Bombay High Court
The Mula Pravara Electric Co ... vs Ratnakar Haribhau Chatuphale on 8 March, 2017
Bench: R.V. Ghuge
(1) W.P. No. 1137 of 2017
& Group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 1137 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
versus
Nivrutti Yadavrao Tambe,
Age 73 years,
Occupation Retired,
R/o. Ward No.7,
Shrirampur,
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
With
Writ Petition No. 1138 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
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(2) W.P. No. 1137 of 2017
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R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
versus
Pundlik Jagannath Bhand
Age 68 years,
Occupation Retired,
R/o. Waladgaon,
Post Umbargaon
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
With
Writ Petition No. 1139 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
versus
Ratnakar Haribhau Chatuphale,
Age 69 years,
Occupation Retired,
R/o. Ward No.7,
Shrirampur,
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
With
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(3) W.P. No. 1137 of 2017
& Group
Writ Petition No. 1140 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
versus
Vishwas Bhimraj Vyavhare,
Age 68 years,
Occupation Retired,
R/o. Ward No.7, Trimbaknagar,
Shrirampur,
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
With
Writ Petition No. 1141 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
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(4) W.P. No. 1137 of 2017
& Group
versus
Narayan Sitaram Shejul,
Age 69 years,
Occupation Retired,
R/o. Ward No.7,
Shrirampur,
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
With
Writ Petition No. 1142 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
versus
Shamrao w/o. Wamanrao Mohite,
Age 71 years,
Occupation Retired,
R/o. Samta Colony,
Near Ashoka Talkies,
Ward No.7,
Shrirampur,
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
With
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(5) W.P. No. 1137 of 2017
& Group
Writ Petition No. 1143 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
versus
Appasaheb s/o. Eknath Wagh,
Age 70 years,
Occupation Retired,
R/o. Shrikrupa, 9B,
Sanjaynagar,
Shrirampur,
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
With
Writ Petition No. 1144 of 2017
District : Ahmednagar
The Mula Pravara Electric
Co-operative Society Limited,
Shrirampur,
Taluka Shrirampur,
District Ahmednagar,
Through its Managing Director,
Shri Jijabhau Govind Karpe,
Age 58 years,
Occupation Service,
R/o. Shrirampur,
Taluka Shrirampur, .. Petitioner
District Ahmednagar. (Original opponent)
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(6) W.P. No. 1137 of 2017
& Group
versus
Dattatraya s/o. Bhanudas Bankar,
Age 68 years,
Occupation Retired,
R/o. Padhegaon,
Taluka Shrirampur, .. Respondent
District Ahmednagar. (Original disputant)
...........
Mr. V.D. Hon, Senior Advocate, instructed by
Mr. A.V. Hon, Advocate, for the petitioner.
Mr. R.R. Karpe, Advocate, for the respondents.
...........
CORAM : RAVINDRA V. GHUGE, J.
DATE : 08TH MARCH 2017
ORAL JUDGMENT :
01. Rule. Rule made returnable forthwith and
heard finally by the consent of the parties.
02. While issuing notices to the respondents -
employees on 08.02.2017, I had noted the submissions
of the learned Senior Advocate on behalf of the
petitioner - Society as under :-
"1. The petitioners in all these petitions, is
the same Co-operative Society. All the
respondents / employees in these matters are
identically situated.
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2. The petitioner is aggrieved by the order
dated 31.08.2016, passed by the Co-operative
Court, Shrirampur, by which, the disputes put
forth by these respondents have been entertained
and by the impugned order, it has concluded that
the dispute is maintainable before the Court under
Section 91 of the Maharashtra Co-operative
Societies Act, 1960.
3. Considering Section 91 and the proviso
excluding an industrial dispute under Section 2(k)
from the ambit of the jurisdiction of the Co-
operative Court under Section 91, prima facie, I
find that these matters cannot be entertained by
the said Court.
4. In the light of the above, issue notice
before admission to all the respondents,
returnable on 03.03.2017. Until the next date of
hearing in these matters, the proceedings in ABN
Nos. 338 of 2006, 441 of 2008, 20 of 2009, 19 of
2009, 355 of 2007, 25 of 2010, 370 of 2008 and 376
of 2008 shall stand stayed.
