Hindustan Coca Cola Bottling S/W Pvt. Ltd. and another vs Bhartiya Kamgar Sena and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 953

IN THE HIGH COURT OF BOMBAY
A.P. Shah D.B. Bhosale, JJ.
Hindustan Coca Cola Bottling S/W Pvt. Ltd. another.... Appellants.
Versus
Bhartiya Kamgar Sena others.... Respondents.
Appeal No. 782 of 2001 in Writ Petition No. 927 of 2001 with Appeal No. 783 of 2001 in Writ Petition No. 926 of 2001, decided on 12-10-2001.
Advocates appeared :
J.P. Cama i/b RMG Law Associates a/w Ms. Kher K.P. Anilkumar, for appellants.
A.V. Bukhari a/w R. Nerlekar, for respondent No. 1.
S.J. Deshmukh a/w S.Z. Chowdhary, for respondent Nos. 1 to 44 in Appeal No. 782 of 2001.
N.M. Ganguli, for respondent No. 3 in Appeal No. 782 of 2001 and respondent No. 45 in Appeal No. 783 of 2001.

Headnote:MRTU & PULP Act, 1971 - Section 28, Schedule IV, Items 5, 6, 9 and 10 - I.D. Act, 1947, Section 32 - Complaint - Unfair labour practice - Alleged by contract labour employees - Relationship between employer and employee disputed - Complaint not maintainable - Industrial Court cannot entertain complaint - Relationship must be established first under the I.D. Act. - Where the employer had never recog- nised the workmen as his employees and throughout treated these persons as employees of the contractors, the Court constituted under Section 28 of the MRTU and PULP Act will have no jurisdiction to entertain the complaint unless the status of relationship of employer employee is first determined in a proceedings under the Industrial Disputes Act.
MRTU & PULP Act, 1971 - Section 28, Schedule IV, Items 5, 6, 9 and 10 and Industrial Disputes Act (14 of 1947), Section 32 - Complaint by employees alleging unfair labour practice for not treating them as regular employees of company by falsely labelling them as contract labour engaged through sham contractors - Absence of undisputed or indisputable employer employee relationship between the parties - Labour Court/Industrial Court has no jurisdiction to try complaint - Complaint of unfair labour practice not maintainable - Status of relationship required first to be determined under Industrial Disputes Act. - A complaint alleging unfair labour practice was filed by union of employees for not granting status of regular employees by falsely labelling them as contract labour. There was no dispute that the employees in question were engaged through the contractors. This position is conceded in the complaints but it is contended that the contractors are merely name-lenders and that the contracts are sham and on that basis a declaration is sought that the employees are the direct employees of the appellant company. On the other hand, according to the company the employees are the workers of the contractors and not of the company. The question, therefore, that arises for consideration is whether in the absence of undisputed or indisputable employer employee relationship between the parties, can the complaint of unfair labour practice be entertained by the Labour Court or the Industrial Court constituted under the provisions of the MRTU and PULP Act. If the employer employee relationship is established by the competent forum, viz. industrial Tribunal or Labour Court under the Industrial Disputes Act or the employer employee relationship is undisputed or indisputable then the complaint under the MRTU and PULP Act would be maintainable. If at any time the employer employee relationship is recognised by the employer and subsequently it is disputed, such a question would be incidental question arising under Section 32 of the Industrial Disputes Act and the Labour Court or the Industrial Court as the case may be would be competent to decide such question. However, in a case where the employer had never recognised the workmen as his employees and throughout treated these persons as employees of the contractors, the Court constituted under Section 28 of the MRTU and PULP Act will have no jurisdiction to entertain the complaint unless the status of relationship of employer-employee is first determined in a proceedings under the Industrial Disputes Act. 2001 (1) CLR 532 (SC) : 2001 (1) CLR 754 : 1962 (S) FLR 205 : FJR (XXI) 331 : 1995 Supp (1) SCC 175 : 1995 (5) SCC 27 : 1993 I CLR 1002, Rel. W.P. No. 1433/ 2000 (Bom), dated 5th July, 2001 Approved.
MRTU & PULP Act, 1971 - Section 28, Schedule IV, Items 5, 6, 9 and 10 - Industrial Disputes Act, 1947, Section 10(1) - Relationship between employee and employer - Determination of - Jurisdiction of industrial or Labour Court - Held - Dispute arise in between proceedings can be decided by industrial/Labour Court - Dispute of non- recognition of workman as employee by employer to be decided under Industrial Disputes Act - Industrial dispute liable to be referred under Section 10(1) of I.D. Act for adjudication - State Government directed to treat it as industrial dispute. - In view of the decisions of the Supreme Court in Cipla Ltd. and Kalyani Steels Ltd. that only precondition to seek remedy under the MRTU and PULP Act is necessity of existence of employer employee relationship between the parties and when its existence is not already established or is disputable, the party has to first seek relief under the Central Act, i.e. the Industrial Disputes Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if successful therein to seek remedy under the said Act thereafter. Court is in agreement with the observations of the learned single Judge but with a rider that in cases where the employer employee relationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under Section 32 of the MRTU and PULP Act.

