5th July, 2001

Petitioner Counsel: Shri. D. J. BHANGE,Shri. V. N. UPADHYE
Respondent Counsel: Shri. T. K. PRABHAKARAN

Cases Cited:
Vividh Kamgar Sabha Vs. Kalyani Steels Ltd., 2001 AIR SCW 170 [Para 7]
Cipla Ltd. Vs. Maharashtra General Kamgar Union, 2001 AIR SCW 919 [Para 7]
Hindustan Coca Cola Bottling S/W P. Ltd Vs. Narayan Rawal, 2001 II CLR 380 [Para 8]
Krantikari Suraksha Rakshak Sangathana Vs. S. V. Naik, (1993) 1 Cur. LR 1003 [Para 9]
Central Labour Union (Red Flag), Bombay Vs. Ahmedabad Mfg. & Calico Printing Co. Ltd., 1995 Supp (1) SCC 175 [Para 9]
Union of India Vs. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323 [Para 13]
C. B. Gautam Vs. Union of India, (1993) 1 SCC 78 [Para 13]
Ajaib Singh Vs. Sirhind Cooperative Marketing-cum-Processing Service Society Limited, (1993) 6 SCC 82 [Para 13]
Central Bank of India Ltd. Vs. P. S. Rajgopalan, AIR 1964 SC 743 [Para 15]
Vishwanath Tukaram Vs. General Manager, Central Railway, V.T. Bombay, AIR 1958 Bom. 111 [Para 15]
C. N. Rudramurthy Vs. K. Barkathulla Khan, (1998) 8 SCC 275 [Para 17]
Union of India Vs. Dhanwati Devi, (1996) 6 SCC 44 [Para 18]
M. V. Elizabeth Vs. Harwan Investment & Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, 1993 Supp (2) SCC 433 [Para 19]
Shrisht Dhawan Vs. Shaw Brothers, (1992) 1 SCC 534 [Para 20]
Raza Textiles Ltd. Vs. Income Tax Officer, Rampur, (1973) 1 SCC 633 [Para 20]

JUDGMENT

JUDGMENT :- The point for consideration which arises in this petition is whether in the absence of undisputed or undisputable employer-employee relationship between the parties, can the question of unfair labour practice be enquired into by the Labour Court or the Industrial Court constituted under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called as the "said Act")?

2. The petitioner is engaged in manufacture of Seamless Metal Tubes and has its factory at C-1, M.I.D.C. Industrial Estate at Ahmednagar. The respondents no.1 to 12 are the employees engaged by M/s. Industrial Cleaning Services - the respondent no.13 to whom the petitioner had given a contract for gardening, cleaning, conservancy etc.

3. It is the case of the petitioner that the respondents no.1 to 12 are not the employees of the petitioner nor the petitioner is the employer of the said respondents within the meaning of said expression under the said Act. The respondent no.13 is the contractor and the holder of licence issued by licencing authority and had undertaken contract of house keeping and ancillary work of the petitioner. The respondents no.1 to 12 were the workmen employed by the respondent no.13 to render services undertaken by the said respondent no.13 for the petitioner and they are the employees of the contractor. In the absence of existence of relationship of employer-employee between the petitioner and the said respondents no.1 to 12, the Industrial Court under the said Act, has no jurisdiction to entertain the complaint regarding the alleged unfair labour practice by the petitioner. It is also the case of the petitioner that the company is not engaged in any unfair labour practice vis-a-vis the said respondents.

4. It is the case of the respondents no.1 to 12 that the respondent no.13 is employed by the petitioner as contractor and the respondents no.1 to 12 are shown to have been employed on contract basis for over last ten years, though they are in actual employment of the petitioner and doing the work of perennial nature. The petitioner has entered into an agreement with the respondent no.13 regarding the employment of the respondents no.1 to 12 with the petitioner with the intention to deprive the statutory benefits to them and thereby the petitioner is engaged in unfair labour practice specified under Item No.6,9 and 10 of Schedule IV of the said Act. The respondents no.1 to 12 apprehend termination of their services as the said agreement between the petitioner and the respondent no.13 was to be terminated w.e.f. 31.10.1999 depriving the said respondents of the benefits of permanency in their employment.

