1. Rule. Rule made returnable forthwith, by consent.
2. The learned Counsel for private contesting Respondents waives notice. The respondent No.4 is a formal party, hence, notice to that Respondent is dispensed with.
3. As short question is involved, Petition is taken up for final disposal forthwith, by consent.
4. This writ petition takes exception to the Judgment and Order dated August 11, 2003 passed by the Industrial Court, Mumbai in Complaint (ULP) No.1026 of 2002. The Industrial Court has held that it had no jurisdiction to try and decide the complaint as filed by the Petitioners under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1976 (hereinafter referred to as ‘the Act’) because of the contentious issue of employee-employer relationship.
5. Briefly stated, the Petitioner Union filed the above numbered complaint before the industrial Court, alleging commission of unfair Items 1(a) and 1(b) of Schedule II and Items 9 and 10 of Schedule IV of the act. Following reliefs were claimed in the said complaint:
“10. The Complainant submits and prays that the enquiry may be made into the unfair labour practices complained of herein and complainant may be given following reliefs:
a) To hold and declare that the Respondents have committed unfair labour practices complaint of herein.
b) To direct the Respondents to cease and desist from the Unfair Labour Practices complaint of herein.
c) That pending the hearing and final disposal of the main complaint, the Respondents may please be directed to:
i) show the workmen listed at Exhibit-A on the muster roll with their retrospective date of appointment.
ii) Provide ESI & Provident Fund benefits to the workmen listed at EXHIBIT-A.
iii) provide leave benefits to the workmen listed at Exhibit-A.
iv) Pay bonus to the workmen listed at Exhibit-A as per the provisions of payment of Bonus Act.
d) That pending the hearing and final disposal of the main complaint, the Investigation Officer may please be directed to visit the site at Nivarna Building, 24th Road, Opp. St. Teresa School, Bandra (W), Mumbai-400 050 record and names of the workmen working along with their length of service and wage scale.
e) That pending the hearing and final disposal of the main compliant, the Respondents may please be restrained from:
i) Terminating services of the workmen listed at Exhibit-A without following due process of law.
ii) Using force or violence in any manner whatsoever against the workmen listed Exhibit-A.
iii) Effecting lockout or closure without following due process of law.
f) For cost and incidental of this complaint and of the complainant.
g) For such other and further reliefs as this Hon’ble Court may deem fit and proper.
h) For ad-interim and interim reliefs in terms of prayer (c), (d) & (e)”.
6. The Respondents filed affidavit in reply to the said complaint. Inter alia, the stand taken in the reply as filed on behalf of the respondents is that, there is no master and servant relationship between the Respondent and the Petitioners, and that, the Petitioners are self employed persons, who offered their services on job basis i.e. contract of work. In other words, it is the case of the Respondents that the complainants-Petitioners were paid on daily basis on performance of work undertaken by them without there being any relationship of master-servant as is required for invoking the provisions of the said Act. On the basis of the stand taken in the affidavit in reply filed by the respondents, the Industrial Court proceed to hold that because of the contentious issue of employee-employer relationship, it had no jurisdiction to try and decide the complaint as filed by the Petitioners. The Industrial Court has relied on the decision of this Court in Prop., Lokmat News Papers Limited vs. Prabhakar Rambhauji Choudhari & Ors,, reported in 2003 (97) FLR 159.
7. The principal question canvassed on behalf of the Petitioners is: whether it was sufficient for the Respondents to merely deny the relationship of employee-employer in the affidavit in reply and, can that alone be the basis for ousting the jurisdiction of the court to try and decide the complaint as filed? It is submitted on behalf of the Petitioners that such a stand taken in the reply affidavit as filed for opposing the complaint, by itself, will not be sufficient; but something more was required to be done and especially when the Petitioners had made a formal application before the lower Court, calling upon the respondents to produce certain documents, namely, muster-cum-wage register, cash register, bonus register, leave register, audited balance sheet and profit and loss account, income-tax returns for the period between January 1999 to December 2002. It is the case of the Petitioners that upon production of the said documents, the Court could have ascertained the fact as to whether the stand taken in the reply on behalf of the Respondents, was false, frivolous, vexatious and bald denial only with a view to create a smoke screen to oust the jurisdiction of the court. It is argued that it was open to the Industrial Court to examine this limited aspect of the matter only when it could be said to have answered the issue of jurisdictional fact, so as to justify its view that it had no jurisdiction to try and decide the complaint. On the other hand, if the said aspect was to be answered in favour of the Petitioners, then it would necessarily follow that the stand taken on behalf of the Respondents, being malafide, ought to be discarded and for which reason, the Court could and ought to proceed to try and decide the complaint as filed. To support this submission, learned counsel for the Petitioners has placed reliance on the decisions reported in 1975 Lab. I.C. 1561 – Ramakrishna Ramnath v. The State of Maharashtra & Ors., decision of the Division Bench of this Court (Paras 6 and 7), AIR 1962 SC 486 – Bidi, Bidi Leaves & Tobacco Merchants’ Association & Ors. Vs. The State of Bombay (Now Maharashtra) & Ors. (Para 20), (1963) 3 S.C.R. 540 – The Management of Express Newspapers Ltd. vs. Workers & Staff Employed Under It & Ors. (page 549), 1979 (2) S.C.C. 572 – Mohammed Hasnuddin v. State of Maharashtra (Para 25), 2003 (7) Supreme 523 – Sarva Shramik Sangh vs. M/s. Indian Smelting & Refining Co. Ltd. & Ors., (Para 21) and lastly, 2002 1 CLR 999 – Hindoostan Spg. & Wvg. Mills Ltd. vs. Sharad G. Khanolkar & Ors. (Para 13).
