Writ Petition No. 10338 of 2012 · The High Court
Case Details
2025:BHC-AUG:7944 {1} wp10338-12.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.10338 OF 20121.Zilla Parishad, Ahmednagar PETITIONERSThrough Chief Executive Officer, 2.District Health Officer,Zilla Parishad, Ahmednagar3.Block Development Officer (Higher Grade)Panchayat Samiti, Karjat4.Medical Officer,Primary Health Center, Chapadgaon, Taluka – KarjatDistrict - AhmednagarVERSUSAnand Gulab Suryawanshi RESPONDENTR/o Chande KhurdPost Chande Budruk, Taluka – KarjatDistrict - Ahmednagar.......Mr. Ameya N. Sabnis, Advocate for the PetitionersMr. P. B. Shirsath, Advocate for Respondent ....... [CORAM : MANJUSHA DESHPANDE, J.] RESERVED ON : 15 th JANUARY, 2025 PRONOUNCED ON : 19 th MARCH, 2025 JUDGMENT:1.Petitioner No.1 is Zilla Parishad, Ahmednagar andPetitioners No.2 to 4 are the authorities working under thecontrol of the Zilla Parishad, Ahmednagar.2.The Petitioners have challenged Judgment and Order dated
Legal Reasoning
{2} wp10338-12.doc2nd November, 2012 passed by Member, Industrial Court,Ahmednagar in Compliant ULP No. 64 of 2011.3.Case of the Petitioners is that, the Government ofMaharashtra had issued Government Resolution dated 16thJanuary, 2003, sanctioning staffing pattern for Primary HealthCenters i.e. 14 posts for Primary Centers in Tribal area and 13posts of Primary Centers in Non Tribal. It is directed in the saidGovernment Resolution that, the posts of Drivers, Watchmen andSweepers, should be filled in on contract basis. Petitioner No.2 –District Health Officer was initially directed, by order dated 4thJanuary, 2010, to make appointments of drivers on contract basisin the Primary Health Centers through Swayamsiddha SwayamRojgar Be-Rojgar Seva Sahakari Sanstha Maryadit. Thereafter,the Respondent came to be appointed as driver through theAgency which was appointed by the Petitioners to provide driverson contract basis. Though the Respondent was appointedthrough Swayamsiddha Swayam Rojgar Be-Rojgar Seva SahakariSanstha Maryadit, during the intervening period, there waschange in the agency and a new agency Samarth Sai Enterpriseswas appointed to provide drivers on contract basis. Even the newagency continued the Respondent on their roll. Accordingly, theRespondent was allowed to work on the same terms andconditions. The tender of the new agency was cancelled, {3} wp10338-12.doctherefore, in view of the cancellation of the tender, theRespondent was relieved from service by order dated 9thNovember, 2011.4.Being aggrieved by the order of relieving, the RespondentFiled Compliant (ULP) No. 64 of 2011 in the Industrial Court,Ahmednagar for alleged commission of unfair labour practiceunder items, 5, 6, 9 and 10 of Schedule IV of the MRTU and PULPAct. The Petitioners caused their appearance in the Complaintand filed their detailed written statement, denying the avermentsmade by the Respondent. It is the specific stand of thePetitioners that since the tender of the agency, namely SamarthSai Enterprises was cancelled, as a consequence, appointment ofthe Respondent who was engaged as Driver through the agencycame to be automatically terminated. The Agency filed RegularCivil Suit No. 1 of 2012 in the Court of Civil Judge, Junior Division,Ahmednagar with a relief of continuation of contract. The CivilJudge, Junior Division, directed to continue the contract till 31stMarch, 2012, hence the services of the Respondent werecontinued. 5.After filing of Written Statement by the Petitioners, issueswere framed by the Industrial Court. After leading of evidence byboth the parties, the Industrial Court recorded a finding that the {4} wp10338-12.docComplainant having worked for more than 240 days in the year2010 and 2011, has acquired status of permanent employee, byvirtue of provisions of the Act. It is, therefore, held by theIndustrial Court that the Respondent is entitled for permanency.It is held that the Petitioners, by continuing the Respondent astemporary employee for last three years, have indulged in unfairlabour practice under item 9 of Schedule IV of the Act. Thoughthe employer – employee relationship itself was denied by thePetitioners, the objection of the Petitioners was held to be notmaintainable and the Respondent was granted benefit ofpermanency from 1st November, 2011 and it is declared that, thePetitioners should cease and desist from continuing to engage inunfair labour practice, vide order dated 2nd November, 2012,which is challenged in the present Writ Petition.6.According to the Petitioners, the Industrial Court has notappreciated the documents, that were placed on record. Thoughthe Petitioners had placed on record various documents insupport of their stand that, the Respondent is a contractualemployee appointed by the agency, the Member, Industrial Courthas failed to give proper weightage to it. Considering that, therewas no employer – employee relationship between theRespondent and the Petitioners, the Complaint was notmaintainable.
