Gujarat State Cooperative Land
Development Bank Ltd. Vs. P. R. Manded & Ors [1979] INSC 14 (23 January
1979)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION: 1979 AIR 1203 1979 SCC (3) 123
ACT:
New plea, entertainments of-Not permissible
at the appellate level.
Bombay Co-operative Societies Act, 1925,
(Bombay Act VII of 1925) Section 54 and Section 96 of the Gujarat Co- operative
Societies Act, 1961-Scope of the words "any dispute touching the business
of the society" Bombay Industrial Relations Act, 1946 (Bombay Act 11 of
1947) Section 2(4) notification under, read with s. 166(1) of the Gujarat
Co-operative Societies Act, 1961, effect of.
HEADNOTE:
The appellant Bank was a society registered
under the Bombay Co-operative Societies Act, 1925 and with the coming into
force from May 1, 1962 of the Gujarat Co-operative Societies Act, 1961, it came
to be governed by the said Act.
By Notification No. BIR-1362-5-H dated March
2, 1963, the Government of Gujarat directed under s. 2(4) of the Bombay
Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions
of the said Act shall apply with effect from March 15, 1963 to the business of
banking by Co- operative Banks in the Saurashtra and Kutch areas of the State,
registered and deemed to be registered under the Gujarat Co-operative Societies
Act, 1961.
The second respondent, Babu Bhai Negracha who
was working as an additional supervisor in the Dasada Branch of the appellant
Bank and whose services were terminated by an order dated February 21, 1962, by
giving him one month's pay in lieu of notice under Staff Regulation No. 15,
filed an application in the Labour Court Rajkot, alleging that his services had
been illegally and maliciously terminated as an act of victimisation on account
of his trade union activities and praying for setting aside the order of his
termination of service and for reinstatement with full back wages.
The Labour Court by its order dated June 11,
1963, over-ruled the preliminary objection raised by the appellant Bank,
namely, that "the Bombay Industrial Relations Act, 1946 under which the
application was made by the respondent was not applicable to its case, as it
was a co-operative society governed by the Gujarat Co-operative Societies Act, under
which only the Registrar or his nominee had jurisdiction to decide the dispute,
and the Labour Court had no jurisdiction to entertain and decide the
application".
The appellant Bank's writ petition
challenging the said order of the Labour Court was dismissed by the Gujarat
High Court by its judgment dated August 25, 1967.
Dismissing the appeal by certificate, the
Court
HELD: 1. No new plea can be raised for the
first time in the Supreme Court, as a matter of right. In the instant case, the
new plea that "the appellant is not doing banking business" was not
entertained for the reasons 1024 namely (i) it was much too belated; (ii) it
stood in direct contradiction to the position taken by the appellant in its
writ petition and the affidavit in support thereof in the High Court wherein it
had been clearly admitted that "the society is engaged in the business of
banking" and (iii) it was not a purely legal plea but a mixed plea of law
and fact and could not be determined on the basis of material already on the
record. [1027 F-G]
2. The expression "any dispute"
referred to in Section 54 of the Bombay Cooperative Societies Act, 1925 and in
Section 96 of the Gujarat Cooperative Societies Act, does not cover a dispute
of the kind raised by respondent 2 against the appellant-bank. [1034 C] (a) It
is clear from the object and the scheme of the Acts of 1925 and 1961 that the
legislature never intended to give such a wide scope to the expression
"any dispute" so as to cover all classes of disputes whatever be their
nature as the prefix "any" to "dispute" appears to give.
The term "dispute" means a controversy having both positive and
negative aspects. It postulates the assertion of a claim by one party and its
denial by the other.
