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CASE NO.:

Appeal (civil) 3375 of 1998

PETITIONER:

VIVIDH KAMGAR SABHA

Vs.

RESPONDENT:

KALYANI STEELS LTD. & ANR.

DATE OF JUDGMENT: 09/01/2001

BENCH:

S.N.Variava, S.R.Babu

JUDGMENT:

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J U D G M E N T S. N. VARIAVA, J.

This Appeal is against an Order passed by the

Industrial Court on 20th August, 1996. Briefly stated the

facts are as follows: The Appellants claim to be a Union

representing the workmen of a Canteen run by the

Respondents. The Appellant Union claimed that even though

the Appellants are actually the employees of the

Respondents, the Respondents are not treating them at par

with other employees and have notionally engaged contractors

to run the canteen. As the Respondents were not accepting

the Appellants' claim to treat them as their employees, the

Appellant filed a Complaint under Section 28(1) of the

Maharashtra Recognition of Trade Unions & Prevention of

Unfair Labour Practices Act, 1971 (hereinafter called the

MRTU & PULP Act) alleging that the Respondents had engaged

in unfair labour practices under Item Nos. 1, 1(a), 1(b),

4, 4(a) of Schedule II and Items 3, 5, 6, 7, 9 and 10 of

Schedule IV of the MRTU & PULP Act. This Complaint came to

be dismissed by the impugned Order dated 20th August, 1996.

The Appellant Union has filed an SLP directly in this Court

against this Order as the High Court of Bombay, in the case

of Krantikari Suraksha Rakshak Sangathana v. S. V. Naik

reported in (1993) 1 CLR Page 1002, has already held that

the Industrial Court cannot in a complaint under MRTU & PULP

Act abolish contract labour and treat employees as direct

employees of the company. At this stage it must be

mentioned that this Court has also in the case of Central@@

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Labour Union (Red Flag) Bombay v. Ahmedabad Mfg. & Calico@@

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Printing Co. Ltd. and Ors. reported in (1995) 2 LLJ 765,

held that where the workmen have not been accepted by the

Company to be its employees, then no complaint would lie

under the MRTU & PULP Act. We are in full agreement with

the above mentioned view. The provisions of MRTU & 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

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established in an appropriate Forum that a complaint could

be made under the provisions of MRTU & PULP Act. Faced with

this situation it was submitted that the Respondent Company

had always recognised the members of the Appellant Union to

be their own workmen. It is submitted that a formal denial

was taken only to defeat the claim. We see no substance in

this submission. In the written statement it has been

categorically denied that the members of the Appellant Union

were employees of the Respondent Company. The question has

been agitated before the Industrial Court. The Industrial

Court has given a finding, on facts, that the members of the

Appellant Union were not employees of the Respondent

Company. This is a disputed fact and thus till the

Appellants or their members, get the question decided in a

proper forum, this complaint was not maintainable.

Accordingly, we dismiss this Appeal on the ground that the

complaint was not maintainable. We clarify that it is open

for the Appellant or their members to raise dispute in this

behalf before an appropriate forum provided they are

entitled to do so. If they get a declaration to the effect

that they are employees of the Respondent Company, then it

may be open to them to file such a complaint. It is also

clarified that if a dispute as to their status is raised in

an appropriate forum then the same will be decided on merits

without taking into consideration any observations made or

finding given by the Industrial Court in the impugned Order.