5. The complaint being (ULP) No.250/99 under section 28 of the said Act came to be filed by the respondents no.1 to 12 in terms of the Item Nos.5, 6, 9 and 10 of Schedule IV thereof on 27th September, 1999 along with an application for interim relief. The same was contested by the petitioner on different grounds including the ground of lack of jurisdiction to the Industrial Court to entertain the same in the absence of existence of employer-employee relationship between the petitioner and the said respondents. The Industrial Court, by the impugned order dated 29th October, 1999, allowed the application for interim relief while rejecting the contention of the petitioner about the absence of jurisdiction and further, directed the petitioner and the respondent no.13 not to discontinue the services of the respondents no.1 to 12 and continue them in employment as previously provided till final decision in the main complaint.

6. The uncontroverted facts stated by the petitioner are that as a general tendency of aversion for engaging contract labour was observed since 1995, the petitioner thought of gradual abolition of the said system and the union called Nagar Zilla Mazdoor Sena representing the employees of the petitioner had also taken up a cause of the labour engaged by the contractors. The petitioner undertook an exhaustive study on its requirement of manpower on a scientific basis by appointing an outside professional consultancy firm and on the basis of the observations made by the consultant as well as on the basis of the pragmatic analysis made by the experts in the Company, elaborate discussions were held with the said union in the year, 1995. As a result of series of discussions between the parties and considering the requirement of manpower by the petitioner-company, a settlement was arrived at before the Conciliation Officer under the Industrial Disputes Act on 18.11.1995 and as a result, 95 employees previously employed by the contractor were found eligible to be absorbed in the petitioner company in phased manner. However, thereafter, the said union filed a complaint bearing (ULP) No.332/97 in November, 1997 on behalf of 275 persons enlisted in the annexure to the said complaint. The petitioner, on verifying the records, clarified in its reply that hardly 172 persons were actually working. The complaint remained pending without much progress since the union has taken up the contract labour issue directly for discussion with the petitioner and as a result of the negotiations, a general settlement was signed on 14.5.1998 between the petitioner and the said union and it was agreed upon between the parties that the issue of contract labour would be separately settled. The parties entered into further settlement on the issue of the abolition of contract labour system on 29.1.1999 and agreed to abolish the contract labour system w.e.f. 5th February, 1999 except in certain areas such as security, canteen and catering, housekeeping, gardening and allied services. The petitioner agreed to absorb 35 employees engaged through the contractor after imparting them necessary training. The scheme of training was also specified in settlement. It was further agreed that the persons who could not be absorbed, would be listed separately and would be given preference in the employment by the company as and when required subject to their fulfilling the eligibility criteria and subject to availability of the vacancies at the relevant time. The petitioner, accordingly employed 61 contract labourers against temporary vacancies after execution of the said settlement and in all 96 employees of the contractor including two employees of the respondent no.13 thus, received benefits of the said settlement. The contract labour system in the petitioner company was abolished from 5th February, 1999 as per the settlement. However, the contract for gardening, cleaning, conservancy undertaken by the respondent no.13 continued. In terms of the said settlement dated 29.1.1999, the union withdrew the complaint (ULP) No.332/1997 on 2nd February, 1999, the day following the execution of the settlement. However, the respondents no.1 to 12 herein, who could not be absorbed either on permanent or temporary basis under the aforesaid settlement, approached the Industrial Court at Ahmednagar with the Complaint (ULP) No.250/1999 under the said Act and also filed applications for interim relief.

