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Bombay High Court
Emerson Climat Technologies (India) … vs Bharatiya Kamgar Karmachari Mahasangh on 5 May, 2025
2025:BHC-AS:20462
Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3761 OF 2025
Emerson Climate Technologies (India)
Pvt. Ltd.
Now known as Copeland India Private Ltd. ] Petitioner
: Versus :
Bharatiya Kamgar Karmachari Mahasangh ] Respondent
FOR PETITIONER : Mr. J.P. Cama, Senior Advocate with Mr.
Varun Joshi, Mr. Chetan Alai, Ms. Rama
Somani
FOR RESPONDENT : Mr. Dheeraj Patil
CORAM : SANDEEP V. MARNE, J.
Judgment Reserved On : 24 April 2025.
Judgment Pronounced On : 5 May 2025.
Judgment :
1) Petitioner-employer has filed this Petition challenging the
Award dated 30 March 2024 passed by the Presiding Officer, Industrial
Tribunal, Satara answering Reference (I.T.) No.5 of 2013 in the
affirmative and directing all the concerned workers to be made
permanent by extending them benefits and status of permanent workers__________________________________________________________________________
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)retrospectively from the date of raising of the Reference i.e. w.e.f.
20 September 2013.
2) Petitioner is engaged in the business of manufacturing of
Hermetically sealed compressors having its registered office at
Hinjewadi. It has one of its factories situated at Atit, District-Satara.
Respondent is a registered trade union, which is not a recognised union
in respect of Petitioner’s factory at Atit under the provisions of
Maharashtra Recognition of Trade Union and Prevention of Unfair
Labour Practices Act, 1971 (MRTU & PULP Act). Petitioner has a
separate Union named Engineering Shramik Sanghatana, which is duly
recognised under the provisions of MRTU & PULP Act with whom
Petitioner has signed various settlements relating to permanent
workmen employed in its factories. Respondent-Union represented 131
contract workers and espoused their cause with the Petitioner-
employer. Petitioner claims that it had engaged 131 contract workers
through a contractor-Mangal Enterprises since 6 May 2009. Petitioner
had displayed and advertised a notice for filling up certain vacancies on
permanent basis. The Respondent-Union demanded grant of
permanency to 131 contract workers. Respondent-Union raised dispute
by letter dated 1 September 2012 before the Assistant Commissioner of
Labour. The matter was taken in conciliation. After submission of
failure report dated 21 August 2013, the Assistant Commissioner of
Labour referred the dispute for adjudication to Industrial Tribunal at
Satara by order dated 20 September 2013. The Reference was with
regard to permanent absorption of members of Respondent-Union on
account of completion of more than 240 days of service and to extend
them all benefits payable to permanent workers with retrospective
effect. Respondent-Union appeared before the Industrial Court and filed
application for interim stay to the selection process initiated vide notice
dated 17 October 2013. The Industrial Tribunal passed order staying the
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
recruitment of new employees and restrained the Petitioner from
recruiting any other person than members of the Respondent-Union.
3) Petitioner appeared before the Industrial Court and filed
application seeking rejection of Reference on the ground that the
Reference was not maintainable as it was being prosecuted by an
unrecognised Union. The said application was resisted by the
Respondent-Union by filing its reply. The Industrial Tribunal passed
order dated 10 December 2013 conditionally permitting the Petitioner to
make recruitment as per the recruitment process on the condition that
till the reference was decided in favour of Respondent-Union, Petitioner
would not act on the appointments made by them during pendency of
the application. Respondent-Union thereafter filed its Statement of
Claim dated 4 January 2014 seeking absorption of 131 members, who
had completed 240 days of service alongwith all consequential benefits.
The Claim was resisted by the Petitioner by filing its written statement.
The Industrial Court rejected application filed by the Petitioner
questioning maintainability of the Reference by order dated
9 November 2016. In the meantime, some orders were passed by the
Industrial Tribunal directing the Petitioner to produce the documents.
By order dated 18 June 2016, it restrained the Petitioner from granting
status of permanency to workers other than members of Respondent-
Union in pursuance of notice dated 17 October 2013 till final disposal of
the Reference. Petitioner filed Civil Writ Petition No.1990 of 2017
challenging orders dated 1 April 2014, 3 December 2015, 9 November
2016 and 18 June 2016, which came to be disposed of by recording
consent terms and by setting aside order dated 18 June 2016 on
understanding that appointments made in pursuance of notice dated
17 October 2013 would be subject to final outcome of the Reference. In
the meantime, Petitioner had filed Writ Petition Nos.444 of 2020 and
451 of 2020 challenging the order dated 9 November 2016 rejecting its
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
application questioning maintainability of the Reference. The Petitions
came to be dismissed by this Court by order dated 24 January 2020.
Petitioners filed SLP (C) Nos.5181-5182 of 2020 before the Hon’ble
Supreme Court and it is averred in the Petition that the same is still
pending.
4) In the meantime, the evidence in the Reference commenced.
Respondent-Union examined Shankar Jagannath Pawar, Suresh
Pandurang Mane and Dagdu Bhagave. Petitioner examined Pravin
Bhalchandra More, Sachin Arvind Patil, Amol Vijay Bhoite, Shashikant
Madhukar Shirke and Abasaheb Pandurang Patil as its witness. Both
the sides relied upon various documentary evidence. After considering
the pleadings, documentary and oral evidence, the Industrial Tribunal
proceeded to answer the Reference in the affirmative and partly allowed
the same by Award dated 30 March 2024. The Industrial Tribunal
directed Petitioner to make all the concerned workers in the Reference
permanent by extending them benefit and status of permanent workers
retrospectively from date of Reference i.e. 20 September 2013 except
those workers who were already made permanent, who had passed
away, who availed benefit of VRS or who resigned from the
membership of Union. According to Respondent-Union, 64 of its
members would be benefited by the impugned Award dated
30 March 2024. Petitioner has filed the present Petition challenging the
Award dated 30 March 2024.
