Rajasthan High Court - Jaipur
Sawai Madhopur Co-Op. Marketing ... vs Rajasthan State Co-Operative ... on 16 December, 1989
Equivalent citations: AIR1991RAJ121, 1990(1)WLN437
JUDGMENT
M.C. Jain Actg. C.J.
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment of the learned single Judge dated May 14, 1985 whereby the learned single Judge allowed the writ petition and he set aside the order of the Rajasthan State Co-operative Tribunal, Jaipur dated 15-11-1975 and remanded the case back of the said Tribunal to decide the appeal filed by respondent No. 3 Shri N.K. Tyagi against the order dated 16-2-1971 passed by the Deputy Registrar, Co-operative Socities, Bharatpur Zone, Bharatpur on merit in accordance with law.
2. A few facts may briefly be noticed.
The petitioner respondent No. 3 was appointed as Manager of the Sawai Madhopur Co-operative Marketing Society Ltd. vide order dated October 23, 1961. The Chairman of the Society suspended him on 16-1-1969 and thereafter he was served with a charge-sheet dated 1-3-1969. Thereafter without any enquiry into the alleged misconduct of the petitioner his services were terminated by the appellant society vide its order dated April 26, 1969. According to the petitioner the order of suspension as well as the order of termination of the petitioner's services were illegal and void. So the petitioner raised a dispuite under Section 75 of the Rajasthan Co-operative Societies Act, 1965 (for short 'the Act') against the termination of his service before the Registrar, Co-operative Societies, Rajasthan, Jaipur. The Registrar referred to dispute to the Deputy Registrar, Co-operative Societies of the Bharatpur Zone, Bharatpur. Reply to the reference was filed by the respondent society on 17-9-1969. The Deputy Registrar held that the dispute raised by the petitioner is a dispute touching the management of the society so the dispute is not maintainable. However on merits he found that the order of termination is not bad so the reference was decided against the petitioner. The petition preferred an appeal under Section 123 of the Act against the order of the Deputy Registrar before the Tribunal. The appellant society raised a preliminary objection that the reference was not maintainable as the dispute is not a dispute which touches the management of the Co-operative Society, the Tribunal upheld the preliminary objection and it was held that the dispute between the employee and employer cannot be tried by the Ragistrar and consequently the appeal is not maintainable for want of jurisdiction. Review petition was also filed, the same was also dismissed by the Tribunal by its order dated 17-4-1976. The petitioner thereafter filed a writ petition, the learned single Judge allowed the writ petition and set aside the order of the Tribunal and held that the dispute touches the management of the society and as such the reference was maintainable under Section 75 of the Act and consequently the matter was sent back by the learned single Judge to the Tribunal for decision on merits in accordance with law. Dissatisfied with the order of the learned single Judge this special appeal has been filed.
3. We have heard Shri B.K. Pathak, learned counsel for the appellant Marketing Society and Shri B.L. Sharma, learned counsel for the petitioner respondent No. 3.
4. Shri B.K. Pathak, learned counsel for the appellant submitted that the learned single Judge seriously-erred in holding that the dispute of the nature in question "touches the management of the society" and the reference under Section 75 is maintainable. This view of the learned single Judge expressing that the view taken by their Lordships of the Supreme Court in the Gujarat State Cooperative Land Development Bank Ltd. v. P.R. Mankad, AIR 1979 SC 1203 : (1979 Lab IC 592) expressing that Section 75 of the Gujarat Co-operative Societies Act was not brought to the notice of their Lordships of the Supreme Court which section fell under the Chapter relating to the management of the society and as such their Lordship of the Supreme Court resorted to grammatical meaning of word 'management' if Section 75 of the Act was brought to the notice they may not have referred to the general grammatical meaning of the word 'management'. In that view of the matter the learned single Judge did not agree with the view taken by Shri S.C. Agarwal, J. of this court in Bhilwara Sahakari Upbhokta Wholesale Bhandar Ltd. v. Prescribed Authority, 1982 RLR 927 : (1983 Lab IC 987). Shri Pathak submitted that the learned single Judge in the impugned order relied on the provisions of chapter IV of the Act as well as Chapter IV of the Rule particularly Rule 41 which deals with the officers and the employees of the Co-operative Society and according to the learned single Judge the intention of the Legislature is indicated in the provisions of the Act and the Rules and on that basis he held that the matters relating to office of the society with regard to their service condition shall be covered and shall be within the purview of the term "touching the management of the society". Mr. Pathak Vehemently urged that the decision of the Supreme Court was binding and it cannot be taken that Section 76 of the Gujarat Act was not in the view of their Lordships of the Supreme Court while deciding the case. Their Lordships of the Supreme Court categorically held that a dispute raised against the society by its discharged servant claiming the relief such as reinstatement in service with back wages which are not enforceable in the Civil Court is outside the scope of expression "touching the management of the society" used in Section 91 of the Gujarat Act and the Registrar has no jurisdiction to deal with and determine it.