7. While assailing the impugned order, it was submitted by the learned Advocate for the petitioner that the respondents no.1 to 12 were admittedly, employed by the respondent no.13 and undisputedly, the agreement was executed between the petitioner and the respondent no.13 for carrying out the work relating to cleaning and conservancy in petitioner-factory premises. It is also not in dispute that there was a legal and valid registration with the petitioner and legal and valid licence with the respondent no.13 under the Contract Labour (Regulation & Abolition) Act, 1970 and the agreement between the petitioner and the respondent no.13 was to expire on 31.10.1999 and notice of termination in that regard was given by the petitioner to the respondent no.13 on 31st August, 1999. According to the learned Advocate for the petitioner, all these admitted facts clearly establish that the respondents no.1 to 12 were not the employees of the petitioner and there was no scope for the Industrial Court to hold that there was, prima facie, case in favour of the respondents no.1 to 12 and to grant them interim relief apart from the fact that the Industrial Court had no jurisdiction to grant such relief in the absence of employer-employee relationship between the petitioner and the respondents no.1 to 12. Placing reliance upon the decisions of the Apex Court in the matter of Vividh Kamgar Sabha v. Kalyani Steels Ltd. & Anr. reported in 2001 AIR SCW 170 and Cipla Ltd. v. Maharashtra General Kamgar Union reported in 2001 AIR SCW 919, it was strenuously argued that the complaint itself was not maintainable in law against the petitioner at the instance of the respondents no.1 to 12 and, therefore, the Industrial Court ought to have rejected the said complaint along with the application for interim relief, in limine. The Industrial Court having failed to appreciate that the petitioner company and the union registered as a recognized union under the said Act, had entered into a settlement dated 18.11.1995 and 29.1.1999 for abolition of contract labour system in the company and absorption of the large number of labourers qua the settlement, the Industrial Court has clearly acted in excess of its jurisdiction while allowing the application for interim relief. According to the learned Advocate, it should have been appreciated by the learned Industrial Court that the contractors including the respondent no.13 were known, accepted and recognized as contractors only and that their employees were never in the employment of the petitioner company and the status of the employees of the said contractors including the respondent no.13 as contract labour was always recognised as such and they were never recognised as the employees of the petitioner company and it was on account of this clear cut recognition of their status as contract labour that the issue of abolition of contract labour system was taken up by the recognized union and settled in most acceptable and fair settlements referred to above and in view of this, the Industrial Court has committed gross error of law in treating the employees of the Respondent no.13 as the persons employed by the petitioner company.

8. On the other hand, it is the contention of the learned Advocate for the respondents no.1 to 12 that the Industrial Court has ample powers to deal with all the incidental questions when they arise while dealing with the complaint under section 28 of the said Act in view of the provisions contained in Section 32 of the said Act. The decisions of the Apex Court were sought to be distinguished by contending that in those matters, both sides had, produced sufficient evidence and materials on record to enable the Industrial Court to hold that there was no employer employee relationship between the parties and, that, thereafter, the Apex Court had ruled about the absence of jurisdiction to the Industrial Court to deal with the complaint. In that regard reliance is placed on the decision of the learned Single Judge of this Court in the matter of Hindustan Coca Cola Bottling S/W P. Ltd. & Anr. v. Narayan Rawal & Ors. reported in 2001 II CLR 380. It was also submitted that if the complaint is thrown out on the ground of lack of jurisdiction on account of absence of proof of existence of employer employees relationship, then the respondents no.1 to 12 would be left with no remedy more particularly, in view of the provisions of law contained in section 59 of the said Act. Considering the materials on record, the Industrial Court has arrived at correct findings and the order does not deserve interference in writ jurisdiction.

