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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
B.R. GAVAI, J.
Janprabha Offset works — Petitioner
Versus
Savra Shramik Sangh — Respondent
WRIT PETITION NO. 854 & 925 of 2003
Decided on 6th March, 2007.
Advocates appeared
Mr. T.K. Prabhakaran, Advocate for petitioner
Mr. P.N. Kutti, Advocate for respondent No.1.
However, Court finds that the petitions deserves to be allowed on the short ground of jurisdiction. The Apex Court in the catena of decisions, starting from General Labour Union, Bombay v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. and others, reported in (1995) Supp (1) SCC 175 upto the case of Sarva Shramik Sangh v. M/s. Indian Smelting and Refining Co. Ltd. reported in 2003 AIR SCW 5989 has held that if the employer-employee relationship is disputed the complaint under the said Act, in its limited jurisdiction would not be maintainable. In the present case, it can be seen that though in the complaint, the complainants have stated that the Janprabha Offset press is one of the Departments of the Dainik Janashakti and that both the respondents in the complaint were under the control of one person the Dainik Janashakti in its written statement has categorically denied that the complainants are the employees. In the written statement of Dainik Janashakti Trust, in para 3 it has been categorically stated as thus: -
That the complainant-union has committed mis-joinder of parties and hence on this ground only the complaint is liable to be rejected. The respondent No. 1 and respondent No. 2 are totally different entities and have no administrative concern with each others, respondent No. 1 is partnership firm registered under the Bombay S hops and Establishments Act, whereas respondent No. 2 is a trust registered under the Trust Act and hence, the complaint is hit by serious lacuna of mis-joinder of parties.
In para 4, the Dainik Janashakti Trust has stated thus: -
The complainant union has not sent any charter of demand to the respondent No. 2 nor the workers named in the complaint were at any time employed by the respondent No. 2. Respondent No. 2 has no employer-employee relationship with the workers for which the complaint has been made by the complainant union.
The Apex Court in the mater of Sarva Shramik Sangh v. M/s. Indian Smelting and Refining Co. Ltd., reported in 2003 AIR SCW 5989 has considered the various pronouncements of the Apex Court. Court may gainfully reproduce some of the observations of the Apex Court made in paras 12, 13 and 14 which read thus: -
"12. In view of the rival submissions it would be appropriate to take note of the conclusions arrived at by this Court earlier. First at point of time is the General Labour Union ’s case (supra ). This Court inter-alia observed as follows: -
The workmen have first to establish that they are the workmen of the respondent company before they can file any complaint under the Act. Admittedly this has not been done. It is open for the workmen to raise an appropriate industrial dispute in that behalf if they are entitled to do so before they resort to the provisions of the present Act.’
It is thus clear that though the Apex Court in all those matters, where the employees who claimed to be employees of the principal employer, though they were employed by a contractor has unequivocally ruled that, to bestow jurisdiction upon a Court under the said Act, it is necessary that there has to be a pre- existing relationship between the employer and employee. When the relationship is disputed, the complaint under the said Act, would not be tenable.’’
Insofar as the judgment of the Division Bench in the case of Hindustan Coca Cola Bottlings Pvt. Ltd. v. Narayan Rawal and others, reported in 2001 (III) CLR 1025, the Court held that if the employer-employee relationship is established before the Industrial Tribunal or Labour Court under the Industrial Disputes Act or the employer-employee relationship is indisputable, then complaint under the MRTU and PULP Act would be maintainable. The Divisional Bench further observed that if any time the employee was recognized by the employer and subsequently repudiate such a question would be an incidental question arising under Section 32 of the Act and the Labour Court or the Industrial Court, as the case may be, is bound to decide the said question. In the present case it can be seen that it is not the case that the respondent Dainik Janashakti at any point of time recognized the respondents/ employees as it employees.
Insofar as the observations of the single Judge in the matter of Maharashtra Engineering Plastic and General Kamgar Union v. Little Kids and others that, "From the above it will therefore be clear that there must be at the time of entertaining the complaint where relationship is disputed, strong material in the form of at least documentary evidence to show existence of relation- ship of employer and workmen". Court finds that in view of the pronouncement of the Apex Court that if employer employee relationship is disputed, then the complaint under the said Act would not be tenable the said observation s would not be of much assistance, to the case of the respondents.
1. Both these petitions assail the judgment and order passed by the learned Industrial Court, Jalgaon in Complaint ULP No. 482/1999, thereby allowing the complaint of the respondent union. W.P. No. 854/2003 is filed by the Janaprabha Offset works, which is the respondent No.1 in the original complaint, whereas, W.P. No. 925/2003 is filed by Dainik Janashakti Trust, Jalgaon, which was respondent No.2 in the original complaint.
2. The facts in brief, giving rise to the present petition are as under :-
That, the respondent union/complainants filed a complaint alleging therein that the complainants were members of a registered union. It was alleged that the respondent No.2 in the original complaint were publishing Daily Janashakti and it was printed by Janashakti Offset works i.e. original respondent No.1. It was alleged that the respondent No.2 (namely Shri N.B. Patil), Manager of the Dainik Janashakti Trust, was looking after all the affairs of the newspaper. It was alleged that the said respondent was getting his work done from the workers, who were members of the Union and paying them salary. It is further alleged that the respondent No.1 was one of the Departments of Dainik Janashakti. It was alleged that in pursuance to the directions of the Central Government, the complainant union had demanded to make applicable the recommendations of the Bacchavat Commission to its members. However, instead of complying with the same, the respondents had terminated 5 active members of the union, for which the complainant had taken recourse to appropriate proceedings. It was alleged that the denial on the part of the respondents to make applicable the recommendations of the Bacchavat Commission to the complainants, was an unfair labour practice and therefore, a direction was sought that the respondents be desisted from continuing with the said unfair labour practice and that they should be directed to make applicable the recommendations of the Bacchavat Commission.
3. The complaint was resisted by both the respondents. In so far as the petitioner Janaprabha offset was concerned, it had specifically contended that the Janaprabha Offset and Dainik Janashakti are two different entities. Whereas, the former was a partnership firm registered under the Shop Act, the latter was a Trust registered under the Bombay Public Trusts Act. The contents of the complaint were denied and it was also denied that the provisions of the Bacchavat Commission were applicable to the said Janaprabha Offset works.
4. The petitioner Dainik Janashakti had also filed its written statement denying therein, the employer-employee relationship with the workers, It was alleged that the petitioner Janashakti Trust was not at all concerned with the complainant. As such, the complaint suffers from misjoinder of party. It was therefore prayed for deletion of the Janashakti Trust from the array of respondents.
5. One of the employees on behalf of the complainant union examined himself in support of the complaint. Certain documentary evidence was also produced on record. None was examined on behalf of the respondents (petitioners herein). The learned Industrial court, after considering the evidence of the witness examined on behalf of the complainant, the documentary evidence and drawing an adverse inference for non-examination of any witness by the respondents, allowed the complaint, holding that the respondents in the complaint had committed unfair labour practice under Item 9 of Scheduled IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act (hereinafter referred to as ‘the said Act’) and further directed the respondents to provide the benefits of Bacchavat Commission to the employees (respondents to the petitions). Aggrieved by the said order, the present petitions have been filed. 6. Shri Prabhakaran, learned counsel for the petitioners in W.P. No. 854/2003 submits that the complaint itself was not tenable. He submits t
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