Bombay High Court

Marathwada Rashtriya Mill ... vs The Director, Office Of The ... on 29 July, 2016

Bench: R.V. Ghuge

                                        1




                                                                         
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                 
                          WRIT PETITION NO.9539 OF 2011
                                       WITH
                        CIVIL APPLICATION NO.11836 OF 2012
                                       WITH




                                                
                        CIVIL APPLICATION NO. 6989 OF 2016
                                       WITH 
                        CIVIL APPLICATION NO.10778 OF 2016




                                      
    Marathwada Rashtriya Mill Mazdoor Sangh
    Representative and approved Union for
                              
    Cotton Textile Industrial for local area of 
    Aurangabad, Latur and Nanded under
    The B.I.R. Act (Affiliated to INTUC)
    Having its office at Khadkeshwar Aurangabad
                             
    Through its President,
    Mr.Vithal S/o Sadashiv Kadam,
    Age-60 years, Occu-Service,
    R/o Khadkeshwar, Aurangabad,
      

    Dist. Aurangabad 
                                                             PETITIONER
   



    VERSUS 

    1. The Director,





        Office of the Directorate, Handloom Powerloom,
        and Co-operative Textiles,
        Old Secretariat Building, Opp. G.P.O.
        Nagpur, Tq. and Dist. Nagpur,

    2. The Liquidator,





        Aurangabad District Cotton Growers
        Co-operative Spinning Mills Ltd., 
        Garkheda, Aurangabad,
        Office at CIDCO, Administrative Building,
        CIDCO, Aurangabad,
    3. The Divisional Commissioner,
         and the President,
         Divisional Sports Complex,
         Officer of Divisional Commissioner,

    khs/JULY 2016/9539-d




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         Delhi Gate, Aurangabad,
         Tq. and Dist. Aurangabad                                      RESPONDENTS

Mr.M.R.Andhale, Advocate for the petitioner. Mr.S.W.Munde, AGP for the respondent/State. Mr.Deelip Patil Bankar, Advocate for respondent No.2.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 29/07/2016

ORAL JUDGMENT :

Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner/Union has filed a civil application praying for

directions that the amount collected from the private persons

towards the development of the land be deposited in this Court.

There is another civil application by which the Union prays for a

direction to the non-applicant to deposit Rs.2,54,52,357/-.

3. While considering the civil applications, it is revealed that this

writ petition filed by the Union pending in the Court, could be

decided. Learned Advocates, therefore, graciously agreed to address

the court on the main issue and hence this petition is taken up for

final hearing.

khs/JULY 2016/9539-d

4. I have heard the learned Advocates for quite some time.

Mr.Patil appearing on behalf of the liquidator and the learned AGP,

appearing on behalf of respondent Nos. 1 and 3 have strenuously

opposed the petition. It is vehemently contended that the impugned

judgment is legal and proper and therefore the dismissal of

Complaint (ULP) No.108/2006 by the Industrial Court on 21/07/2011

does not call for any interference.

5. Both the learned Advocates have vehemently submitted that

the Complaint filed by the petitioner was not maintainable in view of

Section 107 of the Maharashtra Co-operative Societies Act, 1960 as

the demand of purported dues towards unlawful closure of the

spinning mill are issues touching the business of the society. Hence,

unless the permission of the Registrar is not obtained u/s 107 of the

Maharashtra Co-operative Societies Act, 1960, the Industrial Court

would not have the jurisdiction to entertain the complaint.

6. Notwithstanding the strenuous submissions of Mr.Patil and the

learned AGP, I am afraid that the said submissions cannot be

entertained.

7. It is settled that the demand for wages or legal dues towards

khs/JULY 2016/9539-d

payments flowing from the service conditions of the workmen, is not

an issue touching the business of the society. The learned Division

Bench of this Court in the matter of Baburao Dadarao Kolhe Vs.The

State of Maharashtra and others, [2004(2) Mh.L.J. 898] has relied

upon an earlier Division Bench judgment of this Court and

concluded that in the matters of claim for wages or similar claims

put forth by the workmen, would not require the permission of the

Registrar for initiating proceedings under Labour Laws.

