Baburao Dadarao Kolhe And Ors. vs State Of Maharashtra And Ors.
2004 Latest Caselaw 64 Bom

JUDGMENT

A.P. Deshpande, J.

1. Rule. Rule made returnable forthwith by consent of parties.

2. The present petition has been filed in a representative capacity for and on behalf of the workers, working with the third respondent - Godavari Dudhana Sahakari Sakhar Karkhana, which has gone in liquidation. The order passed in this petition relates to all the employees, who were in the employment of the respondent No. 4 and who had initiated proceeding before Industrial Court, for claiming arrears of wages, by filing the Complaint under Section 28, Sub-section (1) read with item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

Initially, on 18-9-2001, 243 workers filed a complaint under Section 28, read with item 9 of Schedule IV, of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (Hereinafter referred to as M.R.T.U. and P.U.L.P. Act, 1971) before the Industrial Court, making a demand as regard to their wages for about sixty months, which according to the employees, were not paid by the third respondent, as they were facing the financial crunch. Similar complaints came to be filed by 108 employees on 12-10-2001 and subsequent thereto, again about 7 persons filed similar complaints before Industrial Court. The Industrial Court, on hearing the application, seeking interim relief, had issued direction to the respondent No. 3 to deposit the amount of outstanding wages in the Court. The respondent No. 3 did not and could not comply with the said order. On 20th March 2002, the second respondent, Commissioner of Sugar, State of Maharashtra, passed an order of winding up of the respondent No. 3, Karkhana, as it happened to be a society. Since passing of the said order, the assets of the third respondent are in possession of the Liquidator, through whom, the third respondent is being sued in this petition. The interim orders passed by Industrial Court were challenged by the third respondent by filing Writ Petition before the learned Single Judge of this Court and the said petition came to be disposed of without granting any relief to the third respondent. In another Petition, bearing Writ Petition No. 2838 of 2002, by an order dated 30-1-2003, which petition was filed by respondent No. 3, challenging the maintainability of the complaints on the file of the Industrial Court this Court directed the present petitioners to move an application before the Industrial Court and seek permission to implead the respondent No. 3 as party -respondent in the said proceedings. When the present petitioners moved the Industrial Court, industrial Court rightly directed the present petitioners to move the respondent No. 2 to obtain leave of the Registrar pursuant to the provision contained in Section 107 of the Maharashtra Co-operative Societies Act, 1960. The present petitioners moved the respondent No. 2, Registrar and sought his permission to implead the society through the Liquidator as a party - respondent in the proceeding pending on the file of Industrial Court. The rejection of the said application, moved by the petitioners before the respondent No. 2, has given a cause for the petitioners to file the instant petition, calling in question the legality, validity and propriety of the order, passed by the respondent No. 2, dated 1-9-2003.

3. It is not in dispute that the petitioners were in employment of the respondent No. 3 and were not paid their salaries for quite a long time, as the financial position of the respondent No. 3 was hopelessly bad. The petitioners -workmen were justified in moving the Industrial Court, claiming the amount of wages. During pendency of the said proceedings, as an order of winding up came to be passed, the question of seeking leave of the second respondent arose by virtue of provisions of Section 107 of the Maharashtra Co-operative Societies Act, 1960. Perusal of the order impugned reveals that the said order is a very cryptic order and the only ground stated therein for rejecting the application is that, if permission is granted to implead the society through the Liquidator as respondent before the Industrial Court, the same would result in putting in motion two proceedings, one before the Industrial Court and another before the Liquidator. What we find is that, if the proceedings before the Industrial Court wherein the petitioners are claiming arrears of wages, are permitted to be concluded after impleading third respondent, as an opponent before the Industrial Court, the decision of the Industrial Court would crystalise the rights of the present petitioners and in that situation, the Liquidator would not be called upon to make any adjudication in regard to either the period, for which the petitioners have worked and/or in regard to actual amount, which the petitioners are entitled to receive from the third respondent. In this view of the matter in our opinion, there would be no possibility of two authorities, adjudicating on the same issue. An adjudication by a judicial forum, in matters pending prior to the passing of the order of winding up, would be desirable. In our opinion, the reasons put forth by the second respondent for rejecting the application, moved by the petitioners, under Section 107 of the Maharashtra Co-operative Societies Act, 1960, are unsustainable in law. In such a situation, we are of the view that as a matter of course, the Registrar ought to have granted permission, prayed for by the petitioners under Section 107 of the Maharashtra Co-operative Societies Act, 1960. Our attention is invited to a Judgment, reported in 2002 III CLR 981, wherein a Division Bench of this Court has doubted the very need for seeking leave of the Registrar under Section 107 of the Maharashtra Co-operative Societies Act, 1960, for prosecuting complaints under M.R.T.U. and P.U.L.P. Act, 1971. We too voice our doubt about the application of Section 107 to the proceedings pending on the file of the Industrial Court, under the provisions of M.R.T.U. and P.U.L.P. Act, 1971. The Division Bench in the said Judgment, which is rendered in similar situation, held that as a matter of course, the Registrar ought to have granted permission. We are in respectful agreement with the view taken by the Division Bench.

In our opinion, for the reasons set out hereinabove, the Registrar ought to have granted the leave, prayed for by the petitioners, for proceeding against the third respondent through the Liquidator. We make it clear that the proceedings pending on the file of Industrial Court would culminate in crystalising the exact amount to which, each of the petitioners is entitled to receive from the respondent No. 3 - employer. Once that is over, it would be for the Liquidator to satisfy the claims of the petitioners on the basis of the order passed by the Industrial Court. The Liquidator need not and shall not proceed to adjudicate the individual claims of the present petitioners. No doubt, the Liquidator is free to dispose of the assets of the third respondent with a view to wind up the third respondent sugar factory and from the proceeds that he receives, the claims of the petitioners could be satisfied. It is not in dispute that the petitioners claim would stand at the first priority. It is possible that the assets of the society may be disposed of in a phased manner and as such, the entire amount may not be available to satisfy the claims of all the petitioners, in one stroke and hence, it is made clear that if the amount falls short of the total dues of the petitioners, then in that event, Liquidator may proceed to satisfy the claims of the petitioners at pro rata basis. In our view, the cause of justice would advance by setting aside the order impugned in this petition, passed by the second respondent, refusing leave, as prayed for by the petitioners under Section 107 of the Maharashtra Co-operative Societies Act, 1960 and by permitting the petitioners to implead the third respondent through the Liquidator as a party respondent in the proceedings pending on the file of Industrial Court. Hence, we pass the following order :

The impugned order dt. 1-9-2003, passed by the second respondent, refusing leave, as prayed for by the petitioners, under Section 107 of the Maharashtra Cooperative Societies Act, 1960, is quashed and set aside. The said application stands allowed. The petitioners are permitted to implead the third respondent society through the liquidator, as a party respondent, in the proceedings pending on the file of the Industrial Court.

Rule made absolute in above terms. There shall be no order as to costs.

Authentic copy of this Judgment be supplied to the parties.