The provisions of the Contract Labour (Regulation and Abolition) Act, 1970, do not override the benefits conferred on contract labour under the Bombay Industrial Relations Act, 1946.

JUDGMENT :

B.N. Srikrishna, J.

This Writ Petition under Articles 226 and 227 of the Constitution of India is directed against an order of the Industrial Court, Kolhapur, dated 5th June, 1989 dismissing Complaint (ULP) No. 173 of 1987 under the provisions of Section 28 read with Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (Hereinafter referred to as the Act).

2. The 1st Respondent is a Co-operative Society Manufacturing Sugar in Kasaba Bhavada, District Kolhapur. The petitioner is a registered trade union representing the employees working in the 1st Respondent Sugar Factory.

3. The Petitioner filed Complaint (ULP) No. 173 of 1987 on behalf of the employees working in sugar house, godown and delivery departments of the 1st Respondent factory. It was alleged in the Complaint that the concerned employees had been working since the crushing seasons of 1968/69; that the 1st Respondent factory was getting the work done in the sugar house, godown and delivery department through Contractors, though the said work was very much the work of the undertaking itself; that by repeatedly changing the Contractors and disrupting the services of the employees, the employees were deprived of their legitimate rights. It was claimed in the Complaint that the concerned employees were entitled to be made permanent in service by the 1st Respondent who was deliberately depriving them of the benefits and status of permanency. In these circumstances, it was contented that the 1st Respondent was guilty of unfair labour practices within the meaning of Items 9 and 10 of Schedule IV of the Act.

4. The 1st Respondent appeared and contested the Complaint. The 1st Respondent contended that the Complaint was not maintainable because the employees on whose behalf the Complaint had been filed were not "employees" within the meaning of Section 3(5) of the Act. The 1st Respondent also raised certain defences on merits with which we are not concerned in the present Writ Petition.

5. The Industrial Court by the impugned order has upheld the contention of the 1st Respondent that the Complaint was not maintainable and dismissed the Complaint. Being aggrieved, the Petitioner is before this Court by the present Writ Petition.

6. It is not in dispute that the sugar karkhana of the 1st Respondent is covered by the provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the 'BIR Act'). Sections 3(13) and 3(14) of the BIR Act respectively define the expressions "employee" and "employer". The portions of the definition relevant for our purpose are :

"3(13) "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes -

(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) of clause (14);

(b).........."

"3(14) "employer" includes, -

(a)..........

(b)..........

(c)..........

(d)..........

(e) where the owner of any undertaking in the course of or for the purpose of conducting the undertaking contracts with any person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the undertaking, the owner of the undertaking".

A combined reading of these definitions suggests that in an undertaking covered by the BIR Act, if any work which is ordinarily part of the undertaking has been entrusted to a contractor for execution by or under him and, for executing such work, the contractor engages contract labour, then notwithstanding the fact that there is no relationship of employer and employee between the principal employer and the contractor's workmen, for the purposes of the BIR Act, such contract's workmen are deemed to be employees within the meaning of Section 3(13) of the Act.

7. Section 3(5) of the Act defines 'employee' in relation to an industry to which the Bombay Act applies, as an