Kartik Chandra Das vs Dewanbheri Uttarpara Samaby ...
2021 Latest Caselaw 5205 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

CO. No. 1015 of 2021

Kartik Chandra Das.

Vs.

Dewanbheri Uttarpara Samaby Krishi Unnayan Samiti Ltd. & Ors.

For the Petitioner/Defendant : Mr. Prosenjit Mukherjee, Adv.

Mr. Jahangir Hossain, Adv.

Mr. Arghya Kamal Das, Adv.

For the Opposite Parties : Mr. Pabitra Charan Bhattacharyya, Adv.

Mr. Subhajit Panja, Adv.

Heard On                       :31.08.2021.

Judgment                       : 28.09.2021



Subhasis Dasgupta, J:-

The impugned order dated 24th March, 2021 passed by the learned

Arbitrator, Hooghly Range, Officer at Hooghly in connection with a dispute

Case No.01 of 2020/2021, under Section 102(1) of the West Bengal Co-

operative Societies Act, 2006, holding the dispute case to be maintainable

after rejecting the prayer challenging the maintainability of proceeding, is

subject matter of challenge in this revisional application.

Adverting to a copy of petition seeking for quashment and/or

annulment of the dispute case instituted against the petitioner, in dispute

case No. 01 of 2020/2021, being page 108 of the instant revisional

application, Mr. Prosenjit Mukherjee, learned advocate representing the

petitioner submitted that initiation of a recovery case by opposite parties

upon resorting to Section 102(1) of the West Bengal Co-operative Societies

Act, 2006 was bad in law having no sanction of law, on the ground that

disciplinary action taken by the management of the Co-operative

Societies/opposite parties involved in this case, against a paid employee,

though subsequently dismissed from service, could never be regarded as

concerning the management, or business, or affairs of a co-operative

socieity.

Mr. Mukherjee, submitted that an erroneous decision had been

reached mechanically by the order impugned, holding that the dispute

had been arisen between the plaintiff/society and the petitioner, as a

member of the society, and thus the provision of Section 102 (1)(a) of the

West Bengal Co-operative Society Act 2006 had been illegally invoked. Mr.

Mukherjee further contended that petitioner having been removed from

the service, as per decision of the disciplinary proceedings initiated

against the petitioner, the instant recovery case ought not to have been

instituted before the Registrar, as it was not permissible to be instituted

against the petitioner, who had already been held convicted in a

disciplinary proceedings, and already terminated from service.

Per contra, Mr. Pabitra Charan Bhattacharyya, learned advocate

representing opposite parties, supporting the order impugned submitted

that relevant provisions had been appropriately resorted to for the

recovery of Rs.36,95,407/- from petitioner, who had allegedly defalcated

the said amount during his tenure, while discharging his function as a

Manager of Dewanbheri Uttarpara Samaby Krishi Unnayan Samiti Ltd..

The disciplinary proceeding was subsequently initiated against the

petitioner, after the petitioner was dismissed from service on 07.07.2020.

Mr. Bhattacharyya taking recourse to the written statement, filed by

the petitioner against the recovery proceedings initiated under Section 102

of the West Bengal Co-operative Societies Act, 2006, submitted further

that in para 5 of the written statement, defendant/petitioner had admitted

that he had been a member of the plaintiff/society/opposite party at the

relevant point of time. Mr. Bhattacharyya further argued that the alleged

defalcation of huge amount had been made by the petitioner not only

being a manager of the Co-operative Society, but was also a member of

society, relatable to a dispute concerning the management, or business, or

affairs of the Co-operative Society, as appearing in Section 102 of the Act.

The opposite parties were duly permitted or authorised to take out

recovery proceeding against the petitioner, who admittedly not only was

the manager of the concerned Co-operative Society, but was also a

member of the Society at the relevant point of time, though he might have

been lawfully terminated from service upon initiation of a due disciplinary

proceedings, for the defalcation of huge monetary amount touching the

management, or business, or affairs of the Co-operative Society, Mr.

Bhattacharyya contended. The recovery proceeding, according to Mr.

Bhattachayya was very much maintainable, and there left nothing

requiring any interference by this Court.

The solitary point raised by both the parties to this case, requiring

address by this court, is whether the challenge against the maintainability

petition praying for recovery under Section 102 of the West Bengal Co-

operative Societies Act, 2006 has been rightly decided or not.

At the threshold of this case, it may be mentioned over here, that

there is a prohibition Clause appended to Sub-Section 4 of Section 102 of

the West Bengal Co-operative Societies Act, 2006 (hereinafter referred to

as the Act), whereby jurisdiction of the Civil Court as well as any

Consumers Dispute Redressal Forum had been completely ousted.

