The Executive Engineer Maharashtra State Electricity Distribution Co Ltd v. Bhagwant Murlidhar Zambare And Anothers
*1* kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD WRIT PETITION NO.:8019 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Dinesh Bhimrao Parvide And Another WITH WRIT PETITION NO.:8020 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Sunil Nina Bharambe And Another WITH WRIT PETITION NO.:8021 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Bhagwant Murlidhar Zambare And Another WITH WRIT PETITION NO.:8022 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Hakij Shaikh Abdul Rashid And Another WITH WRIT PETITION NO.:8023 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Pundlik Vitthal Patil And Another WITH WRIT PETITION NO.:8024 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
*2* Sachin Prabhakar Kirtikar And Another WITH WRIT PETITION NO.:8025 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Sanjay Jagannath Jadhav And another WITH WRIT PETITION NO.:8026 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Vikas Kanji Bhalerao And Another WITH WRIT PETITION NO.:8027 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Ashok Motiram Chaudhary And Another WITH WRIT PETITION NO.:8028 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Chandrakant Motiram Chaudhary And Another WITH WRIT PETITION NO.:8029 OF 2015 The Executive Engineer Maharashtra State Electricity Distribution Co Ltd
VERSUS
Tirthraj Pralhad Surwade And Another ...
Advocate for Petitioner : Shri Bajaj Anil S.
Advocate for Respondent No.1 : Shri K C Sant. ...
*3* CORAM: RAVINDRA V. GHUGE, J.
DATE :- 15th September, 2015 Per Court:
I have heard Shri Bajaj, learned Advocate for the Petitioner/ Establishment and Shri Sant, learned Advocate for Respondent No.1/ Employees.
All the Petitioners are the same Electricity Distribution Company. Respondent No.1 in all these petitions are the Employees who were parties to the reference proceedings before the Labour Court. At the very outset, it is submitted by Shri Bajaj that Respondent No.2/ Contractor herein did not appear before the Labour Court in all the proceedings below and as such, did not cause an appearance, did not file it's Written Statement and did not lead any evidence in the reference proceedings.
Considering the above and the order that I intend to pass, I do not deem it necessary to issue notice to Respondent No.2 in this matter. The Petitioner is aggrieved by the following judgments and awards delivered by the Labour Court in the respective reference cases:-
*4* Sr.
No.
Writ Petition No.
Name of Employee Reference (IDA) No.
Date of Award 8019/2015 Dinesh Bhimrao Parvide 78/2009 12/12/14 8020/2015 Sunil Nina Bharambe 75/2009 18/12/2014 8021/2015 Bhagwat Murlidhar Zambare 80/2009 20/12/2014 8022/2015 Hakij Shaikh Abdul Rashid 76/2009 11/12/14 8023/2015 Pundlik Vitthal Patil 83/2009 11/12/14 8024/2015 Sachin Prabhakar Kirtikar 85/2009 12/12/14 8025/2015 Sanjay Jagannath Jadhav 77/2009 20/12/2014 8026/2015 Vikas Kanji Bhalerao 79/2009 19/12/2014 8027/2015 Ashok Motiram Chaudhary 81/2009 23/12/2014 8028/2015 Chandrakant Motiram Chaudhary 82/2009 18/12/2014 8029/2015 Tirthraj Pralhad Surwade 84/2009 19/12/2014 Shri Bajaj submits that the Labour Court has concluded that the contract was sham and bogus. Since the contractor did not appear in the matter and assist the Court, the reference cases were virtually decided ex-parte as against the Contractor.
Some records need to be traced from the Contractor. The Petitioner realized that the agreement between the Petitioner and the Contractor that was filed before the Labour Court in an earlier Complaint (ULP) No.162/1998, is stated to be destroyed officially by the Labour Court. This information is gathered from the communication dated 16.07.2015 obtained from the Labour Court which is placed on record.
*5* The said communication dated 16.07.2015 is taken on record and marked as Exhibit X for identification.
