RAYMOND LTD. & ANOTHER v. TUKARAM TANAJI MANDHARE & ANR.

## (2011] 3 S.C.R. 753 # RAYMOND LTD. & ANOTHER A _v._ TUKARAM TANAJI MANDHARE & ANOTHER (Civil Appeal No. 5077 of 2006) ## MARCH 09, 2011 B ## **[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]** _Maharashtra Recognition of Trade Unions anf}_ - _Prevention of Unfair Labour Practices Act, 1971 s.3(5) and s.28 rlw items 1 (a), (b), (d) and (f) of Schedule IV- Complaint_ - C - - _before Industrial Court! Labour Court Maintainability of_ - _Disputed employee-employer relationship Three questions_ - _referred to High Court 1) Whether a person who is employed by a contractor who undertakes contracts for the execution of the whole of the work or any part of the work which is ordinarily_ D _work of the undertaking is an employee within the meaning of s.3(5) of the MRTU and PULP Act; 2) Whether a complaint filed under the MRTU and PULP Act by an employee as defined under s.3(13) of the BIR Act, is maintainable although no direct relationship of employer employee exists[1] between_ E _him and the principal employer and 3) Whether a complaint_ - _filed under the MRTU. and PULP Act by employees under s.3(13) of the BIR Act can be dismissed if the employer claims that they are not his direct employees but are employed through a contractor_ - _High Court answered_ F _question numbers 1 and 2 in the affirmative, and question number 3 in the negative provided the contractors' workmen were employed to do the work of the whole or part of the_ - _undertaking On appeal, held: In view of the difference of opinion in some of the cited decisions and the importance of_ G _the controversy involved and its application particularly in the State of Maharashtra, an authoritative decision is required by a larger bench on the aforesaid questions_ - _Matter, therefore,_ - _referred to larger bench Bombay Industrial Relations Act,_ - _1946 s.3(13)._ E F 753 **H.** 754 SUPREME COURT REPORTS [2011] 3 S.C.R. A Three questions were referred to the High Court, namely, I) Whether a person who is employed by a contractor who undertakes contracts for the execution of the whole of the work or any part of the work which is ordinarily work of the undertaking is an employee within B the meaning of section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act); 2) :Whether a complaint filed under the MRTU and PULP Act by an employee as defined under section 3(13) of the c Bombay Industrial Relations Act, is maintainable although no direct relationship of employer employee exists between him and the principal employer and 3) Whether a complaint filed under the MRTU and PULP Act by employees under section 3(13) of the BIR Act can be 0[dismissed ][if ][the employer claims that they are not his ] direct employees but are employed through a contractor. A The High Court answered the question numbers 1 and 2 in the affirmative, and question number 3 in the negative provided the contractors workmen were E employed to do the work of the whole or part of the undertaking. This decision was challenged in the instant appeal. Referring the matter to larger bench, the Court ## F before this Court. In view of the difference of opinion In some of these decisions and the importance of the controversy Involved and its application particularly In the State of Maharashtra, an authoritative decision Is required G by a larger bench on the issues Involved. Hence, the matter Is referred to a larger bench on the Issues referred to above. [Paras 9, 10, 11] [759..C-F-G] _Vividh Kamgar Sabha vs. Kalyani Steel Ltd,_ (2001) 2 H RAYMOND LTD. & ANOTHER _v._ TUKARAM TANAJI 755 MANDHARE & ANR. A SCC 381; _Gip/a Ltd. vs. Maharashtra General Kamgar Union,_ A (2001) 3 SCC IOI; _Sarva Shramik Sangh vs. Indian Smelting and Refining_ Co _Ltd,_ (2003) 10 SCC 455; _Dattatraya Kashinath and others vs. Chhatrapati Sahakari Sakhar Karkhana Ltd and others,_ 1996 II LLJ 169 and _Sakhar Kamgar Union vs. Shri Chhatrapati Rajaram Sahakari Sakhar_ B _Karkhana Ltd and others,_ 1996 II