( 1 ) THESE Writ Petitions under Article 226 of the Constitution of India take exception to the Judgment and Order passed by the Industrial Court, mumbai dated 9/4/2001 below Exhibit C-66 in Complaint (ULP) No. 88/2000 whereby the application preferred by the Management to dismiss the complaint on the ground that the same is not maintainable came to be rejected in part. In this Judgment I shall refer to the parties as per their description in the complaint for the sake of convenience. In that, these are two cross petitions filed by the Complainant (Hindustan Lever Research centre Employees Union) and the Respondent No. 1 Company (Hindustan lever Ltd. ). This common Judgment and order will, therefore, dispose of both the Petitions together. ( 2 ) BRIEFLY stated, complaint has been filed by the Complainant in its capacity as recognised Union to espouse the cause of 27 security guards engaged by the Respondent Company in its Research Centre at Chakala, andheri (E), Mumbai. In substance, the grievance of the Complainant is that the Respondent Nos. 1, 2 to 4 have engaged in and are continuing to engage in the unfair labour practices under Items 4 and 5 of Schedule II and Items 3,5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and prevention of Unfair Labour Practices Act, 1971 on and from 16/1/2000. It is stated that 27 security guards named in the list accompanying the said complaint were engaged at the Research Centre of the Respondent No. 1 through the Respondent No. 4 Security Guards Board after July 1987. Complainant has stated that prior thereto, Respondent No. 1 had engaged the security guards through Contractors, namely, Contra Maharashtra Private Security Guards (Regulation and Welfare Act, 1981 1981 complaint (ULP) No. 1086/1985, claiming that the Contractor through whom the security guards were engaged was a sham contractor and the security guards employed through such contractors be declared as permanent workmen of the respondent No. 1-Company. It is stated that after institution of the said complaint, the concerned security guards were removed from services of respondent No. 1. Instead, the Respondent No. 1 Company engaged other set of security guards through another Security Agency (Contractor) from 2/7/1986 to 28/7/1987. It is stated that after institution of the said complaint, the concerned security guards were removed from services of respondent No. 1. Instead, the Respondent No. 1 Company engaged other set of security guards through another Security Agency (Contractor) from 2/7/1986 to 28/7/1987. It is further stated that Respondent No. 1 Company, for the first time started engaging security guards through the Security guards Board (Respondent No. 4), after July 1987-as the Respondent No. 1 company was registered with the Board. It is further stated that some of the security guards employed earlier through M/s. Security and Personnel Services by the Respondent No. 1 Company were registered with the Security Guards board and the Board allotted the same security guards to the Respondent No. 1 Company in the year 1987 and they were still working in the Respondent no. 1 Company. Names of three such security guards are mentioned in the complaint i. e. , sarvashri R. S. Tiwari, P. N. Jha and B. N. Dubey. The complainants have asserted that all the remaining security guards who are concerned with the present proceedings were also employed by one or the other security agencies carrying out security as well as watch and ward work on contract basis, prior to getting registered or getting allotted by the Security guards Board. The Complainant further asserts that all the security guards or the security agencies and the principal employer including Respondent No. 1 were covered by the Contract Labour (Abolition and Regulation) Act prior to registered and/or getting allotted by the Security Guards Board. After giving this background the Comnant assertthat the service conditions such as wages, allowances, leave facilities etc. of the workmen employed at the research Centre are covered by various settlements and Awards. The complainant has relied on the Award dated 30/5/1997 passed by the industrial Tribunal in Reference (IT) No. 11/1994 amongst other awards/settlements. It is the case of the Complainant that 27 security guards employed through the Respondent No. 4 were employed through Security board to create artificial distinction and discrimination between two sets of workmen. In as much, as the Respondent No. 1 had its another factory at sewree which is known as Mumbai factory where in addition to 1300 workmen, the Company was employing around 30 security guards directly appointed by the Respondent No. 1 company. In as much, as the Respondent No. 1 had its another factory at sewree which is known as Mumbai factory where in addition to 1300 workmen, the Company was employing around 30 security guards directly appointed by the Respondent No. 1 company. It is the case of the complainant that the practice of recruiting the security guards who look after the security of Andheri unit of Respondent No. 1 company is nothing but a subterfuge, camouflage and pretence because all the 27 concerned security guards are performing the duties which are the essential and integral part of the activities carried out by Respondent No. 1 Company at its Research centre. It is stated that the engagement of said 27 security guards was purportedly through the Board Respondent No. 4, which is merely a paper arrangement created and prepared with an intention to exploit the said security guards and to make them work on lower wages without any security of employment. The Complainant has then adverted to the Award dated 30/5/1997 passed by the Industrial Tribunal which has considered the grievance about the disparity or discrimination between two sets of workmen of Sewree factory and Andheri factory. According to the Complainant, the respondents 1 to 4 were under legal obligation to give parity of service conditions and wages to the concerned 27 workmen keeping in mind the observation of the Tribunal in the aforesaid Award dated 30/5/1997. It is stated that the security guards employed at Sewree factory (Mumbai factory)were getting wages in the range of Rs. 7000-9000 whereas the security guards employed at Andheri unit were getting wages only of Rs. 2,321/ including all allowances. According to the Complainant, the Respondents were not extending the benefits under the Award dated 30/5/1997 and were thus engaging in the unfair labour practices within the meaning of Item 9 of schedule IV. The Complainant further asserts that the above named three security guards approached the Personnel Manager of Respondent No. 1 and requested to extend parity of service conditions and wages as was given to the security guards employed at Mumbai factory. However, no response has been received. According to Complainant, concerned 27 security guards were paid lower wages than the wages paid to 30 security guards employed at mumbai factory of Respondent No. 1. However, no response has been received. According to Complainant, concerned 27 security guards were paid lower wages than the wages paid to 30 security guards employed at mumbai factory of Respondent No. 1. It was unreasonable and arbitrary discrimination against the 27 security guards resulting in unfair labour practices under Items 5 and 9 of Schedule IV. The Complainant has further asserted that the concerned 27 security guards approached the complainant union somewhere in the first week of January 2000. The Complainant union is a recognized union. The Personnel Manager threatened the concerned security guards in the first week