Judgment:
J.N. Patel, J.
1. Rule. By consent, heard forthwith.
2. A common question arises in all these seven writ petitions which are filed by M/s Lokmat, Proprietors, Lokmat News Papers Ltd., through its Managing Director, against the respondents, impugning the decision of the Industrial Court delivered on 12th February, 2002 in the various complaints filed by the respondents under Section 28 read with Item 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as MRTU and PULP Act, 1971), under which the Industrial Court held that the petitioners (original respondents) have engaged in unfair labour practice covered under Item 9 of Schedule IV of the MRTU and PULP Act, 1971 by keeping the complainants on daily wages even though they have rendered continuous service of 240 days in 12 calendar months and further held that the respondents (original complainants) are entitled to be made permanent by the petitioner (original respondents) from the date they have completed 240 days' continuous service with all consequential benefits. The issue which has been raised before the Court is whether the Industrial Court has jurisdiction to entertain such a complaint under the MRTU and PULP Act, 1971 and the complaint was not maintainable under the said Act when the petitioners have specifically denied that the respondents who have filed the complaints claiming to be workmen of the petitioner, were not the workmen of the petitioner-company, thereby raising contentious issue disputing the employer-employee relationship between the parties.
3. All the seven complainants filed complaints before the Industrial Court at Nagpur, claiming that they have been employed as Peon since the year 1992, that the appointment has been made on oral orders and since their respective dates of appointments, they are performing duties of regular and permanent Peons, continuously for eight hours and more as required from time to time with clean and excellent record of service and that they have completed more than 240 days, the respondent-employer is only paying them daily wages @ Rs. 30/- only depriving them of various benefits available to regular and permanent employees of the establishment such as depriving them of weekly off, non payment of over time except that of paying wages of Rs. 30/- and a sum of Rs. 10/- as Nashta Allowance. They have stated in their complaint that the respondent-Newspaper establishment has on its roll 400 employees and Model Standing orders framed under the Industrial Employment (Standing Order) Act 1946 are applicable to the respondent-Newspaper establishment and, therefore, all the seven complainants have become regular and permanent long ago and are entitled to the benefits of Palekar and Bachawat Awards and all other facilities and benefits that are applicable to the rest of the regular and permanent employees of the respondent-newspaper establishment, but in order to deprive the complainants of the benefits of regularisation and permanency and all other allied benefits, they are being deliberately continued on daily wages and the name of the complainants and their attendance have been shown on Katcha Register. They further contended that in spite of making requests and oral representations from time to time, for being made regular and permanent Peons and for claiming the benefits to which they are entitled as other regular and permanent employees, except for giving assurance, their case has not been considered and, therefore, the respondent's conduct in not treating the complainants as regular employees, amounts and constitutes unfair labour practice within Item No. 9 of Schedule IV of MRTU and PULP Act, 1971.
4. The complainants also sought interim relief by filing an application Exh. 17 and by a common order passed on 29th April, 1998, the Industrial Court rejected their application, it is in the course of considering the case of the complainants for grant of interim relief that the petitioners (original respondents) came up with a case that the complainants are not their employees as they never worked on their establishment as Peon and as no relation of employer and employee exists between the parties, the complaints need to be dismissed. It was further contended that unless relationship between the parties as employer and employee is established, no interim relief can be granted, otherwise it would amount to deciding the complaint finally on merit. The respondent also contended that the claim made by the complainants that they are the employees of the respondent, can only be adjudicated by way of reference under Section 10 of the Industrial Disputes Act, 1947. In addition to raising this issue of jurisdiction, it was also contended that the complaints are barred by limitation and that the complainants have been privately employed by their officers as their domestic servant and in that capacity, they might be visiting the respondent's establishment, but the respondents have never assigned any work to the complainants nor they have any control over them and, therefore, question of payment of minimum wages or treating them as their regular employees, does not arise.
