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BRAHMAWARTA COMMERCIAL COOP. BANK LTD. THRU' SECY./G.M. versus RAJENDRA KUMAR DIXIT & OTHERS

High Court of Judicature at Allahabad

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Brahmawarta Commercial Coop. Bank Ltd. Thru' Secy./G.M. v. Rajendra Kumar Dixit & Others - WRIT - C No. 54146 of 2003 [2007] RD-AH 3257 (27 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 23

Civil Misc. Writ Petition No.54146 of 2003

Brahmawarta Commercial Cooperative Bank Ltd....................... Petitioner

Vs.

Rajendra Kumar Dixit and others........................................... Respondents

Hon. S.P. Mehrotra, J.

The present Writ Petition, under Article 226 of the Constitution of India, has been filed by the petitioner, inter-alia, praying for quashing the order dated 3.12.2003 (Annexure-3 to the Writ Petition).

It appears that the petitioner, Brahmawarta Commercial Cooperative Bank Ltd., Kanpur,  is registered under the provisions of the U.P. Cooperative Societies Act, 1965 (hereinafter also referred to as "the Societies Act, 1965"), and is governed by the provisions of the said Act and the Rules framed thereunder and the bye-laws of the said Bank.

It may be mentioned that the averments in this regard have been made in paragraph 3 of the Writ Petition. In paragraph 4 of the counter affidavit, filed on behalf of the respondent no.1 (Rajendra Kumar Dixit), it is stated that "the contents of paragraph nos.3 of the writ petition are denied and reply of this contents will be at the time of hearing".

As only a vague denial of the averments made in paragraph 3 of the Writ Petition was made in the said paragraph 4 of the counter affidavit, Shri Shravan Dwivedi, learned counsel for the respondent no.1 has been asked by the Court, during the course of arguments, whether the respondent no.1 is disputing that the petitioner is a Cooperative Society and is governed by the provisions of the Societies Act, 1965 and the Rules framed thereunder and the bye-laws of the Society.

Shri Shravan Dwivedi has stated that the said facts averred in paragraph 3 of the Writ Petition are not disputed.

It further appears that the respondent no.1 (Rajendra Kumar Dixit) was employed as Clerk/ Cashier in the petitioner-Bank. An enquiry was conducted against the respondent no.1 (Rajendra Kuamr Dixit) by an Inquiry Officer in regard to various alleged irregularities and misconducts allegedly committed by the respondent no.1 (Rajendra Kumar Dixit).

It further appears that pursuant to the said enquiry, the Disciplinary Authority, by the order dated 26.10.1993, terminated the services of the respondent no.1 (Rajendra Kumar Dixit).

Thereupon it appears that an industrial dispute was raised by the respondent no.1 (Rajendra Kumar Dixit), and the matter was referred to the Labour Court. The case before the Labour Court was registered as Adjudication Case No.155 of 1994.

It further appears that the Labour Court gave its Award dated 8.10.1997 in favour of the respondent no.1 (Rajendra Kumar Dixit).

It further appears that the petitioner-Bank challenged the said Award before this Court in Civil Misc. Writ Petition No. 22709 of 1998 wherein an interim order dated 27.7.1998 was passed.

Copy of the said interim order dated 27.7.1998 has been filed as Annexure-1 to the Writ Petition.

It further appears that the respondent no.1 (Rajendra Kumar Dixit) moved Applications under Section 33C(2) of the Industrial Disputes Act, 1947, which were registered as Misc. Cases before the Labour Court. The Labour Court passed orders dated 22.9.2000 in the said Misc. Cases whereupon the petitioner-Bank filed Civil Misc. Writ Petition No. 1049 of 2000 and Civil Misc. Writ Petition No. 1051 of 2000 before this Court. In Civil Misc. Writ Petition No. 1049 of 2000, an interim order dated 12.1.2001 was passed by this Court. The said interim order dated 12.1.2001 is reproduced in paragraph 11 of the Writ Petition.

In Civil Misc. Writ Petition No. 1051 of 2000, this Court passed an interim order dated 22.9.2000, which is quoted in paragraph 12 of the Writ Petition.

It further appears that the respondent no.1 (Rajendra Kumar Dixit) thereafter filed four Applications under Section 30C(2) of the Industrial Disputes Act, 1947, which were registered as Misc. Case Nos. 72 of 2002, 20 of 2001, 47 of 2001 and 193 of 2000. The said Misc. Cases were consolidated, and Misc. Case No. 193 of 2000 was made the leading case.