Legal Reasoning
{5} wp10338-12.doc7.It is urged by the learned Advocate for the Petitioners that,when the employer is a Government undertaking, it is necessaryto prove that there was sanction post available, and it is filled inaccordance with the Recruitment Rules. Mere completion of 240days in a calender year does not entitled an employee to claimpermanency benefits. He relies on communication dated 4thJanuary, 2010 addressed to the Chairman, SwayamsiddhaSwayam Rojgar Be-Rojgar Seva Sahakari Sanstha Maryadit,whereby it was directed to the said society that new ambulanceshave been made available by the Deputy Director of HealthServices, Pune and, therefore, the society should immediatelymake appointment of drivers on contract basis. The society wasdirected to submit report accordingly to the District HealthOfficer. Names of Talukas along with list of Primary HealthCenters wherein appointments of contractual drivers weredirected to be made is annexed to the communication.8.As per the contention of the Petitioners, contract ofSwayamsiddha Swayam Rojgar Be-Rojgar Seva Sahakari SansthaMaryadit was terminated and thereafter it was given to SiddheshEnterprises, who continued the services of the Respondent.Petitioners have placed on record two communications tosupport their stand that, the Respondent is a driver on contract {6} wp10338-12.docbasis. A communication dated 28th May, 2010 addressed toMedical Officer, Primary Health Center, Chapadgaon by SiddheshEnterprises, requesting to allow the Respondent to join duty asdriver at Chapadgaon Primary Health Center, in view of allotmentof contract for providing drivers on contract basis. The othercommunication is dated 8th June, 2011, issued by Samarth SaiEnterprises to Medical Officer, Chapadgaon, wherein request wasmade to allow the Respondent to join as driver, since theiragency was awarded contract for providing drivers onambulances on contract basis for a period of one year.9.It is contended by the learned Advocate for the Petitionersthat, the tender issued in favour of Samarth Sai Enterprises wascancelled and in view of cancellation of tender, services of thePetitioners were also brought to an end by order dated 9thNovember, 2011.10.The Respondent immediately approached the IndustrialCourt and was successful in securing status quo order from theIndustrial Court, which eventually culminated into the order ofthe Industrial Court allowing the Complaint filed by theRespondent.11.Learned Advocate for the Petitioners submits that, it wastheir categorical stand before the Industrial Court that, the State {7} wp10338-12.docof Maharashtra has issued a Government Resolution withapproved strength of 14 employees for Primary Health Centers inTribal areas and 13 employees in non Tribal areas. In view ofsanctioned staffing pattern, advertisement was issued callingtenders from interested agencies, for supply of contractualemployees. The Respondent has been appointed on contractbasis through one such agency. He was assigned duty attachedto Medical Officer, Karjat, who subsequently provided work to theRespondent at Primary Health Center, Chapadgaon.12.Learned Advocate for the Petitioners submits that, duringcross examination of the Respondent, he has admitted that hehas not been appointed either by the Chief Executive Officer orby the District Health Officer. This itself supports the case of thePetitioners that, the Respondent was appointed throughagencies, to which work of supplying contractual drivers wasallotted.13.In the affidavit of examination in chief, the District HealthOfficer has categorically stated that there is no Employer -Employee relationship between the Petitioners and theRespondent. Services of the Respondent had been availed for aparticular period, as per the policy decision of the StateGovernment and the Respondent is appointed by the contractor. {8} wp10338-12.docIt is also stated by him that the Respondent was appointed at thePrimary Health Center, Chapadgaon. A request was made thatthe father of Respondent, who is also working as Driver atMirajgaon should be granted deputation at Primary HealthCenter, Chapadgoan. Accordingly, the Block DevelopmentOfficer, Panchayat Samiti, Karjat had issued an order deputingfather of the Respondent at Chapadgaon from Primary HealthCenter, Mirajgaon. Though the Respondent was sent ondeputation in place of his father, he continued to draw salaryfrom Primary Health Center, Chapadgaon. It is clarified by theDistrict Health Officer that usually such deputations are rare, butas an exceptional case, on the request of father of theRespondent, on humanitarian ground, he was deputed by makingworkable mutual arrangement between father and son. Thisarrangement cannot be relied to draw adverse inference againstthe Petitioners. 