Mahadeb Pandit & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 4381 Cal

                        In the High Court at Calcutta
                      Constitutional Writ Jurisdiction
                               Appellate Side

Before:
The Hon'ble Justice Lapita Banerji

                              WPA 26384 of 2022
                              Mahadeb Pandit & Ors.
                                         Vs.
                           The State of West Bengal & Ors.


For the petitioners                  : Mr. N.C. Bihani, Adv.,
                                      Ms. Sahina Sumi, Adv.,
                                      Mr. Soumya Mukherjee, Adv.


For the Respondent Nos. 7 & 8       : Mr. Srijan Nayak, Adv.,

Ms. Rituparna Maitra, Adv.

For the Respondent No. 1 : Mr. Pradip Kumar Roy, Adv., Mr. Joydip Roy, Adv.

For the Respondent Nos. 2 & 4       : Mr. Arnab Ray, Adv.

Heard On                            : 05.07.2023.

Judgment On                          : 20.07.2023.



Lapita     Banerji,   J:- The petitioners have challenged a notice dated

September 7, 2022, whereby the cut off date for assessing the eligibility of the

incumbents for promotion was held to be September 30, 2021. The petitioners

are working in Grade-2, Scale-I posts of the Bankura District Central

Cooperative Bank Ltd.

2. Mr. Ray, learned Counsel appearing on behalf of the respondent bank

challenges the maintainability of the writ petition on the ground that due to the

availability of an alternative remedy under Section 102(1)(c) of the West Bengal

Cooperative Societies Act, 2006, the present writ petition is not maintainable. It

was submitted that the issue of granting promotion by a cooperative society to

its employee comes within the scope of the word 'affairs' even if, not within the

scope of the words "management" or "business" in terms of Section 102(1) of

2006 Act.

3. He referred to a decision dated December 7, 2020 passed by an Hon'ble

Coordinate Bench of this High Court in WPA 9964 of 2020 (Malda District

Central Cooperative Bank Employees Union vs. State of West Bengal and

Ors.).

4. The dispute in that case related to alteration of 'nomenclature' of the

posts without consultation with the employees. Therefore, the promotional

avenue of the Branch Managers to the post of Deputy Managers was seriously

prejudiced. The feeder post of Junior Manager was equated to that of the

Branch Managers. On the point of maintainability the Hon'ble Coordinate

Bench held that the existing remedy under Section 102 before the Registrar

can definitely be availed by the petitioners to remedy their grievances.

5. He relied on a decision of a Special Bench of this Hon'ble Court reported

in AIR 1990 Cal 380 (Anjan Choudhury v. Anandaneer Cooperative

Registered Housing Society and Others) for the contention that any dispute

relating to the appointment or termination of service which in effect are

conditions of service of the Officers/Employees of the society would relate to

the 'affairs' of the society, even if, not necessarily concerned with its

"business". Therefore, he submitted that matters concerning promotion of

employees being conditions of service was hit by the bar of Section 102 of the

2006 Act. Since, there was an existence of a statutory alternative remedy the

petitioners should have explored the said avenue, at the first instance.

6. Next, he relied on a decision reported in AIR 2021 Gauhati 163

(Hindustan Paper Cooperation Ltd Officers and Supervisors' Association,

Morigaon, Assam vs. Union of India), for the proposition that when

Legislature had deliberately omitted certain words or definition from a clause, it

is not given to the Court to include that in a statute. He submits that only the

disputes regarding "disciplinary action" of the employees have been excluded

from the jurisdiction of the learned Registrar and therefore the other conditions

of service cannot be excluded from the purview of his jurisdiction.

7. Mr. Bihani, learned Counsel appearing on behalf of the petitioners countered

the argument of Mr. Ray, by citing several Judgments. He refers to a Special

Bench Judgment reported in (1969) 2 SCC 43 (Cooperative Central Bank Ltd.