The Presiding Officer, Labour Court, Kanpur (respondent no.3) passed a common order dated 26.8.2003 deciding all the aforesaid four Misc. Cases. By the said order dated 26.8.2003, the Presiding Officer, Kanpur computed the amounts in respect of each of the said Misc. Cases, which the respondent no.1 (Rajendra Kumar Dixit) was entitled to get from the petitioner- Bank.

Copy of the said order dated 26.8.2003 has been filed as Annexure-2 to the Writ Petition.

It further appears that pursuant to the said order dated 26.8.2003, the respondent no.1 (Rajendra Kumar Dixit) moved an Application under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 whereupon the Deputy Labour Commissioner, Kanpur Region, Kanpur issued a Recovery Certificate dated 3.12.2003. Copy of the said Recovery Certificate has been filed as Annexure-3 to the Writ Petition.

Thereafter, the present Writ Petition has been filed seeking the reliefs mentioned above.

An interim order dated 8.12.2003 was passed in the present Writ Petition whereby the operation of the said order dated 3.12.2003 was stayed till the next date of listing.

Counter affidavit on behalf of the respondent no.1 (Rajendra Kumar Dixit) alongwith Civil Misc. Stay Vacation Application No. 85369 of 2004 has been filed in the present case.

In reply to the said counter affidavit, rejoinder affidavit has been filed on behalf of the petitioner-Bank.

I have heard Shri H.R. Mishra, learned counsel for the petitioner and Shri Shravan Dwivedi, learned counsel for the respondent no.1, and perused the record.

With the consent of the learned counsel for the parties, the Writ Petition is being disposed of finally at this stage.

Shri H.R. Mishra, learned counsel for the petitioner submits that the petitioner - Bank is registered under the provisions of the Societies Act, 1965, and is governed by the provisions of the said Act and the Rules framed thereunder and the bye-laws of the Bank. The Societies Act, 1965, the submission proceeds, provides a complete machinery for dealing with the disputes arising between a Cooperative Society and its employees. He particularly refers to the provisions of Sections 70, 71, 128, and 98 of the Societies Act, 1965. It is submitted that the disputes between a Cooperative Society and its employees excepting those regarding disciplinary action taken against a paid servant of the Society may be referred for arbitration under Section 70 of the Societies Act, 1965.

It is further submitted that under Section 128 of the Societies Act, 1965, the Registrar has power to annul any Resolution passed by the Committee of Management, or the general body of any Cooperative Society. Further, under the provisions of the said Section 128, the Registrar also has power to cancel any order passed by an Officer of a Cooperative Society.

It is pointed out by Shri Mishra that if the Registrar is of the opinion that the Resolution or the order referred to in Section 128 of the Societies Act, 1965 is not covered by the objects of the Society or is in contravention of the provisions of the Societies Act, 1965 or the Rules framed thereunder or the bye-laws of the Society, then the Registrar may exercise his power to annul the Resolution or cancel the order, as the case may be, under Section 128 of the Societies Act, 1965.

It is further submitted that after the order is passed by the Registrar under Section 128 of the Societies Act, 1965, an Appeal may be filed under Section 98 (1)(n) of the Societies Act, 1965.

In view of the above provisions of the Societies Act, 1965, besides other provisions of the said Act, the submission proceeds, a complete machinery has been provided under the Societies Act, 1965 for dealing with the disputes between a Cooperative Society and its employees. Therefore, the provisions of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947, are not applicable in case of a Cooperative Society registered under the Societies Act, 1965.

It is further submitted that as the provisions of the Industrial Disputes Act, 1947 or the U.P. Industrial Disputes Act, 1947 are not applicable in case of a Cooperative Society, the proceedings taken at the instance of the respondent no.1 (Rajendra Kumar Dixit) under the provisions of the said Acts were without jurisdiction.

It is further submitted that the provisions of the Societies Act, 1965 being a Special Act will prevail over the provisions of the general law as contained in the Industrial Disputes Act, 1947 or the U.P. Industrial Disputes Act, 1947.

In this regard, Shri Mishra relies on the following decisions:

1. R.C. Tiwari v. M.P. State Cooperative Marketing Federation Ltd. and others, (1997) 5 SCC 125.

2. Ghaziabad Zila Sahkari Bank Ltd. v. Additional Labour Commissioner and others, 2007 (2) ADJ 25 (SC).

In reply, Shri Shravan Dwivedi, learned counsel for the respondent no.1 refers to the provisions of Section 135 of the Societies Act, 1965. It is submitted by Shri Dwivedi that by Notification No. 9171-CA/10-9-62, dated 30.12.1967,  the whole Societies Act, 1965, excepting Section 135 of the said Act, was enforced with effect from 26.1.1968. In the circumstances, the submission proceeds, the provisions of Section 135 excluding the applicability of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947 have not been brought in force. Hence, it is submitted, the provisions of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947 are applicable to the Cooperative Societies despite the provisions of the Societies Act, 1965.

