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CASE NO.:

Appeal (civil) 8452 of 2003

PETITIONER:

Sarva Shramik Sangh

RESPONDENT:

M/s. Indian Smelting & Refining Co. Ltd. & Ors.

DATE OF JUDGMENT: 28/10/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

(Arising out of SLP(C) No. 4103 of 2002)

[With C.A. No. 8453/2003 (Arising out of S.L.P (C) No. 4105/2002, C.A.

No.8454-8459/2003 (Arising out of S.L.P (C).20005-20010/2003 CC No. 625-

630/03, C.A. No.8460/2003 (Arising out of S.L.P (C) No. 7210/2002, C.A.

No. 8461/2003 (Arising out of SLP(C) No.7151/2002, C.A. No.8462/2003

(Arising out of SLP(C) No.18341/2002, C.A.No. 8463/2003 (Arising out of

SLP(C) No.18521/2002)

ARIJIT PASAYAT, J

Leave granted.

Appellants contend that the view which was first expressed by this

Court in General Labour Union (Red flag), Bombay v. Ahmedabad Mfg. And

Calico Printing Co. Ltd and Ors. (1995 Supp (1) SCC 175), subsequently

echoed in many cases including Vividh Kamgar Sabha v. Kalyani Steels

Ltd. and Anr. (2001 (2) SCC 381) and finally in CIPLA Ltd. v.

Maharashtra General Kamgar Union and Ors. (2001 (3) SCC 101) is legally

unsound and needs a fresh look.

It was held in first of the three cases that the workmen have to

establish that they are workmen of the respondent-company before they

can file any complaint under the Maharashtra Recognition of Trade Unions

and Prevention of Unfair Labour Practices Act, 1971 (in short the

'Maharashtra Act'). Similar was the view expressed in Vividh Kamgar's

case (supra) and CIPLA Ltd.'s case (supra).

According to the appellants a fresh look is necessary in the

matter, as various relevant provisions were not kept in view when the

above decisions were rendered.

Ms. Indira Jaisingh, made leading submissions followed by Shri

V.A. Mohta,, Mr. Chander Udai Singh, Sr. Advocates and others on behalf

of the appellants, whereas Shri P.P. Rao. learned Senior Counsel

followed by Sarvashri D.A. Dave, B.R. Naik and Shekhar Naphade, Sr.

Advocates and others responded on behalf of the respondents. On behalf

of the appellants-workmen, relying upon Section 59 of the Maharashtra

Act, it was urged strenuously that the machinery under the said Act as

well as Industrial Disputes Act, 1947 (in short the 'ID Act') are co-

extensive and equally wide and the scope of judicial determination under

both the Acts is the same and that therefore there was no warrant to

assume that the procedure envisaged under the Maharashtra Act is

summary. While pursuing further the said stand it is claimed that in

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cases where the workmen seek to obtain a declaration that they were at

all times the workmen of the principal employer and the interposition of

contractor or engagement through him was neither bona fide nor genuine

but merely a camouflage designed to defeat the rights of the laborers

remedies are available under both the above enactments to be availed of

at the option and choice of the workman concerned under anyone or other,

though not under both. It was also contended that Section 7 or Section

28 and 32 of the Maharashtra Act cannot be construed so as to keep out

of the purview of the Act, even an adjudication as to the existence of

relationship of the workmen vis-a-vis the principal employer not

withstanding that it is disputed or denied by the principal employer and

being a beneficial legislation meant to provide workmen a more

beneficial and expeditious additional remedy a liberal construction has

to be placed in furtherance of the avowed object. Further, it is

contended that when more than one statute governed the situation the

provisions have to be harmoniously construed, giving each of them a full

play rationally without whittling down the scope of anyone of them,

keeping in view the basic principle that where there is no express bar

to a jurisdiction, ouster of jurisdiction could not be lightly inferred,

to avoid rendering provisions in a statute otiose or redundant. Most

rational way of such an harmonious construction would therefore,

according to the appellants lead to the ultimate conclusions a) of

questions relating to abolition of contracts and consequential

absorption can be raised before Industrial Courts, though by virtue of

Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970

(in short the 'Contract Labour Act') the question relating to abolition

will be decided only by the Government and the Industrial Forums will

keep the matter pending, to finally dispose of the other issues after

the decision of Government under the said Act and b) the dispute

relating to the sham nature of the employment through contractor can be

raised under the Maharashtra Act or ID Act at the option or choice of

the workmen. The expression 'enquiry' as appearing under the Maharashtra

Act is said to go far beyond the 'adjudication' contemplated in

Industrial Law and therefore convey wider powers and jurisdiction.

