decision that in the absence of employeremployee
relationship, the
Industrial Court shall not have jurisdiction under Section 28 of the
M.R.T.U and P.U.L.P Act, is not disputed by learned counsel Shri Rohit
Deo appearing for the respondents. After going through the
averments made in the complaint, I do not find any specific averment
that the complainants are either working in the Modern School or in
the Jingle Bell School. The vague assertion is that they are employees
of the petitioner Society. The complainants have not produced the
letter of appointment in support of such stand. One of the
complainants has entered the witnessbox
and has stated that Jungle
Bell and Modern School are two different entitites and that he is not
aware as to how many out of 31 employees are working at Jingle Bell
School and how many are working with J.K.Education Society. The
complainants have failed to discharge their initial burden to establish
relationship of employeremployee
and therefore, there was no
question of the petitioner to lead evidence in rebuttal. Therefore, the
Industrial Court has committed an error in entertaining such
complaint and issuing direction to the petitioner to grant benefit of the
resolution at Exh. 40 to the complainant. The judgment and order
impugned cannot, therefore, be sustained and the complaint in liable
to be dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1876 of 2009
J.K. Education Society,
Versus
Shri Sunil Uaike.
Coram : R.K. Deshpande, J.
Dated : 05 th October, 2015
Citation; 2016(2) ALLMR50
1. In Complaint (ULP) No.614 of 2000, the Industrial Court, by
its judgment and order dated 142009,
has held that the
petitioneremployer
is engaged in an unfair labour practice under
Item 5 of Schedule IV of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (for short, “the
MRTU & PULP Act”). The direction is given to the petitioneremployer
to cease and desist from such unfair labour practice. It is the further
direction given to the petitioneremployer
to grant benefits of the
Government Resolution at Exhibit 40 dated 1351999
to the
complainants in their employment from the date of the said
Government Resolution. This is the subjectmatter
of challenge in this
petition by the original respondent in the said complaint.
2. The case of the complainants before the Industrial Court was
that the complainants are ClassIII
and ClassIV
employees of the
petitionerSociety
and are the “workmen”, as defined under
Section 3(5) of the MRTU & PULP Act. It is alleged in the complaint
that the petitionerSociety
is registered under the Societies
Registration Act and the Bombay Public Trusts Act and it carries out
imparting of education in two different heads (
i) Jingle Bell
Kindergarten, and (ii) Modern School. It is further alleged in the
complaint that the petitionerSociety
is having two branches – one at
Rani Kothi, Civil Lines, Nagpur, and another at Koradi Road, Nagpur,
and the same are headed by Smt. Neeru Kapai and Shri S.M. Joshi. It
is further alleged that the petitionerSociety
is a private Institution, for
which the Government of Maharashtra has adopted the payscales
as
recommended by the 5th Pay Commission for the employees. It is
alleged that the petitionerSociety
has accepted the payscales
recommended by the 5th Pay Commission to its teachers and
managerial staff, however the benefits of it are not extended to
ClassIII
and ClassIV
employees. It is alleged that the complainants
are getting Rs.2,000/per
month, and in spite of making
representations, the payment is not being made as per the
recommendations of the 5th Pay Commission. The complainants
invoked Item 9 of Schedule IV of the MRTU & PULP Act and claimed
the payscales
as recommended by the 5th Pay Commission for
ClassIII
and ClassIV
employees with effect from 111996
along with
the interest at the rate of 18% per annum.
3. In the written statement filed by the petitionerSociety,
the
claim was opposed and the specific stand is taken that many of the
complainants are not the employees of the petitionerSociety,
which
runs only Modern School. It is the further stand taken that the
complainants may be the employees of Jingle Bell Kindergarten, which
is a separate entity and does not come under the purview of the
petitionerSociety.
The complainants have not joined their employer as
a partyrespondent
and hence the complaint is liable to be dismissed
for nonjoinder
of necessary party. It is the further stand taken that
the petitionerSociety
runs Modern School, which is not receiving any
grant from the State Government and it is an unaided School. It is
also the stand taken that the complaint is liable to be dismissed for
misjoinder of parties.
4. One of the complainants, viz. Sunil s/o Vasantrao Uike,
entered the witnessbox
and deposed in the crossexamination
as
under :
“ The Complaint is filed by 31 employees. I cannot
tell how many of these 31 employees are working at
Jingle Bell. And how many are working with J.K.
Education Society. I have made no enquiry about
Jingle Bell whether is Company or Society or Trust etc.
Jingle Bell is up to KG Standard. J.K. Education
Society runs Modern School and classes from 1st to
12th Standard. It is not correct that because Jingle Bell
and Modern School are working in one building I am
calling them to be one unit. To my information Mrs.