9. In Vividh Kamgar Sabha's case, the appellants therein, claiming to be the union representing the workmen of canteen run by the respondent company Kalyani Steels, approached the Industrial Court contending that they were actually employees of Kalyani Steels, yet the company was not considering them at par with the other employees and it notionally engaged the contractors to run the canteen. As the company was not accepting the workmens' claim to treat them as their employees, the workmen filed complaint under section 28(1) of the said Act alleging that the company had engaged in unfair labour practices under Item Nos.1, 1(a), 1(b), 4(a) of Schedule II and Items 3, 5, 6, 7, 9 and 10 of Schedule IV of the said Act. The complaint came to be dismissed by order dated 20.8.1996. The appellant preferred SLP directly to the Apex Court against the said order as this Court in the case of Krantikari Suraksha Rakshak Sangathana v. S. V. Naik reported in (1993) 1 Cur.LR 1003, had already held that the Industrial Court cannot in a complaint under MRTU & PULP Act abolish contract labour and treat employees as direct employees of the company. The Apex Court in the said decision, ruled thus :-

"The provisions of MRTU & PULP Act can only be enforced by persons who admittedly are workmen. If there is dispute as to whether the employees are employees of the Company, then that dispute must first be got resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in an appropriate Forum that a complaint could be made under the provisions of MRTU & PULP Act." (Emphasis supplied).

While pronouncing the said decision, the Apex Court expressed its full agreement with its earlier decision in the case of Central Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. & Calico Printing Co. Ltd. reported in 1995 Supp (1) SCC 175 wherein, it was held that where the workmen have not been accepted by a company to be its employees, then no complaint would lie under the said Act. Knowing the law on the point as already laid down by the Apex Court, it was sought to be contended that the denial of employer-employee relationship was only to defeat the claim of the workmen. However, rejecting the said contention, the Apex Court ruled that, that being a disputed fact, till the workmen get the question decided in a proper forum, the complaint under the said Act would not be maintainable. The Apex Court thereafter, dismissed the appeal holding that the complaint was not maintainable.

10. It is thus, abundantly clear from the said decision that only after the status as an employee is established in an appropriate forum in accordance with the appropriate provisions of law, that a complaint under the said Act can be filed and not prior to that. The Apex Court in Vividh Kamgar Sabha's case, has in clear terms ruled that it is only after the status as a workman is established in an appropriate Forum that a complaint could be made under the provisions of MRTU & PULP Act. The ruling on the point is unambiguous and crystal clear and leaves no room for doubt. Besides, it was further explained by the Apex Court in Cipla's case wherein it has been held that :-

"If the case put forth by the workmen is that they have been directly employed by the appellant-company but the contract itself is a camouflage and therefore, needs to be adjudicated is a matter which can be gone into by appropriate industrial tribunal or labour court. Such question cannot be examined by the labour Court or the industrial Court constituted under the Maharashtra Prevention of Unfair Labour Practices Act. The object of the said enactment is, amongst other aspects, enforcing provisions relating to unfair labour practices. If that is so, unless it is undisputed or indisputable that there is employer-employee relationship between the parties, the question of unfair practice cannot be inquired into at all. The respondent union came to the labour Court with a complaint that the workmen are engaged by the appellant establishment through the contractor and though that is ostensible relationship is one of master and servant between the appellant and the workmen in question. By this process, workmen, repudiate their relationship with the contractor under whom they are employed but claim relationship of an employee under the appellant. That exercise of repudiation of the contractor with one and establishment of a legal relationship and with another can be done only in a regular industrial tribunal/Court under the I.D. Act." (Emphasis supplied).

11. The contention that both the decisions were given in the circumstances where sufficient evidence was led before the industrial Court to hold that there was no employer - employee relationship and that therefore, the rulings do not apply to each and every case where relationship is either not proved or denied by the opponent party, is not only devoid of substance but if accepted, then it would amount to misreading of the said rulings. As already observed above, in Vividh Kamgar Sabha's case it has been clearly ruled out that the complaint under the said Act is not maintainable in the absence of status of the complainant as an employee is established. Likewise, in Cipla's case, it has been held that if the case put forth by the workmen is that they have been directly employed by the appellant-company but the contract itself is a camouflage and therefore, needs to be adjudicated is a matter which can be gone into by appropriate industrial or labour court and such question cannot be examined by the labour Court or the industrial Court constituted under the said Act. This is a complete answer to the contention sought to be raised on behalf of the respondents.