5) Mr. Cama, the learned senior advocate appearing for the
Petitioner would submit that the Industrial Tribunal has grossly erred
in allowing the reference directing grant of permanency to the members
of the Respondent-Union, with whom Petitioner has no employer-
employee relationship. He would submit that the impugned award goes
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
beyond the terms of reference. That the members of Respondent-Union
are employed through the Contractor-M/s. Mangal Enterprises and
unless reference was made for establishment of employer-employee
relationship, direct relief of granting permanency in favour of such
members could not have been granted by the Industrial Tribunal. That
the Industrial Tribunal has erred in framing the issue about existence of
employer-employee relationship and about the contract being sham and
bogus. That those issues did not arise out of reference made to it by the
Appropriate Government. He would submit that Industrial Tribunal
has travelled outside the terms of Reference. In support, he has relied
upon judgments in Tata Iron and Steel Company Ltd Versus. State of
Jharkhand and others1, Pottery Mazdoor Panchayat Versus. Perfect
Pottery Co. Ltd. And Anr2 and Mahendra L. Jain And Ors. Versus.
Indore Development Authoity And Ors3.
6) Mr. Cama would further submit that the reference made to
the Industrial Tribunal by the Appropriate Government was not
sustainable as members of the Respondent-Union are mere contract
workers, who cannot be treated as workmen of the Petitioner under
Section 2(s) of the Industrial Dispute Act, 1947 (ID Act). Therefore, no
reference could have been made on their behalf. In support of his
contention, he would rely upon judgment of the Apex Court in
Workmen of the Food Corporation of India Versus. Food Corporation
of India4. Mr. Cama would further submit that onus of establishing
employer-employee relationship and that the workers are entitled to
permanency or regularisation was squarely on the Respondent-Union.
That no other material is produced to establish employer-employee
relationship between Petitioner and members of Respondent-Union. In
1
(2014) 1 SCC 536
2
(1979) 3 SCC 762
3
(2005) 1 SCC 639
4
(1985) 2 SCC 136
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
support of his contention of onus, he would rely upon judgment of the
Apex Court in Ganga Kisan Sahkari Chini Mills Ltd. Versus. Jai Veer
Singh5. That in absence of production of appointment letter, Provident
Fund number, wage slip, etc., the workers cannot be treated as workers
of the principal employer. In support, he would rely upon Apex Court
judgment in Bharat Heavy Electricals Ltd. Versus. Mahendra Prasad
Jakhmola And Ors6.
7) Mr. Cama would further submit that findings recorded by
the Industrial Tribunal suffer from the vice of perversity. That the
Industrial Tribunal has erroneously held that the appointment letters
issued by M/s. Mangal Enterprises to the concerned workers do not
bear signatures ignoring the position that the witness of the
Respondents clearly admitted in the evidence that he was appointed by
M/s. Mangal Enterprises but was not willing to file appointment letter.
The Contractor led specific evidence of having issued the appointment
letter. That the appointment letters filed by the Petitioner do bear
signatures of the workmen. He would submit that the Industrial
Tribunal erred in holding that Petitioners failed to show existence of
valid contract by ignoring copies of various contracts produced before it.
The Industrial Tribunal has erred in holding that no such registration or
license existed as on the date of first appointment in the year 2009
ignoring the position that no evidence was produced by the workers of
initial appointment in the year 2009. That in any case Petitioner
produced various registration certificates issued under the provisions of
Contract Labour (Regulation And Abolition) Act, 1970. That the
Industrial Tribunal has erred in holding that appointment letters were
prepared by the Petitioner to show appointments through contractor
ignoring the evidence of contractor. That otherwise, employees of M/s.
5
(2007) 7 SCC 748
6
(2019) 13 SCC 82
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
Mangal Enterprises have admitted that appointment letters were issued
by the said contractors. That the Industrial Tribunal erred in holding
that no signatures appeared on pay slip issued by M/s. Mangal
Enterprises ignoring the position that witness of Respondent clearly
admitted that M/s. Mangal Enterprises issued salary slip. That the
findings recorded by the Industrial Tribunal that dismissal orders relied
upon by Respondent pertained to 2018-2021 after making of reference,
ignoring the position that Petitioner also relied upon chargesheet and
dismissal pertaining to 2013. The Industrial Tribunal has erred in
assuming that Petitioner paid Rs. 15,00,000/- to contract workers under
VRS in absence of any evidence to that effect. That the finding of
Industrial Tribunal about absence of evidence of supervision being done
by M/s. Mangal Enterprises is recorded by ignoring evidence of the
Contractors, who gave names of supervisor who exercised supervision
over the contract workers. Similarly, the findings of absence of written
order of allotment of work by M/s. Mangal Enterprises is contrary to the
evidence of Contractor, who gave the entire scope of work during the
course of his evidence. That the Industrial Tribunal has erred in holding
that the work is of perennial nature.
8) Mr. Cama would further submit that Respondent led
evidence of only two workers, who did not have any power or authority
to lead evidence on behalf of the balance 129 workers. He would submit
that evidence led by said workers cannot be relied upon to assume
employment of the other workers. In support, he would rely upon
judgment of this Court in Glasstech Industries (India) Pvt. Ltd, Raigad
Versus. Workmen Represented by Maharashtra General Kamgar
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
Union7 and Force Motors Limited. Versus Poona Employees Union and
others8.
9) Mr. Cama would further submit that the findings recorded
by the Industrial Tribunal about contract being sham and bogus is not
only outside the scope of reference but is otherwise perverse. He would
submit that Respondent-Union failed to establish the six tests prescribed
in the judgment of the Apex Court in Balwant Rai Saluja Versus. Air
India9. That the evidence of contractor proved beyond doubt that
matters relating to leave, salary, chargesheets, dismissal, allocation of
work, etc. were all done by M/s. Mangal Enterprises. That wage-cum-
muster was also maintained by M/s. Mangal Enterprises. That ESI and
PF contributions were made by M/s. Mangal Enterprises. VRS was
introduced by M/s. Mangal Enterprises for its own workers. He would
therefore submit that none of six tests get satisfied in the present case
for holding that members of Respondent-Union are direct workmen of
the principal employer. Mr. Cama would therefore pray for setting aside
the impugned order.
