Existence of an ‘employer-employee’ relationship is a sine qua non for protection under Section 33 of Industrial Disputes Act, 1947

Bombay High Court: A Single Judge Bench comprising of S.C. Gupte, J. allowed a writ petition filed by ‘IDBI Bank Ltd.’ and dismissed the order of the Central Government Industrial Tribunal (Mumbai) passed in an application preferred by the respondent- workers union under Section 33 of Industrial Disputes Act, 1947.

The petitioner-Bank outsourced its non-core activities like house-keeping to a couple of contractors. The contractors further engaged the services of respondent workers. The services of three of the workers were terminated by the contractors in the year 2005. An industrial dispute was raised against the petitioner Bank. The matter which travelled to the High Court was dismissed on the ground that no employer-employee relationship existed between the parties. In 2012, the demand of the respondent workers for regularisation of service met with the same fate. Subsequently, in 2017, the respondent workers filed another application demanding status quo of their service conditions. The Tribunal, vide the impugned order, granted the application. Aggrieved by the same, the Bank filed the instant petition.

The High Court perused the record and noted that the factum of the workers’ employed by the contractor, was established. The Court rejected the submission made on behalf of the respondent workers that they were entitled to the relief of status quo as the Industrial Court has powers to pass an interim order pending the adjudication of a reference under Section 33. The High Court observed, before any industrial adjudicator makes any order under Section 33 for maintenance of service conditions, it must be found that at least prima facie the person alleged to be an employer and against whom an order under Section 33 is sought, is really the employer of the applicant-workmen. Since the employer-employee relationship was not established between the parties, the High Court held that order of the Tribunal was preposterous. Holding that the impugned order suffered from jurisdictional error, the High Court held that the same could not be sustained. Accordingly, the petition was allowed and the impugned order was set aside. [IDBI Bank Ltd. v. Bhartiya Kamgar Sena,2018 SCC OnLine Bom 1285, decided on 15-06-2018]

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