For the perfect understanding of the word 'dispute' appearing in

Section 102 of the Act, a travel to Section 4(25) of the Act, defining the

'dispute', may be of useful assistance. The dispute has been defined

giving an inclusionary meaning disclosing therein that any matter capable

of being the subject of civil litigation, and including a claim in respect of a

"sum payable to or by a Co-operative Society", would amount to be

'dispute. Therefore, dispute mentioned in the Act to come under the

purview of Act has to be a subject of civil litigation', and it includes a sum

payable to or by a Co-operative Society, which is directly and proximately

relatable to the management or business or affairs of Co-operative Society.

The argument raised by the petitioner is directed towards a

particular point that the referred recovery proceeding is not amenable to

Section 102 of the Act, for being not covered within the meaning of parities

to a dispute, as specified in Clauses (a) to (d) of Section 102(1) of the Act,

on the simple score that disciplinary action taken by the management of

the concerned Co-operative Society against the petitioner, a paid

employee, though might have been dismissed ultimately, is not concerning

the management, or business, or affairs of Co-operative Society.

Reliance was placed by the learned advocate for the petitioner on a

decision reported in 1958 SCC OnLine Cal 158 delivered in the case of

Co-operative Milk Societies Union Ltd. Vs. State of West Bengal and

Ors., wherein it was held that a dispute regarding disciplinary action

taken by society, or its managing committee against a paid servant of a

society would be expressly excluded from the purview of the Registrars

jurisdiction. Referring such decision, it was submitted that a dispute

between the Co-operative Society and the petitioner, who was a manager

of the society, though may ultimately touch or affect the business of the

co-operative society, but the same would not be concerning the business

or affairs of the society.

Reliance was also placed on a decision reported in 1980 (Supp) SCC

437 delivered in the case of U.P. Cooperative Cane Union Federation

Ltd. and Anr. Vs. Liladhar and Ors. that a dispute arising out of a

disciplinary proceeding resulting in dismissal of an employee of the society

cannot be said to be dispute touching the business of the society, and as

such it was not within the purview of the compulsory arbitration.

Further reliance was placed on a decision reported in AIR 1959 PH

34 delivered in the case of The Jullundur Transport Vs. The Punjab

State Through The....., to establish that legislature did not intend that

dispute regarding disciplinary action by the society against its paid

servant should be settled by the Registrar. The present dispute, according

to petitioner is not referable to Registrar of Society, as there is limitation

regarding kind of dispute, which may be referred to the Registrar, as

mentioned in Section 102 of the Act, found in Chapter 11 of the Act, with

caption "settlement of dispute".

By referring an unreported judgment of Supreme Court delivered in

the case of Gujarat State Co-operative Land Development Bank Ltd.

Vs. P.R. Mankad and Ors., learned advocate for the petitioner attempted

to establish that the dispute, as has surfaced in this case, would not fall

within the purview of the phrase "any dispute touching the management

of the society".

Similarly by referring a further unreported decision delivered in the

case of South Eastern Railway Employees Co-Operative Urban Bank

Vs. Presiding Officer 1st Industrial Tribunal (High Court of

Judicature at Calcutta), learned advocate for the petitioner submitted

that any dispute touching the business of a society, other than a dispute

regarding disciplinary action taken by the society against the petitioner,

who was a manager of the society at the relevant point of time, would

come within the purview of Section 102 of the Act.

Referring such decisions, the entire effort exercised by the learned

advocate for the petitioner is to establish that the Industrial Tribunal

alone has jurisdiction to decide the dispute surfaced between the parties

and not by the authority, mentioned in Section 102 of the Act, and more

so the petitioner is not within the meaning of party, as specified in Section

102(a) to (d) of the Act.

On the other hand, learned advocate for the opposite parties

endeavoured to counter the decisions cited by the petitioner relying upon

a decision reported in 1997 (II) CHN 200 delivered in the case of

Sumumar Ghosh Vs. Krishnanagar City Co-operative Bank Ltd., that

the dispute involved in this case, being directly concerning the business,

and relatable to the affairs of the co-operative society, necessarily has to

be referred to the Registrar, and the Civil Court has no jurisdiction to

entertain this case.

Reliance was further placed by the learned advocate for the opposite

parties on a decision reported in AIR 1990 Cal 380 Special Bench

delivered in the case of Anjan Choudhury Vs. Anandaneer Co-operative

Registered Housing Society and Ors., that the dispute in connection

with the instant recovery proceedings being of such a magnitude, that it

was not just concerning or involving a co-operative society, but concerning

the business or relating to the affairs of the society, and such business or

affairs of the society was authorised to be conducted pursuant to its

objectives under the Act. When society is legally authorised to, and

required by its rules and by-laws to undertake, the society had no option,

but to initiate action for recovery, like the instant one, upon resorting to

the provisions available in Section 102 of the Act, and it was very much

within the coverage of Section 102 of the Act, Mr. Bhattacharyya

endeavored to establish upon referring such citation.

