Punjab-Haryana High Court
The Ambala Central Co-Operative Bank ... vs The State Of Haryana And Ors. on 6 January, 1993
Equivalent citations: (1993)103PLR424
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT A.L. Bahri, J.
1. The correctness of the decision of the Division Bench in the Kapurthala Central Co-operative Bank Limited v. State of Punjab, (1991-1) 99 P,L.R. 624 having been doubted in view of the earlier Full Bench decision in Sonepat Co-operative Sugar Mills Ltd. v. Presiding Officer, Labour Court, Rohtak, (1987-1) 91 P.L.R. 77 (F.B.) the matter was referred to the Full Bench when the aforesaid writ petition alongwith other seven writ petitions (CWP Nos. 14753, 14754, 14755, 19188 and 19189 of 1991, CWP Nos. 186 and 187 of 1992) came up for preliminary hearing, on August 12, 1392. The Division Bench in the Kapurthala Co-operative Bank's case (supra) held that the order passed by the Registrar under the Co-operative Societies Act would disentitle the workman to move the State Government to refer the matter to the Labour Court under the provisions of the Industrial Disputes Act and such a decision given by the Registrar would operate as res judicata. The Full Bench in Sonepat Co-operative Sugar Mill's case (supra) held provisions of Section 128 of the Haryana Co-operative Societies Act, 1984 to be ultra vires the provisions of Article 14 of the Constitution which debarred Industrial Tribunal/Court from entertaining dispute relating to the establish meat of a cooperative society. It was observed in the reference order that in view of the decision of the Full Bench referred to above, it could not be held that the Industrial Tribunal or the Labour Court could not entertain reference under section 10 of the Industrial Disputes Act even though the matter had been decided by the Registrar under the Co-operative Societies Act. The second question posed was whether such decision given by the Registrar would operate as res judicata in proceedings under section 10 of the Industrial Disputes Act in the Labour Court or in the Civil Court. Thus, these questions are now for consideration before the Full Bench.
2. Respondent No. 3 Shish Pal Singh was appointed as Secretary in the service of the petitioner-Bank, a registered Cooperative Society, under the Haryana Co-operative Societies Act Shish Pal Singh was removed from the service by the Board of the Administrators of the Bank for having embezzled certain funds of the Bank. Against the order of removal Shish Pal Singh filed an appeal as provided under Rule 31 of the Haryana State Central Cooperative Bank's Staff Service (Common Cadre) Rules, 1974 (hereinafter called 'the Rules'). The Registrar referred the appeal to the Deputy Registrar (Industrial) Cooperative Societies Haryana, Chandigarh, who dismissed the same on February 15, 1988, copy Annexure P.2. Shishpal Singh issued a demand notice under the Industrial Disputes Act challenging the correctness of the order of removal. Subsequently, the Government of Haryana referred the matter to the Labour Court vide order dated November 8, 1988 under Section 10 of the Industrial Disputes Act, 1947. Copy of the order is Annexure P 3. This order has been challenged in this writ petition on behalf of the Bank. Similar orders were challenged in the connected writ petitions.
3. Sections 102, 103, 128 of the Haryana Cooperative Societies Act, 1984, read as under :-
"102. Disputes for arbitration :-(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, establishment, management or the business of a cooperative society arises :-
(a) among members, past members and persons claiming through a members, past member or deceased member; or
(b) between a member, past member or persons claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee or the society or liquidator, part or present; or
(c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, agent or employee or the nominee, heirs or legal representatives of any deceased officer, agent or employee of the society ; or
(d) between the society and any other society ; between a society and liquidator of another society or between the liquidator of one society arid the liquidator of another society ;
Such disputes shall be referred to arbitration of the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.
(2) For the purpose of sub-section (1) the following shall be deemed to be disputes touching the constitution, management or the business of a co operative society, namely :-
(a) a claim by the society for any debt or demand due to it from a member, or 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 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 is not a dispute touching the constitutions, management or the business of co-operative society the decision there-on of the Registrar shall be final and shall not be called in question in any court.
(4) No dispute arising in connection with the election of committee member of officer of the society shall be entertained by the Registrar unless it is referred, to him within thirty days from the date of the declaration of the result of election.
103. Reference of dispute to arbitration :-(1) The Registrar may, on receipt of the reference of dispute for arbitration under section, 102:-
(a) decide the dispute himself ;
(b) transfer it for disposal to any person who has been vested by the Government with powers in that behalf; or
(c) refer it for disposal to any other person as arbitrator.
(2) The Registrar may withdraw any reference from an officer who is exercising the powers of Registrar and entrust for disposal to any other officer who has been vested with the powers of the Registrar.
(3) The Registrar may withdraw any reference transferred under clause (b) of sub-section (1) or referred under clause (c) of that subsection and decide it himself or refer the same to another arbitrator for decision.
(4) The Registrar or any other person to whom a dispute is referred for decision under this section may, pending the decision of this dispute, make such interlocutory order as he may deem necessary in the interest of justice.
128. Bar of jurisdiction of courts:-(1) Save as provided in this Act, no civil court, revenue court, industrial tribunal or labour court shall have any jurisdiction in respect of :-
(a) the registration of a co operative society or its bye-laws or of an amendment of bye-law ;
(b) the removal of a committee ;
(c) any depute required under section 102 to be referred to the arbitration of the Registrar or any matter in which proceeding under section 104 have been initiated ; or
(d) any matter concerning the winding up and dissolution of a cooperative society.
(2) While a co-operative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose.
(3) Save as provided in this Act, no order, decision or award, made under this Act, shall be questioned in any court or tribunal on any ground whatsoever."
