Bombay High Court
Sudhakar Mangesh Patil And Others vs P K Anna Patil Janta Sahakari Bank ... on 5 December, 2016
Bench: R.V. Ghuge
*1* 5.6.wp.8885.8886.16.con
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8885 OF 2016
1 Sudhakar Mangesh Patil,
Age : 61 years, Occupation : Nil,
R/o Deopur, Dhule.
2 Vitthal Motiram Marathe,
Age : 51 years, Occupation : Nil,
R/o Rajale, Tal. & Dist.Nandurbar.
3 Suresh Deoram Marathe,
Age : 58 years, Occupation : Nil,
R/o 43, Akash Mogra Nagar,
Nalwa Road, Nandurbar.
4 Nitesh Shrikrishnadas Shah,
Age : 52 years, Occupation : Nil,
R/o Plot No.341, Desaipura,
Nandurbar.
5 Keshav Murlidhar Patil,
Age : 60 years, Occupation : Nil,
R/o Tajpuri, Tal.Shirpur,
District Dhule.
6 Devasingh Ramsingh Girase,
Age : 62 years, Occupation : Nil,
R/o Osarlai, Post Kuparli,
Tal. and Dist.Nandurbar.
7 Ravindra Shivlal Nikam,
Age : 63 years, Occupation : Nil,
R/o Chincgavan, Tal.Chalisgaon,
District Jalgaon.
...PETITIONERS
-VERSUS-
1 Shri P.K.Anna Patil Janta Sahakari
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 00:49:15 :::
*2* 5.6.wp.8885.8886.16.con
Bank Ltd. (under liquidation).
Having office at Near Railway Bridge,
Taloba Road, Nandurbar,
District Nandurbar.
2 The President,
Liquidator Board,
Shri P.K.Anna Patil Janta Sahakari
Bank Ltd.
Having office at Taloba Road,
Nandurbar, District Nandurbar.
...RESPONDENTS
ig WITH
WRIT PETITION NO. 8886 OF 2016
1 Rajan Vishnu Chauk,
Age : 55 years, Occupation : Nil,
R/o House No.1355, Galli No.5,
Nagar Patti, Dhule.
2 Chabulal Ramdas Patil,
Age : Major, Occupation : Nil,
R/o Plot No.7, Kedar Nagar,
Deopur, Dhule.
3 Sachin Deosingh Jadhav,
Age : 51 years, Occupation : Nil,
R/o Tulshiram Nagar,
Deopur, Dhule.
4 Vasant Ghaman Patil,
Age : 53 years, Occupation : Nil,
R/o 94, Sudarshan Nagar, Deopur,
Dhule.
5 Sanjay Ramkrushna Kothawade,
Age : 48 yeas, Occupation : Nil,
R/o Rathgalli, Songir,
Taluka and District Dhule.
...PETITIONERS
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 00:49:15 :::
*3* 5.6.wp.8885.8886.16.con
-VERSUS-
1 Shri P.K.Anna Patil Janta Sahakari
Bank Ltd. (under liquidation).
Having office at Near Railway Bridge,
Taloba Road, Nandurbar,
District Nandurbar.
2 The President,
Liquidator Board,
Shri P.K.Anna Patil Janta Sahakari
Bank Ltd.
Having office at Taloba Road,
Nandurbar, District Nandurbar.
ig ...RESPONDENTS
...
Advocate for Petitioners : Shri Patil Shrikant S.
Advocate for Respondents : Shri V.D.Hon, Senior Advocate a/w Shri Hon
Ashwin V..
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 05th December, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 In the first Writ Petition No.8885/2016, the Petitioners are
aggrieved by the judgment of the Industrial Court dated 27.04.2015 by
which Complaint (ULP) Nos.43/2010, 33/2011, 48/2011, 50/2011,
77/2011, 79/2011 and 81/2011 filed by the respective Petitioners have
*4* 5.6.wp.8885.8886.16.con
been dismissed for two reasons. Firstly that, the permission of the
Registrar of Cooperative Societies was not obtained to lodge the
complaints considering the bar of Section 107 of the Maharashtra
Cooperative Societies Act, 1960 and secondly, the claim of the Petitioners
for unpaid dues is delayed and the complaints are not maintainable.
3 In the second Writ Petition No.8886/2016, the Petitioners are
aggrieved by the judgment and order dated 27.04.2015 by which the
Industrial Court has dismissed Complaint (ULP) Nos.37/2010, 39/2010,
47/2010, 55/2011 and 57/2011 filed by the respective Petitioners on the
ground that the claim for dearness allowances was a stale claim and the
complaints were untenable, notwithstanding that the Registrar of
Cooperative Societies has accorded permission.