[1031 C-D] (b) The expression "any
dispute" has not been defined in the Acts of 1925 and 1961. This
expression has been used in a narrower sense limited to contested claims of a
civil nature, which could have been decided by civil or revenue courts, but for
the provisions with regard to compulsory arbitration by the Registrar or his
nominee found in Section 54 of the Bombay Act of 1925 and in Section 96 of the
Gujarat Act, 1961. The words "as if the dispute were a suit and the
Registrar as Civil Court" occurring in sub-section (k) of Section 97 of
the Gujarat Act, also make this position clear. [1031 C, D, E, G] (c) The
compulsory arbitration by the Registrar on reference under s. 96 is only a
substitute for adjudication of disputes of a civil nature normally tried by the
Civil Court. It is incumbent, under sub-section (2) of s. 96 of the 1961 Act,
on the Registrar to decide as a preliminary issue, whether the dispute is of a
kind under sub-section (1) of s. 96 falling within his jurisdiction. If this
preliminary issue is found in the negative he will have no further jurisdiction
to deal with the matter. [1031 F, G- 1032 F] (d) Thus considered, a dispute
raised against the Society by its discharged servant claiming reliefs, such as,
reinstatement in service with back wages, which are not enforceable in a civil
court, is outside the scope of the expression "touching the management of
the Society" used in s. 96(1) of the Act of 1961, and the Registrar has no
jurisdiction to deal with and determine it. What has been directly bidden
"out-of-bounds" for the Registrar by the very scheme and object of
the Act, cannot be directly inducted by widening the connotation of
'management'. Such a dispute squarely falls within the jurisdiction of the
Labour Court under the Bombay Industrial Relations Act. [1036 E-G]
3. The law of Industrial disputes or
Industrial Relations is a special law dealing with rights and obligations
specially created by it. The provisions in s. 54 of the Bombay Act and in s. 96
of the Gujarat Act being general provisions in accordance with the maxim
generalia specialibus non derogant, nothing in these general provisions can
derogate from Bombay Industrial Relations Act, and the Cooperative Societies
Act must yield to the special provi- 1025 sions in the Bombay Industrial
Relations Act, whenever a dispute clearly comes within the language of the
latter Act.
Section 166(1) of the Gujarat Act, in terms,
bars the jurisdiction only of Civil or Revenue Court, and not of the Labour
Court or any Industrial Tribunal constituted under the Bombay Industrial
Relations Act or Industrial Disputes Act. The legislature never intended to
oust the jurisdiction of the Labour Court or the Industrial Tribunal to
determine claims and industrial disputes which cannot be adjudicated by the
ordinary Civil Court. [1032 H, 1033 A, 1034 A-B] In the instant case
(a) The Labour Court is competent to grant
the relief of reinstatement while in view of s. 21(b) of the Specific Relief
Act, then in force, the Civil Court was not competent to grant that relief. If
a Court is incapable of granting the relief claimed, normally the proper
construction would be that it is incompetent to deal with the matter. [1033 F,
H] (b) The dispute was raised by the second respondent by writing an approach
letter to his employee, the appellant, as required by the Bombay Industrial
Relations Act. In substance, it was an industrial dispute. It was not
restricted to a claim under the contract or agreement of employment. [1033 F-G]
(c) The rights and reliefs claimed by the second respondent could not be
determined and granted by a Civil Court in a suit. His allegation was that his
services were terminated unfairly and vindictively because of his legitimate
trade union activities, as an act of victimisation. The relief claimed is
reinstatement in services with back wages. The rights claimed are those which
are conferred on workmen and employees under the Bombay Industrial Relations
Act to ensure social justice. Such rights which do not stem from the contract
of employment can be enforced only in the Labour Court constituted under B.I.R.
Act. [1033 B-F] Jullundur Transport Cooperative Societies Ltd. v.
Punjab State, AIR 1959 Pun. 34; approved.
Rohtas Industries Ltd. v. Brijnandan Pandey,
[1956] SCR 800; referred to.
(d) Neither the Registrar nor his nominee
will be competent to grant the relief of requiring change in the service
conditions of the employee. Such a relief could be granted by the Industrial
Tribunal which under the Industrial Disputes Act, has the jurisdiction even to
vary contracts of service between an employer and employees.
[1037 C-D] Co-operative Central Bank Ltd. v.
Additional Industrial Tribunal, Hyderabad [1970] 1 SCR 205; applied.
Farkhundali Naunhay v. V. B. Potdar, AIR 1962
Bom. 362 over-ruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 236 of 1969.
