The need to establish the employer-employee relationship before filing a complaint under the Act of 1971 and resolving such disputes before the appropriate forum.

B.R. Gavai, J.

Being aggrieved by the judgment and order passed on 18/19th of August, 2006 by the learned Single Judge of this Court in Writ Petition No. 85 of 1996, thereby dismissing the writ petition filed by the present appellants, upholding the order passed by the learned Member of the Industrial Court, dated 13th of December, 1995 in Complaint (ULPN) No. 1045 of 1991, the appellants have approached this Court.

2. The facts, in brief, giving rise to the present Letters Patent Appeal are as under :

Respondent No. 1 - Union herein filed a complaint alleging indulgence into unfair labour practice as contemplated under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act of 1971'). The said complaint was purported to be filed by complainant respondent No. 1/Union for the benefits of alleged employees of the appellants, who were alleged to be the members of the said complainant-Union. It was the contention of complainant that the establishment of the appellants was an engineering industry and therefore its employees were entitled to receive minimum wages as fixed for engineering industry under the provisions of the Minimum Wages Act. It was contention of the respondent No. 1 complainant that the appellants were manufacturing steel bushes in the establishment, which are required for construction of the bridges, and that the members of respondent No. 1 were engaged in the said work. The complainant also prayed for issuance of attendance-cum-wage Card.

3. The claim of the complainant was resisted by the appellants by filing written statement. The appellants specifically denied that the members of the respondent No. 1 were its employees. It was the case of the appellants that the appellant No. 2 at Bombay undertook the job of bridge construction, etc. wherever the services are requisitioned. It was the specific case of the appellants that the plot at Nagpur is only a stock yard and no industrial activity of any sort was taking place there and only the work of loading and unloading was undertaken. The very existence of relationship of employer - employee between the parties was disputed.

4. It is also pertinent to note that prior to filing the complaint, employees in their individual capacity had jointly filed an application under section 33-C(2) of the Industrial Disputes Act, 1947 vide IDA No. 338 of 1990. In the said proceedings, they had prayed for difference of wages, as mentioned by them in the schedule, along with interest at the rate of 18%. The said application was resisted by the present appellants by filing written statement. A specific stand was taken by them that they were having a stock yard at Nagpur and no manufacturing or commercial activity was taking place there. A specific stand was also taken that only work of loading and unloading was being done at the stock yard and that too through a contractor. They specifically denied that the said employees were their employees and prayed for dismissal of the proceedings. However, it appears that during the pendency of the said application, a complaint, which is subject-matter of the present appeal, came to be filed by respondent No. 1 and as such the employees did not press that application.

5. It further appears that during the pendency of main complaint, respondent No. 1 had also filed an application under section 30(2) of the Act of 1971. It further appears that in the said application the learned Industrial Court had appointed an Investigating Officer to investigate in the matter. The Investigating Officer investigated the establishment of the appellants on 23rd of April, 1992 and submitted his report. In his report he specifically mentioned that the work of loading and unloading, stacking, work of correspondence and implementation of orders received from the Head Officer is carried out at Nagpur. The Investigating Officer further observed in the report that t