14.Learned Advocate for the Petitioners further relied on theGovernment Resolution dated 16th January, 2003, wherein thestaffing pattern has been approved for the Primary HealthCenters, within the State of Maharashtra. Learned Advocate forthe Petitioners relies on the note, given in the Annexure “B” tothe said GR, which stipulates that services of Security Guards,Drivers and Sweepers were to be made only on contract basis. {9} wp10338-12.docHe further relies on the Annexure “C” to the said GR. A note toAnnexure – C shows that the post of the driver should be madeavailable to the Primary Health Center on contract basis. He hasalso placed on record the format of public notice containingterms and conditions for providing drivers on contract basis.15.In an endeavour to support the stand that, posts of thedrivers have been filled in on contract basis since 2003 onwards,the petitioners have relied on various documents, that are placedon record. One such tender notice dated 30th July, 2008, callingupon interested agencies to provide services of drivers oncontract basis, is placed on record. 16.Per contra, learned Advocate Shri P. B. Shirsath, appearingfor the Respondent contends that, the Petitioners are adopting astand that the Respondent was appointed on contract basis, inorder to defeat the claim of the Respondent. In fact thePetitioners – Zilla Parishad, had undertaken process ofrecruitment of driver for ambulance at Primary Health Center atChapadgaon, Taluka – Karjat and since the Respondent waseligible to be appointed as a driver and was holding necessaryqualifications along with driving licence, he was appointed byfollowing due procedure of recruitment, by the Medical Officer,Primary Health Center, Chapadgoan on 6th January, 2010. {10} wp10338-12.docAccordingly, he joined services as ambulance driver at PrimaryHealth Center, Chapadgaon. Therefore, it is undisputed that theRespondent was appointed on clear vacant and sanctioned postof driver in the employment of Zilla Parishad and hisappointment is not through contractor, as claimed by thePetitioners.17.According to him, there is established relationship ofemployer – employee between the Respondent and the ZillaParishad. The Respondent has discharged duty with Zilla Parishadand had drawn salary through Medical Officer, Primary HealthCenter, Chapadgaon. He has also signed muster roll maintainedat the Primary Heath Center. This itself is sufficient to establishthat the Respondent had been appointed on the post of driver,by following due procedure of law. He has worked continuouslyand regularly on the post of driver, a certificate has been issuedby the Medical Officer, Primary Health Center, Chapadgaoncertifying that, the Respondent had discharged duty as driversince 7th January, 2010 to 21st January, 2011.18.More importantly, salary of the Respondent is paid by theMedical Officer, Primary Health Center, Chapadgaon fromAccount No. 1345. Thus, the Respondent has received salaryfrom Regular Bank Account, which is maintained for {11} wp10338-12.docdisbursement of salary of the regular Zilla Parishad employees.Reliance is also placed on the extracts of pay bills maintained forthe entire period for which he has worked with the Petitioners.According to him, Rs.175/- per month had been deducted fromhis salary towards Professional Tax, which is disclosed in the paybills, which also supports the stand of the Respondent that hewas permanent Zilla Parishad employee.19.It is contended that the witness of the Zilla Parishad Dr. K.R. Kharat has categorically deposed that, the Respondent hadbeen appointed by order dated 6th January, 2010, by the MedicalOfficer, Primary Health Center, Chapadgaon and accordingly hejoined on 7th January, 2010, by submitting joining report. Hefurther relies on the admission given by the District HealthOfficer, in his cross-examination, that