The Shamrao Vitthal Co-Operative Bank Ltd. (Now Known As Svc Co-Operative Bank Ltd. ) v. Mr. Uday Sakharam Kulkarni

Prajakta Vartak

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6409 OF 2021 Mr. Ashok Nanoba Kapase WRIT PETITION NO.6943 OF 2021 Mr. Hemantkumar Vyankappa Wadd WRIT PETITION NO.6953 OF 2021 Mr. Prakash Appaso Parmaj WRIT PETITION NO.6941 OF 2021 Mr. Nemgonda Rama Chougule WRIT PETITION NO.6932 OF 2021 Mr. Dhanyakumar Chandrakant Nille WRIT PETITION NO.6946 OF 2021 Mr. Sunil Purandar Adake WRIT PETITION NO.6937 OF 2021 Mr. Vasant Bapu Magdum 1/13

WRIT PETITION (St.) NO.2010 OF 2020 Mr. Mahadev Appaso Bulle WRIT PETITION NO.6948 OF 2021 Mr. Akaram Balu Pujari WRIT PETITION NO.6929 OF 2021 Mr. Sukumar Shamrao Tamgave 6AND WRIT PETITION NO.6954 OF 2021 Nemgonda Anna Patil WRIT PETITION NO.6949 OF 2021 Mahavir Rama Gomar WRIT PETITION NO.6955 OF 2021 Prakash Dhanpal Gunde through LHR Smt. Akkatai Prakash Gunde & Ors.

WRIT PETITION (St.) NO.2240 OF 2020 Subhash Shivgonda Patil 2/13

WRIT PETITION NO.6945 OF 2021 Ravindra Bapusaheb Patil WRIT PETITION NO.6947 OF 2021 Ms. Shakuntala Arun Patil WRIT PETITION NO.6959 OF 2021 Arvind Appaso Patil WRIT PETITION (St.) NO.2262 OF 2020 Dhanyakumar Adinath Jain WRIT PETITION NO.6951 OF 2021 Smt. Mangala Mohan Limbekar WRIT PETITION (St.) NO.2294 OF 2020 Miss. Kalpana Sanjay Patil 3/13

WRIT PETITION NO.6944 OF 2021 Mr. Neminath Bhupal Mandape WRIT PETITION NO.6952 OF 2021 Mr. Bandu Devappa Adake WRIT PETITION NO.6939 OF 2021 Mr. Mahavir Annaso Melvanki WRIT PETITION (St.) NO.2330 OF 2020 Mr. Mahavir Bharma Aadanna WRIT PETITION (St.) NO.2334 OF 2020 Mr. Dada Kalgaonda Patil WRIT PETITION NO.6935 OF 2021 Mr. Jinpal Bandu Suryawanshi WRIT PETITION NO.1702 OF 2021 Mr. Shashikant Dattatraya Gokave 4/13

WRIT PETITION (St.) NO.2339 OF 2020 Mr. Ajit Vasantrao Limbekar WRIT PETITION NO.6958 OF 2021 Mr. Prabhakar Baburao Kapase WRIT PETITION NO.6942 OF 2021 Mr. Mahavir Neminath Narade WRIT PETITION NO.6956 OF 2021 Mr. Pramod Sahadev Parab WRIT PETITION NO.6940 OF 2021 Mr. Kumar Shamu Kumbhoje WRIT PETITION NO.1703 OF 2021 Mr. Milind Ganesh Kulkarni 5/13

WRIT PETITION (St.) NO.2350 OF 2020 Mr. Prakash Chandrakant Altekar WRIT PETITION NO.6950 OF 2021 Sunanda Subhash Daragshetti WRIT PETITION (St.) NO.2352 OF 2020 Mr. Urjit Nilkantharao Japtanmulukha WRIT PETITION NO.6957 OF 2021 Mr. Dhanpal Shivappa Athane WRIT PETITION NO.6936 OF 2021 Miss. Kanchan Jaykumar Shendage WRIT PETITION NO.6931 OF 2021 Mr. Uday Sakharam Kulkarni WRIT PETITION NO.6938 OF 2021 Mr. Mahavir Kallappa Chougule 6/13

