employer-employee
relationship. Perusal of the cross-examination of Petitioners would leave no
manner of doubt that there was no employer-employee relationship with
Respondent-Company. By way of illustration, cross-examination of Shri
Shahaji Shankar Farane recorded in Reference (IDA) No.47 of 2002 is
reproduced below:

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“Cross-examination by Shri.R.G. Bhakare, Adv.

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In my affidavit I have mentioned that I was working as Fiter however I
do not possessing certificate of I.T.I. It is true that I have not produced any
document to show that I was in the employment W.E.F. 1-6-96. I do not
know whether I have produced any document to show that I was employee of
the Ist part company. It is not true that I was employee of the Ist part
company. It is not true that I was employed by contractor Datta Agency and

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I was working under the supervision and control of Shri. Pujari of Datta
Agency. It is not true that Pujari used to me pay wages. It is true that Shri
Pujari of Datta Agency used to look after our sanctioning leave, arrangement
of shifts, granting our holidays and other our services. It is true that for us
there was a separate cards whereas for the regular employees of the Ist party
there used to be separate attendance register. It is not true that the uniform
colour as regards ourselves and employees of the Ist party company was
different.

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It is true that the Ist party co. manufactures Fuel pumps for Chemical
factories. It is true that in the work of manufacturing Pump there should not
be any slightest mistake, and therefore it is true that the Ist party has
employed highly skilled employees on his muster roll. I do not know whether
the Ist party co. has appointed contractors to get the work done which is of
temporary and misc. nature. It is not true that the nature of work which is
done us and nature of work done by Ist party employees was different. It is
not the true that there used to be separate different facilities and service
condition to the regular employees of the Ist party which are not provided
with us. It is true that the supervisors officers of the Ist party were
supervision and controlling the work of its regular employees only.

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It is true that in case we are required to go the near by Kirloskar Bro.
alongwith regular employees of the Company the Ist party used to give a
letter in which the name of the regular employees as well as ourselves names
are mentioned. It is true that we filed a complaint in the Industrial court for
absorbing us permanently in the Ist party company. It is true that from the
date of our appointment till we approached industrial court we never made
request or complaint to the Ist party company to absorb its employment. It is
true that the said complaint was dismissed by the Industrial court, Kolhapur.
I do not know whether while the complaint in Industrial court pending we
made any application to the Labour office. We have filed the present
references to become permanent in the employment of the Ist party
company. I am not in the employment from 29-8-2001. My services were
terminated by the company. But I did not receive any letter from the Ist party
company about my resignation. I received my legal dues amounting
Rs.27,000/- by post, by cheque. There was a letter indicating termination of
my services along with cheque. It is true that on the said termination letter
was on the letter head of Datta Agency and the same was signed by the
Pujari, similarly the cheque was alse signed by Shri Pujari. After receipt of
the termination letter and cheque we did not inform the Ist party that the
said letter is not acceptable to us.

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It is true that through General Mazdoor Union we made application
to the Govt. Labour office to abolish the contract system prevailing in the Ist
party company. I do not know what happened to the said application.

¶133

It is true that the pending these references we became member of
Kamgar Kalyan Sena, Tasgon, It is true that through the said Union we
demonstrated and resorted to a hunger strike before the gate of the Ist party
company. It is not true that our said act were to pressurize the Ist party
company.

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3 It is not true that the Ist party involved unable to us get benefit of
P.F.made temporary arrangement to get deposited the contribution to the P.F
Trust of the company. It is true that Shri Pujari used to deduct our
contribution from our wages and passed on to the Ist party to get it deposited
with the P.F. company Act, Pune. It is not true that we were not directly
connected with the work of the Ist party company. It is not true that my
statement in affidavit that the officers of the Ist party used to supervise our
work is false. It is not true that my statement in affidavit that I was working
on permanent pest and that shift arrangement used to be made by the
officers of the company is false. It is not true that my statement in my
affidavit that the company pay me wages and contract is bogus is false, It is
not true that just to extract huge amount from the Ist party and to harass the
Ist party company we have filed this false references.

¶135

No. R.E.”

¶136

14.Thus the above cross-examination would indicate that the employer-
employee relationship existed between the contractor and concerned workers.
Though Ms. Sarnaik has made strenuously efforts to demonstrate that
supervision and control over the workers was that of Respondent-Company,
Petitioners admitted during the course of their cross-examination that the
Supervisors and Officers of Respondent-Company used to supervise and
control the work of regular employees only and that Shri Pujari of M/s. Shree
Datta Agencies used to look after sanctioning of leave, arrangement of shifts,
granting of holidays, etc relating to Petitioners.

