Allahabad High Court
Akhilesh Tiwari vs The N.E. & E.C.R. Employee'S ... on 28 April, 2016
Bench: V.K. Shukla, Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 21
Case :- SPECIAL APPEAL No. - 385 of 2014
Appellant :- Akhilesh Tiwari
Respondent :- The N.E. & E.C.R. Employee'S M.S.P. Co-Op. Bank Ltd. & Anr.
Counsel for Appellant :- K.M. Mishra,Arvind Kr.Tripathi
Counsel for Respondent :- H.P. Pandey,Balwant Singh
Hon'ble V.K. Shukla,J.
Hon'ble Mrs. Ranjana Pandya,J.
Akhilesh Tiwari is before this Court assailing the validity of the judgment and order dated 14.2.2014 passed by the learned Single Judge in Writ-A No. 51673 of 2012 (The N.E. & E.C. Railway Employee's M.S.P. Cooperative Bank Ltd. Vs. The Central Registrar, Cooperative Societies and another) wherein learned Single Judge has allowed the writ petition in question by holding that Central Registrar has no authority to go into the validity of the termination order as such a dispute is expressly excluded from the scope and ambit of arbitration proceedings under Section 84 of the Multi State Cooperative Societies Act, 2002 (hereinafter referred to as the '2002 Act').
Brief background of the case is that the North Eastern & East Central Railway Employee's Multi-State Primary Cooperative Bank Limited, Gorakhpur is a registered cooperative society under the provisions of the 2002 Act and the affairs of the said society is to be run and managed strictly in consonance with the provisions as contained under the 2002 Act and the by-laws framed thereunder.
Akhilesh Tiwari, the appellant, was an employee in the said society and as against him disciplinary proceedings have been undertaken by initially putting him under suspension and then issuing charge-sheet on 18.11.2011. The society in question, thereafter, concluded the disciplinary proceedings and the Board of Directors took a resolve on 30.12.2011 to dispense with the services of appellant. Aggrieved by the said dispensation of service appellant made representation to the Central Registrar, Cooperative Societies, New Delhi, and on receipt of the said representation the Central Registrar by order dated 18.9.2012 held that the dispute raised by the appellant does not fall within the scope and ambit of Section 84 of the 2002 Act and, accordingly, the order passed by the Board of Directors has been set-aside. The said decision of the Central Registrar has been subjected to challenge in writ petition No. 51673 of 2012 and the said writ petition in question has been allowed and against the same present special appeal in question has been filed.
Sri Hare Ram Mishra, Senior Advocate, submitted on behalf of the appellant that once no provision has been enforced for regulating the appointment of employees of Multi-State Cooperative Societies as is envisaged under Section 49 (2) (e) of the 2002 Act, then till service regulations not framed, the Central Registrar was fully empowered to remedy the grievance of appellant, in view of this, learned Single Judge has wrongly entertained the challenge and has wrongly allowed the writ petition in question, as such, special appeal deserves to be allowed.
Countering the said submission, Sri Balwant Singh, Advocate, appearing for cooperative society in question, submitted that the entire action of the Central Registrar is totally without jurisdiction, inasmuch as, Section 84 of the 2002 Act clearly exclude the jurisdiction of the Central Registrar to decide the dispute in respect of the disciplinary action taken by the multi-state cooperative society against its paid employee, in view of this, as the very authority of Central Registrar was not backed by any statutory provisions and learned Single Judge has rightly intervened in the matter.
In order to consider the respective arguments Section 49 (2) (e) as well as Section 84 of the 2002 Act are being extracted below;
"49. Powers and functions of board.- (1) The board may exercise all such powers as may be necessary or expedient for the purpose of carrying out its functions under this Act.
(2) Without prejudice to the generality of the foregoing powers, such powers shall include the power-
(a) ................
(b) ...........
(c) ...............
(d) ..................
(e) to make provisions for regulating the appointment of employees of the multi-State co-operative society and the scales of pay, allowances and other conditions of service of, including disciplinary action against, such employees; ......"
"84. Reference of disputes.- (1) Notwithstanding anything contained in any other law for the time being in force, if any dispute [other than a dispute regarding disciplinary action taken by a multi-State co-operative society against its paid employee or an industrial dispute as defined in clause (k) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947] touching the constitution, management or business of a multi-State co-operative society arises-
(a) .....................
(b) ........................
(c) between the multi-State co-operative society or its board and any past board, any officer, agent or employee, or any past officer, past agent or past employee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the multi-State co-operative society, or
(d) ...................
such dispute shall be referred to arbitration. .............."