of January that if they joined the union or continued to be its members, he may instruct the Security Guards Board (Respondent No. 4) to withdraw them from Respondent No. 1 premises and transfer them elsewhere. It is stated that on couple of occasions Officers of respondent No. 4 visited Respondent No. 1 premises and had a meeting with the Personnel Manager-Respondent No. 3. Immediately thereafter, on 16th january, 2000 the Respondents transferred Sarvashree Shivaji P. Pawar, b. N. Dubey and R. S. Yadav from the Research Centre of Respondent No. 1 company to another company i. e. M/s. Tata Press Ltd. , Prabhadevi, Mumbai. The Complainant asserts that these transfers are carried out by Respondent no. 4 on the complaint of and at the behest of Respondents 1, 2 and 3. No notices were given by the Respondents prior to the transfers of the said three security guards. This was done by the Respondents in collusion with each other with malafide intention of preventing the workmen and the complainant union from approaching the Court against such malafide transfers. According to the Complainant, the transfer is otherwise illegal and not in conformity with the requirements of Clause 31 and 32 of the Scheme under the Regulation of Employment and Welfare Act (hereinafter referred to as the Act for short ). Resultantly, the act of transfer is indulging in unfair labour practice under item 9 of Schedule IV of the Act. Broadly, on these allegations the Complainant prayed for following reliefs: the Complaint, in the circumstances respectfully prays that this honble Court be pleased to grant the following reliefs in this complaint. (a) This Honble Court may be pleased to hold that the Respondents no. Broadly, on these allegations the Complainant prayed for following reliefs: the Complaint, in the circumstances respectfully prays that this honble Court be pleased to grant the following reliefs in this complaint. (a) This Honble Court may be pleased to hold that the Respondents no. 1 to 4 have engaged in unfair labour practices under Item4 and 5 of schedule II and 3, 5 and 9 of Schedule IV of the MRTU and PULP Act. (b) The Honble Court may be pleased to direct the Respondent Nos. 1 to 4 to cease and desist from engaging in the unfair labour practice complained of in the present complaint. (c) The Honble Court may be pleased to direct the Respondent to pay wages allowances etc. , to the concerned 27 Securities Guards on par with the permanent security guards at Sewree Factory of Respondent no. 1 from the date of award in Reference (IT) No. 11 of 1994, width 18% compound interest thereon. (d) That the Respondents may be directed to reinstate and continue and/or continue the complainant security guards services at Respondent no. 1 premises as per the provisions of the Maharashtra Private security Guards Act, 1981 scheme and applicable labour laws. (e) Pending hearing and final disposal of the complaint, the respondents may be directed to cancel the transfer order of Shri dubey, Shri Pawar and Shri R. S. Yadav and allow them to continue the services at Respondent No. 1 premises as per the provisions of maharashtra Private Security Guards Act, 1981 and other applicable labour laws. (E-1) That to direct the Respondents to cancel the Transfer Orders issued to Sarvashree B. N. dube, R. S. Yadav and S. P. Pawar and allow them to continue to perform their duties at the premises of the respondent No. 1 Company i. e. At Research Centre, as per the provisions of Maharashtra Private Security Guards Act, 1981 and other applicable Labour Laws. (f) Pending hearing and final disposal of the complaint, the respondent be prevented from transferring any security guards covered in the present complaint without following the due process of law. F1. That to direct the Respondent Nos. (f) Pending hearing and final disposal of the complaint, the respondent be prevented from transferring any security guards covered in the present complaint without following the due process of law. F1. That to direct the Respondent Nos. 1, 2 and 3 to pay wages as per award in Reference (IT) No. 11 of 1994 to Sarvashree B. N. dube, r. S. Yadav and S. P. Pawar and to pay them the arrears arising therefrom, from the date of the Award, with 18% compound interest thereon. (g) That pending hearing and final disposal of the complaint, the respondents be directed too pay 50% of the difference between the wages of permanent security guards of Mumbai Factory and the concerned 27 security guards in addition to their present wages. (h) Ad-interim and interim reliefs in terms of prayers E, F and G. (i) For the cost of the Complaint. ( 3 ) THE Respondents have resisted the said complaint. While the said complaint was pending, Respondent No. 1 company took out application before the Industrial Tribunal to dismiss the complaint as not maintainable. It would be appropriate to reproduce the said application which reads thus: the Respondent No. 1 Company respectfully states and submits that the present complaint as filed is not maintainable on the following grounds which have been taken without prejudice to one another. (a) The Complainant union has no locus standi to file the present complaint inasmuch as it is the recognized union for the employees of the undertaking at Hindustan Lever Research Centre at Andheri. It has no authority in law to file any complaint in respect of any person who is not an employee of the Respondent No. 1 Company since a recognised union can represent or file a complaint only on behalf of the undertaking for which it has been recognized. This is clear from the averments of the Complainants in the application for interim-relief itself. (b) The concerned person at annexure 1 of the complaint are not employees within the meaning of Section 3 (5) of the MRTU and PULP act, 1971. Neither is the Respondent No. 1 an employer within the meaning Section 3 (6) of the MRTU and PULP Act, 1971. (b) The concerned person at annexure 1 of the complaint are not employees within the meaning of Section 3 (5) of the MRTU and PULP act, 1971. Neither is the Respondent No. 1 an employer within the meaning Section 3 (6) of the MRTU and PULP Act, 1971. The complaint itself as well as the annexures annexed thereto clearly shows that the 26 security guards whose names are at annexure 1 are security guards registered with the Security Guards Board which has been constituted under the provisions of the Maharashtra Private Security Guards (Regulation and Welfare Act, 1981) and the scheme framed thereunder. There is no employer-employee relationship between the Respondent no. 1 company and these registered security guards allotted to the respondent No. 1 company by the Respondent NO. 4 Board. It is further submitted that the Respondent No. 4 alone regulates the wages and service conditions of the Registered Security Guards. Page 34 to 39 clearly reveals the sole authority of the Respondent No. 4 over the said registered Security Guards. (c) The complaint does not conform to the requirements of Section 28 of the MRTU and PULP Act, 1971. (d) The complaint is also against the provisions of the Maharashtra security Guards (Regulation and Welfare Act, 1981)The Respondent No. 1 Company therefor submits that in view of the above the complaint is not maintainable and this Honble Court does not have the jurisdiction to entertain try and dispose of the same. Since the issue of the maintainability goes to the root of the matter this honble Court may be pleased to take the same as a preliminary issue and dispose of the same before embarking on the merits of the matter if any. The Respondents 1 to 3 reserves their right to file a detailed reply