:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4130 OF 2007 The Shamrao Vithal Co-Op. Bank Ltd. ..Petitioner Vs. Shivkranti Kamgar Sanghatana and two ors. ..Respondents Mr. D.J. Bhanage for petitioner. Mr. Amol Deshpande h/f Mr. P.B. Shaligram for respondent no.1. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : January 09, 2008. Date : January 09, 2008. Date : January 09, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Bhanage the learned counsel for the petitioner-bank which came to be impleaded as respondent no.5 in Complaint (ULP) No. 427 of 2005 filed by the respondent no.1-Trad Union before the Industrial Court at Pune. 2. The said complaint was initially filed against the employer-company, its Managing Director as well as the Personnel Manager and subsequently the Cosmos :2: Co-Op. Bank Ltd. was added as respondent no.4 and the present petitioner-bank was added as respondent no.5 as the had advanced loan to the respondent no.1-company on the basis of the mortgage and hypothecation created in their favour by the said company. The respondent nos.4 and 5 - banks claim their exclusive and preferential rights over the property of the respondent no.1-company in order to recover the loan by relying upon the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 3. In the said complaint, before the Industrial Court, an application for interim relief under Section 30(2) of the M.R.T.U. and P.U.L.P. Act, 1971 came to be filed and by the impugned order dated 22/12/2006 the said application has been allowed partly. The Industrial Court was pleased to direct the employer to pay the arrears of legal dues as mentioned in Annexure "B" to the employees whose names are mentioned in Annexure "B" to the complaint, whereas the respondent nos.4 and 5-banks have been temporarily restrained from dismantling the machineries of the :3: respondent-company till the final decision of the complaint or till the legal dues of the employees are duly paid, whichever is earlier. The second part of the order passed by the Industrial Court on 22/12/2006 is challenged in this petition. 4. It is clear that if the first part of the said impugned order is implemented by the employer, the temporary restraining order would automatically stand vacated and Mr.Bhanage is not aware whether the employer has already disbursed the amount mentioned in Annexure "B" by way of arrears of legal dues to the employees mentioned in Annexure "A" to the complaint. 5. Mr. Bhanage the learned counsel for the petitioner-bank referred to the following decisions of this court (DB) and submitted that in the absence of any statutory created first charge or higher charge, the charge of the mortgager /financial Institution on the basis of the hypothecation shall have to be treated as the first charge and, therefore, the petitioner-bank will have the right to dispose off the machineries of the respondent no.1-company which have :4: been hypothecated/mortgaged to it by resorting to the proceedings under Section 13 of the Securitisation Act:- (a) Thane Janata Sahakari Bank Ltd. vs. Commissioner of Sales Tax, Mumbai and ors. [2006 (4) Mh.L.J. 594]. (b) Marathwada Gramin Bank and ors. vs. Maharahstra State Co-operative Bank Ltd. [2007 (1) D.R.T.C. 458 (Bom.)]. 6. As is implied by the impugned order passed by the learned Member of the Industrial Court it is the employer who is responsible for the disbursement of the payment of wages to the employees as per the settlement or the rates prescribed otherwise and, therefore, the directions to disbursement of legal dues has been given to the employer, at the first instance. The impugned order also makes it clear that as soon as the legal dues are paid, the temporary restraining order against the petitioner would ceased :5: to exist. The Payment of Wages Act, 1936 applied to the payment of wages to the person employed in any factory and as per Section 3 therein every employer shall be responsible for the payment of persons employed by him of all wages required to be paid under the said Act. Section 4 deals with fixation of wage-period, Section 5 provides for time of payment of wages, whereas Section 7 deals with the deductions which may be made from wages. Section 5(2) of the Payment of Wages Act, 1936 states that where the employment of any person is terminated by or on behalf of the employer, the wages, earned by him shall be paid before the expiry of the second working day from the day on which his employment is terminated; provided that where the employment of any person in an establishment is terminated due to the closure of the establishment for any reason other than a weekly or other recognised holiday, the wages earned by him shall be paid before the expiry of the second day from the day on which his employment is so terminated. 7. In the instant case, so far as the petitioner-bank is concerned, it has been temporarily :6: restrained from dismantling the machineries of the respondent no.1-company till the legal dues by the employer are paid. All the issues raised by Mr. Bhanage will have to be considered in the pending complaint and the impugned order is passed on the basis of the prima facie considerations. If the machineries are allowed to be dismantled and sold, the proceeds from such sale may remain with the bank or banks and in the meanwhile the employees will be deprived of their legal dues. I am, therefore, satisfied that it is an equitable order so as to protect the interests of the employees till their legal dues are paid and the said order cannot be termed as perverse or patently erroneous so as to cause interference under Article 227 of the Constitution. 8. The petition is, therefore, rejected summarily. Trial of the pending complaint is expedited and it is further directed that it be completed preferably by 30/4/2008. Writ to go to the Industrial Court forthwith. :7: (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)