12. In fact, the decision in Vividh Kamgar Sabha's case not only deals with the requirement of status of employee to enable him to file a complaint under the said Act, it also deals with the issue of jurisdiction of industrial Court to entertain the complaint only in cases where there exists or existed employer employee relationship between the parties. In other words, it deals with both the points, maintainability of a complaint and the jurisdiction of the industrial Court to entertain a complaint. The Apex Court has clearly held in the said decision that if there is any dispute about such relationship between the parties, then the same should be first resolved by raising an issue before the appropriate forum in appropriate proceedings and not in the complaint itself before the Industrial Court under the said Act and only after establishing the status as an employee in such appropriate forum, that the complaint at his instance can be filed under the said Act. The law in that regard has been made abundantly clear in para 5 of the Vividh Kamgar Sabha's decision and further elaborated in para 8 of Cipla's decision.

13. Besides, under section 28 of the said Act, the complaint should be either by employer or employee and in relation to any unfair labour practice. Section 26 read with Schedule II, III and IV of the said Act enumerates the instances of unfair labour practice by the employer or the employee. Section 5(d) of the said Act speaks of duty of the Industrial Court to decide complaints relating to unfair labour practices except unfair labour practices falling in item 1 of Schedule IV. The provisions contained in Section 5 clearly specify the scope and the powers and the functions of the industrial Court relating to complaints alleging unfair labour practice. The provisions of law in that regard being very clear, there is no scope to read something in the said provisions which is not provided for. The power and the function of the industrial Court being specified under the said provisions of law and the same being special statute for specific purposes and pertaining to the specific situation, the authority created to deal with the specific situation and to attain particular purpose, such authority has to function within the limits and parameters of the powers given to it under the statutes under which the same is created. To allow the authority by judicial pronouncement to travel beyond the scope of the powers given under the statute would virtually amount to usurp legislative function by the Court, which is not permissible. The Apex Court in Union of India and another v. Deoki Nandan Aggarwal reported in 1992 Supp(1) SCC 323 has clearly held that:-

"It is not the duty of the Court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up deficiency. The courts have to decide what the law is and not what it should be."

It has been further warned by the Apex Court in the decision that to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. It is also to be remembered that the doctrine of reading down the provision or part of the provision cannot be invoked when express provision itself negates the same as has been observed by the Apex Court in C. B. Gautam v. Union of India and others (1993) 1 SCC 78. Also to be borne in mind the decision of the Apex Court in Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and another reported in (1999) 6 SCC 82 wherein it has been observed that :-

"The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature."

14. The provisions relating to the entertainment of the complaint and scope of power of industrial Court while dealing with such complaint, clearly prescribe limitation over exercise of such powers. The exercise of such powers is essential in cases where the complaint is filed either by the employer or the employee and where such employer - employee relationship between the parties exists or had been in existence and not otherwise.

15. Coming to the contention regarding section 32 of the said Act and the scope thereof, it is to be noted that the section 32 of the said Act provides that :-

"32. Notwithstanding anything contained in this Act, the Court shall have the power to decide all matters arising out of any application or a complaint referred to it for the decision under any of the provisions of this Act."

In fact, the point sought to be raised in this regard, has been already answered by the Apex Court in Cipla's case wherein it has been held thus :-

"Shri. K. K. Singhvi, the learned senior advocate appearing for the respondent, submitted that under Section 32 of the Act the Labour Court has the power to "decide all matters arising out of any application or complaint referred to it for the decision under any of the provisions of the Act." Section 32 would not enlarge the jurisdiction of the Court beyond what is conferred upon it by other provisions of the Act. If under other provisions of the Act the industrial tribunal or the labour court has no jurisdiction to deal with a particular aspect of the matter, Section 32 does not give such power to it. In the cases at hand before us, whether a workman can be stated to be the workman of the appellant establishment or not, it must be held that the contract between the appellant and the second respondent is a camouflage or bogus and upon such a decision it can be held that the workman in question is an employee of the appellant establishment. That exercise, we are afraid, would not fall within the scope of either Section 28 or Section 7 of the Act. In case of this nature where the provisions of the Act are summary in nature and give drastic remedies to the parties concerned elaborate consideration of the question as to relationship of employer employee cannot be gone into."