Appeal from the Judgment and Order dated
24/25th August 1967 of the Gujarat High Court in SCA No. 585/63.
S. K. Dholakia and R. C. Bhatia for the
Appellant.
1026 P. Ram Reddy, Amicus Curiae for
Respondent No. 2.
The Judgment of the Court was delivered by
SARKARIA, J. The appellant is the Gujarat State Cooperative Land Development
Bank Ltd. (hereafter referred to as the Bank). It is a Society registered under
the Bombay Cooperative Societies Act, 1925, as applicable to the erstwhile
State of Saurashtra. According to the appellant's writ petition, it is doing
banking business. It has 127 Branches spread all over the State of Gujarat. One
of its Branches is in Dasada, Surendranagar District. The Head Office of the Bank
is at Ahmedabad.
The second respondent, Babu Bhai Negracha,
was serving as an Additional Supervisor in the Dasada Branch of the Bank. His
services were terminated by an order, dated February 21, 1962, by giving him
one month's pay in lieu of notice under Staff Regulation No. 15.
The Gujarat Cooperative Societies Act, 1961,
came into force from May 1, 1962, and the appellant-Bank, being a Society,
under the Cooperative Societies Act, came to be governed by the said Act.
By Notification No. BIR-1362-5-H, dated March
2, 1963, published in the Gujarat Gazette in March 1963, the Government of
Gujarat directed under Section 2(4) of the Bombay Industrial Relations Act,
1946 (Bombay Act 11 of 1947) that all the provisions of the said Act shall
apply with effect from March 15, 1963 to the business of banking by Cooperative
Banks in the Saurashtra and Kutch areas of the State, registered and deemed to
be registered under the Gujarat Cooperative Societies Act, 1961.
Aggrieved by the termination of his service,
the second respondent approached the appellant's Dasada's Branch by a letter,
dated August 20, 1962, stating that since his services were terminated
illegally by way of victimisation, he should be reinstated in the service.
Thereafter, the second respondent filed an
application in the Labour Court at Rajkot, alleging that his service had been
illegally and maliciously terminated as an act of victimisation on account of
his trade union activities. He prayed for setting aside the order of his
termination of service and for reinstatement with full back wages.
The Bank filed a written statement, raising a
preliminary objection that the Bombay Industrial Relations Act, 1946, under
which the application was made by the respondent, was not applicable to its
case, as it was a Cooperative Society governed by the Gujarat Co-operative
Societies Act, under which only the Registrar or his nominee 1027 had
jurisdiction to decide the dispute, and the Labour Court had no jurisdiction to
entertain and decide the application of the second respondent.
By its Order, dated June 11, 1963, the Labour
Court overruled this objection and held that it had jurisdiction to hear the
application.
The Bank then filed a writ petition under
Article 226 of the Constitution in the High Court to challenge the Order of the
Labour Court. The High Court by a common judgment dated August 25, 1967
dismissed the writ petition, but in view of the importance of the question of
law involved, granted a certificate of fitness for appeal to this Court.
On the strength of that certificate, the Bank
has come in appeal before us against the aforesaid judgment of the High Court.
In this Court on January 22, 1969, the Bank
made an application for leave to urge as additional ground, namely, that the
Bank is not doing banking business, i.e. accepting for the purpose of lending
or investment of deposits of money from the public, repayable on demand or
otherwise, and withdrawable by cheque, draft, order or otherwise as defined in
Section 5, Clauses (b) and (c) of the Banking Companies Act, 1949; and that
this being the true position, the Notification No. DIR-1362-IV-H dated March 2,
1963, published in the Gujarat Government Gazette dated March 7, 1963, under
Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act XI of
1947) is not applicable to the appellant. This application was strenuously
opposed by Shri Ram Reddy, who is assisting the Court as amicus curiae on
behalf of respondent 2, who has not been able to appear and defend himself in
this appeal.
We have declined permission to raise this new
plea for the first time in this Court, for these reasons: (i) It is much too
belated; (ii) It stands in direct contradiction to the position taken by the
appellant in its writ petition and the affidavit in support thereof filed in
the High Court.
