Bombay High Court
Mah.State Co-Operative Agri.& ... vs Shriram Shankarrao ... on 11 March, 2016
Bench: R.V. Ghuge
902.WP.2381.94.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2381 OF 1994
The Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd.,
Through its District Branch Manager, Dist. Nanded ..PETITIONER
VERSUS
Gangaram Jairam Jamdar
(Since Deceased) Through L.Rs.
i) Gangabai Gangaram Jamdar
Age: Major, Occu.: Houshold,
R/o c/o Sanjay G. Jamdar,
Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd., Division Officer,
Kranti Chowk, Aurangabad.
ii) Sanjay Gangaram Jamdar
Age: Major, Occu.: Service at
Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd., Division Officer,
Kranti Chowk, Aurangabad.
iii) Padmakar Gangaram Jamdar,
Age: Major, Occu.: Student,
R/o c/o Sanjay G. Jamdar,
Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd., Division Officer,
Kranti Chowk, Aurangabad. ..RESPONDENTS
WITH
WRIT PETITION NO. 2390 OF 1994
WITH
CIVIL APPLICATION NO. 1474 OF 2007
The Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd.,
Through its District Branch Manager, Dist. Nanded ..PETITIONER
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VERSUS
Laxman Mahadeo Shinde
Age: Major, Occu.: Service,
Loan Superintendent,
The Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd., ..RESPONDENT
WITH
WRIT PETITION NO. 2391 OF 1994
The Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd.,
Through its District Branch Manager, Dist. Nanded ..PETITIONER
VERSUS
Kishansingh Khemsingh
Age: Major, Occu.: Ex-Sub-Branch Manager,
Biloli, Dist. Nanded.
Now residing at Rajpur Badi Mandi,
Sadipura, Nanded. ..RESPONDENT
WITH
WRIT PETITION NO. 2523 OF 1994
WITH
CIVIL APPLICATION NO. 1354 OF 2003
The Maharashtra State Co-operative Agricultural
and Rural Development Bank Ltd.,
Through its District Branch Manager, Dist. Nanded ..PETITIONER
VERSUS
Shriram Shankarrao Pimpalgaonkar,
Age: Major, Occu.: Service,
District Recovery Officer at District Branch Nanded ..RESPONDENT
....
Mr. A.S. Shelke, Advocate holding for Mr. S.K. Shelke, Advocate for
petitioner.
Mr. S.S. Chaudhari with Mr. A.A. Shelke, Advocates holding for Mr. D.N.
Suryawanshi, Advocate for respondent.
....
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CORAM : RAVINDRA V. GHUGE, J.
DATED : 11th MARCH, 2016
ORAL JUDGMENT :
1. All these petitions have been admitted by this Court.
Considering the nature of the dispute and taking into account that the
respondent-employees had given an undertaking before the Co-operative
Court, interim relief was not granted in these matters.
2.
The petitioner in all these petitions is the State Co-operative
Agricultural and Rural Development Bank. The deceased Respondent
No.1 in the first petition and the respondents in the other three petitions
are identically placed. Considering the common issues involved in these
matters, all these matters have been taken up together for hearing, by
consent of the parties.
3. The petitioner is aggrieved by the identical judgment delivered
by the Co-operative Court, Nanded dated 07.05.1990 and the judgment
delivered by the Co-operative Appellate Tribunal, Mumbai dated
15.10.1993.
4. Mr. Shelke, learned Counsel for the petitioner-management
submits as under:-
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(a) The respondents were working with the petitioner since
around 1963.
(b) On 01.01.1975, the petitioner issued initial orders of
absorption of the respondents.
(c) On 01.07.1975, the petitioner formulated various categories of
employees with their pay scales and it marked Category Nos.1 to 12
alongwith the pay scales.
(d) Category Nos.1 to 4 covered the managerial, administrative
and personal staff.
(e) Category Nos.5 and 6 covered supervisory staff.
(f) Category Nos. 7 to 9 covered the clerical staff.
(g) Category Nos. 10 to 12 covered the Ministerial and Technical
attendants/staff.
(h) Considering the emergent situation, the petitioner issued
temporary promotional orders on 07.04.1978 to all the respondents as a
temporary arrangement till the petitioner finalised the seniority list,
determined the promotional policy and effected promotions as per the
policy.
(i) The respondents were therefore promoted purely on
temporary basis on 07.04.1976.
(j) On 26.02.1978, the staff pattern of the Nanded Branch was
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approved by the Divisional Committee.
(k) On 28.10.1982, the District Loan Committee finalised and
approved the seniority list for the Nanded District after inviting objections
and after considering them.
(l) On 05.05.1983, the Head Office at Bombay finally approved
and published the seniority list of the Nanded Branch. Nobody has
challenged the seniority list.
(m) Prior to the above, the Head Office at Bombay determined a
promotional policy by issuing the circular dated 15.02.1983 and provided
for marked promotions to 75% of the posts and filling up 25% of the
posts by nomination.
(n) The Bombay Industrial Relations Act, 1946 (presently known
as 'The Maharashtra Industrial Relations Act') was made applicable to the
petitioner-bank with effect from 15.11.1973 vide notification dated
02.11.1973.
(o) The deceased respondent in the first petition was appointed as
a clerk on 30.09.1963 and was temporarily promoted to Category No.6
on 07.04.1978. Having not been found suitable, he was not placed in
Category No.6 and was returned to Category No.7 on 14.10.1983.
(p) The respondent in the second petition joined on 21.09.1959.
He was absorbed in Category No.8 on 01.07.1975 and was temporarily
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promoted to Category No.7 on 19.04.1978. Since he was not found
suitable, he was not placed in Category No.7 and was returned to
Category No.8 on 14.10.1983.
(q) The respondent in the third petition joined on 18.07.1966 and
was absorbed in Category No.7 on 01.01.1975. He was given temporary
promotion on 07.04.1978 to Category No.6 and having not been found
suitable, was returned to Category No.7 on 14.10.1983
(r) The respondent in the forth petition was appointed on
01.09.1967 as a clerk. He was initially absorbed in Category No.7 on
01.01.1975. He was given temporary promotion to Category No.6 on
07.04.1978 and upon having not found suitable, he was returned to his
Category No.7 on 14.10.1983.
(s) All these respondents after they were returned to their original
category due to their unsuitability, filed individual appeals before the Co-
operative Court, Nanded.
(t) By the impugned judgment dated 07.05.1990, the Co-
operative Court allowed their dispute.
(u) The petitioner-bank preferred appeals before the Co-operative
Appellate Tribunal, Bombay and the said appeals were dismissed by the
impugned judgment dated 15.10.1993.
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5. Besides the above aspect, Mr. Shelke has canvased a host of
factors. Considering the order that I would be passing, I am not required
to advert to the entire submissions. Suffice it to say, the Co-operative
Court granted ad-interim protection to the respondents on 21.11.1983
and continued the said protection after obtaining an undertaking from
the respondents that they would not claim the promotional posts and
would return the monetary benefits in the event they fail in these
proceedings.