5. By its order dated 29-4-1998, the Industrial Court rejected the application for interim relief as it came to the conclusion that the matter deserves to be considered on merits particularly in the background that the respondent has denied that any relationship of employer and employee exists between the parties. It is thereafter that the complainants filed an application to amend their complaints so as to bring on record that after the Court rejected their applications for grant of minimum wages, pending disposal of the application for interim relief in the main complaints, the employer did not allow them to join their duties when they reported for duties on 1-5-1998 and this subsequent development was brought on record by claiming that the respondents could not have dismissed them without having followed the mandatory provisions contained in Sections 25F and 25G of the Industrial Disputes Act, 1947, as they had already completed 240 days' continuous service with the respondent, as on 1-5-1998 and further if it is taken that they were retrenched then also it could not be sustained as it was done without obtaining prior permission of the State Government under Section 25N of the Industrial Disputes Act, 1947, as provisions of Chapter VB are applicable to the respondents and that not having been done, the impugned retrenchment of the complainant with effect from 1-5-1998 is by way of unfair labour practices as the above provisions of law constitute service agreement between the parties as reflected in and represented by Item No. 9 of Schedule IV of the MRTU and PULP Act, 1971 and, therefore, prayed that the Industrial Court should direct the respondent to withdraw temporarily during the pendency of the proceedings and also the impugned oral termination/dismissal/discharge order dated 1-5-1998 and to reinstate the complainants in their former posts with continuity of service and payment of full back wages and all other allied benefits with retrospective effect. The respondent vide its reply to the complaint on merits had reiterated its contention that there is no relationship of employer and employee between the parties and that the complaints deserve to be dismissed. The respondents filed a separate application for dismissal of complaint on the basis of various decisions of the Supreme Court in the matter, that unless there is an admitted relationship as employer and employee, the Court will have no jurisdiction under MRTU and PULP Act, 1971 to entertain the complaint. By the order dated 20-4-2001 the Industrial Court rejected the application for the reasons that it would not be just and proper to dismiss the complaint, but in the fairness both the sides, better co-operate with the Court to decide the complaints on merit as early as possible and kept the issue open for being decided on merits.
6. The respondents, therefore, filed seven separate petitions impugning the order dated 20-4-2001 seeking writ of prohibition on 24-10-2001. This Court, by its common judgment, dismissed the writ petitions as it felt that no prejudice is going to be caused to the petitioner as the Industrial Court had kept the issue open and in the given facts and circumstances of the case the complaints should be decided within shortest period. This Court held that there was no propriety to segregate the issue relating to the relationship of employer-employees between the parties and to decide only that issue, and directed the Industrial Court to proceed with the complaints and decide the same within three months from the receipt of the communication of the order. The respondents carried the matter by preferring Letters Patent Appeal before the Division Bench of this Court. The Division Bench, by its, order dated 3rd December, 2001, dismissed the Letters Patent Appeal and while dismissing the appeal, it observed that it is no doubt true that normally, the issue of maintainability of any proceedings needs to be decided in the beginning itself by the Court in order to avoid further complications and inconvenience to the parties as well as to the Court. On the other hand, if the issue is a mixed question of law and facts, normally, same needs to be decided along with the other issues, and refrained from entering into controversy in view of the directions issued by the learned single Judge to the Industrial Court to decide the complaints within three months which, in the opinion of the Division Bench, sufficiently protected the interest of the petitioners and also did not result in any kind of prejudice. The respondents then approached the Supreme Court by preferring Special Leave Petition and during the pendency of the Special Leave Petition, as the complaints came to be disposed of, the S.L.P. came to be withdrawn with liberty to challenge the Award of the Industrial Court, which was granted by the Supreme Court vide its order dated 1-3-2002. This is how this matter came up before this Court.
7. Mr. Manohar, the learned Senior Counsel appearing for the petitioners, has assailed the impugned order mainly on two grounds. First relates to the jurisdiction of the Industrial Court under MRTU and PULP Act, 1971 to entertain the complaints, and secondly, on the ground that the complainants have failed to lead evidence before the Industrial Court on the strength of which the Industrial Court could have allowed the complaints filed by the complainants.
8. According to Mr. Manohar, the petitioners, right from the first instance, have specifically denied that the respondents (original complainants) were in their employment and, therefore, there exists no relationship as employer and employees and if the complainants were never employed, the question of regularising their services, does not arise. It is submitted that as the petitioners have denied the relationship between the parties as employer and employees, which was the basis of the complaint filed by the complainants, and in that case, the Industrial Court ought to have dismissed the complaints and in fairness, directed the complainants to get the issue decided by making a reference under Section 10 of the Industrial Disputes Act, before the Labour Court. It is submitted that the petitioners have come up with a very specific case that the complainants were privately employed by their officers in their private capacity as their domestic servants and, therefore, there was no relation between the petitioners and the complainants of employer and employees as the domestic servants appointed by their officers at their cost, to do their personal work, cannot be the workmen of the petitioners. It is in this background that the Industrial Court formulated point No. 1 for determination, i.e. whether the complainants have proved that they are the employees of the respondent. According to Mr. Manohar, the Industrial Court had no jurisdiction to decide this issue as held in catena of decisions of the Supreme Court and High Court of Bombay.