4. The aforesaid provision and the provisions of the previous Act (Punjab Co-operative Societies Act) were discussed in detail by the Full Bench in Sonepat Co-operative Sugar Mills Ltd, case (supra). The following four conclusions were arrived at after discussing the entire case law on the subject by the Full Bench :-
"(1) For the detailed discussion in our judgment of the even date in Income Tax Reference No. 219 of 1920, it is held that the Labour Court would not be divested of the references which have been made or are pending before it qua the employees of the Cooperative Societies.
whereby such disputes are purported to have been taken out of its jurisdiction;
(2) that the Legislature did not intend to include in the expression 'establishment' industrial disputes for the adjudication of which the Parliament has enacted the Industrial Disputes Act;
(3) that the Industrial Disputes Act is a special enactment dealing with a special subject of industrial disputes and special provisions have been made in the statute for setting up Tribunal qualified for adjudicating upon them, Therefore, an industrial dispute between a Co-operative Society under the Cooperative Societies Act and its workmen under the law has to be referred to an Industrial Tribunal set up under the Industrial Disputes Act ; and (4) that the provisions made in section 128 of the Cooperative Societies Act. 1984, to the extent they exclude the jurisdiction of the Industrial Tribunal and Labour Court are unconstitutional and hit by the provisions of Article 14 of the Constitution."
Some previous decisions may also be noticed. In the Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke, A. I. R. 1975 S. C. 2238 the question for consideration was with respect to the jurisdiction of the civil court vis-a-vis the Industrial Courts to entertain the dispute. In para 23 of the judgment the principles application to the jurisdiction of the civil Court in relation to an industrial dispute were stated as follows : -
"(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act, such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be,"
5. The Full Bench of this Court in Sukhi Ram v. State of Haryana, (1982) 84 P. L R 717 discussed the question as to whether Civil Court had jurisdiction to entertain the suit filed by a workman in connection with an industrial dispute if no steps were earlier taken to get it referred to the Labour Court under Section 10 of the Industrial Disputes Act. Ultimately answer was given in the affirmative. The Supreme Court in Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd., 1983 Lab. I. C. 1694 discussed the question as to whether industrial dispute could be raised under Section 10 of the Industrial Disputes Act by an employee of the Bank, Cooperative Society, in view of the exhaustive provisions contained in the Co-operative Societies Act with respect to the settlement of disputes In para 3 of the judgment it was observed as under : -
"Raising an industrial dispute is a well recognised and legitimate mode of redress available to a workman, which has achieved statutory recognition under the Industrial Disputes Act and we fail to see why the statute recognised mode of redress should be denied to a workman because of the existence or availability of another remedy. Nor are we able to understand how an Industrial Tribunal to whom a dispute has been referred for adjudication can refuse to adjudicate upon it and surrender jurisdiction which it undoubtedly has to some other authority. While the Government may exercise their discretion in deciding whether to refer or not to refer a dispute for adjudication, the Tribunal to whom the dispute has been referred has no discretion to decide whether to adjudicate or not. Once a reference has been properly made to an Industrial Tribunal, the dispute has to be duly resolved by the Industrial Tribunal Resolution of the dispute cannot be avoided by the Tribunal on the ground that the workman had failed to pursue some other remedy".
6. In Jitendra Nath Biswas v. M/s. Empire of India and Ceylone Tea Co. A. I. R. 1990 S. C. 255 it was held as under :-
"It is therefore clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the .scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court. by tiling a suit.
"Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the standing orders but also provided) a detailed procedure and machinery for getting this relief. Under these circumstances there is an apparent implied exclusion of the jurisdiction of the civil court......................... It is therefore clear that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act."
7. In view of the consistent decisions referred to above specifying the scope of the authorities under the Co-operative Societies Act. the Civil Court and the Labour Court and the remedies available there-under, the decision of the Division Bench of this Court in the Kapurthala Central Cooperative Bank Limited v. State of Punjab, A.I.R. 1990 S.C. 225 does not lay down the law correctly In this case it was held that the employee of a Co-operative Society having elected his remedy of filing an appeal under the provisions of the Act and failed there could not get the matter referred through the State to the Labour Court under Section 10 of the Industrial Disputes Act. It was also held in this case that the decision of the authorities under the Co-operative Societies Act Registrar of the Co-operative Societies) would operate as resjudicata. Since the dispute between the workman and the Bank in the present case related to establishment of the Society, it could be referred to the Arbitrator under Section 102 and adjudicated under section 103 of the Act reproduced above Jurisdiction of the Civil Court would obviously be barred to challenge those decisions. However, Industrial Disputes Act dealing with the special subject relating to rights of the workman and the management and the relief provided therein could only be granted by the Court established under the Industrial Disputes Act. Section 128 of the Haryana Cooperative Societies Act was rightly held to be ultra vires i e the remedies available under the Industrial Disputes Act could not be denied to the workman of the management, a Co operative Society. In that sense the order of the Registrar passed under the provisions of the Co-operative Societies Act cannot be treated as a decision final to operate as res judicata in the Labour Court in a reference under Section 10 of the Industrial Disputes Act. Obviously when the order itself is under challenge the same cannot operate as res judicata. To sum up, it is held that after the Registrar decides the matter between an employee and employer, a Co-operative Society, with regard to the termination of his service under Sections 102 and 103 of the Haryana Co-operative Societies Act, 1984 the matter could be referred under Section 10 of the Industrial Disputes Act as an industrial dispute to the Labour Court for adjudication. It is further held that such a decision made by the Registrar under the Haryana Co-operative Societies Act would not operate as res judicata in proceedings initiated on reference under Section 10 of the Industrial Disputes Act in the Labour Court.
8. The matter be put up before the Division Bench for further proceedings.