WRIT PETITION (St.) NO.2386 OF 2020 Mr. Rajgonda Adgaonda Patil WRIT PETITION NO.6960 OF 2021 Mr. Laxman Dattatraya Shelke WRIT PETITION (St.) NO.2515 OF 2020 Mr. Prakash Tatoba Kagwade WRIT PETITION (St.) NO.2519 OF 2020 Mr. Prabhakar Vasudev Karade WRIT PETITION NO.6930 OF 2021 Mr. Balgonda Bapu Patil WRIT PETITION NO.6928 OF 2021 Mr. Jinpal Raghoba Terdale 7/13

WRIT PETITION NO.6934 OF 2021 Mr. Suryakant Dhondiram Bindage WRIT PETITION NO.6926 OF 2021 Mr. Vasant Tatoba Bhokare WRIT PETITION NO.6927 OF 2021 Ms. Rohini Bapusaheb Patil ----- Mr. Dhananjay Bhanage with Mr. Mayur Dilip Joglekar for Petitioner. Mr. Akshay Patil with Ms. Neha Patil i/b. Akshay Vijay Kamble for Respondent.

----- CORAM : G. S. KULKARNI, J.

DATE : OCTOBER 20, 2021 PC :

1.

This is a batch of writ petitions in which similar orders although passed on different dates by the learned Member, Industrial Court No.1, Kolhapur are challenged. These petitions hence are being disposed of by this common order. For convenience, the facts in the lead petition are being referred.

2.

The impugned orders dated 2 December, 2019 are passed on applications as filed by the petitioner praying that a preliminary issue be framed inter-alia as to whether there is an employee-employer relationship between the petitioner-bank and the respondents-complainants. The 8/13

contention of the petitioner before the Industrial Court was to the effect that issues on principles of res-judicata/principle analogous to res-judicata and locus-standi of the complainant as raised by the petitioner be framed as preliminary issues. In the impugned order, the Industrial Court observed that earlier the Court had framed the following issues:- "1) Whether the Complainant is maintainable?

2) Whether the Complainant proves that the Respondent has engaged in unfair labour practices under items-5, 9 and 10 of Sch.IV of the MRTU & PULP Act, 1971?

3) Whether the Complainant is entitled to the reliefs as claimed?

4) What order?"

In view of the above issues being framed, it was observed by the Industrial Court that first issue as framed on maintainability of the complaint would cover all the issues which were raised by the petitioner to be framed as preliminary issues and hence it was not necessary to frame a separate issue on maintainability of the complaints as contended by the petitioner. It was observed by the Industrial Court that it would be proper and desirable if all the objections raised by the petitioner (respondents therein) in respect of maintainability of the complaints are dealt in the first issue as framed. The Industrial Court referring to the decision of the Supreme Court in D.P. Maheshwari v/s. Delhi Admn. And others reported in 1983 LIC Page No.1629, rejected the petitioner's application against which the present petitions have been filed.

3.

Mr. Bhanage, learned counsel for the petitioner in assailing the impugned orders passed by the Industrial Tribunal, has drawn the Court' s attention to the decision which was rendered by the learned Single Judge of this Court in the previous round i.e. in Dhanpal Parisa Khot vs. Shamrao Vithal Co-operative Bank Ltd. reported in 2012 III CLR 163 which was on a 9/13

writ petition filed by one of the employees challenging the orders passed by the Industrial Court on an application filed under Section 33(C)(2) of the Industrial Disputes Act, 1947, which was rejected by the Industrial Court. A learned Single Judge of this Court in rejecting the said writ petition in paragraphs 24 and 25 had observed as under:- "24. Therefore, when there are serious doubts and disputes raised with regard to the liabilities and so called obligations of the earlier Bank i.e. Mahavir Bank, there is no question of considering the same under Section 33(C)(2) of the I.D. Act. Therefore, the rejection of such applications need no interfere. All the Petitions are accordingly dismissed.

25.

This in no way, be treated as denial of the Petitioner's right to take out appropriate steps in accordance with law to claim and get their dues settled, if available."

4.

