Raymond Ltd & another
Vs Tukaram Tanaji Mandhare & another
J U D G M E N T
Markandey Katju, J.
appeal has been filed against the impugned judgment of the Full Bench of the High
Court of Judicature at Bombay in Writ Petition Nos. Nos. 1204/2003, 7673/2003
learned counsel for the parties.
facts of the case are that the petitioners filed complaints under section 28 read
with items l (a)(b), (d) and (f) of Schedule IV of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, l97l (hereinafter referred
to as the MRTU and PULP Act), before the Industrial Court/Labour Court for certain
reliefs claiming that they are employees of the respondent company. The respondent
company in all these writ petitions has disputed the status of the employees and
has contended in its written statement that there is no relationship of employer
employee with any of the petitioners.
The company has contended
that the complainants were employed through the contractors and that the issue regarding
maintainability of the complaints would have to be decided by the court. During
the pendency of these complaints, the judgments in the case of Vividh Kamgar Sabha
vs. Kalyani Steel Ltd, (200l) 2 SCC 38l and in the case of Cipla Ltd. vs. Maharashtra
General Kamgar Union, (200l) 3 SCC l0l were pronounced by the this Court, and
relying upon these decisions, an application was made by the respondent company
before the court that the complaints were liable to be dismissed as there was no
employer employee relationship between it and the complainants. The Industrial Court/Labour
Court upheld the preliminary objection raised by the respondent company by holding
that the judgments in Kalyani Steel Ltd and Cipla Ltd (supra) were applicable to
the facts involved in the complaints and, therefore, the complaints deserve to be
dismissed. The complaints were accordingly dismissed.
the petitioners filed the present writ petitions challenging the dismissal of the
complaints. In the meantime by its judgment in Sarva Shramik Sangh vs. Indian Smelting
and Refining Co Ltd, (2003) l0 SCC 455 this Court has reiterated the view taken
in Kalyani Steel Ltd. (supra) and Cipla Ltd. (supra).
learned single Judge before whom the writ petitions came up for hearing noted
that all these cases decided by the this Court were in respect of industries governed
by the Industrial Disputes Act, l947, whereas the present petition relates to an
industry covered by the provisions of the Bombay Industrial Relations Act, l946
(hereinafter referred to as the BIR Act).
The learned single
Judge noted that in the case of Dattatraya Kashinath and others vs. Chhatrapati
Sahakari Sakhar Karkhana Ltd and others, l996 II LLJ l69 and in Sakhar Kamgar Union
vs. Shri Chhatrapati Rajaram Sahakari Sakhar Karkhana Ltd and others, l996 II CLR
67 Srikrishna J., as he then was, had held that a conjoint reading of section
3(5) of the MRTU and PULP Act and sections 3(l3) and 3 (l4) of the BIR Act would
indicate that even a person employed through a contractor in an industry governed
by the BIR Act is regarded as an employee under the MRTU and PULP Act and the
complaint filed by such an employee is maintainable under the MRTU and PULP
Act. The learned single Judge however, felt that another learned single Judge of
this Court (Khandeparkar J.) in Nagraj Gowda and others vs. Tata Hydro Electric
Power Supply Co Ltd, Bombay and others, 2003 III CLR 358 had expressed a
contrary view considering the judgments of the this Court in Kalyani Steel Ltd,
Cipla Ltd (supra) and Sarva Shramik Sangh (supra) as also the judgment of the
Division Bench of this Court in the case of Hindustan Coca Cola Bottling Pvt
Ltd. vs. Bharatiya Kamgar Sena, 200l III CLR l025. The learned single Judge therefore
decided to make a reference to a larger Bench in view of the conflicting decisions
of the learned single Judges of the High Court.
questions, which were referred to the Full Bench of the High Court were:- l) Whether
a person who is employed by a contractor who undertakes contracts for the execution
of any of the whole of the work or any part of the work which is ordinarily
work of the undertaking is an employee within the meaning of section 3(5) of the
MRTU and PULP Act? 2) Whether a complaint filed under the MRTU and PULP Act by an
employee as defined under section 3(l3) of the Bombay Industrial Relations Act,
is maintainable although no direct relationship of employer employee exists between
him and the principal employer? 3) Whether a complaint filed under the MRTU and
PULP Act by employees under section 3(l3) of the BIR Act can be dismissed if the
employer claims that they are not his direct employees but are employed through
a contractor, in view of the judgments of the Supreme Court in Cipla (supra), Kalyani
Steels Ltd (supra) and Sarva Shramik Sangh vs Indian Smelting and Refining Co
Full Bench of the Bombay High Court answered the question numbers 1 and 2
referred to it in the affirmative, and question number 3 in the negative provided
the contractors workmen were employed to do the work of the whole or part of
is this decision which has been challenged before us.
large numbers of decisions have been cited before us. e.g. Vividha Kamgar Sabha
vs. Kalyani Steel Ltd. & another (2001) 2 SCC 381, Cipla vs. MGK Union (2001)
3 SCC 101, Sarva Shramik Sangh vs. Indian Smelting & Refining Company Limited
(2003) 10 SCC 455, M/s Hindustan Lever Limited vs. Ashok Vishnu Kate (1995) 6 SCC
326, NTPC vs. Badri Singh Thakur and others. (2008) 9 SCC 377, Hindalco Industries
vs. Association of Engineering Workers (2008) 13 SCC 441, Ahmadabad Mfg. and Calico
Ptg. Co. Ltd. vs. Ram Tehel Ramnand (1972) 1 SCC 898, Saraspur Mill Co. Ltd.
vs. Ramanlal Chimanlal (1974) 3 SCC 66, Shramik Uttakarsh Sabha vs. Raymond Woolen
Mills Ltd. & others (1995) 3 SCC 78.
our opinion, in view of the difference of opinion in some of these decisions
and the importance of the controversy involved and its application particularly
in the State of Maharashtra, an authoritative decision is required by a larger
bench on the issues involved.
we refer the matter to a larger bench on the issues referred to above.
the papers of this case be placed before Hon'ble the Chief Justice of India for
constituting a larger bench.
(Gyan Sudha Misra)