k 1/30 1_wp_9664.21_as.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.9664 OF 2021

M/s. Tata Steel Ltd. 

Wire Division,

A-6/A-9 MIDC

Tarapur Industrial Area,

P.O. Boisar,

Dist. Palghar 401 506

through its Sr. Manager

Mr. Krishna Warrier ....Petitioner

V/S

1.Maharashtra Shramjivi General

Kamgar Union, O�ce at

Mafatlal Employees Union,

A-302 Krishna Plaza

Near C.K.P. Tank

Ambedkar Chowk

Thane (W) 400 602

2.Sonali Caterers

Building No.6, Block No.1001,

Powai Lake Height Society

Rambaug, Powai,

Mumbai – 400 076. ....Respondents

_________

Mr. Sudhir K. Talsania, Senior Advocate with Mr. R.V. Paranjape

with Mr. T.R. Yadav for the Petitioners.

Mr. Yogendra Pendse with Ms. Priyanka Patkar, Ms. Shamika

Dabke and Ms. Vaibhavi Zaaude for Respondent.

__________

CORAM : SANDEEP V. MARNE, J.

RESERVED ON : 14 OCTOBER 2024.

PRONOUNCED ON : 22 OCTOBER 2024.

J U D G M E N T:

1) Rule. Rule is made returnable forthwith. With the consent of

the learned counsel appearing for parties, the Petition is taken up for

�nal hearing and disposal.

katkam Page No. 1 of 30

2024:BHC-AS:42004

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 2/30 1_wp_9664.21_as.doc

2) The Petition raises the usual issue of jurisdiction of Industrial

Court to decide Complaint of unfair labour practices �led under the

provisions of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP

Act) when existence of employer-employee relationship is under

dispute. In the present case, the Complaint is �led on behalf of

canteen employees working in the canteen established by Petitioner-

Company seeking a declaration that they are permanent employees of

the Petitioner-Company and are entitled to receive same service

bene�ts as are extended to the permanent employees. Petitioner-

Company raised objection by �ling application at Exhibit-C3 to

jurisdiction of Industrial Court to decide the Complaint and prayed for

framing of preliminary issue about maintainability of Complaint and

sought its dismissal. Petitioner-Company also sought vacation of

interim order dated 29 November 2019. By impugned order dated 1

October 2021, the Industrial Court has rejected Petitioner-Company’s

application and has directed continuation of interim relief till further

orders. Aggrieved by Industrial Court’s order dated 1 October 2021,

Petitioner has �led the present Petition.

3) Petitioner is a public limited company engaged in the business

of manufacturing of steel wires and has a factory at Tara pur

Industrial Area, Boisar, District Palghar. Earlier, manufacturing

facility was maintained by Petitioner-Company at Borivali, Mumbai

which was relocated at Boisar in the year 2009. Petitioner-Company

has 350 permanent employees working at the factory, who ar e

represented by recognized union viz. Shramik Utkarsh Sabha.

Additionally, Petitioner-Company also has 29 employees working in

sta�, supervisory and o�cer category outside the purview of the

Industrial Disputes Act, 1947. Since Petitioner-Company is employer

katkam Page No. 2 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 3/30 1_wp_9664.21_as.doc

of more than 250 employees, it is required to maintain a statutory

canteen under provisions of section 46 of the Factories Act. It is

Petitioner-Company’s case, however that running of canteen or doing

catering service is not its business and that the statutory canteen is

required to be maintained only towards obligations under the

Factories Act. According to the Petitioner-Company, it has engaged

M/s. Sonali Caterers-Respondent No.2 to run the canteen through its

own sta� and has accordingly executed various agreements/contracts.

The last agreement/contract is signed with Respondent No.2 on 28

March 2018 which was valid upto 31 December 2020.

4) Respondent No.1 is a Union representing 26 workers working in

the canteen maintained by Petitioner-Company. According to

Respondent No.1-Union, said 26 workers are working in the canteen

from various dates as more particularly detailed in Annexure-A to the

Complaint. It is thus claimed by Respondent No.1-Union that some of

the workers are working in the canteen since the year 2010 .

Respondent No.1-Union �led Complaint (ULP) No.215 of 2019 in

Industrial Court, Thane, seeking a declaration that the said 26

workers are permanent employees of Petitioner-Company and claimed

the bene�t of permanency to them from the dates of completion of 240

days of service. The Respondent No.1-Union also �led application at

Exhibit-U2 for grant of interim relief. An ad interim order came to be

passed by Industrial Court on 29 November 2019 directing the

Petitioner-Company to maintain status   quo  in respect of service

conditions of 26 workers. After receipt of notice in the Complaint,

Petitioner-Company appeared and �led objection to the

maintainability of the Complaint. Petitioner-Company contended that

there is no employer-employee relationship between it and the said 26

workers and that therefore Industrial Court did not have jurisdiction

katkam Page No. 3 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 4/30 1_wp_9664.21_as.doc

to try and entertain the Complaint. Various other objections about

maintainability were also raised in the said objection application.

Respondent No.2- Contractor also appeared and �led Reply to the

Complaint contending that the said 26 workers are its employees and

not the employees of the Petitioner-Company.

5) Separately, Petitioner-Company also �led A�davit-in-Reply to

the application seeking interim relief. The Respondent-Union �led

application at Exhibit-C3 by �ling its reply. After hearing the parties,

the Industrial Court passed order dated 1 October 2022 rejecting the

application at Exhibit-C3 �led by Petitioner-Company by holding that

there was subsisting employer-employee relationship between

Petitioner-Company and the 26 workers before 2008 and that therefore

the Complaint was maintainable. The Industrial Court has continued

the interim relief till further orders as application at Exhibit-U2 has

not been decided while passing order dated 1 October 2021. Petitioner

is aggrieved by the order dated 1 October 2021 and has �led the

present Petition.

6) Mr. Talsania, the learned Senior Advocate appearing for

Petitioner-Company would submit that Respondent No.1-Union has

sought a declaration in the Complaint that the contract executed with

Respondent No.2 is sham and bogus and that the 26 workers are in

fact direct workers of Petitioner-Company. That the Complaint

proceeds on a footing that the said 26 workers are being treated as

workers of contractor and that a declaration is sought for treatment of

the said workers as direct workers of Petitioner-Company. Mr.

Talsania would submit that Industrial Court does not have

jurisdiction to issue such a declaration as has repeatedly been held by

the Apex Court in catena of judgments. That in the present case,

katkam Page No. 4 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 5/30 1_wp_9664.21_as.doc

there is no employer-employee relationship between the Petitioner-

Company and the said 26 workers. That such relationship is

speci�cally denied by Petitioner-Company in objection applications at

Exhibit-C3. That once existence of employer-employee relationship is

denied, Industrial Court loses jurisdiction to try and entertain the

Complaint seeking declaration of contract being sham and bogus. In

support Mr. Talsania would rely upon following judgments:

i)Cipla Ltd vs. Maharashtra General Kamgar Union and

others

1

ii)Sarva Shramik Sangh vs. Indian Smelting and Refining

Co. Ltd. and others 

2

iii)Vividh   Kamgar   Sabha   vs.     Kalyani   Steels   Ltd.   and

another.