6. Mr. Shelke has relied upon the following judgments:-
(i) Rambhau Jairam Dhamange and Others Vs. The President,
Vinkar Co-operative Society Ltd. Chanda and Others, AIR
1966 Bombay 187.
(ii) Co-operative Central Bank Ltd. and Others Vs. Additional
Industrial Tribunal, Andhra Pradesh, Hyderabad and
Others, AIR 1970 SC 245.
(iii) Pralhad Vithalrao Pawar Vs. Managing Director and
Another, 1999(1) Bom.C.R. 840.
(iv) Morinda Co-operative Sugar Mills Ltd. Vs. Morinda Co-
operative Sugar Mills Workers Union, 2006 AIR SCW 3849.
(v) Chandrashekhar Chintaman Vaidya Vs. National Organic
Chemical Industries Ltd., Akola, 2010(3) Mh.L.J. 434.
7. Mr. S.S. Chaudhari, learned Counsel alongwith Mr. D.N.
Suryawanshi, learned Counsel appearing on behalf of the respondents-
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employees has strenuously supported the impugned judgment. The
reference is made to the impugned judgment delivered by the Appellate
Co-operative Court. The submission is that the Appellate Court has
concluded that the conditions of services between the employees and the
bank is outside the scope of Section 91 of the Maharashtra Co-operative
Societies Act, 1960 (hereinafter referred to as Section 91 of the 1960
Act). However, since the respondents-employees are not workmen
within the meaning of Section 2(s) of the Industrial Disputes Act, 1947,
the Industrial Tribunal would have no jurisdiction to consider the dispute
raised by the respondents-employees.
8. It is further submitted that though the Co-operative Court did
not go into the aspect of the status of the respondent, the Appellate Co-
operative Court has concluded in paragraph no.9 that considering the
salary drawn by the respondents and the definition of workman under
Section 2(s), the dispute was maintainable under Section 91 before the
Co-operative Court and the machinery under the Industrial Disputes Act,
1947 had no jurisdiction, as all those employees concerned are not
workman.
9. It is further submitted that the Appellate Court has considered
only the salary of the respondents and held that they are no required to
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approach the Industrial Tribunal. Issue was with regard to seniority and
the promotion and hence the said issue could be dealt with by the Co-
operative Court.
10. Mr. Chaudhari then draws the attention of this Court to the
conclusion of the Co-operative Court, Nanded. His contention is that the
matter is with regard to the promotion of the respondents. Same is a
result of the circulars applicable to the bank. Hence the aspect would not
come within the jurisdiction of the Industrial Tribunal and hence the Co-
operative Court has rightly exercised his jurisdiction.
11. It is further submitted by Mr. Chaudhari that though the
respondents were protected by various orders of this Court, not
withstanding the undertaking executed by them, they were kept in
Category No.7 and not taken into Category No.6. They have retired from
service in Category No.7 more than 15 years ago. One employee has
passed away. The remaining three employees are in their mid 70s or late
70s and are also unable to come to the Court due to health reasons. He
therefore prays that these petitions be dismissed and the judgment of the
Co-operative Court and the Appellate Co-operative Court be stayed.
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12. Mr. Chaudhari then relied upon the judgment of the learned
Apex Court in the matter of Prabhu Dayal Vs. Sadhan Sahakari Samiti
Mujuri Vikas Khand Paniyara and Others, AIR 2008 SC 1681 in
support of his case. He contends that since a circular was issued by
which the service conditions of the employees were revised, the dispute
raised by the respondents before the Co-operative Court, has rightly been
raised and the same is maintainable.
13.
I have considered the submissions of the learned Counsels.
14. The petitioner has contended that the respondents were
temporarily promoted. The respondents have also claimed that they
were temporarily promoted because they were eligible, competent and
entitled to the promotional posts. It is however not the case of the
respondents that they were permanently promoted for the first time in
1978. It is submitted that they worked on promotional posts under
whatever circumstances as is claimed by the petitioner, from April 1978
till 14th October 1983. The returning back of these respondents from
Category No.6 and Category No.7 to their original categories, has been
termed to be an act of reversion of the respondents at the hand of the
petitioner.
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15. It is undisputed that the petitioner had raised the issue of
jurisdiction contending that the Co-operative Court did not have the
jurisdiction to deal with a matter in between the employer and the
employees with regard to violation of service conditions and reversion. It
was therefore contended that the Co-operative Court would not have the
jurisdiction and the same would vest in the Industrial Court/Tribunal.
16. The Co-operative Court by granting ad-interim protection to
the respondents and after taking individual undertaking from the said
respondents, granted protection to the respondents. The order of status-
quo dated 21.11.1983 was carried by the petitioner before the Appellate
Co-operative Court. The protection was continued on the condition that
the employees would give an undertaking of refunding the amount which
they would receive during the pendency of the cases on the basis of the
promotions which had been protected.
17. It therefore clearly emerges that the core issue in these
matters is as to whether the Industrial Tribunal under the Industrial
Disputes Act, 1947 or the appropriate authority under the Bombay
Industrial Relations Act, would have jurisdiction and whether the
jurisdiction of the Co-operative Court was ousted.
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18. Section 91 of the 1960 Act reads as under:-
"91. Disputes.- (1) Notwithstanding anything contained in
any other law for the time being in force, any dispute
touching the constitution, elections of the committee or its
officers other than elections of committees of the specified
societies including its officer, conduct of general meetings,
management or business of a society shall be referred by any
of the parties to the dispute, or by a federal society to which
the society is affiliated or by a creditor of the society, to the
co-operative Court if both the parties thereto are one or other
of 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 or the official Assignee
of a de-registered society.
(b) a member, past member of a person claiming through a
member, past member of a deceased member of society, or a
society which is a member of the society or a person who
claims to be a member of the society;
(c) a person other than a member of the society, with whom
the society, has any transactions in respect of which any
restrictions or regulations have been imposed, made or
prescribed under sections 43, 44 or 45, and any person
claiming through such person;
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(d) a surety of a member, past member or deceased member,
or surety of a person other than a member with whom the
society has any transactions in respect of which restrictions
have been prescribed under section 45, whether such surety or
person is or is not a member of the society;
(e) any other society, or the Liquidator of such a society or-
de-registered society or the official Assignee of such a de-
registered society.
Provided that, an industrial dispute as defined in clause (k)
of section 2 of the Industrial Disputes Act, 1947, or rejection
of nomination paper at the election to a committee of any
society other than a notified society under section 73 - 1 C or
a society specified by or under section 73 -G, or refusal of
admission to membership by a society to any person qualified
therefore or any proceeding for the recovery of the amount as
arrear of land revenue on a certificate granted by the
Registrar under sub -section (1) or (2) of section 101 or sub
-section (1) of section 137 or the recovery proceeding of the
Registrar or any officer sub ordinate to hi m or an officer of
society notified by the State Government, who is empowered
by the Registrar under sub -section (J) of section 156, or any
orders, decisions, awards and actions of the Registrar against
which an appeal under section 152 or 152 A and revision
under section 154 of the Act have been provided shall not be
deemed to be a dispute for the purposes of this section.
(2) Sub-section (2) was deleted by Mah. 27 of 1969, s.
16(b).
