(1.) BY filing this petition, the Gujarat Industrial Cooperative Bank Limited sought to challenge order dated 22.04.2013 passed by Industrial Tribunal, Gujarat, at Ahmedabad, which was a common order below Exhibit 31 as well as below Exhibit 33 applications in pending Reference (I.T.) No.104 of 2009.
(2.) APPLICATION Exhibit 31 was filed by the petitioner Bank inter alia contending that the Bank had been closed, the banking business was no more continuing and all the employees were discharged from the service of the Bank from 29.11.2012, and consequently praying that the various demands raised by the Union and the Reference pending therefor ceased to survive. On the other hand, Exhibit 33 application was by the Union to implead the Official Liquidator as party in the Reference proceedings which came to be allowed.
(3.) BASIC facts may be capitulated. The petitioner Bank came to be placed under the directions of Reserve Bank of India under Section 35 -A of the Banking Regulations Act, 1949 by Reserve Bank of India by order dated 16.09.2008. The Administrator came to be appointed by superseding the Board of Directors. Prior to the said order of the Reserve Bank, on 23.05.2008 respondent No.1 Union had raised certain demands and in connection therewith Reference (I.T.) No.104 of 2009 dated 23.03.2009 is pending. Stated in brief, the demands related to protection of employment, conditions of service, continuity of service of the employees or merger of the Bank, payment of gratuity and provident fund, maintaining the staff strength. On 08.11.2011 the licence of the Bank came to be cancelled.
3.1 On 14.05.2010 and 04.07.2011 two settlements between the petitioner Bank and respondent No.1 Union were entered into providing for payment of monetary benefits. As per the settlement dated 14.05.2010 Part I award came to be passed by the Industrial Tribunal on 18.05.2010. Thereafter certain amendments were made in the settlement as per Exhibit 23 application. On 07.07.2011 Part II award was passed by recording amendment in the settlement.
3.2 On 21.08.2012 the Central Registrar, Cooperative Societies passed order dated 21.08.2012 under Section 87 of the Multi State Cooperative Societies Act. The petitioner Bank was ordered to be wound up on 17.11.2012 and the Liquidator came to be appointed by the Central Registrar, Cooperative Societies. On 17.11.2012, the Liquidator took charge of the Bank. On 29.11.2012 services of all the employees came to be terminated. It was the case of the Bank that after assumption of charge, the Liquidator took steps to pay the dues of the employees and further that since the petitioner Bank was not in existence and was closed, all the demands of the Union had gone infructuous and nothing remained to be adjudicated by the Tribunal in the Reference proceedings. It accordingly filed the aforesaid application Exhibit 31. Respondent No.1 Union filed reply at Exhibit 34 contending that the Official Liquidator was required to be joined as party and in absence of Liquidator, the application could not have been filed. The Union filed Exhibit 33 application for joining the Liquidator as party. Both the said applications came to be decided by the aforesaid common order.
The principal contention of the petitioner Bank canvassed by learned advocate Mr.Dipak Dave appearing for the petitioner was that since the Bank had been ordered to be wound up by the order of the Central Registrar dated 21.08.2012 and Liquidator has taken charge on 17.11.2012, and consequently all the employees have been retrenched, the demands raised by the respondent No.1 Union for seeking better benefits with regard to their service conditions, the Reference in respect of those demands would not survive for adjudication.
4.1 In response to the challenge to the impugned order below Exhibit 31 application, both the sides raised elaborate contentions. Respondent No.1 Union filed affidavit -in -reply dated 22.01.2013. To the said reply, affidavit -in -rejoinder dated 29.07.2013 was filed by the petitioner Bank. Affidavit -in -sur rejoinder to the rejoinder of the Bank was filed being affidavit dated 03.08.2013. Thereafter the Bank filed further affidavit dated 26.08.2013 in response to the sur rejoinder. Union's reply to further affidavit was filed on 07.10.2013.
4.2 Learned advocate for the petitioner contended that because of closure of the Bank, the Reference has to be disposed of as having become redundant. He relied on decision of the Supreme Court in U P ELECTRIC SUPPLY CO LTD V/S WORKMEN, 1971 3 SCC 495 , more particularly paragraphs 4, 9 and 11 thereof. He then relied on another decision in HARIPRASAD SHIVSHANKAR SHUKLA V/S A D DIVELKAR, 1957 AIR(SC) 121 and relied on paragraph 21 thereof wherein it was held that the awards have meaning only if they referred to industry which is running and it is not closed. Learned advocate referred to the nature of various demands of the Union and contended that on account of the closure of the Bank all of them have become abortive. According to his submission there was no demand for past dues and all demands were for better service conditions. He submitted that the first demand was with regard to the event of amalgamation, transfer or merger of management which was not the case. With regard to demand Nos.2, 3 and 4 also it was submitted that when the Bank itself was closed down, they no more survived. Learned advocate submitted that the reasoning of the Tribunal was without any basis and unsupported by any material to show that the demands would survive.
4.3 Learned advocate for the petitioner further submitted that the terms of the Reference has to be strictly construed and it was not open to the Tribunal to go beyond the Reference. For this preposition, learned advocate relied on these decisions:
(i) Hochtief Gammon Vs Industrial Tribunal, Bhubneshwar, Orissa, 1964 AIR(SC) 1746
(ii) M/s.Firestone Tyre and Rubber Co. of India (P) Ltd. Vs Workmen Employed represented by Firestone Tyre Employees Union, 1981 AIR(SC) 1626
(iii) Moolchand Khatri Ram Hospital K. Union Vs Labour Commissioner, 2002 10 SCC 708 and
(iv) Pottery Mazdoor Panchayat Vs Perfect Pottery Co. Ltd., 1979 3 SCC 762 . He next submitted that settlement was in operation and was never terminated. Learned advocate then relied on decisions in
(i) Life Insurance Corporation of India Vs D.J. Bahadur and others, 1981 1 SCC 315 ;
(ii) Karnataka State Road Transport Corporation Vs KSRTC Staff and Workers Federation, 1999 2 SCC 687 and
(iii) Barauni Refinery Pragatisheel Shramik Parishad Vs Indian Oil Corporation Limited, 1991 1 SCC 4and submitted that since the settlement would remain valid until new settlement takes place, respondent No.1 Union could not continue with the Reference. He further contended that in view of Section 117 of the Multi State Cooperative Societies Act, the Liquidator could not have been joined as party by the Industrial Tribunal because of leave of Central Registrar was not obtained by the Union.
4.4 On the other hand, learned advocate Mr.A.K. Clerk submitted that merely because petitioner Bank had been closed and the Liquidator was appointed it need not necessarily imply that the Reference and the demands of the Union pending adjudication in the Reference became automatically redundant. He referred to the contents of reply affidavits filed on behalf of respondent No.1 Union and submitted that there were claims of the workmen awaiting adjudication in the Reference and that the Reference was surviving. It was submitted that while considering the order of Reference, form and wording of Reference is not decisive in the tenability of Reference, but the Labour Court or Tribunal has to find out substance of the controversy between the parties and the disputes which are to be adjudicated. Countering the submission that permission of the Registrar was required to be obtained, learned advocate for the respondent No.1 - Union submitted that since the dispute is regarding conditions of service of the employees of the Bank could not be said to be relating to the business of the petitioner -Bank, it was not necessary to obtain permission of the Registrar to proceed with the Reference after winding -up of the Bank. It was submitted that in any case, such permission would be formal in nature. Learned advocate thereafter highlighted contents of replies filed by the Union.;