3

7)Mr. Talsania would further submit that the judgments of the

Apex Court in Indian   Petrochemicals   Corporation   Ltd.   and

another vs. Shramik Sena and others

4

 and Hindalco Industries

Ltd. vs. Association of Engineering Workers

5

cannot be read in

support of an absolute proposition of law that in every case, where

employer-employee relationship is under dispute and where

declaration of contract being sham is sought, Industrial Court would

have jurisdiction to entertain Complaint of unfair labour practice

under MRTU and PULP Act. Relying on judgment of the Apex Court

in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and

others

6

, Mr. Talsania would submit that a decision is an authority for

which it is decided and not what can logically to be deduced

therefrom. That the judgments in Indian   Petrochemicals

1 (2001) 3 SCC 101

2 (2003) 10 SCC 455

3 (2001) 2 SCC 381

4 (1999) 6 SCC 439

5 (2008) 13 SCC 441

6 (2003) 2 SCC 111

katkam Page No. 5 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 6/30 1_wp_9664.21_as.doc

Corporation Ltd. (supra) and Hindalco Industries Ltd.  (supra)

are rendered in the facts of those cases which have no application to

the facts of the present case.

8) Mr. Talsania would further submit that the Industrial Court

has erred in relying on judgment of Division Bench of this Court in

Hindustan Coca Cola Bottlings S/W (Private), Ltd. vs. Bhartiya

Kamgar   Sena   and   others

7

as Petitioner-Company has never

accepted direct employment of the 26 workers at any point of time.

That the Union has failed to plead or produce any document to

suggest direct employment between Petitioner-Company and the 26

workers at any point of time. That no evidence is produced to

demonstrate direct payment of salary by the Petitioner-Company to

any of the said 26 workers. Mr. Talsania would accordingly pray for

setting aside the impugned order of the Industrial Court and for

dismissal of the Complaint.

9)The Petition is opposed by Mr. Pendse, the learned counsel

appearing for Respondent No.1-Union. He would submit that the

Industrial Court has rightly appreciated the law enunciated by the

Apex Court in Indian Petrochemicals Corporation Ltd. (supra).

He would accordingly submit that judgments of the Apex Court in

Indian   Petrochemicals     Corporation   Ltd.  and Hindalco

Industries Ltd. clearly recognize jurisdiction of Industrial Court to

decide Complaint of unfair labour practice in respect of grant of

permanency to canteen employees. He would submit that the Apex

Court has held in Indian Petrochemicals Corporation Ltd. that

employees of statutory canteen are required to be treated employees

of the factory not only for the purpose of Factories Act but also for all

other purposes. That the said principle has been followed by

7 2002 (1) L.L.N. 228

katkam Page No. 6 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 7/30 1_wp_9664.21_as.doc

subsequent judgment in Hindalco Industries Ltd.  (supra). That in

the present case also the 26 workers are working in statutory

canteens and are accordingly required to be treated as direct

employees of the Petitioner-Company. He would submit that in

Hindalco Industries Ltd.  (supra) speci�c contention was raised

about absence of jurisdiction of Industrial Court for issuance of

declaration of contract as sham and bogus and that the Apex Court

has negatived the said contention.

10) Mr. Pendse would rely on judgment of Division Bench of this

Court in Hindustan Coca Cola Bottlings S/W (Private) Ltd. vs.

Vhartiya Kamgar Sangh

8

submit that Industrial Court would have

jurisdiction to entertain the Complaint of unfair labour practice once

existence of employer-employee relationship is demonstrated at some

point of time. He would submit that Respondent No.1 has speci�cally

pleaded in the Complaint that the 26 workers are in the employment

of the Petitioner-Company. He would submit that Petitioner-Company

has relied upon contract executed with Respondent No.2 e�ective

from 1 April 2018. That no other contract is placed on record to

suggest that engagement of any contract prior to 1 April 2018. That

Annexure-A to the Complaint would show engagement of all 26

workers prior to 1 April 2018. He would therefore submit that

existence of employer-employee relationship prior to the year 2018 is

clearly established and that the Complaint is �led for the purpose of

claiming existence of employer-employee relationship after entering

into contract with Respondent No.2. Mr. Pendse would also rely upon

judgment of this Court in Uni   Klinger   Ltd.,   Ahmednagar   vs.

Subhash Baburao Kambale and others

9

. He would accordingly

pray for dismissal of the Petition.

8 (2002) 3 Bom CR 129

9 2016(6) Mh.L.J. 543

katkam Page No. 7 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 8/30 1_wp_9664.21_as.doc

11)Rival contentions of the parties now fall for my consideration.

12)This is yet another case where jurisdiction of Industrial Court

to entertain Complaint of unfair labour practice is questioned on the

ground of existence of dispute about employer-employee relationship.

In fact, according to Petitioner-Company, non-existence of employer-

employee relationship is an admitted fact, on which the Complaint of

Respondent-Union is premised. The Complaint is �led seeking

following prayers:

“13. In the circumstances as mentioned as above the complainants pray

that:-

(i) This Hon'ble Court be pleased to hold and declare that the

Respondents have engaged and are engage in unfair labour practices

as de�ned under item 1(a), 4(a), 4(f) of Schedule II and 5,6,9 and 10

of the Schedule IV to the MRTU and PULP Act, 1971.and further be

pleased direct the Respondent to ceased and deceased the same.

(ii) This Hon'ble Court be further pleased to declare that the

employees as per Annexure 'A' are the permanent employees of the

Respondent No.1 Company.

(iii) This Hon'ble Court be further pleased to declare that the

employees as per Annexure 'A' are the permanent employees of the

Respondent No.1 Company. Further this Hon'ble be pleased to direct

the Respondents, its Directors, O�cer, Managers and/or Agents

including Respondent No.2 being agent to provide the service

conditions to the employees as per Annexure 'A', the service

conditions as per the other permanent company to the Respondent

No.1 company form the date of completion 240 day from the initial

date of joining and further be pleased to direct the respondents to

pay the employees as per Annexure A the arrears of wages and other

bene�ts from such date.

(iv) This Hon'ble court further be pleased to direct the Respondent

not to terminate the employment of the employees as per Annexure

'A' without following due process of law as a permanent employees of

the respondent Company.

(v) This Hon'ble court be pleased to direct the Respondent the wages

as per the kind of work as per with permanent employees of

Respondent No. 1 Company each and every employee as per

Annexure 'A' not later than 7th day of its successive month to the

month for which the employees have tendered their labour, pending

hearing �nal disposal of.

(vi) Ad-interim relief in terms of prayer clause (iv) & (v) above.

vii) Compensation of Rs. 10,000/- per employee as per Annexure 'A'

katkam Page No. 8 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 9/30 1_wp_9664.21_as.doc

viii) Costs.

ix) Any other relief as deemed �t and proper”

13)Thus, Respondent has sought a direct declaration that the 26

workers enumerated in Annexure-A to Complaint are permanent

employees of Petitioner-Company. Further prayer is sought for a

declaration that the said 26 workers be declared as permanen t

employees for being extended service conditions applicable to

permanent employees from the dates of completion of 240 days from

the date of initial engagement.