While giving the above ruling, the Apex Court has also considered its earlier decision in Central Bank of India Ltd. vs. P. S. Rajgopalan reported in AIR 1964 SC 743 as well as the Full Bench decision of our High Court in Vishwanath Tukaram vs. General Manager, Central Railway, V. T. Bombay reported in AIR 1958 Bom. 111. Besides, section 32 of the said Act, on the face of it, speaks about the power of the court to decide all matters arising out of any application or complaint referred to it for decision under any of the provisions of the Act. Apparently, the expression "all the matters" related to the matters covered by "any of the provisions of the said Act" and not by some other Act. All matters must be for the decision under the provisions of the said Act. The matter covered by other Acts and not covered by the said Act cannot be said to be for the decision under "any of the provisions of the said Act."

16. This brings us to the next contention on behalf of the respondents that if complaint of respondents no.1 to 12 is dismissed then, they would be left with no remedy in the matter in view of section 59 of the said Act. Section 59 of the said Act provides that if any proceeding in respect of any matter falling within the purview of this Act is instituted under this Act, then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or, as the case may be, the Bombay Act; and if any proceeding in respect of any matter within the purview of this Act is instituted under the Central Act, or as the case may be, the Bombay Act, then no proceedings shall at any time be entertained by the Industrial or Labour Court under the said Act. The expression "Central Act" refers to Industrial Disputes Act, 1947 and the expression "Bombay Act" refers to Bombay Industrial Relations Act, 1946 in terms of definition under section 3(2) and (1) respectively. The provisions contained in section 59 of the said Act clearly bars the proceedings under the Central Act and Bombay Act only in relation to "the matter within the purview of the said Act" and not in relation to any other matter. Once, it is held that the Industrial Court under the said Act, has no jurisdiction to deal with the issue relating to employer - employee relationship, it goes without saying that the said matter would not lie "within the purview of the said Act" and there cannot be any bar to agitate the said issue before the competent Court in terms of the provisions of the relevant Act. This is also clear from the decision of the Apex Court in Vividh Kamgar Sabha's case. In para 7 of the said decision of the Apex Court, it has been ruled thus :-

"Accordingly, we dismiss this Appeal on the ground that the complaint was not maintainable. We clarify that it is open for the Appellant or their members to raise dispute in this behalf before an appropriate forum provided they are entitled to do so. If they get a declaration to the effect that they are employees of the Respondent Company, then it may be open to them to file such a complaint. It is also clarified that if a dispute as to their status is raised in an appropriate forum then the same will he decided on merits without taking into consideration any observations made or finding given by the Industrial Court in the impugned Order."

Prior to that, in para 6 the Apex Court has clearly observed that :-

"This is a disputed fact and thus till the Appellants or their members, get the question decided in a proper forum, this complaint was not maintainable."

Apparently, therefore, the provision contained in section 59 of the said Act does not bar the proceedings for decision regarding the issue of employer employee relationship between the parties which can be agitated before the competent court in terms of the provisions of relevant statute. Merely because the complaint filed under the said Act is rejected on the ground of lack of jurisdiction to the Industrial Court to deal with the matter in the absence of existence of employer employees relationship between the parties, there is no bar for adjudication of the issue of employer - employee relationship by the Court competent to decide the same.

