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2012 DIGILAW 136 (BOM)

Director v. Kishan

2012-01-19

S.S.SHINDE

body2012
Judgment 1. Rule. Rule made returnable forthwith. With the consent of the parties, heard finally. 2. This writ petition takes exception to the judgment and order dated 19-10-2010 passed by the Industrial Court, Maharashtra, Bench Jalna in Revision (ULP) No. 37 of 2009 arising out of the judgment and order dated 05-08-2009 passed by the Judge, Labour Court, Nanded, in Complaint (ULP) No.161 of 2008. 3. The respondent herein, who is the original complainant, filed Complaint (ULP) No.161 of 2008 before the Labour Court, Nanded, alleging therein that, the petitioner herein employed him in service as per his application for employment in E.D.C. Section as Data Entry Operator on consolidated salary of Rs.1500/per month. It is further averred in the complaint that, said Section came to be closed and the complainant was deputed in Library Section on the same consolidated salary. It is further alleged by the complainant that, his services came to be terminated orally w.e.f. July 2008. 4. The petitioner herein appeared in the said Complaint and filed his Written Statement. The petitioner stated in the Written Statement that, there is no relationship as employer and employee between the petitioner and the respondent i.e. complainant. The petitioner engaged the respondent to the private Contractor on scheme and later on, the said scheme came to be closed as per policy of the Central Government. 5. The Labour Court on 05-08-2009 allowed the complaint and directed the petitioner to reinstate the respondent on his original post with continuity of service and full back wages. Being aggrieved by the judgment and order dated 05-08-2009 the petitioner preferred the Revision (ULP) No. 37 of 2009 before the Industrial Court, Maharashtra, Bench Jalna along with the application for interim relief. On 01-10-2009 the Industrial Court passed order below Exhibit C2 and rejected the application for interim relief. The petitioner preferred Writ Petition No. 7312 of 2009 before this Court. Initially, status quo was granted in the said writ petition, however, by order dated 02-07-2010 the said writ petition came to be disposed of with direction to the Industrial Court, to decide the Revision (ULP) No.37 of 2009 within three months. This Court continued status quo order for further period of three months. On 19-10-2010 the Industrial Court, Jalna was pleased to dismiss the Revision (ULP) No. 37 of 2009. Hence, this writ petition. 6. This Court continued status quo order for further period of three months. On 19-10-2010 the Industrial Court, Jalna was pleased to dismiss the Revision (ULP) No. 37 of 2009. Hence, this writ petition. 6. The learned Counsel appearing for the petitioner argued that, the Labour Court or the Industrial Court have no jurisdiction to entertain the Complaint under the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act (For short, "MRTU & PULP Act"), as only University and College Tribunal has jurisdiction to entertain the appeal under Section 59 of the Maharashtra Universities Act, 1994. The Counsel for the petitioner invited my attention to the Ground No. XIX taken in the writ petition which reads thus: "It is settled position of law that the learned Labour Court and Industrial Court have no jurisdiction to entertain the complaint under M.R.T.U. and P.U.L.P. Act as only the University and College Tribunal has the jurisdiction to entertain the appeal U/s. 59 of Maharashtra University Act, 1994." Therefore, relying upon the said ground, the Counsel for the petitioner submits that, if there is no jurisdiction to the Labour Court and the Industrial Court to entertain the complaint of the respondent, in that case, the judgment and order passed by the Labour Court and which is confirmed by the Industrial Court deserves to be set aside on the ground of jurisdiction alone. 7. The Counsel for the petitioner relied upon the judgment of this Court in the case of Registrar, University of Mumbai vs. Lata Bhor and another, reported in 2005(1) Mh.L.J. 700 , relying upon said judgment learned Counsel would submit that, in some what similar situation this Court has taken a view that the Industrial Court has no jurisdiction to entertain the complaint under MRTU & PULP Act and only University Tribunal have exclusive jurisdiction to entertain the cases of the employees of the University. 8. On the other hand, the learned Counsel for the respondent submits that, there are concurrent findings of fact recorded by the Labour Court and the Industrial Court and therefore, this Court may not interfere. 