A bare perusal of Section 84 reveals that a dispute regarding disciplinary action taken by multi-State co-operative society, against its paid employee has been excluded from purview of reference under Section 84 of the Act and Section 49 spells out the powers of the board of a co-operative society registered under the Act. Sub section (2) thereof is illustrative in nature and specifies certain instances in which the board can exercise powers to effectively carry out its functions and duties under the Act and one such function is to frame regulations for regulating the appointment as well as terms and conditions of employees.
On the parameters, that have been quoted above, it is clearly reflected that service regulations are required to be framed for regulating the appointment of employee of multi-state cooperative society which shall be inclusive of fixation of scales of pay, allowances and other conditions of service including disciplinary action against such an employee but the larger issue is that in case in consonance with the provisions as contained under Section 49 (2) (e) of the 2002 Act if no service conditions have been framed for regulating the appointment of an employee and the master and servant relationship subsist inter-se parties and once the services have been dispensed with then can in such a situation Section 84 of the 2002 Act be invoked or not. The answer would be in negative for the simple reason that Section 84 is very very clear and categorical as it clearly proceeds to exclude from its area of operation such disputes pertaining to disciplinary action taken by multi-state cooperative society against its paid employee. Once such dispute is specifically excluded, then by implication merely because service regulations have not been framed under Section 49 (2) (e) of the 2002 Act it will not clothe the Central Registrar with the authority/jurisdiction to entertain dispute pertaining to disciplinary action taken by multi-state cooperative society against its paid employee, in view of this, the jurisdiction of Central Registrar stands totally excluded in the matter of disciplinary action taken by multi-state cooperative society against its paid employee. Section 84 of the 2002 Act is not at all subject to the provisions of Section 49 (2) (e) of the 2002 Act. The opinion formed by the learned Single Judge is fully backed by the intent/scope of Section 84 of 2002 Act. Central Registrar cannot be permitted to usurp the authority/jurisdiction i.e. otherwise not conferred upon him under the 2002 Act.
Learned counsel for the appellant has also tried to contend before us that Section 84 of the 2002 Act is akin to the provisions as contained under Section 70 of the U.P. Cooperative Societies Act, 1965 and, in view of the akin provisions being there as per the judgment of the Apex Court in the case of Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Labour Commissioner & others, 2007 (11) SCC 756, the Central Registrar could have very well answered the issue and, in view of this, Central Registrar has proceeded to entertain the dispute and has answered the same, the action of Central Registrar could have been saved as action taken against the appellant was not only arbitrary but also in utter breach of principle of natural justice.
In order to appreciate this part of the argument, relevant provisions of U.P. Cooperative Societies Act, 1965 are being looked into. Section 70 and Section 128 provides for as follows;
"Section 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 disputes 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.]
"128. Registrar's power to annual 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.]"
A bare perusal of the provisions quoted above would go to show that Section 84 of 2002 Act is on the same lines as Section 70 of 1965 Act is, as at both the places there is exclusion of authority to decide dispute regarding disciplinary action. However, under 1965 Act, Registrar under Section 128 has been conferred with the authority to annul resolution of a co-operative society or cancel order passed by an officer of a co-operative society.
Pointed question has been raised to the appellant as to whether there exist any analogous provision such as Section 128 of U.P. Cooperative Societies Act, 1965 under the 2002 Act and a straight reply has been given that under the 2002 Act there is no analogous provision, as is provided in the shape of Section 128 of U.P. Cooperative Societies Act, 1965.
The judgment of the Apex Court in the case of Ghaziabad Zila Sahkari Bank Ltd. (supra) has been decided in the light of the specific provisions as are contained under Sections 70, 128 of U.P. Cooperative Societies Act, 1965 and, in view of this, it is Section 128 of U.P. Cooperative Societies Act, 1965 that makes all the difference in between the two statutory provisions, in view of this, the said judgment in question will not at all come to rescue and reprieve of the appellant, as golden rule of interpretation is that provision should be read in its ordinary sense having regard to the text and context and presumption is that legislature making laws to govern the society knows fully well the requirement of society, and once the legislature in its wisdom has not thought it appropriate to place any provision under the 2002 Act, akin to Section 128 of 1965 Act, then reading of any such authority with the Central Registrar under 2002 Act, would tantamount to legislating.
Appellant's counsel faced with this situation submitted that once the provisions of Industrial Disputes Act are not applicable vis.a.vis. Cooperative Societies and the claim of appellant is not covered under Section 84 of the 2002 Act, then appellant is virtually remedy-less.
This argument has also no substance for the simple reason that in case under the provisions of 2002 Act there is no remedial forum provided for, then certainly the common law remedy, that is provided for, by filing suit is available to the appellant and it is always open to the appellant to file suit for the said purpose.
Consequently, special appeal sans merit and same is dismissed, accordingly.
Order Date :- 28.4.2016
Shekhar
(Mrs. Ranjana Pandya, J.) (V.K. Shukla, J.)
