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2014 Supreme(Bom) 1519
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NARESH H.PATIL & RAVINDRA V.GHUGE, JJ.
BASF INDIA LTD Construction Chemicals Division A Public Limited Company Registered Under the Companies Act - Petitioner
vs.
Government of Maharashtra Through Secretary, Industries, Energy & Labour Dept Mantralaya
Additional Commissioner of Labour
B.A.S.F. Kamgar Sanghatana
A Trade Union registered Under Trade Unions Act 1926 - Respondents
WRIT PETITION NO. 1001 OF 2014
Decided on: 1ST AUGUST, 2014
Mr.S.C.Naidu a/w. G.D.Talreja a/w. Sachin Bhaskar, i/by M/s.G.D.Talreja & Associates, Advocate for the Petitioner.
Mrs.M.S.Bane, 'B' Panel, A.G.P. for the State/Respondent Nos.1 and 2.
Mr.Avinash K. Jalissatgi, Advocate for the Respondent No.3.
Headnote:INDUSTRIAL DISPUTE ACT, 1947 - Sections 2 and 10 - MRTUPULP Act, 1971, Sections 3(5) and 59 - Reference. - Complaints for unfair labour practices required to be decided expeditiously prior to taking up reference proceeding for hearing. - Trial Court within 15 days hereof, which shall be accepted subject to costs of Rs. 25,000/- to be deposited by the petitioners in the trial Court, for being paid to the respondent (plaintiff).
Industrial Court, therefore, is under obligation to decide said ULP complaint as expeditiously as possible and within time frame granted by this Court.
Secondly, respondent No. 3 Union is desirous of pursuing ULP complaint. All issues cast in said complaint will have to be decided. That prayers made in U.L.P. complaint are tenable against employer and not against principal employer.
Thirdly, petitioner has disclosed in its submissions that U.L.P. complaint could be decided expeditiously before Reference proceedings could be taken up for hearing.
Fourthly, issue of employer-employee relationship has also been raised by petitioner in Reference proceedings. Demands can be raised by workmen against their actual employer and not against principal employer.
Fifthly, when foundation of disputes between petitioner Company and respondent Union is as regards existence of employer employee relationship, in event that reference was hit by bar of Section 59, impugned reference order would be required to be set aside. However, upon adjudication of ULP Complaint, if employer employee relationship was established, then quashing and setting aside Of order of reference would result in miscarriage of justice, in as much as respondent Union would then be required to again raise its Charger of Demands for revision of wages. This would cause more harm than good to litigation parties.
Sixthly, though basis of tenability of both proceedings rests on existence of employer employee relationship, prayers made and reliefs to be granted are divergent.
Ravindra V. Ghuge J.
01. Heard. Rule. Rule made returnable forthwith by the consent of the parties and heard finally.
02. By this petition, the petitioner prays for the quashing and setting aside of the impugned order of reference dated 06/11/2013 passed by respondent No.2-Additional Commissioner of Labour. Consequentially, the petitioner prays for the quashing and setting aside of Reference (IT) No. 24 of 2013 pending before Shri.S.K.Deshpande-learned Presiding Officer, Industrial Tribunal, Thane.
03. We have heard the learned advocates for the respective sides and have gone through the petition paper book with their assistance. The submissions of the petitioner can be summarized as follows :-
a) The petitioner is a factory engaging in the business of manufacturing construction chemicals.
b) The petitioner employees about 35 workmen on its roll.
c) Attendance of the petitioner's employees is registered on the electronic biometric system.
d) Labour Contractors namely M/s.Omkar Enterprises, M/s.Advanced Enterprises and M/s. Mafoi are independent Labour Contractors, who supplied contract labourers in areas of house-keeping, material handling, shifting, packaging, loading and unloading and other allied support services.
e) Each of these contractors have their independent legal identity.
f) Each of them have obtained licenses under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. (“C.L.R.A. Act” in short). Each of the Contractors has its independent P.F. Code Number and ESIC Code Number.
g) The impugned order of reference is in relation to the contract labourers only.
h) Respondent No.3-B.A.S.F. Kamgar Sanghatana claims to represent the said contract labourers.
i) The Respondent No.3 Sanghathana has already filed Complaint (ULP) No. 407 of 2011 before the Industrial Tribunal at Thane alleging Unfair Labour Practices (ULP) under Items 1(a) and (b) of Schedule II and 9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971 (“the State Act” in short).
j) The petitioner has filed voluminous record inclusive of Identity Cards as well as statutory records before the Industrial Tribunal to establish that there is no employer-employee relationship between the contract labourers and the petitioner.
k) By an order dated 21/03/2012 passed by the Industrial Court, Thane on the application for interim relief (Ex.U2), the petitioner was directed to maintain status-quo in respect of the employment of the workers with liberty to expedite the hearing of the complaint within six months.
l) Aggrieved by the interim order, the petitioner filed Writ Petition No. 3907 of 2012 before the learned Single Judge of this Court.
m) The petitioner undertook, not to terminate the concerned workers except for proved misconduct, before the learned Single Judge. Therefore, by an order dated 07/12/2012, the learned Single Judge disposed of the Writ Petition by directing the Industrial Court, Thane to decide Complaint (ULP) No. 407 of 2011 within six months.
n) Respondent No.3-Union raised an industrial dispute before the Conciliation Officer under Section 2(k) of the Industrial Disputes Act, 1947 (“the Central Act” in short) claiming revision in wages of the concerned workmen.
o) The petitioner produced voluminous documents before the Conciliation Officer along with their written statement clearly indicating that the concerned workmen are contract labourers and there was no employer-employee relationship between the petitioner and the said contract labourers.
p) The Conciliation Officer after conciliating over the dispute, finally submitted his failure report dated 15/06/2013 to respondent No.2-Additional Commissioner of Labour, who is the appropriate Government.
q) By the impugned order of reference dated 06/11/2013, the appropriate Government-respondent No.2 referred the demands of the concerned workmen to the Industrial Tribunal, Thane. The same came to be registered as Reference (IT) No. 24 of 2013.
r) Grievance of the petitioner is that w