to the application for Interim Relief and the complaint thereafter if required, at the appropriate stage. Mumbai dated this 18th day of February, 2000. ( 4 ) SIGNIFICANTLY, the said application came to be rejected by a detailed judgment and order passed by the Industrial Court on 24/2/2000. Mumbai dated this 18th day of February, 2000. ( 4 ) SIGNIFICANTLY, the said application came to be rejected by a detailed judgment and order passed by the Industrial Court on 24/2/2000. The tribunal essentially relied on the decision of our High Court in the case of krantikari Suraksha Rakshak Sanghatana v/s. A. L. Alaspurkar reported in 1996 II CLR page 76 to hold that the relationship of master and servant exist between the security guards and the company to whom they have been allotted by the Board for the limited purpose of considering the grievance of unfair labour practices committed by the company. On this finding the application preferred by Respondent No. 1 Company came to be rejected after considering all aspects of the matter canvassed before the Tribunal. It is not in dispute that the Respondent No. 1 Company did not think it necessary to challenge the said decision. Indeed, the Complainant had filed application for grant of interim-relief during the pendency of the complaint which prayer was rejected by the Tribunal. The Complainant union being dissatisfied by the rejection of interim-relief preferred Writ Petition No. 563/2000. This court while disposing of the said Writ Petition on 6/3/2000 directed the parties to maintain status-quo till the application for grant of interim-relief was finally disposed of. The Industrial Tribunal, however, finally rejected the application for interim-relief preferred by the Complainant by its order dated 4/4/2000. Against the said decision the Complainant union filed Writ petition in this Court being Writ Petition No. 2214/2000 which was disposed of on 27/4/2000. This Court while disposing of the said Writ Petition expressed its prima-facie view that the issues raised by the union were arguable and require deeper consideration. ( 5 ) BE that as it may, Respondents 1, 2 and 3, however, once again filed another application calling upon the Industrial Court to decide the preliminary issue of maintainability of the complaint in the first instance and to defer the recording of further evidence in the complaint. This application was filed during the midst of recording of evidence. It was filed on 14/2/2001 mainly relying on the opinion of the Apex Court in the case of vividh Kamgar Sabha v/s. Kalyani Steels Ltd. reported in 2001 I CLR page 532. This application was filed during the midst of recording of evidence. It was filed on 14/2/2001 mainly relying on the opinion of the Apex Court in the case of vividh Kamgar Sabha v/s. Kalyani Steels Ltd. reported in 2001 I CLR page 532. Application reads thus: the Respondents No. 1, 2 and 3 herein by this application raise the following preliminary issues in view of the judgement of the Honble supreme Court in the case of Vividh Kamgar Sabha v/s. Kalyani Steels ltd. reported in 2001 I CLR 532, where in view of the said judgement since admittedly the workmen are the employees of the Security Guard board as the complainant in para 3 (3) states with a view to create artificial distinction and discrimination between the two sets of workmen, the Respondents have on paper shown the concerned 27 security guards as employed through the Respondent No. 4 i. e. Security Guards Board of Greater Bombay and Thane. . . . Further the engagement of these security guards through the Board i. e the respondent No. 4, herein is a mere paper arrangement created and prepared with an intention to make them to work on lower wage without any security of employment. This Honble Court ought to dismiss the said complaint in the light of the above judgement as admittedly in view of the pleading in the complaint that the security guards are employees of the Respondent no. 4 and are on the rolls of the Security Guard Board and since the respondent No. 1-3 in their application dated 18. 2. 2000, written statement dated 14. 3. 2000, additional written statement dated 29-6-2000 and reply to production of document dated 24-7-2000 have categorically averred that the persons at Annexre 1 of the complaint are not employees of the Respondent No. 1 Company and consequently are not employees within the meaning of Section 3 (5) of the MRTU and pulp Act, 1971. 2000, written statement dated 14. 3. 2000, additional written statement dated 29-6-2000 and reply to production of document dated 24-7-2000 have categorically averred that the persons at Annexre 1 of the complaint are not employees of the Respondent No. 1 Company and consequently are not employees within the meaning of Section 3 (5) of the MRTU and pulp Act, 1971. It is respectfully submitted that keeping with the observations of the judgement of the Honble Supreme Court this issue ought to be first resolved before proceeding with the complaint as in view of the judgement of the Honble Supreme Court if there is a dispute whether the employees are employees of the Company, then that dispute ought to be resolved first and for that purpose the Complainant ought to raise dispute before the appropriate forum and come under the provisions of the MRTU and PULP Act by filing a complaint as the Complainant has done. In the light of what is stated above, it is respectfully prayed that this honble Court may be pleased to decide the preliminary issue of maintainability of this complaint in the first instance and also pleased not to record further evidence in the matter and the complaint may please be dismissed. Mumbai dated this 14th day of february 2001. ( 6 ) IT is this application which has been disposed of by the Industrial Court by the Judgment and order which is impugned by both the Complainant as well as Respondent No. 1 Company. The Industrial Court in the first place proceeded to hold that the decision in Kalyani Steels (supra) or for that matter subsequent decision in Cipla reported in 2001 (1) CLR 734 would make no difference to the view already expressed by it on the earlier occasion in its decision dated 24/2/2008, while rejecting the application raising issue of maintainability of the complaint. Having said this, the Tribunal ought to have rejected the application (Exhibit C-66) preferred by Respondent No. 1 company. Having said this, the Tribunal ought to have rejected the application (Exhibit C-66) preferred by Respondent No. 1 company. However, on its own, it then proceeded to examine whether it would be possible for the Industrial Court in the Summary Enquiry which it is expected to undertake while deciding the complaint brought before it to examine voluminous documents to consider the grievance of the Complainant that the act of Respondents resulted in violation of equal pay for equal work or results in unfair labour practice under Item 9 of Schedule IV. The industrial Court has recorded that it had spent sometime on recording of examination-in-chief and noticed that the Respondent company has filed 5 trunks and 3 boxes load of documents to establish the question of equal work. Besides, the oral evidence recorded has also run into almost 25 pages consuming three days of the Court. It is for that reason the Industrial tribunal proceeded to hold that it may not be possible for it to enquire into the issue of equal pay for equal work which the Complainants want the Court to decide in the Summary Proceedings. Consistent with the above reasons, the Industrial Court proceeded to pass the following order: order I) The Application at Exh. C-66 stands partly allowed. ii) Part