there is no documentaryevidence to show that the Respondent was appointed throughcontractor. Therefore, from the admission given by the DistrictHealth Officer himself, it can be gathered that the Respondenthad been appointed by the Zilla Parishad and not throughcontractor. Learned Advocate for the Respondent relies on acommunication issued by the Medical Officer, Primary HealthCenter, Chapadgaon dated 6th January, 2010, wherein it isdirected that the Respondent should join duty at Chapadgaon onthe new ambulance No. MH-16-T-208, which is provided by the {12} wp10338-12.docGovernment. According to him, this itself is his appointmentorder, which cannot be denied by the Petitioners.20.Learned Advocate for the Respondent submits that, theRespondent was also sent on deputation at Mirajgaon, by theBlock Development Officer, vide order dated 26th June, 2011.Learned Advocate for the Respondent drawn my attention to paybills of June, 2011 to February, 2012, in support of his claim that,the Respondent was paid by Zilla Parishad and not by theContractor. Therefore, the Respondent is employee of the ZillaParishad. Learned Advocate for the Respondent also relies onthe admission given by the District Health Officer Dr. Kharat whohas admitted that, the respondent had been issued appointmentorder vide document at Exhibit-U-6-1 and the Respondent washolding necessary documents like driving licence and fitnesscertificate. It is also admitted by Dr. Kharat that the Respondentis paid from the same account code i.e. 08201, which ismaintained for disbursement of salary of regular Zilla Parishademployees.21.According to learned Advocate for the Respondent, it isproved before the Industrial Court that, the Respondent wasappointed on 6th January, 2010 on sanctioned vacant post; hisservices were required 24/7 and 365 days; record also discloses {13} wp10338-12.docthat the Petitioners had started recruiting drivers from 8th June,2011, while the Respondent had been appointed videappointment order dated 6th January, 2010. It is furthercontended that the documents, that have been referred by theMedical Officer in his examination in chief, have not been placedon record nor were they exhibited. Therefore, reliance cannot beplaced on those documents, which have neither been proved norexhibited.22.Learned Advocate for the Respondent placed reliance onvarious judgments, in support of his claim. In “U. P. ElectricityBoard V/s Pooran Chandra Pandey and Others” 2007 AIRSCW 6904 and “Madhavsing Shivsing Bainade V/s State ofMaharashtra and Others” 2023 (3) ALL MR 305 whichpertain to regularization, invoking Articles 14, 16 and 226 of theConstitution of India. Relying on the judgment in case of “Stateof Karnataka and others V/s Uma Devi (3) and Others(2006) 4 SCC 1 the appeal filed by the UP Electricity Boardagainst grant of regularization has been dismissed. Thejudgments relied on are not under the provisions of the MRTUand PULP Act, and, therefore, the judgments relied on by thelearned Advocate for the Respondent are not applicable to befacts of the present case. Similarly, the judgments in the cases of“G. M. O.N.G.C. Shilchar V/s O. N. G. C. Contractual {14} wp10338-12.docWorkers Union” 2008 AIR SCW 3996; Ajay Pal Singh V/sHaryana Warehousing Corporation” (2015) SCC 321; arearising out of the provisions of the Industrial Disputes Act againstretrenchment of workmen and, therefore, even the saidjudgments are not applicable to the facts of the present case. In“Jaggo V/s Union of India and Others” 2024 SCC OnLIneSC 3826, the Appellants therein had initially filed OriginalApplication before the Central Administrative Tribunal andthereafter approached the High Court seeking relief ofregularization of services. Hence, even this judgment will not beapplicable to the facts of the present case. In the present case,the question is purely based on existence of Employer-Employeerelationship, which is denied by the Petitioners. In the decisionswhich are relied on by the Respondent, provisions of MRTU andPULP Act are not invoked. Similarly, the issue whether thereexists Employer-Employee relationship did not fall forconsideration of the respective Courts in the cited judgmentssupra. Hence, the decisions relied upon by the learned Advocatefor the Respondent are not applicable to the facts of the presentcase. 