Neeru Kapai is the sole office bearer. It is correct that
Jingle Bell is partnership firm. I do not know the
names of partners. I am given appointment order by
J.K. Education Society. In my appointment letter there
is no condition regarding my transfer to Jingle Bell as
well there is no such condition in the appointment
letters of the other complainants. I have not filed
documents on record to show that 5th pay commission
is made applicable to private schools. It is not correct
that pay commission is only applicable to Government
employees. It is correct that Jingle Bell and Modern
School are not getting government aid. I am now
shown Exh.40 it is not correct that Exh40
Government
resolution is not applicable to private unaided
schools. ...”
5. In the decision of this Court in the case of Lokmat,
Proprietors, Lokmat Newspapers Ltd. v. Prabhakar Rambhauji
Choudhari and others, reported in 2003(1) Mh.L.J. 485, it has been
held in para 16 as under :
“16. The issue which is raised before the Court is as
regards the jurisdiction of the Industrial Court to
entertain the complaint under MRTU and PULP Act
1971, in a case where the very relationship between the
parties of employer and employee is in dispute. This
issue arises on the ratio of the authorities cited before
this Court in General Labour Union (Red Flag) Bombay
(cited supra) which held that the workmen have first to
establish that they are workmen of the respondent
Company before they can file any complaint under the
Act. This was followed by the Supreme Court in the
subsequent cases like Vividh Kamgar Sabha (cited
supra) and the Supreme Court observed in reference to
the cases of General Labour Union (Red Flag) Bombay,
that the provisions of MRTU and PULP Act, 1971 can
only be enforced by persons who admittedly are
workmen. If there is a 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 workman is established in an appropriate forum
that the complaint could be made under the provisions
of the MRTU and PULP Act, 1971. In the very case, the
Supreme Court also took into consideration the
contention of behalf of the workmen that in a given
case, a formal denial of such a relationship can be
taken only to defeat the claim, which has been repelled
by the Supreme Court by observing that in the case of
Vividha Kamgar Sabha (cited supra) also, it was a
disputed fact as in the written statement, it has been
categorically denied that the members of the appellant:::
Union were employees of the respondentCompany.
The
question has been agitated before the Industrial Court.
The Industrial Court has given a finding on facts that
the members of the appellantUnion
were not the
employees of the respondentcompany.
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. Further in the
case of Cipla Ltd. (cited supra) again this question
came up for consideration and the Supreme Court held
in reference to MRTU and PULP Act that 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
employeremployee
relationship between the parties, the
question of unfair practice cannot be inquired into at
all. In the case of Cipla Ltd. (cited supra), the
respondent Union came to the Labour Court with the
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 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 I.D. Act
and, therefore, what this Court finds is that in a given
facts and circumstances, particularly on referring to the
jurisdictional facts, it appears to be contentious issue as
regards the relationship between the parties of that of
employer and employee, and the objection to
jurisdiction appears on the face of the proceedings, then
the Industrial Court would have no jurisdiction to
entertain the complaint under the MRTU and PULP Act,
1971.”
6. The position of law as laid down in the above
decision that in the absence of employeremployee
relationship, the
Industrial Court shall not have jurisdiction under Section 28 of the
M.R.T.U and P.U.L.P Act, is not disputed by learned counsel Shri Rohit
Deo appearing for the respondents. After going through the
averments made in the complaint, I do not find any specific averment
that the complainants are either working in the Modern School or in
the Jingle Bell School. The vague assertion is that they are employees
of the petitioner Society. The complainants have not produced the
letter of appointment in support of such stand. One of the
complainants has entered the witnessbox
and has stated that Jungle
Bell and Modern School are two different entitites and that he is not
aware as to how many out of 31 employees are working at Jingle Bell
School and how many are working with J.K.Education Society. The
complainants have failed to discharge their initial burden to establish
relationship of employeremployee
and therefore, there was no
question of the petitioner to lead evidence in rebuttal. Therefore, the
Industrial Court has committed an error in entertaining such
complaint and issuing direction to the petitioner to grant benefit of the
resolution at Exh. 40 to the complainant. The judgment and order
impugned cannot, therefore, be sustained and the complaint in liable
to be dismissed.
7. In the result, the writ petition is allowed. The judgment and
order dated 01.04.2009 passed by the Industrial Court in Complaint
(ULP) No. 614 of 2000 is hereby quashed and set aside. The said
complaint is dismissed. It shall be open for the complainants to take
appropriate steps as are available in law for agitating the same
grievance in appropriate forum.
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