5. On the other hand Shri B.L. Sharma, learned counsel for the petitioner respondent submitted that the learned single Judge was right and justified in taking into account the provisions of the Act and the Rules to find out the legislative intent with regard to the expression "touching the management of the society" in disregard of the provisions of the Act 'and the Rules a provision of the Act is not to be construed. Whether the dispute in question "touches the management of the society" has to be resolved in the light of the provisions of the Act and the Rules. He made reference to the provisions of Sections 29 and 30 of the Act and also the provision relating to rule making power under Section 148 and the rules which find place in Chapter IV and particularly Rule 41 and he also referred to the definition clause relating to the definition of the word 'officer' in Section 25.
6. Before dealing with the submissions of the learned counsel for the parties it is necessary to know as to what dispute was raised by the petitioner respondent No. 3. It is not in dispute that the petitioner was appointed as Manager of the aforesaid Co-operative Society. The petitioner challenged this suspension as well as order of termination in the ground that his suspension and order of termination was without jurisdiction and is contrary to bye-law 41(7) and the petitioner was appointed under bye-law No. 43. The order of termination was passed malafidely and the alleged charges were not proved against him. The Deputy Registrar in the order dated 16-2-1971 recorded that a notice was issued on 22-7-1969 to the Chairman of the Co-operative Society to submit objections if any against the entertaining the dispute. An objection was raised on behalf of the society that the dispute in question does not "touch the constitution, management and business of the society" so it is not entertainable under Section 75 of the Act but the Deputy Registrar found that the question of suspension and termination are question relating to "management of the society so that dispute was entertained. Thus it would appear that the dispute was as to whether the petitioner's suspension and termination was valid or not and whether such a dispute could be entertained under Section 75 and whether it falls within the expression "touching the management of the society". For proper appreciation and adjudication of the controversy raised in this appeal it is necessary to make reference to some of the provisions and the rule. For facility of reference they are produce hereunder :--
"Section 2(j) "Officer" means the President, Vice-President, Chairman, Vice-Chairman, . Secretary, Manager, Liquidator, Administrator or a member of a committee and includes any other person empowered under the rules and the bye-laws to give directions in regard to the business of a Co-operative Society;
CHAPTER IX Settlement of Disputes "Section 75 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, 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, heirs or legal representative of any deceased officer, deceased agent or deceased employee of the society, or
(d) between the society and any other Co-operative Society,
(e) between the society and the surety of a member past member or a deceased member, or a person other than a member who has been granted a loan by the society or with whom the society has or had transaction under Section 66, whether such a surety is or is not a member of a society, such dispute 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 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 of 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 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 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".
CHAPTER IV Management of Co-operative Societies Section 29 Final authority in a Co-operative Society:-- The final authority in a Cooperative Society shall, subject to the provisions of this Act the rules, vest in the general body of the members:
Provided that where the bye-laws of a Co-operative Society provide for the constitution of a smaller body consisting of delegates of members of the society elected in accordance with such bye-laws, the smaller body shall exercise such powers of the general body as may be prescribed or as may be specified in the bye-laws of the society :
Provided further that nothing in this section shall affect any powers conferred on a committee or any officer of a Co-operative Society by the rules or the bye-laws".