& Others vs. Additional Industrial Tribunal, Andhra Pradesh and Others) to

contend that service conditions and promotions have been taken out from the

purview of the jurisdiction of the Registrar. In that case, Section 61 of the

Andhra Pradesh Cooperative Societies Act, 1964 was referred to. Section 61 of

the said Act reads hereinunder:

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

(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 the society and any other society, Such dispute shall be referred to the Registrar for decision.

8. In that context, the Hon'ble Special Bench of the Apex Court held that

the dispute relating to the alteration of the conditions of service was a dispute

that was already referred to the Industrial Tribunal. Such a dispute could not

come under the expression 'touching the business of the society'. The word

business is equated with actual trading or commercial business activity of the

Society. In that case, alteration of the service conditions of the employees

would also require alteration of the Rules framed by special by-laws. Without

altering the By-laws the service conditions of the workmen could not be

altered. Therefore, it was held that the disputes relating to the alteration of

various conditions of service was not a dispute that the Registrar was

competent to grant relief in.

9. No argument has been made as to whether disposal of the dispute with

regard to alteration of service conditions will entail changing of the By-laws in

the present case.

10. Next, he relied on a decision reported in (2017) 5 SCC 623

(Maharashtra State Cooperative Housing Finance Corporation Ltd. Vs.

Prabhakar Sitaram Bhadange) Section 91 of the Maharashtra Cooperative

Societies Act, 1960 is reproduced herein 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 Cooperative Court if both the parties thereto are one or the 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 deregistered 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 Section 43, 44 or 45, and any person claiming through such person;

(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 transaction 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 deregistered society or the official assignee of such a deregistered society."

11. In that case, the issue was whether management 'or business of a

society' would include dispute between management of the society and its

employees. It was held that the dispute between the workers union of the

cooperative society and the management was not a dispute relating to the

management and business of the society. It has been clearly held in that case

that even though on the facts of that case the disputes between the cooperative

society and its employees were not covered by the provisions of Section 91 of

the 1960 Act but, there were provisions in the Cooperative Societies Act of

certain States where complete machinery for Redressal of grievances of its

employees were provided under the Cooperative Society Act. In such cases, the

jurisdiction of the Labour Court/Industrial Tribunal under the Industrial

Disputes Act would also be barred having regard to the provisions of a Special

statute vis-a-vis the general Statute like Industrial Disputes Act.

12. Next, he relied on a decision of a Special Bench reported in AIR

1969 SC 1320 (Deccan Merchants Cooperative Bench Ltd. Vs. M/s.

Dalichand Jugraj Jain and Anr.). The said case was also in relation to Section

91 of the Maharashtra Cooperative Societies Act, 1961. It was held that five

kinds of dispute were contemplated under Section 91.

(1); first, disputes touching the constitution of a society; secondly, disputes touching election of the office-bearers of a society; thirdly, disputes touching the conduct of general meetings of a society; fourthly, disputes touching the management of a society; and, fifthly, disputes touching the business of a society.

The jurisdictions of Civil Courts were ousted in respect of the said five types of

dispute.

13. The business of the society in that context did not mean the

affairs of the society as the word affairs would mean election of Office bearers,

conduct of general meeting and management of the society. Business has a

narrower meaning relating to actual trading or commercial or similar business

activity of the Society. On the facts of the case, it was held that the matters

covered by the Rent Act and its provisions would not be affected by Section 91

of the Maharashtra Cooperative Societies Act. As far as the matters covered by

the Rent Act and its provisions were concerned the said Act should prevail.

14. Next, he relied on a decision reported in (1979) 3 SCC 123 (Gujarat

State Cooperative Land Development Bank Ltd vs. P.R. Mankad and

Others). Relying on the case of Deccan Merchants (supra) it was held that the

dispute between the Cooperative Society and its former employees relate to

conditions of service and does not come within the purview of the words

'business' or 'management'. The Apex Court was not willing to widen the

connotation of the word management to bring within the purview of the

Registrar's jurisdiction a dispute between the Society and its discharged

employees/servants. The conditions of service between the Society and its

employees were contained in the by-laws. A change in the by-laws was not

stipulated by the Act to be covered by Section 54(1) of the Gujarat Cooperative

Societies Act, 1961.