Therein, the appellant had categorically
pleaded: "The petitioner is a Society registered under the Bombay
Cooperative Societies Act, 1925 (Bombay Act VII of 1925)....and is engaged in
the business of banking." (iii) It is not a purely legal plea but a mixed
plea of law and fact, and cannot be determined on the basis of material already
on the record.
We, therefore, take it that the appellant is
a Cooperative Society engaged in the business of banking and, as such, the
Bombay Industrial 1028 Relations Act, 1946 is applicable to it by virtue of the
aforesaid Notification dated March 2, 1963, issued by the State Government
under Section 2(4) of that Act.
The arguments of Mr. Dholakia, appearing for
the appellant, may be summarised as follows:
(i) The case is governed by the Gujarat
Cooperative Societies Act, 1961 (hereafter called the Act of 1961) and not by
the Bombay Cooperative Societies Act, 1925 (hereafter referred to as the Act of
1925).
(ii) The phrase "any dispute
touching.....the business of the Society", particularly the word
"touching" therein, is of very wide amplitude. It would comprehend
any matter which relates to, or concerns or affects the business of the
Society. Every society, ex-necessitiate employs some servants for the purpose
of carrying on its business. That being so, the payment of wages, appointment
and removal of its servants under law is a part of the business or
"touches" the business of the Society. (Reliance for this argument
has been placed on Farkhundali Naunhay v. V. B. Potdar (1).
(iii) Even if contention (ii) is not
accepted, the dispute raised by the respondent, Babu Bhai Negracha is one
"touching the management of the Society". The expression 'management'
takes in the entire staff or establishment of servants which run the affairs of
the Society.
(iv) Once it is held that the dispute between
the Society and its past servant, Babu Bhai Negracha, touches the
"business" or the "management" of the Society, or both,
within the meaning of Section 96, the Registrar or his nominee, alone, shall
have jurisdiction to adjudicate such dispute by compulsory arbitration; and the
non-obstante clause in the Section shall bar the determination of that dispute
by the Industrial Tribunal or the Labour Court under the Bombay Industrial
Relations Act.
As against the above, Mr. Rama Reddy, amicus
curiae, submitted as under:
(i) Since the services of the second
respondent were terminated on February 21, 1962, before the Act of 1961 came
into force, the Act relevant for this discussion is the Act of 1925.
(ii) Irrespective of whether the Act of 1925
or the Act of 1961 governs the appellant-Society, the expression "any
dispute" commonly occurring in Section 54 of the Act of 1925 and Section
96 of the 1029 Act of 1961, is restricted in its scope to a dispute of a civil
nature which is capable of being resolved by the Registrar or his nominee, and
does not take in an industrial dispute between the Society and its workmen
which under the B.I.R. Act is triable by the Labour Court/Industrial Tribunals,
only.
(iii) B.I.R. Act is a special law, dealing
with the special subject of industrial disputes, which in their nature are
essentially different from ordinary Civil disputes between an employer and his
employee governed by the Law of Contract, B.I.R. Act provides for a special
machinery for adjudication of industrial disputes. As against this, the
Cooperative Societies Act of 1925/or of 1961 is a general enactment and it must
yield to the B.I.R.
Act whenever the provisions of the latter by
their language are clearly applicable to a dispute. Reference has been made to
Jullundur Transport Cooperative Society Ltd. v. Punjab State(1).
(iv) The scope of the expression "any
dispute touching the business of the Society", occurring in Section 54 of
the Act of 1925/or Section 96 of the Act of 1961 is limited to disputes
directly relating to the actual trading or commercial activities of the
Society. This expression does not take in a dispute between the Society and its
employee relating to the conditions of his employment, which will include the
termination of his employment. This point is concluded by the decision of this
Court in Cooperative Central Bank Ltd. v. Additional Industrial Tribunal,
Hyderabad(2), which follows the ratio of its earlier decision in Deccan
Merchants Cooperative Bank Ltd. v. Dalichand Jungraj Jain(3). In view of these
decisions, the ratio of Farkhundali's case (ibid) decided by the Bombay High
Court, is no longer good law.