It was submitted that the Maharashtra Act is a complete code in

itself. If the forum provided therein can co-exist with the Tribunal

under the ID Act, it is essentially an alternative forum with additional

remedies. Definition of "workman" was by the logic of incorporation

and, therefore, the Tribunal under the ID Act alone can not held

competent to effectively decide the question whether the claimant in

reality was a workman or not. It was also submitted that this Court

erroneously proceeded on the footing as if the proceedings under the

Maharashtra Act are summary in nature.

Per contra, on behalf of the respondents-

Management/establishments, it was contended that when three different

Benches of this Court have consistently taken the view that the basic

question as to existence of relationship of employer-employee is not

within the purview of the Maharashtra Act and the same hold the field

for over 10 years it would require very strong reasons for any one to

doubt the correctness of such a view and that the mere reason that there

may even be scope for another possible view, is no ground for

reconsideration of the earlier decisions as held by this Court in Keshav

Mills Ltd. vs. Commissioner of Income Tax [1965(2) SCR 908 at pages 921,

928).

On the merits of the contentions raised on behalf of the

appellants while reiterating the plea that the principles laid down in

CIPLA's case (supra) are unexceptionable and well merited having regard

to the scheme, purpose and object of the legislations under

consideration and legislative intent as expressed in the language of the

various provisions therein and do not call for any reconsideration,

merely because there was no reference to a particular provision or

other, wherein according to the respondents all relevant principles and

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criteria necessary for the purpose have been found effectively kept into

consideration. According to the respondents the scope for the

Maharashtra Act is limited in nature and confined to consideration of

claims and grievances of unfair labour practices of certain kind by

prohibiting employer or union and employees from engaging in any unfair

labour practice and the existence of an undisputed or indisputable

relationship of employer-employee is an essential pre-requisite for the

labour or Industrial Court under the Maharashtra Act to entertain any

proceedings in respect of any grievance under the said Act. Section 32

of the Maharashtra Act, it is urged is to be considered in the context

of Sections 26 and 27 read with the relevant entries in the Schedules in

these cases, particularly items 5, 6, 9 & 10 and in the absence of

accepted or existing relationship of employer-employee duly declared in

competent proceedings, neither Section 5 nor Section 7 or even Section

28 enabled a complaint to be entertained for consideration of such

grievances as are sought or permitted to be agitated under the

Maharashtra Act.

The further plea on behalf of the respondents was that the scope

of adjudication under the ID Act is much wider in which all or any types

and nature of industrial disputes including claims for declaration of

status or relationship of "Master and Servant or Employer and Employee"

can also be agitated and determined and not under the Maharashtra Act.

Consequently, it is claimed that questions as to whether the contract

under which contract labour was engaged was a sham and nominal or a mere

camouflage and if so whether by piercing the veil they should be

declared to be really the employees of the principal employer are

matters which could be got referred to for adjudication by seeking a

reference under ID Act only and are totally outside the jurisdiction of

the Courts constituted under the Maharashtra Act.

The decision of the Constitution Bench in Steel Authority of India

Ltd. and Ors. v. National Union Waterfront Workers and Ors. (2001 (7)

SCC 1) in several paragraphs particularly paras 65, 108, 112, 113, 117,

125 makes the position clear that a dispute of the nature previously

projected has perforce to be adjudicated on the issue as to whether a

person was a workman under the employer.