4 I have considered the submissions of Shri Patil, learned
Advocate for the Petitioners and Shri Hon, learned Senior Advocate for the
Respondents. Considering the fact that all the Petitioners are identically
placed and the employees of the same Respondent Establishment, these
petitions are heard together by consent of the parties.
5 Shri Hon has strenuously submitted that the bar of Section
107 of the Maharashtra Cooperative Societies Act, 1960 prevents any civil
*5* 5.6.wp.8885.8886.16.con
litigation or any other litigation against an entity which has already gone
into liquidation. Unless the Registrar of Cooperative Societies does not
accord his permission, no litigant can file a complaint or suit or initiate
any litigation against any entity which is in liquidation.
6 Shri Hon has relied upon the judgment of the learned Single
Judge of this Court in the matter of Sadashiv K. Sutar vs. Kolhapur Zilla
Janata Sahakari Bank Limited, 2004(2) BCR 111 : 2004(2) All M.R. 115,
to support his contention that once the bar of Section 107 of the
Maharashtra Cooperative Societies Act, 1960 is attracted, the complaints
under the MRTU & PULP Act, 1971 would be untenable in law. He has
further stated that as the stale disputes have been raised, the complaints
were barred by limitation and as such, the Industrial Court has rightly
dismissed both the groups of complaints.
7 Shri Patil submits that the order of appointing the Liquidator
is dated 06.01.2009. The complaints were lodged in December, 2010. The
Petitioners were in service till 14.05.2011 when they were terminated. As
such, notwithstanding the appointment of the Liquidator, the business
activities of the Respondent Bank continued and it was after about two
years and four months that they were terminated. He further submits that
it was under the orders of this Court that the retrenchment compensation
*6* 5.6.wp.8885.8886.16.con
of these Petitioners was paid by the Respondent.
8 Section 107 of the Maharashtra Cooperative Societies Act,
1960 reads thus:-
"107. Bar of suit in winding up and dissolution matters.
Save as expressly provided in this Act, no Civil
Court shall take cognizance of any matter connected
with the winding up or dissolution of a society under
this Act; and when a winding up order has been made
no suit or other legal proceedings shall lie or be
proceeded with against the society or the liquidator,
except by leave of the Registrar, and subject to such
terms as he may impose:
Provided that, where the winding up order is
cancelled, the provisions of this section shall cease to
operate so far as the liability of the society and of the
members thereof to be sued is concerned, but they
shall continue to apply to the person who acted as
Liquidator."
9 It is trite law that the claims as regards unpaid wages or any
component of wages or any such amounts which the employer was under
a legal obligation to pay, would amount to a recurring cause of action. The
failure to pay such amounts can be rectified by the employer by making
the payment even after a passage of time from the date the amount was
due and payable. Item 9 of Schedule IV of the MRTU & PULP Act, 1971
can, therefore, be invoked in the matters of such nature.
10 In the light of the above, the impugned judgment by which
*7* 5.6.wp.8885.8886.16.con
Complaint (ULP) Nos.37/2010, 39/2010, 47/2010, 55/2011 and 57/2011
were dismissed by the Industrial Court only for the reason of delay, is an
erroneous order. Increments or bonus or dearness allowances or any
component of wages will have to be paid by the employer as long as it is
due and payable and failure to pay over a considerable period of time,
would give the aggrieved employees a cause of action. As such, the second
Writ Petition is allowed. The judgment of the Industrial Court dated
27.04.2015 is quashed and set aside and Complaint (ULP) Nos.37/2010,
39/2010, 47/2010, 55/2011 and 57/2011 and others are remitted to the
Industrial Court on the conditions which I would set out in the later part
of this judgment.
11 Insofar as the first petition in which Complaint (ULP)
Nos.43/2010, 33/2011, 48/2011, 50/2011, 77/2011, 79/2011 and
81/2011 and others are concerned, as a recurring cause of action is
involved, the complaints would, therefore, be tenable. Insofar as the bar of
Section 107 is concerned, an earlier judgment of the learned Division
Bench of this Court in the matter of Waman Vyenkatesh Ruikar vs.
Registrar, Cooperative Societies, Maharashtra State, Pune, 2002 III CLR
981, was not cited before the learned Single Judge of this Court in
Sadashiv Sutar case (supra). The learned Division Bench in Waman Ruikar
case (supra) has concluded as under:-
*8* 5.6.wp.8885.8886.16.con
"The petitioner has challenged the order dated
31.08.2000 passed by the Industrial Court, Kolhapur
setting aside the order of Labour Court and directing
the petitioner to seek permission of respondent No.1
under Section 107 of the Maharashtra Cooperative
Societies Act before proceeding with the complaint
against the termination under the MRTU & PULP Act,
1971. He has also challenged the order of respondent
No.1 dated 29.01.2002 refusing permission under
Section 107 of the Maharashtra Cooperative Societies
Act.