(v) The expression "management" in
Section 96 of the Act of 1961, means "the Board of Directors", or
"the Board of Trustees", or the "Managing Committee" or
"Executive Body" which has the overall control of the affairs and
business of the Society, and it does not include the individual workers or
employees, individual workmen or employees of the Society who carry on the
day-to-day administration of the Society; nor will it take in matters touching
the service conditions of the servants of the Society such as their appointment
to service or their discharge, removal from service and their wages. A dispute
of the kind raised by the second respondent, therefore, 1030 will not fall
within the purview of the phrase "any dispute touching the management of
the Society" used in Section 96.
Before appreciating the contentions canvassed
on both sides, it is necessary to notice the relevant provisions of the Act of
1925 and the Act of 1961.
The relevant part of Section 54 of the Act of
1925, reads thus:
"(1) (a) If any dispute touching the constitution
or business of Society arises between members or past members of the Society or
persons claiming through a member or a past member or between members or past
members or persons so claiming and any officer, agent or servant of the Society
or its Committee, and any officer, agent, member or servant of the Society past
or present, it shall be referred to the Registrar for decision by himself or
his nominee..." The corresponding Section 96 of the Act of 1961 lays down:
"(1) Notwithstanding anything contained
in any other law for the time being in force, any dispute touching the
constitution, management or business of a Society shall be referred in the
prescribed form.....if the parties thereto are from amongst the following:- (a)
a Society, its Committee, any past Committee, any past or present officer, any
past or present agent, any past or present servant or nominee, heir or legal
representative of any deceased officer, deceased agent or deceased servant of
the Society, or the Liquidator of the Society...." A comparison between
the portions of the two Sections, extracted above, brings out two points of
difference.
Firstly, in Section 54, there is no
non-obstante clause, while Section 96(1) begins with the words
"Notwithstanding anything contained in any other law for the time being in
force". Secondly, while in Section 54, the word 'management' does not
occur, in the corresponding Section 96(1) of the 1961 Act, the word
'management' has been inserted in-between the words 'constitution' and 'business'.
It is significant to note that the phrase
"any dispute touching the constitution.... or business of the
Society" is a common feature of both the aforesaid Sections. We emphasise
this fact, because it is this common feature, rather than the points of difference
between the two Sections, that holds the key to a correct solution of the
problem before us.
1031 From a conspectus of the decisions cited
at the Bar, we may devise two broad tests to determine the points in
controversy in the instant case. First, whether the expression "any
dispute" spoken of in Section 54 of the Act of 1925, and Section 96 of the
Act of 1961, is one which is capable of being resolved by the Registrar or his
nominee under the relevant Cooperative Societies Act? Second, whether a dispute
raised by a servant against his employer, the Cooperative Society, for setting
aside his removal from service on the ground that it was an act of
victimisation and for reinstatement in service with back wages, is one
"touching the management or business of the Society" within the
contemplation of the said provisions? As regards the first test, it is to be
noted that the expression "any dispute" has not been defined in the
Acts of 1925 and 1961. The term "dispute" means a controversy having
both positive and negative aspects. It postulates the assertion of a claim by
one party and its denial by the other. The word "any" prefixed to
"dispute" may at first glance, appear to give the expression
"any dispute" a very wide amplitude covering all classes of disputes,
whatever be their nature. But the context of these provisions, the object and
scheme of the Acts of 1925/1961 show that the Legislatures never intended to
give such a wide scope to this expression. The related provisions and the
scheme of the Acts unerringly indicate that the expression "any
dispute" has been used in a narrower sense limited to contested claims of
a civil nature, which could have been decided by civil or revenue courts, but
for the provisions with regard to compulsory arbitration by the Registrar or
his nominee, found in Section 54 of the Act of 1925/96 of the Act of 1961. The
first indication of this being the right construction, is discernible in
sub-section (2) of Section 96 which states that when any question arises
whether for the purposes of sub-section (1) a matter referred to for decision
is a dispute or not, the question shall be considered by the Registrar, whose
decision shall be final. This means, it is incumbent on the Registrar to decide
as a preliminary issue, whether the dispute is of a kind under sub-section (1)
of Section 96 falling within his jurisdiction. If this preliminary issue is
found in the negative, he will have no further jurisdiction to deal with the
matter.