23.After hearing the parties and after going through theimpugned judgment passed by the Industrial Court, along withrecord, this Court is required to decide whether there is any error {15} wp10338-12.docin the order dated 2nd November, 2012 passed by the Member,Industrial Court.24.The first question that arises for consideration before thisCourt is that, “whether the Industrial Court had jurisdiction todecide the Complaint filed by the Respondent under section 28of the MRTU and PULP Act, when the Petitioners have deniedEmployer-Employee relationship?”25.According to the Petitioners, the Respondent was engagedthrough Contractor, as per the policy decision of the StateGovernment vide GR dated 16th January, 2003, sanctioningstaffing pattern for the Primary Health Centers, with furtherdirection to fill in the posts of Drivers, Watchmen and Sweepers,on contract basis. Accordingly, the Respondent was appointedthrough Contractor, therefore, there was no existence ofEmployer-Employee relationship between the Petitioners and theRespondent. Though issue was framed by the Industrial Court asto whether the Complaint is maintainable, in view of denial ofEmployer-Employee relationship between the parties, the issuehas been answered in affirmative by the Industrial Court.26.In catena of decisions, it is held by this Court as well as bythe Supreme Court that, unless Employer-Employee relationshipis established, dispute under the MRTU and PULP Act is not {16} wp10338-12.docmaintainable. It is held that, unless there is establishedEmployer-Employee relationship, the Industrial Court cannot passan order of declaration of unfair labour practice. Where anelaborate exercise is required to be undertaken on the basis ofevidence adduced for establishing Employer-Employeerelationship, such exercise is not permissible while exercisingpowers under the MRTU and PULP Act.27.In “Sarva Shramik Sangh V/s Indian Smelting andRefining Co. Ltd., and Othes” 2003 AIR SCW 5989, theApex Court has held that, the workmen have to establish that,they are workmen of Respondent Company before they can fileany complaint under the Act. It is open for the workmen to raiseappropriate Industrial Dispute in that behalf, if they are entitledto do so before they invoke the provisions of the MRTU and PULPAct. 28.In response to the Complaint, the Petitioners havespecifically averred that, there is no Employer-Employeerelationship between the Petitioners and the Respondent and theRespondent has been appointed for a particular period oncontract basis, as per the policy decision of the StateGovernment, through a contractor, therefore, the Complaint isbeyond jurisdiction of the Industrial Court. In view of the {17} wp10338-12.docobjection raised by the Petitioners, issue had been framed by theIndustrial Court – “whether the Complaint is maintainable”. Thisissue itself creates doubt, about the existence of Employer-Employee relationship between the parties.29.Similar question fell for consideration of this Court in “AsiaFoundation and Construction V/s Engineering KamgarSanghatana” 2016 (2) Mh.L.J. 406, wherein, this Court, afterrelying on the judgments in “Cipla Ltd V/s Maharashtra General KamgarUnion” (2001) 2 SCC 381; “Sarva Shramik Sangh Vs. Indian Smelting andRefining Co. Ltd., and Others” 2003 AIR SCW 5989; “Vividh Kamgar V/s SalyaniSteels” AIR 2001 SC 1534; “General Labour Union Bombay V/s Ahmadbad Mfgand Calico Printing Company Ltd., “ (1995) 2 Lab IC 765 etc., has taken aview that, when the Court has specifically framed an issuewhether the workers on whose behalf the complaint was filed,were the workers of respondents or not? This indicates that theCourt itself was doubtful about existence of Employer-Employeerelationship hence such issue was required to be framed.30.In “Asia Foundation and Construction (supra), thisCourt has held that, it is not permissible for the Industrial Courtto probe into the existence of Employer-Employee relationship,after examining the entire evidence to come to a conclusionabout existence of Employer-Employee relationship between theparties. It is observed by this Court that, the said exercise is not {18} wp10338-12.docpermissible while entertaining Complaint under section 30 of theAct of 1971. Eventually, the Appeal was allowed by setting asidethe order of the