Section 30 Annual general meeting :--
(1) to (4).......................
(5) If default is made in calling a general meeting within the period prescribed therefor under Sub-section (1), or in complying with Sub-section (2), (3) or (4) the Registrar may, by order; declare any officer or member of the committee whose duty it was to call such a meeting or comply with Sub-section (2), (3) or (4), and who without reasonable excuse failed to comply with any of the aforesaid Sub-section, disqualified for being elected or being an officer or a member of the committee for such period not exceeding three years, as he may specify in such an order and, if the officer is a servant of the society, impose a penalty on him of an amount not exceeding one hundred rupees:
Provided that no order of disqualification or imposition of penalty under this sub-section shall be made without --
(a) giving such officer or member of the committee or servant of the society, an opportunity to call the general meeting of the society or comply with the requirements of Sub-sections (2), (3) and (4), within the time specified by the Registrar, and such officer or member of the committee or servant of the society has failed to do so within such time; and
(b) giving such officer or member of the committee or servant of the society, a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
Section 148 Power to make rules :--
(1) The State Government may, for the whole or any part of the State and for any class of Co-operative Societies after previous publication, make rules to carry out the purposes of this Act.
(Provided that any rule may be made under this section without previous publication of the State Government considers that it should be brought into force at once.").
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :--
(xxvii) the appointment, suspension, removal, term of officer and filling of casual vacancies of the members of the committee and other officers and for the appointment of administrator under Section 36 and the procedure at meeting of the Committee and the powers to be exercised and the duties to be performed by the Committee, administrator and other officer;
.....
(xxx) the qualifications of a Manager, Secretary Accountant or any other officer or a employee of the society and the conditions of their service including discipline and control;
(xxxi) the prohibition against officers of a Co-operative Society being interested in contracts with the society;
CHAPTER IV Management of Societies Rule 41. Officers and employees of Cooperative Societies:-- (1) Notwithstanding anything contained in the bye-laws of society no Co-operative Society shall appoint any person as its paid officer or employee in any category of service, unless he possesses the qualifications and furnishes the security if so specified by the Registrar from time to time, for such category of service in the society, or for the class or society to which it belongs. The conditions of service of the employees of the societies shall be as specified by the Registrar.
(2) No co-operative society shall retain in service any paid officer or employee, if he does not acquire the qualifications or furnish the security as is referred to in Sub-rule (1) within such time as the Registrar may direct.
(3) The Registrar may for special reasons, relax in respect of any paid officer or employee, the provision of this rule in regard to the qualifications he should possess or the security he should furnish.
(4) Where in the course of an audit under Section 68 or an inquiry under Section 70 or an inspection under Section 71 or Section 72 it is brough to the notice of the Registrar that a paid officer or servant of a society has committed or has been otherwise responsible for misappropriation, breach of trust or other offence, in relation to the society, the Registrar, may, if in his opinion, there is prima facie evidence against such paid officer or servant and the suspension of such paid officer or servant is necessary in the interest of the society direct the committee of the society pending the investigation and disposal of the matter, to place or cause to be placed such paid officer or servant under suspension from such date and for such period as may be specified by him.
(5) On receipt of a direction from the Registrar under Sub-rule (4), the committee of the society shall, notwithstanding any provision to the contrary in the bye-laws, place or cause to be placed the paid officer or servant under suspension forthwith.
(6) The Registrar may direct the committee to extend from time to time the period of suspension and the paid officer of servant suspended shall not be reinstated except with the previous sanction of the Registrar whose decision thereon shall be final.
(7) If the committee fails to comply with the direction issued under Sub-rule (4) the Registrar may make an order placing such paid officer or servant under suspension from such date and for such period as he may specify in the order and there upon the paid officer or servant, as the case may be, shall be under suspension,"
7. What meaning is to be assigned to the expression "touching the management of the society" can best be found in the scheme of the Act i.e. the provision of the Act and the Rules made the thereunder and the bye-laws. If the provisions of the Act and the Rules clearly contemplate what the expression 'Management' means then it is not necessary to find the meaning of that expression beyond the provisions of the Act and the Rules. The legislative intent can be gathered from the provisions of the Act and the Rules made thereunder. It may be stated that the rules made under the Act had the approval of the Rajas-than legislature as the same were placed before the Legislature so it is to be seen as to whether from the provisions of the Act and the rules referred to above, it can be said that the matters relating to suspension and termination of the officer of the society "touch the management of the society".