The relevant paragraphs so far as relevant read as follows:

"65. The contentions of the learned counsel for the

parties, exhaustively set out above, can conveniently

be dealt with under the following two issues :

A. Whether the concept of automatic absorption of

contract labour in the establishment of the principal

employer on issuance of the abolition notification,

is implied in Section 10 of the CLRA Act; and

B. Whether on a contractor engaging contract labour

in connection with the work entrusted to him by a

principal employer, the relationship of master and

servant between him (the Principal employer) and the

contract labour, emerges.

108. The next issue that remains to be dealt with is

:

B. Whether on a contractor engaging contract labour

in connection with the work entrusted to him by a

principal employer, the relationship of master and

servant between him (the principal employer) and the

contract labour emerges.

112. The decision of the Constitution Bench of this

Court in Basti Sugar Mill's case (supra), was given

in the context of reference of an industrial dispute

under the Uttar Pradesh Industrial Disputes Act,

1947. The appellant-Sugar Mills entrusted the work of

removal of press-mud to a contractor who engaged the

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respondents therein (contract labour) in connection

with that work. The services of the respondents were

terminated by the contractor and they claimed that

they should be reinstated in the service of the

appellant. The Constitution Bench held :

"The words of the definition of

workmen in Section 2(z) to mean "any

person (including an apprentice)

employed in any industry to do any

skilled or unskilled, manual,

supervisory, technical or clerical work

for hire or reward, whether the terms of

employment be express or implied" are by

themselves sufficiently wide to bring in

persons doing work in an industry

whether the employment was by the

management or by the contractor of the

management. Unless however the

definition of the word "employer"

included the management of the industry

even when the employment was by the

contractor the workmen employed by the

contractor could not get the benefit of

the Act since a dispute between them and

the management would not be an

industrial dispute between "employer"

and workmen. It was with a view to

remove this difficulty in the way of

workmen employed by contractors that the

definition of employer has been extended

by sub-clause (iv) of Section 2(i). The

position thus is : (a) that the

respondents are workmen within the

meaning of Section 2(z), being persons

employed in the industry to do manual

work for reward, and (b) they were

employed by a contractor with whom the

appellant company had contracted in the

course of conducting the industry for

the execution by the said contractor of

the work of removal of press-mud which

is ordinarily a part of the industry. It

follows therefore from Section 2(z) read

with sub-clause (iv) of Section 2(i) of

the Act that they are workmen of the

appellant company and the appellant

company is their employer."

113. It is evident that the decision in that case

also turned on the wide language of statutory

definitions of the terms "workmen" and "employer". So

it does not advance the case pleaded by the learned

counsel.

117. We find no substance in the next submission of

Mr. Shanti Bhushan that a combined reading of the

definition of the terms contract labour,

establishment and workman would show that a legal

relationship between a person employed in an industry

and the owner of the industry is created irrespective

of the fact as to who has brought about such

relationship.

125(5). On issuance of prohibition notification under

Section 10(1) of the CLRA Act prohibiting employment

of contract labour or otherwise, in an industrial

dispute brought before it by any contract labour in

regard to conditions of service, the industrial

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adjudicator will have to consider the question

whether the contractor has been interposed either on

the ground of having undertaken to produce any given

result for the establishment or for supply of

contract labour for work of the establishment under a

genuine contract or is a mere ruse camouflage to

evade compliance of various beneficial legislations

so as to deprive the workers of the benefit

thereunder. If the contract is found to be not

genuine but a mere camouflage, the so-called contract

labour will have to be treated as employees of the

principal employer who shall be directed to

regularise the services of the contract labour in the

concerned establishment subject to the conditions as

may be specified by it for that purpose in the light

of para 6 hereunder."

In view of the rival submissions it would be appropriate to take

note of the conclusions arrived at by this Court earlier. First at

point of time is the General Labour Union's case (supra). This Court,

inter alia, observed as follows:

"The workmen have first to establish that they

are the workmen of the respondent-company before they

can file any complaint under the Act. Admittedly,

this has not been done. It is open for the workmen to

raise an appropriate industrial dispute in that

behalf if they are entitled to do so before they

resort to the provisions of the present Act".