Single Judge as well as of the Industrial Court, byholding that the Industrial Court as well as the Single Judge haveerred in going into the question as to whether the employeeswere in fact employees of appellant. It is held that, such exerciseis not permissible in complaint under section 30 of the Act of1971, 31.Since, the very first issue, that was framed by the IndustrialCourt was, whether the Complaint is maintainable? In view of theissues framed, the objection to the jurisdiction raised by thePetitioners stands substantiated. While answering the issue, theIndustrial Court has gone into and relied on the evidence, whichwas adduced in support of the existence of Employer-Employeerelationship and has recorded a finding that the stand taken bythe Petitioners about employment of the Complainant, throughcontractor, appears to be doubtful, and it is just to create a paperarrangement, itself amounts to exceeding the jurisdiction underthe MRTU and PULP Act. 32.The Member, Industrial Court has observed that, whenappointment of the Respondent is from January, 2010, there areno documents placed on record by the Petitioners in support of {19} wp10338-12.doctheir claim that, the appointment of Respondent is on contract,during that period. The copies of contract, placed on record,pertain to subsequent period. The Industrial Court has relied onthe documents below Exhibits-U-6, U-8, U-9 and U-11 andExhibits-C-11, C-13 and C-16, to arrive at the conclusion that, theComplainant is in fact employee of the Zilla Parishad, who hascompleted 240 days in a calender year. Hence, he was awardedstatus of permanent employee. It is also declared that, bykeeping the Complainant temporary for the last three years, thePetitioners have indulged in unfair labour practice.33.Though in the cross-examination the Respondent hasadmitted that, he has not been issued any order of appointmenteither by the Chief Executive Officer or by the District HealthOfficer, merely, relying on the communication requiring theRespondent to join duty as ambulance driver, referring to thecommunication under reference, the Industrial Court haspresumed it to be an appointment order, when in fact, in thecross examination itself, the Respondent has accepted that hehas not been issued any appointment order.34.Reliance is also placed on the communication dated 26thMay, 2010 issued by the Medical Officer, Primary Health Center,Chapadgaon, addressed to the District Health Officer, seeking {20} wp10338-12.docguidance under which ‘head’ the remuneration payable to theRespondent is to be drawn. In response to the communication,the District Health Officer has informed the Block DevelopmentOfficer, on 2nd July, 2010 that remuneration of the Respondent isto be paid under the account code 08201.35.Though reliance is placed on this communication by theMember, Industrial Court, to draw a conclusion in support of thecontention of the Respondent that, salary of the regularemployees of the Zilla Parishad, is also paid under the accountcode 08201, therefore, the Respondent is also regular employeeof the Zilla Parishad, however, rest of the contents of the verycommunication are totally ignored by the Industrial Court.36.In the very communication, it is stated that the Respondentis working as ambulance driver at the Primary Health Center,through the Contractor Swayamsiddha Swayam Rojgar Be-RojgarSeva Sahakari Sanstha Maryadit; he has been appointed onconsolidated remuneration of Rs.2950; he has joined his duty on7th January, 2010; he should be paid under the ZP Code 08201.The contents of this document itself are sufficient and conclusiveto hold that, the Respondent is appointed through Contractor.37.In addition to the above referred document, thecommunication dated 4th January, 2010 addressed to the {21} wp10338-12.docChairman Swayamsiddha Swayam Rojgar Be-Rojgar SevaSahakari Sanstha Maryadit, Ahmednagar directing to provideAmbulance Drivers on contract basis and submit compliancereport is also very much part of record. The communicationcontains a chart of the names of Primary Health Centers,amongst which Chapadgoan, Taluka – Karjat is at Serial No.7. TheCommunication dated 4th January, 2010 issued by District HealthOfficer evidently is in respect of the Primary Health Center,where the Respondent is appointed. In spite of the abovedocuments, which clearly supports the stand of the Petitioners,denying existence of Employer-Employee relationship. In spite ofthe aforementioned documents placed on record, the Member,Industrial Court has recorded a perverse finding that, thePetitioners have failed to produce document about contractualservices of the Respondent from the date of appointment. 