8. On the other hand, Counsel for the Respondents would submit that the law is well settled that the complaint filed under the provisions of the Act could proceed only when the relationship of employer and employee is undisputed or indisputable. In the present case, since the Respondents had taken a specific stand in the reply affidavit that the complainants were self employed persons and were offering their services to the Respondents on job basis i.e. contract of work and were paid on daily basis on performance of work undertaken by them, the question of relationship of employer and employee was obviously contentious issue, and in such a case, the court had nod option but to dismiss the complaint, being without jurisdiction. To buttress this submission, reliance was placed on the decisions reported in 2001 (1) Supreme 76 – Vividh Kamgar Sabha vs. Kalyani Steels Ltd. & Anr., (2001) 1 CLR 754 – Cipla Ltd. v. Maharashtra General Kamgar Union & Ors., 2003 (97) FLR 159 – Prop., Lokmat News Papers Ltd. v. Prabhakar Rambhauji Choudari & Ors., 2002 III CLR 3 – Joseph Leslie & Company v. Engineering Workers & Ors., 2004 (1) L.L.N. 1 – Sarva Shramik Sangh vs. Indian Smelting and Refining Company Ltd. & Ors., and lastly, 2003 (7) Supreme 523 – Sarva Shramik Sangh vs. M/s. Indian Smelting & Refining Co. Ltd. & Ors.
9. Indubitably, it is well established that the complaint filed under the Act can proceed only if the relationship of employer-employee is undisputed on indisputable. However, the principal question that arises for my consideration is: whether it is enough for the Respondents to merely deny on affidavit in reply or in the written statement, the relationship of employer-employee, so as to oust the jurisdiction of the Court to proceed with the complaint as filed. In my opinion, mere statement of denial of relationship made in the reply affidavit or for that matter written statement, by itself, cannot be the basis for taking the view that the Court has no jurisdiction. In the fist place, issue of jurisdiction of the Court is to be determined from the averments in the Plaint and not on the basis of the defences raised in the written statement. Even if the Court were to look into the defence of the opposite side, mere denial of relationship of employer-employee between the parties, by itself, is not enough. For, the opposite side is obliged to give or supply particulars to enable the Court to take the view that the defence so taken is neither false, frivolous, vexatious and vague. That is so because, whether the stand taken by the opposite side is bona fide or not, is a matter which, nevertheless, can and ought to be enquired into by the court before which, such a stand is taken. That issue is obviously a jurisdictional fact, to be enquired into by that Court. In the event, the Court was to take the view that the stand taken in the reply affidavit or the written statement regarding the relationship between the parties, is malafide, then obviously, such a stand will have to be discarded and the Court can proceed to decide the complaint on merits, on the assumption that the relationship between the parties of employer and employee, does exist or is indisputable. To overcome this position, counsel for the Respondents had placed reliance on the decisions referred to above. However, in my opinion, in none of the aforesaid decisions pressed into service on behalf of the Respondents, the Court has gone to the extent of observing that mere denial of relationship in the written statement is inviolable and the Court would, therefore, hold that contentious issue arises regarding the relationship between the parties. On the other hand, I find substance in the submissions canvassed on behalf of the Petitioners that if such a stand was to be accepted, that would result in enabling the employer to drive the workmen to protected litigation, to first establish the relationship, which otherwise is undisputed or indisputable from the available record, as existing between the parties. For, it will also result in bestowal of premium on the false plea taken by the employer, which ought to be eschewed. Reliance has been rightly placed on the decision of the Division Bench of our High Court in the case of Ramakrishna Ramnath (Supra). In Para 6 of this Judgment, the Division Bench has observed – “where it is disputed by the employer that the person who wants to invoke the jurisdiction of Labour Court, is not a ‘workmen’, as defined in the Act, then the existence of the basic jurisdictional fact necessary for the exercise of jurisdiction by the Labour Court is put in issue and the Labour Court as a Court of limited jurisdiction bestowed upon it by the statute, must first satisfy itself that the facts which give jurisdiction to it to proceed further into the inquiry either to the existence of the right or to the entitlement of the person who wants that right to be executed exist”. It is further observed that the question of title or status of the person so applying is an incidental matter. That was a case where the workmen has invoked provisions of Section 33-C(2) of the Industrial Disputes Act. The Court has adverted to the purpose of enacting the said provision by observing that the same was enacted to provide a speedy remedy to individual workman. It further observed that, if on a mere raising of the objection by the employer that the employee who has made an application under Section 33-C(2) is not a workman, the Labour Court is to be divested of the jurisdiction vested in it under that provision the very object of enacting Section 33-C(2) could be frustrated by the employer. It will be also useful to draw analogy from the principles enunciated by our High Court in the matters of Bombay Tenancy Agricultural Lands Act in the case of Pulmati Shyamlal Mishra & Anr., vs. Ramkrishna Gangaprasad Bajpai & Ors., (1981 Mh.L.J.321) and Pandu Dhondi Yerudkar vs. Ananda Krishna Patil (76 Bom.L.R.368). In those cases, inspite of express provision such as Sections 85 and 85A of the tenancy Act, excluding jurisdiction of the civil court to try and decide any issue or question which is by or under the said Act is required to be settled, decided or dealt with by the Authority under that Act, it is held that it is still open to the civil court to ascertain whether the plea taken in the written statement is demonstrably false, frivolous, vexatious, and malafide. And if the Civil Court was to form that opinion, it may decline to make reference to the authority, though required under the act. In Pulmati’s case (supra), the Division Bench of our High Court has held that the Civil court is not under any obligation to frame and remit an issue of tenancy mechanically merely on the same being raised in the written statement, without judicial satisfaction of its necessity and justification. The court has further observed that there can be cases when tenancy plea may appear to be patently frivolous, fraudulent and part of the dilatory strategy. In Pandu’s case (supra), this Court has observed that when plea of tenancy is raised and if it is a vague plea, the party can be called upon to provide particulars and upon failure to provide such particulars, the Court should hesitate to frame that issue. Applying the analogy in the aforesaid decisions, to my mind, it is always open to the Court before which complaint under the provisions of the act has been instituted, to at least enquire into the bona fide of the stand taken in the written statement or reply affidavit with reference to the record produced before it by the respective parties or by requiring them to produce the relevant records. In the case of Hindustan Spg. Wvg. Mills Ltd. (supra), in para 13, it has been observed that if stand regarding the relationship of employer-employee is taken in the reply, it would then be open to the complainant to demonstrate that the relationship was never disputed earlier or that, it is indisputable, based on the pleadings before the Industrial Court. These pleadings would include any annexures to the complaint and the written statement. In other words, merely because a vague or bald stand is taken in the written statement or reply affidavit, that by itself, cannot be the basis to hold that the court has no jurisdiction, but then, it is the bounden duty of the court to make further enquiry as to whether the stand as taken, is bona fide and legitimately available to the employer. It is open to the Court to undertake that limited enquiry; and that would not mean that the Court was to adjudicate upon the issue of existence of relationship of employer-employee as such. In other words, what the Court is expected to find is that, whether the stand of mere denial of relationship, as taken is false, frivolous, vexatious and malafide. It would be useful to advert to the decision of the Apex Court, on which, reliance has been rightly placed on behalf of the Petitioners in the case of Bidi, Bidi Leaves & Tobacco Merchants’ Association & Ors., (supra). Para 20 of this decision reads thus:
“20. One of the first principles of law with regard to the effect of an enabling act, observes Croics, “is that a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view”. The principle on which this doctrine is based is contained in the legal maxim ‘Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”. This maxim has been thus translated by Broom thus: “whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect”. Dealing with this doctrine Pollock C.B. observed in Fenton v. Hampton, (1858) 117 RR 32 at p.41: 11 Moo PC 347 “it becomes therefore all import ant to consider the true import of this maxi, and the extent to which it has been applied. After the fullest research which I have been able to bestow, I take the matter to stand thus: Whenever anything is authorised, and especially it, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done then that something will be supplied by necessary intendment. This doctrine can be invoked in cases “where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution”. In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statuettes and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied. This position in regard to the scope and effect of the doctrine of before us. The parties are at issue, however, on the question as to whether the doctrine of complied powers can help to validate the impugned clauses in the notification”. (emphasis supplied)
10. Reliance has been placed also on the decision of the Apex Court in The Management of Express Newspapers Ltd. (Supra). At Page 549 of the reported decision, the Court has observed thus:
“It is also true that even if the dispute is tried by the Industrial Tribunal, at the very commencement the Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to it is an Industrial dispute or not, and the decision of this question would inevitably depend upon the view which the Industrial Tribunal may take as to whether the action taken by the appellant is a closure or a lockout. The finding which the Industrial Tribunal may record on this preliminary issue will decide whether it has jurisdiction to deal with the merits of the dispute or not. If the finding is that the action of the appellant amounts to a closure, there would be an end to the proceedings before the tribunal so far as the main dispute is concerned, If, on the other hand, the finding is that the action of the appellant amounts to a lockout which has been disguised as a closure, then the Tribunal will be entitled to deal with the reference, the finding which the Tribunal may make on this preliminary issue is a finding on a jurisdictional fact and it is only when the jurisdictional facts is found against the appellant that the Industrial Tribunal would have jurisdiction to deal with the merits of the dispute. This position is also not in dispute”.