In V. Kamgar's case (supra) it was, inter alia, observed as

follows:

"At this stage it must be mentioned that this

Court has also in the case of General Labour Union

(Red Flag), Bombay v. Ahmedabad Mfg. And Calico

Printing Co. Ltd. held that where the workmen have

not been accepted by the company to be its employees,

then no complaint would lie under the MRTU and PULP

Act. We are in full agreement with the above-

mentioned view.

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 first 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.

Then comes the last of the cases i.e. CILPA's case (supra) where

detailed analysis have been made of the legal position. In paras 8 and 9

and 10 it was observed 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

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same. If the case put forth by the workmen is that

they have been directly employed by the appellant

company but the contract itself is a camouflage and,

therefore, needs to be adjudicated is a matter which

can be gone into by appropriate Industrial or Labour

Court. Such question cannot be examined by the

Labour Court or the Industrial Court constituted

under the Act. The object of the enactment is,

amongst other aspects, enforcing provisions relating

to unfair labour practices. If that is so, unless it

is undisputed or indisputable that there is employer-

employee relationship between the parties, the

question of unfair 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

repudiated their relationship with the contractor

under whom they are employed but claim relationship

of an employee under the appellant. That exercise of

repudiation of the contract with one and

establishment of a legal relationship with another

can be done only in a regular Industrial

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 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 the workman can be stated to

be the workman of the appellant establishment or not,

it must be held that the contract between the

appellant and the second respondent is a camouflage

or bogus and upon such a decision it can be held that

the workman in question is an employee of the

appellant establishment. That exercise, we are

afraid, would not fall within the scope of either

Section 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 question as

to relationship of employer-employee cannot be gone

into. 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. Even the case pleaded by the respondent Union

itself is that the appellant establishment had never

recognized 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)

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v. Ahmedabad Mfg. & Calico Printing Co. Ltd. (1995

Supp (1) SCC 175), which view was reiterated by us in

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

SCC 381).

10. However, Shri Singhvi very strenuously

contended, by adverting to the scope of the Payment

of Wages Act, 1936 and the scope of Section 33-C(2)

of the Industrial Disputed Act, that these questions

can be gone into by the courts and, in this context,

he relied upon the decision of the High Court of

Bombay in Vishwanath Tukaram v. G.M. Centeral Rly.,

V.T. In determining whether the wages had been

appropriately paid or not, the authority under the

Payment of Wages Act was held to have jurisdiction to

decide the incidental question of whether the

applicant was in the employment of the railway

administration during the relevant period. It means

that at one time or the other the employee concerned

was indisputably in employment and later on he was

found to be not so employed and in those

circumstances, the court stated that it was an

incidental question to be considered."

Reference has also been made to Sections 27, 28, 29 (d) and 32 of

the Maharashtra Act. While Section 27 deals with prohibition on engaging

in unfair labour practices, Section 28 empowers filing of a complaint.