of the complaint moved under item 5 and 9 of Sch. IV on the ground of `equal pay for equal work is not maintainable under summary provision provided under section 28 of the MRTU and PULP act. iii) The rest of the Complaint stands maintainable for trial. Parties to the litigation to proceed further with the trial of the Complaint accordingly. (iv) No order as to costs ( 7 ) IT is this Judgment and order which is subject matter of challenge before this Court by the Complainant as well as Respondent No. 1 company. According to Respondent Company, no complaint would lie in relation to the grievance regarding service conditions of the security guards who have been employed by the Company through the Security Board. To buttress this submission, reliance is placed on the decision of the Supreme Court in krantikari Suraksha Rakshak Sanghtana v/s. Bharat Sanchar Nigam ltd. and ors. reported in (2008) 10 SCC 166 , International Airport authority Employees Union v/s. International Airport Authority of India and ors. reported in 2002 III LLJ 277 (Bombay Division Bench), Cipla ltd. To buttress this submission, reliance is placed on the decision of the Supreme Court in krantikari Suraksha Rakshak Sanghtana v/s. Bharat Sanchar Nigam ltd. and ors. reported in (2008) 10 SCC 166 , International Airport authority Employees Union v/s. International Airport Authority of India and ors. reported in 2002 III LLJ 277 (Bombay Division Bench), Cipla ltd. v/s. Maharashtra General Kamgar Union and ors. Reported in 2001 I clr 754, Sarva Shramik Sangh v/s. Indian Smelting and Refining company Ltd. and ors. reported in 2003 III CLR 949. Relying on these decisions it was argued by the Counsel for the Company that reliance placed on the view expressed therein-by the Bombay High Court, by the Tribunal as well as by the Complainant during the course of hearing before this Court, will have to be held as no more a good law. According to the Respondent company, unless there is direct relationship of employer and employee, question of maintaining complaint under the provisions of MRTU and PULP act does not arise at all. It was argued that the security guards allotted by the Board can never acquire the status of direct employee of the Company. In that, there is no direct relationship of employer and employee qua them. Learned Counsel, however, submits that none of the Bombay High Court decision deal with the issue of locus, which is the core issue to be addressed to consider whether the complaint can be maintained. He submits that the act of 1981 is a complete code and the grievance regarding illegality of transfer or for that matter regarding wages and other service conditions will have to be made only before the Board who has been bestowed with ample power to regulate the service conditions of the security guards deployed through the Board to the registered employer. It was further argued that in any case the complaint proceeds on the assumption that there was direct relationship between the security guards and the Respondent company. Such assumption was incorrect. Moreover, it is not open to the Tribunal while entertaining complaint under provisions of MRTU and PULP Act to decide that contentious issue. He submits that both on the question of transfer as well as wages, the consistent view is to reject the stand taken by the security guards. Such assumption was incorrect. Moreover, it is not open to the Tribunal while entertaining complaint under provisions of MRTU and PULP Act to decide that contentious issue. He submits that both on the question of transfer as well as wages, the consistent view is to reject the stand taken by the security guards. Keeping the principles expounded in the reported decisions, it will have to be held that complaint was not maintainable. He submits that even the grievance of malafide transfer can be made before the board, which has ample authority to consider the same and take appropriate decision as may be warranted. It is submitted that the Act of 1981 is a codified law and all disputes referred therein or in the rules and schemes framed thereunder will have to be decided within the parameters of the said provisions and not with reference to some other law. Learned Counsel submits that it is not open to the Tribunal to pass orders against the employer when the impugned order or act is that of the Board. In as much as, the order of transfer as well as fixing of wages is on the basis of the order passed by the Board, which the Respondent company is only expected to comply. ( 8 ) ON the other hand, Counsel for the Complainant union strongly relied on the decision of our High Court in the case of Krantikari Suraksha rakshak Sangh v/s. A. L. Alaspurkar and ors. (supra) to contend that this court relying on earlier decisions unambiguously held that registered employer is the employer for the limited purpose of examining the grievance of unfair labour practices committed by him. Reliance is also placed on the decision in the case of Krantikari Suraksha Rakshak Sanghatana, Thane v/s. Security Board for Greater Bombay and Thane and ors. reported in 1997 II clr 81 to point out that the Division Bench of this Court not only upheld the view taken by the Learned Single Judge in the above said decision but has further expounded the norms for allotment and re-allotment of security guards by the Board having regard to the provisions of Scheme. According to the Complainant union there is no doubt that when the grievance is one regarding malafide transfer-which results in commission of unfair labour practice, the same will have to be addressed in the proceedings under the mrtu and PULP Act. According to the Complainant union there is no doubt that when the grievance is one regarding malafide transfer-which results in commission of unfair labour practice, the same will have to be addressed in the proceedings under the mrtu and PULP Act. Moreover, even the grievance regarding transfer being illegal is a matter which also results in commission of unfair labour practice amenable to enquiry under the provisions of Act of 1971. To buttress this submission reliance is placed on the decision of the Apex Court in the case of SG Chemicals and Dyes Trading Employees Union v/s. SG Chemicals and Dyes Trading Ltd. reported in 1986 I CLR page 360 and also decision of our High Court in the case of Dattatray S. Kharde v/s. Executive Engineer, Chief Gate reported in 1994 I CLR page 1022. The counsel for the Complainant has also relied on the decision in the case of tukaram T. Mandhare v/s. Raymond Woollen Mills Ltd. (Full Bench of our High Court) reported in 2006 I CLR page 126 which has considered the efficacy of the deeming provision of Bombay Industrial Relations Act to hold that person employed through a Contractor is deemed to be the employee of the principal contractor. According to the Complainant union, once the industrial Court had rejected application raising issue of maintainability of complaint and which decision has gone unchallenged, it was not open to the tribunal to once again entertain the subsequent application of the respondent company allowing it to indirectly raise the same issue which was negatived on the earlier occasion. In so far as the approach of the Tribunal in concluding that it was not possible for it to make enquiry regarding the grievance of equal pay for equal wages in the summary enquiry, the complainant has relied on the decision of the Apex Court in the case of mohan Lal v/s. Kartar Singh and ors. reported in 1995 (supp) 4 (SCC)page-684 which takes the view that merely because complicated question of status and title and right to possess would