15. In Gujarat State Cooperative's case also the word affairs was

not under consideration. The issue under consideration was what

encompassed the words "management" and "business" of the society.

16. Next, he relied on a decision reported in 1972 SCC Online Cal 197

(South Eastern Railway Employees' Cooperative Urban Bank vs. First

Industrial Tribunal and Others). In that case, it was held that the word

business occurring in Section 86 of the Bengal Cooperative Societies Act, 1914

could not be interpreted to mean that a dispute regarding alteration of

conditions of service could be interpreted to be a dispute touching the

business of a Cooperative Society. Relevant part of Section 86 of the 1916 Act

is reproduced herein under:

"86. Any dispute touching the business of a co-operative society (other than a dispute regarding disciplinary action taken by a society or its managing committee against a paid servant of the society) or of the liquidator of a society shall be referred to the registrar if the parties thereto are among the following.....

17. He then relied upon a Judgment reported in (2006) 6 SCC 80

(Morinda Coop. Sugar Mills Ltd. Vs. Morinda Coop. Sugar Mills Workers'

Union). Section 55 of the Punjab Cooperative Societies Act, 1961 is reproduced

hereinunder:

"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 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:

(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.

It was held that only if dispute touches the constitution, management or the

business of the cooperative society, then the same has to be referred to

arbitration. Therefore, a suit that was filed by the plaintiff/employees' union for

fixation of Dearness Allowance was found to be maintainable and not referred

to arbitration. The Appeal by the Cooperative Society was dismissed.

18. Next, he relied on a Judgment reported in (2014) 9 SCC 294

(Akalakunnam Village Service Cooperative Bank Ltd. & Anr. Vs. Binu N. &

Others). Section 69 of the Kerala Cooperative Societies Act, 1969 reads herein

under:

"69. Disputes to be decided by Co-operative Arbitration Court and Registrar.-- (1) Notwithstanding anything contained in any law for the time being in force, if a dispute 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, a past member or deceased member and the society, its committee or any officer, agent or employee of the society; 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, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or

(d) between the society and any other society; or

(e) between a society and the members of a society affiliated to it; or

(f) between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or

(g) between the society and a surety of a member, past member, deceased member or employee or a person, other than a member, who has been granted a loan by the society, whether such a surety is or is not a member of the society; or

(h) between the society and a creditor of the society, such dispute shall be referred to the Co-operative Arbitration Court constituted under section 70A in the case of non- monetary disputes and to the Registrar, in the case of

monetary disputes; and the Arbitration Court or the Registrar, as the case may be, shall decide such dispute and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.

(2) For the purposes of sub-section (1), the following shall also be deemed to be disputes, 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 surety against the principal debtor, where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, as a result of the default of the principal debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the election of the Board of Management or any officer of the society;

19. Considering the provisions of the 1969 Act, it was held that a

dispute regarding the recruitment process between the incumbents and the

cooperative society was not a dispute that could be decided by the Cooperative

Arbitration Court or the Registrar.

20. Upon detailed discussion of the various decisions cited on behalf of

both the parties, this Court is of the view that the word 'affairs' could include

the conditions of service of the employees unless specifically governed by any

by-laws relating to the Bankura District Central Cooperative Bank Ltd. No

attention of this Court is drawn to such by-laws which governed the service

conditions of the employees. Therefore, this Court has not analyzed whether

the Registrar had the power to alter such by-laws.

21. The Special Benches Judgment in Anandaneer Cooperative

(supra) indicates that affairs of a cooperative will include disputes regarding

appointment and termination. This Court finds that disputes relating

disciplinary proceedings is only excluded under Section 102 of the 2006 Act.

