IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15714 of 2003 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= JUNAGADH JILLA SAHKARI BANK LTD. - Petitioner(s) Versus GUJARAT BANK WORKERS UNION & 1 - Respondent(s) ========================================================= Appearance :
MR PS GOGIA for Petitioner(s) : 1, MS PARUL P VASAVADA for Respondent(s) : 1, MR. RAKESH A. RINDHANI, ASSTT.GOVERNMENT PLEADER for Resp.(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 03/08/2012 CAV JUDGMENT By way of this petition under Article 227 of the Constitution of India, the petitioner, a Co-operative Bank registered under the Gujarat Co-operative Societies Act, 1961 seeks to challenge the award dated 23rd October, 2003, passed by the Industrial Tribunal, Rajkot, allowing Reference (IC) No. 3 of 1988, filed by the respondents, and thereby holding that the respondents appointed by the Liquidator are the employees of the petitioner Bank.
2. A very short question falls for my consideration in this petition. If a particular person is appointed by the Liquidator in the services of the Co-operative Bank, which has gone under liquidation, then whether such a person could be said to be an employee of the said Bank, or he could be said to be an employee of the Liquidator when it comes to deciding the jural relationship of master and servant. This issue is squarely covered by the decision of this Court rendered by learned Single Judge (Coram: A.K. Trivedi, J. [as His Lordship then was]) dated 20th October, 2000, rendered in SCA No. 2271 of 1991. The learned Single Judge observed as under:-
"It cannot be disputed that Liquidator is a statutory authority established under the provisions of Gujarat Co-operative Societies Act, 1961 and conferred with the powers as well as functions to be discharged as provided under Section 110 of the said Act. That the appointment of Liquidator is to be made by Registrar, Co-operative Societies under the provisions of Co-operative Societies Act, 1961. That the establishment to the office of Liquidator is to be made under the direction and supervision of Registrar, Co-operative Societies and as such office of Liquidator along with its establishment is altogether a different legal entity and cannot be a part and parcel of District Central Co-operative Bank Ltd., like respondent which is also a legal entity established under the provisions of Co-operative Societies Act. That the establishment of Co- operative Bank is to be made in accordance with approved by-laws and regulations framed by the banking society under the provisions of Co- operative Societies Act. That, the employees of Co-operative Bank are to be recruited as per the rules and regulations framed by the banking society and approved by the Registrar, Co- operative Societies. Similarly, the employees appointed by Liquidator are appointed by Liquidator under the direction and supervision of Registrar, Co-operative Societies, and as such the employees of Liquidator as well as the employees of Co-operative Bank are appointed and governed by different sets of rules and regulations. Even if, for administrative convenience, the post in establishment is filled by way of transfer and deputation.
That in the instant case, the learned Presiding Officer of Labour Court appears to have grossly erred in holding that the control of Registrar over Liquidator is only formal and for the purpose of winding up procedure only and Liquidator being employee of the respondent bank, the establishment of the office of Liquidator is under the control of the respondent bank. The Presiding Officer, Labour Court has observed in para 6 of his judgment that Liquidator No.7 of Mangrol, cannot be said to be appointed on deputation by Registrar, Co-operative Societies because his main function was to recover the dues from the debtors of the Credit Co-operative Societies for the benefit of the respondent-bank. Not only that Liquidator used to sit in the office of the respondent-bank and the respondent- bank used to monitor the expenditure incurred by Liquidator. The learned Presiding Officer has further observed that the oral evidence of the Manager of the respondent-bank to the effect that the leave report of the Clerk of Liquidator was being sent to the bank only for the purpose of record cannot be believed because if Clerk of the Liquidator is appointed under the direction and supervision of Registrar, Co-operative Societies, then in that case, the report should go to the authority which has to sanction it and not to the bank. On the same reasoning the Presiding Officer has held that the petitioner is the employee of the respondent bank and cannot be said to be an employee employed by Liquidator to assist him in due discharge of his function under Section 110 of the Co-operative Societies Act, 1961."
The aforesaid judgment of the learned Single Judge was a subject matter of challenge in Letters Patent Appeal No. 1061 of 2001. The view taken by the learned Single Judge was confirmed by the Division Bench in Letters Patent Appeal No. 1061 of 2001, decided on 1st February, 2002. The Hon'ble Bench made the following observations:-
"............ we are of the view that no interference is called for in this matter as the appellate Tribunal on appreciation of evidence has arrived at the finding that there is no relationship of master and servant. The learned Single Judge has examined the matter in detail and arrived at the said finding. Therefore, no interference is called for when on appreciation of evidence, the Tribunal rendered the decision which has been confirmed by learned Single Judge after examining the matter in detail. In our opinion, the learned Single Judge has arrived at a finding in favour of the respondent after considering the facts and law, both. In view of the above, the appeal stands dismissed."
Learned counsel appearing for the respondents has fairly submitted that the position of law appears to be quite well settled and therefore, made a request to pass appropriate orders in the matter. Such being the position, the impugned order would not be sustainable in the eyes of law. The order passed by the Industrial Tribunal dated 23rd October, 2003 in Reference (IC) No. 3 of 1988 is hereby set aside. Rule made absolute with no order as to costs.
*/Mohandas (J.B. Pardiwala, J.)