I have considered the submissions of the learned Advocates for the respective sides for quite sometime. Insofar as whether, the contract is sham and bogus is concerned, it has been decided by the Labour Court on the basis of the available material and with no assistance having been rendered by the First Party No.2/ Contractor, who is Respondent No.2 herein, but without framing a proper issue. I also find that though the Labour Court has concluded that the Respondents/ Employees have worked continuously for 240 days, the same appears to be based on oral statements made by the Respondents/ Employees through their affidavits filed in lieu of examination-in-chief. The cases before the Labour Court involved two important legal aspects.
Firstly, whether, the existence of the Contractor was to be set aside on the ground of he being a camouflage, the contract being sham and bogus and an attempt to refute the Employer-Employee relationship between the Principal Employer and the Workmen.
*6* continuous service with the Petitioner, at least, in one calender year preceding the date of reference from the date of their termination in the light of Section 25B of the Industrial Disputes Act, 1947. I find from the impugned judgments that though the Labour Court has framed an issue as to whether, the Second Party Workmen are the employees of the First Party No.1/ Employer, no issue was cast as regards, whether, the Second Party Workmen prove that the First Party No.2/ Contractor is a camouflage, is sham and bogus and therefore, requires to be eliminated.
Considering the terms of reference under Sections 10(1) and 12(5) of the Industrial Disputes Act, 1947 having been made to the Labour Court by the appropriate Government and in the light of the rival contentions, the issue as to whether, the First Party No.2/ Contractor is fictitious, sham and bogus, was required to be framed and gone into. Considering the fact situation as above, both the learned Advocates, on instructions from their respective clients, have frankly stated that the matter could be remitted back to the Labour Court for framing of issues with regard to the First Party No.2/ Contractor and for permitting all the sides to lead additional oral and documentary evidence
*7* for proper adjudication of the reference cases. However, I find that a direction needs to be issued to the extent that the Labour Court shall issue a fresh notice to the First Party No.2/ Contractor after the Petitioner furnishes the available address of the said contractor. After the court service, if the Contractor does not appear, the Labour Court shall proceed on the premise that the First Party No.2/ Contractor is disinterested and shall then, decide the reference cases in accordance with law. The option to the Petitioner to resort to a substituted service under the Code of Civil Procedure for serving the First Party No.2/ Contractor through paper publication is kept open, provided the said option is resorted to with promptitude.
In the light of the above, the impugned judgments and awards are set aside. All the above referred reference cases are remitted back to the Labour Court with the following directions:- (a) The Petitioner/ Establishment and Respondent No.1/ Workmen shall appear before the Labour Court on 01.10.2015 at 11:00 am.
(b) The Petitioner shall move an application on the same date requesting the Labour Court to issue a fresh notice to the First Party No.2/ Contractor by furnishing available addresses in
*8* the said application.
(c) Alternatively, the Petitioner may request the Labour Court to permit the service of court notice on the First Party No.2/ Contractor through paper publication to be published in daily Marathi newspapers having wide circulation in Jalgaon district viz. Dainik Sakaal or Dainik Lokmat. (d) After the court service, if the First Party No.2/ Contractor does not cause an appearance, the Labour Court shall record that the reference proceedings shall proceed ex-parte against the said party and thereafter, shall frame the additional issues as observed herein above with regard to the existence of the First Party No.2/ Contractor.
(e) The oral and documentary evidence already on record shall not be discarded by the Labour Court.
(f) All the litigating sides are permitted to lead additional oral and documentary evidence.
(g) The Labour Court shall, accordingly, decide the reference cases after conclusion of the final arguments of the litigating sides on it's own merits and without being influenced by it's observations made in the impugned judgments which have been set aside today.
(h) Considering the fact that Respondent No.1/ Employees are
*9* out of employment from 1997, these reference cases shall be decided by the Labour Court as expeditiously as possible and preferably on or before 31st March, 2016.
(i) Considering the submissions of the learned Advocates made across the Bar, while delivering the final awards in all these reference cases, the Labour Court may consider the quantification of compensation in the light of the following four judgments of the Apex Court, only if the reference cases are being allowed:- (a) Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohanlal, [2013 LLR 1009];
(b) Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh, [(2013) 5 SCC 136]; (c) BSNL Vs. Man Singh, (2012) 1 SCC 558; and (d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board, [(2009) 15 SCC 327].
All these petitions are, accordingly, partly allowed. (RAVINDRA V. GHUGE, J.)