Judgment:
C.L. Pangarkar, J.
1. This Writ Petition challenges the order passed by the industrial Court whereby the objection raised by the respondents was sustained by the Industrial Court.
2. The facts giving rise to the petition are as follows:
The petitioners filed a complaint under Section 28 of the Maharashtra Recognition of Trade Union & Prevention of Unfair Labour Practices Act read with Item No. 6 and 9 of the Schedule. The petitioners had contended that they were employees of the respondent No. 1 and 2 working with the unit of respondent No. 2. They submit that they have put in more than 240 days continuous service in a year. Their contention is that inspite of this their services have not been regularised and they are not being paid the salary according to Manisana Award. They submit that the respondents have indulged in an unfair labour practice. According to the petitioners respondent No. 3 is a Detective Agency and has nothing to do with the commercial business of respondents 1 and 2 and it is a ghost contractor. The other grievance that the petitioners have, is that they are not even given benefits like Earned Leave, Medical Leave, E. S. I. C. and Provident Fund. They have , therefore, prayed that their services be regularised and they be paid wages according to Manisana Award.
3. Respondents 1 and 2 had filed their reply to the application and had denied the relationship of employee and employer between the petitioners and the respondents. They raised a plea that since such relationship does not exist the complaint under Section 28 of MRTUP & PULP Act is not maintainable before the Industrial Court. They submitted that the Industrial Court did not have jurisdiction to entertain the complaint. This was their preliminary objection. Respondent No. 3 also filed a reply and contended that petitioners are the employees of sister concern of respondent No. 3. Respondent No. 3 therefore contended that the petition was not maintainable against respondent No. 3.
4. The respondents had not only raised the objection to the jurisdiction in their reply but had filed an application for dismissal of the complaint on that count. That application was heard by the learned Judge and the learned Judge found that primafacie there was no relationship of employer and employee and therefore the complaint could not be entertained. She dismissed the complaint. Being aggrieved by that this Writ Petition is filed.
5. I have heard the learned Counsel for the petitioners as well as respondents.
6. The petitioners claim that they are the employees of the respondents 1 and 2. According to them they are assigned the work in shift and have worked for more than 240 days in a year and even their names appear in the muster roll. Further they contend that they are not being paid at par with the employees and services are not being regularised. As said earlier respondent No. 1 had raised a preliminary objection that there exist no relationship of employer and employee and as such Industrial Court has no jurisdiction. Learned Judge of the Industrial Court while deciding the question has relied on the two decisions of the Supreme Court in : (2001)ILLJ569bSC (Vividh Kamgar Sabha v. Kalyanin Steels Ltd. and Anr.) and (2001)3 Scc 101 (Cipla Ltd. v. Maharashtra General Kamgar Union and Ors.) and certain other decisions.
7. Before taking the stock of the decisions on the subject it would be necessary to note certain other facts, that would facilitate the appreciation of the other decisions. The petitioners submit that they are the employees of respondents 1 and 2 and respondents 1 and 2 categorically denied their contention. Petitioners make respondent No. 3 as party to the petition and have tried to describe it as a ghost contractor. This is a very significant fact. Now if the petitioners were engaged by respondents 1 and 2 only, their was no reason for them to have known even the existence of such a company and even to describe it as ghost contractor. Petitioners do not stop here but make an application for appointment of a investigator to find out if employer employee relationship exists between the petitioners and the respondents 1 and 2. This application is moved also because even respondent No. 3 says that it did not supply the labour but it is the sister concern of the respondent No. 3 which supplied and supplies. If this reply is seen it is quite clear that the relationship between the petitioners and the respondents 1 and 2 as employee and employer is not indisputable. Investigation Report in fact goes to confirm that the petitioners are employees of the contractor. One of the petitioners admitted before the investigator that Pande contractor was paying the wages. With this I find that the relationship between the two cannot be said to be of indisputable nature. Shri Dharmadhikari learned Counsel for the respondents submits that with these facts and a specific plea, the Industrial Court had rightly found that, it had no jurisdiction to take cognizance of the complaint. Shri Dharmadhikari learned Counsel relies on the same two decisions which have been referred to by the learned Judge of the trial Court in its decision which are cited above. Supreme Court in Vividh Kamgar Sabha v. Kalyani Steels Ltd. and Anr. : (2001)ILLJ569bSC , observed as follows:
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.