require elaborate enquiry cannot be the basis to abdicate the duty of the Authority to examine the same merely because the trial is summary. Learned Counsel has also adverted to the decision of Hindalco Industries v/s. Association of Engineering Workers union reported in 2008 I CLR page 1023 which is a decision concerning canteen workers employed by the company. Learned Counsel has also adverted to the decision of Hindalco Industries v/s. Association of Engineering Workers union reported in 2008 I CLR page 1023 which is a decision concerning canteen workers employed by the company. ( 9 ) COUNSEL for Respondent No. 4 Board has filed written submissions. In all fairness the Counsel for the Board accepts that the allegation of malafide exercise of power of transfer is a question which can be enquired into by the industrial Court in proceedings under the Act of 1971. She has invited my attention to additional two decisions. The first is reported decision of this court in the case of Hussain Mithu Mhasvadkar v/s. Bombay Iron and steels Labour Board reported in 1990 II CLR 860 and another unreported decision of the Division Bench of our High Court in the case of Suraksha rakshak and General Kamgar Union MSSIDC and ors. being Writ Petition no. 2671/1992 decided on March 23, 1993 which examines the question as to whether the security guard employed through the Board can be considered as regular and direct employee of the registered employer. ( 10 ) AFTER having considered the rival submissions, the first question that needs to be addressed is: whether the successive applications raising issue of maintainability of the complaint could be entertained by the Industrial tribunal. In my opinion, the Tribunal has rightly observed that all issues which are required to be answered were considered on the earlier occasion when the application came to be dismissed on 24/2/2000. It is not in dispute that the Respondent Company did not challenge the said decision. Once that view has been allowed to become final, it was not open for the Industrial court to examine the same grievance indirectly by entertaining another application which obviously was not a review application of the earlier decision. On this count alone the subject application could not have been rejected. ( 11 ) IN any case, in my view, the Tribunal has rightly confined the inquiry as to whether the decision of the Apex Court in Kalyanis case would make any difference to the case in hand. To consider this aspect, we may first refer to the principle expounded by the Apex Court in the Kalyanis case. ( 11 ) IN any case, in my view, the Tribunal has rightly confined the inquiry as to whether the decision of the Apex Court in Kalyanis case would make any difference to the case in hand. To consider this aspect, we may first refer to the principle expounded by the Apex Court in the Kalyanis case. In that case, the Appellant union claimed that even though the Appellants are actually the employees of the Respondents, the Respondents are not treating them at par with other employees and have notionally engaged contractor to run the canteen. In that case the Court recorded as of fact that Respondents were not accepting the Appellants claim to treat them as their employees. Keeping that factual matrix in mind and the decisions in the case of krantikari Suraksha Rakshak Sangathana v/s. S. V. Naik (supra) and central Labour Union (Red Flag) Bombay v/s. Ahmedabad manufacturing and ors. 1995 II LLJ 765 it is held that where the workman has not been accepted by the Company as its employees then no complaint would lie under the Act of 1971. ( 12 ) GOING to the decision of the Apex Court in Ciplas case, the same legal position has been reiterated. In para-7 of the decision, the Court observed thus: 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 or 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 is 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. ( 13 ) THE core issue is whether the relationship of employer-employee between the parties herein can be said to be undisputed or indisputable. In the present case, Respondent company has accepted the fact that the 27 security guards have been employed in their Andheri factory through respondent No. 4 Board. ( 13 ) THE core issue is whether the relationship of employer-employee between the parties herein can be said to be undisputed or indisputable. In the present case, Respondent company has accepted the fact that the 27 security guards have been employed in their Andheri factory through respondent No. 4 Board. In other words, the fact that the concerned security guards were working in the establishment of Respondent No. 1 is not disputed. The fact that the concerned security guards were not directly appointed by Respondent No. 1 Company but have been employed through respondent No. 4 Board, does not take the matter any further. In as much as, the consistent view of our High Court and which view has been adverted to with approval even in the reported decisions of the Apex Court, is that, atleast in one area in which the registered employer must be held to be the employer is for the limited purpose of unfair labour practices complaints. Applying the said dicta, it would necessarily follow that the complaint filed before the industrial Court making grievance about unfair labour practices inflicted against the 27 workmen would be maintainable and will have to be decided on its own merits in accordance with law. ( 14 ) THE Tribunal having said this ought to have rejected the application preferred by the Respondent company. However, the Tribunal, on its own, then proceeded to consider whether having regard to the fact of voluminous documents and evidence required to be examined in relation to the issue of equal pay or equal wages and allegation of failure to implement the Award, concluded that it was not possible for it to evaluate that claim in summary proceedings under MRTU and PULP Act. The Complainant has rightly pressed into service exposition of the Apex Court in the case of Mohanlal (supra)which takes the view that merely because the enquiry is summary and would involve complicated questions of status or title and right to possess, that by itself cannot be the basis to non-suit the applicant. On the other hand, the authority is bound to exercise the jurisdiction vested in it and record its satisfaction on the judicial determination of fact which invest him with jurisdiction to pass appropriate order. On the other hand, the authority is bound to exercise the jurisdiction vested in it and record its satisfaction on the judicial determination of fact which invest him with jurisdiction to pass appropriate order. In other words, the approach of the industrial Court is nothing short of abdication of its duty to adjudicate the issue that arises for its consideration having found that the complaint was maintainable. It would, however, be a different matter if the Industrial court in the enquiry were to hold that the concerned security guards engaged by the Respondent company through Board Respondent No. 4 are not similarly placed as that of security guards directly employed by Respondent no. 1 company at its Sewree (Mumbai) factory. In that, the security guards allocated by the Board, their service conditions would be governed strictly by the provisions of Act of 1981 or the rules and schemes framed thereunder and not with reference to any other law. It would be open to the Industrial court to also refuse relief of equal wages to the security guards if it were to hold that the Award on which emphasis was placed and grievance of non-implementation whereof is made, governed