5. The petitioner shall supply copies of the
petition paper book for issuance of notice on/or
before 10.02.2017, failing which, the ad interim
protection granted shall stand vacated without
reference to the Court. "
03. I have heard the learned Advocates for the
respective sides at length.
04. The petitioner has cited the following
judgments :-
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(1) Hariram Tukaramji Ambulkar & others
Vs. Bhatkuli Taluka Sahakari Shetki
Kharedi Vikri Sanstha Ltd. & another
(2006 (6) Bom.C.R. 34).
(2) Morinda Co-op. Sugar Mills Ltd.
Vs. Morinda Co-op Sugar Mills Workers
Union (2006 (6) Bom. C.R. 69).
(3) Chandrashekhar Chintaman Vaidya
Vs. National Organic Chemical Industries
Ltd., Akola (2010(3) Mh.L.J. 434).
05. The learned Counsel for the respondent has
cited the following judgments :-
(1) Pralhad Vithalrao Pawar
Vs. Managing Director & another
(1998(3) Mh.L.J. 214).
(2) Hariram Tukaramji Ambulkar & others
Vs. Bhatkuli Taluka Sahakari Shetki
Kharedi Vikri Sanstha Ltd. & another
(2006 (6) Bom.C.R. 34).
(3) Morinda Co-op. Sugar Mills Ltd.
Vs. Morinda Co-op Sugar Mills Workers
Union (2006 (6) Bom. C.R. 69).
(4) Maharashtra Co-operative Housing
Society Ltd., Bombay and others
Vs. V.S. Loni and another
(AIR 1984 Bombay 419).
06. The disputed issue is as regards, whether
the claims put forth by the respondents with regard
to leave encashment and dearness allowance / monetary
service benefits would fall under the definition of
(9) W.P. No. 1137 of 2017
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Industrial Dispute under Section 2(k) of the
Industrial Disputes Act, 1947 [For short, "Act of
1947"].
07. By the Maharashtra Act No. 20 of 1986, a
proviso was inserted below Section 91(1) of the
Maharashtra Co-operative Societies Act, 1960 [For
short, "Act of 1960"]. It would be apposite to re-
produce the said proviso as under :-
" Provided that, an industrial dispute as defined in clause
(k) of section 2 of the Industrial Disputes Act, 1947, or rejection
of nomination paper at the election to a committee of any
society or refusal of admission to membership by a society to
any person qualified therefor or any proceeding for the
recovery of the amount as arrear of land revenue on a
certificate granted by the Registrar under sub-section (1) or (2)
of section 101 or sub-section (1) of section 137 or the recovery
proceeding of the Registrar or any officer subordinate to him or
an officer of society notified by the State Government, who is
empowered by the Registrar under sub-section (1) of section
156 or any orders, decisions, awards and actions of the
Registrar against which an appeal under Section 152 or 152A
and revision under Section 154 of the Act have been provided
shall not be deemed to be a dispute for the purposes of this
section."
08. It is, therefore, evident that an issue
which falls under Section 2(k) of the Act of 1947,
would be excluded from the jurisdiction of the Co-
operative Court under Section 91 of the Act of 1960.
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Section 2(k) of the Act of 1947 reads as under :-
" "Industrial dispute" means any dispute or difference
between employers and employers, or between employers
and workmen, or between workmen and workmen, which
is connected with the employment or non-employment or
the terms of employment or with the conditions of labour,
of any person."
09. There can be no dispute that if the
employees of a Co-operative Society fall within the
definition of 'workman' under Section 2(s) of the Act
of 1947 and if Society is an 'industry' under Section
2(j) of the Act of 1947, the Labour Court /
Industrial Court would have jurisdiction.
10. The learned Division Bench of this Court in
the matter of Pralhad Vithalrao Pawar (supra),
concluded that if the employee is a workman, the
dispute pertaining to his service conditions and
violation of service conditions would lie before the
Labour Court / Industrial Court. If the employee is
not a workman, the dispute would go to the Co-
operative Court and the cases of termination of such
non-workman would not lie before the Civil Court.
The view taken by the Hon'ble Apex Court in the
matter of Co-operative Central Bank Ltd. Vs. Additional
Industrial Tribunal, Hyderabad (AIR 1970 SC 245) and in
the matter of Gujarath State Land Development Co-
operative Bank Ltd. Vs. P.R. Mankad (AIR 1979 SC 1203)
were followed while taking the above view.
