Sarva Shramik
Sangh Vs. M/S. Indian Smelting & Refining Co. Ltd. & Ors [2003] Insc
532 (28 October 2003)
Doraiswamy
Raju & Arijit Pasayat
(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 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 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
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 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 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) 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 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 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 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 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 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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