RAYMOND LTD. Vs TUKARAM TANAJI MANDHARE .
Bench: MARKANDEY KATJU,GYAN SUDHA MISRA, , ,
Case number: C.A. No.-005077-005077 / 2006
Diary number: 18668 / 2005
Advocates: J S WAD AND CO Vs
NARESH KUMAR
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 5077 OF 2006
Raymond Ltd & another ……..Appellant (s)
-versus-
Tukaram Tanaji Mandhare & another …….Respondent (s)
J U D G M E N T
Markandey Katju, J.
This 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 and 9449/2003.
2. Heard learned counsel for the parties.
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3. The 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
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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.
4. Thereafter 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).
5. The 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
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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.
6. The 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
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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 Ltd (supra)?
7. The 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 the undertaking.
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8. It is this decision which has been challenged before us.
9. A 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.
10. In 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.
11. Hence, we refer the matter to a larger bench on the issues referred to
above.
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12. Let the papers of this case be placed before Hon’ble the Chief Justice
of India for constituting a larger bench.
…………………………..J. (Markandey Katju)
………………………….J. (Gyan Sudha Misra)
New Delhi; 09 March, 2011
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