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(3) Save as other wise provided under sub-section ( 2) to
section 93, no Court shall have jurisdiction to entertain any
suit or other proceedings in respect of any dispute referred to
in sub -section (1).
Explanation 1.-A dispute between the Liquidator of a society
or an official Assignee of a de-registered society and the
members (including past members, or nominees, heirs or
legal representative or deceased members) of the same society
shall not be referred to the co-operative Court under the
provisions of sub-section (1).
Explanation 2.-For the purposes of this sub-section, a dispute
shall include-
(i) a claim by or against a society for any debt or demand
due to it from a member or due from it to a member, past
member or the nominee, heir or legal representative of a
deceased member, or servant for employee whether such a
debt or demand be admitted or not;
(ii) a claim by a surety for any sum or demand due to him
from the principal borrower in respect of a loan by a society
and recovered from the surety owing to the default of the
principal borrower, whether such a sum or demand be
admitted or not;
(iii) a claim by a society for any loss caused to it by a
member, past member or deceased member, by any officer,
past officer or deceased officer, by any agent, past agent or
deceased agent, or by any servant, past servant, past servant
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or deceased servant, or by its committee, past or present,
whether such loss be admitted or not;
(iv) a refusal or failure by a member, past member or a
nominee, heir or legal representative of a deceased member,
to deliver possession to a society of land or any other asset
resumed by it for breach of condition as the assignment."
(Emphasis supplied)
19. Considering the judgments cited by Mr. Shelke, it would be
appropriate to reproduce Section 61 of the Andhra Pradesh Co-operative
Societies Act (7 of 1964) as under:-
"61. Disputes which may be referred to the Registrar:-
(1) Notwithstanding anything in any law for the time being
in force, if any dispute touching the constitution, management
or the business of a society, other than a dispute regarding
disciplinary action taken by the society or its committee
against a paid employee of the society, arises-
(a) among members, past members and persons claiming
through members,past members and deceased members ; or
(b) between a member, past member or person claiming
through a member, past member or deceased member and the
society, its committee or any officer, agent or employee of the
society ; or
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
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of any deceased officer, deceased agent or deceased employee
of the society ; or
(d) between the society and any other society, such dispute
shall be referred to the Registrar for decision.
Explanation:- For the purposes of this sub-section a dispute
shall include-
(i) a claim by a society for any debt or other amount due to it
from a member, past member, the nominee, heir or legal
representative of a deceased member, whether such debt or
other amount be admitted or not ;
(ii) a claim by surety against the principal debtor where the
society has recovered from the surety any amount in respect of
any debt or other amount due to it from the principal debtor
as a result of the default of the principal debtor whether such
debt or other amount due to be admitted or not ;
(iii) a claim by a society against a member, past member, or
the nominee, heir or legal representative of a deceased
member for the delivery of possession to the society of land or
other immovable property resumed by it for breach of the
conditions of assignment or allotment of such land or other
immovable property ;
1[xxx]
(2) If any question arises whether a dispute referred to the
Registrar under this section is a dispute touching the
constitution, management or the business of a society, such
question shall be decided by the Registrar.
1[(3) Every dispute relating to, or in connection with, any
election to a committee of a society shall be referred for
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decision to the Tribunal having jurisdiction over the place
where the main office of the society is situated, whose decision
thereon shall be final.]
(4) Every dispute .relating to, or in connection with any
election 2[shall be referred under sub-section (3) only after
the date of declaration of the result of such election.]"
20. The proviso below Section 91 which is an amendment made
by the Maharashtra Act XX of 1986, specifically carves out an exception
to the scope and ambit to Section 91. An Industrial Dispute as defined in
Clause 2(k) of the Industrial Disputes Act is therefore held not covered by
Section 91. In the light of the ratio which I would be referring to in this
judgment, the industrial dispute under Section 2(A) of the Industrial
Disputes Act, 1947 in as much as other industrial disputes protecting the
service conditions of the employees will also be an exception to the
applicability to Section 91.
21. The litigating sides as well as both the lower Courts have dealt
with this matter considering the 1960 Act and the Industrial Disputes Act,
1947. The Bombay Industrial Relations Act, 1946 also provides for an
independent machinery/mechanism for the redressal of grievances of the
employees in relation to their terms and conditions of employment and
dispute protecting to their non-employment. In the instant case, it is
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undisputed that the issue is with regard to the service conditions of the
employees and is with regard to the purported order of reversion issued
by the petitioner.
22. The Co-operative Court concluded that the issue of
maintainability of the dispute and the jurisdiction of the Co-operative
Court was already decided earlier. It is informed that the said issue was
not decided earlier. Though, the Co-operative Court initially had held
that the dispute is maintainable, the petitioner had carried the temporary
injunctory order to the Appellate Co-operative Court and had contended
that such a relief could not have been granted by the Co-operative Court
when the issue of jurisdiction was involved. While considering the
miscellaneous appeal before the Appellate Co-operative Court, it was held
that the respondent shall give an undertaking as referred to above and
the Co-operative Court shall decide the issue of jurisdiction afresh.
Inadvertently, while deciding the dispute finally by the impugned
judgment dated 07.05.1990, the Co-operative Court has erroneously
presumed that the issue of jurisdiction had already been decided.
23. When the petitioner challenged the final judgment of the Co-
operative Court dated 07.05.1990 in their appeals before the Appellate
Co-operative Court, the Appellate Court therefore took upon itself the
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exercise of deciding whether the dispute was maintainable before the Co-
operative Court.
24. It emerges from the impugned judgment of the Appellate Co-
operative Court that it had concluded that every dispute pertaining to the
service conditions of the employees as against the employer was in the
nature of an industrial dispute and the same could not have been within
the jurisdiction of the Co-operative Court to be adjudicated upon under
Section 91 of the Act of 1960. However, the Appellate Court considered
the definition of a workman under Section 2(s) of the Industrial Disputes
Act, 1947 and only on the basis of the salary drawn, has concluded that
the dispute was maintainable before the Co-operative Court as the wages
earned by the respondents were more than the limit of Rs.1600/-.
25. Though the Appellate Court did not consider the definition of
employee under Section 3(13) of the Bombay Industrial Relations Act,
1946, the definition of employee under the Bombay Industrial Relations
Act and the definition of workman under the Industrial Disputes Act are
almost identical.
26. For the sake of clarity, the definition of workman under
Section 2(s) of the Industrial Disputes Act, 1947 and the definition of
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employee under Section 3(13) of the Bombay Industrial Relations Act are
reproduced herein below :-
Sec. 2(s), Industrial Disputes Act, 1947.
"[(s) "workman" means any person (including an apprentice
employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work for
hire or reward, whether the terms of employment be express
or implied, and for the purposes of any proceeding under this
Act in relation to an industrial dispute, includes any such
person who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or
whose dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or
the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62
of 1957); or
(ii) who is employed in the police service or as an officer or
other employee of a prison; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws
wages exceeding one thousand six hundred rupees per
mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, function mainly of a managerial nature.]"
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Sec. 3(13) Bombay Industrial Relations Act, 1946.