Faced with this situation it was submitted that the respondent Company had always recognised the members of the appellant Union to be their own workmen. It is submitted that a formal denial was taken only to defeat the claim. We see no substance in this submission. In the written statement it has been categorically denied that the members of the appellant Union were employees of the respondent Company. The question has been agitated before the Industrial Court. The Industrial Court has given a finding, on facts, that the members of the appellant Union were not employees of the respondent Company. 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.
The ratio of this decision to my mind is that it is only if the status of the workmen is established in a appropriate forum that a complaint could be made under MRTU & PULP Act. Supreme Court in fact does not put any kind of rider that something more than mere raising a plea is required to be established.
8. In the second decision reported in (2001)3 Scc 101 (CIPLA Ltd. v. Maharashtra General Kamgar Union and Ors.), Supreme Court observes as follows:
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 of 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 if a camouflage and, therefore, needs to be adjudicated is a matter which can be gone into by appropriate Industrial Tribunal 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 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 ID Act.
Shri Khadgi learned Counsel for the petitioners submits that the Court is in fact bound to frame an issue, once such dispute is raised and answer it. He relied on a decision of this Court in 2001 II CLR 380 (Hindustan Coca Cola Bottling S/W P Ltd. and Anr. v. Narayan Rawal and Ors.), the Court observes as follows:
It is also not possible for me to agree with Shri Cama that the moment the principal employer whispers an objection in respect of employer-employee relationship, the complaint should be dismissed at the threshold. I am afraid, that is not the ratio of the aforesaid two judgments of the Supreme Court. It is pertinent to note that in both the matters the lower Courts had decided the complaints finally after recording evidence and on completion of full fledge trial before the Court. These complaints were not dismissed at the threshold on the objection raised by the respondents that the concerned employees were contract labour and that there was no employer-employees relationship. In those matters, both the sides had produced sufficient evidence and material on record to enable the Industrial Court to hold that there was no employer-employee relationship. In the aforesaid circumstances, the Supreme Court has held that if the employees failed to establish employer-employee relationship by adducing sufficient material, it cannot be held that the principal employer was guilty of any unfair labour practice alleged by the employees. In the peculiar facts and circumstances of this case such evidence and material is necessarily required as the crucial status of the employees hangs on the thread of the strong and mandatory provisions of the Contract Labour (Regulation & Abolition) Act i. e. the registration by the principal employer and a valid licence to be obtained by the contractor to engage contract labour in the establishment of the petitioners. This case is not as simple as is tried to be made out to take the benefit of the aforesaid two judgments of the Supreme Court that the petitioners have disputed the employer-employee relationship with the alleged contract labour. No doubt it is true that in the body of the complaint, the complainants have set out the true facts that they were supplied by the socalled contractor to the predecessors of the petitioners and they continued in the same position even after the petitioners stepped in the shoes of their predecessors without complying with the mandatory provisions of the Act. The Industrial Court will have to go into all these aspects of the matter and will have to decide the issue of real relationship of the alleged contract labour i. e. the petitioners. The Industrial Court will also have to address itself to the issue whether the supplier of the labour had become a contractor and what would be the deeming effect of nonregistration by the petitioners and non obtaining valid licence under the Act on the relationship.
In the present case, the Industrial Court had merely postponed the decision on the issue of relationship of employer-employee and according to me rightly so.
The Industrial Court is directed to frame proper issues in this respect and decide the issue on the basis of the evidence and material adduced by the parties before the industrial Court following the ratio of the aforesaid two judgments of the Supreme Court. Both the petitions therefore, fail and are, therefore, dismissed with no costs.