A further clue to the interpretation of
"any dispute" used in Section 96(1) is available in Section 97(1)
which prescribes periods of limitation for disputes of the kind specified in
its clauses (a) and (b), referred to the Registrar under Section 96.
Sub-section (2) of Section 97 which is in the nature of a residuary provision,
states that the period of limitation in the case of any dispute other than
those mentioned in sub-section (1) which are required to be referred to the
1032 Registrar under Section 96, shall be regulated by the provisions of the Indian
Limitation Act, "as if the dispute were a suit, and the Registrar as Civil
Court". The last clause of sub-section (2) which has been underlined,
unmistakably shows that only disputes of a civil nature which could be the
subject of civil suits triable by ordinary civil courts, will fall within the
scope of the expression "any dispute" used in Section 96(1).
Another definite pointer to the above being
the right construction of "any dispute" is available in sub-section
(3) of Section 98 which provides:
"Notwithstanding anything contained in
Section 96, the Registrar may, if he thinks fit, suspend proceedings in regard
to any dispute, if the question at issue between a society and a claimant or
between different claimants, is one involving complicated question of law or
fact, until the question has been tried by a regular suit instituted by one of
the parties or by the society. If any such suit is not instituted within two
months from the Registrar's order suspending proceedings, the Registrar shall
take action as is provided in sub-section (1)." It is noteworthy that this
sub-section is substantially in the same terms as the proviso to sub-section
(1) of Section 54 of the Act of 1925, extracted earlier.
The proviso to sub-section (1) of Section 54
of the Act of 1925 corresponding to sub-section (3) of Section 98 of the Act of
1961, unmistakably shows that the compulsory arbitration by the Registrar, on a
reference under Section 96, only a substitute for adjudication of disputes of a
civil nature normally tried by civil courts.
Further indication regarding the nature of
disputes which the Registrar may determine, is furnished by Section 166(1)
which provides:
"166(1). Bar of jurisdiction of Courts :
Save as expressly provided in this Act, no Civil or Revenue Court shall have
any jurisdiction in respect of- (a) ............
(b) any dispute required to be referred to
the Registrar, or his nominee, or board of nominees, for decision." It
will be seen that Section 166, in terms, bars the jurisdiction only of Civil or
Revenue Court, and not of the Labour Court or any 1033 Industrial Tribunal
constituted under the B.I.R. Act or Industrial Disputes Act to adjudicate
industrial disputes.
It is clear that the Legislature never
intended to oust the jurisdiction of the Labour Court or the Industrial
Tribunal to determine claims and industrial disputes which cannot be
adjudicated by the ordinary Civil Courts.
Now, let us turn to the nature of the dispute
raised by the second respondent. Is it a dispute relating to a right which he
could establish by filing a suit in a Civil Court? -assuming for the moment
that nothing in the relevant Cooperative Societies Act is a bar to such a suit.
The answer must be in the negative. The respondent is not claiming a civil
right arising from the contract of employment with the appellant-Bank. What he
is claiming is not enforcement of any term of the contract of his employment on
the part of his employer. He is alleging that his services have been terminated
unfairly and vindictively because of his legitimate trade union activities, as
an act of victimisation. The relief claimed by him is of reinstatement in
service with back wages. The rights and reliefs which he is claiming could not
be determined and granted by a Civil Court in a suit. As Luding Teller puts it,
"a Court of Law proceeds on the footing that no power exists in the Courts
to make contracts for people and the parties must make their own contracts. The
Courts reach their limit of power when they enforce contracts which the parties
had made." (Quoted with approval in Rohtas Industries Ltd. v. Brijnandan
Pandey.(1) The rights claimed by the second respondent are those which are
conferred on workmen and employees under the Bombay Industrial Relations Act,
to ensure social justice. Such rights which do not stem from the contract of
employment can be enforced only in the Labour Court constituted under the
B.I.R. Act. The Labour Court is competent to grant the relief of reinstatement
claimed by the respondent, while in view of Section 21(b) of the Specific
Relief Act, then in force, the Civil Court was not competent to grant that
relief.