9. Mr. Manohar, the learned Senior Counsel, submitted that it was obligatory on the part of the complainants to have first established that they are the workmen of the petitioner-company, before they could have filed any complaint under the Act and as they have failed to raise an appropriate industrial dispute in that behalf under the Industrial Disputes Act, 1947, the Industrial Court, while exercising its jurisdiction under the MRTU and PULP Act, 1971, had no jurisdiction to entertain the complaints. Mr. Manohar submitted that this has been consistent view of the Supreme Court right from the case of General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. and Calico Printing Co, Ltd., and Ors. : (1995)IILLJ765SC followed in various case and the recent one decided by the Supreme Court in Cipla Ltd. v. Maharashtra General Kamgar Union and Ors. 2001(1) CLR 754. Mr. Manohar also drew the attention of this Court to the fact that even the Bombay High Court in the case of Indian Seamless Metal Tubes Ltd. (Tubes Division), Ahmednagar v. Sunil Rambhau Iwale and ors. : 2002(4)MhLj151 has taken same view following the decision of the Supreme Court in the case of Vividh Kamgar Sabha v. Kalyani Steels Ltd. 2001 (1) CLR 532 in which the learned single Judge of this Court has discussed various authorities on the issue of jurisdiction and held that if in a given case, status of employer and employees relationship is disputed, a complaint of unfair labour practice is not maintainable and the Industrial Court has no jurisdiction to entertain the same and quashed the impugned order and the complaint came to be dismissed in the matter. It is submitted that another learned single Judge of this Court in the case of Hindustan Coca Cola Bottling S/W P. Ltd. and Anr. v. Narayan Rawal and Ors. 2001 (2) CLR 380 on considering Vividh Kamgar Sabha's case (cited supra) and decided by Supreme Court, took a different view and directed the Industrial Court to frame proper issue in the matter where the employer has disputed the employer-employee relationship, on the premise that it cannot be held that the Industrial Court has no power and jurisdiction to decide the employer and employees relationship in the narrow jurisdiction being of summary nature, by distinguishing the two judgments, on the ground that the lower Court had decided the complaint finally after recording evidence and on completion of full fledged trial before the Court and those 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. But, this decision in Hindustan Coca Cola Bottling's case was quashed and set aside by the Division Bench of this Court in the case of Hindustan Coca Cola Bottling S/W Pvt. Ltd. v. Bhartiya Kamgar Sena and Ors. reported in : (2002)1BOMLR123 The Division Bench of this Court approved the view taken by the learned single Judge of this Court in Indian Seamless Metal Tubes Ltd. 's case and, therefore, according to Mr. Manohar, the law is well settled that if there is a dispute between the parties as to the relationship of employer and employees, that can not be gone into by the Industrial Court while exercising its jurisdiction under the MRTU and PULP Act 1971 and, therefore, on this count alone, the impugned orders deserve to be quashed and set aside and the complaints filed by the respondents should be dismissed.
10. Mr. Manohar, the learned Senior Counsel, submitted that the respondents-employees have tried to prove the existence of relationship of employer and employees between the parties on the basis of their oral evidence as well as by placing on record xerox copies of Gate Pass, application made for Nashta Allowance and so on. According to Mr. Manohar, except for claiming that the respondents were employed by the petitioner orally and their services were terminated orally, nothing has been brought on record to show that they were employees of the petitioner. Mr. Manohar submitted that the Industrial Court has relied upon xerox copies of certain documents in order to come to the conclusion that there exists relationship of employer and employees. According to Mr. Manohar, at the first instance, these documents ought not to have been taken on record as it was in defiance of Section 65 of the Evidence Act, particularly when the petitioner's witnesses have specifically denied these documents and secondly, these documents, by itself, do not prove that the respondents were employed by the petitioners on their establishment and, therefore, on this count also, it cannot be said that the complainants were able to establish their claim by placing on record admissible evidence which could have established jurisdictional facts in their favour and negatived the contentions of the petitioner that the respondents are not their employees and, therefore, on this count also, the complaint should have been dismissed.