8. In Deccan Merchants Co-operative Banks Ltd. v. Dalichand Judgraj Jain (AIR 1969 SC 1320) their Lordships of the Supreme Court in para 18 observed that the question arises as to whether the dispute touching the business of a society. This would depend on the nature of the society and the rules and bye-laws governing it.
9. In P.R. Mankad's case (supra) the services of an Additional Supervisor of the Co-operative Bank were terminated by giving one month's pay in lieu of notice under Staff Regulation 15. He approached the Labour Court and alleged that his services has been illegally and maliciously terminated as an act of victimisatiuon on account of his trade union activities. He prayed for setting aside the order of his termination and for reinstatement with full back wages. A preliminary objection was raised by the bank that the Bombay Industrial Relations Act has no application and only the Registrar or his nominee had jurisdiction and the Labour Court had no jurisdiction. The objection was overruled by the Labour Court and held that it had jurisdiction. The petitioner then filed a writ petition. The writ petition was dismissed however a certificate for fitness for appeal was granted. Their Lordships considered the decision in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal, AIR 1970 SC 245 : (1970 Lab IC 285). In that case no specific argument was advanced that a dispute between the society and its servants relating to the conditions of service comes within the purview of the expression "touching the management of the society" and it was observed that perhaps it was taken for granted that if the dispute was not comprehended by the expression 'business of the society' it would not be covered by the words "management of the society ", either. Although there is little discussion in the judgment about the ambit and import of the expression 'management' yet, in conclusion it was clearly and emphatically held that the dispute in that case was 'outside the scope of Section 61 of the Andhra Pradesh Co-operative Societies Act. Their Lordships then in paras 35, 36 and 37 observed as under:--
35 "We will now, focus attention in the expression 'management of the Society' used in Section 96(1) of the Act of 1961. Grammatically, one meaning of the term 'management' is; 'the Board of Directors' or 'the apex body' or Executive Committee at the helm which guides, regulates, supervises, directs and controls the affairs of the Society. 'In this sense, it may not include the individuals who under the overall control of that governing body or Committee, run the day-to-day business of the Society, (see Words and Phrases by West Publishing Co. Permanent Edition, Vol. 26, Page 357, citting, Warner & Swasey Co. v. Rusterholz D. C. Minn 41F. Supp 398, 505). Another menaing of the term 'management; may be:' the act or acts of managing or governing by direction, guidance, superintendence, regulation and control the affairs of a Society:--
36 "A still wider meaning of the term which will encompass the entire staff of servants and workmen of the Society, has been canvassed for by Mr. Dholakia. The use of the term 'management' in such a wide sense in Section 96(1) appears to us, to be very doubtful."
37 "Be that as it may, what has been directly bidden 'out-of-bounds' for the Registrar by the very scheme and objects of the Act, cannot be indirectly inducted by widening the connotation of 'management'. A construction free from contexual constrains, having the effect of smuggling into the circumscribed limits of the expressioon 'any dispute', a dispute which from its very nature is incapable of being resolved by the Registrar, has to be eschewed, Thus considered, a dispute raised against the Society by its discharged servant claiming reliefs such as reinstatement in service with back wages, which are not enforceable in a Civil Court is outside the scope of the expression 'touching the management of the Society' used in Section 96(1) of the Act of 1961, and the Registrar has no jurisdiction to deal with and determine it. Such dispute squarely falls within the jurisdiction of the Labour Court under the B.I.R. Act".