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11. The petitioner - Society, which is the
employer of these respondents, is undisputedly an
'industry' under Section 2(j) of the Act of 1947,
keeping in view the law laid down by the Hon'ble Apex
Court in the matter of Banglore Water Supply and
Severage Board Vs. A. Rajappa and others (AIR 1978 SC
548).
12. The petitioner categorically states that all
these respondents are a mixture of Store
Superintendents, Accountants at the divisional level,
Asst. Engineers, Cashiers and Deputy Chief
Accountant. Their salaries are in between Rs.
20,000/- to Rs. 22,000/- at the time of their
superannuation. It is categorically stated by the
learned Senior Advocate, on instructions and on the
basis of the pleadings of the petitioner, that all
the respondents are workmen under Section 2(s) and
the petitioner would not raise any dispute about
their status if they opt to approach the Labour Court
under Section 33C(2) of the Act of 1947.
13. In so far as the claims of the respondents
are concerned, I find that there cannot be any
dispute about Dearness Allowance. It is a
prescription of law and notwithstanding the financial
status of an employer, the Dearness Allowance is
payable. In so far as leave encashment is concerned,
the learned Senior Advocate has submitted on
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instructions, that certain resolutions with regard to
leave encashment are applicable to all these
respondents. However, they have been subsequently
modified by further resolution and the Labour Court
will have to find out whether any of these
respondents can indicate non-payment of any legal
dues and whether there are any dues to be recovered
from the petitioner - employer. He, therefore,
submits that all contentions with regard to the
applicability of the resolutions and computation be
left open for the Labour Court to decide.
14. Shri Karpe, learned Advocate, on
instructions from the respondents present in the
Court, submits that they would prefer their
Application (IDA) under Section 33C(2) of the Act of
1947 before the Labour Court at Ahmednagar within
four weeks from today. He is agreeable to opt for
the said forum only in view of the statement of the
petitioner, that the issue of 'workman' under Section
2(s) and an 'industry' under Section 2(j) of the Act
of 1947, will not be raised and calculations would be
made by the Labour Court.
15. Considering the above statements, both the
impugned orders are quashed and set aside. The
respective disputes pending before the Co-operative
Court initiated by these respondents stand disposed
of. These petitions are partly allowed with the
following directions :-
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(a) All these respondents would be at liberty to file
their applications under Section 33C(2) before the
Labour Court at Ahmednagar.
(b) The petitioner, who would be the respondent in
the said proceedings, would file its written
statement in all these matters, as expeditiously as
possible and within 45 days from the date of receipt
of the Labour Court's notices.
(c) The issue of the respondents, who would be
applicants before the Labour Court, being 'workman'
under Section 2(s) and the petitioner - Society,
being an 'industry' under Section 2(j) is closed and
this issue shall not be raised for the adjudication
of the Labour Court, in the light of the statements
recorded in this order.
(d) After filing of the written statements, as
directed, the Labour Court shall frame appropriate
issues within a period of four weeks therefrom.
(e) The litigating sides would be precluded from
seeking adjournments on unreasonable and trivial
grounds and the Labour Court would be at liberty to
reject such adjournment applications.
(f) Since the claims of these respondents - employees
are with regard to leave encashment, Dearness
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Allowance and similar such monetary issues, the
Labour Court would endeavour to decide the effect of
the service conditions / resolutions applicable to
the litigating sides and shall accordingly calculate
the unpaid amounts under each of the heads as
claimed, after considering the oral and documentary
evidence adduced by the litigating sides.
(g) Keeping in view that all these respondents have
retired and are litigating for their unpaid legal
dues for the past about 11 years and are more than 70
years of age, the Labour Court shall endeavour to
decide the claims of the respondents, as
expeditiously as possible and preferably on or before
28th day of February 2018.
(h) All contentions regarding the monetary claims of
these employees, put forth by the litigating sides,
are kept open and the Labour Court shall consider
them on their own merits.
16. Rule is made partly absolute in the above
terms.
( Ravindra V. Ghuge )
JUDGE
...........
puranik / WP1137.17etc