11. Mr. S. D. Thakur, the learned counsel appearing for the respondents, submitted that the reliance placed by the petitioner on the decisions rendered by the Supreme Court in the case of General Labour Union (Red Flag), Bombay; Vividh kamgar Sabha and Cipla Ltd., are clearly distinguishable and hence not applicable to the facts and circumstances of the case, and therefore, heavy reliance placed by the petitioners on these judgments is totally misconstrued and misplaced. According to Mr. Thakur, all these judgments cannot be said to be authorities on the issue as to whether the Industrial Court has jurisdiction to decide the issue of employer-employees relationship. According to Mr. Thakur, Section 32 of the MRTU and PULP Act 1971, vests sufficient jurisdiction to decide all issues by the Industrial Court. According to Mr. Thakur, in all these cases, admittedly, the workmen were employed through Contractors registered under the provisions of the Contract Labour (Regulation and Abolition) Act, 1971. But in the present case, the respondents were never employed through any contractor and, therefore, the ratio laid down in these decisions of the Supreme Court will not be applicable. According to him, the main thrust of the aforesaid three judgments of the Hon'ble Supreme Court is that in case of contract labour where the relationship of employer and employees is claimed with the principal employer on the basis of the contract being sham and bogus, the said issue can be settled only by having a reference under Section 10 of the Industrial Tribunal under the provisions of the Industrial Disputes Act, 1947 and such a question cannot be looked into under the provisions of the MRTU and PULP Act 1971. It is submitted that the ratio in these three decisions cannot be enlarged so as to curtail the powers which are of the Industrial Court under MRTU and PULP Act 1971 where the employer merely denies the employer-employee relationship with a workman and if this contention is to be accepted, it will only result in causing injustice to the workman.
12. Mr. Thakur has also referred to case of Gujarat State Electricity Board v. Hind Mazdoor Sabha, : (1995)IILLJ790SC , wherein the Supreme Court held that the industrial adjudicator under Section 10 of the Industrial Disputes Act, 1947, has jurisdiction to overturn the said relationship. It is further held that the Court has no jurisdiction to abolish the contract labour system and so far as Section 10 of the said Act is concerned, it comes into play only where there exists a genuine contract and if there is no genuine contract and so-called contract is a sham or a camouflage to hide the reality, the said provisions contained in Section 10 of the Contract Labour (Regulation and Abolition) Act, 1971 are inapplicable and, therefore, according to Mr. Thakur, whenever workman concerned raises an industrial dispute for relief that they should be deemed to be the employees of the principal employer, the Court or the Industrial adjudicator will have Jurisdiction to entertain the dispute and grant the necessary relief. According to Mr. Thakur, even as per the latest decision of the Constitution Bench of the Supreme Court in the case of Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. : (2001)IILLJ1087SC , the whole legal position has undergone a radical change and the remedy for these contract labours has now been thrown open even under the provisions of the MRTU and PULP Act 1971 and, therefore, it will not be correct to say that the Industrial Court under the provisions of the MRTU and PULP Act 1971 exercises 'summary jurisdiction' and, therefore, the Industrial Court cannot go into the alleged elaborate exercise of deciding the employer-employee relationship. He further submitted that under the provisions of the MRTU and PULP Act 1971, the Industrial Court is as much an 'adjudicator' as an 'adjudicator' is under the provisions of Industrial Disputes Act, 1947 and, therefore, considering the scheme, object and purpose, of the MRTU and PULP Act 1971, Industrial Court under the said Act is duty bound in law to decide the employer-employees relationship to prevent occurrence of and thwart resort to unfair labour practice on the part of the employer.
13. Mr. Thakur submitted that the petitioner newspaper establishment is covered by the Industrial Disputes Act, 1947 as defined in Section 3(2) and the respondents-workmen are covered by the definition of 'Workman' as defined in Section 3(5) of the MRTU and PULP Act, 1971 and, therefore, the Industrial Court was competent to decide the issue.
14. Mr. Thakur strenuously urged that the Court has not to take narrow view while applying the ratio of the decision cited by the other side and placed reliance on the case of Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. : [2002]1SCR621 . He submitted that the decision or the observations made by the Court cannot be, therefore, on par with the statutory provisions and would not apply to each and every case and, therefore, the Court is expected to appreciate the ratio of each case in reference to the facts and circumstances which led to the decision of the case which is referred as precedent and in the present case, the facts and circumstances placed on record clearly show and as held by the Industrial Court that there exists a relationship of employer and employees, the impugned order does not call for any interference.
15. As regards the second contention of Mr. Manohar, Mr. Thakur has submitted that the Evidence Act is not strictly applicable before the Labour Tribunal where rules of natural justice are to be applied and, therefore, the contention of Mr. Manohar that the evidence led by the respondents is not admissible under the Evidence Act, cannot be accepted. It is submitted that the position of an employee is vulnerable to exploitation particularly when the employer is powerful and has all the resources and capacity to exploit the workmen.