Any union or an employee or an employer or any investigating agency has

the locus to file a complaint. Section 29 (d) categorises parties on

whom order of Court is binding. Great emphasis was laid on Section 32 of

the Maharashtra Act by the appellant to contend that matters connected

with the dispute can be gone into under the provision. The expression

"all matters arising out of" clearly emphasizes that it has

connections, and not that it is the basic issue. There is a gulf of

difference between a basic issue and something connected with or arising

of the application. In Rex v. Basudev (1950 FC 67), it was observed

that the connection contemplated must be real and proximate not far

fetched or problematical. By no logic it can be a substitute of the

other. "In connection with any assessment" (Canada: Income War Tax Act

R.S.C. 1927 (C.97)S.66) has been interpreted as "having to do with" in

Re Nanaino Community Hotel (1945) 3 D.L.R. 225. The basic question which

was raised also in CIPLA's case (supra) relates to the existence of the

relationship, and of any dispute connected with that. For getting

protection under the Maharashtra Act, it has first to be established

that the complainant is an employee of a person under whom he claims to

be an employee, and against whom he files a complaint. In other words,

the determinative question is can anybody who is not an 'employee' of or

under a person against whom a grievance is sought to be made file a

complaint under the Act and the answer is inevitably 'No'. The

fundamental issue therefore is whether the complainant is an employee of

the person against whom a complaint is made under the Maharashtra Act

and if there is a dispute, he has to establish it, first before the

appropriate forum designated for adjudication of such industrial

disputes. Section 32 does not aid the appellant in the sense that it is

not a matter arising out of the application, when the pre-existing

relationship of employer-employee is a must and an essential pre-

requisite. It is the core issue on which only the very locus to make a

complaint can at all be claimed. A person who does not answer the

description has no legal locus to file a complaint. A jurisdictional

fact is one on the existence or otherwise of which depends assumption or

refusal to assume jurisdiction by a court, tribunal or the authority.

Said fact has to be established and its existence proved before a Court

under the Maharashtra Act can assume jurisdiction of a particular case.

If the complaint is made prima facie accepting existence of the

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contractor in such a case what has to be first established is whether

the arrangement or agreement between the complainant and the contractor

is sham or bogus. There is an inherent admission in such a situation

that patently the arrangement is between the complainant and the

contractor and the claim for a new and different relationship itself is

a disputed fact. To put it differently, the complainant seeks for a

declaration that such arrangement is not a real one but something which

is a façade. There is no direct agreement between the complainant and

the principal employer and one such is sought to be claimed but not

substantiated in accordance with law. The relief in a sense relates to a

legal assumption that the hidden agreement or arrangement has to be

surfaced. Entries 5, 6, 9 and 10 of Schedule IV of Maharashtra Act read

as follows:

"5- To show favouritism or partiality to one set of

workers, regardless of merits.

6. To employ employees as "badlis", casuals or

temporaries and to continue them as such for years,

with the object of depriving them of the status and

privileges of permanent employees.

9. Failure to implement award, settlement or

agreement.

10. To indulge in act of force or violence".

The ID Act is undisputedly a comprehensive statute which provides

for investigation and settlement of industrial disputes. The term

'industrial dispute' as defined in Section 2(k) is of a wide amplitude

and can encompass the nature of dispute raised by the complainant. The

Contract Labour Act is also a self-contained legislation aiming at

regulations and abolition of contract labour. What is conferred under

Section 18 of the said Act is to be exercised having regard to the

relevant factors which are mentioned in clauses (a) to (d) of sub-

section (2) thereof. It is significant that both the ID Act and the

Contract Labour Act were in existence and operation when the Maharashtra

Act was enacted. The method of availing benefit of the Contract Labour

Act is indicated in Gujarat Electricity Board, Thermal Power Station,

Ukai, Gujarat v. Hind Mazdoor Sabha and Ors. (1995 (5) SCC 27) where it

was specifically held by this Court that the status of erstwhile

contract labourers can only effectively be determined under the ID Act.

As noted above, considerable emphasis was laid on the fact that

Section 59 of the Maharashtra Act was not noticed in CIPLA's judgment. A

bare reading of the said provision makes it clear that no proceeding

under the Bombay Industrial Relations Act, 1946 or the ID Act shall be

entertained when proceedings in respect of any matter falling within the

purview of the Maharashtra Act is already instituted. A complaint in

which relief is sought for a declaration of a status as a direct

employee of the principal employer and other consequential reliefs in

terms of benefits and conditions of service applicable to workers

directly employed by the principal employer is not a matter which falls

within the purview of the Maharashtra Act. Therefore, Section 59 has no

application in such a case. Under the Maharashtra Act the Designated

Court decides the complaint as provided under Sections 5 and 7 of the

said Act. For the purpose of deciding the complaint enquiry under

Section 30(3) of the said Act read with Section 28 is contemplated. The

power to decide the complaint revolves round the question whether

ingredients for constituting unfair labour practice exist or not.

However, the power of adjudication under the ID Act is not circumscribed

by the existence or non-existence of unfair labour practice and goes far

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beyond it.