10. On the basis of above observations Shri S.C. Agarwal, J, in Bhilwara Sahkari U.W. Bhandar v. Prescribed Authority (supra) stated that the Supreme Court was of the view that taking into consideration the scheme and object of the legislation dealing with Cooperative Societies, the word (Management 'cannot be given a wide cannotation and that a dispute raised against a Co-operative Society where a discharged servant claims reinstatement in service is from its very nature outside the scope of the expression "touching the management of the Society" and that the Registrar of Co-operative Societies has no jurisdiction to deal with such a dispute.
11. It may be stated that Chapter VII of the Gujarat Co-operative Societies Act deals with the Management of Societies and Section 76 falls under Chapter VII which reads as under:--
"76. the qualifications for the appointment of a manager, secretary, accountant or any other officer or employee of a society and the conditions of service of such officers and employees shall be such as may, from time to time, be prescribed:
Provided that no qualification shall be prescribed in respect of any officer not in receipt of any remuneration".
12. It would appear from the provision of Section 76 that qualifications for the appointment of a manager and the conditions of service of the officers mentioned therein and the employees shall be such as may be prescribed from time to time. Prescribed has been defined to mean prescribed under the rules under Clause 15 of Section 2 and the word 'officer' is also defined under Clause 14 of Section 2 of the Gujarat Co-operative Societies Act which expression also means a manager. When Chapter VII of the Gujarat Cooperative Socities Act deals with the management of the societies and a provision with regard to qualifications and conditions of service of managers is provided under Section 76 it can be taken that provision in Section 76 deals with management of societies and conditions of service may be prescribed under the rules and provisions can be made with regard to suspension, removal, termination and dismissal etc. Section 96 of the Gujarat Act is also relevant. It also envisages a dispute touching the constitution, management or business of the society between a society, its committee, any past committee, or any past or present officer, any past or present agent, any past or present servant, or nominee, or heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society; Provision of Section 76, in our opinion, is relevant for consideration of the question as to whether question of suspension or termination touches the management of the society or not that apart, we have to see and examine the scope, ambit and import of the various provisions of the Act and the rules and the bye-laws. Section 75 of the Act deals with an non-obstante clause and it excludes the jurisdiction of civil court, in respect of such disputes which are required to be referred to the Registrar for decision and the decision of the Registrar had been made final under Sub-section (3) and it is further provided that the decision shall not be called in question in any court. Section 75 envisages dispute 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 committe 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 but such a dispute between such parties or persons is required to touch the Constitution, management or business of a co-operative society. This provision however clearly contemplates a dispute between a society and the officers and employees of the society. Chapter IV relates to Management of co-operative societies. Section 29 makes a provision that nothing in Section 29 shall affect any powers conferred on a committee or any officer of a co-operative society by the rules or the bye-laws. If any power is conferred on any officer by a co-operative society by rules or by the bye-laws then the provision of Section 29 would not in any way affect such powers of an officer. Section 30, Sub-section (5) also deals with disqualification or imposition of penalty on any officer when penalty is imposed as contemplated in Sub-section (5) which provides that an order of disqualification or imposition of penalty shall be made after giving such officer or servant of society an opportunity to to call the general meeting of the society or to comply with the requirements of Sub-sections (2), (3) and (4) within the time specified by the Registrar and such officer or member of the committee or servant of the society failed to comply with such an opportunity offered by the Registrar within such time. Clause (b) of the proviso also envisages giving such officer or servant a reasonable opportunity of showing cause against the action taken in regard to him. It is true that in Chapter IV of the Act no specific provision has been made with regard to the conditions of service of the officer and servants of the society but Clause (27) and Clause (30) of Sub-section (2) of Section 148 clearly make a provision that the rules may be made for appointment, suspension, removal, term of office and filling of casual vacancies of the members of the committee and other officers and rules may also provide for the powers to be exercised and duties to be performed by the officers and rules may also provide for qualification of manager or any other officer or employee of the society and the conditions of their service including discipline and control. In exercise of the powers conferred under Section 148, the Rajasthan Co-operative Societies Rules, 1966 have been made and there is Chapter IV relating to 'Management of Societies' and Rule 41 falls in this chapter. Rule 41 makes a provision for officers and employees of co-operative societies. Sub-rule 1 authorises the Registrar to specify the condition of service and it also makes a provision that no co-operative society shall appoint any person as its paid officer in any