"(13) "employee" means any person employed to do any
skilled or unskilled work for hire or reward in any industry,
and includes -
(a) a person employed by a contractor to do any work for him
in the execution of a contract with an employer within the
meaning of sub-clause (e) of clause (14);
(b) a person who has been, 5[dismissed, discharged or
retrenched or whose services have been terminated,] from
employment on account of any dispute relating to change in
respect of which a notice is given or an application made
under section 42 whether before or after his 6[dismissal,
6[dismissal, discharge, retrenchment or, as the case may be,
termination from employment];
7[but does not include -
(i) a person employed primarily in a managerial,
administrative, supervisory or technical capacity 8[drawing
basic pay (excluding allowances) exceeding 9[six thousand
five hundred rupees per month;]
(ii) any other person or class of persons employed in the same
capacity as those specified in clause (i) above irrespective of
the amount of the pay drawn by such persons which the State
Government may, by notification in the Official Gazette,
specify in this behalf;]"
27. It is trite law that the status of an employee as to whether he
is a workman under the Industrial Disputes Act or an employee under the
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Bombay Industrial Relations Act is no longer to be decided merely on the
basis of his designation or his salary structure. The whole issue turns
upon the job profile and the nature of duties performed by the employee
solely on the basis of which the Court has to decide whether the
employee would be a workman/employee or would not be covered by the
said definitions under the Industrial Disputes Act or Bombay Industrial
Relations Act.
28.
The learned Division Bench of this Court in the matter of
Chandrashekhar Chintaman Vaidya (supra) has considered the entire law
on the status of an employee and has finally concluded that it would be
purely on the basis of the nature of duties performed by an employee by
virtue of which his status would be decided. It would be apposite to
reproduce paragraph nos.33, 34, 35 and 36 of the Chandrashekhar
Chintaman Vaidya judgment (supra) as under :-
"33. At the cost of repetition, it needs to be referred that in
the evidence led by the complainant, he has deposed in specific
terms that:-
[a] He was doing the clerical work.
[b] He was not entrusted or invested with managerial and
administrative powers.
[c] He has never supervised the work of any other worker or
subordinate to him.
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[d] He used to do the work of scrutinizing the purchase orders
and make entries thereof into the register.
[e] He used to follow up purchases ordered by his controlling
officer.
[f] Except the nomenclature as a supervisor, he had no
supervisory duties.
34. It is apparent that the cross-examination does not aim at
"predominance of duties." The cross-examination also does not
aim at isolating any ministerial, menial or clerical portion of
the work of complainant to be marginally available or
extremely low in volume or magnitude and main work to be
that of supervisor or Manager.
35. As it is noted earlier, the employer's thrust of bringing the
complainant outside the purview of status of workman and
fitting him within the cadre of manager or supervisor is based
on:-
[i] Pleading that complainant was appointed as a Supervisor,
and performed managerial duty.
[ii] That, since he was not part of the persons who were
beneficiaries of benefits gained by the workmen being party to
the settlement entered between the Management and the
workmen.
[iii] The complainant did not perform any work which was
clerical in nature and was actually a supervisor and
performed managerial powers and functions.
36. The law as to basic test as to facts to be proved for
holding a person to be a workman under Section 2 (s) of the
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Industrial Disputes Act can be said to be settled, and can be
summarized as follows:-
[a] The person does menial, ministerial or clerical work.
[b] If any of the parts of his duties involves any sort of
supervision, which is on the material and not on the men.
[c] The predominant nature of duties discharged by the
person, i.e., the part of supervisory duties, if any, is not
predominant.
[d] What is seen to be is not the designation and / or
nomenclature, but performance of duties."
29. It is not in dispute that the job profile of the respondent was
not before the Co-operative Court as well as the Appellate Court. It is
also not in dispute that the Co-operative Court as well as the Appellate
Court have not considered the nature of duties of the respondent before
deciding whether they are workmen or not. It is equally undisputed that
the clerical staff was included in Category Nos.7 and 9 and technical
attendants were included in Category Nos. 10 to 12 by the petitioner vide
the policy formulated on 01.01.1975.
30. The petitioner had considered the nature of duties of these
respondents and three out of four were posted in the Category No.7 and
one was posted in Category No.8, by virtue of which they would fall
within the definition of an employee under 3(13) of the Bombay
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Industrial Relations Act, 1946 and workman under Section 2(s) of the
Industrial Disputes Act, 1947. This issue has not been dealt with by the
lower Courts and since the Appellate Court has concluded that the
respondents are not workmen merely since their salary was more than
Rs.1600/-, that the conclusions of the Appellate Court call for an
interference.
31. In the light of the above, the much debated issue before this
Court is with regard to whether the Co-operative Court would have
jurisdiction or not. Mr. Chaudhari has placed reliance upon the judgment
of the learned Apex Court in the case of Prabhu Dayal (supra) wherein it
has been observed that the appellant society had taken a stand that the
Act was not applicable to the society in the light of the notification dated
30.06.1988. The High Court had considered the plea in the light of the
provisions of the Uttar Pradesh Industrial Disputes Act and the Uttar
Pradesh Co-operative Societies Act. It was concluded that the entire
service condition of the employees under the Uttar Pradesh Co-operative
Societies Act were covered by the statutory rules and hence the
employees with regard to their grievances in connection with their
service conditions would not be covered by the Industrial Disputes Act
and were entitled to raise a dispute under the Co-operative Societies Act.
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32. In my view, the ratio laid down by the Hon'ble Supreme Court
in the case of Prabhu Dayal (supra) would not be applicable to the cases
in hand, for reasons more than one. Firstly, that these employees
working in co-operative banks are covered by the Bombay Industrial
Relations Act. By the notification dated 02.11.1973, the Government of
Maharashtra exercised its powers under Section 2(4) of the Bombay
Industrial Relations Act, 1946 and made the said Act applicable to the
Nanded District from 15.11.1973 thereby covering the business of
banking companies and co-operative banks. It is for this reason that I am
turning down the submissions of Mr. Chaudhari that the employees are
covered by certain circulars issued by the State Government and hence
the ratio in the Prabhu Dayal case would become applicable.
33. Secondly, this Court has held in various judgments that the
dispute with regard to the service conditions of employees falling within
the definition of Section 3(13) of the Bombay Industrial Relations Act,
1946 or Section 2(s) of the Industrial Disputes Act, 1947 will have to be
referred to the Labour Court or Industrial Court as the case may be and
therefore their disputes would not fall within the ambit of Section 91 of
the Maharashtra Co-operative Societies Act, 1968.
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34. The learned Full Bench of this Court in Rambhau Jairam case
(supra) has observed in paragraph nos. 9, 15, 16 and 22 as under:-
"(9) The words "Touching the business of the a society"
are very to wide and include any matter which relates to
concerns, or affects the business of the society, see Farkhundali
Nannhay v. V. B. Potdar, 63 Bom LR 985: (AIR 1962 Bom
162). A dispute in which the employees of a Co-operative
Society demand a change in the their conditions of service or
ask for reinstatement of the employees whose services have
been terminated, therefore, touches the business of the society.