The meaning and intention of the legislature, which must govern

the interpretation of a provision in a statute, have to be ascertained

not only from the language in which it is clothed but also by

considering its nature, its design and the consequences, which would

follow in construing it either way. Reports of Commissions or Inquiry

Committees preceding the introduction of a Bill for the enactment have

been always viewed as providing evidence of the historical facts or of

surrounding circumstances or of mischief or evil intended to be remedied

and at times even for interpreting the Act, as external aids to

construction of the Act (vide R.S. Nayak vs. A.R. Antulay [1984(2) SCC

183 @ 214) and Mithilish Kumar vs. Prem Bihari Khare [1989 SC 1247 @

1252] and Shriram Chits & Investments (P) Ltd. vs. U.O.I. [1993 SC 2063

@ 2066, 2080]. The report of the Committee on unfair labour practices

which preceded the Maharashtra Act, while noticing the fact that the

expression 'unfair labour practices' was being used in all fields and

areas connected with industrial relations in a wider sense and loosely

worded manner and not always to mean certain activities connected with

collective bargaining, sought to enumerate the types of such practices

as were illustrated during course of enquiries by the employees and

their organizations, unions and also individual workers or groups of

individual workers and specifically states that "after a careful

scrutiny, we have selected only a few of them because we are of the view

that the net of unfair labour practices should not be cast too wide."

As the preamble to the Maharashtra Act would recite, the State

Legislature after taking into consideration the report of the Committee,

thought fit to decide among other things to define and provide for the

prevention of certain unfair labour practices and to constitute courts

for carrying out the purposes of according recognition to trade unions

and for enforcing in that context the provisions relating to unfair

practices. The fact that there were in existence and force, at that

point of time several related laws such as ID Act, Contract Labour Act,

Bombay Industrial Relations Act, etc. and the provisions of the

Maharashtra Act was not to be in derogation of those laws cannot also be

overlooked in trying to understand and interpret the provisions in

question, and the issue now the subject matter of these appeals.

As pointed out supra the main grievance voiced is about the so-

called omission to specifically notice Section 59 while rendering the

decision in Ciplas case (supra). Section 59 reads as follows:

"59. Bar of proceeding under Bombay or Central

Act:- If any proceeding in respect of any matter

falling within the purview of this Act is

instituted under this Act, then no proceeding

shall at any time be entertained by any

authority in respect of that matter under the

Central Act or, as the case may be, the Bombay

Act; and if any proceeding in respect of any

matter within the purview of this Act is

instituted under the Central Act, or as the case

may be, the Bombay Act, then no proceedings

shall at any time be entertained by the

Industrial or Labour Court under this Act."

Section 7 reads as follows:

"7. Duties of Labour Court:- It shall be the

duty of the Labour Court to decide complains

relating to unfair labour practices described in

item 1 of Schedule IV and to try offences

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punishable under this Act."

Section 28 reads thus:

"28. Procedure for dealing with complaints

relating to unfair labour practices: -(1) Where

any person has engaged in or is engaging in any

unfair labour practice, ten any union or any

employee or any employer or any Investigating

Officer may, within ninety days of the

occurrence of such unfair labour practice, file

a complaint before the Court competent to deal

with such complaint either under section 5, or

as the case may be, under section 7, of this

Act:

Provided that, the Court may entertain a

complaint after the period of ninety days from

the date of the alleged occurrence, if good and

sufficient reasons are shown by the complainant

for the late filing of the complaint.

(2) The Court shall take a decision on every

such complaint as far as possible within a

period of six months from the date of receipt of

the complaint.

(3) On receipt of a complaint under sub-section

(1), the Court may, if it so considers

necessary, first cause an investigation into the

said complaint to be made by the Investigating

Officer, and direct that a report in the matter

may be submitted by him to the Court, within the

period specified in this direction.

(4) While investigating into any such complaint,

the Investigating Officer may visit the

undertaking, where the practice alleged is said

to have occurred, and make such enquiries as he

considers necessary. He may also make efforts

to promote settlement of the complaint.

(5) The Investigating Officer shall, after

investigating into the complaint under sub-

section (4) submit his report to the Court,

within the time specified by it, setting out the

full facts and circumstances of the case, and

the efforts made by him in setting the

complaint. The Court shall, on demand and on

payment of such fee as may be prescribed by

rules, supply a copy of the report to the

complainant and the person complained against.