17. The decision of the Apex Court being very clear on the point in issue, the same is binding on this Court. The judicial discipline requires that when the Apex Court states as to what the law on the matter is, the same shall be binding on all courts within the territory of India and that is the mandate of Article 141 of the Constitution and it is not based on any doctrine of precedents but is an imprimatur to all courts that the law declared by the Apex Court is binding on them. These are the observations of the Apex Court in C. N. Rudramurthy v. K. Barkathulla Khan and others reported in (1998) 8 SCC 275, while holding in that case that :-

"If that is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D. C. Bhatia case. The clear pronouncement made by this Court in Shobha Surendar case was that D. C. Bhatia case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao case. In effect, Padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that D.Cc. Bhatia case was applicable to the provisions of the Karnataka Rent Control Act. So, it was not open to the learned Judge to take any other view in the matter."

18. When law on the point in issue having been laid down by the Apex Court, consistently from the decision in Central Labour Union's case and followed repeatedly in subsequent decisions, it is not open for this Court to try to distinguish the decisions in Vividh Kamgar Sabha's case and Cipla's case on the ground that in those cases, parties had led evidence before the Industrial Court to arrive at a conclusion that employer - employee relationship was not existing between the parties to the proceedings. The distinguishing factor has to be relating to the material fact of the case, the point for determination and/or the law applicable thereto. Certainly distinguishing factor cannot be relating to the illegal procedure followed by the Courts below in order to enable it to assume the jurisdiction which it does not possess. There is no doubt that only essence of the decision and its ratio is binding and not every observation made therein. Equally, it cannot be disputed that every decision must be read as applicable to the particular set of facts. The Apex Court in Union of India and others v. Dhanwati Devi and others reported in (1996) 6 SCC 44 has held that "according to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. .... Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. At the same time, it has also been warned that "a deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis." The material facts in Vividh Kamgar Sabha's case were that the canteen workers were engaged through contractors. They were not treated at par with the employees of the company. On record they were the employees of the contractor. In Cipla's case, since 1991 the company was engaging persons to keep the factory premises clean, hygienic and dust free but on paper they were shown as "contract workmen" working for the contractor. They were not given appointment letters and they were not treated on par with the employees of the company. Similar are the material facts of the case in hand. The problem in all the cases is the dispute relating to employer employee relationship between the parties and the grievance of unfair labour practice being employed by the employer. The law to be applied to find solution to the problem is the said Act, the Central Act, Bombay Act and the relevant decisions of the Apex Court. Considering the same, the Apex Court has delivered the judgments in both the cases. The ruling in both the cases, as stated above is that in the absence of existence of employer-employee relationship on the day of filing of the complaint or at any time prior thereto, the industrial court cannot entertain the complaint alleging unfair labour practice by the opponent. In no way it can be said that the material facts of the case in hand are different from those of the above two decisions of the Apex Court. The law applicable is also the same and therefore, the law laid down in the said two decisions has to be followed.

19. Undoubtedly, it cannot be disputed that the well established principles of law is that the access to the Court for redressal of grievance being an important right of every person,, it is essential that the jurisdiction of the courts is to be construed harmoniously and consistently with its vital function in that respect, so that absence of legislation will not jeopardise that right of the parties. (Vide M. V. Elizabeth and others v. Harwan Investment & Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa reported in 1993 Supp (2) SCC 433. However, that is not the situation in the matter in hand. The parties are not left without remedy. The only precondition to seek the remedy under the said Act is necessity of existence of employer - employee relationship between the parties and when its existence is not established or is disputable, then the party has to first seek redress either under Central Act or the Bombay Act and if successful therein, to seek the necessary remedy under the said Act thereafter.

