The burden of proof to establish the employee-employer relationship and the ouster of the jurisdiction of the Industrial Court rests on the party who raised the objection.

( 1 ) HEARD Mr. C. U. Singh, the learned counsel for the appellants and Ms. Hutoxi tavadia the learned counsel for the respondent.

( 2 ) THE appellants have preferred this appeal being aggrieved by the Order dated June 21, 2004. By the said order the learned single judge set aside the order of the Industrial Court dated January 31, 2004 and held that the present appellants shall have to discharge the burden of establishing their objection to the jurisdiction of the Industrial Court to hear the complaint.

( 3 ) MR. C. U. Singh, learned counsel for the appellants submitted that the relationship of an employee and employer has to be established by the party who asserts it. That the respondent filed the complaint asserting that he was employee of the present appellants, the burden of proof was on the respondent to establish that he was an employee of the present appellants. He placed reliance upon the following judgments: 1) Mukesh K. Tripathi v. Sr. Divisional manager, LIC and Ors. AIR 2004 SC 4179 : 2004-III-LLJ-740. 2) Workmen of Nilgiri Co-op. Marketing society Ltd. v. State of Tamil Nadu and Ors. AIR 2004 SC 1639 : 2004 (3) SCC 514 : 2004-II-LLJ-253. 3) Range Forest Officer v. S. T. Hadimani air 2002 SC 1147 : 2002 (3) SCC 25 : 2002-I-LLJ-1053. 4) State of Gujarat and Ors. v. Pratamsingh narsinh Parmar 2001 (9) SCC 713 : 2001-I-LLJ-1118 (SC ). 5) Rajasthan State Ganganagar S. Mills ltd. v. State of Rajasthan and Anr. 2004 (8) scc 161 : 2004-III-LLJ-832.

( 4 ) RELYING upon the judgment of the learned single Judge in the case of Northcote nursing Home Pvt. Ltd. and Anr. v. Zarine H. Rahina and Ors. , reported in 2002-IV-LLJ (Suppl)-1502 (NOC) (Bom), the learned counsel for the appellants contended that the learned single Judge was bound by the view that it is for the employee to prove that she is workman under Section 2 (s) of the Industrial disputes Act and she has to enter witness box first and if learned single Judge thought that the view taken in Northcote Nursing Home Pvt. Ltd. was not correct, the matter has to be referred to the larger Bench.

( 5 ) INSOFAR as Division Bench judgment of this Court in Waman Ganpat Raut v. Cadbury-Fry (India) Pvt. Ltd. , reported in 1980 (41) FLR 156 is concerned, the learned counsel for the appellants submitted that the said judgment does not lay down any general proposition of law and as has been observed in the judgment itself that the judgment was confined to its own facts.

( 6 ) WE considered the submissions of the learned counsel for the appellants.

( 7 ) THE respondent filed the complaint of an unfair labour practice under Item-9 of schedule-IV of the Maharashtra Recognition of trade Unions and Prevention of Unfair Labour practices Act, 1971. He asserted that he was an employee of the respondent No. 1-Charitable trust. In contesting the complaint, the respondent set up the plea that the complainant was a manager and employed in a supervisory capacity and, therefore, not a workman and the industrial Court has no jurisdiction to hear and decide the complaint.

( 8 ) THE respondent was designated as a manager, but the allotment of duties to him is not in dispute. The respondent was allotted the following duties: 1. In charge of the fixture and electrical fittings in both vegetarian and non-vegetarian kitchens in our Baug premises. 2. In charge of the cleaning and entire Baug premises, kitchens, ground floor corridor, staircases, hall opposite the Trust office, trustees room, Ladies and gents toilets and two bathrooms used for holy bath taken before the ceremonies. 3. In charge of cleaning and laying out the trust's chairs in the baug premises before and after the functions. Both peons, Sitaram and Sachin shall help you in cleaning and laying the chairs before and after the functions. You shall be held responsible for good maintenance upkeep of Trust's chairs. 4. In charge of proper working and maintenance of the three water pumps in our premises.

( 9 ) THOUGH the petitioner has b