category of service unless he possesses the qualification and furnishes the security if so specified by the Registrar. Sub-rule (5) of Rule 41 makes a provision for suspension of a paid officer or servant and Sub-rule 5 of Rule 41 provides prohibition of reinstatement of suspended officer or servant except with a previous sanction by the Registrar so it would appear that express provisions with regard to suspension are embodied in Rule 41 and power to specify conditions of service have been conferred on the Registrar and in exercise of this power conditions of service have been laid down by the Registrar which is not disputed. As already stated that Rules have already been placed before the Legislature and it can be said that the Rules have approval of Legislature. The ambit and import of the word 'touching' is very wide and it includes any matter which relates to the management of the society more particularly when the Legislature deals with the matters relating to officers and employees in the provisions of the Act and the Rules then it can be said that the matters of suspension or termination of service of officers and servants touches the management of the society'; Having regard to the provisions of the Rajasthan Act and the Rules made thereunder, in our opinion, a wider meaning has to be given to the expression touching the management of the society so as to cover within its encompass officers and employees of the society. Such a wider meaning in our opinion, is clearly contemplated by the provisions which we have considered and discussed above it appears that attention of their Lordships of the Supreme Court was not drawn to the provision of Section 76 under Chapter VII of the Gujarat Act and the Rules made thereunder. It is noteworthy that whether any dispute between a society and its officers or servant relating to service whether touches the management of the society or not did not fall for consideration in Deccan Merchants Co-operative Bank Ltd. v. Dalichand Jugraj Jain AIR 1969 SC 1320 and Co-operative Central Bank Ltd. v. Additional Industrial Tribunal. Andhra Pradesh AIR 1970 SC 245 : 1970 Lab IC 285 and the decisions turned on the respective provisions of the Acts.
13. In Deccan Merchants Co-operative Bank Ltd. (Supra) the dispute was between a tenant and member of the Bank in respect of the building which was acquired by the Cooperative Bank. It was held that it is not a dispute touching the business of the Bank and the word business was held to be used in narrower sense in Sub-section (1) of Section 91 of the Maharashtra Co-operative Societies Act, 1960. It was observed that the word business means the actual trading or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and the bye-laws and in the context of the five kinds of dispute mentioned in Sub-sections (1) of Section 91 it was held that the word 'business' does not mean affairs of a society because election of office bearers, conduct of general meetings and management of a society would be treated as affairs of a society.
14. In Co-operative Central Bank Ltd. v. Additional Industrial Tribunal, A. P. (supra) the dispute was with regard to alteration of conditions of service and the dispute was not within the conditions of service. Change in conditions of service is beyond the scope of the Act and the Rules so it was held that alteration of conditions of service is not a dispute touching the business of the society. Such a dispute is not contemplated to be dealt with under Section 62 of the Andhra Pradesh Cooperative Societies Act. There was a charter of demand regarding alteration of condition of service and the Registrar was required to decide the dispute in accordance with the provisions of bye-laws.
15. Reference may also be made to a decision of Supreme Court in U. P. Cooperative Can Union Federation Ltd. v. Liladhar AIR 1981 SC 152: 1980 All LJ 1073 it was held in that case that a dispute between an employee other than an officer of a cooperative society and the society arising out of a disciplinary proceeding does not fall within the ambit of Rule 115. In order to attract Rule ' 115 it must be shown that the dispute is one touching the business of the society and that it is a dispute between the society and any officer of the society. Both the conditions have to be cumulatively fulfilled before Rule 115 is attracted which would result in outster of the jurisdiction of the Civil Court in respect of dispute in view of the provision contained in Rule 134. That was a case of a godown keeper and it was held that he is not an officer and it was also held that disciplinary proceedings resulting in dismissal of a godown keeper, does not give rise to a dispute touching the business of the society. This has not been examined in this case as to whether a dispute of the nature in question is a dispute touching the management of the society. As Rule 115 only contemplated a dispute touching the business of the society. The rule was framed under Section 43 of the U.P. Co-operative Societies Act, and under the rule making power Rule 115 was made. In para 19 of the judgment their lordships of the Supreme Court after considering the provision of Section 70 of the U.P. Co-operative Societies Act, 1965 anologous to Section 75 of the Rajasthan Act made an observation that the Legislature in terms excluded a dispute relating to disciplinary action by the society against the paid servants of the society from the purview of the compulsory arbitration. It is legislative exposition of the topic under discussion. It is significant to note that there is no such exclusion under Section 75 of the Rajasthan Act and their lordships of the Supreme Court rested the judgment on the second limb of the submission that the dispute must be between the co-operative society and its officer and godown keeper could not be styled as an officer of the co-operative society as held by their lordships.