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15. In fact, it appears that Petitioners first made an attempt to seek
abolition of contract labour system by filing complaint through their Union.
The very fact that demand was made for abolition of contract labour would
indicate that Petitioners were never direct employees of Respondent-
Company. Such application filed by Petitioners through their Union would
contain an implicit admission that they were contract workers engaged by the
contractors.

¶141

16. Though deduction of Provident Fund contribution by Respondent-
Company is highlighted for establishment of employer-employee relationship,
this aspect is sufficiently explained. It appears that the contractors had
engaged less than 20 workers and were not equipped with ‘Code’ for deposit
of Provident fund contributions and therefore the contractors used to deduct
Provident Fund contributions from the concerned workers and used to hand
it over to Respondent-Company for being deposited with the office of
Provident Fund. This aspect is again admitted by one of the Petitioners in the
cross-examination. Therefore, mere deposit of Provident Fund contribution
in respect of Petitioners by Respondent-Company did not ipso facto made
them direct employees of the Respondent-Company.

¶142

17. Reliance of Ms. Sarnaik on various other documents such as accident
reports, shift charts, etc. are not sufficient to prove establishment of employer
employee relationship. If a contract worker suffers an accident in the factory
premises, the company is bound to prepare a report and provide necessary
medical treatment to that worker. The same would however not make that
worker a direct employee of the company. Similarly mere occasional shift

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allotment/placement by Respondent for better utilization of manpower, again
would not make Petitioners employees of the Respondent-Company. Once a
contractor places its workers at the disposal the principal employer, it may
happen that for better output, the principal employer gives certain
instructions to the workers of the contractors. This issue has been dealt with
by this court in its judgment in Kalyan Dombivli Municipal Corporation
(supra) where mere supervision of work of contract workers engaged for
collection and disposal of municipal solid waste by an official of Municipal
Corporation is not held to be sufficient for establishment employer employee
relationship.

¶148

18. Even if the test of supervision and control is held to be proved by giving
any benefit of doubt to the Petitioners, they are unable to satisfy the balance
five tests. There is no appointment letter on record issued by the Respondent-
Company. The salary/remuneration is always paid by the contractor. There is
nothing on record to indicate that Petitioners were ever dismissed or
subjected to disciplinary action by Respondent-Company. This is not a case
where same worker is continued through different contractors over a period
of years. In my view therefore, Petitioners have failed in discharging a burden
of proving existence of employer-employee relationship in the facts and
circumstances of the present case.

¶149

19. After considering the overall conspectus of the case, I am of the view
that no patent error can be traced in the findings recorded by the Labour
Court. Petitioners took a calculated risk of getting the dispute relating to their
termination adjudicated against Respondent-Company, who was not their

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employer. They did not implead the contractors who used to pay them
remuneration and also who terminated their services, as party Respondents to
References. Though it is sought to be suggested that the Reference order is
made by the appropriate Government and that the Petitioners did not have
any control over the entity against whom the reference was directed, the
entity against whom demand was initially raised by Petitioners assumes
importance. Petitioners never demanded anything against the contractors and
their demands were directed only against Respondent-Company. Petitioners
are therefore clearly responsible for non-impleadment of the contractors as
party Respondents to the disputes. Having taken the risk of seeking
adjudication of references only qua Respondent-Company, Petitioners must
face the consequences arising out of non-establishment of employer-
employee relationship with Respondent-Company. It therefore cannot be
stated that the findings recorded by the Labour Court are so perverse that this
Court’s interference, in exercise of jurisdiction under Article 227 of the
Constitution of India, is warranted.

¶155

20. I therefore do not find any valid ground to interfere in the well-
reasoned Awards passed by the Labour Court. Both the Writ Petitions are
devoid of merits and are accordingly dismissed without any orders as to
costs. Rule is discharged.

¶156

21In view of the dismissal of both the Writ Petitions, nothing would
survive in the Civil Applications and the Interim Application and the same
are disposed of accordingly.

¶157

SUDARSHAN RAJALINGAM KATKAM

¶158

 (SANDEEP V. MARNE, J.)

¶159

Digitally signed by SUDARSHAN RAJALINGAM katkam KATKAM Date: 2024.04.02 15:47:57 +0530

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Page No. 16 of 16

Milind Nandkumar Kulkarni and Ors. v. Kirloskar Ebara Pumps Ltd.

Case brief

What is this about?

What did the court decide?

Milind Nandkumar Kulkarni and Ors. v. Kirloskar Ebara Pumps Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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