CLR 67; _Nagraj Gowda and others vs. Tata Hydro Electric Power Supply Co Ltd, Bombay and others,_ 2003 Ill CLR 358 ; _Hindustan Coca Cola Bottling Pvt Ltd. vs. Bharatiya Kamgar Sena,_ 2001 Ill CLR 1025 ; _Vividha Kamgar Sabha vs. Ka/yani Steel Ltd._ & _another_ c (2001) 2 sec 381, _Gip/a vs. MGK Union_ (2001) 3 sec 101, _Sarva Shramik Sangh vs. Indian Smelting_ & _Refining Company Limited_ (2003) 10 SCC 455, _Mis Hindustan Lever Limited vs. Ashok Vishnu Kate_ (1995) 6 SCC 326, _NTPC vs. Badri Singh Thakur and others._ (2008) 9 SCC 377, _Hindalco_ D _Industries vs. Association of Engineering Workers_ (2008) 13 SCC 441, _Ahmadabad Mfg. and Calico Ptg._ Co. _Ltd. vs. Ram Tehel Ramnand_ (1972) 1 SCC 898, _Saraspur Mill Co. Ltd. vs. Raman/a/ Chimanla/_ (1974) 3 SCC 66, _Shramik Uttakarsh Sabha vs. Raymond Woolen Mills Ltd._ & _others,_ (1995) 3 SCC 78 - referred to. E E ## Case Law Reference: (2001) 2 sec 381 (2001) 3 sec 101 (2003) 10 sec 455 1996 II LLJ 169 1996 II CLR 67 2003 Ill CLR 358 2001 Ill CLR 1025 (1995) 6 sec 326 referred to Paras 3, 9 .F referred to Paras 3, 9 referred to Paras 4, 9 referred to Para 5 referred to Para 5 G referred to Para 5 referred to Para 5 referred to Para 9 Para 9 H 756 SUPREME COURT REPORTS [2011) 3 S.C.R. |A|(2008) 9|(2008) 9sec377|referredto|Para 9| |---|---|---|---|---| ||(2008) 13|(2008) 13sec441|referredto|Para 9| ||(1972) 1|(1972) 1sec898|referredto|Para 9| |B|(1974) 3|(1974) 3sec66|referredto|Para 9| ||(1995) 3|(1995) 3sec78|referredto|Para 9| CIVIL APPEALLATE JURISDICTION : Civil Appeal No. 5077 of 2006. c From the Judgment & Order dated 6.6.2005 of the High Court of Judicature at Bombay in Writ Petition No. 1204, 7673 & 9449 of 2003. R.F. Nariman, Meena Doshi, Jayashree Wad, Ashish Wad, D Tamali Wad, Sameer Abhyankar, Dipti (for J.S. Wad & Co.) for the Appellants. Vinay Navare, Yogendra Pendse (for Naresh Kumar) for the Respondents. E The Judgment of the Court was delivered by > MARKANDEY KATJU, J. 1. This appeal has been filed against the impugned judgment of the Full Bench of the High Court of Judicature at Bombay in Writ Petition Nos. Nos. 1204/ F 2003, 7673/2003 and 9449/2003. 2. Heard learned counsel for the parties. 3. The facts of the case are that the petitioners filed complaints under section 28 read with items I (a)(b), (d) and G (f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU and PULP Act), before the Industrial Court/Labour Court for certain reliefs claiming that they are employees of the respondent company. The H respondent company in all these writ petitions has disputed the . RAYMOND LTD. & ANOTHER _v._ TUKARAM TANAJI 757 MANDHARE & ANR. [MARKANDEY KAT JU, J.] A vith any of the petitioners. The company has contended that lhe complainants were employed through the contractors and lhat the issue regarding maintainability of the complaints would nave to be decided by the court. During the pendency of these B. ·:omplaints, the judgments in the case of _Vividh Kamgar Sabha_ 'S. _Kalyani Steel Ltd,_ (2001) 2 sec 381 and in the case of _;ipla Ltd._ vs. _Maharashtra General Kamgar Union,_ (2001) 3 :)CC IOI were pronounced by the this Court, and relying upon lhese decisions, an application was made by the respondent c :ompany before the court that the complaints were liable to be dismissed as there was no employer employee relationship •1etween it and the complainants. The Industrial Court/Labour ~ourt upheld the preliminary objection raised by the respondent :ompany by holding that the judgments in _Kalyani Steel Ltd_ D B. 4. Thereafter the petitioners filed the present writ petitions -:hallenging the dismissal of the complaints. In the meantime ~y its judgment in SaNa _Shramik Sangh_ vs. _Indian Smelting end Refining_ Co _Ltd,_ (2003) 10 SCC 455 this Court has ieiterated the view taken in _Kalyani Steel Ltd._ (supra) and _Gip/a .td._ (supra). E 5. The learned single Judge before whom the writ petitions :ame up for hearing noted that all these cases decided by the lhis Court were in respect of industries