38.The Industrial Court has also recorded a finding that, theRespondent is appointed on a sanctioned post of a Driver, byplacing reliance on the cross-examination of the witness of thePetitioners. In the cross-examination, witness of the Petitionershas merely admitted that the Respondent is appointed on thepost, which, is sanctioned under the staffing pattern approved bythe State Government, which includes the post of Driver. Theadmission of the witness of the Petitioners was in context with {22} wp10338-12.docthe Government Resolution granting approval to staffing patternfor contractual services and not about permanent sanctionedvacancy. The admission given by the witness of the Petitionerswas in the context of the communication issued by the Directorof Health Services about staffing pattern for the Primary HealthCenters being approved for the posts of Drivers, Security Guardsand Safai Guards to be filled in on contract basis along withterms and conditions mentioned in the annexures to thecommunication.39.In support of his claim that he is a permanent employeeappointed by following due procedure of law, the Respondent hasplaced reliance on various documents but he has not placed onrecord any advertisement calling upon applications or even hisapplication which is made in response to any such advertisementissued by the Zilla Parishad. Even the order dated 6th January,2010, which the Respondent claims to be his appointment order,discloses, that a reference is made to the communication whichwas issued by the Medical Officer, Zilla Parishad, Ahmednagar,numbered as Arogya / Niyo / 52010 / 4.1.2010, which wasaddressed to the Contractor to provide Drivers to the Ambulance,made available by the Government. 40.Scrutiny of the first document annexed to the Writ Petition {23} wp10338-12.docby the Petitioners, which is a communication dated 4th January,2010, addressed by the District Health Officer to the ChairmanSwayamsiddha Swayam Rojgar Be-Rojgar Seva Sahakari SansthaMaryadit, reveals that, this is the very communication which isreferred in order dated 6th January, 2010 which is claimed to beappointment order by the Respondent. This communicationinforms the Contractor that, ambulance is made available by theGovernment at Primary Health Center, Chapadgoan, havingregistration number as MH-16/T-208, and services of theRespondent are to be provided for the said ambulance, byappointing him as driver on that vehicle. Pursuant to thecommunication dated 4th January, 2010, communication is issuedon 6th January, 2010. Thus, it cannot be termed as anappointment order from any angle.41.It is evident from the aforementioned facts and the recordthat, the Member, Industrial Court has undertaken a thoroughexercise to prove the existence of Employer-Employeerelationship, with the aid of evidence produced by the parties. 42.When the Court is required to rely on the evidence adducedby the parties to decide the existence of Employer-Employeerelationship, it was not within the powers of the Industrial Courtto decide the Complaint filed by the Respondent under the {24} wp10338-12.docprovisions of section 28 of the MRTU and PULP Act. Evenotherwise, the Petitioner Zilla Parishad, being governmentundertaking, has its own rules of recruitment, which are requiredto be followed before filling any vacancy on its establishment.The first and foremost requirement is, whether there is anypermanent sanctioned post available, the second is whether anyadvertisement was issued and the third is, whether selectionprocedure is conducted as per law. In the present case, theRespondent has neither produced any document nor establishedEmployer-Employee relationship. In fact, he has admitted in hiscross-examination that he was not issued any appointment ordereither by the Chief Executive Officer or the District Health Officer.The Respondent has also not produced any document to showthat by issuing advertisement and by following due procedure