It would therefore, in the absences of anything more, fall
within sub-section (1) of S. 91. It has been contended on
behalf of the workers that the Registrar or his nominee
functions like a Civil Court, that like a Civil Court he is bound
by the contract between the parties, that he cannot travel
outside the contract and that an industrial dispute is,
therefore, not within his jurisdiction. In support of this
argument, the decision of this Court in Majoor Sahakari Bank
v. N.M. Majumdar , 57 Bom LR 1097: (AIR 1957 Bom 36)
has
been cited. In that case, a workman, who was employed as a
watchman by a co-operative society registered under the Co-
operatives Societies Act, 1925, and doing banking business,
had been discharged from service. He then made an
application to the Labor Court seeking reinstatement and
compensation. A preliminary objection was raised that the
provisions of the Bombay Industrial Relations Act 1947, did
not apply and that the dispute could not be decided by the
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Registrar under S. 54 of the Co-Operatives societies Act, 1925
This contention was negatived. At p. 1099, [of Bombay LR]
[at p. 37 of AIR] Chagla C.J. observed.
"It is further pointed out that S. 54 provides for compulsory
arbitration when there is a dispute between a society and its
employee, ....................Mr. Rane has very rightly pointed out
that the disputes contemplated by S. 54 are disputes of a civil
nature which could have been decided by Civil Courts but for
the provisions with regard to compulsory arbitration provided
in S. 54 Mr.Rane has also rightly pointed out that the present
dispute between respondents No.2 and the petitioners could
not have been the subject-matter of a reference to arbitration
under S. 54. Respondents No.2 is not claiming to assert any
civil rights against the petitioners. What he is claiming is
certain rights which are now conferred upon workmen and
employees as result of principles of social justice which are
now almost universally acknowledged all the world over.
There is no right of re-instatement under civil law which can
be enforced by an employee against his employer. No contract
of personal service can be specifically enforced by a Civil Court
determine whether the wages paid to an employee are proper
wages or not Civil Courts are bound down by the law of
contract and it is under the law of contract that the Civil
Courts decide disputes between a master and his servant."
(15) It has been argued that as a dispute between Co-
operative Society and its employees touches the business of the
society and, therefore, falls under Section 91(1)
, every such
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dispute must first be referred to the Registrar and decision
obtained under sub - section (2) of section 91 and that it is
only if the Registrar decides that it is not a dispute within
section 91, that any other Tribunal will have jurisdiction to
decide it. Sub - section (2) of section 91 however, only
empowers the Registrar to determine a jurisdictional issue. It
does not enlarge the jurisdiction conferred on the Registrar by
sub -section [1]. If therefore the other provisions of the act
indicate that some industrial disputes do not come within the
ambit of sub -section (1) of Section 91, such matters need not
be referred to the Registrar, either under sub-section 1 or sub -
section (2). In any case this provision does not furnish any
assistance in deciding the question whether an industrial
dispute arising out of a demand made by employees outside
the terms of their employment can be tried by the Registrar.
(16) An indication of the nature of disputes which the
Registrar can determine is furnished by sub - section (3) of S.
93 of the act. This sub - section empowers the Registrar to stay
the proceedings before him and to ask the parties to approach
a Civil Court by a regular suit for deciding the dispute
between them. A party can be asked to go to a Civil Court only
if the dispute is one which can be decided by a Civil Court. The
matter referred to the Registrar must therefore be necessarily
such in which a civil suit can lie, but for the special provision
contained in section 91. It is therefore clear that the dispute of
covered by section 91 must be one which is capable of being
tried by a Civil Court. This conclusion also finds support in
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clause (b) of the sub-section (1) of section 163 which ousts the
jurisdiction of the Civil Court in respect of any dispute which
is required to be referred to the Registrar. A Civil Court
cannot try an industrial dispute, in which a relief is claimed
outside the terms of employment. It follows, therefore, that the
Registrar cannot also try such a dispute.
(22) The Punjab and Kerala High Courts have taken
the same view. In Jullundur T.C. Society v. Punjab State, AIR
1959 Punj 34 it was held that an industrial dispute between a
co-operative society registered under the Punjab Co-operative
Societies Act, and its workmen can be referred to an Industrial
Tribunal set up under the Industrial Disputes Act. Section
60(1) of the Punjab Co-operative Societies Act was
substantially in the same terms as section 54 (1) of the
Bombay Act of 1925. It contained a proviso almost in the
same terms of sub - section (3) of Section 93 of the present
Maharashtra Co-operative Societies Act. At page 35, the
learned Judges observed that the dispute contemplated by
Section 50 were not intended by the Legislature to cover all
kinds of disputes and this provision was not meant to be all
embracing as was contended by the learned Counsel. It was
further observed that a reading of sub-section (1) of Section
50 clearly showed that though the words "touching the
constitution or business of the society" were unqualified and
extremely wide and comprehensive, still the Legislature did
not intend to include in this expression "industrial disputes"
for the adjudication of which the Parliament had enacted the
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Industrial Disputes Act. The learned Judges then referred to
the proviso and observed:
"Indeed this proviso supplied a key to the intention of
Legislature and it almost conclusively of suggests that is only
such disputes as are capable of being tried by a regular suit
which are covered by the provisions of section 50.
It has not been suggested by the learned Counsel for petitioner
[and it could not be suggested] that an industrial dispute as
defined in the Industrial Disputes Act is capable of being tired
by a regular suit."
In Kerala state Handloom Weaver's Co - operative Society v.
State of Kerala, [1954] 1 Lab LJ 559 [Ker] the Kerala High
Court has held that the provisions of section 60 (1) of the
Travancore-Cochin Co-operative Societies Act, 1951, did not
preclude a reference to adjudication under section 10 of the
Industrial Disputes Act of the industrial disputes between a co-
operatives society and its workmen.At page 561 was observed:
"The question in cases like this is not whether the dispute of
referred for adjudication touches the business of a Coperativ
Society; the question really is whether that dispute comes
within the category of disputes covered by section 60 (1) of
the Travancore-Cochin Co-operative Societies Act, 1951. The
purpose of Chapter XIII of the Travancore-Cochin Co-operative
Societies Act 1951 - the chapter in which section 60 (1) occurs
- is not to resolve all controversies touching the business of co -
operatives societies under the provisions of that chapter; but
resolve only such controversies as can be resolved in an
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ordinary Court of law. In other words, the arbitration
provided by Chapter XIII is an alternative to the normal
processes of the ordinary Courts and not to the extraordinary
process of adjudication under the Industrial Disputes Act,
1947, which has been designed to deal with controversies
which by their very nature are outside the purview of ordinary
litigation."
The position therefore, is that the dispute referred to the
Registrar under sub - section (1) of the section 91 must be
such as a Civil Court can take cognizance of and try. Like a
Civil Court, the Registrar cannot grant any relief outside the
contract of employment. He cannot, therefore, try any matter
in which a demand is made for a change in the conditions of
service or for reinstatement of an employee whose services had
been terminated. By and large, the Co-operatives Societies Act
and the Industrial Disputes Act provides for the settlement of
different of classes of disputes. Even though therefore, the
words "any dispute" in sub section (1) of Section 91 are very
wide, they will have to be given a limited meaning, fro the
reasons which I have given above. These words mean any
dispute which the Registrar is competent of try and decide."