governed by the 111dustrial Disputes Act, 1947, whereas the present petition elates to an industry covered by the provisions of the Bombay idustrial Relations Act, 1946 (hereinafter referred to as the BIR -\Ct). The learned single Judge noted that in the case of _)attatraya Kashinath and others_ vs. _Chhatrapati Sahakar/ Gakhar Karkhana Ltd and others,_ 1996 II LLJ 169 and in _Sakhar :amgar Union_ vs. _Shri Chhatrapati Rajaram Sahakari Sakhar :arkhana Ltd and others,_ 1996 II CLR 67 Srikrishna J., as he F G H 758 SUPREME COURT REPORTS [2011] 3 S.C.R. - A then was, had held that a conjoint reading of section 3(5) of the MRTU and PULP Act and sections 3(13) and 3 (14) of the BIR Act would indicate that even a person employed through a contractor in an industry governed by the BIR Act is regarded as an employee under the MRTU and PULP Act and the - B complaint filed by such an employee is ma.intainable under the MRTU and PULP Act. The learned single Judge however, felt that another learned single Judge of this Court (Khandeparkar J.) in _Nagraj Gowda and others vs. Tata Hydro Electric Power Supply Co Ltd, Bombay and others,_ 2003 Ill CLR 358 had - c expressed a contrary view considering the judgments of the this Court in _Kalyani Steel Ltd, Cipla Ltd_ (supra) and Sarva _Shramik Sangh_ (supra) as also the judgment of the Division Bench of this Court in the case of _Hindustan Coca Cola Bottling Pvt Ltd. vs. Bharatiya Kamgar_ Sena, 2001 Ill CLR 1025. - 0[The learned single Judge therefore decided ][to ][make a ] reference to a larger Bench in view of the conflicting decisions of the learned single Judges of the High Court. the High Court were:- E F - (1) Whether a person who is employed by a contractor who undertakes contracts for the execution of any of the whole of the work or any part of the work which is ordinarily work of the undertaking is an employee within the meaning of section 3(5) of the MRTU and PULP Act? - (2) Whether a complaint filed under the MRTU and PULP Act by an employee as defined under section 3(13) of the Bombay Industrial Relations Act, is maintainable although no direct relationship of employer employee exists - G between him and the principal employer? H RAYMOND LTD. & ANOTHER _v._ TUKARAM TANAJI 759 MANDHARE & ANR. [MARKANDEY KAT JU, J.] in view of the judgments of the Supreme Court in _Gip/a_ (supra), _Ka/yani Steels Ltd_ (supra) and Sarva _Shramik Sangh vs Indian Smelting and Refining_ Co _Ltd_ (supra)? A 7. The Full Bench of the Bombay High Court answered the question numbers 1 and 2 referred to it in the affirmative, and B question number 3 in the negative provided the contractors workmen were employed to do the work of the whole or part of the undertaking . . 8. It is this decision which has been challenged before us. c 9. A large numbers of decisions have been cited before us. e.g. _Vividha Kamgar Sabha vs. Kalyani Steel Ltd._ & _another_ (2001) 2 SCC 381, _Gip/a vs. MGK Union_ (2001) 3 SCC 101, _Sarva Shramik Sangh vs. Indian Smelting_ & _Refining Company Limited_ (2003) 10 SCC 455, _Mis Hindustan Lever Limited vs. Ashok Vishnu Kate_ (1995) 6 SCC 326, _NTPC vs. Badri Singh Thakur and others._ (2008) 9 SCC 377, _Hindalco Industries vs. Association of Engineering Workers_ (2008) 13 SCC 441, _Ahmadabad Mfg. and Calico Ptg._ Co. _Ltd. vs. Ram Tehel Ramnand_ (1972) 1 SCC 898, _Saraspur Mill_ Co. _Ltd. vs. Raman/a/ Chimanlal_ (1974) 3 SCC 66, _Shramik Uttakarsh Sabha vs. Raymond Woolen Mills Ltd._ & _others_ (1995) 3 SCC 78. D E 10.ln our opinion, in view of the difference of opinion in some of these decisions and the importance of the controversy involved and its application particularly in the State of Maharashtra, an authoritative decision is required by a larger bench on the issues involved. F 11. Hence, we refer the matter to a larger bench on the issues referred to above. 12. Let the papers of this case be placed before Hon'ble the Chief Justice of India for constituting a larger bench. B.B.B. Matter referred to larger Bench. H