14)Averments in the Complaint are aimed at establishing as to

how the contract entered into between Petitioner-Company and

Respondent No.2 is sham and bogus. Respondent-Union has

attempted to establish the tests of supervision and control, provision

of necessary materials and utensils, receipt of PF and ESI bene�ts,

selection and appointment of workers, provisions of service quarter to

canteen employees, etc. by Petitioner-Company In this regard the

relevant averments in para 3(ii)(iii) of the Complaint read thus:

“(ii) The Complainant submits that the entire working of the

canteen is controlled and supervised by respondent No.1 Company

and its o�cers. The Respondent No.1 Company has shown

Respondent No.2 as contractor in the canteen of the Respondent No.

I Company. The complainants say and submit that the enti re

supervision and control of the canteen is within the hands of the

canteen committee of the company and contractor has nothing to do

with the same. The accessories which are made available in the

canteen are supplied by the Respondent No.1 Company. The

complainant submit that the Respondent No.1 company is providing

all the necessary materials, utensils, etc. by which a canteen is run.

The contractor i.e. the Respondent No.2 has no supervision and

control over the working of the canteen. Complainant submits that

the canteen is working round a clock as per various shifts of the

company. It is further stated that the employees as per Annexure 'A'

getting PF and ESI of the Respondent No.1 Company.

(iii) The Complainant says and submits that the entire control and

katkam Page No. 9 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 10/30 1_wp_9664.21_as.doc

functions of the canteen is with Respondent No.1 and the purported

contractor does not have any independence in the working of the

canteen as a matter of fact the employees are selected by the

respondent no.1 company to work in the canteen. The Complainant

say and submit that therefore the Complainants who are working in

the canteen of the Respondent No.1 company being statutory

obligation of the company to maintain the canteen, it is the real

employer of the complainants. The Complainant submits that the

employees do work as per the shifts of the Company but the Labour

is extracted for 12 to 14 hour a day without over time. The wages are

not paid on time. The Complainant states that no weekly o� is given

to many of the employees. The Respondent No.1 Company has

provided for service quarter to reside for the canteen employees. It is

further submitted that the Respondents are making deduction in

wages for no reasons. It is also submitted that the Respondent No.1

Company reimburse the wages paid to those employees to the

Contractor.”

15)In the light of the above averments and prayer for declaration

that 26 workers are permanent employees of Petitioner-Company, the

law expounded by the Apex Court in its judgment in Cipla Limited

(supra) would ordinarily apply to the present case. In Cipla Limited

(supra), the Respondent-Union therein had �led Complaint of unfair

labour practice under section 28 of the MRTU and PULP Act

complaining that the Appellate-Company had deliberately shown the

workers of the Union as contract workmen when in fact the Appellant-

Company was the real employer. It was contended that the concerned

workers were under direct supervision, control and relation of o�cers

of the Appellant-Company and therefore a declaration was sought that

the said workers were employees of Appellant-Company therein. The

Appellant-Company denied existence of employer-employee

relationship and challenged jurisdiction of the Industrial Court to

decide Complaint under section 28 of the MRTU and PULP Act. The

Apex Court held that object of MRTU & PULP Act is to enforce the

provisions relating to unfair labour practices and that therefore

undisputed or indisputable existence of employer-employee

relationship is sine  qua non for entertaining Complaint of unfair

katkam Page No. 10 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 11/30 1_wp_9664.21_as.doc

labour practice. The Apex Court held in paragraphs 8 and 9 of the

judgment as under:

“8. But one thing is clear - if the employees are working under a

contract covered by the Contract Labour (Regulation and Abolition) Act

then it is clear that the Labour Court or the industrial adjudicating

authorities cannot have any jurisdiction to deal with the matter as it falls

within the province of an appropriate Government to abolish the same. If

the case put forth by the workmen is that they have be en directly

employed by the appellant Company but the contract itse lf is a

camou�age and, therefore, needs to be adjudicated is a matter

which can be gone into by appropriate Industrial Tribun al or

Labour Court. Such question cannot be examined by t he Labour

Court or the Industrial Court constituted under the Act. The object

of the enactment is, amongst other aspects, enforcing p rovisions

relating to unfair labour practices. If that is so, un less it is

undisputed or indisputable that there is employer-emplo yee

relationship between the parties, the question of unfa ir practice

cannot be inquired into at all. The respondent Union came to the

Labour Court with a complaint that the workmen are engaged by the

appellant through the contractor and though that is ostensible relationship

the true relationship is one of master and servant between the appellant

and the workmen in question. By this process, workmen repudiate their

relationship with the contractor under whom they are employed but claim

relationship of an employee under the appellant. That exer cise of

repudiation of the contract with one and establishment of a legal

relationship with another can be done only in a regular I ndustrial

Tribunal/Court under the ID Act.

9. Shri K.K. Singhvi, the learned Senior Advocate appearing for the

respondent, submitted that under Section 32 of the Act the Labour Court

has the power to "decide all matters arising out of any application or

complaint referred to it for decision under any of the provisions of the Act".

Section 32 would not enlarge the jurisdiction of the court beyond what is

conferred upon it by other provisions of the Act. If under other provisions of

the Act the Industrial Tribunal or the Labour Court has no jurisdiction to

deal with a particular aspect of the matter, Section 32 does not give such

power to it. In the cases at hand before us, whether a workman can

be stated to be the workman of the appellant establishme nt or not,

it must be held that the contract between the appellan t and the

second respondent is a camou�age or bogus and upon such a

decision it can be held that the workman in question i s an

employee of the appellant establishment. That exercise , we are

afraid, would not fall within the scope of either S ection 28 or

Section 7 of the Act. In cases of this nature where the provisions of

the Act are summary in nature and give drastic remedies to the

parties concerned elaborate consideration of the ques tion as to

relationship of employer-employee cannot be gone into . If at any

time the employee concerned was indisputably an employ ee of the

establishment and subsequently it is so disputed, such a question is

an incidental question arising under Section 32 of the Act. Even the

katkam Page No. 11 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 12/30 1_wp_9664.21_as.doc

case pleaded by the respondent Union itself is that the ap pellant

establishment had never recognised the workmen mentioned in Exhibit 'A'

as its employees and throughout treated these persons as the employees of

the second respondent. If that dispute existed throughout, we think, the

Labour Court or the Industrial Court under the Act is not the appropriate

court to decide such question, as held by this Court in General Labour

Union (Red Flag) v. Ahmedabad Mfg. & Calico Printing Co. Ltd. 1995 Supp

(1) SCC 175 : 1995 SCC (L&S) 372, which view was reiterated by us in

Vividh Kamgar Sabha v. Kalyani Steels Ltd. (2001) 2 SCC 381 : (2001)

1 Scale 82.”

(emphasis added)

16)In Cipla Ltd. (supra) the Apex Court accordingly held that

Labour or Industrial Court was not the appropriate Court to decide

the question of the contract workers being employees of the Appellant-

Company under provisions of section 32 of the MRTU & PULP Act.

17)Little before the decision in Cipla Ltd. the Apex Court had

rendered judgment in Vividh Kamgar Sabha (supra) in which also

the Apex Court held that provisions of MRTU & PULP Act can only be

enforced by persons who admittedly are workmen. The Apex Court

held in paragraph 5 as under:

“5. The provisions of the MRTU and PULP Act can only be enforced by

persons who admittedly are workmen. If there is dispute as to whether the

employees are employees of the company, then that dispute must �rst be got

resolved by raising a dispute before the appropriate forum. It is only after

the status as a workmen is established in an appropriate forum that a

complaint could be made under the provisions of the MRTU and PULP

Act.”