35. It was thus concluded by the learned Full Bench that any
demand or dispute with regard to change in service conditions or with
regard to reinstatement of an employee would fall within the jurisdiction
of the Labour/Industrial Court or Tribunal.
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36. In the Co-operative Central Bank Ltd. case (supra), the
Hon'ble Supreme Court considered the effect of Section 61 of the Andhra
Pradesh Co-operative Societies Act, which has been reproduced
hereinabove. The Hon'ble Supreme Court has considered Section 91 of
the Maharashtra Act, 1960 in comparison to Section 61 of the Andhra
Pradesh Act, 1964. The facts in the dispute that was under consideration,
have been referred to in paragraph no.1 of the Co-operative Central Bank
judgment (supra) which reads as under:-
"1. An industrial dispute arose between 25 Co-
operative Central Banks in the State of Andhra Pradesh and
their workmen represented by the Andhra Pradesh Bank
Employees Federation, Hyderabad, which was referred by the
Government of Andhra Pradesh to the Industrial Tribunal,
Hyderabad, under section 10(1) (d) of the Industrial Disputes
Act No. 14 of 1947. The subject-matter of the dispute was
divided into three issues. The first issue comprised a number
of service conditions, viz., (1) Salary, Scales and Adjustments,
(2) Dearness Allowance, (3) Special Allowances, (4) other
Allowances, (5) Uniforms and Washing Allowances for
subordinate staff, (6) Conveyance Charges, (7) Provident
Fund and Gratuity, (8) Leave Rules, (9) Joining Time on
Transfer, (1) Rules relating to departmental enquiry against
employees for misconduct, (11) Probationary Period and
Confirmation, (12) Working Hours and Overtime Allowance,
(13) Age of Retirement,, (14) Security, (15) Common Good
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Fund, (16) Service Conditions and (17) Promotions. The
second and the third issues both related to the question
whether the transfers of some employees of two of the Banks,
The Vijayawada Co-operative Central Bank, Ltd., Vijayawada,
and The Vizianagaram Co-operative Central Bank Ltd.,
Vizianagaram, were justified and, if not, to what reliefs were
the employees entitled. Before the Industrial Tribunal, one of
the grounds raised on behalf of the Banks was that the
reference of the disputes to the Tribunal was invalid, because
such disputes were required to be referred for decision to the
Registrar of the Co-operative Societies under section 61 of the
Andhra Pradesh Co-operative Societies Act No. 7 of 1964
(hereinafter referred to as 'the Act'), and the effect of the
provisions of the Act was to exclude the jurisdiction of the
Industrial Tribunals to deal with the same disputes under the
Industrial Disputes Act. Various other pleas were also taken by
the Banks in resisting the claims of the workmen, but, in these
appeals, we are not concerned with them, because the
Tribunal dealt with the point, mentioned by us above, as a
preliminary issue and rejected the contention of the Banks.
Twenty-four of the Banks thereupon challenged the
preliminary decision of the Tribunal on this question, treating
it as a preliminary award, by filing two Writ Petitions Nos.
2339 and 2742 of 1968 under Art. 226 of the Constitution in
the High Court of Andhra Pradesh. The High Court also
rejected the plea of the Banks. These two appeals have been
brought up before us by certificate against the orders of the
High Court dismissing the two writ petitions. In Civil Appeal
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No. 2093/1968, the appellants are 10 Banks who 208 were
petitioners before the High Court in Writ petition No. 2339 of
1968, while 2 of the petitioner-Banks in that writ petition
have been impleaded as respondents. In Civil Appeal No. 2094
of 1968, the appellants are also 10 Banks who had joined in
filing the other Writ Petition No. 2742/1968 in the High
Court, while one of the petitioner- Banks in that writ petition
has been impleaded as respondent, and another has not joined
the appeal as a party. In these appeals, therefore, we are only
concerned with one single question as to whether the
jurisdiction -of the Industrial Tribunal to adjudicate on the
industrial dispute referred to it under s. 10(1) (d) of the
Industrial Disputes Act was barred by the provisions of s. 61
of the Act."
37. The Full Bench judgment of this Court in the matter of
Farkhundali Nannhay Vs. V.B. Potdar and Another, AIR 1962 Bombay
162 was considered by the Hon'ble Supreme Court. Similarly, Section 52
of the Madras Co-operative Societies Act, 1932 was also considered and
the learned Apex Court concluded in paragraph no.8 of the judgment that
it was similar in terms of Section 61 of the Andhra Pradesh Co-operative
Societies Act. Finally, by considering the entire provisions referred to
above and the by-laws of the co-operative socieites framed in pursuance
of the provisions of the Act, it was concluded that the jurisdiction of the
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Industrial Tribunal is not limited merely for administering existing laws
and for enforcing existing contracts, but can have the jurisdiction to even
vary contract of service between the employer and the employees. It was
thus concluded that the dispute relating to alterations of service
conditions would not be a dispute touching the business of the society
and hence such disputes cannot be dealt with and are out of the scope of
Section 61 and they could only be dealt with by the Industrial Tribunal
under the Industrial Disputes Act, 1947.
38. It would be apposite to reproduce the observations of the
learned Supreme Court from paragraph nos.7 to 10 of the Co-operative
Central Bank case (supra) as under:-
"7. Applying these tests, we have no doubt at all that
the dispute covered by the first issue referred to the Industrial
Tribunal in the present cases could not possibly be referred for
decision to the Registrar under S. 61 of the Act. 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, It is true that
S. 61 by itself does not contain any clear indication that the
Registrar cannot entertain a dispute relating to alteration of
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conditions of service of the employees if a registered society;
but the meaning given to the expression "touching the business
of the society", in our opinion, makes it very doubtful whether
a dispute in respect of alteration of conditions of service can be
held to be covered by this expression. Since the word "business"
is equated with the actual trading or commercial or other
similar business activity of the society, and since it has been
held that it would be difficult to subscribe to the proportion
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 employees, 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. Further, the position is clarified by the provisions of
sub-s. (4) of S. 62 of the Act which limit the power to be
exercised by the Registrar, when dealing with a dispute
referred to him under s. 61, by a mandate that he shall decide
the dispute in accordance with the provisions of the Act and
the Rules and bye-laws. On the face of it, the, provisions of the
Act, the rules and the bye-laws could not possibly permit the
Registrar to change conditions of service of the workmen
employed by the society. For the purpose of bringing facts to
our notice in the present appeals, the Rules framed by the
Andhra Pradesh Government under the Act, and the bye-laws
of one of the appellant Banks have been placed on the Paper-
books of the appeals be- fore us. It appears from them that the
conditions of service of the employees of the Bank have all
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been laid down by framing special bye-laws. Most of the
conditions of service, which the workmen want to be altered to
their benefit, have thus been laid down by the bye-laws, so
that any alteration in those conditions, of service will
necessarily require a change in the bye-laws. Such a change
could not possibly be directed by the Registrar when, under S.