10) Petition is opposed by Mr. Patil, the learned counsel
appearing for Respondent-Union. He would submit that the Industrial
Tribunal has rightly appreciated the entire evidence on record for
holding that there exists employer-employee relationship between
Petitioner and members of the Respondent-Union. That the whole
theory of existence of contract presented by the Petitioner is bogus. That
the Industrial Tribunal has rightly appreciated the position that the
agreement allegedly executed between Petitioner and M/s. Mangal
7
(2013) 1 CLR 512
8
2009 1 CLR 855
9
(2014) 9 SCC 407
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
Enterprises is mere paper arrangement and the same is sham and
bogus. He would submit that the Petitioner did not produce the so-
called contracts executed with M/s. Mangal Enterprises under which
members of the Respondents were allegedly hired. That the first
contract relied upon by Petitioner is shown to have been executed on
15 October 2009 whereas the witness of the Petitioner admitted that the
members of Respondent-Union were first recruited on 6 May 2009.
Thus, no contract existed as on the date of first recruitment of the
members of Respondent-Union and the contract was later created with a
view to deny employer-employee relationship. That the contracts
otherwise are not continuous as no contract was produced covering the
period from 1 January 2011 to 31 December 2012. Though contracts are
produced covering the period from 3 March 2014 onwards, the same are
in respect of Petitioner’s factory at Chakan, which has no relevance to
the present case. Except two stray contracts, no evidence was led to
show continuous hiring of members of Respondent-Union through
M/s. Mangal Enterprises. He would submit that most of the documents
relating to M/s. Mangal Enterprises were bogus and forged by the
Petitioner. That mere computer-generated statement relating to PF/ESI
contributions were produced not bearing any authentic signatures. The
appointment orders do not bear signature of M/s. Mangal Enterprises.
That witness of Petitioner-Mr. Shashikant Madhukar Shirke specifically
admitted during the course of his cross-examination that no contract
was executed with M/s. Mangal Enterprises in respect of the concerned
workers. That thus, the whole story of execution of contract with
M/s. Mangal Enterprises was clearly sham and bogus. Mr. Patil would
further submit that it was Petitioner alone, who always exercised
complete supervision and control over the work of members of
Respondent-Union. He would invite my attention to Skill Matrix Chart
demonstrating exercise of supervision over the work performed by
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
Respondent-Union. He would submit that registered licenses relied
upon by Petitioners were secured in the year 2015 in respect of past
periods. That the insurance policy relied upon by Petitioner is in respect
of housekeeping services provided by M/s. Mangal Enterprises and has
no co-relation with services of members of Respondent-Union. That the
PF slips relied upon by Petitioner are also not authentic document as
the contributions made by the employer and employee do not match.
11) Mr. Patil would then rely upon tripartite Agreement
executed between some of the members of Respondent-Union,
M/s. Mangal Enterprises and Petitioner, under which Petitioner paid
amount of Rs.15,00,000/- to the concerned workers. He would submit
that the Industrial Tribunal has rightly inferred existence of employer-
employee relationship based on payment made by Petitioner for
granting voluntary retirement to the members of the Respondent-
Union. He would submit that the members of Respondent-Union
otherwise satisfy the 6 tests laid down by the Apex Court in its
judgment in Balwant Rai Saluja (supra) as discussed by this Court in
judgment in Kalyan Dombivli Muncipal Corporation Versus.Muncipal
Labour Union And Anr10. He would also rely upon judgment of the
Apex Court in Steel Authority of India And ors. Vs. National Union
Waterfront Workers and ors11 in support of his contention that
members of the Respondent-Union have rightly been treated as direct
workers of the Petitioner. He would accordingly pray for dismissal of
the Petition.
12) Rival contentions of the parties now fall for my
consideration.
10
2023 SCC Online Bom 2266
11
2001 (7) SCC 1
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
13) The Reference was initially espoused by Respondent-Union
on behalf of its 131 members, many of whom are no longer interested in
outcome of the same. As of now only 64 members of Respondent-Union
continue to work with the Petitioner. Rest have either been absorbed,
have passed away, have resigned or have opted for voluntary
retirement.
14) There is debate amongst rival parties as to who is the real
employer of these 64 workers. It is the contention of Respondent-Union
that the workers have been engaged by the Petitioner by showing their
employment through a Contractor. On the other hand, Petitioner
contends that the concerned workers have been hired, trained and
deployed to work in Petitioner’s Ancillary Unit at Atit by the
Contractor-Mangal Enterprises.
15) Though the Petitioner has sought to connect the demand of
Respondent-Union for permanent absorption to notice dated
17 October 2013 issued by it for filling up certain vacancies of
permanent nature, it appears that demand dated 23 August 2012 was
already served by Respondent-Union and justification statement was
filed before the Assistant Commissioner of Labour, Satara on
1 September 2012. Thus, the demand for absorption was made much
prior to initiation of recruitment process by the Petitioner. After
issuance of the recruitment notice, the Union started demanding
absorption of contract workers instead of going for open market
recruitment.
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
16) After submission of failure report by the Conciliation
Officer, the Additional Commissioner of Labour, Pune, made following
reference to the Industrial Tribunal, Satara :
अनुसुची
अर्जदार कामगारांना, मे इमरसन क्लायमेट टेक्नॉलॉर्जीर्ज (इंडि या) लिल. या मुख्य मालकाने,
कामगारांनी २४० दिदवसापेक्षा र्जास्त कालावधीत सलग काम केल्याने कायमस्वरुपी सेवेत
पूवलक्षी प्रभावाने समादिवष्ट करुन घ्यावे आणि/ कायमस्वरुपी कामगारांना देय असलेले सव
फायदे (वेतनास) पूवलक्षी प्रभावाने लागू करून फरक द्यावाThe reference is translated as under :
‘Schedule’
The Applicant workers be absorbed in permanent service with
retrospective effect by principal employer M/s. Emerson Climate
Technologies (India) Ltd. on account of rendering of continuous
service of more than 240 days and they shall be paid all benefits
(wages) payable to permanent workers with retrospective effect.