18)The same view was earlier expressed by the Apex Court in

General Labour Union (Red flag), Bombay vs. Ahmedabad Mfg.

and Calico Printing Co. Ltd. & ors.

10

19)Correctness of view expressed by the Apex Court in General

Labour   Union   (Red   flag),   Bombay (supra), Vividh   Kamgar

10 1995 Supp (1) SCC 175

katkam Page No. 12 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 13/30 1_wp_9664.21_as.doc

Sabha  (supra) and Cipla Limited (supra) was called in question in

Sarva Shramik Sangh vs. Indian Smelting & Refining Co. Ltd.

& others, (supra). The Apex Court formulated the issue in paragraph

2 of the judgment as under:

2. The appellants contend that the view which was �rst expressed by

this Court in General Labour Union (Red flag) v. Ahmedabad Mfg.

and Calico Printing Co. Ltd. subsequently echoed in many cases

including Vividh Kamgar Sabha v. Kalyani Steels Ltd. and �nally in

CIPLA   Ltd.   v.   Maharashtra   General   Kamgar   Union is legally

unsound and needs a fresh look.

20)The Apex Court however held that the view taken by it in

Cipla Limited (supra) after following the judgments in General

Labour   Union   (Red   flag),   Bombay  (supra), Vividh   Kamgar

Sabha vs. Kalyani Steel Ltd., (supra) was in accordance with the

objects sought to be achieved by MRTU & PULP Act and that there

was neither any scope nor necessity to reconsider the question once

again by Larger Bench. The Apex Court held in paragraphs 24 and 25

as under:

24. The common thread passing through all these judgments is that the

threshold question to be decided is whether the industrial dispute could be

raised for abolition of the contract labour system in view of the provisions of

the Maharashtra Act. What happens to an employee engaged by the

contractor if the contract made is abolished, is not really involved in the

dispute. There can be no quarrel with the proposition as contended by the

appellants that the jurisdiction to decide a matter would essentially depend

upon pleadings in the plaint. But in a case like the present one, where the

fundamental fact decides the jurisdiction to entertain the complaint itself,

the position would be slightly di�erent. In order to entertain a complaint

under the Maharashtra Act it has to be established that the claimant was

an employee of the employer against whom complaint is made under the ID

Act. When there is no dispute about such relationship, as noted in para 9

of Cipla case [(2001) 3 SCC 101 : 2001 SCC (L&S) 520] the Maharashtra

Act would have full application. When that basic claim is disputed obviously

the issue has to be adjudicated by the forum which is com petent to

adjudicate. The sine qua non for application of the concept of unfair labour

practice is the existence of a direct relationship of employer and employee.

Until that basic question is decided, the forum recedes to the background in

the sense that �rst that question has to be got separately adjudicated. Even

if it is accepted for the sake of arguments that two forums are available, the

court certainly can say which is the more appropriate forum to e�ectively

katkam Page No. 13 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 14/30 1_wp_9664.21_as.doc

get it adjudicated and that is what has been precisely said in the three

decisions. Once the existence of a contractor is accepted, it leads to an

inevitable conclusion that a relationship exists between the contractor and

the complainant. According to them, the contract was a facade and sham

one which has no real e�ectiveness. As rightly observed in Cipla

case [(2001) 3 SCC 101 : 2001 SCC (L&S) 520] it is the relationship existing

by contractual arrangement which is sought to be abandoned and negated

and in its place the complainant's claim is to the e�ect that there was in

reality a relationship between the employer and the complainant directly. It

is the establishment of the existence of such an arrangement which decides

the jurisdiction. That being the position, Cipla case [(2001) 3 SCC 101 :

2001 SCC (L&S) 520] rightly held that an industrial dispute has to be

raised before the Tribunal under the ID Act to have the issue relating to

actual nature of employment sorted out. That being the position, we �nd

that there is no scope for reconsidering Cipla case [(2001) 3 SCC 101 : 2001

SCC (L&S) 520] the view which really echoed the one taken about almost a

decade back.

25. That apart, as held by a seven-member Constitution Bench judgment of

this Court in Keshav Mills case [AIR 1965 SC 1636 : (1965) 2 SCR 908]

though this Court has inherent jurisdiction to reconsider and revise its

earlier decisions, it would at the same time be reluctant to entertain such

pleas unless it is satis�ed that there are compelling and substantial reasons

to do so and not undertake such an exercise merely for the asking or that

the alternate view pressed on the subsequent occasion is more reasonable.

For the reasons stated supra, we are of the view that the decision in Cipla

case [(2001) 3 SCC 101 : 2001 SCC (L&S) 520] was taken not only in tune

with the earlier decisions of this Court in General Labour Union (Red Flag)

case [1995 Supp (1) SCC 175 : 1995 SCC (L&S) 372] and Vividh Kamgar

Sabha   case [(2001) 2 SCC 381 : 2001 SCC (L&S) 436] but quite in

accordance with the subject of the enactment and the object which the

legislature had in view and the purpose sought to be achieved by the

Maharashtra Act and consequently, there is no scope or necessity to

reconsider the question once over again by a larger Bench.

21)It appears that another attempt was made before the Apex

Court for reconsideration of the views expressed by the Apex Court in

above judgments. In Tukaram   Tanaji   Mandhare   v.   Raymond

Woollen Mills Ltd.

11

the issue of maintainability of Complaints �led

by contract employees under MRTU & PULP Act came to be referred

to the Full Bench of this Court. The Full Bench, by its Judgment and

Order dated 06 June 2005, answered the reference, as under:

19. The position, therefore, is that a person who is employed through

a contractor who undertakes contracts for execution of any of the

11 (2005) 4 Mah LJ 1045

katkam Page No. 14 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 15/30 1_wp_9664.21_as.doc

whole of the work or any part of the work which is ordinarily work of

the undertaking governed by BIR Act is an employee within the

meaning of section 3(5) of the MRTU and PULP Act and a complaint

of such an employee is maintainable though no direct relationship of

employer-employee exists between him and the principal employer.

However, if there is a dispute as to whether the contract workers

were doing the work which forms part of the undertaking then the

workers will have to get the dispute decided independently under the

provisions of the BIR Act before approaching the Industrial Court

under the MRTU and PULP Act.

22) When judgment of Full Bench of this Court was challenged

before the Apex Court, a Reference made to the Larger Bench on

submissions by the employees that the view taken by the Apex Court

in above three judgments required reconsideration. However, the

Supreme Court passed order dated 17 July 2019 in Raymond Ltd.

Anr. vs. Tukaram Tanaji Mandhare & another

12

that no speci�c

question was framed for answer by the Larger Bench. The Apex Court

considered Full Bench decision of this Court in Tukaram Tanaji

Mandhare and held that the position of law expounded in paragraph

19 of the Full Bench Judgment lays down correct position of law.

23)The law thus appears to be fairly well settled that when

declaration of contract being sham and bogus is sought, the Industrial

Court would not have jurisdiction to entertain the complaint of unfair

labor practice under the provisions of MRTU & PULP Act.

24)In ordinary course therefore, solution to the problem posed

before Industrial Court was easy and the Court could have easily

ruled absence of jurisdiction to issue declaration of 26 workers being

direct employees of Petitioner-Company by dismissing the Complaint.

