Sangli Urban Co-op. Bank Ltd. ) v. N.W.Kulkarni )

CORAM: SMT.NISHITA MHATRE, J. CORAM: SMT.NISHITA MHATRE, J. CORAM: SMT.NISHITA MHATRE, J. DATED: 29TH MARCH 2005 DATED: 29TH MARCH 2005 DATED: 29TH MARCH 2005 P.C.: P.C.: P.C.: . The order impugned is of the Industrial Court, Sangli dated 7th October 2004 passed in Revision Application (ULP) No.11 of 1997 filed under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act"). The Industrial Court has confirmed the order of the Labour Court, Sangli dated 25th March 1997 passed in Complaint (ULP) No.76 of 1994 which is also challenged in this Petition.

The main grievance of the Petitioner is that the Labour Court has found that the Respondent is an "employee" although his duties were such as to exclude him from the category of "employee" as defined under : 2 : Section 3(13) of the Bombay Industrial Relations Act,

1946. The Industrial Court in the Revision Application filed by the Petitioner has observed thus : "9. Points No.1 and 2 : At the outset, it must be noted that the point as to whether the original Complainant is an "Employee" of the Respondent Bank within the meaning of Section 3(5) of the ‘M.R.T.U. and P.U.L.P. Act, 1971’ read with Section 3(13) of B.I.R.Act, 1946’ is not raised and not argued before this Court and therefore it is deem to have been waived and therefore finding of the Trial Court on this point need not be interfered with. "

Mr.Walawalkar, learned Counsel appearing for the Petitioner, states that the findings of the Industrial Court that the issue as to whether the Respondent was an employee or not has been raised in the Revision Application and, therefore, the observation of the Industrial Court to the contrary is incorrect. Mr.Walawalkar very fairly states that no submissions were advanced on behalf of the Petitioner regarding this issue whether the Respondent was an employee as defined within the meaning of Section 3(5) of the Act read with Section 3(13) of the Bombay Industrial Relations Act,

1946. However, according to the learned counsel, consent or acquiesence cannot confer the jurisdiction to decide a Complaint on either the Labour Court or the Industrial Court. He urges that the Industrial Court was duty bound to consider all the grounds raised in the Revision Application. He relies on the judgments of the : 3 : Apex Court in the case of Chiranjilal Shrilal Goenka vs.