8. On the other hand, the learned Counsel for the respondent submits that, there are concurrent findings of fact recorded by the Labour Court and the Industrial Court and therefore, this Court may not interfere. In the alternative, the Counsel for the respondent submits that, in case this Court comes to the conclusion that the Labour Court or the Industrial Court had no jurisdiction to entertain the complaint, in that case, the petitioner should not be allowed to take ground before the Tribunal that the respondent is not employee of the petitioner. He further submits that, in case the College and University Tribunal has to consider the case of the respondent i.e. original complainant, in that case, if proceedings are filed by the respondent within eight weeks before the College and University Tribunal, then the petitioner College will not raise the ground of limitation and the Tribunal considering the powers under Section 59(2) of the Maharashtra Universities Act, 1994 can proceed to condone the delay and hear the appeal as filed. He further submits that, the University and College Tribunal may be directed to dispose of the appeal within three months from the date of filing of the appeal. 9. I have given due consideration to the rival submissions. If this Court accepts the contention of the petitioner that, the Labour Court and the Industrial Court has no jurisdiction, in that case, other points on merits need not be considered. At this juncture, it would be relevant to reproduce findings recorded by the Labour Court in para7 of the judgment. Para7 of the said judgment reads thus: "7. In the present at hand, on perusal of the entire documents place don record by the respondent at Exh.C12, we will find that there is no document placed on record to show that there was a valid agreement in between the respondents and the contractor to provide the services of labour in Library Section. On the contractor, document dated 1.10.2005 (submitted by the respondents itself) clearly shows that the services of the complainant were taken by the respondents in Library Section since 1.10.2005. If really, the complainant is an employee of the contractor, there was no need for the respondents to transfer his services to the Library Department from other one. The burden to discharge this Issue is on the respondents. If really, the complainant is an employee of the contractor, there was no need for the respondents to transfer his services to the Library Department from other one. The burden to discharge this Issue is on the respondents. However, the respondents has not placed on record any document to that effect. As against this, the payslip issued by the respondents to the complainant clearly shows he was engaged by the respondents and not by the labour contractor. The complainant is thus the employee of the principal employer i.e. the respondents and there appears the relationship in between the complainant and the respondents as employee employer. Hence, I record my findings to this Issue accordingly." 10. The Industrial Court has accepted the finding recorded by the Labour Court that the complainant i.e. respondent herein is the employee of the petitioner – College in para12 of its judgment. If the Labour Court and the Industrial Court reached to the conclusion that, there is relationship of employer and employee between the petitioner herein and the respondent i.e. complainant, in that case, in case of alleged termination, the provisions of Section 59 of the Maharashtra Universities Act, 1994 would come into picture and therefore, there is no reason in not accepting the main ground taken by the petitioner that, the Labour Court and the Industrial Court have no jurisdiction to entertain the complaint under MRTU & PULP Act, as the only University and College Tribunal has jurisdiction to entertain the appeal under Section 59 of the Maharashtra Universities Act, 1994. 11. Therefore, for the reasons aforesaid, in my opinion, the ends of justice would meet, if the impugned judgment and order of the Industrial Court confirming the judgment and order of the Labour Court, is quashed and set aside and liberty is given to the respondent to file appeal before the University / College Tribunal. Accordingly, the judgment and order of the Industrial Court, Jalna dated 19-010-2010 in Revision (ULP) No. 37 of 2009 is quashed and set aside. 12. The writ petition is allowed on the ground for want of jurisdiction on the part of the Labour Court/Industrials Court to entertain the complaint. Accordingly, the judgment and order of the Industrial Court, Jalna dated 19-010-2010 in Revision (ULP) No. 37 of 2009 is quashed and set aside. 12. The writ petition is allowed on the ground for want of jurisdiction on the part of the Labour Court/Industrials Court to entertain the complaint. If the respondent files appeal before the University and College Tribunal within eight weeks, then the petitioner will not raise the ground of limitation and that the Tribunal considering the power under Section 59(2) of the Maharashtra Universities Act, 1994, can proceed to condone delay and hear the appeal as filed. If the appeal is preferred within eight weeks then the Tribunal considering that the respondent has been pursuing the matter from 2008 to dispose of the complaint within three months from the date of filing of the appeal. 13. Rule made absolute on the above terms. Writ Petition is allowed to the above extent, same stands disposed of.