However, a twist is added to the otherwise settled by position of law

12 (Civil Appeal No.5077 of 2006)

katkam Page No. 15 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 16/30 1_wp_9664.21_as.doc

in above three judgments of Cipla Limited, Vividh Kamgar Sabha

and Sarva   Shramik   Sangh  by Mr. Pendse by relying on two

judgments of the Apex Court in Indian   Petrochemicals

Corporation Ltd. (supra) and Hindalco Industries Ltd. (supra). It

would therefore be necessary to discuss the ratio of the said

judgments.

25)In Indian Petrochemicals Corporation Ltd.  the workmen

therein had �led a writ petition before this Court seeking a

declaration that they are regular workmen of the management and

were entitled to have same pay-scales and service conditions as are

applicable to regular workmen of the management. The case thus did

not arise out of Complaint of unfair labour practice under MRTU &

PULP Act and a direct Writ Petition was �led under Article 226 of the

Constitution of India before this Court seeking a declaration of

canteen workers of Indian Petrochemicals Corporation Ltd. to be the

regular workmen of the Management. This is borne out from

paragraph 3 of the judgment which read thus:

“(3) The workmen referred to above, �led the above writ petition

before the High Court of Bombay for a declaration that the workmen

whose names are shown in Ex. A annexed to the said petition, are

the regular workmen of the management and are entitled to have

the same pay-scales and service conditions as are applicable to

regular workmen of the management. It was further prayed that a

direction be given to the management to absorb the workmen listed

in the said Ex.A with e�ect from the actual date of their entering

into the service of the canteen of the management and to pay them

all consequential bene�ts including arrears of wages etc.”

26)The Apex Court considered the provisions of section 2(1) of the

Factories Act and considered its judgment in Parimal Chandra

Raha and others vs. Life Insurance Corporation of India a nd

others

13

and held that workmen of statutory canteen would be the

13 (1999) 6 SCC 439

katkam Page No. 16 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 17/30 1_wp_9664.21_as.doc

workmen of establishment for the purpose of Factories Act only and

not for other purposes. The Apex Court held in paragraph 22 of the

judgment as under:

22. If the argument of the workmen in regard to the interpretation

of Raha case is to be accepted then the same would run counter to

the law laid down by a larger Bench of this Court in Khan case. On

this point similar is the view of another three-Judge Bench of this

Court in the case of Reserve Bank of India v. Workmen. Therefore,

following the judgment of this Court in the cases of Khan and R.B.I. 

we hold that the workmen of a statutory canteen would be

the workmen of the establishment for the purpose of the

Factories Act only and not for all other purposes.

(emphasis added)

27)The Apex Court thereafter went on to consider as to whether

such workmen who are treated as workmen of establishment for the

purpose of Factories Act could also be considered as employees of the

management for all purposes, by observing in paragraph 23 as under:

23. Having held that the workmen in these appeals are the

respondent's workmen for the purposes of the Factories Act, we will

now deal with the next question arising in this appeal as to whether

from the material on record it could be held that the workmen are,

in fact, the employees of the Management for all purposes.

28)The Apex Court answered the second issue by holding in

paragraphs 25 and 26 as under:

25. Though the canteen in the appellant's establishment is being managed

by engaging a contractor, it is also an admitted fact that the canteen has

been in existence from the inception of the establishment. It is also an

admitted fact that all the employees who were initially employed and those

inducted from time to time in the canteen have continued to work in the

said canteen uninterruptedly. The employer contends that this continuity of

employment of the employees, in spite of there being a chan ge of

contractors, was due to an order made by the Industrial Court, Thane, on

10-11-1994 wherein the Industrial Court held that these workmen are

entitled to continuity of service in the same canteen irrespective of the

change in the contractor. Consequently, a direction was issued to the

Management herein to incorporate appropriate clauses in the contract that

may be entered into with any outside contractor to ensure the continuity of

employment of these workmen. The Management, therefore, contends that

the continuous employment of these workmen is not voluntary. A perusal of

the said order of the Industrial Court shows that these workmen had

contended before the said Court that the Management was indulging in an

unfair labour practice and in fact they were employed by the Company.

katkam Page No. 17 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 18/30 1_wp_9664.21_as.doc

They speci�cally contended therein that they are entitled to continue in the

employment of the Company irrespective of the change in the contractor.

The Industrial Court accepted their contention as against the plea put

forth by the Management herein. The employer did not think it appropriate

to challenge this decision of the Industrial Court which has become �nal.

This clearly suggests that the Management accepted as a matter of fact

that the respondent workmen are permanent employees of the

Management's canteen. This is a very signi�cant fact to show the true

nature of the respondents' employment. That apart, a perusal of the

a�davits �led in this Court and the contract entered into between the

Management and the contractor clearly establishes:

(a) The canteen has been there since the inception of the appellant's

factory.

(b) The workmen have been employed for long years and despite a

change of contractors the workers have continued to be employed in

the canteen.

(c) The premises, furniture, �xture, fuel, electricity, utensils etc.

have been provided for by the appellant.

(d) The wages of the canteen workers have to be reimbursed by the

appellant.

(e) The supervision and control on the canteen is exercised by the

appellant through its authorised o�cer, as can be seen from the

various clauses of the contract between the appellant and the

contractor.

(f) The contractor is nothing but an agent or a manager of the

appellant, who works completely under the supervision, control and

directions of the appellant.

(g) The workmen have the protection of continuous employment in

the establishment.

26. Considering these factors cumulatively, in addition to the fact

that the canteen in the establishment of the Management is a

statutory canteen, we are of the opinion that in the instant case,

the respondent workmen are in fact the workmen of the appellant

Management.

(emphasis added)

29)Thus, considering various parameters as enumerated in

paragraph 25 of the judgment, the Apex Court held that the canteen

established by the management was a statutory canteen and that

therefore the Respondent-workmen therein were in fact the workmen

of the Appellant-Management. The Apex Court relied upon

Constitution Bench Judgment in M.M.R. Khan vs. Union of India

14

.

14 1990 Supp SCC 191

katkam Page No. 18 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 19/30 1_wp_9664.21_as.doc

30)Relying on the judgment in Indian   Petrochemicals

Corporation Ltd. (supra), Mr. Pendse has contended that employees

of statutory canteen maintained by Petitioner-Company are also

required to be treated as employees of the Petitioner-Management. In

my view Mr. Pendse is attempting to jump to the merits of the case

which is not the subject matter of determination in the present case.

The limited issue that this Court is asked upon to decide in the

present Petition is about jurisdiction of the Industrial Court to

entertain the Complaint �led by the Respondent-Union. Coming back

to the issue involved in the present Petition, Mr. Pendse has also

relied upon judgment of the Apex Court in Hindalco Industries Ltd.

(supra), which, according to him, conclusively rules in favour of

jurisdiction of the Industrial Court to decide Complaint of unfair

labour practice even when declaration of contract being sham and

bogus is sought. Hindalco Industries Ltd.  undoubtedly involved

�ling of the Complaint of unfair labour practice under Item 9 of

Schedule IV of the MRTU & PULP Act and the complainant-unio n

sought a declaration that the contract was sham and mere

arrangement for purpose of avoiding permanency, wages and bene�ts

applicable to permanent workmen of the company. This is clear from

paragraphs 2 and 4 of the judgment which read thus:

2. The respondent herein, namely, Association of Engineering

Workers' Union (hereinafter referred to as “the Union”) �led a

complaint of unfair labour practice 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

MRTU and PULP Act, 1971”) against Hindalco Industries Ltd., the

appellant herein (hereinafter referred to as “the Company”) before

the Industrial Court at Thane. According to the Union, t he

complainant is a trade union recognised as a representative union of

the appellant Company. The Company has engaged employees in

unfair labour practices on and from 1971 on a continuous basis from

month to month, therefore, the period of limitation is not applicable.