17) It appears that maintainability of reference was questioned
by the Petitioner before Industrial Tribunal by filing application at
Exhibit- C3 on the ground of the same being espoused by unrecognized
Union. The application came to be rejected by the Industrial Tribunal
vide order dated 9 November 2016, which order was upheld by this
Court. Now, Petitioner has sought to question the correctness of
reference by contending that the same was made in respect of persons
who are not workmen of Petitioners within the meaning of Section 2(s)
of the ID Act and that therefore, the same is not sustainable. Petitioner
contends that reference at the instance of workers of Contractor cannot
be made against the principal employer. Reliance is placed on judgment
of the Apex Court in Workmen of the Food Corporation of India
(supra) in which it is held that there has to be express or implied
contract of service between employer and employee and that unless a
person is employed, there can be no question of he being a workman. It__________________________________________________________________________
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)is held that where contractor employs a workman to do the work, the
workman of the Contractor would not become a workman of the
principal employer. The Apex Court held in paragraph 11 as under :
11. Briefly stated, when Corporation engaged a contractor for handling
foodgrains at Siliguri Depot, the Corporation had nothing to do with
the manner of handling work done by the contractor, the labour force
employed by him. payments made by him etc. In such a fact situation,
there was no privity of contract of employer and workmen between
the Corporation and the workmen. ‘Workman’ has been defined
(omitting the words not necessary) in the Industrial Disputes Act to
mean “any person (including an apprentice) employed in any industry
to do…”. The expression ’employed’ has at least two known
connotations but as used in the definition, the context would indicate
that it is used in the sense of a relationship brought about by express
or implied contract of service in which the employee renders service
for which he is engaged by the emplover and the latter agrees to pay
him in cash or kind as agreed between them or statutorily prescribed.
It discloses a relationship of command and obedience. The essential
condition of a person being a workman within the terms of the
definition is that he should be employed to do the work in that
industry and that there should be. in other words. an employment of
his by the employer and that there should be a relationship between
the employer and him as between employer and emplovee or master
and servant. Unless a person is thus emploved there can be no
question of his being a ‘workman’ within the definition of the term as
contained in the Act. (Dhrangadhara Chemical Works Ltd. v. State of
Saurashtra.) Now where a contractor employs a workman to do the
work which he contracted with a third person to accomplish on the
definition as it stands, the workman of the contractor would not
without something more become the workman of that third person.
Therefore, when the contract system was in vogue, the workmen
employed by the contractor were certainly not the workmen of the
Corporation and no claim to that effect has been made by the Union.
18) In my view, there are atleast two reasons why the objection
raised by Mr. Cama about the sustainability of reference deserves
outright rejection. Firstly, if Respondent had any objection to the validity
of Reference order, it ought to have challenged the same, which it has
failed to do. It has participated in the reference proceedings without
challenging the Reference order. It is therefore now precluded from
questioning the sustainability of the Reference order. Secondly, the
Industrial Tribunal has framed the issue relating to existence of
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
employer-employee relationship and has held that members of
Respondent-Union are workers of the Petitioner. Thus, the members of
Respondent-Union are held as workers of the Petitioner and therefore,
the judgment in Workmen of the Food Corporation of India (supra)
would have no application to the facts of the present case. Therefore,
objection about error in the order of reference sought to be raised by the
Petitioner deserves outright rejection.
19) Petitioner contends that Industrial Tribunal has travelled
outside the scope of Reference while delivering the impugned Award. It
is contended that existence of employer-employee relationship and
contract being sham and bogus were never made terms of Reference by
the Appropriate Government. It is contended that the Reference was for
direct absorption in services of Petitioner as if the workers were
temporary workers of the Petitioner. That there is no reference to the
Industrial Tribunal to decide whether the contract is sham or bogus or
that the workers employed by the Contractor are indeed the direct
workers of Petitioner.
20) Reliance is placed on judgment of the Apex Court in Tata
Iron and Steel Company Ltd. (supra) in which it is held in paragraph 16
and 18 as under :
16. The Industrial Tribunal/Labour Court constituted under the
Industrial Disputes Act is a creature of that statute. It acquires
jurisdiction on the basis of reference made to it. The Tribunal has to
confine itself within the scope of the subject-matter of reference and
cannot travel beyond the same. This is the view taken by this Court in
a number of cases including in National Engg. Industries Ltd. v. State
of Rajasthan. It is for this reason that it becomes the bounden duty of
the appropriate Government to make the reference appropriately
which is reflective of the real/exact nature of “dispute” between the
parties.
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
18. It follows from the above that the reference in the present form is
clearly defective as it does not take care of the correct and precise
nature of the dispute between the parties. On the contrary, the manner
in which the reference is worded shows that it has already been
decided that the respondent workmen continue to be the employees of
the appellant and further that their services were simply transferred to
M/s Lafarge. This shall preclude the appellant to put forth and prove
its case as it would deter the Labour Court to go into those issues. It
also implies that by presuming so, the appropriate Government has
itself decided those contentious issues and assumed the role of an
adjudicator which is, otherwise, reserved for the Labour
Court/Industrial Tribunal.
(emphasis added)
21) Reliance is also placed on judgment of the Apex Court in
Pottery Mazdoor Panchayat (supra) in which it is held in paragraph 11
as under :
11. Having heard a closely thought out argument made by Mr. Gupta
on behalf of the appellant, we are of the opinion that the High Court is
right in its view on the first question. The very terms of the references
show that the point of dispute between the parties was not the fact of
the closure of its business by the respondent but the propriety and
justification of the res-pondent’s decision to close down the business.
That is why the references were expressed to say whether the
proposed closure of the business was proper and justified. In other
words, by the references, the Tribunals were not called upon by the
Government to adjudicate upon the question as to whether there was
in fact a closure of business or whether under the pretence of closing
the business the workers were locked out by the management. The
references being limited to the narrow question as to whether the
closure was proper and justified, the Tribunals by the very terms of
the references, had no jurisdiction to go behind the fact of closure
and inquire into the question whether the business was in fact
closed down by the management.