62(4) of the Act, he is specifically required to decide the
dispute referred to him in. accordance with the provisions of
the bye-laws. It may also be noticed that a dispute referred to
the Registrar under S. 61 of the Act can even be transferred for
disposal to a person who may have been invested by the
Government with powers in that behalf, or may be referred for
disposal to an arbitrator by the Registrar. Such person or
arbitrator, when deciding the dispute, will also be governed by
the mandate in S. 62 (4) of the Act, so that he will also be
bound to reject the claim of the workmen which is nothing else
than a request for alteration of conditions of service contained
in the bye-laws. It is thus clear that, in respect of the dispute
relating to alteration of various conditions of service, the
Registrar or other person dealing with it under S. 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.(1),
therefore, it must be held that this dispute is not a dispute
covered by the provisions of S. 61 of the Act. Such a dispute is
not contemplated to be dealt with under s. 62 of the Act and
must, therefore, be held to be outside the scope of section 61.
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8. In this connection, we may take notice of the view
expressed by a learned single Judge of the Madras High, Court
in South Arcot Co-operative Motor Transport Society, Ltd. (for
ex- servicemen) v. Syed Batcha and others(2) where dealing
with an industrial claim, the learned Judge held:
"Therefore, in regard to an industrial claim, like the
retrenchment compensation, the remedy for the worker would
be only to enforce it by the machinery created by the
Industrial Disputes Act, namely, by s. 10 and 33C(2). The
Madras Co-operative Societies Act being itself a special statute,
the authority, acting under it, would have no jurisdiction
beyond what the enactment itself conferred on him. lie could
not, therefore, have jurisdiction to decide a dispute under the
Industrial Disputes Act."
That decision also related to s. 51 of the Madras Co- operative
Societies Act, 1932, which was similar in terms to S. 61 of the
Act.
9. Learned counsel appearing on behalf of the
appellant Banks, however, urged a new point to challenge the
jurisdiction of 'the Industrial Tribunal to deal with the dispute
relating to conditions of service to the effect that the
conditions of service having been made the subject -matter of
bye-laws, an Industrial Tribunal will not be competent to alter
them, because even an Industrial Tribunal has no jurisdiction
to make orders contrary to law. For this purpose, he referred
us to a number of decisions of this Court in Dalmia Cement
(Bharat), Ltd., New Delhi v. Their Workmen and Another(1);
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The Management of Marina Hotel v. The Workmen (2) ;
Cinema Theatres v. Their Workmen(3); and The Hindustan
Times Ltd., New Delhi v. Their Workmen & Vice Versa(4). In
all these cases, it was held that an Industrial Tribunal acted
illegally in prescribing leave in excess of the number of days
laid down by the Delhi Shops and Establishments Act, 1954.
In S. 22 of that Act there was a specific prohibition that leave
for sickness or casual leave with full wages shall not exceed 12
days; and it was held that a direction made by the Tribunal
granting to the workmen more than 12 days' sickness or
casual leave was illegal. The principle of the decisions in those
cases does not, however, appear to us to be applicable to the
cases before us, because, in the present cases, there is no
prohibition contained in the Act that the conditions of service
prescribed are not to be altered. The argument on behalf of the
Bank, however, was that the bye-laws, which contained the
conditions of service, are themselves law, so that any direction
made by an Industrial Tribunal altering a condition of service
con- tained in a bye-law would be an order contrary to law
and, hence, illegal.
10. We are unable to accept the submission that the
bye-laws of a co-operative society framed in pursuance of the
provisions of the Act can be held to be law or to have the force
of law. It has no doubt been held that, if a statute gives power
to a Government or other authority to make rules, the rules so
framed have the force of statute and are to be deemed to be
incorporated as a part of the statute. That principle, however,
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does not apply to bye-laws of the nature that a co- operative
society is empowered by the Act to make. The bye- laws that
are contemplated by the Act can be merely those which govern
the internal management, business or administration of a
society. They may be binding between the persons affected by
them, but they do not have the force of a statute. In respect of
bye-laws laying down conditions of service of the employees of
a society, the bye-laws would be binding between the society
and the employees just in, the same manner as conditions of
service laid down by contract between the parties. In fact, after
such bye-laws laying down the conditions of service are made
and any person enters the employment of a society, those
conditions of service will have to be treated as conditions
accepted by the employee when entering the service and will
thus bind him like conditions of service specifically forming
part of the contract of service. The bye-laws that can be
framed by a society under the Act are similar in nature to the
Articles of Association of a Company incorporated under the
Companies Act and such Articles of Association have never
been held to have the force of law. In a number of cases,
conditions of service for industries are laid down by Standing
Orders certified under the Industrial Employment (Standing
Orders) Act, 1946, and it has been held that, though such
Standing Orders are binding between the employers and the
employees of the industry governed by those Standing Orders,
they do not have such force of law as to be binding on
industrial Tribunals adjudicating an industrial dispute. The
jurisdiction which is granted to Industrial Tribunals by the
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Industrial Disputes Act is not the jurisdiction of merely
administering the existing laws and enforcing existing
contracts. Industrial Tribunals have the right even to vary
contracts of service between the employer and the employees
which jurisdiction can never be exercised by a civil court or a
Registrar acting under the Co-operative Societies Act, so that
the circumstance that, in granting relief on issue No. 1, the
Tribunal will have to vary the special bye-laws framed by the
Cooperative Bank does not lead to the inference that the
Tribunal would be incompetent to grant the reliefs sought in
this reference. In fact, the reliefs could only be granted by the
Industrial Tribunal and could not fall within the scope of the
powers of the Registrar dealing with a dispute under s. 61 of
the Act."
39. The learned Division Bench of this Court, in the matter of
Pralhad Vitthalrao Pawar (supra) considered a similar controversy and
concluded that matters of service conditions including the issue of
termination of an employee from service will lie before the Labour Court
and not before the Co-operative Court under Section 91 of the Act of
1960. It was held that if the employee is covered by the definition of
workman, the dispute will have to go before the Labour Court and only if
the employee is not covered by the definition of workman, his dispute
will lie before the Co-operative Court. Paragraph Nos.8, 11 and 13 of the
Pralhad Vitthalrao Pawar judgment (supra) read as under:-
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8. In the case of Rambhau Jairam Dhamange v. The President,
Vinkar Co-operative Society Ltd., Chanda, , a Full Bench of
this Court, while interpreting the provisions of section 91(1)
as it stood at the relevant time, held that though the words
"touching the constitution or business of the society" were
unqualified and extremely wide and comprehensive, still the
legislature did not intend to include in this expression
"industrial dispute", as defined in the Industrial Disputes Act
or the Bombay Industrial Relations Act. It was further held as
under :
"The dispute referred to the Registrar under sub-section (1) of
section 91 must be such as a Civil Court can take cognizance
of and try. Like a Civil Court, the Registrar cannot grant any
relief outside the contract of employment. He cannot,
therefore, try any matter in which a demand is made for a
change in the conditions of service or for reinstatement of an
employee whose services had been terminated."