Next decision on which he relies is reported in : 2004(3)MhLj142 (Akhil Bhartiya Shramik Kamgar Union v. Buildtech Constructions and Ors.), the Court observes as under:
Indubitably, it is well established that the complaint filed under the Act can proceed only if the relationship of employer-employee is undisputed or 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 first place, issue of jurisdiction of the Court is to be determined from the averments in the plaint and not on the basis of the defence 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 o 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 mala fide, 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 not 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 protracted 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 Ben ch of our High Court in the case of Ramkrishna 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 'workman', as defined ion 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 had invoked provisions of Section 33C(2) of the Industrial Disputes Act. The Court has averted to the purpose of enacting the said provisions 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 33C(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 33C(2) could be frustrated by the employer. It will be also be 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 and Anr. v. Ramkrishna Gangaprasad Bajpai and Ors. 1981 Mh. L.J. 321 and Pandu Dhondi Yerudkar v. Ananda Krishna Patil 1974 Mh. L.J. 548 : 76 BLR 368. In those cases, inspite of express provision such an 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 the 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 a 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 record, in the case of Hindustan Spg. Ann 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 or mere denial of relationship, as taken is false, frivolous, vexatious and mala fide. 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 and Tobacco Merchants' Association and 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 case non potest'. This maxim has been thus translated by Broom thus is '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 important 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 statute 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 provisions 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 implied powers is not seriously in dispute 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.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 mala fide, 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 inappropriate . 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 affiant, 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 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 mustercumwage 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.
In A. B. S. K. Union case the learned Judge applies analogy in the decision in Pulmati Shyamlal Mishra and Anr. v. Ramkrishna Gangaprasad Bajpai and Ors. 1981 Mh. L.J. 321. In the said decision the Court has held that in the absence of particulars the Court may hesitate to frame issue on tenancy. It is also observed that Court is not under obligation to frame issue and remit it to Tenancy Court mechanically merely because such plea is raised. In short the learned Judge holds that mere denial of relationship is not enough and Court should find out if stand taken is genuine or not. No doubt this Court in Hindustan Cocacola's case has dealt with the two leading decisions of the Supreme Court in Cipla India Ltd. Case and Vividh Kamgar Society. However in the judgment of A. B. S. K. Union case these two decisions have merely been noted. Learned Judge has not dealt with them as such. It appears from both these decisions of the Court that the two Division Bench decisions reported in 2001 III CLR 1025 were not cited before it. Obviously the decision of Single Judge in 2001 III CLR 380 is per incuriam. Even the learned Judge in A. B. S. K. Union case does not make a reference to this decision as it may not have been cited before it. Division Bench makes reference to Cipla India Ltd. case but does not make a reference to Vividh Kamgar Society case. In a decision reported in : 2006(5)BomCR349 (Maharashtra Industrial Development Corporation, Chandrapur v. Member Industrial Court Nagpur and Ors. another Single judge of this Court had an occasion to deal with similar question . Learned Judge (B. P. Dharmadhikari J.) has taken stock of two decisions of this Court based on decisions in Cipla and Vividh Kamgar Society. One of those decisions is a Full Bench decision in : (2006)ILLJ920Bom (Tukaram Mandhare v. Messers Raymond Woollen Mills Ltd. Learned Judge quoting the observations of Full Bench observes as follows:
Perusal of the said judgment reveals that reference to Full Bench was necessitated in view of definition of 'employee' in Section 3(13) of Bombay Industrial Relations Act. Question answered by Full Bench is whether complaint filed under U.L.P. Act by an employee as defined under Section 3(13) of Bombay Industrial Relations Act is maintainable although no direct relationship as employer-employee exists between him and principal employer if he is employed by contractor who undertakes whole or any part of the work which is ordinarily the work of undertaking of such principal employer. The question arose in view of definition of phrase 'employee' and 'employer' in the BIR Act because employees working under contractor are also covered by said definitions. The relevant observations in paragraphs 14 and 15 are sufficient for present purposes. These paragraphs read:
Therefore both the provisions of the B. I. R. Act and MRTU and PULP Act complement each other in respect of industries to which the B. I. R. Act has been made applicable in relation to the devision of employee contained in the B. I. R. Act which has been incorporated in the MRTU and PULP Act in respect of employees engaged in an industry governed by the provisions of the B. I. R. Act. The term 'employee' has been given an extended meaning by the BIR Act. An employee is not only a person who is employed by the employer or over whom the employer has control, but also certain type of persons having been constituted, if one might put it so, statutory employees under the Act. It is not that every person employed by contractor becomes an employee of the master, but only those persons were employed by the contractor to do work for him in the execution of contract with an employer, which is mentioned in Sub-clause (e) of Clause (14) which defines 'employer' and it is inclusive definition. If these two conditions are satisfied then any person employed by contractor becomes employee of the owner of the undertaking and the complaint by such an employee under Section 28 of the MRTU and PULP Act would be maintainable in law. However, if the complaint fails to disclose the jurisdictional fact that the 'work being ordinarily part of the undertaking' in relation to the work which was entrusted to the workmen of the contractor, the workmen must first get established the employeremployee relationship by adopting appropriate proceedings before the appropriate forum under the B. I. R. Act and it is only after status of the workmen or employee is established in appropriate forum that the complaint would lie under the provisions of the MRTU and PULP Act.
It is pertinent to note that the judgments of the Supreme Court in Kalyani Steel Ltd. Cipla Ltd. and Sarva Shramik Sangh are in respect of industries governed by the industrial Disputes Act which does not contain an extended definition of employee as contained in Section 3(13) of the BIR Act. The Supreme Court has held that provisions of the MRTU and PULP Act can only be enforced by persons who admittedly are workmen. If there is any dispute as to whether the employees are employees of the company then that dispute must be got resolved by raising the dispute before the appropriate forum. It is only after the status as workmen or employee is established in appropriate forum that the complaint could be made under the provisions of the MRTU and PULP Act. In other words the existence of relationship is condition precedent for filing a complaint under the MRTU and PULP Act. A person who does not answer the description of an employee has no locus standi to file the complaint. The common thread passing through all these judgments is that in order to entertain the complaint under the MRTU and PULP Act it is to be established that complainant was an employee of the employer against whom the complaint is made. When there is no dispute about the relationship the provisions of MRTU and PULP Act would have full application. However if the basic claim is disputed then the issue has to be adjudicated by the forum which is competent to adjudicate. Now so far as industries governed by the B. I. R. Act are concerned contractor's employees engaged for execution of the whole or part of the work of the undertaking are regarded as employees by the statute and therefore the question of establishing the status of such employees does not arise and the complaint filed by such employee will be clearly maintainable.
