B. P. Dharmadhikari, J. - (1.)Writ Petition No. 1114/2007 is by an employee, challenging order dated 31.1.2007 passed by Industrial Court in ULP Complaint No. 1012/1999 holding that the employee is neither a workman as defined in section 2(s) of the Industrial Disputes Act nor an employee as defined in section 3(13) of the Bombay Industrial Relations Act. It has, therefore, dismissed the complaint as untenable. The employer has filed Writ Petition No. 2853/2007 challenging the very order contending that the learned Member, Industrial Court has made certain observations on the merits of the controversy in that order. Basically, it is sought to be urged that the learned Member, Industrial Court has made certain observations about bar of the limitation and as the Industrial Court has ultimately found that the employee was not workman/employee and it had no jurisdiction, those observations were not necessary.
(2.)In this background, I have heard the employee Shri Arvind Valke in person and Shri Kumar, Advocate for the employer. Shri Kumar has pointed out that the employer is a Company and while joining the employer as party-respondent before the Industrial Court, the employee Shri Valke has joined some of its officers like Vice President, Deputy General Manager, Assistant General Manager by mentioning their names i.e. in the personal capacity. He submitted that no relief as such was claimed against those officers & then after some time, those officers have resigned and joined some other employer. He, therefore, stated that the dispute is between the employee Shri Valke and employer Company only.
(3.)Shri Valke has contended that issue framed by the Industrial Court was to find out whether the employee is workman as defined in section 2(s) of the industrial Disputes Act, 1947. He relied upon the judgment of the Hon'ble Apex Court in (Shankar Chakravarti Vs. Brittania Biscuit Co. Ltd. and another), 1979(3) S.C.C. 371 to state that this was the only objection taken in the written statement and there was no ground that he does not satisfy the requirements of section 3(13) of the Bombay Industrial Relations Act, 1946. Ignoring the absence of the pleadings and grounds as also the issue, the learned Member, Industrial Court has proceeded to consider the status of the employee (Shri Valke) under section 3(13) of the Bombay Industrial Relations Act and recorded a finding, at the end of paragraph 17, that he is also not an employee thereunder. He contended that this finding is perverse and also without jurisdiction. He also invited attention of the Court to the judgment in (George Thomas Thakkeyil Vs. M/s. Sci-Tech Centre and others)2, 2007(3) Bom.C.R. 86(O.S.) to contend that as the entire exercise of the show cause notice, charge-sheet issued to the employee and the punishment inflicted has been under the provisions of the Model Standing Orders, the employer cannot contend that Shri Valke is neither a workman nor an employee under both the Acts. He also relied upon the judgment of this Court reported in (Maharashtra State Road Transport Corporation Vs. Ambadas Sadhiv Hingane), 2009(1) Bom.C.R. 393, to urge that as the interim order granted by the Industrial Court in his favour continues to operate the employee could not have been terminated and he must be presumed to be in service. He also relied upon the facts mentioned in the judgment reported in (Sohanlal Mijajilal Karotia Vs. Welcome Group Searock Sheraton), 2002(1) C.L.R. 796 to urge that after completion of the departmental enquiry, the employer ought to have moved an appropriate application before the Industrial Court to seek its permission and thereafter only, the punishment order could have been passed. In this respect, he pointed out that he has moved an application (Exh. 49) before the Industrial Court seeking his salary and allowances and that application is still pending. However, in the impugned order, the learned Member, Industrial Court, has made certain adverse observations in relation to the claim made in that application and he requested this Court to set aside those observations.