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 on 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 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 the 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. 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 employer-employee 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 proceeding, then the Industrial Court would have no jurisdiction to entertain the complaint under the MRTU and PULP Act, 1971.
17. The contention of Mr. Thakur that these ratio cannot be applied to the case of the respondents before this Court for the very reason that all these cases decided by the Supreme Court are in respect of the workmen who were engaged through the contractor and their cases were covered by the Contract Labour (Regulation and Abolition) Act, 1971. On the other hand, in this case, the complainants have been claiming to be the workmen engaged by the respondent i.e. the present petitioner and, therefore, it cannot be said that it is a disputed question of fact as to whether the relationship of employer and employees exists between the parties and, therefore, it is not proper to apply the ratio of the cases in which the workmen were employed through a contractor.
18. In my opinion, this contention of Mr. Thakur cannot be accepted. The parameter to ascertain as to whether the Court/Tribunal has jurisdiction will depend on the factual situation enumerated in the pleadings and commonly known as jurisdictional facts. If the superior Court is not satisfied that the essential elements of having factual jurisdiction are all present, the subordinate Court can be said to have acted without jurisdiction. In the present case, the complainants have put forth their claims on the foundation that they have been employed by the respondent in their establishment on daily wages and though they have rendered continuous service of 240 days in 12 calendar months, they were entitled to be regularised and for all the consequential benefits arising out of it and as the respondent Company has failed to consider their case for regularisation, it amounts and constitutes unfair labour practice under Item No. 9 of Schedule IV of MRTU and PULP Act 1971. On the other hand, it is the respondent's case that there are no employer-employees relationship between the parties. They have specifically denied that the complainants were employed by them on their establishment. On the other hand, their stand is that the complainants are employed as domestic servants by their officers. The fact that the respondent-company has agitated before the Industrial Court that the complainants were not employees of the respondent-company, but were engaged by their officers as domestic servants, itself goes to show that this is not a case where the respondent-company has taken up the plea only for the purpose of denial which can be said to be formal denial only to defeat the claim of the employees, or for that reason, initially if having not disputed such relationship and changed their stand so, the issue merely become incidental in deciding the controversy. Furthermore, even the Industrial Court has accepted this position when it went on to decide as to whether the complainants have proved that they are employees of the respondent. As it has been held in the cases cited above that the Industrial Court has no such jurisdiction and if it found, the issue as to whether the complainants are the workmen of the respondent-company or not, was a matter which required consideration by way of adjudication, then it ought to have referred the parties to the remedy available under Section 10 of the Industrial Dispute Act. As it is not vested with the jurisdiction to decide such issue because the workmen have first to establish that they are the workmen of the respondent-company before they make any complaint under the Act. It is well settled law that the Industrial Court has power or authority to take cognizance of the matter put before it and to decide such matters. An exercise of jurisdiction beyond that possessed by the Court or the Tribunal is a nullity. An inferior Court or Tribunal can be restrained in exercise of prerogative writ under Articles 226 and 227 of the Constitution of India, by the High Court by order of prohibition from exceeding its jurisdiction and if the judgment has been given by such inferior Court or Tribunal, by order of certiorari, have the record brought up so that the judgment may be quashed. Therefore, in the opinion of this Court, as the impugned order is passed by the Industrial Court without being vested with such a jurisdiction, it is a nullity and will have to be quashed and set aside.
19. Mr. Thakur's contention on behalf of the respondent-workmen as to evaluation of precedent by placing reliance on the case of Haryana Financial Corporation and Anr. v. Jagadamba Oil Mills and Anr., : [2002]1SCR621 is of no assistance to him. There can be no quarrel over the principle enunciated by the Supreme Court in the decision rendered in Haryana Financial Corporation (cited supra) insofar as it relates to its observation on precedent, particularly in para 19 of the reported judgment where the Supreme Court has held as under :
'Courts should not place reliance on decision without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Court are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes.'
Therefore, it is well settled that the precedent is binding or persuasive in a later case only in respect of principle of law, if any, on the basis of which it was decided and which can be extracted from it for subsequent use. This is termed the 'ratio decidendi'.