It is doubtful whether such a permission would
be necessary for prosecuting the proceeding under the
MRTU & PULP Act, 1971. In any event, it is
impossible to sustain the order of respondent No.1
refusing permission to the petitioner to prosecute the
complaint against termination under MRTU and
PULP Act. No reasons whatsoever are assigned for
refusing the permission. We do not see any ground to
reject such permission, which ought to have been
granted as a matter of course.
Accordingly, we quash and set aside the order
of 1st respondent dated 29.01.2002 and direct the 1st
respondent to issue the permission to the petitioner
under Section 107 of the Maharashtra Cooperative
Societies Act within four weeks from today.
The hearing of the complaint before the Labour
Court is expedited. The Labour Court is directed to
dispose of the complaint as expeditiously as possible
and in any event within four months from the date of
producing the permission under Section 107.
Parties to act on a copy of this order duly
authenticated by the Sheristedar of this Court."
12 It is, therefore, apparent that the learned Division Bench set
aside the order of the lower Court as well as the order of the Registrar of
Cooperative Societies refusing permission, by concluding that it was
doubtful whether, such permission was necessary at all for prosecuting the
*9* 5.6.wp.8885.8886.16.con
proceedings under the MRTU & PULP Act, 1971. It is further held that in
any event, the Registrar ought to grant permission.
13 In a subsequent judgment dated 20.01.2004 delivered by the
learned Division Bench of this Court in the matter of Baburao Dadarao
Kolhe and others vs. State of Maharashtra and others, 2004 (2) Mh.L.J.
898, it was held that it was always desirable that the Industrial Court
should decide the claims of arrears of wages so as to crystallize the rights
of the claimants. The Liquidator would not be able to do so and the two
authorities cannot adjudicate on the same issue. The learned Division
Bench was of the view that adjudication by a judicial forum would always
be desirable. The view taken in Waman Ruikar case (supra) was followed.
The Registrar was directed to be added as a party and the Industrial Court
was directed to decide the said proceedings so as to crystallize the rights
of the claimants.
14 Paragraph 3 of the judgment of the learned Division Bench in
Baburao Kolhe case (supra) reads as under:-
"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
*10* 5.6.wp.8885.8886.16.con
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,
*11* 5.6.wp.8885.8886.16.con
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
*12* 5.6.wp.8885.8886.16.con
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."
ig (Emphasis supplied)
15 It is obvious that neither of the litigating sides have cited the
two judgments of the learned Division Bench of this Court in Waman
Ruikar case (supra) and Baburao Kolhe case (supra) before the Industrial
Court, Dhule. Had these two judgments been cited, the Industrial Court
would have been better assisted in deciding the complaints. As proper
assistance was not rendered to the Industrial Court, it was deprived of the
support of the view taken by the learned Division Bench in the said two
judgments.
16 Considering the above, the first Writ Petition is also partly
allowed. Complaint (ULP) Nos.43/2010, 33/2011, 48/2011, 50/2011,
77/2011, 79/2011 and 81/2011 and others are remitted to the Industrial
Court, Dhule.
*13* 5.6.wp.8885.8886.16.con
17 In the light of the above, both the groups of complaints are
remitted to the Industrial Court, Dhule on the following conditions:-
(a) The litigating sides shall appear before the Industrial Court
on 22.12.2016 in the two groups of Complaint (ULP)
Nos.37/2010 and 43/2010 and connected complaints.
(b) Formal notices need not be issued by the Industrial Court.
(c) Since the permission has already been granted in the group of
Complaint (ULP) No.37/2010 and others, by the Registrar of
Cooperative Societies, the Petitioners shall array the
concerned Liquidator in the group of Complaint (ULP)
No.43/2010 and others, if not already added.
(d) As the Registrar of Cooperative Societies has already
accorded permission to one group of Petitioners, the same
shall be deemed to have been granted in all the complaints.
(e) Considering the contention of the Respondent that
considerable unpaid amounts have been paid, the Industrial
Court shall decide both the groups of Complaints on their
own merits by taking into account the claims of the
Petitioners and the contention of the Respondent about some
amounts having been paid.
(f) The Industrial Court shall decide both the groups of
*14* 5.6.wp.8885.8886.16.con
complaints and crystallize the claims of the workers.
(g) After the judgments in both the groups of complaints are
delivered by the Industrial Court, the Liquidator shall act
upon the said judgments for causing the payment of unpaid
dues with interest if granted.
18 Rule is made partly absolute in both these petitions, in the
above terms.
kps (RAVINDRA V. GHUGE, J.)