(emphasis added)
22) In Mahendra Jain (supra) it is held in paragraph 34 as
under :
34. We have noticed the provisions of the Act and the Rules. No case
was made out by the appellants herein in their statements of claims
that they became permanent employees in terms thereof. There is also
nothing on record to show that such a claim was put forward even in
the demand raising the industrial dispute. Presumably, the appellants
were aware of the statutory limitations in this behalf. Furthermore,
the Labour Court having derived its jurisdiction from the reference
made by the State Government, it was bound to act within the four
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(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)corners thereof. It could not enlarge the scope of the reference nor
could deviate therefrom. A demand which was not raised at the time
of raising the dispute could not have been gone into by the Labour
Court being not the subject-matter thereof.
(emphasis added)
23) Thus, the law appears to be well settled that Industrial
Adjudicator derives its jurisdiction from Reference made by the
appropriate Government and that it is bound to act within its four
corners. The Industrial Tribunal cannot enlarge the scope of Reference
nor can it deviate therefrom. Industrial Tribunal, being a creature under
the ID Act, acquires jurisdiction on the basis of a Reference made to it.
The appropriate Government needs to make a Reference in such a
manner that it reflects the real nature of ‘dispute’ between the parties. If
the Reference is found to be defective, which does not take care of correct
and precise nature of a dispute, Industrial Adjudicator cannot expand
the scope and proceed to decide issues that fall outside the scope of
Reference. Having stated the position of law about contours of
jurisdiction of Industrial Adjudicator to decide the dispute within its
four corners, I now proceed to examine whether Industrial Tribunal has
exceeded the terms of Reference.
24) The exact Reference made to the Industrial Tribunal has
already been reproduced above. It is sought to be contended by the
Petitioner that the Reference is for direct absorption of workers in
services of Petitioner as if the workers are its direct temporary workers.
However, the Reference uses the word ‘मुख्य मालकाने’ (by principal
employer). Thus, Petitioner is referred to as ‘principal employer’ in the
Reference made to the Industrial Tribunal. The fact that Petitioner is
branded as principal employer of the workers presupposes that the
workers were being treated as contract workers and there existed a
Contractor between the principal employer and the concerned workers.
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(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
It therefore cannot be contended that the Reference was for decision of
dispute of regularisation/absorption of temporary workers directly
employed by the Petitioner. It also cannot be contended that the
appropriate Government proceeded on an assumption that Petitioner is
the direct employer of the workers. If the appropriate Government was
to proceed on an assumption that members of the Respondent-Union
were directly employed temporary workers seeking absorption,
Reference order would not have used the word ‘principal employer’. It
therefore cannot be contended that the Reference made to the Industrial
Tribunal did not include within its ambit the issue of existence of
employer-employee relationship between the workers and the principal
employer, as was done in case before the Apex Court in Tata Iron and
Steel Company Ltd (supra). The appropriate Government did not
presume nor decided the contentious issue of existence of direct
relationship of employer and employee between the members of the
Respondent-Union and the Petitioner. On the contrary, the Reference
specifically proceeded on an assumption that Petitioner is the principal
employer and called upon Industrial Tribunal to adjudicate whether
members of Respondent-Union could be absorbed in services of the
principal employer.
25) It is also seen that right since the inception of initiation of
proceedings, the Respondent-Union always demanded that the contract
between the Petitioner and Mangal Enterprises was sham and bogus. It
would be appropriate to refer to the relevant contentions raised in
Justification Statement dated 1 September 2012 :
The aforesaid company has made paper arrangement with M/s.
Mangal Enterprises and the names of the concerned workers have
been shown in the muster roll of the said labour contractor. The union
submits that the said labour contractor is sham and bogus. In fact, all
the tools, such as, hammer, noseplayer, fibre, vej, die, forming gauge,
plug gauge, slot machine, coll machine, etc. required for__________________________________________________________________________
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)manufacturing of motors of compressors, supplied by the
company/principal employer i.e. M/s. Emerson Climate Technologies
(India) Ltd. It is submitted that all the concerned workers are working
since last several years continuously, and regularly, however they have
been deprived from the benefits, facilities and wages on par to the
other permanent workers of the company.
(emphasis added)
26) Even before the Conciliation officer, the issue of Mangal
Enterprises being set up as a bogus Contractor was specifically raised and
the said contention has been recorded by the Conciliation Officer in his
failure report dated 21 August 2013. Thus, before and after making of
Reference order dated 20 September 2013, the Petitioner very well knew
that the Respondent-Union had raised the issue of the contract with
Mangal Enterprises being sham and bogus.
27) After noting the exact Reference, the rival parties also filed
pleadings on existence of employer-employee relationship and contract
being sham and bogus. Based on the pleadings filed by the parties, the
Industrial Tribunal framed the following issues :
ISSUES
1 Does the Second Party prove that there is employer-employee
relationship between the parties as alleged?
2 Is reference maintainable?
3 Does the Second Party Union entitled reliefs sought for?
4 Does reference is bad for non joinder of necessary party?
5 Does the Second Party prove that, an agreement took place between First
Party with Mangal Enterprises is sham and bogus?
28) Thus, specific issues relating to existence of employer-
employee relationship as well as the contract being sham and bogus were
raised. Petitioner never objected to framing of these two issues at any
point of time, possibly because it felt that both these issues were clearly
within the ambit of Reference made to Industrial Tribunal. Petitioner
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Kamgar Karmachari Mahasangh)
never contended before the Industrial Tribunal that the said two issues
were outside the term of Reference. Petitioner in fact led evidence on both
the issues without complaining about framing thereof. Therefore, the
Petitioner is now precluded from contending that the Industrial Tribunal
could not have decided the issue of contract being sham and bogus.
29) Thus, both on account of use of the word ‘principal employer’
in the Reference order, as well as understanding on the part of the
Petitioner before and after making order of reference, Petitioner cannot
now contend that the Reference did not cover the aspect of contract being
sham and bogus. The objection sought to be raised by the Petitioner in
this regard is accordingly rejected.