However, as a measure of abundant precaution, the Union has �led

a separate application for condonation of delay. The Company has

katkam Page No. 19 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 20/30 1_wp_9664.21_as.doc

engaged about 500 workmen in the manufacture of aluminium and

aluminium products. The complainant Union (the respondent

herein) is a recognised Union for the establishment of the appellant

Company. In terms of Section 46 of the Factories Act, 1948, the

Company is duty-bound to maintain a canteen for the bene�t of

workmen working in an establishment. Accordingly, the Company is

maintaining a canteen at its Kalwa establishment. In order to avoid

giving the workmen working in the canteen, permanency and

bene�ts which are applicable to permanent workmen of the

Company, the Company is illegally treating the workmen working in

the canteen as contract workmen. It is the speci�c case of the

complainant Union that the contract is sham and is a mere

arrangement made for the purpose of avoiding permanency and

giving wages and bene�ts as are applicable to permanent workmen

of the Company.

4. The Company has engaged and is engaging in unfair labou r

practices by treating its own workmen as workmen on contract. The

workmen are entitled for a declaration that they are the workmen of

the Company. In order to comply with the technicalities that are

required to be done, the Union is simultaneously making an

application to the State Contract Labour Advisory Board to abolish

the contract system as far as the canteen is concerned in the

appellant Company. The Union is also raising a demand that all the

27 workmen should be absorbed in the Company from the initial

date of their employment in the Company and pay them wages and

other bene�ts that are applicable to permanent workmen of the

Company.

31)Before the Apex Court, the Appellant in Hindalco Industries

Ltd. raised speci�c contention of absence of jurisdiction of Industrial

Court to entertain Complaint of unfair labour practice under MRTU

& PULP Act, which contention is reproduced in paragraph 12 of the

judgment as under:

12. Coming to the main issue, according to the Union, the Company is

having 500 employees working in manufacturing and other activities. It is

their speci�c case that there is a canteen inside the campus of the

manufacturing unit and it is a statutory canteen and, therefore, the

employees working in the canteen numbering 27 are the employees of the

Company. It is not in dispute that the provisions of the Factories Act, 1948

are applicable to the Company. Section 46(1) mandates that the State

Government may make rules requiring that in any speci�ed factory

wherein more than 250 workers are ordinarily employed, a canteen or

canteens shall be provided and maintained by the occupier for the use of

the workers. The presence of a canteen within the company premises and

statutory provision as referred to above are not disputed. However, it is the

katkam Page No. 20 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 21/30 1_wp_9664.21_as.doc

case of the Company that the employees in the canteen are work ing

through a contractor and, therefore, they are not entitled for status of

permanent employees of the Company. Mr P.P. Rao, learned Senior

Counsel appearing for the appellant Company, by draw ing our

attention to various decisions of this Court would submit that

unless relationship of employer and employee exists, the present

issue/claim cannot be gone into by the Industrial Court under the

provisions of the MRTU and PULP Act, 1971 .

In other words, according to him, in view of the object ion/stand

taken in the reply statement before the Industrial Court, the issue

raised by the Union cannot be adjudicated and it is for the Union

or workmen to get an order under the provisions of the ID Act and

thereafter, approach the Industrial Court for necessary relief, if

any. On the other hand, Mr Deshmukh, learned counsel appearing for the

respondent Union vehemently contended that in view of the object of the

enactment and all other details such as existence of a canteen from several

years, control and supervision by the Company, the contractor is only a

name-lender and the Industrial Court has jurisdiction to go into the issue

raised in the complaint. He further contended that based on the relevant

acceptable materials, the Industrial Court granted relief in favour of the

Union which was rightly a�rmed by the High Court and the same cannot

be lightly interfered under Article 136 of the Constitution of India.

(emphasis added)

32)In Hindalco Industries Ltd., the Apex Court considered the

judgment in Indian   Petrochemicals   Corporation   Ltd.  and

proceeded to hold in paragraphs 21 and 22 as under:

21. Being aggrieved by the said judgment and order of the High Court,

the management had preferred CA No. 1854 of 1998 and bein g

aggrieved by the conditions imposed while directing the absorption of

the employees, on behalf of the workmen CA No. 1855 of 1998 had been

preferred before this Court.

22. Para 10 of Parimal   Chandra   Raha   case  shows that while

considering at the SLP stage for granting leave, a two-Judge Bench of

this Court observed that the questions involved in these appeals are of

considerable importance and it will be desirable if the same is decided

by a Bench of three Judges. Consequently, both the appeals were heard

by a three-Judge Bench. Similar contentions as raised in the case on

hand were raised on behalf of the management and workmen. No doubt,

taking note of the de�nition in Section 2(l) of the Factories Act which

de�nes “worker”, the Court did not accept the workmen's contention

that employees of a statutory canteen ipso facto become the employees

of the establishment for all purposes. After considering Parimal

Chandra   Raha   case   and M.M.R.   Khan v. Union   of

India and RBI v. Workmen  this Court concluded that the

workmen of a statutory canteen would be the workmen of the

establishment for the purpose of the Factories Act only and not

for all other purposes. Had the three-Judge Bench sto pped

katkam Page No. 21 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 22/30 1_wp_9664.21_as.doc

therein, we have no other option except to apply the p rinciple

as stated in General   Labour   Union   (Red   Flag)   case  , Vividh

Kamgar   Sabha   case , Cipla   Ltd.   case , Sarva   Shramik   Sangh

case and Oswal   Petrochemicals . However, from para 23

onwards, the three-Judge Bench discussed the main issue with

which we are concerned, namely, “whether from the mate rial

on record it could be held that the workmen are, in f act, the

employees of the management for all purposes”. Since the factual

details that arose in Indian Petrochemicals case  are identical to the

case on hand, we reproduce the following discussion and the ultimate

conclusion : (Indian Petrochemicals Corpn. Ltd. case ………

(emphasis added)

33)Mr. Pendse strongly relies upon the judgment in Hindalco

Industries Company Limited particularly the observation wherein

the Apex Court has held that if the three Judges Bench in IPCL was

to stop at deciding the �rst issue of the workmen being treated as

workmen of Management only for the purpose of factories, th e

principles enunciated in General   Labour   Union   (Red   flag),

Bombay, Vividh   Kamgar   Sabha, Cipla   Limited and Sarva

Shramik Sangh could have been applied. According to Mr. Pendse in

Hindalco   Industries   Ltd., the Apex Court did not accept the

contention about absence of jurisdiction of Industrial Court despite

noticing the judgments in General   Labour   Union   (Red   flag),

Bombay, Vividh   Kamgar   Sabha,   Cipla   Limited and Sarva

Shramik Sangh   and went ahead to hold that factual details in

Hindalco   Industries   Ltd.  were similar to the one involved in

Indian   Petro   Chemicals   Corporation   Ltd.  and rejected the

objection of jurisdiction by holding in paragraph 27 as under:

27. In the light of what has been stated above and in view of

abundant factual details as mentioned in para 31 of this judgment

as well as the reasonings as laid down in Indian  Petrochemicals

Corpn.   Ltd.   case , we reject the stand taken by the appellant

Company. Accordingly, the appeal fails and the same is dismissed.

