JUDGMENT - R.J. KOCHAR, J.:---The petitioners are aggrieved by the order dated 19-11-1997 passed by the Learned Member of the Industrial Court in a Complaint (ULP) No. 147 of 1995 at an interlocutory stage holding that the burden of leading evidence in the complaint would lie on the petitioners on the issue whether the respondents employee was an employee within the meaning of section 3(5) of the MRTU PULP Act.

2. The relevant facts are very simple. The petitioners had employed the respondent employee as a Resident Medical Officer, who was a Junior Medical Practitioner. It appears that the petitioners had appointed the respondent No. 1 on 1-4-1992 under a contract of service in the Managerial/Administrative Capacity. It further appears that on 26-5-1994 a charge sheet was served on her for an alleged act of misconduct. It further appears that the respondent No. 1 objected to the departmental enquiry as she was not paid full salary as subsistence allowance. The respondent No. 1, therefore, filed a complaint of unfair labour practice under Item 9 of Schedule IV of the Act praying for a declaration that the non payment of subsistence allowance by way of full salary during the suspension period from 26-5-1994 amounted to an unfair labour practice. She demanded arrears and also interim orders restraining the petitioners not to proceed with the enquiry based on the charge sheet dated 26-5-1994.

3. The petitioners filed their written statement denying the allegation of unfair labour practice. It further appears that by an order dated 29-6-1995 the learned member of the Industrial Court confirmed his earlier ad interim order passed on 9-2-1995 and directed the petitioners to allow the respondent No. 1 to report on duty. The petitioners being aggrieved by the said interim order approached this Court under Article 226 of the Constitution of India and prayed for stay of the said order. However, the said writ petition came to be rejected in December, 1995. The petitioners filed an appeal against the said order before the Appeal Court. The respondent No. 1 gave an undertaking to the Appeal Court that she would not insist for reinstatement or wages under the order of the Industrial Court dated 23-11-1995 in Complaint ULP No. 174 of 1995. The complaint however was allowed to proceed further before the Industrial Court.

4. It is in the complaint that the Industrial Court framed the issues as under:

(1) Whether the respondent prove that the complainant is not a workmen as per section 2(s) of the Industrial Disputes Act, and section 3(5) of the MRTU PULP Act, 1971? Similarly, whether the complainant prove that she is a workman?

(2) Whether the respondent has right to conduct the enquiry against the complainant as per the setting out the terms and conditions of employment in contract and whether the Industrial Employment (Standing Orders) is applicable?

(3) Whether the complainant prove that the respondents have committed unfair labour practice under Item 9 of Schedule IV of the MRTU PULP Act, 1971?

(4) Whether the complainant prove that she is entitled to Suspension Allowance from the date of suspension i.e. 26-4-1994 till the said suspension is revoked?

5. The petitioners, however, prayed that the issues should be recast as under:

(1) Does the complainant prove that she is a workman under section 2(s) of the Industrial Disputes Act, 1947?

(2) Whether the respondents prove that the Industrial Court constituted under the MRTU PULP Act has no jurisdiction to entertain, try and decide the present complaint?

(3) Does the complainant prove that the provisions of the Industrial Employment (Standing Orders) Act, are not applicable to the establishment of the 1st respondent Nursing Home?

(4) Does the complainant prove that the respondents have committed unfair labour practice under Item No. 9 of Schedule IV of the MRTU PULP Act?

(5) To what reliefs, if any, is the complainant entitled?

(6) What order?

6. The learned Member heard both the parti

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