30) Coming to the merits of the case, the Industrial Tribunal
has answered Issue No.1 about existence of employer-employee
relationship in the affirmative. It has also answered the issue of
agreement between the Petitioner and Mangal Enterprises to be sham
and bogus, in the affirmative. The Industrial Tribunal has done an in-
depth analysis of the entire evidence on record while answering Issue
Nos.1 and 5 together. The Industrial Tribunal has taken note of six tests
enumerated by the Apex Court in its judgment in Balwant Rai Saluja
(supra). The six tests enumerated by the Apex Court in the judgment are
as under :
65. Thus, it can be concluded that the relevant factors to be taken into
consideration to establish an employer-employee relationship would include,
inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there exists
complete control and supervision.
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Kamgar Karmachari Mahasangh)
As regards extent of control and supervision, we have already taken note of
the observations in Bengal Nagpur Cotton Mills case , International Airport
Authority of India case and Nalco case .
31) The Industrial Tribunal thereafter proceeded to determine
whether the tests prescribed by the Apex Court in Balwant Rai Saluja
are satisfied in the present case. I proceed to examine the findings
recorded by the Industrial Tribunal vis-à-vis the evidence relating to
satisfaction of the six tests.
32) On the first test of ‘who appoints workers’, the Industrial
Tribunal has taken note of bank account statements of the workers
showing that salary of some of them were deposited in their Accounts
prior to 5 May 2009 by other contractors such as Vedanta and Sahani
Enterprises. Petitioner produced appointment letter issued by Mangal
Enterprises on 5 May 2009 to show as if appointments of all 131 workers
were made on single day i.e. 5 May 2009 by Mangal Enterprises. The
Industrial Tribunal has noted discrepancies in the said appointment
orders, which did not bear signatures of the alleged employer and vital
clauses like salary etc., were found to be blank. The Industrial Tribunal
further took note of the fact that Petitioner did not produce any contract
executed with Mangal Enterprises before 5 May 2009. The Agreement
relied upon by the Petitioner, which is shown to have been executed with
Mangal Enterprises is dated 15 October 2009 and the said Agreement
commenced from 15 October 2009. The Industrial Court has therefore
questioned as to how Mangal Enterprises can appoint workers on
6 May 2009 even before execution of contract with it by the Petitioner.
The proprietor of M/s. Mangal Enterprises, despite being called to
produce original appointment orders, failed to produce the same. He
admitted that the appointment orders were only for the period from
6 May 2009 to 5 December 2009 (3 months) and that no further
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Kamgar Karmachari Mahasangh)
appointment orders were issued to any worker. The Industrial Tribunal
has also questioned as how 131 workers could be appointed on a single
day. To make the case of the Petitioners worse, its witness Shri.
Shashikant Madhukar Shirke admitted in the cross-examination that ‘It is
true to say that First Party has not entered into legal agreement with Mangal
Enterprises in respect of the concerned worker’. The owner of Mangal
Enterprises was cross-examined on the issue of conduct of any selection
process for appointing 131 workers on a single day and he could neither
give any satisfactory answer nor could produce any document evidencing
conduct of such selection process. Considering the above evidence on
record, the Industrial Tribunal has arrived at a finding that the concerned
workers started working with the Petitioner well before the execution of
the alleged contract with Mangal Enterprises. In my view, therefore it is
not satisfactorily proved that Mangal Enterprises had initially appointed
the concerned workers.
33) The above findings also prove the fifth test of ‘whether there
is continuity of service’ as it is established that many of the workers drew
salaries from other contractors as well. Thus, same workers are retained
notwithstanding change of Contractor.
34) So far as Test Nos. 2, 3, and 4 relating to payment of salary,
authority to dismiss and taking disciplinary action is concerned, the
Industrial Court has considered the salary slips and wage registers
produced by Mangal Enterprises. However, its proprietor admitted in the
cross-examination that pay slips did not bear signatures of any
authorised persons of Mangal Enterprises. He has also admitted non-
reflection of signatures of the concerned workers. The Industrial Court
found that the wage registers are in the form of Excel Sheets printed from
the computer and refused to believe that wage registered could have been
maintained on a day-to-day basis by the Contractor. The Industrial
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Kamgar Karmachari Mahasangh)
Tribunal also held that the said documents might have been created
subsequent to filing of the dispute.
35) So far as the test of payment of salary is concerned, the
most vital aspect taken into consideration by the Industrial Court is the
agreements executed between the concerned workers, Mangal
Enterprises and the Petitioner for grant of voluntary retirement. Several
such agreements are on record. The agreements record that the
concerned workers were employed by Mangal Enterprises and are
granted voluntary retirement. Petitioner is party to each of those
agreements. The financial liability under the agreement granting
voluntary retirement is borne by Petitioner and not by Mangal
Enterprises. To illustrate, agreement dated 8 December 2022 records that
Petitioner has paid Rs. 15,00,000/- to the Contractor for being paid to
the concerned worker. If the said worker was not the employee of the
Petitioner, why it paid amount of Rs.15,00,000/- meant for the said
worker towards voluntary retirement scheme is difficult to digest. Any
Voluntary Retirement Scheme postulates award of ex-gratia
payment/compensation for loss of future wages. The compensation/ex-
gratia amount paid to a worker under the Voluntary Retirement Scheme
contains major component towards loss of future wages. In that sense,
the amounts paid to the concerned workers opting for voluntary
retirement contain a component towards future wages. Voluntary
Retirement Scheme is offered by an employer with a view to save
expenses on payment of future salary to its employees and for
downsizing the workforce. If work was not available for a particular
contract worker, Petitioner could have simply called upon the
Contractor not to deploy the concerned worker to work in its factory. If
the worker was rendered jobless on account of the Contractor’s inability
to deploy him elsewhere, it is the Contractor who would either retrench
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Kamgar Karmachari Mahasangh)
him or offer voluntary retirement. It was not Petitioner’s business to pay
compensation/ex-gratia to the workers of Mangal Enterprises.