Inasmuch as the Industrial Court has issued directions as early as

on 15-10-1998 and not implemented due to court proceedings, we

direct the appellant Company to implement the same within a

period of three months from the date of receipt of copy of this

judgment. No costs.

katkam Page No. 22 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 23/30 1_wp_9664.21_as.doc

34)The issue that arises for consideration is whether the

judgments in Indian   Petrochemicals   Corporation   Ltd.  and

Hindalco Industries Ltd. have watered down the ratio of judgments

in General Labour Union (Red flag), Bombay , Vividh Kamgar

Sabha, Cipla Limited and Sarva Shramik Sangh . The answer to

my mind appears to be in the negative. In Indian Petrochemicals

Corporation Ltd., the Apex Court was not concerned with the issue

of jurisdiction of Industrial Court to entertain Complaint of unfair

labour practice as a direct Writ Petition was �led before this Court

seeking declaration of status of contract worker. Therefore, the

judgment in Indian Petrochemicals Corporation Ltd.  cannot be

cited in support of an absolute proposition that Industrial Court can

have jurisdiction to decide Complaint of unfair labour practice where

a declaration is sought that the contract is sham and bogus. Coming

to the judgment in Hindalco Industries Ltd. though it has taken

into consideration the argument about absence of jurisdiction of

Industrial Court to decide Complaint of unfair labour practice, in my

view, the Apex Court found it unnecessary to deal with or decide the

said issue as it found that the fact situation was identical to the one

involved in the Indian  Petrochemicals  Corporation Ltd.  case.

There is no discussion by the Apex Court about the issue of

jurisdiction of Industrial Court to entertain Complaint of unfair

labour practice in the light of existence of dispute about employer-

employee relationship. Though the argument of absence of

jurisdiction made on behalf of management is noted by the Apex

Court in paragraph 12 of the judgment, it has not decided the said

objection, but has proceeded to decide merits of the case while holding

that the concerned contract workers were direct workmen of the

management. It must also be borne in mind that the judgment of the

Apex Court in Sarva Shramik Sangh  has speci�cally decided the

katkam Page No. 23 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 24/30 1_wp_9664.21_as.doc

issue about need for reconsideration of view expressed in General

Labour Union (Red flag), Vividh Kamgar Sabha   and Cipla

Limited and two-Judges of the Apex Court has held that the view

expressed in the said judgments is correct and did not require any

reconsideration. In the light of this position the judgment in

Hindalco Industries Ltd., rendered in facts of that case cannot be

read to mean that as if the ratio in the aforesaid three Judgments is

reversed by the Bench of co-ordinate strength in Hindalco

Industries Ltd..

35)In my view therefore neither the judgment in Indian

Petrochemicals   Corporation  Ltd.  nor in Hindalco   Industries

Ltd. can be read in support of an absolute proposition of law that the

Industrial Court has jurisdiction to decide Complaint of unfair labour

practice in every case where declaration is sought about contract

being sham and bogus.

36)Mr. Pendse has also relied upon judgment of Division Bench of

this Court in Hindustan Coca Cola (supra) in which this Court has

held in paragraph 13 as under:

13. It would be apparent from the above observations of the

Supreme Court that if the employer-employee relationship is

established by the competent forum, viz., Industrial Tribunal or

Labour Court under the Industrial Disputes Act or the employer-

employee relationship is undisputed or indisputable then the

complaint under the M.P.T.U. & P.U.L.P. Act would be maintainable.

We hasten to add that as pointed out by the Supreme Cou rt

in Cipla,   Ltd. (vide supra), if at any time the employer-

employee relationship is recognised by the employer a nd

subsequently it is disputed such a question would be

incidental question arising under S. 32 of the Act a nd the

Labour Court or the Industrial Court as the case may be

would be competent to decide such question. However, in a

case where the employer had never recognised the workmen as his

employees and throughout treated these persons as employees of the

contractors, the Court constituted under S. 28 of the MRTU & PULP

Act will have no jurisdiction to entertain the complaint unless the

katkam Page No. 24 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 25/30 1_wp_9664.21_as.doc

status of relationship of employer-employee is �rst determined in a

proceedings under the Industrial Disputes Act.

(emphasis added)

37)In fact what is observed by Division Bench in Hindustan Coca

Cola  is reiteration of the ratio laid down by the Apex Court in its

judgment in Cipla Limited, in which also it is held that if the

employee is considered at any point of time as employee of the

establishment and subsequently the same is disputed, the question

would be an incidental question arising under section 32 of the

MRTU & PULP Act. The relevant �nding by the Apex Court in Cipla

Limited (supra) is as under:

If at any time the employee concerned was indisputably an employee of the

establishment and subsequently it is so disputed, such a question is an

incidental question arising under Section 32 of the Act.

38)Relying on the observations of Division Bench in Hindustan

Coca Cola, Mr. Pendse has contended that in the present case as

well, 26 workers were direct employees of the Petitioner-Company

prior to execution of contract in the year 2018 and that therefore

Industrial Court has jurisdiction to entertain the Complaint of unfair

labour practice. Though Mr. Pendse has submitted across the bar that

the 26 workers were treated as direct employees of the Petitioner-

Management, the pleadings in this regard in the Complaint appears

to be sketchy and there is no direct pleading to this e�ect. Faced with

this situation, Mr. Pendse has relied upon following averments in the

Complaint:

The present Complaint is made for the Employees as per annexure

‘A’ in the employment of Respondents No.1 Company since last so

many years more particularly as per Annexure ‘A’ to this complaint.

39)In my view the above averments in the Complaint cannot be

read to mean that the 26 workers were in direct employment of

katkam Page No. 25 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 26/30 1_wp_9664.21_as.doc

Petitioner-Company at any point of time. The above statement is

made essentially to narrate particulars of service of the concerned

workers. In the entire Complaint, there is no speci�c averment that

any of the said 26 workers were directly engaged by Petitioner-

Company at any point of time or that they were paid salaries directly

by Petitioner-Company. In fact, the tenor of the Complaint is such

that the workers are always treated as contract workers. To salvage

this situation, Mr. Pendse has sought to rely upon copy of

contract/work order issued in the name of Respondent No.2 and he

has submitted that the only contract placed on record by th e

Petitioner is the one e�ective from 1 April 2018 and that therefore

inference needs to be drawn that prior to 1 April 2018 there was no

contractor acting as the intermediatory between the workers and

Management. I am unable to accept this contention. In absence of any

direct averment by the Respondent-Union about direct engagement of

any of the workers by the Petitioner-Company, it was not necessary

for Petitioner-Company to produce contracts prior to the year 2018.

