IMPORTANT POINT
The High Court went beyond the provisions of Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 and did not correctly understand the decisions of Supreme Court in 1995 (Supp) I SCC 175 and 1995(5) SCC 27 on the question whether a workman ostensibly employed by a contractor is in fact a workman of the appellant establishment or not would not fall within the scope of Section 28 or Section 7 or Section 32 of the Act. The exercise of repudiation of contract with one and establishment of a legal relationship with another can be done only in a regular industrial Tribunal/ Court under the Industrial Disputes Act, 1947.

JUDGMENT

Rajendra Babu, J.-The first respondent, which is a Union of the workmen, filed a complaint against the appellant for unfair labour practices under Section 28 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short the Act ) under Item 1(a) by way of victimisation; (b) not in good faith, but in the colourable exercise of the employer s right; (d) for patently false reasons; and (f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste of Scheduled IV of the Act. Before the Seventh Labour Court at Bombay it was claimed by the respondent herein that the statutory duty of the appellant is not only to keep the factory premises clean, hygienic and dust free but also the surroundings thereof in terms of Schedule "M" of Drugs & Cosmetics Act, 1940 and the employees engaged for such process are, therefore, employees of the company itself; that, in fact, the appellant had been directly employ ing the workmen to attend such work and the appellant used to appoint such persons on casual or temporary basis and terminate their services from time to time with a view to depriving them of the permanent status and wages and other benefits as applicable to permanent workmen of the appellant; that this situation continued till the year 1990-91 when such casual or temporary workmen engaged in cleaning process joined the respondent-Union in order to protect their rights for permanency in the appellant-company; that since about 1991 the appellant has been engaging persons but on paper they are shown as contract workmen working for contractor, respondent No. 2 herein; that the second respondent is only a name lender whereas the appellant is the real employer of the workmen; that the appellant through the second respondent terminated the services of such workmen employed through second respondent the moment the persons completed 11 months of services thereby depriving them of the status of permanent workmen; that the entire effort being made to avoid giving permanency to the workmen concerned with sanitation, sweeping and in keeping the factory premises and surrounding thereof in a hygienic condition. It is further alleged that there are about 30 such workmen who were engaged in such activities; that in keeping with the past practice, the respondent had reasons to apprehend that the moment any of the workmen completes 11 months of service, the services of such employee would be terminated. It is submitted on behalf of the respondent that the recruitment of such workmen is done by the appellant and upon selection such workmen are sent to appellant s doctor for medical check up. However, they are not given any appointment letters but are given attendance cards by the second respondent only to show that they are the employees of the second respondent and not that of the appellant. They claimed that they are the workmen working under the direct supervision, control and direction of the officers of the appellant who assign work to them and they are granted leave by the officers of the appellant and are also paid by the appellant; that the company is the real employer apart from being the employees because of statutory obligation of the company to employ such workmen; that, however, the appellant denied the relationship of employer-employee from various stages; that such denial of relationship is only to deprive the workmen of permanency in the company and payment of wages as are applicable to the permanent workmen of the company; that the company has denied this relationship as employer and thus this cause of action has arisen in this complaint; that the appellant has engaged in unfair labour practices in terms of Act and it be directed to cease and desist from continuing to do so.

2. The appellant, apart from denying that it is guilty of unfair labour practices under Items 1(a), (b), (d) and (f) of Scheduled IV of the Act, contended that