8. The learned Division Bench of this Court in the matter of

Waman Vyenkatesh Rulkar Vs. Registrar, Co-operative Societies,

Maharashtra State, Pune and others [2002(III) CLR 981], doubted the

very need for seeking leave of the Registrar u/s 107 for prosecuting

complaints under the MRTU and PULP Act, 1971. As such, the

learned Division Bench in the case of Baburao Dadarao Kolhe

(supra), has observed in paragraph No.3 as "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."

9. This Court, therefore, concluded by expressing a doubt as to

whether such a permission was at all required for initiating such

khs/JULY 2016/9539-d

proceedings, by observing that "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 u/s 107 of

the Maharashtra Co-operative Societies Act, 1960 for prosecuting the

complaints under the MRTU and PULP Act. 1971. We, too, voice our

doubts about the application of Section 107 to the proceedings pending

on the file of the Industrial Court under the provisions of the MRTU and

PULP Act, 1971."

10. In so far as the challenge to the closure is concerned, I find

that the Industrial Court has erroneously concluded that the issue of

closure cannot be gone into by the Industrial Court. Once the

closure has been effected, depending upon the applicability of

Chapter V-B of the I.D.Act 1947, the legality of the closure can be

gone into by the Industrial Court. Ultimately, if the closure is held to

be illegal, the Industrial Court, upon facts of the case, may not direct

the reopening of the factory or industry, but can surely quantify

compensation considering the effect of Section 25-O of the I.D.Act

r/w 30(2) of the 1970 Act.

11. However, there is a different angle to this case. There is no

khs/JULY 2016/9539-d

dispute that the petitioner/Union has arrived at a settlement with

respondent No.2 on 25/05/2006, by which the parties have agreed to

end their employer/employee relationship upon respondent No.2

calculating their legal dues under the various Acts mentioned in

clause 6 of the agreement. There is no dispute that the said

agreement is treated as a settlement between the parties under the

I.D.Act, 1947.

12. It is also not in dispute that respondent No.2, by its

communication dated 31/03/2006, prior to the settlement, has

informed the Union that the legal dues payable to the 350 workmen

as against gratuity, leave encashment, unpaid wages from September

to December 1991, lay off wages, retrenchment compensation and

such other benefits, would be an amount of Rs.2,29,02,985/-.

Thereafter the settlement is signed. It appears that the

petitioner/Union did not oppose the said figure of the legal dues

mentioned only until it preferred Complaint (ULP) No.108/2006 on

12/10/2006.

13. In the light of the above, by accepting the suggestion of

Mr.Patil, learned Advocate, I hereby direct the Industrial Court to

decide the said complaint only to the extent of the following issues :-

khs/JULY 2016/9539-d

[a] Whether the settlement dated 25/05/2006 signed between the petitioner and respondent No.2 would preclude the petitioner/

complainant from seeking any amount towards legal dues beyond the amount mentioned by respondent No.2 in its letter dated 31/03/2006 ?

[b] Whether the complaint of the petitioner/complainant deserves to be considered only to the extent of the shortfall in payment of legal dues ?

[c] The litigating sides shall lead oral and documentary evidence to

assist the Industrial Court to arrive at the amount of shortfall in payment of legal dues, if any.

[d] Considering the arrangement between respondent No.2 and

respondent No.3 herein by virtue of the State Government Resolution dated 08/12/2014, the remainder legal dues, if any, shall be paid by respondent No.3 in the light of clause 4 of the

said GR.

14. It is made clear that the litigating sides shall be precluded from

raising any other issue before the Industrial Court in the said

complaint besides those which have been framed above.

15. The litigating sides agree to appear before the Industrial Court

on 20/08/2016.

16. Besides the above, considering the statement made by the

petitioner/complainant in paragraph No.9 of CA No.6989/2016 that

khs/JULY 2016/9539-d

the complainant/Union is willing to waive the interest over the

unpaid amount of legal dues, the Industrial Court shall take note of

the said statement while deciding the complaint, in as much as,