In rejoinder, Shri H.R. Mishra, learned counsel for the petitioner submits that irrespective of the fact that the provisions of Section 135 of the Societies Act, 1965 have not been brought into force, the provisions of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947 would not apply to Cooperative Societies. In this regard, he relies on the decision of the Supreme Court in Ghaziabad Zila Sahkari Bank Ltd. v. Additional Labour Commissioner and others (supra).

I have considered the submissions made by the learned counsel for the parties.

In order to appreciate the submissions made by the learned counsel for the parties, it is necessary to refer to certain statutory provisions.

At the outset, it may be noted that the U.P. Cooperative Societies Act, 1965 received the assent of the President on 24.3.1966 and was published in the U.P. Gazette dated 5.4.1966.

Section 70 of the Societies Act, 1965 lays down as under:

"70. Disputes which may be referred to arbitration.-(1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises-

(a)among members, past members and person claiming through members, past members and deceased members; or

(b)between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee of management or any officer, agent or employee of the society, including any past officer, agent or employee; or

(c)between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or

(d)between a co-operative society and any other co-operative society or societies;

such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute:

[Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election.]

(2) For the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely-

(a)claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party;

(b)a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or not;

(c)a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not; and

(d)all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers.

(3) If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court."

The above-quoted Section 70 of the Societies Act, 1965 deals with the disputes which may be referred to arbitration.

Sub-section (1) of Section 70 of the Societies Act, 1965, thus, inter-alia, provides that if any dispute (-other than a dispute regarding disciplinary action taken against a paid servant of a Cooperative Society-) arises between a Cooperative Society and its employee (including past employee), then such dispute shall be referred to the Registrar of Cooperative Societies for action in accordance with the provisions of the Societies Act, 1965 and the Rules framed thereunder. It is further provided under sub-section (1) of Section 70 of the Societies Act, 1965 that no Court shall have jurisdiction to entertain any Suit or other proceeding in respect of any such dispute. It is noteworthy that the provisions of sub-section (1) of Section 70 will have force "notwithstanding anything contained in any law for the time being in force."

Section 71 of the Societies Act, 1965 lays down as under:

"71. Reference of dispute to arbitration .- On receipt of a reference under sub-section (1) of Section 70, the Registrar may, subject to the provisions of the rules, if any-

(a)decide the dispute himself, or

(b)refer it for decision to an arbitrator appointed by him, or

(c)refer it, if the parties so request in writing, for decision to a board of arbitrators consisting of the three persons to be appointed in the prescribed manner.

(2) The Registrar may, for reasons to be recorded, withdraw any reference made under clause (b) or (c) of sub-section (1) and refer it to another arbitrator or board or arbitrators or decide it himself.

(3) The Registrar, the arbitrator or the board of arbitrators, to whom a dispute is referred for decision under this section may, pending the decision of the dispute make such interlocutory orders including attachment of property as he or they may deem necessary in the interest of justice.

(4) The decision given by the Registrar, the arbitrator or the board of arbitrators under this section shall hereinafter be termed as award.

(5) The procedure to be followed by the Registrar, the arbitrator or the board of arbitrators in deciding a dispute and making an award under this section shall be as may be prescribed."

Section 71 of the Societies Act, 1965, thus, deals with reference of dispute to arbitration. Sub-section (1) of Section 71 of the Societies Act, 1965 lays down that on receipt of a reference under sub-section (1) of Section 70, the Registrar may decide the dispute himself, or refer it for decision to an arbitrator appointed by him, or refer it, if the parties so request in writing, for decision to a board of arbitrators consisting of the three persons to be appointed in the prescribed manner.

Sub-section (3) of Section 71 of the Societies Act, 1965 gives power to the Registrar, the arbitrator or the board of arbitrators, to make such interlocutory orders, as he or they may deem necessary in the interest of justice.

Sub-section (4) of Section 71 of the Societies Act, 1965 lays down that the decision given by the Registrar, the arbitrator or the board of arbitrators under Section 71 shall be termed as "award".

Sub-section (5) of Section 71 of the Societies Act, 1965 provides that the procedure to be followed by the Registrar, the arbitrator or the board of arbitrators in deciding a dispute and making an award under Section 71 shall be, as may be prescribed [i.e. prescribed by Rules made under the Societies Act, 1965 - Sections 2(q) and 2(s) of the Societies Act, 1965].