The dispute was raised by the second
respondent by writing an approach letter to his employer, the appellant, as
required by the Bombay Industrial Relations Act. In substance, it was an
industrial dispute. It was not restricted to a claim under the contract or
agreement of employment. The Civil Court cannot grant the reliefs claimed by
the second respondent. As rightly submitted by Mr. Rama Reddy, if a Court is
incapable of granting the relief claimed, normally, the proper construction
would be that it is incompetent to deal with the matter.
1034 The matter can be looked at from another
angle, also.
The law of industrial disputes or industrial
relations is a special law dealing with rights and obligations specially
created by it. As against this, the provision in Section 54 of the Act of
1925/Section 96 of the Act of 1961 is a general provision. In accordance with
the maxim generalia specialibus non derogant, therefore, nothing in these
general provisions can derogate from B.I.R. Act and the Cooperative Society Act
must yield to the special provisions in the Bombay Industrial Relations Act,
whenever a dispute clearly comes within the language of the latter Act.
In the light of the above discussion, the
conclusion is inescapable that the expression "any dispute" referred
to in Section 54 of the 1925 Act/Section 96 of the 1961 Act, does not cover a
dispute of the kind raised by respondent 2 against the appellant-Bank.
Coming now to the second test, it may be
observed that to a part of it, the pronouncement of this Court in Cooperative
Central Bank Ltd. v. Additional Industrial Tribunal, Hyderabad (ibid),
furnishes a complete answer, wherein the interpretation of this very phrase
"touching the business of the Society" occurring in Section 61 of
Andhra Pradesh Cooperative Societies Act, 1964, which largely corresponds to
Section 96 of the Gujarat Act, 1961, came up for interpretation. The subject-matter
of the dispute was divided into three issues. The first issue comprised a
number of service conditions including inter alia salary, scales and adjustment
or dearness allowance, conveyance charges, provident fund and gratuity, etc.
It was contended on behalf of the Bank that
the effect of Section 61 and other provisions of Andhra Pradesh Cooperative
Societies Act was to exclude the jurisdiction of the Industrial Tribunal to
deal with such disputes under the Industrial Disputes Act. After noticing a
number of decisions and after referring to the previous decision of this Court
in Deccan Cooperative Bank, the Court negatived the contention with these
observations:
"The dispute related to alteration of a
number of conditions of service of the workmen which relief could only be
granted by an Industrial Tribunal dealing with an industrial dispute. The
Registrar, it is clear from the provisions of the Act, could not possibly have
granted the reliefs claimed under this issue because of the limitations placed
on his powers in the Act itself.... The word "business" is equated
with the actual trading or commercial or other 1035 similar business activity
of the society, and since it has been held that it would be difficult to
subscribe to the proposition that whatever the society does or is necessarily
required to do for the purpose of carrying out its objects, such as laying down
the conditions of service of its employee, can be said to be a part of its
business, it would appear that a dispute relating to conditions of service of
the workmen employed by the society cannot be held to be a dispute touching the
business of the society...Thus it is clear that in respect of the dispute
regarding the alteration of various conditions of service, the Registrar or
other person dealing with it under Section 62 of the Act is not competent to
grant the relief claimed by the workmen at all. On the principle laid down by
this Court in the case of the Deccan Merchants Cooperative Bank Ltd., Civil
Appeal No. 358 of 1967 dated 29-8-68, AIR 1969 SC 1320 (supra) therefore, it
must be held that this dispute is not a dispute covered by the provisions of
Section 61 of the Act. Such a dispute is not contemplated to be dealt with
under Section 62 of the Act and must therefore, be held to be outside the scope
of Section 61." The observations quoted above, negate contention (ii)
advanced by Mr. Dholakia.
It however, remains to be considered whether
the dispute raised by the second respondent in the present case, comes within
the purview of the expression "touching the management of the
Society" used in Section 96(c) of the Act of 1961.