20. It was also sought to be contended that mere denial of status of the complainant as that of employee by the opponent, cannot non-suit the employees and such denial would not oust the jurisdiction to the industrial court to ascertain the fact situation by framing issues and asking the parties to lead evidence in that regard, and to decide the same, possibly by summary manner. In fact, similar was the contention sought to be raised in Vividha Kamgar Sabha's case by saying that such denials can be raised in each and every case to defeat the claim of the employee. The contention was rejected by the Apex Court. Indeed, a question of framing of issue or holding of summary inquiry does not arise at all. Once, it is clear that the industrial Court under the said Act has no jurisdiction to decide the issue relating to employer employee relationship, the occasion for framing of issue on the point which is beyond its jurisdiction cannot arise. Once it is clear that the jurisdiction of the industrial Court depends upon the fact of existence of employer-employee relationship between the parties - which is a jurisdictional fact, which should exist to enable the industrial Court to assume jurisdiction to entertain the complaint under the said Act, in the absence of the same, any attempt on the part of the industrial Court to adjudicate upon the issue of such relationship would amount to mistake of fact in relation to jurisdiction. It has been clearly held by the Apex Court in the matter of Shrisht Dhawan v. Shaw Brothers reported in (1992) 1 SCC 534 that :

"A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority, which is a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad."

In Raza Textiles Ltd. v. Income Tax Officer, Rampur (vide (1973) 1 SCC 633), it was held that the Court or tribunal cannot confer jurisdiction on itself by deciding a juridictional fact wrongly.

21. Reverting to the facts of the case in hand, undisputedly, the relationship of employer - employee between the parties has been denied and disputed. The records, prima facie, disclose that the respondents no.1 to 12 were employed by the respondent no.13 and were paid their wages by the respondent no.13. There was an agreement executed between the petitioner and the respondent no.13 for carrying out work regarding cleaning and conservancy in petitioner - factory premises. There was a legal and valid registration with the petitioner and legal and valid licence with the respondent no.13 under the Contract Labour (Regulation & Abolition) Act, 1970. The agreement between the petitioner and the respondent no.13 was to expire on 31.10.1999 and notice to that effect was issued by the petitioner to the respondent no.13 on 31st August, 1999. As rightly submitted by the learned Advocate for the petitioner, these facts, prima facie, disclose that not only the employer - employee relationship between the parties was disputed and denied by the petitioner, there was nothing on record to show that the petitioner had, at any time, accepted the respondents no.1 to 12 as their employees. It is the case of the respondents no.1 to 12 complainants themselves that they were shown as the contract labour. In the circumstances, to assume the existence of employer - employee relationship between the parties in the absence of any material in that regard and to arrive at such conclusion on assumption of the jurisdiction to decide the issue relating to unfair labour practice is an error of jurisdictional fact. As rightly submitted by the learned Advocate for the petitioner, the Industrial Court, by assuming the existence of employer - employee relationship between the parties, inspite of it having no jurisdiction to decide the said issue, has thereby illegally assumed jurisdiction in respect of the subject matter, which the said Act has not conferred on it and thereby, by deciding wrongly the fact of existence of such relationship on which depends the jurisdiction of the Industrial Court to deal with the matter, has allowed application for interim relief, rendering the order to be ultra vires and bad in law.

22. In the circumstances, therefore, the impugned order cannot be sustained and is liable to be quashed and set aside as far as it relates to the petitioner. The petition, therefore, succeeds. The impugned order, as far as it relates to the petitioner, is hereby quashed and set aside. The complaint (ULP) No.250/1999 pending before the Industrial Court, Ahmednagar, as far as it relates to the petitioner, stands dismissed. It is however, made clear that this will not preclude the respondents no.1 to 12, if they so desire, from raising the dispute regarding their status in an appropriate Forum in accordance with the provisions of law applicable to them and if so raised and in case it is decided in favour of the said respondents, then to approach the Industrial Court under the said Act. The petition as far as it relates to the respondent no.13, the same is hereby dismissed. Rule is made absolute accordingly with no orders as to costs.

23. Registry to furnish a copy of this judgment to the Secretary, (Labour), Government of Maharashtra, Bombay with a direction to circulate forthwith the copies of the same to the Industrial Courts and Labour Courts constituted under the said Act in the State of Maharashtra.

Petition allowed.