(6) If, on receipt of the report of the

Investigating Officer, the Court finds that the

complaint has not been settled satisfactorily,

and that facts and circumstances of the case

require, that the matter should be further

considered by it, the Court shall proceed to

consider it, and give its decision.

(7) The decision of the Court, which shall be in

writing, shall be in the form of an order. The

order of the Court shall be final and shall not

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be called in question in any civil or criminal

court.

(8) The Court shall cause its order to be

published in such manner as may be prescribed.

The order of the Court shall become enforceable

from the date specified in the order.

(9) The Court shall forward a copy of its order

to the State Government and such officers of the

Stat e Government as may be prescribed."

Section 32 reads as hereunder:

"32. Power of Court to decide all connected

matters:- Notwithstanding anything contained in

this Act, the Court shall have the power to

decide all matters arising out of any

application or a complaint referred to it for

the decision under any of the provisions of this

Act. "

Inferentially, from the above it is sought to be asserted that

there is a statutory recognition in Section 59 as to the entitlement of

a worker, at his option or choice to have recourse to anyone of the

statutory remedies under the different Acts and therefore all and every

question relating to the redress sought including as to whether a person

is an 'employee' can also be decided by the Courts under the Maharashtra

Act. This too general and wide assertion completely overlooks the

stipulation made, "If any proceeding in respect of any matter falling

within the purview of this Act is instituted" in the said provision.

As to what matters fall within the purview of the Act is to be found

outside Section 59 and there is no such indicator, in this regard in

Section 59 itself. That was, what has been specifically, elaborately

and analytically found dealt with in CIPLA's case (supra) by the learned

Judges and mere non-mention of Section 59 in the judgment is no

justification to contend that they were either unaware of it or that a

relevant and necessary provision which ought to have been considered has

been overlooked, which if had been adverted to the result would or ought

to be different from the one taken, in that case. We have carefully

gone through the construction placed upon the statutory provisions

noticed and conclusions drawn as to the class or category of matters

which only would fall within the purview of the Maharashtra Act and the

necessity for any complainant to answer the description, as a condition

precedent, to be or having been treated by the employer as his

'employee' and the relationship of employee and employer with the

employer against whom any such complaint of unfair labour practice is

made and relief therefor is sought is beyond controversy and common case

or accepted position and that we are in respectful agree with the same.

The interpretation of the relevant provisions of the Maharashtra Act

appears to be in tune with the legal sense of the words construed in the

context of the statute and the jurisdiction of the authorities

constituted thereunder. Such a construction paves way for avoiding

uncertainty as well as possible inconsistency or expression of

contradictory views when more than one group chose to avail different

forums for similar kind of relief and therefore could not be said to

have resulted in serious injustice, hardship or anomaly to warrant the

countenance of a different view. A careful, critical and analytical

scrutiny of the various provisions which consciously and conspicuously

use the words 'employee' and 'employer' in all the relevant provisions

would postulate the pre-existing relationship of such employee and

employer being an accepted/acceptable fact. Consequently, the question

of ousting the jurisdiction of an assumed and unfound jurisdiction to be

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otherwise existing, does not at all arise.

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 different. 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

paragraph 9 of CILPA's case (supra) 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 competent 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 first 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 effectively get it adjudicated and that is what has been

precisely said in the three decisions. Once the existence of 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 façade and sham one which has no real effectiveness.

As rightly observed in CIPLA's case (supra), 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 effect 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's case (supra) 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 sort out. That being the position, we

find that there is no scope for re-considering CIPLA's case (supra), the

view which really echoed the one taken about almost a decade back.

That apart, as held by a seven member Constitution Bench judgment

of this Court in Keshav Mills's case (supra), 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

satisfied 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's case (supra) was taken not only in tune with the earlier

decisions of this Court in General Labour Union (Red Flag) Bombay's case

(supra) and Vividh Kamgar Sabha's case (supra) 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.

That being the position, these appeals are without merit and

deserve dismissal. Costs made easy.

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