20. Therefore, in my opinion, determination of what the ratio of a decision is a matter for a subsequent Court to which that decision has been cited as a precedent, to determine. As the subsequent case is unlikely to coincide with the precedent in respect of material facts, the Judge in the subsequent case must only either restrict the ratio of the precedent and say that it does not extend to the different material facts before him, or enlarge the ratio and say that it covers also the case before him. In the facts and circumstances of the present case, the contention of Mr. Thakur that the ratio of the three cases of the Supreme Court i.e. (1). General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. and Calico Printing Co, Ltd. and Ors., (2) Vividh Kamgar Sabha v. Kalyani Steels Ltd. and Anr. and (3) Cipla Ltd. v. Maharashtra General Kamgar Union and Ors. (cited supra), is distinguishable and cannot be applied to the case at hand, does not find favour with this Court. Merely because the facts differ as in the three cases, where the employees had approached the Court under the MRTU and PULP Act with a case that actually they are the employees of the company which has engaged them through a Contractor, so as to deprive them of benefits to which they are entitled as employees of the company, whereas in the present case, they have approached the Court on the basis that they have been employed on daily wages by the respondent-company and are continued as such without regularising their services and giving them all the benefits to which regular employees of the establishment are entitled. As I have already held that though the employees were engaged through a contractor and were covered by the Contract Labour (Regulation and Abolition) Act or for that reason claimed to have been engaged as workmen by a particular establishment then the ratio in all the three cases decided by the Supreme Court would apply in case the establishment specifically denies and/or disputes a relationship of employer and employee between them.
21. Mr. Manohar has placed reliance on the case of Indian Seamless Metal Tubes Ltd. (cited supra) which is a decision of this High Court in which this question has been examined thoroughly and came to be approved by the Division Bench of this Court in Hindustan Coca Cola Bottling S/W P. Ltd. and Anr. v. Narayan Rawal and Ors. : (2002)1BOMLR123 wherein view taken by another learned Judge of this Court in the very case of Hindustan Coca Cola Bottling S/W P. Ltd. and Anr. v. Narayan Rawal and Ors. 2001 2 CLR 380 have been repelled and it has been held that the complaints filed by the Union and the employees are not maintainable as employer-employee relationship is disputed and Industrial Court has therefore no jurisdiction to try the complaints. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable employer/employee relationship, then it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable. In both the cases, i.e. Indian Seamless and also Hindustan Coca Cola Bottling (cited supra), the Court has relied upon all the three decisions of the Supreme Court commencing from General Labour Union (Red Flag), Vividh Kamgar Sabha and Cipla Ltd., and, therefore, the Division Bench of this Court in Hindustan Coca Cola Bottling' case, quashed and set aside the order passed by the learned single Judge and dismissed the complaint as not maintainable and referred the matter to the State Government to treat the complaint as Industrial Dispute and refer the same to Industrial Tribunal within eight weeks with time bound programme to dispose of the reference.
22. This Court having taken the view that the contentious issue does arise between the parties as regards to very existence of employer-employee relationship, the Industrial Court ought not to have proceeded further with the complaint and decided the same on merits. Probably this situation occurred as the High Court declined to intervene in the matter at an appropriate stage.
23. As regards the second contention about sufficiency of evidence is concerned and the fact as to whether the provisions of Indian Evidence Act will be applicable to proceedings before the Labour-Industrial Tribunal is concerned, this Court would like to refrain itself from making any observation though it has taken note of the authorities cited at the bar by the learned counsel for the parties. As this Court has already come to the conclusion that the decision of the Industrial Court is a nullity and proposes to quash and set aside the impugned orders, the parties would have to undergo a fresh exercise before the Labour Court in the matter and it would be better if this Court does not make any observation and leave it to the parties to lead evidence keeping in mind the principles of Law of Evidence that the parties are expected to lead best evidence available with them to establish their respective cases.
24. In the result, this Court quashes and sets aside the impugned orders and dismisses all the complaints by issuing similar directions as in the case of Hindustan Coca Cola Bottling S/W Pvt. Ltd. v. Bhartiya Kamgar Sena and Ors 2001 3 CLR 1025 and direct the State Government to treat the complaints as Industrial Disputes and refer them to the Industrial Tribunals within eight weeks from today. The Industrial Tribunal shall decide the references within six months from the date of the receipt of the same. On the dispute being referred for adjudicating, it would be open for the parties to lead fresh evidence in the matter. This Court further makes it clear that the Labour Court while adjudicating the dispute, would not be influenced by any observations made by the Industrial Court while disposing of the complaints filed by the respondents and would decide the matter on its own merits and in accordance with law.
25. Rule made absolute in the aforesaid terms with no order as to costs.