only the workmen directly employed by Respondent No. 1 company. In other words, it is open to the tribunal to conclude after enquiry that the security guards were in no way concerned with the said Award. It is also possible for the Tribunal, keeping in mind the exposition of the decisions pressed into service by the parties, to hold that the grievance made by the Complainant was squarely governed by the Act of 1981 and the rules and schemes framed thereunder which is a self contained Code and the Board is the sole Authority to regulate the service conditions of the security guards allotted by it. All these aspects will have to be considered by the Tribunal and may be germane to deny the relief of equal wages in terms of prayer clause (c) or (F-1) as reproduced earlier. However, by no standards the Tribunal could have held that the complaint was partly maintainable and partly not maintainable. All these aspects will have to be considered by the Tribunal and may be germane to deny the relief of equal wages in terms of prayer clause (c) or (F-1) as reproduced earlier. However, by no standards the Tribunal could have held that the complaint was partly maintainable and partly not maintainable. ( 15 ) IN so far as the decision in Alaspurkar (supra), the question agitated before the Learned Single Judge of this Court was that neither the registered employer nor the Security Guards Board was an employer of the concerned security guards within the meaning of Section 3 (6) of the Act of 1971 and that the security guards were not workmen within the meaning of section 2 (s) of the Industrial Disputes Act since there was no contract of employment between them and the registered employer or the security guards. This controversy has been answered after analysing the relevant decisions and the legal provisions to conclude that there was no need to identify an employer in such a situation. This Court went on to further observe that assuming that there was such a need for purposes not provided for by the legislation, the employer will be the principal employer as defined in the Act of 1971. This Court by interpretative process has read into the definition of employee even security guards employed through the Board for the limited purpose of unfair labour practices, which interpretation is contextual to the scheme of MRTU and PULP Act. The Court unhesitatingly observed that it is one area in which the registered employer must be held to be the employer at least for the purpose of unfair labour practices complaints. It is not necessary for us to advert to other issues answered in the said decision. ( 16 ) SIMILARLY, in the case of Krantikari Suraksha Rakshak Sanghthana, thane v/s. Security Guards Board for Greater Bombay and Thane (supra), the question considered by the Division Bench of this Court was whether security guard once allotted to a particular establishment or employer can be withdrawn by the Board. In as much as, the Act of 1981 indicates that it is a one time exercise and the Board has no power to withdraw the guard once allotted to an establishment. In as much as, the Act of 1981 indicates that it is a one time exercise and the Board has no power to withdraw the guard once allotted to an establishment. This argument has been considered and the Division Bench has opined that there is power with the Board to withdraw and re-allot a security guard, but further held that such power has to be exercised within the discretion of the Board objectively by following procedure stipulated in that behalf. In para-17, after referring to earlier Division Bench Judgment, the Court rejected the argument that under the scheme once the security guard is allotted by the Board to a registered employer, the security guard becomes permanent allottee and the board has no power to withdraw allotment or giving fresh allotment with any other registered employer. After considering the Act of 1981 and the scheme, the Court held that the Board has power to withdraw the allotment of security guard given to a registered employer and re-allot the guard to another registered employer. The Court noticed that when the security guard is withdrawn on a complaint by the principal employer, the procedure provided in clause 31 of the Scheme ought to be followed. Indeed, the Court has recognized that the Board has power to transfer the allotted security guard and re-allot him to some other employer. However, that does not mean that the Board would do so without following the requirements of law. If the act of transfer of security guard by the Board is contrary to the provisions of the Act, Rules or the Schemes and the settled legal position, due to such illegality, it would result in unfair labour practice under item 9 of Schedule iv. If any authority is required, we can usefully refer to the exposition of the apex Court in SG Chemicals (supra ). In any case, when the allegation is one of malafide transfer that would squarely attract the provisions of unfair labour practices Act. This legal position is noticed by the Division Bench of our High Court in the case of Dattatray H. Kharde (supra ). ( 17 ) COUNSEL for the Complainant union placed reliance on the Full Bench decision in Tukaram Tanaji case (supra ). The Full Bench on analysing the relevant provisions opined that the Bombay Industrial Relations Act defines both employer and employee and that definition is an artificial definition. ( 17 ) COUNSEL for the Complainant union placed reliance on the Full Bench decision in Tukaram Tanaji case (supra ). The Full Bench on analysing the relevant provisions opined that the Bombay Industrial Relations Act defines both employer and employee and that definition is an artificial definition. It proceeded to hold that as per this definition if a person is employed by a contractor and employment is not of employer himself and no relation is established between the person and person employed, even so the person employed becomes an employee if the contractor who employs him in execution of a contract with the employer that contract being one referred to in sub-clause (e) of clause (14) of the BIR Act. The Court proceeded to hold that if the evidence specifies, than even though, according to law, the relationship between contract labour and company may not be that of master and servant, still they would be employer and employee within the meaning of Section 3 (13) of the BIR Act. Consequently they would be the employees within the meaning of Section 3 (5) of the MRTU and PULP Act and complaint filed by such an employee under Section 28 of the said Act is perfectly maintainable. This is the consistent view. ( 18 ) AS aforesaid, there is direct decision on the question as to whether there exists relationship between the registered employer and the security guard who has been allotted by the Security Guards Board. The consistent view is that such relationship exists for the limited purpose of considering the claim of unfair labour practices committed by the company qua the security guards. Such case has been made out in the complaint as filed. In paragraph 3 (a) of the complaint, it is averred that all the security guards were performing the duties of regular, perennial, important and permanent nature at the Respondent No. 1 company. Further, the duties performed by the concerned security guards were integral and essential part of activities carried out by Respondent No. 1 company at the address mentioned in the title of the complaint. Further, the duties performed by the concerned security guards were integral and essential part of activities carried out by Respondent No. 1 company at the address mentioned in