Section 102 is set out hereinafter:

"102. (1) Any dispute concerning the management or business or affairs of a Co-operative society other than the dispute relating to election in a Co-operative Society as and when such election is conducted by the Co-operative Election Commission and disciplinary action taken by Co-operative society against its paid employees regarding the terms and conditions of the service shall be filed before the Registrar for settlement if it arises -

(a) among members, past members and persons claiming through members and deceased members or then sureties; or

(b) between member, past member or a person claiming through a member, past member or deceased member representing through heirs or legal representatives and the Co-operative society, its board or any officer, agent or employees of the Co-operative society or liquidator, past or present; or

(c) between the Co-operative society or its board and any past board, any officer, agent or employee or any past officer, past agent; or past employee or the nominee, heirs or legal representatives of any deceased officer or deceased employee of the Co-operative society; or

(d) between two Co-operative society or between a Co- operative society and a liquidator of another Co-operative or between liquidator of two different Co-operative or between a Co-operative society and any person having transaction with it or between a Co-operative society and its financing bank.

(2) Any dispute mentioned in sub-section (1) other than a dispute relating to recovery of money shall be filed before the Registrar within three months from the date on which the cause of action arises.

(3) Notwithstanding anything contained in this section or in any other law for the time being in force, the Registrar may admit any dispute after the expiry of the period of limitation provided in sub- section (2), if the applicant can show sufficient cause for not filing the dispute within such period of limitation and the dispute so admitted shall not be barred by limitation.

(4) Any Civil court or any consumers' Dispute Redressal Forum shall not have any jurisdiction to try any dispute as mentioned in sub- section (1),

(5) Any dispute to be filed before the Registrar shall be made in writing to be called the plaint and it shall be filed in such manner and form as may be prescribed."

22. Therefore, it is deemed that the other service related disputes can be

adjudicated by the Registrar. Considering the language of Section 102 of the

2006 Act read with the interpretation given by the special Bench Judgment to

the word affair, this Court finds that a dispute relating to the conditions of

service can be adjudicated by the Registrar. Therefore, any dispute regarding

promotion can also be adjudicated by the Registrar under the 2006 Act.

23. The Coordinate Bench's Order in Malda District (supra) also takes into

account similar facts. The issue was not regarding alteration of nomenclature

of a post, simplicitor, but of such alteration seriously prejudicing the

promotional avenue of the Branch Managers to the post of Deputy Managers.

24. This Court agrees with the submission of Mr. Ray, that the petitioners

have an effective alternative remedy for the present dispute and the same

should be adjudicated by the authority concerned under Section 102(1) (c) of

the 2006 Act. The petitioner could have only approached the Writ Court in the

face of violation of principles of Natural Justice or extreme injustice. No such

case is pleaded in the present writ petition.

25. Therefore, this Court is of the view that without exhausting the

alternative remedy provided in Section 102 of the 2006 Act, the petitioners

should not be allowed to avail of a remedy under Article 226 of the Constitution

of India. This Court is not inclined to receive, try and entertain the present writ

petition.

26. Accordingly, WPA 26384 of 2022 is dismissed. However, it is made

clear that this Court has not gone into the merits of the writ petition. The

petitioners will be at liberty to approach the appropriate forum, if so advised.

27. All parties to act on server copy of this Order as downloaded from the

official website of this Hon'ble Court.

28. Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(Lapita Banerji, J.)

Later:

Mr. Bihani, Learned Counsel appearing on behalf of the Petitioners prays

for relaxation of the period of limitation in approaching the Registrar of the

Cooperative Society.

Considering the submissions made by the parties this Court is of the

view that in the event, the representation of the Petitioners before the Registrar

is made within one month from the date of the Order, the same shall be

considered by the learned Registrar in accordance with law without raising the

issue of limitation.

(Lapita Banerji, J.)