RAYMOND LTD. & ANOTHERversusTUKARAM TANAJI MANDHARE & ANOTHER

                      (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 KATJU 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 between E
                                                       1


  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).                                                   H.
                                 753
    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.
      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     HELD: A large numbers of decisions were cited. _
  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.
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

                      Case Law Reference:
    (2001) 2 sec 381         referred to    Paras 3, 9
    (2001) 3 sec 101         referred to    Paras 3, 9    .F

    (2003) 10 sec 455        referred to    Paras 4, 9
    1996 II LLJ 169          referred to    Para 5
    1996 II CLR 67           referred to    Para 5         G
    2003 Ill CLR 358         referred to    Para 5
    2001 Ill CLR 1025        referred to    Para 5
     (1995) 6 sec 326        referred to    Para 9
                                                           H
    756      SUPREME COURT REPORTS                [2011) 3 S.C.R.


A         (2008) 9 sec 377         referred to        Para 9
          (2008) 13 sec 441        referred to        Para 9
          (1972) 1 sec 898         referred to        Para 9
          (1974) 3 sec 66          referred to        Para 9
B
          (1995) 3 sec 78          referred to        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 KATJU, J.]
 1tatus of the employees and has contended in its written A
;tatement that there is no relationship of employer employee
 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
end Gip/a Ltd (supra) were applicable to the facts involved in
lhe complaints and, therefore, the complaints deserve to be
dismissed. The complaints were accordingly dismissed.
      4. Thereafter the petitioners filed the present writ petitions
-:hallenging the dismissal of the complaints. In the meantime          E
~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).
      5. The learned single Judge before whom the writ petitions       F
 :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     G
-\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          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.
  The learned single Judge therefore decided to make a
0
  reference to a larger Bench in view of the conflicting decisions
  of the learned single Judges of the High Court.
        6. The questions, which were referred to the Full Bench of
    the High Court were:-
E
          (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
F         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?
          (3) Whether a complaint filed under the MRTU and PULP'
          Act by employees under section 3(13) of the BIR Act cani
          be dismissed if the employer claims that they are not his1
H         direct employees but are employed through a contractor,
 RAYMOND LTD. & ANOTHER v. TUKARAM TANAJI 759
   MANDHARE & ANR. [MARKANDEY KATJU, J.]
    in view of the judgments of the Supreme Court in Gip/a        A
    (supra), Ka/yani Steels Ltd (supra) and Sarva Shramik
    Sangh vs Indian Smelting and Refining Co Ltd (supra)?

     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 D
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 E
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.

    10.ln our opinion, in view of the difference of opinion in
some of these decisions and the importance of the controversy     F
involved and its application particularly in the State of
Maharashtra, an authoritative decision is required by a larger
bench on the issues involved.

     11. Hence, we refer the matter to a larger bench on the      G
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