JUDGMENT - A.P. SHAH, J.:---These appeals are directed against a common order passed by the learned Single Judge dismissing the writ petitions filed by the appellants. The relevant facts lie in a narrow compass. The appellant No. 1 is a company engaged in the business of producing and manufacturing soft drinks of various brands, such as Coca Cola, Thumps up, Limca etc. The appellant company has employed certain employees through the contractors. The respondent Nos. 2 and 3 in Appeal No. 782 of 2001 are the contractors. The employees and their union viz., Bhartiya Kamgar Sena filed complaints of unfair labour practices under Items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter referred to as the M.R.T.U. P.U.L.P. Act. The employees and the union would be hereinafter referred to as "the respondents". It was the case of the respondents before the Industrial Court that the concerned employees were in the employment of the appellant company for a period ranging from 2 to 16 years as set out in the complaints without any interruption. It was specifically averred in the complaints that the so-called contractors, being individuals, were having no office but were operating from their residence. The respondents further averred that the employees were working under the supervision and control of the management of the appellant company. According to the respondents, the services of these employees were engaged by the appellant company and that the nature of work done by them was of permanent and perennial nature. It was the grievance of the said respondents that the persons employed were falsely labelled as contract labour engaged through the contractors. According to them, as they were doing the same work under the same roof and under the same management, they were entitled to be treated as the regular employees of the appellant company to get all the benefits available to the regular employees of the appellant company. It was emphasised that the so-called contracts were a sham paper arrangement and that there was no genuine and real contract labour engaged by the appellant company. In view of the aforesaid pleadings, the respondents sought reliefs from the Industrial Court as follows :-

(a) It be decided and declared that the respondents have engaged in and are continuing to engage in Unfair Labour Practices under Items 5, 6, 9 and 10 of Schedule IV of M.R.T.U. P.U.L.P. Act, 1971 and they be refrained from engaging in such acts of unfair labour practices.

(b) It be decided and declared that the respondent No. 3 is a sham contractor and the complainants are employees of the respondent No. 1 company.

(c) It be decided and declared that the complainants are entitled to all benefits and privileges available under the settlements/agreements entered into between the respondent No. 1 and union of employees of respondent No. 1 and the respondents be directed accordingly."

They also sought interim orders to protect the existing position of employment which was granted by the Industrial Court and confirmed by the learned Single Judge of this Court.

2. The appellant company has filed its written statement to contest the complaints of unfair labour practices on the grounds, inter alia, that the concerned persons were not the direct and regular employees of the appellant company but they were engaged through the contractors and there was no master and servant relationship between the appellant company on the one hand and the contract labour on the other. The appellant company denied all other charges of unfair labour practices against it levelled in the complaints.

3. While the complaints were pending before the Industrial Court, the Supreme Court delivered its judgment in the case of (Vividh Kamgar Sabha v. Kalyani Steels Ltd. another)1, 2001(2) Bom.C.R. (S.C.)324 as also in (Cipla Limited v. Maharashtra General Kamgar Union and others)2, 2001(2) Bom.C.R.

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2001 Supreme(Bom) 953

Cases Referred (1)