oflaw, after undergoing selection procedure he has beenappointed. In spite of failure of the Respondent to produceevidence to that effect, the Industrial Court by placing heavyreliance on the certificate of test of driving, fitness certificateissued by the Civil Surgeon and the communication of the DistrictHealth Officer, Zilla Parishad, dated 2nd July, 2010, directing tomake payment to the Respondent under the head 08201, hasdrawn a conclusion that the Respondent was appointed onregular establishment of the Zilla Parishad. The documents {25} wp10338-12.docreferred above cannot constitute, the documents which wouldprove that the Respondent is working on a permanent sanctionedpost, after his selection by following due procedure of law.43.In view of the clear position of law, laid down by the ApexCourt, through its judicial pronouncements, wherein it isunambiguously held that, the Provisions of the Act of 1971 canbe enforced by persons who admittedly are “workmen” and thatif there is dispute about Employer-Employee relationship, thedispute must be first got resolved by raising the dispute beforeappropriate forum. The exercise undertaken by the IndustrialCourt is in violation of the above position of law, hence becomesunsustainable. 44.Assuming that the workman comes with a case that theemployer with an intent to deprive the workman of his rightfulclaim, has raised the ground of absence of Employer-Employeerelationship and it is a camouflage, even that needs to beadjudicated by appropriate Court. Such a question cannot beexamined by the Labour or Industrial Court constituted under theAct of 1971. It is further observed by the Apex Court that unlessit is undisputed or indisputable that there is Employer-Employeerelationship, the question of unfair labour practice cannot beinquired into. {26} wp10338-12.doc45.In a recent decision of this Court in case of “Tata SteelLtd through its Senior Manager Krishna Warrier V/sMaharashtra Shramjivi General Kamgar Union” 2024 SCCOnLIne Bom 3428, this Court has once again taken intoconsideration the law laid down by the Apex Court in “Cipla LtdV/s Maharashtra General Kamgar Union”, “Sarva Shramik SanghV/s Indian Smelting and Refining Co Ltd”,. and “Vividh KamgarSabha V.s Kalyani Steels Ltd”., (supra) and has held that wherethe petitioner has clearly disputed existence of Employer-Employee relationship, the ratio in the judgments supra wouldapply and the jurisdiction of the Industrial Court to entertaincompliant in respect of Unfair Labour Practice would be barred. Inthis judgment, this Court has once again taken into considerationall the judicial pronouncements holding the field on the issue ofmaintainability of complaint under the MRTU and PULP Act, whenthere is denial of Employer-Employee relationship. Hence, theratio laid down in the judgments supra squarely applies to thepresent case. 46. In the above decision it is unerringly held that, disputeabout Employer-Employee relationship cannot be gone intounder the Act of 1971, by the Industrial Court, while exercisingits jurisdiction to decide a complaint, under section 28 of the
Decision
{27} wp10338-12.docMRTU and PULP Act. On this background, the framing of issue ofmaintainability of the complaint itself goes to show that there isdispute about existence of Employer-Employee relationship.Hence, the Industrial Court has committed an error by decidingthe issue about existence of Employer-Employee relationship onthe basis of evidence adduced. Therefore, the order passed bythe Industrial Court deserves to be quashed and set aside.47. In the result, Writ Petition is allowed in terms of prayerclause “B”. Order dated 2nd November, 2012, passed by IndustrialCourt, Ahmednagar in Complaint (ULP) No. 64 of 2011 is quashedand set aside. Rule is made absolute in above terms.48.In view of disposal of the Writ Petition, pending civilapplications are also disposed of.49.At this stage, learned Advocate for the Respondent praysfor grant of stay to the order for a period of 12 weeks, since theorder which is under challenge in this Writ Petition, was notstayed by this Court during pendency of the Writ Petition.Considering the request made by the learned Advocate forthe Respondent, this order shall remain stayed for period of 6weeks from today. [ MANJUSHA DESHPANDE ] JUDGE drp/wp10338-12.doc