11. In appeal, this Court held that the Civil Judge acted
without jurisdiction in entertaining the suit, ignoring the
mandatory provisions of section 91 of the Act and it was held
that the dispute was certainly within the ambit of section
91(1)(a) in as much as it was a dispute "touching the business
of the society" between the society and its employee. This Court
further held that when no other statutory or labour law
entitles the plaintiff to claim the above reliefs, in any other
special Court or tribunal and there are no rules governing the
plaintiff's reinstatement in the employment, as contended by
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him, ordinary law of Master and Servant would apply and
termination would, at the worst, be only a breach of the
contract of employment, which would certainly fall within the
scope of the words "touching the management or business of
the society", contained in section 91(1) of the said Act.
13. Thus, the Supreme Court in the case of Gujarath State Co-
operative Land Development Bank Ltd. v. P.R. Mankad
(supra) and the Division, Bench of this Court in the case of
Maharashtra Co-operative Housing Finance Society Ltd.
(supra) concluded that a claim which is not entertainable by
Civil Court under section 9 of the Civil Procedure Code cannot
be allowed to be entertained under section 91 of the Co-
operative Societies Act. This is a restrain on the exercise of
jurisdiction by the Co-operative Court under section 91. It
really deals with the reliefs which can be granted. It does not
lay down the proposal that the dispute between a terminated
employee of a Cooperative Society and the Society or a dispute
about any of the service condition of such an employee is not
entertainable under section 91. If the employee is covered by
the definition of "Workman", dispute will have to go before the
Labour Court and if the employee is not covered by the term
"Workman", then the dispute will have to go before the Co-
operative Court. If the parties are Co-operative Society and its
employee, Co- operative Court will have all the jurisdiction but
will not grant a relief that the Civil Court would not have
granted. The Supreme Court in the case of Co-operative
Central Bank Ltd. v. Additional Industrial Tribunal,
Hyderabad, and in the case of Gujarath State Co-operative
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Land Development Bank Ltd. (supra) came to the conclusion
that a claim based upon contracts between the employees of
the Co-operative Society and the society or the claim for
damages arising nut of the breach of such contracts can be a
part of a dispute touching the "Management" of the Co-
operative Society within the meaning of section 91 of the Co-
operative Societies Act and such a claim would be entertained
and decided by the machinery provided under the said Act.
This view is strengthened after the amendment of section
91(1)(a) by incorporating the proviso, referred to
hereinabove."
40. The Hon'ble Supreme Court in the case of Morinda Co-
operative Sugar Mills (supra) considered Section 79 of the Punjab Co-
operative Societies Act, 1961. Section 55 and 79 have been reproduced
in paragraph no.7 of the said judgment which reads as under:-
7. Sections 55 and 79 of the Act read as follows :
"55. Disputes which may be referred to arbitration (1)
Notwithstanding anything contained in any law for the time
being in force, if any dispute touching the constitution,
management or the business of a cooperative society arises
(a) among members, past members and persons claiming
through members, past members and deceased members ; or
(b) between a member, past member or person claiming
through a member, past member or deceased member and the
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society, its committee or any officer, agent or employee of the
society or liquidator, past or present; or
(c) between the society or its committee and past committee,
any officer, agent or employee, or any past officer, agent or
past employee or the nominee, heirs or legal representatives of
any deceased officer, deceased agent, or deceased employee of
the society; or
(d) between the society and any other co- operative society,
between a society and liquidator of another society or between
the liquidator of one society and the liquidator of another
society:
Such disputes shall be referred to the Registrar for decision
and no Court shall have jurisdiction to entertain any suit or
other proceeding in respect of such dispute.
2. For the purposes of sub-section (1), the following be
deemed to be disputes touching the constitution, management
or the business of co-operative society, namely
(a) a claim by the society for any debt or demand due to it
from a member or the nominee, heirs or legal representatives
of a deceased member, whether such debt or demand be
admitted or not:
(b) a claim by a society 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, whether such debt
or demand is admitted or not:
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(c) any dispute arising in connection with the election of any
officer of the society.
3. If any question arises whether a dispute referred to the
Registrar under this Section is or not a dispute touching 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.
79. Notice necessary in suits No suit shall be instituted
against a co-operative society or any of its officers in respect
of any act touching the business of the society until the
expiration of three months next after notice in writing has
been delivered to the Registrar or left at his office stating the
cause of action, the name, description and place of residence
of the plaintiff and the relief which he claims, and the plaint,
shall contain a statement that such notice has been so
delivered or left."
41. The learned Apex Court therefore considered its earlier
judgment (Three Judges' Bench) in the case of Co-operative Central Bank
Ltd. (supra) and concluded that the expression 'business of society' used
in Section 79 of the Punjab Co-operative Societies Act would not cover
the disputes regarding service conditions of employees of the society.
42. In the light of the above, it is apparent that both the lower
Courts in this case have not considered vital issues with regard to the
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maintainability of the dispute before the Co-operative Court. Merely by
relying upon the amount of wages earned by the respondents, the
Appellate Court has brushed aside the contentions of the petitioner as
regards the jurisdiction of the Co-operative Court and has concluded that
the Co-operative Court had jurisdiction to deal with the said disputes. In
my view, the said conclusion is rendered unsustainable and deserves to
be set aside.
43.
Mr. Chaudhari, learned Counsel appearing on behalf of four
employees, one of whom is deceased and represented by his legal heirs,
submits that the three employees who had joined duties way back in
between 1963-66, are in their late 70s. Some of them are so ill that they
were not in a position to come to the Court. He therefore submits that it
would be to harsh to remand the matters to the Industrial Court or the
Tribunal for considering the dispute afresh. He further submits that
though the respondents have given individual undertakings to the
Appellate Co-operative Court, it would be very harsh to cause a recovery
of the said amounts from the persons who are about 80 years old or from
the legal heirs of the deceased-respondent who can neither be blamed,
nor be faulted.
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44. Considering the above situation, these petitions are allowed.
The impugned judgments of the Co-operative Court and the Appellate
Co-operative Court are quashed and set aide. Taking into account the
fact that these respondents were placed in Category Nos.7 and 9 which
were the categories for the clerical staff, their disputes would not be
maintained under Section 91 of the Maharashtra Co-operative Societies
Act, 1960 before the Co-operative Court. The said Dispute Nos.
CCN/266/83, ACR/N/267/83, ACR/N/603/83 and CCN/N/265/83 are
dismissed.
45. After considering the submissions of Mr. Chaudhari and taking
into account the physical and financial status of the respondent-
employees, I am restraining the petitioner from causing any recovery of
the salaries/wages that have been paid to the respondents after placing
them in Category No.6, in the light of the ratio laid down by the Hon'ble
Supreme Court in the case of State of Punjab and Others Vs. Rafiq
Masih (White Washer), (2015) 4 SCC 334 .
46. It may however be noted that in the event the respondents
decide to raise an industrial dispute and approach the redressal
machinery either under the Industrial Disputes Act, 1947 or under the
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Bombay Industrial Relations Act, 1946 for seeking status and benefits of
promotional posts falling in Category No.6, in that case, the petitioner
shall be at liberty to seek recovery of the excess payments made to these
respondents.
47. Rule is made absolute in the above terms.
48. In the light of the above, pending civil applications do not
survive and are therefore disposed off.
(RAVINDRA V. GHUGE, J.)
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