11. It will be also useful to advert to the dictum of the Apex Court in Mohammed Hasnuddin (Supra). In Para 25 of this decision, the Court has observed thus:-
“25. Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances. Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a tribunal derives its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a mater, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As observed by the Privy Council in Nusserwanjee Pestonjee vs. Meer Mynoodeen Khan wherever jurisdiction is given to a court by an Act or Parliament and such jurisdiction is only given upon certain specified terms contained in that Act it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction for if they be not complied with the jurisdiction does not arise”.
12. On the principles expounded by the Apex Court referred to above, I find no difficulty in accepting the submissions canvassed on behalf of the Petitioners that mere statement of denial of relationship made in the written statement or reply affidavit by the employer, by itself will not be sufficient to hold that contentious issue has been raised. In the present case, it is not in dispute that the Petitioners had filed application before the lower court, praying that the Respondents be directed to produce certain documents. The fact as to whether the stand taken by the Respondents in the reply affidavit relating to relationship of the parties is genuine or malafide, could very well be ascertained from the said documents maintained by the respondents, if the same were to be produced before the court below. However, it is not in dispute that the said application has remained undecided before the Industrial Court, which obviously is in appropriate. To find out the bona fide of the stand taken by the Respondents, not only production of the said documents referred to in the said application was imperative; and if the Respondents were to contend that no such documents are available, it will be open to insist upon examination of witnesses or cross examine the affidavit, who has stated on affidavit about the relationship between the parties, so as to confront him with the record produced before the court or in relation to the stand of unavailability of the record so as to find out the bona fide of the stand so taken in the reply affidavit
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filed on behalf of the Respondents. On the basis of such evidence, if the Court was to find that the stand is not bona fide, then obviously, such a stand will have to be discarded, and that adjudication would be one of jurisdictional fact, which is required to be answered at that stage of the proceedings. In the present case, there is no dispute that the Petitioners have been engaged directly by the Respondents on their establishment. The stand taken by the Respondents is that the Petitioners were self employed persons, who offered their services on job basis i.e. contract of work. That plea will have to be propped by particulars and clinched by the production of documents such as muster-cum-wage register, cash register, bonus register, leave register, audited balance sheet and profit and Loss Account for the relevant period. Indeed, while considering the interim application, the lower Court has observed that it appears from the documentary evidence that the workers are working for contract for employment and not for contract of employment. In the first place, that was only a prima facie view taken at the interlocutory stage. In any case, there is no elaboration in the said Judgment, as to which documents on record would support that position. In fact, no documentary evidence was produced by any party at that stage or even later, when the impugned order has been passed. 13. Viewed in this perspective, the impugned Judgment and Order cannot be sustained because it has merely proceeded on the basis that the fact regarding the relationship between the parties is a contentious issue because of the stand taken by the Respondents in the reply affidavit. As mentioned earlier, stand taken in the reply affidavit, by itself, would not be sufficient to reach at that conclusion, especially when the Petitioners were insisting that the Respondents be called upon to produce relevant records to ascertain the bona fide of their stand and to show that the relationship was undisputed or indisputable from the said record. 14. In the circumstances, the impugned Judgment and Order is set-aside, and instead, the matter is restored to the file of Industrial court for examining the issue of Jurisdictional fact, in accordance with the observations made hereinbefore. 15. Petitioner therefore succeeds on the above basis with no order as to costs. 16. Office to issue copy of this order, on payment of usual charges, duly authenticated by the Associate of this Court.