In this connection, it may be noticed that
just as in Section 96(1), in Section 61 of the Andhra Pradesh Corporation
Societies' Act, 1964, also, which came up for consideration in Cooperative
Central Banks' case before this Court, the term management does occur in the
collocation of words "constitution, management or business". But no
specific argument seems to have been then raised that a dispute between the
Society and its former servants relating to the conditions of service, comes
within the purview of the expression 'touching the management of the Society'.
Perhaps, it was taken for granted that if the
dispute was not comprehended by the expression "business of the
Society", it would not be covered by the words "management of the
Society", either. Although there is little discussion in the judgment
about the ambit and import of the expression "management", yet in
conclusion, it was clearly and emphatically held 1036 that the dispute in that
case was "outside the scope of Section 61." We will now, focus
attention on the expression "management of the Society" used in
Section 96(1) of the Act of 1961. Grammatically, one meaning of the term
'management' is: 'the Board of Directors' or 'the apex body' or Executive
Committee at the helm which guides, regulates, supervises, directs and controls
the affairs of the Society'. In this sense, it may not include the individuals
who under the over-all control of that governing body or Committee, run the
day-to-day business of the Society. (see Words and phrases, by West Publishing
Co. Permanent Edition, Vol. 26, page 357, citing, Warner & Swasey Co. v.
Rusterholz D. C. Minn.(1). Another meaning of the term 'management', may be:
'the act or acts of managing or governing by
direction, guidance, superintendence, regulation and control the affairs of a
Society.' A still wider meaning of the term which will encompass the entire
staff of servants and workmen of the Society, has been canvassed for by Mr.
Dholakia. The use of the term 'management' in such a wide sense in Section
96(1) appears to us, to be very doubtful.
Be that as it may, what has been directly
bidden "out- of-bounds" for the Registrar by the very scheme and
object of the Act, cannot be indirectly inducted by widening the connotation of
'management'. A construction free from contexual constraints, having the effect
of smuggling into the circumscribed limits of the expression "any
dispute", a dispute which from its very nature is incapable of being
resolved by the Registrar, has to be eschewed. Thus considered, a dispute
raised against the Society by its discharged servant claiming reliefs, such as
reinstatement in service with back wages, which are not enforceable in a Civil
Court, is outside the scope of the expression "touching the management of
the Society" used in Section 96(1) of the Act of 1961, and the Registrar
has no jurisdiction to deal with and determine it. Such a dispute squarely
falls within the jurisdiction of the Labour Court under the B.I.R. Act.
Learned counsel for the appellant tried to
argue as a last resort that the relief sought by the second respondent could be
granted by the Registrar by relaxing or moulding the Staff Regulations and
Bye-laws which lay down conditions of service governing the employees of the
Society. It is pointed out that under the Act of 1961, the Registrar has the
power to amend or modify such Regulations and Bye-laws.
1037 We find no merit in this contention,
also.
A similar argument was advanced before this
Court in Cooperative Central Bank's Case, ibid, and was repelled inter alia,
with the reasoning that the bye-laws of the Bank, containing the conditions of
service were in the nature of a contract between the Bank and its employees and
a change of such bye-laws, embodying the conditions of employment, "could
not possibly be directed by the Registrar where, under s. 62 (4) of the
(ANDHRA) Act, he is specifically required to decide the dispute referred to him
in accordance with the provisions of the bye-laws". It was further
observed that a dispute referred to the Registrar can even be transferred for
disposal to a person who may have been invested with powers in that behalf, or
may be referred for disposal to an arbitrator. But neither the Registrar nor
his nominee will be competent to grant the relief requiring a change in the
service conditions of the employees, under section 62 of the Andhra Act. Such a
relief could be granted only by the Industrial Tribunal which under the Industrial
Disputes Act, has the jurisdiction even to vary contracts of service between an
employer and employees.
This reasoning is applicable mutatis mutandis
to the instant case.
For all the foregoing reasons, the appeal
fails and is dismissed with costs. In token of our gratitude for the valuable
assistance rendered to us by Shri Rama Reddy as amicus curiae, we direct that
an honorarium of Rs. 1500/- be paid to him, which shall be taxed as costs
awarded against the appellant.
V.D.K. Appeal dismissed.
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