Since the Complaint is �led for seeking declaration of the direct

relationship with Petitioner-Company, it has produced the last

contract of Respondent No.2 to defend the Complaint. This however

does not mean that there are no contracts executed prior to 1 April

2018. In order to attract the jurisdiction of the Industrial Court by

relying upon the above quoted observations to the Apex Court in

Cipla Limited and of Division Bench in Hindustan Coca Cola it

was incumbent on part of the Respondent-Union to make a speci�c

averment in the Complaint that prior to the year 2018 all the workers

were direct employees of the Petitioner-Management. There is no such

averment in the entire Complaint and therefore it is not possible for

this Court to infer that there was direct employer-employee

relationship between the Petitioner-Company and workers at any

katkam Page No. 26 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 27/30 1_wp_9664.21_as.doc

point of time. The Industrial Court has palpably erred in holding that

there was subsisting employer-employee relationship prior to the year

2018, in absence of any averment, much less documentary evidence.

In my view therefore judgment of the Apex Court in Cipla Limited

or of this Court in Hindustan Coca cola cannot be relied upon for

the purpose of attracting jurisdiction of the Industrial Court to

entertain Complaint of Respondent-Union.

40)Strenuous reliance is placed on judgment of Single Judge of this

Court in Uni Klinger Ltd.  (supra). The Petition before this Court

was �led by the employer challenging �nal judgment and order of

Industrial Court by which the Complaints were allowed and the

employer was directed to grant status and bene�ts of permanency to

the workers concerned. The employer had denied employer-employee

relationship and had contended that the concerned workers were

engaged through contractors. Both the parties had led evidence and

thereafter the Complaints were allowed. The judgment is rendered by

this Court after noticing that employer therein did not produce any

document to show that the workers were contract labourers and that

they were working as contract labourers from �rst date they were

employed. This Court held in paragraphs 34 and 35 as under:

34. It is, thus, clear that the precondition for seeking remedy under

the MRTU and PULP Act, 1971 is the necessity of the existence of

the Employer-Employee relationship at some point in time. So also, if

there is no such relationship and if the Complainants are contract

employees right from the beginning of their services, the Principal

Employer as well as the Contractor can place on record the

documents to prove prima facie that no such relationship existed or

was established. This would, therefore, prove that the relationship is

disputable right from the day the contract labourers were deployed

in employment and then the complaint would be rendered untenable

at its threshold.

35. In the case in hand, barring the mere denials in the Written

Statements of the Petitioner as well as Respondent No. 5/Contractor,

for a period of 14 years of employment from 1985 to 1999, there was

katkam Page No. 27 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 28/30 1_wp_9664.21_as.doc

nothing placed before the Industrial Court to indicate that the

Complainants were indeed contract labourers and were working as

contract labourers from the �rst day they were deployed.

41)The judgment in Uni Klinger Ltd., in my view is rendered in

the facts of that case where there was an assertion by the workers

therein that they were engaged directly by the Petitioner therein. In

the present case there is no averment that the 26 workers were

earlier engaged directly by the Petitioner. Therefore, the judgment in

Uni Klinger Ltd. cannot be read in support of a proposition of law

that in every case the burden of proving non-existence of employer-

employee relationship since inception, would be on the employer and

that the Court can infer absence of contractual engagement from

inception even in absence of pleading to that e�ect.

42)The judgments of the Apex Court in Indian Petrochemicals

Corporation Ltd.  and Hindalco Industries Ltd.  will have to be

read in the context in which the same are rendered. Both th e

judgments essentially decide merits of contentions of workmen

therein and do not deal with the issue of jurisdiction of Industrial

Court. In this regard, reliance by Mr. Talsania on the judgment in

Bhavnagar University (supra) is apposite in which the Apex Court

has held in paragraph 59 as under:

59. A decision, as is well known, is an authority for which it

is decided and not what can logically be deduced therefrom.

It is also well settled that a little di�erence in facts or

additional facts may make a lot of di�erence in the

precedential value of a decision. [See Ram   Rakhi v. Union  of

India [AIR 2002 Del 458 (FB)] ,  Delhi   Admn.   (NCT   of

Delhi) v. Manohar Lal [(2002) 7 SCC 222 : 2002 SCC (Cri) 1670 :

AIR 2002 SC 3088] , Haryana   Financial   Corpn. v. Jagdamba   Oil

Mills [(2002) 3 SCC 496 : JT (2002) 1 SC 482] and Nalini Mahajan

(Dr) v. Director of  Income Tax (Investigation) [(2002) 257 ITR 123

(Del)]

(emphasis added)

katkam Page No. 28 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 29/30 1_wp_9664.21_as.doc

43)Though Mr. Talsania has relied upon judgment of the Apex

Court in Haldiya Refinary Canteen Employees Union  (supra), in

my view it is not necessary to refer to the ratio of the said judgment

as the same is rendered in the facts of that case where the Apex

Court noticed dissimilarity in fact situation as compared to the facts

in Indian   Petrochemicals   Corporation   Ltd.  (supra). Even

otherwise the judgment in Haldiya Refinary Canteen Employees

Union  may be relevant while deciding the merits of the case of

Respondent-Union and the same has no relevance for deciding the

issue of jurisdiction of the Industrial Court.

44)The conspectus of the above discussion is that Petitioner-

Company has clearly disputed existence of employer-employee

relationship. The Complaint itself proceeds on footing that there is no

employer-employee relationship and in fact seeks to establish the

same. In that view of the matter, the ratio of the judgments in

General Labour Union (Red flag), Vividh Kamgar Sabha, Cipla

Limited and Sarva Shramik Sangh would clearly apply in the

present case barring the jurisdiction of the Industrial Court to

entertain the Complaint of unfair labour practice. The judgment of

Division Bench in Hindustan  Coca   Cola  does not come to the

assistance of Respondent-Union as there is no averment in the

Complaint that any of the workers were ever treated as direct

employees of the Petitioner-Company. In my view therefore, the

Industrial Court has grossly erred in holding that there is subsisting

employer-employee relationship prior to the year 2018 for the purpose

of assuming jurisdiction.

45)In my view therefore, the impugned order passed by the

Industrial Court su�ers from palpable error warranting interference

katkam Page No. 29 of 30

::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::

k 30/30 1_wp_9664.21_as.doc

by this Court in exercise of jurisdiction under Article 227 of the

Constitution of India. Writ Petition accordingly succeeds, and I

proceed to pass the following Order:

(i)Order dated 1 October 2021 passed by Industrial Court is

set aside.

(ii)Complaint (ULP) No.2005 of 2019 is dismissed for want of

jurisdiction. Dismissal of the Complaint shall however not

preclude Respondent Union from taking appropriate steps

for establishing direct employer-employee relationship

with the Petitioner-Company by invoking the machinery

under the Industrial Disputes Act, 1947.

(iii)Nothing observed in the present judgment shall come in

the way of deciding merits of any Reference, if and when

made in this regard.

46)With the above directions, Writ Petition is allowed. Rule is

made absolute. There shall be no order as to costs.

(SANDEEP V. MARNE, J.)

47) After the judgment is pronounced, Mr. Pendse would pray for

continuation of services of the employees of Respondent-Union for a

period of six weeks. The request is fairly not opposed by the learned

counsel appearing for Petitioner-Company.

48)In that view of the matter, the services of the employees of

Respondent-Union shall be continued for a period of six weeks.

(SANDEEP V. MARNE, J.)

katkam Page No. 30 of 30

SUDARSHAN

RAJALINGAM

KATKAM

Digitally signed

by

SUDARSHAN

RAJALINGAM

KATKAM

Date:

2024.10.22

15:11:33 +0530 ::: Uploaded on - 22/10/2024 ::: Downloaded on - 30/08/2025 12:03:23 :::