36) It appears that several of the members of the Respondent-
Union have opted for the VRS floated by the Petitioner. This means that
the Petitioner took into consideration even the number of contract
workers while opting for downsizing of its staff. It is common ground
that the VRS was simultaneously introduced for permanent and
contract workers. If there was no employer-employee relationship, there
was no necessity for Petitioner to launch Voluntary Retirement Scheme
for contract workers. This would mean that the contract workers were
also considered, albeit indirectly, by the Petitioner as part of its
workforce, it decided to downsize the same and hence offered them
package under Voluntary Retirement Scheme. If indeed they were
workers of the Contractor with no semblance of relationship with the
Petitioner, it would not have offered them voluntary retirement and
could have simply asked Mangal Enterprises to stop sending them to its
factory. Far from doing so, Petitioner participated in the Voluntary
Retirement Scheme and became part of the Tripartite Agreement
executed between the concerned workers and Mangal Enterprises. The
entire financial burden towards ex-gratia was borne by the Petitioner.
However, instead of paying the same directly to the worker, Petitioner
handed over the said amount to the Contractor, and the Contractor
apparently paid the same to the concerned worker. This could mean
that the Petitioner paid part of future wages to the concerned workers
by becoming a party to the VRS Agreement. If those workers had
absolutely no relationship with the Petitioner, why would the Petitioner
bear the burden of paying their future wages becomes questionable.
Acceptance of liability to pay future wages in lieu of retirement would
constitute a significant facet of employer-employee relationship.
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37) Mr. Cama has attempted to salvage the situation by relying
on the provisions of Section 30(2) of the Contract Labour (Regulation &
Abolition) Act,1970 (CLRA) in support of his contention that it is always
open to the principal employer to enter into direct agreement with the
contract worker and mere entering into such agreement does not mean
that employer-employee relationship gets established. Section 30 of the
CLRA provides thus :
30. Effect of laws and agreements inconsistent with this Act:
(1) The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law or in
the terms of any agreement or contract of service, or in any
standing orders applicable to the establishment whether made
before or after the commencement of the Act:
PROVIDED that where under any such agreement, contract of service
or standing orders the contract labour employed, in the establishment
are entitled to benefits in respect of any matter which are more
favourable to them than those to which they would be entitled under
this Act, the contract labour shall continue to be entitled to the more
favourable benefits in respect of that matter, notwithstanding that they
received benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed as precluding any
such contract labour from entering into an agreement with the
principal employer or the contractor, as the case may be, for granting
them rights or privileges in respect of any matter which are more
favourable to them than those to which they would be entitled under
this Act.
38) In my view, provisions of sub-section (2) of Section 30 of
CLRA are aimed at protecting a beneficial agreement entered into by a
contract worker with principal employer from being declared void
under the provisions of the Act. Thus, if the contract worker and the
principal employer agree to provide better terms of employment,
provisions of CLRA Act do not come in the way. However,
permissibility for principal employer to enter into direct contract with
contract labourer is a different aspect from the effect that arises out of__________________________________________________________________________
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)the act on the part of the duo in entering into such direct agreement. To
illustrate, it is permissible for principal employer to enter into a contract
with the contract labourer to pay higher amount of salary or even to pay
salary directly to the contract worker. Such a contract would not be void
under the provisions of CLRA. However, if the principal employer
chooses to enter into a contract directly with a contract labourer for
providing more beneficial terms of employment, the effect of such
agreement on satisfaction of six tests prescribed by the Apex Court in
Balwant Rai Saluja does not get obliterated. Therefore, seeing in the
light of the provisions of Section 30 of the CLRA, the tripartite
agreement for VRS executed between the contract worker, Mangal
Enterprises and Petitioner would be valid in the eyes of law. However,
the effect of execution of such agreement for satisfaction of six tests
prescribed in Balwant Rai Saluja would continue to operate.
39) In my view, therefore the act on the part of the Petitioner in
entering into an agreement for VRS with the contract workers together
with bearing of financial burden towards offering ex-gratia payment
containing component of future wages, would conclusively prove
existence of direct employer-employee relationship between the
Petitioner and the concerned workers.
40) So far as the test of disciplinary action and dismissal is
concerned, Petitioner could not produce any document to show that any
contract worker was subjected to any disciplinary proceedings or
dismissed from service by Mangal Enterprises prior to raising of the
dispute in the year 2012. The Industrial Court has rightly held that the
Petitioner has resorted to creation of record of dismissal by a Contractor
during pendency of the Reference. Also, Petitioner has participated in
the process of cessation of services of some of the contract workers by__________________________________________________________________________
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(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)becoming party to the VRS Agreements. It has borne the financial
burden towards VRS. It has decided when they would retire and how
they would retire. It applied contemporaneously introduced VRS
scheme meant for its own permanent employees to the contract workers
as well. It thus participated in the decision of cessation of services of
contract workers.
41) So far as the aspect of supervision and control is concerned,
Mr. Patil has strenuously relied on Skill Matrix Record which shows
that performance of the contract workers was routinely supervised by
the permanent employees of the Petitioner. Additionally, there are
several inspection reports produced before the Industrial Tribunal
showing continuous supervision and control over contract workers by
the Petitioner. This is not a case where a contract was issued for
performance of a specific job work. The case involves continuous
employment of members of the Respondent-Union for the past 16 long
years where they enter the factory of the Petitioner daily and perform
same work along with the permanent workers. Some stray admission
extracted during cross-examination about names of supervisors of the
contractors would not mean that there was absolutely no supervision
and control by the supervisors of the Petitioner. Also, the fact that the
Petitioner agreed to bear the financial burden of paying ex-gratia
amounts to the contract workers by becoming party to the tripartite
agreements would again suggest complete control of the Petitioner on
contract workers. It is the Petitioner who decided how much amount
was to be paid towards VRS.
42) In my view, therefore majority of the tests, if not all,
prescribed by the Apex Court in its judgment in Balwant Rai Saluja
are satisfied in the present case.