Section 128 of the Societies Act, 1965 lays down as under:

"128. Registrar's power to annul resolution of a co-operative society or cancel order passed by an officer of a co-operative society in certain cases.- The Registrar may-

(i)annul any resolution passed by the Committee of Management, or the general body of any co-operative society; or

(ii)cancel any order passed by an officer of a co-operative society;

if he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the bye-laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society:

[Provided that, the Registrar shall, before making any order, require the Committee of Management, general body or officer of the co-operative society to reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall not be less than fifteen days, and if he deems fit may stay the operation of that resolution or the order during such period.]

Section 128 of the Societies Act, 1965 lays down that if the Registrar is of the opinion that the resolution passed by the Committee of Management or the general body of any Cooperative Society, or the order passed by an officer of a Cooperative Society,  is not covered by the objects of the Society or is in contravention of the provisions of the Societies Act, 1965, the Rules or the bye-laws of the Society, then the Registrar may annul such resolution or cancel such order, as the case may be. Upon the annulment of the resolution or the cancellation of the order, such resolution or order shall become void and inoperative and be deleted from the records of the Society.

Proviso to Section 128 of the Societies Act, 1965 provides that before making any order under Section 128, the Registrar shall  require the Committee of Management, general body or officer of the Cooperative Society to reconsider the resolution, or as the case may be, the order within such period as the Registrar may fix which shall not be less than fifteen days. For the period so fixed, the Registrar may stay the operation of that resolution or the order if he deems fit.

Section 97 of the Societies Act, 1965 provides for appeals against awards of Registrar.  The said Section 97 is reproduced below:

"97. Appeals against awards of Registrar.- (1) Any person aggrieved by any award of the Registrar made under clause (a) of sub-section (1), or sub-section (2) of Section 71 may, within thirty days after the date on which the award is communicated to such person, appeal to the Tribunal.

(2) The Tribunal after hearing an appeal under this section may pass such order as it may deem just."

In view of the provisions of sub-section (1) of Section 97, any person aggrieved by any award of the Registrar, made under clause (a) of sub-section (1), or sub-section (2) of Section 71, may appeal to the Tribunal constituted under Section 96 of the Societies Act, 1965.

Section 98 of the Societies Act, 1965 makes provision for appeal against the awards, orders and decisions. The said Section 98, in so far as is relevant, is as follows:

"98. Appeal against the awards, orders and decisions.-(1) An appeal against-

(a) to (g)............................

(h) an award made by an arbitrator or board of arbitrators under sub-section (1) or sub-section (2) of Section 71;

(i) to (m)..............................

(n) an order passed by the Registrar under Section 128 annulling any resolution or cancelling any order, may, within thirty days of the communication of the order, decision or award to be appealed against, be preferred by the aggrieved party to the authorities mentioned in sub-section (2) in the manner prescribed.]

(2) An appeal under [clauses (c), (d), (e), (f), (g), (k) and (l) ] of sub-section (1) shall be preferred to the Tribunal, and an appeal under Clauses [clauses (a), (b), (h), (i), (j), (m) and (n) ] of the said sub-section shall be preferred-

(a)if the decision or the order was made by the Registrar, to the State Government; or

(b)if the decision or order or award was made by any other person or authority, to the Registrar.

      [(c)   if the order or award was made on a dispute relating to an election, to the Tribunal.]

(3) Notwithstanding anything contained in clause (b) of sub-section (2), the State Government may by notification in the Gazette, direct that appeals against awards mentioned in clause (h) of sub-section (1) shall, in respect of such cases or class of cases, as may be specified in the said notification lie to the Tribunal, and thereupon any person aggrieved by such award, may appeal to the Tribunal.

(4) The appellate authority after hearing an appeal under this section may pass such orders as it may deem fit."

Thus, in case an award is made by an arbitrator or Board of Arbitrators  under sub-section (1) or sub-section (2) of Section 71 of the Societies Act, 1965, then an appeal may be filed under Section 98 (1)(h) of the Societies Act, 1965 against such an award.

Similarly, if the Registrar passes an order under Section 128 of the Societies Act, 1965 annulling any resolution or cancelling any order, then an appeal may be filed under Section 98(1)(n) of the Societies Act, 1965.

The appeal provided for under various clauses of sub-section (1) of Section 98 may be filed within 30 days of the communication of the order, decision or award to be appealed against. Such appeal may be preferred by the aggrieved party to the authorities mentioned in sub-section (2) of Section 98 of the Societies Act, 1965. The filing of the appeal will be in the manner prescribed [ i.e. prescribed by Rules framed under the Societies Act, 1965 -Sections 2(q) and 2(s) of the Societies Act, 1965].