He also makes a reference to Hindustan Coca Cola Bottling v. Bhartiya Kamgar Sena reported in 2001(III) CLR 1025. Next Division Bench decision to which reference is made is reported in 2004 LIC 3789 (Quadricon Pvt. Ltd. v. Maxi D'Souza and Ors. Dharmadhikari J. in M. I. D. C. case finally observes after taking stock of these decisions as follows:
Both the above Division Bench rulings therefore hold that the Labour or Industrial Court functioning under the U.L.P. Act has to first find out whether the relationship which is being denied by employer is indisputable or unquestionable on account of its past acceptance by the employer and such past acceptance is to be found out on the basis of pleadings of parties and the available material. If it has any doubt about existence of such relationship, inquiry to clear it is not possible and the employee/complainant will be required to approach regular forum under either B. I. R. Act or ID Act. The judgments of Hon. Apex Court in this respect use two words i.e. 'undisputed' or 'indisputable'. No problem arises when the relationship is undisputed. However, when employer denies and disputes the relationship which is beyond dispute, the question whether it is indisputable will arise. The complaint as filed may disclose necessary facts to show existence of such relationship and those facts may be corroborated by certain documents filed either with the complaint or later on. The employer even in this position can come up with plea of denial of relationship in his written statement. In fact, contingency of this nature will not arise till employer takes a stand in his reply or written statement. In that event apart from pleadings of parties, material produced may also be required to be gone into. If complainant/employee has such material with him, he will definitely produce it for consideration. However, if he does not possess such material and the same is available with his employer, he can requisition it to show that relationship exists and is being denied malafidely. Labour or Industrial Court will not be acting without jurisdiction in summoning documents like registers in which attendance of such employee is marked or vouchers through which payment has been made to him or production record containing his name. The Division Bench judgments do not prohibit such inquiry only to find out previous acceptance of such relationship. The judgments coupled with the other judgments mentioned above permit scrutiny by Industrial or Labour Court to find out genuineness in the defence of denial of relationship by employer. The inquiry by Labour or Industrial Court will be only to find out whether relationship of employer and employee is indisputable. It cannot be forgotten that the jurisdictional fact to be decided in this matter is also the fact about which no decision can be taken by Labour or Industrial Court under U. L. P. Act if there is genuine dispute. While deciding whether the employer employees relationship is indisputable, it cannot record a finding that such relationship exists and therefore it is indisputable. Tests and factors determinative for aforesaid purpose as laid down by Hon. Apex Court from time to time cannot be applied to such material to create a relationship. These tests crystallised in recent judgments of Hon. Apex Court reported at : (2004)IILLJ253SC between Workmen of Nilgiri Cooperative Marketing Society v. State of Tamil Nadu and : (2004)1SCC126 between Ramsingh v. Union of India may be mentioned here. Briefly stated, in case of disputed relationship, several factors which would have a bearing on the result and the Court is required to consider are : (a) who is appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervisions; (f) the nature of the job e. g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject. The distinction in this respect while answering the issue of 'indisputable relation' is very fine but will have to be maintained. The tests at (a), (b) and (c) above alone can be applied only to once accepted material and documents which Court finds employer is not in position to deny. Application of other tests i. e. tests at (d), (e), (f), (g), (h) and 'integration test' even to admitted material will not be possible because it will be holding enquiry into a disputes province. The only purpose of such inquiry is to examine bona fides of employer who comes up with denial of relationship. If after perusal of pleadings and records, it finds that employer can possibly demonstrate that there is no such relationship, it will have to give up the exercise. The jurisdiction can be exercised to hold limited inquiry and at the end thereof, the Labour or Industrial Court has to be in position to draw only one inference that such relationship was and is accepted by employer earlier, and to deliver verdict that stand in defence raised by employer is totally false and malafide. Even if two views of the matter appear probable, it will have to direct employee to file proceedings under B. I. R. Act or Industrial Disputes Act.
9. In the instant case we have seen that the petitioners themselves have made contractor party to the petition. They have also obtained investigation report which goes against them. Coupled with these facts they raise a plea of non existence of relationship. Further the petitioners do not produce or call for any documents from the employer to even primafacie show the existence of the relationship. On the contrary the investigation report goes against the petitioners. The petitioners make respondent No. 3 contractorparty. Respondent No. 3 says that the sister concern has supplied labour. If these facts are taken into consideration and ratio in M. I. D. C. case is applied I do not find that the learned Judge of the trail Court erred in refusing to entertain the complaint.
10. A very faint submission was made that the petitioners counsel was not heard by the Judge of the Industrial Court. The certified copy of Roznama is placed on record. It shows that on 27.06.2008 complainants counsel Shri Khadgi was present along with respondents counsel Shri Abhyankar and the arguments were heard. It is not therefore that the petitioners were not given opportunity of being heard. In the circumstances, I do not find any substance in the petition. The same is liable to be dismissed. Petition is dismissed. No order as to costs.