the title of the complaint. In Paragraph 19 of the Full Bench decision, it has been observed that the position, therefore, is that, a person who is employed through a contractor who undertakes contract for execution of any work or any part of the work which is ordinarily work of the undertaking governed by the BIR act is an employee within the meaning of Section 3 (5) of the MRTU and pulp Act and the complaint of such an employee is maintainable though no direct relationship of employer-employee exists between him and the principle employer. All these are matters to be adjudicated at the final hearing of the complaint. Suffice it to observe that the concerned security guards were competent to institute complaint alleging commission of unfair labour practices against the Respondent No. 1 company in which the Security guards Board could be made party. ( 19 ) COUNSEL for the Company placed reliance on the Supreme Court decision in the case of Krantikari Suraksha Rakshak v/s. Bharat Sanchar nigam Ltd. (supra ). In that case, however, the principal contention was that once the Board constituted under the Act of 1981 allots guard to the principal employer, it loses the power to recall, re-allot or transfer such guard-as the guard so alloted becomes employee of the principal employer. This contention has been rejected. However, that does not mean that the legal principle stated by this Court in the case of Tradesvel Security Services Pvt. Ltd. v/s. State of Maharashtra (1982) 84 Bombay LR 608, Bombay and reiterated by the subsequent decisions have been watered down or overruled. The legal principle stated that the relationship of employer and employee would exist between the security guards engaged by the registered employer who have been allotted by the Board, for the limited purpose of examining grievance regarding commission of unfair labour practices within the meaning of Act of 1971, is still a good law. Significantly, this decision has been adverted to in the subsequent decisions of our High Court including that of A. L. Alaspurkars case (supra ). Significantly, this decision has been adverted to in the subsequent decisions of our High Court including that of A. L. Alaspurkars case (supra ). Be that as it may, the legal principle stated therein has been noted in Paragraph 19 of the decision of the Apex Court wherein it has observed that it was held that if there were any aspects not covered by the Act such as unfair labour practice which was not involved the principal employer would be treated for the limited purpose and be identified as the employer. Indeed, this Court as well as the Supreme Court consistently rejected the tall claim of the security guards that they will become the direct and regular employees of the registered employer for all purposes. ( 20 ) MUCH emphasis was placed on Paragraph 26 of this decision by the counsel for the Respondent company to contend that the Act of 1981 is a self contained code for which all other statutes dealing with the employer and employee relationship and rights therein are not applicable to security guards and that other statutes are clearly excluded. There is no merit in this submission. That observation is made by the Apex Court in the context of the main question considered by it, that once the security guard is allotted to a principal employer, the Board losses the power to recall, re-allot or transfer such guard as the guard so allotted becomes employee of the principal employer. The decision will have to be read as a whole. As aforesaid, in the earlier part of the decision, the Apex Court has adverted to the authorities of this Court which have taken the view that if at all there were any conditions of service which are not covered by the Act of 1981 and the Scheme, then for such conditions the principal employer shall be treated as the employer of the concerned security guard. The fact that the matter of allotment and reallotment vests with the Board and is covered by the Act of 1981 would, however, not include the grievance about malafide transfer which is, indubitably covered by the provisions of MRTU and PULP Act of 1971. In other words, the area covered by the enactment of Act of 1971 concerning the unfair labour practices committed by the employer is a matter triable before the Court under the provisions of Act of 1971. In other words, the area covered by the enactment of Act of 1971 concerning the unfair labour practices committed by the employer is a matter triable before the Court under the provisions of Act of 1971. Therefore, complaint regarding such unfair labour practice can be legitimately pursued before the industrial Court. ( 21 ) IT was argued that the employer cannot be proceeded in respect of the act or order passed by the Board. This argument does not commend to me. In as much as, once it is held that the registered employer will be the employer of the security guard allotted to him by the Board, necessarily the complaint regarding unfair labour practice will proceed against him and the board can be a party to such proceedings. In such a complaint if the tribunal were to accept the grievance of the Complainant, would be free to pass appropriate directions and order so as to direct the parties to the proceedings to cease and desist from continuing with the unfair labour practices. ( 22 ) SUFFICE it to observe that the material issues will have to be answered by the Tribunal while considering the complaint. It cannot be overlooked that the subject application filed by Respondent No. 1 company was based only on the assertion that in view of the decision in Kalyani Steels, the complaint was not maintainable. However, as already held earlier, the decision in Kalyanis case or for that matter in Cipla, does not, in any way, impact the settled legal principle that the relationship of employer and employee would exist between the registered employer and the security guard who has been allotted by the Security Board for the limited purpose of adjudicating the grievance regarding unfair labour practices within the meaning of Act of 1971. ( 23 ) HOWEVER, before concluding it would be useful to advert to the decision in the case of International Airport Authority (supra ). In this case, the Court was called upon to consider four questions which are culled out in paragraph 7 of the Judgment. The third question is of some relevance to us. ( 23 ) HOWEVER, before concluding it would be useful to advert to the decision in the case of International Airport Authority (supra ). In this case, the Court was called upon to consider four questions which are culled out in paragraph 7 of the Judgment. The third question is of some relevance to us. The same reads thus: the provisions of the Contract Labour Act apply to registered security guards and therefore, under Rule 25 (2) (v) (a) of the Contract labour Rules, the registered security guards are entitled to the same wages and conditions of service as security guards of the registered employer doing the same or similar nature of work ( 24 ) THAT question has been dealt with from Paragraph 72 of the Judgment. The Court has rejected the argument of the security guards that they are entitled to the same wages and conditions of services as that of the security guards of the registered employer doing the same and similar nature of work. Relying on this dicta, it was argued that the claim regarding equal wages cannot be entertained. That is, however, a matter to be examined by the tribunal while considering the complaint. As is observed earlier, it was not open to the Industrial Court to entertain same plea of the Company indirectly in the second application