Section 99 of the Societies Act, 1965 deals with review of order of appellate authority. The said Section 99 lays down as follows:

"99. Review of order of appellate authority.- (1)  The appellate authority under Section 97 or Section 98, as the case may be, may on the application of any party, review its order in any case and pass in reference thereto such order as it thinks fit.

Provided that no such application shall be entertained unless the appellate authority is satisfied that there has been a discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the order was made or that there has been some mistake or error apparent on the face of the record or for any other sufficient reason:

Provided further that no such order shall be made under this sub-section unless notice has been given to all interested parties and they have been afforded a reasonable opportunity of being heard.

(2) An application for review under sub-section (1) by any party shall be made within thirty days from the date of communication of the order of the appellate authority sought to be reviewed."

Thus, the appellate authority under Section 97 or Section 98 of the Societies Act, 1965, as the case may be, has been given power under sub-section (1) of Section 99 to review its order on an application made by any party within thirty days from the date of communication of the order of the appellate authority. Grounds for review are indicated in the First Proviso to sub-section (1) of Section 99.

Section 100 of the Societies Act, 1965 lays down as follows:

"100. Interim orders.- Where an appeal is preferred under Section 97 or Section 98, the appellate authority may, in order to prevent the ends of justice being defeated, make such interlocutory orders pending the decision of the appeal as it may deem fit."

Thus, Section 100 of the Societies Act, 1965, inter-alia, gives power to the appellate authority to make interlocutory orders pending decision of the appeal preferred under Section 97 or Section 98 of the Societies Act, 1965.

Section 102 of the Societies Act, 1965 deals with finality of orders and decisions, and lays down as follows:

"102. Finality of orders and decisions.- Every award made under Section 71 and every order of the nature referred to in sub-section (1) of Section 98 where no appeal has been preferred against such award or order under Section 97 or Section 98, as the case may be, and every decision in appeal under the said sections, shall, subject to Section 99, be final and binding on the parties concerned and shall not be questioned in any court."

Thus, Section 102 of the Societies Act, 1965, inter-alia, lays down that the decision given in appeal under Section 97 or Section 98 shall be final and binding on the parties concerned and shall not be questioned in any Court.

From a perusal of the provisions, quoted above, it is evident that the Societies Act, 1965 provides a complete machinery for dealing with the disputes between a Cooperative Society and its employees (including its past employees).

Section 135 of the Societies Act, 1965 lays down as follows:

"135. Certain Acts not to apply to co-operative societies.- The provisions contained in the Industrial Disputes Act, 1947 (Act XIV of 1947), and the U.P. Industrial Disputes Act, 1947 (U.P. Act XVIII of 1947), shall not apply to Co-operative Societies."

Thus, in view of Section 135 of the Societies Act, 1965, the provisions contained in the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947 would not apply to Cooperative Societies.

However, by Notification No. 9171-CA/10-9-62, dated 30.12.1967, the whole Societies Act, 1965, excepting Section 135, was enforced with effect from 26.1.1968. Hence, the provisions of Section 135 of the Societies Act, 1965 have not been brought in force as yet.

Let us now consider the rulings cited by the learned counsel for the petitioner.

In R.C. Tiwari case (supra), their Lordships of the Supreme Court laid down as under (paragraphs 2,3 and 4 of the said SCC ):

"2. The only question in this case is : Whether the reference under Section 10(1) of the Industrial Disputes Act, 1947 (for short "the Act") is maintainable in view of the provisions contained in the M.P. Cooperative Societies Act, 1960 (for short "the Societies Act")? Admittedly, the petitioner was dismissed from service for his misconduct. Thereafter, he sought a reference under the Societies Act which was confirmed and became final. On a reference made under the Act, the Labour Court in Case No. 48 of 1985 held that domestic enquiry was vitiated by illegality and accordingly it set aside the order of dismissal. In Writ Petition No. 2077 of 1992 by judgment dated 8-7-1996, the High Court has held that in view of the provisions contained in Section 55 of the Societies Act, the Labour Court has no jurisdiction and, therefore, the reference is bad. It is also held that since the finding was recorded by the Deputy Registrar, Cooperative Societies against the petitioner in the award, it operates as res judicata. The question is whether the view taken by the High Court is correct in Law.........................."

