The interpretation of statutory rules and the definition of 'employee' under the relevant laws were central to the court's decision.

B.P. Dharmadhikari, J.

1. Judgment delivered by learned Single Judge on 8.6.2009 in Writ Petition No. 1274/92 filed by respondents/employees assailing the order of Industrial Court dated 28.2.1992 in Complaint (ULP) Nos. 497/87 to 546/87 is assailed in present appeal by legal heirs of deceased complainant Deorao Gopal Thakre. Deorao Gopal Thakre had filed Complaint (ULP) No. 514/87 urging unfair labour practice under Item 5 and 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 No. I of 1972). Deorao and other complainants admittedly worked as Dyers in Dying Department on piecerate basis. To all other employees of respondents, payscales were extended and they continued to receive their wages on piecerate basis. This discrimination and denial of payscale was pointed out as unfair labour practices.

2. Industrial Court has looked into the material made available to it and by order dated 28.2.1992 found Deorao and others entitled to lowest of payscales available in the establishment of respondents, i.e. payscale of Mazdoors. The employer was directed to extend benefit of payscale to them from next date, i.e. from 1st March, 1992. Employer assailed this common order in Writ Petition No. 1274/92. Learned Single Judge has vide judgment dated 8.6.2009 recorded a finding that Dyers being paid on piecerate basis were not “employee” falling in Rule 6(ii) of the Maharashtra State Handloom Corporation Recruitment/Appointment, etc, Rules, 1977 (hereinafter referred to as “1977 Rules”). This adjudication by the learned Single Judge is questioned in the present L.P.A.

3. Mr. P.D. Meghe, learned Advocate for the appellants, submits that the complainant Deorao expired during the pendency of Writ Petition No. 1274/92 and petition has been decided without bringing on record his legal heirs. He further adds that L.P.A. has been filed by his widow and sons as also daughter. Widow has expired during the pendency of present L.P.A. and hence, he seeks leave to delete her name.

4. Mr. P.D. Meghe, learned Advocate for the appellants, also states that employer never filed any Written Statement before the Industrial Court and as such, evidence adduced by employer pointing out the abovementioned 1977 Rules or then their defence that Deorao could not have been treated as employee under Rule 6(ii) is not open. Lastly, without prejudice he argues that in same establishment when manufacturing process is one and indivisible, there cannot be two sets of service conditions. According to him, the workers in Dying Department, therefore, could not have been paid on piecerate basis and salary hike in the shape of payscale could not have been restricted only to others. He claims that all should have been treated alike and payscales should have been made applicable to all. As the 1977 Rules or pay fixation thereafter did not contain any payscale for the post of Dyers, the Industrial Court has rightly made applicable payscale of Mazdoor to the Dyers.

5. It is also pointed out that the reason given by the learned Single Judge that Dyers could not be treated as employees under Rule 6(ii) is erroneous because later integral requirement of excluding clause, namely, payment of their wages out of contingencies has not been established in the present matter. Burden to bring this fact on record was on employer and employer has failed to do so. He, therefore, prays for restoration of order of Industrial Court.

6. Mr. H.D. Dangre, learned Advocate for the respondents, submits that by moving Civil Application Nos. 569/08 & 570/08 leave was sought to bring legal heirs of deceased Deorao on record. Notices were issued to proposed legal heirs on 28.1.2008 and then applications were allowed on 15.9.2008. Thus, the lacuna that legal heirs of Deorao were not brought on record and contention that petition had abated as against Deorao is misconceived. He further submits that not