The sum and substance of the decisions, cited by the opposite

parties, is that dispute surfaced between the parties is required to be

decided by the authority, shown in Section 102 of the Act, and the same

cannot be relegated to Industrial Disputes Act.

Indisputably petitioner was appointed as manager of the

Dewanbheri Uttarpara Samaby Krishi Unnayan Samiti Ltd., and amenable

to the authority of opposite parties under the West Bengal Co-operative

Societies Act. For the alleged defalcation of huge monetary amount, a

disciplinary proceeding was taken out against the petitioner, and

ultimately petitioner had to be dismissed from service on and from

07.07.2020. The application under Section 102 of the West Bengal Co-

operative Societies Act, 2006 praying for recovery of the amount, shown in

the above referred recovery proceeding came to be filed on 27th September,

2020. In the referred recovery proceedings under Section 102 of the Act,

the petitioner challenged the maintainability of the said proceedings

alleging that the disciplinary action having taken by the management of

the Co-operative Society against the petitioner, a paid employee, was not

at all concerning the management or business or affairs of the Co-

operative Society. It was thus grossly challenged that the recovery

proceedings, being not within the meaning of 'dispute' concerning the

business or affairs of the Co-operative Society, would not be referable for

decision in application of the provisions under Section 102 of the Act by

the Registrar of the Co-operative Society. Further challenge is that the

petitioner is not a party to such dispute, as specified in Clause (a) to (d) of

Section 102(1) of the West Bengal Co-operative Societies Act, 2006.

Upon perusal of the written statement of petitioner/revisionist filed

by the defendant/petitioner in reference to an application under Section

102 of the West Bengal Co-operative Societies Act, 2006, seeking recovery

of the amount, it appears that petitioner/defendant admitted himself

therein in para 5 of the written statement, that he was a member of the

plaintiff/society. Thus it is crystal clear that petitioner was not only a

manager of the Co-operative Society under opposite parties, but was also

a member of the society.

Anything concerning the business of a Co-operative Society is a

matter relating to the affairs of the society. But everything, not relatable

to the business of the society, may not be touching and/or concerning the

business of the society. The allegations surfaced against the petitioner

that huge monetary amount, the petitioner had defalcated without any

justified accounts for the purpose during his tenure, and thus the

petitioner had misused his position, causing the instant Co-operative

Society to suffer huge loss, would attract the meaning of 'dispute', as

available under Section 4(25) of Act. By filing instant proceeding under

Section 102 of the West Bengal Co-operative Societies Act, 2006, the

opposite parties proceeded to recover defalcated amount form the

petitioner with interest accrued thereon. Since petitioner was a member

of the society as well as manager of the same society, his status/position

is obviously coming within the meaning of the parties, as specified in

Clauses (a) to (d) of Section 102 (1) of the Co-operative Society.

In the given context of this case, the main test to be applied over

here is whether the dispute to be referred to the Registrar concerns the

business of the Co-operative Society. Upon applying such test in the

facts and circumstances involved in this case, it appears that the dispute

concerned the business of the Co-operative Society, and naturally

referable to Registrar of the Co-operative Society in terms of the provisions

of law, specifically laid down in Section 102 of the West Bengal Co-

operative Societies Act, 2006, which can never be relegated to Industrial

Disputes Act. More so, in view of the inclusionary definition of 'dispute',

as appearing in Section 4(25) of the West Bengal Co-operative Societies

Act, 2006, any matter capable of being the subject of civil litigation,

including a claim in respect of any sum payable to or by a Co-operative

Society, the money stated to have been defalcated by the petitioner during

his tenure, not only as a manager of the society, but also a member

thereof, appears to include a claim in respect of a sum payable to Co-

operative Society, which has been rightly launched upon resorting to

provisions available under Section 102 of the West Bengal Co-operative

Societies Act, 2006 before the authority mentioned therein.

The decisions cited by the petitioner as such would hardly find any

scope to be applied over the facts and circumstances of this case, and also

distinguishable on facts also covered therein.

The decision of the Special Bench, as referred by the opposite

parties rendered in the case of Anjan Choudhury (supra) deciding the

test of nature of dispute to be referable to Register in the given context of

this case, will govern the entire situation. The recovery proceedings

initiated under Section 102 of the West Bengal Co-operative Societies

Act,2006 was rightly held to be maintainable.

For the reasons discussed hereinabove, the impugned order would

thus go unaltered.

The revisional application fails, and accordingly dismissed, being

without any merits.

Urgent certified copy of this order and judgment, if applied for, be

given to the appearing parties as expeditiously as possible upon

compliance with the all necessary formalities.

(Subhasis Dasgupta, J.)