3. The learned counsel for the petitioner seeks to place reliance on Section 64 of the Act dealing with disputes referable to the arbitration and contends that the dispute of dismissal from service of the employee of the society being not one of the disputes referable to arbitration under the Societies Act, the award of the Deputy Registrar is without jurisdiction. He relied on the decision of this Court in Coop. Central Bank Ltd. v. Additional Industrial Tirbunal, (1969) 2 SCC 43 : AIR 1970 SC 243. He also places reliance on Section 93 of the Societies Act which states that nothing contained in the Madhya Pradesh Shops and Establishments Act, 1958, the M.P. Industrial Workmen (Standing Orders) Act, 1959 and the M.P. Industrial Relations Act, 1960 shall apply to a society registered under this Act. By necessary implication, application of the Act has not been excluded and that, therefore, the Labour Court has jurisdiction to decide the matter. We find no force in the contention. Section 55 of the Societies Act gives power to the Registrar to deal with disciplinary matters relating to the employees in the society or a class of societies including the terms and conditions of employment of the employees. Where a dispute relates to the terms of employment, working conditions, disciplinary action taken by a society, or arises between a society and its employees, the Registrar or any officer appointed by him, not below the rank of Assistant Registrar, shall decide the dispute and his decision shall be binding on the society and its employees. As regards power under Section 64, the language is very wide, viz., "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, management or business of a society or the liquidation of a society shall be referred to the Registry by any of the parties to the dispute." Therefore, the dispute relating to the management or business of the society is very comprehensive as repeatedly held by this Court. As a consequence, special procedure has been provided under this Act. Necessarily, reference under Section 10 of the Societies Act stands excluded. The judgment of this Court arising under Andhra Pradesh Act has no application to the facts for the reason that under that Act the dispute did not cover the dismissal of the servants of the society for which the Act therein was amended.

4. Admittedly, there is a finding recorded by the Deputy Registrar upholding the misconduct of the petitioner. That constitutes res judicata. No doubt, Section 11 CPC does not in terms apply because it is not a court, but a tribunal, constituted under the Societies Act is given special jurisdiction. So, the principle laid down thereunder mutatis mutandis squarely applies to the procedure provided under the Act. It operates as res judicata. Thus, we find that the High Court is well justified in holding that the Labour Court has no jurisdiction to decide the dispute once over and the reference itself is bad in law."

It will, thus, be noticed that in view of the provisions of the M.P. Cooperative Societies Act, 1960, their Lordships of the Supreme Court upheld the decision of the High Court holding that the Labour Court had no jurisdiction to decide the dispute and the reference itself was bad in law.

In Ghaziabad Zila Sahkari Bank Ltd., their Lordships of the Supreme Court considered the provisions of the U.P. Cooperative Societies Act, 1965 vis-a-vis the provisions of the U.P. Industrial Disputes Act, 1947, and opined as under (paragraphs 10,11,12,23,25,26,47,48,53 and 71 of the said ADJ):

"10. Mr. Sunil Gupta, learned senior counsel for the appellant submitted that the ALC's jurisdiction was wrongly invoked and his order dated 15.3.2002 under Section 6H of the U.P.I.D. Act was without jurisdiction, null and void. According to Mr. Sunil Gupta, the general legal principle is that, general act should yield to the subject act. Upon this general principle of law, the intention of the U.P. Legislature is clear, namely, that the special enactment, U.P.C.S. Act, 1965 alone should apply in the matter of employment of cooperative societies to the exclusion of all labour laws.................."

"11. In view of the general legal principle, Mr. Gupta submitted that it is immaterial whether or not the Government has enforced Section 135 UPCS Act because in any case the said provision had been included in the Act only by way of clarification and abundant caution."

"12. He further submitted that the enforcement of the entire intent of the legislature in the form of enforcement of the entire scheme and provisions of the Act having taken place, is wholly immaterial and that the clarificatory and cautionary provision of Section 135 has not been given by the Government and an appointed date  for enforcement under Section 1(3) and that such non-appointment of date makes no difference to the legal consequences of the aforesaid general principle of law which, in any case, results in exclusion and implied repeal of the U.P.I.D. Act on first legal principles."

"23. Ms. Indira Jaisingh, learned senior counsel appearing for respondents 2-4, submitted as follows before us."

"25. It was ............. submitted that the U.P.I.D. Act is a special stature dealing with Industrial Disputes and therefore will exclude the application of U.P. Cooperative Societies Act which is a general statute."

"26. It was submitted that it has been placed beyond any doubt that the U.P. Cooperative Societies Act is an Act dealing with Cooperative Societies and not industrial disputes and the provisions therein are themselves unambiguous about the applicability into force indicates clearly that (a) in order to exclude Labour laws there must be statutory exclusion (b) failing such an exclusion Labour Law will apply. In this case, there is a fact an exclusion however under Section 135 has not been brought into force."

