CHAIRMAN BOARD OF DIRECTOR- S.K. DISTRICT CENTRAL CO.OP.BANK & Ors. v. THE PRESIDING OFFICER & Ors.

CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 13/12/2012 ORAL JUDGEMENT

By way of this petition, the petitioner has challenged the order dated 3.9.2011, passed below Exhibit-16 in T. Application No. 1 of 2010, by the Labour Court, Himmatnagar, whereby the Labour Court has rejected the Exh.16 application preferred by the present petitioners as also the judgement and order dated 27.6.2012 passed by the Member of Industrial Court, Himmatnagar, in Revision (IC) No. 23 of 2011, whereby the Industrial Court has also rejected the Revision Application preferred by the petitioner herein, against the order of the Labour Court passed below Exhibit 16 in T. Application No. 1 of

The short facts leading to filing of this petition are that the petitioners herein, are the Chairman and Chief Executive of the Sabarkantha District Central Cooperative Bank Limited respectively. The respondent No.3 was serving as Sub- Accountant with the Bank. However, vide order dated 15.4.2010 the respondent-workman was dismissed from the service. Against the action of the petitioners, the respondent-workman preferred Application being T. Application No. 1 of 2010, u/s 79 of C/SCA/11985/2012 JUDGEMENT the Bombay Industrial Relations Act.

2.1. In the said application, the respondent No.3 impleaded the petitioners as respondent No.1 and 2. Therefore, the petitioners filed Exhibit-16 application for deletion of their names as respondents. However, the said application below Exhibit-16 was rejected by the Labour Court vide order dated

3.9.2011 by holding that the application was not maintainable at this stage.

2.2. Being aggrieved by the said order, the petitioners preferred Revision being Revision (I.C) No. 23 of 2011 before the Member of the Industrial Tribunal. However, vide judgment and order dated 27.6.2012, the same was also rejected by the Tribunal. Hence, this petition.

Mr. G.M. Joshi, learned counsel appearing for the petitioners has drawn my attention to “Form P”, provided under section 79 (2) of the Bombay Industrial Rules and Rule 71 of the Bombay Industrial Rules. He submitted that the said “Form” provides for the “Name of the employer / Registered Union / employer / Labour Officer” as the opponents. C/SCA/11985/2012 JUDGEMENT

3.1. He submitted that the petitioners herein, would not fall in any of the said categories and therefore, the Labour Court ought not to have permitted the petitioner to join as party respondents in the proceedings.

3.2. He further submitted that the Labour Court has committed an error in entertaining the T. Application against the persons, who are not proper and appropriate party in the proceedings. He contended that as per the definition of “employer” as defined in Section 3(14) of the Bombay Industrial Relations Act, 1946, the petitioners could not be termed as the “employer” and therefore they are not proper party in the proceedings.

Mr. P.C. Choudhary, learned counsel appearing for the respondent-workman has submitted that the impugned orders passed by the Courts below are just and proper. He further submitted that the order of dismissal of the respondent- workman was signed by the petitioners herein, in the capacity of being competent authority, therefore, they can be termed as “employer” as defined under the provisions of the BIR Act. He, C/SCA/11985/2012 JUDGEMENT however, requested the Court that appropriate directions may be issued to the Lower Court for expeditious disposal of the Application pending before it.

I have heard learned counsel for the parties and perused the material on record. It is not in dispute that the order of dismissal of the respondent-workman dated 15.4.2010 was signed by the petitioners herein. Therefore, it has to be said that the Bank has given the authority to the petitioners herein, to pass such orders in the capacity of being the competent authority. Had the petitioners not being signatory of the said order of dismissal, then their contention would have some merits. However, in the present case since the order of dismissal has been signed by the petitioners herein, in the capacity of being the competent authority of the Bank, the petitioners would fall in the category of “employer” as defined in Section 3(14) of the BIR Act.

Considering the said aspect of the matter, in my opinion, the Labour Court was justified in rejecting the Exhibit-16 Application, since it would always be open to the petitioners to disprove the claim of the respondent-workman at the time of C/SCA/11985/2012 JUDGEMENT hearing of the T. Application. At this stage, the lower Court was completely justified in rejecting the Exhibit-16 application, since the petitioners appears to have acted in the capacity of being authorized signatory of the Bank. In view of the above, I am of the opinion that the Courts below was completely justified in passing the impugned orders.

Further, this Court is of the view that the act of the petitioners/management is nothing but to a tactic to delay the proceedings before the Tribunal and to deprive the poor employee of his right since the respondent-workman has to retire from the service after two years. It is clarified that this Court has not given any finding on the issue whether the petitioners are the “employer” or not of the respondent-workman, as defined under Section 3(14) of the Bombay Industrial Relations Act, 1946 and the same shall be treated as tentative opinion.

It is further clarified that it shall be open to the petitioners to raise the said issue at the time of final adjudication of T. Application and at such time, it is expected that the Labour Court shall give appropriate findings in that regard. C/SCA/11985/2012 JUDGEMENT

Looking to the facts of the case, it is observed that if an application is filed by the respondent-workman for expeditious disposal of the T. Application before the Labour Court, the Labour Court shall consider the same and try to dispose of the said Application as expeditious as possible.

With the above observations, the petition stands disposed of. Rule is made absolute to the aforesaid extent. Interim relief, granted earlier stands vacated. Direct service is permitted.

(K.S.JHAVERI,J.)