raising issue of maintainability of complaint. Moreover, the Tribunal has answered the issue of equal wages on the reasoning which cannot be countenanced in the light of decision of the supreme Court which takes the view that such reasoning inevitably results in abdication of duty of the Court. Moreover, as is mentioned earlier it is open to the Tribunal to answer the claim of equal wages keeping in mind the settled legal principle. That does not, however, mean that the complaint would not be maintainable at all. Besides, the claim regarding equal wages appears to be two fold. The first grievance is about parity with the wages of security guards employed at the Mumbai factory directly by Respondent No. 1 company. The second is on the basis of Award dated 30/5/1997. According to the Complainant, the concerned security guards are entitled to benefit under the said Award dated 30-5-1997. However, it is for the Tribunal to consider whether that stand of the Complainant is tenable in fact or in law. The second is on the basis of Award dated 30/5/1997. According to the Complainant, the concerned security guards are entitled to benefit under the said Award dated 30-5-1997. However, it is for the Tribunal to consider whether that stand of the Complainant is tenable in fact or in law. Those are matters to be examined by the Industrial Court on merits. Suffice it to observe that the exposition in this decision pressed into service cannot be the basis to hold that the complaint as presented is not maintainable. The court after trial at best may decline relief to the Complainant. ( 25 ) EMPHASIS was placed on another decision of the Supreme Court, by the Counsel for the Respondent Company, in the case of Sarva Shramik sanghatana v/s. Indian Smelting and Refining Company Ltd. (supra ). The question considered in the said decision is whether the view first expressed by the General Labour Union (Red flag) Bombay v/s. Ahmedabad manufacturing and subsequently in many cases including Vividh Kamgar sabha v/s. Ltd. and finally in Cipla and Maharashtra General Kamgar Union is legally sound and needs a fresh look. While considering this question in paragraph 17 of this decision, the Court noted as follows: as noted above, considerable emphasis was laid on the fact that section 59 of the Maharashtra Act was not noticed in Ciplas judgment. A bare reading of the said provision makes it clear that no proceeding under the Bombay Industrial Relations, 1946 or the I. D. Act shall be entertained when proceedings in respect of any matter falling within the purview of the Maharashtra Act is already instituted. A complaint in which relief is sought for a declaration of a status as a direct employee of the principal employer and other consequential reliefs in terms of benefits and conditions of service applicable to workers directly employed by the principal employer is not a matter which falls within the purview of the Maharashtra Act. Therefore, section 59 has no application in such a case. Under the Maharashtra act the Designated Court decides the complaint as provided under sections 5 an d7 of the said Act. For the purpose of deciding the complaint enquiry under Section 30 (3) of the said Act read with section 28 is contemplated. The power to decide the complaint revolves round the question whether ingredients for constituting unfair labour practice exist or not. For the purpose of deciding the complaint enquiry under Section 30 (3) of the said Act read with section 28 is contemplated. The power to decide the complaint revolves round the question whether ingredients for constituting unfair labour practice exist or not. However, the power of adjudication under the I. D. Act is not circumscribed by the existence or non-existence of unfair labour practice and goes far beyond it. ( 26 ) ACCORDING to Respondent, this exposition is directly applicable in the present case. It was argued that the Complainant proceeds on the assumption that the concerned security guards are direct employees of the principal employer. However, there is no substance in this submission. The averments in Paragraph 3 (c) of the complaint which are pressed into service, in no way seek declaration that the status of the concerned security guards was of a direct employee of Respondent No. 1 company/registered employer. Whereas, on reading the complaint as a whole it is clear that the complaint is founded on the assertion that the concerned security guards have been allotted by the Board Respondent No. 4 to the Respondent No. 1 registered employer on and from July 1987. Nowhere in the complaint even remote suggestion is made that the concerned security guards are direct employees of respondent No. 1. No such declaration has been prayed in the complaint. Reliance is also placed on observation in Paragraph 23 and 24 of the same decision where the Apex Court has observed that sine qua for application of violation of unfair labour practices is the existence of direct relationship of employer and employee. It is further held that until that basic question is decided, the forum recedes to the background in the sense that first that question has to be got separately adjudicated. This argument clearly overlooks the consistent view of this Court that even though the security guards are allotted by the Board and engaged by the registered employer and there does not exist direct relationship of employer and employee, even then for the limited purpose of examining the grievance regarding unfair labour practices within the meaning of Act of 1971, it will have to be assumed that there exists relationship of employer and employee between the parties. In other words, the complaint regarding unfair labour practice by the security guard allotted by the Board to a registered employer can proceed on the basis that the relationship of security guard and the registered employer of employer and employee exists and it is undisputed or indisputable. ( 27 ) IN so far as other decisions pressed into service by the Counsel for the board, the first is the case of Hassain Mithu Mhasvadkar (supra ). Even this judgment in no way departs from the consistent view of our High Court and of the Supreme Court when it considers the question whether the Bombay iron and Steel Labour Board is an industry. It is held that the Board is not an industry within the meaning of Section 2 (j) of the Industrial Disputes Act. The other decision is the unreported decision of Division Bench in the case of suraksha Rakshak General Kamgar Union in Writ Petition No. 2671/1992 where the Petitioners prayed that they should be granted regular and direct employment with effect from the date of their engagement with the respondent Corporation on the argument that they became permanent allottees by the Board to the Respondent-registered employer and the Board had no power to withdraw them or re-allot to some other employer. None of these decisions would militate against the conclusion reached in the earlier part of the Judgment. ( 28 ) AS aforesaid, I have no hesitation in taking the view that the Industrial court misdirected itself in holding that the complaint is not maintainable in relation to ground of equal pay for equal work being Summary proceedings under Section 28 of the Act of 1971. The same, therefore, will have to be overturned. In other words, the Application Exhibit C-66 will have to be rejected as a whole with observations that the Industrial Court shall decide the pending complaint on its own merits in accordance with law. ( 29 ) IN view of the above, Writ Petition No. 1240/2001 is dismissed with costs and Writ Petition No. 1537/2001 is allowed with costs.