"47. We have heard all the parties in detail and have carefully perused through all records placed before us. In our opinion, the arguments of the appellants deserve favourable consideration for the reasons stated infra."

"48. The general legal principle in interpretation of statutes is that ''the general Act should lead to the special Act'. Upon this general principle of law, the intention of the U.P. legislature is clear, that the special enactment U.P. Co-operative Societies Act, 1965 alone should apply in the matter of employment of Co-operative Societies to the exclusion of all other Labour Laws. It is a complete code in itself as regards employment in co-operative societies and its machinery and provisions. The general Act the UPID Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the UPCS Act. This is also clear from necessary implication that the legislature could not have intended ''head-on-conflict and collision' between authorities under different Acts......................................"

"53. We are therefore of the view that the Asst. Labour Commissioner (ALC)'s jurisdiction was wrongly invoked and his order dated 15.3.2003 under Section 6-H, U.P. Industrial Disputes, Act, 1947 is without jurisdiction and hence null and void and it can be observed that, in view of the said general legal principle, it is immaterial whether or not the government has enforced Section 135 (UPCS Act) because, in any case the said provision (S 135) had been included in the Act only by way of clarification and abundant caution........................................"

"71. Alongwith the appeal, some appointment orders have been filed as annexures. The appointment order clearly says that the services were governed by the Service Regulations, 1975 and the bye-laws of the bank. It is relevant to mention here that the services of the employees of the Bank are governed by Service Regulations 1975 framed under the Act of 1965, which provides complete machinery and adjudication. Moreover, the provisions under Section 70 of the U.P. Cooperative Societies Act, 1965 is elaborate in this regard, which provides complete machinery that if there is any dispute between the employers and the employees of the Cooperative Society, the matter shall be referred to the Arbitrator as provided under Section 70 of the U.P. Cooperative Societies Act, 1965. Section 70 of the U.P. Cooperative Societies Act and Section 64 of the M.P. Cooperative Societies Act are pari materia and this Court in the matter of R.C. Tiwari v. M.P. State Cooperative Marketing Federation Ltd. 1997 (5) SCC 125 held that Labour Court and Industrial Laws are not applicable where complete machinery has been provided under the provisions of the Cooperative Societies Act and in such view of the matter the Ld. Additional Labour Commissioner U.P. has no jurisdiction to pass orders in the nature it has been passed."

It will, thus, be seen that in Ghaziabad Zila Sahkari Bank Ltd. case (supra), their Lordships of the Supreme Court have considered the provisions of the U.P. Cooperative Societies Act, 1965. Their Lordships of the Supreme Court are of the opinion that as the U.P. Cooperative Societies Act, 1965 provides complete machinery if there is any dispute between the employers and the employees of the Cooperative Society, the Industrial Laws are not applicable for resolving such disputes.

It has been held that the U.P. Cooperative Societies Act, 1965 is a special enactment and it shall apply in the matter of employment of Cooperative Societies to the exclusion of all other Labour Laws. The U.P. Cooperative Societies Act, 1965 is a complete Code in itself as regards employment in Cooperative Societies and its machinery and provisions. The general Act i.e., the U.P. Industrial Disputes Act, 1947 has and can have no applicability and stands excluded after the enforcement of the U.P. Cooperative Societies Act, 1965.

It has further been held that the jurisdiction of the Assistant Labour Commissioner was wrongly invoked and his order dated 15.3.2003 under Section 6H of the U.P. Industrial Disputes Act, 1947 is without jurisdiction and hence null and void.

It has further been held that it is immaterial whether or not the Government has enforced Section 135 of the U.P. Cooperative Societies Act, 1965 because, in any case, the said provision (Section 135) had been included in the U.P. Cooperative Societies Act, 1965 only by of clarification and abundant caution.

In Ghaziabad Zila Sahkari Bank Ltd. case (supra), their Lordships of the Supreme Court followed the decision of the Supreme Court in R.C. Tiwari case (supra).

In view of the above decisions, it is evident that the provisions of the U.P. Cooperative Societies Act, 1965, being a special enactment, will prevail over the provisions of the general law, as contained in the Industrial Disputes Act, 1947 or the U.P. Industrial Disputes Act, 1947.

The U.P. Cooperative Societies Act, 1965, as noted above, provides a complete machinery for resolving disputes between Cooperative Societies and its employees. Therefore, the provisions of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947 are not applicable in case of Cooperative Societies registered under the U.P. Cooperative Societies Act, 1965. It is further evident that the provision, as contained in Section 135 of the U.P. Cooperative Societies Act, 1965, has been made by way of clarification and abundant caution. Therefore, even though Section 135 of the U.P. Cooperative Societies Act, 1965 has not as yet been brought in force, still the above conclusions regarding exclusion of the applicability of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947 to the Cooperative Societies registered under the U.P. Cooperative Societies Act, 1965 will hold good.