The decision of the learned Single Judge was confirmed by the Division Bench of this Court in a Letters Patent Appeal being a decision in Shrikant Bhujaballi Bahirshet Kasargalli, Kolhapur Vs. Shamrao Vithal Cooperative Bank Ltd., Mumbai reported in 2018 II CLR 111 case. The Division Bench while confirming the above observations of the learned Single Judge in paragraph 27 observed thus:- "27. For the reasons recorded in the above lead matter, all the above Letters Patent Appeals being Nos.250 of 2013, 253 of 2013 to 284 of 2013, 286 of 2013 to 297 of 2013, 300 of 2013 to 309 of 2013 would have to be dismissed and are accordingly dismissed. However, it is clarified that all the Appellants would be entitled to follow the course of action which is proposed by the learned Single Judge in the impugned Judgment and Order of filing appropriate proceedings. If any such proceedings are filed, needless to state that the same would be tried on their own merits and in accordance with law."

5.

The respondents/employees espousing the liberty granted to them under the above orders of the learned Single Judge and the Division Bench have filed complaints in questions under the provisions of Section 28(i) of 10/13

MRTU and PULP Act, 1971. It is an admitted position that the complaint has proceeded to a stage where affidavits of evidence have been filed on behalf of the parties. At such stage, the application(s) in question came to be moved on behalf of the petitioner praying for framing of preliminary issues as noted above. The specific contention of the petitioner was that there was no employer-employee relationship between the petitioner and the respondents, however in raising such contention in the written statement, the following averments were made by the petitioner:- "......

The Scheme of amalgamation (21/07/2006) had provided that the employees of the Transferor Bank would continue in the service of the Transferee Bank (Shamrao Vithal Cooperative Bank) unless the employee concerned intimated his intention to the Transferor Bank or to the Transferee Bank of not becoming the employee of the Transferee Bank. The services of the Complainant were thus technically continued under the Scheme by Shamrao Vithal Cooperative Bank on and after 04/09/2006 i.e. the date of transfer. The Complainant, however, expressed his desire not to be the employee of the Transferee Bank.

He was, therefore, paid specified amounts on the date of his separation and the Complainant executed an undertaking that he had received the specified separation amount and that he would not raise any dispute for any further amounts including for the amounts now claimed by him in the present complaint in violation of his undertaking."

(emphasis supplied) 6.

On such basis, in the application praying for framing of preliminary issues, the petitioner has taken a position that there is no employeremployee relationship between the petitioner and the respondentscomplainants. By the impugned order, the Industrial Tribunal has rejected the application as filed by the petitioner.

7.

Having heard learned counsel for the parties and also having noted decisions (supra) as referred on behalf of the petitioner, in my opinion, considering the facts of the 11/13

case and the specific observations which are made by the learned Single Judge in Dhanpal Parisa Khot (supra) and by the Division Bench in Shrikant Bhujaballi Bahirshet Kasargalli, Kolhapur (supra), I am of the opinion that the interest of justice would be served if the Industrial Court is directed to delete the issue no.1 namely "Whether the complaint is maintainable?" and to substitute the same by the following specific issues:- "(a) Whether in view of the denial of employer-employee relationship by the Respondent Bank with the Complainant, this Court has the jurisdiction to entertain and decide the Complaint? (b) Whether the Complaint is barred by the principle of resjudicata or principle analogous to res-judicata? (c) Whether this Complaint is filed within limitation? (d) Whether the Complainant proves that he has the locus standi and a cause of action to file the present Complaint?" 8.

Mr. Patil, learned counsel for the respondents/employees, on instructions, is agreeable for such course of action. Let all issues be adjudicated at the final disposal of the respective complaints. Ordered accordingly.

9.

Considering that the parties are before the Court in different proceedings for quite sometime as also that the parties have assured that they would co-operate in early disposal of the proceedings, the learned Member of the Industrial Court shall make an endeavour to dispose of such complaints as expeditiously as possible and within a period of one year from today.

10. At the first instance, let the parties appear before the Industrial Court on a convenient date which may be fixed by the Industrial Court within a period of two weeks from today.

12/13

11. All contentions on merits of the pending complaints are expressly kept open.

All petitions stand disposed of in the above terms. (G. S. KULKARNI, J.) Digitally signed by PRAJAKTA SAGAR VARTAK Date:

2021.10.26 18:27:46 +0530 PRAJAKTA SAGAR VARTAK 13/13