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43) So far as the contracts executed with Mangal Enterprises
are concerned, Petitioner could produce only two contracts in respect of
its establishment at Karad. The first contract is dated 15 October 2009
for the period form 15 October 2009 till 31 December 2010. The second
contract is for the period from 1 January 2012 to 31 December 2013.
Thus, there is no contract during gap period from 1 January 2011 to 31
December 2011. After 31 December 2013, no contract is produced
concerning establishment at Atit. The contract for the period from
3 March 2014 to 31 March 2015 is in respect of Chakan plant and not in
respect of the factory at Atit. Petitioner has thus thoroughly failed to
prove continuous existence of contracts with Mangal Enterprises, under
which the Contractor could have provided labourers to the Petitioner’s
establishment.
44) Mr. Cama has relied upon certain documents in support of
his contention that Mangal Enterprises was the real employer of the
contract workers. There is only one leave application dated
17 September 2013 relied upon by the Petitioner, authenticity of which
is questioned by Mr. Patil. It is unbelievable that Mangal Enterprises
had received only one leave application in respect of 131 workers who
worked for about four long years prior to registration of the dispute. So
far as the documents relating to disciplinary action and dismissal are
concerned, the same are post raising of demand by the Respondent-
Union. The wage register produced before the Industrial Tribunal is a
mere printout of Excel Sheets, and it is difficult to believe that the same
were contemporaneously maintained. Reliance is placed on insurance
policies in the name of Mangal Enterprises, but the same are for the
purpose of providing housekeeping services by Mangal Enterprises.
None of the members of the Respondent-Union are engaged to perform
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housekeeping services. Reliance on PF and ESIC challans does not cut
any ice as the PF and ESIC contributions are routed through Mangal
Enterprises as the Petitioner followed the system of rerouting salaries
through Mangal Enterprises.
45) Mr. Cama has sought to contend that two workers could
not have deposed on behalf of all the 131 contract workers. He has
relied on judgments in Glasstech Industries (India) Pvt. Ltd. Raigad
(supra) and Force Motors (supra). The Reference was made at the
instance of Respondent-Union espousing the cause of 131 workers. The
Reference was thus being persecuted by the Union in a representative
capacity and it was not necessary for all 131 workers to step into the
witness box and depose in support of their claims. Evidence by some of
the workers was sufficient in the facts and circumstances of the present
case.
46) The conspectus of the above discussion is that no element
of perversity can be traced in the findings recorded by the Industrial
Tribunal holding that there is direct employer-employee relationship
between the Petitioner and the concerned contract workers and that the
contract shown to have been executed with Mangal Enterprises is sham
and bogus.
47) The next issue for consideration is the nature of relief that
could have been granted in favour of the Respondent-Union. Though
initially Respondent-Union was espousing the cause of 131 contract
workers, it appears that several of them have opted for voluntary
retirement or are no longer in service for various reasons. As of now,
only 64 members of the Respondent-Union continue to work with the
Petitioner. No doubt, their continuation is owing to interim orders
passed in their favour from time to time. They have been working with
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Kamgar Karmachari Mahasangh)
the Petitioner for the last 16 long years. In my view, therefore they
deserve to be absorbed as permanent employees of the Petitioner
establishment. The Industrial Tribunal has granted permanency from
the date of order of Reference i.e. 20 September 2013. This would mean
that dismissed workers would be entitled to monetary benefits from
20 September 2013 till the dates of their dismissal. Though the
Industrial Tribunal has attempted to strike a balance by seeking to
reduce the financial burden of the Petitioner, in my view, it has not
walked full path and has directed permanency from 20 September 2013.
If indeed the Industrial Tribunal wanted to reduce the financial burden
on the Petitioner, by striking a balance, it ought to have directed
permanency from the date of the Award and not from the date of
Reference. The Industrial Tribunal ought to have taken note of the
position that obtained as on the date of making of the Award. Almost
50% of the workers are no longer working. It would be unjust to make
the Petitioner bear the burden of paying them difference of wages to
those workers, who have retired or have been dismissed from service.
The benefit of permanency ensures that the nature of employment gets
converted from temporary to permanent. The present case involves a
twin process of first establishing a direct employer-employee
relationship and thereafter awarding the benefit of permanency. Mere
establishment of direct employer-employee relationship does not
directly result in grant of benefit of permanency. Upon establishment of
such direct employer-employee relationship, the erstwhile contract
workers would only become temporary workers of the employer. The
next stage is to decide their entitlement for permanency. In my view,
considering the unique facts and circumstances of the present case, it
would be too iniquitous to put the financial burden on the Petitioner to
pay difference of wages to even 64 continuing workers during the past
12 long years. It has come on record that the Petitioner has made
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conscious efforts for downsizing the staff, both permanent as well as
contractual. Considering this position, in my view, it would be
appropriate to grant the benefit of permanency to the 64 workers
currently working from the date of the Award. In fact, during the course
of hearing of the petition, a fair suggestion was given on behalf of the
Respondent-Union that it was willing to give up some part of claim of
difference of wages from the date of Reference till today. Noting this fair
conduct on the part of the Respondent-Union, I am of the view that
ends of justice would meet in the present case, if the currently working
members of the Respondent-Union are granted permanency from the
date of the Award.
48) I accordingly proceed to pass the following order:
(i) The impugned Award dated 30 March 2024
passed by the Industrial Tribunal in Reference
(I.T.) No.5/2013 is modified.
(ii) It is directed that only currently functioning
members of the Respondent-Union shall be
made permanent employees of the Petitioner
from the date of the Award i.e. w.e.f. 30 March
2024.
(iii) They shall be extended all the benefits of
permanent employees and be paid the
difference in wages from 30 March 2024
onwards within 8 weeks.
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Neeta Sawant Writ petition-3761-2025-FC
(Emerson Climate Technologies (I) Pvt. Ltd. Co. V/s. Bhartiya
Kamgar Karmachari Mahasangh)
49) Writ Petition is partly allowed to the above extent. There
shall be no order as to costs.
Digitally [Sandeep V. Marne, J.]
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.05.06
11:31:06
+0530
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