It is further apparent that in case any proceeding in respect of a Cooperative Society, registered under the U.P. Cooperative Societies Act, 1965, is taken under the Industrial Disputes Act, 1947 or the U.P. Industrial Disputes Act, 1947, such proceeding would be without jurisdiction, and the orders passed in such proceeding would be null and void.

Keeping in view the above legal position, as emerging from the relevant statutory provisions and the judicial decisions,  let us consider the facts of the present case.

As mentioned above, it has not been disputed by the learned counsel for the respondent no.1 (Rajendra Kumar Dixit), during the course of arguments, that the petitioner-Bank is a Cooperative Society and is governed by the provisions of the Societies Act, 1965 and the Rules framed thereunder and the bye-laws of the Society.

As noted above, the respondent no.1 (Rajendra Kumar Dixit) moved Applications under Section 33 C(2) of the Industrial Disputes Act, 1947, which were registered as Misc. Case Nos. 72 of 2002, 20 of 2001, 47 of 2001 and 193 of 2000. The said Misc. Cases were consolidated, and Misc. Case No. 193 of 2000 was made the leading case.

The Presiding Officer, Labour Court, Kanpur (respondent no.3) passed a common order dated 26.8.2003 deciding all the aforesaid Misc. Cases. By the said order dated 26.8.2003, the Presiding Officer, Kanpur computed the amounts in respect of each of the said Misc. Cases, which the respondent no.1 (Rajendra Kumar Dixit) was entitled to get from the petitioner- Bank.

Pursuant to the said order dated 26.8.2003, the respondent no.1 (Rajendra Kumar Dixit) moved an Application under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 whereupon the Deputy Labour Commissioner, Kanpur Region, Kanpur issued a Recovery Certificate dated 3.12.2003.

Thereafter,  the present Writ Petition has been filed seeking the reliefs mentioned above.

It will, thus, be seen that the respondent no.1 (Rajendra Kumar Dixit) invoked the provisions of Section 33 C(2) of the Industrial Disputes Act, 1947 giving rise to various Misc. Cases, mentioned above, wherein the said order dated 26.8.2003 was passed by the Presiding Officer, Labour Court, Kanpur.

The respondent no.1 (Rajendra Kumar Dixit) further invoked the provisions of Section 6H(1) of the U.P. Industrial Disputes Act, 1947 whereupon the said Recovery Certificate dated 3.12.2003 was issued by the Deputy Labour Commissioner, Kanpur Region, Kanpur.

In view of the legal position discussed above, it is evident that the proceedings under Section 33 C(2) of the Industrial Disputes Act, 1947 before the Presiding Officer, Labour Court, Kanpur were without jurisdiction. Similarly, the proceedings under Section 6H(1) of the U.P. Industrial Disputes Act, 1947 before the Deputy Labour Commissioner, Kanpur Region, Kanpur were without jurisdiction. The order dated 26.8.2003 passed by the Presiding Officer, Labour Court,  Kanpur in regard to various Misc. Cases under Section 33C(2) of the Industrial Disputes Act, 1947 as well as the Recovery Certificate dated 3.12.2003 issued by the Deputy Labour Commissioner, Kanpur Region, Kanpur on an Application under Section 6H(1) of the U.P. Industrial Disputes Act, 1947 were null and void.

Hence, the present Writ Petition is allowed.

The proceedings before the Presiding Officer, Labour Court, Kanpur, in Misc. Cases Nos. 72 of 2002, 20 of 2001, 47 of 2001 and 193 of 2000 under Section 33C(2) of the Industrial Disputes Act, 1947 as also the order dated 26.8.2003 (Annexure-2 to the Writ Petition) passed by the Presiding Officer, Labour Court, Kanpur in the said Misc. Cases are quashed.

Further, the proceedings before the Deputy Labour Commissioner, Kanpur Region, Kanpur under Section 6H(1) of the U.P. Industrial Disputes Act, 1947 as also the Recovery Certificate dated 3.12.2003 (Annexure-3 to the Writ Petition) issued by the Deputy Labour Commissioner, Kanpur Region, Kanpur, are quashed.

This decision will, however, not prejudice the right of the respondent no.1 (Rajendra Kumar Dixit) to seek appropriate remedies under the provisions of the U.P. Cooperative Societies Act, 1965.

On the facts and circumstances of the case, there will be no order as to costs.

Dt. 27.2.2007

Safi


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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