16. In the light of the consideration which we have made above, it is not necessary to deal with other case-law which has been referred to by the learned counsel for the parties as the cases do not directly deal with the controversy in question. Thus having regard to the provisions of the Act and the Rules as considered above, we are clearly of the opinion that the dispute in question relating to validity of the suspension and termination is a dispute touching the management of the society and falls within the ambit of Section 75 and we agree with the view taken by the learned single Judge.
17. Learned counsel for the respondent also advanced an argument and raised a contention that the Tribunal had no jurisdiction to entertain the preliminary objection regarding maintainability of the reference under Section 75 of the Act. Under Sub-section (3) of Section 75 the order of the Deputy Registrar was final. Against that order neither revision could be preferred before the Tribunal under Section 125 nor appeal lies under Section 123. It is only under Section 128 of the Act that the matter could be examined by the Government or the Registrar and it was incompetent for the Tribunal to have entertained the question. Sections 123 Sub-section (6), 125 and Section 128 read as under :---
Section 123.-- Constitution of and appeals to the Tribunal.
(1) to (5)...................................
(6) Any person aggrieved by --
(a) any decision of the Registrar made under Clause (a) of Sub-section (1) of Section 77, or (b) any decision of the person invested by the Government with powers in that behalf under Clause (b) of Sub-section (1) of Section 77, or (c) any award of an arbitrator under Clause (c) of Sub-section (1) of Section 77, or (d) any order made under Section 120 with a view to prevent any delay or obstruction in the execution of any decision or award that may be made under Section 77, or
(e) an order of the Regstrar removing a member of a co-operative society or debarring a member from election or appointment to a Committee under Section 36 may within sixty days from the date of the decision, award or order, as the case may be, appeal to the Tribunal."
"Section 125.-- Revision by Tribunal:--The Tribunal may call for and examine the record of any proceedings in which an appeal lies to it for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and if in any case it shall appear to the Tribunal that any such decision or order should be modified, annulled or revised, the Tribunal may pass such order thereon as it may deem fit".
"Section 128. Power of the Government and Registrar to call for proceedings of subordinate officers and to, pass orders thr on:-- The State Government and the Registrar may call for and examine the record of any inquiry or the proceeding of any other matter, of any officer subordinate to them except those referred to in Section 125, for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case it appears to the State Government, or the Registrar, that any decision or order or proceedings so called for should be modified, annulled, or revised, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard, pass such order thereon as it or he thinks just:
Provided that every application to the Registrar or the Government for the exercise of the powers under this section shall be preferred within ninety days from the date on which the proceedings, decision or order to which the application relates was communicated to the applicant.
Provided further that the Registrar shall not exercise the powers under this Section in case in which an appeal lies to him under this Act."
18. Section 123 makes a reference to Section 77 which also reads as under:--
"Section 77. Reference of disputes to arbitration:--
(1) The Registrar may, on receipt of the reference of a dispute under Section 75 --
(a) decide the dispute himself, or
(b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf, or
(c) refer it for disposal to one arbitrator.
(2) The Registrar may withdraw any reference transferred or referred for disposal under Sub-section (1) and either decide it himself or transfer or refer it again for disposal to another person or arbitrator mentioned in Clauses (b) or (c) of that Sub-section if the person or arbitrator to whom the dispute was first transferred or referred --
(i) dies, resigns or it is transferred; or
(ii) has become incapable of acting or against whom, a complaint has been received regarding his misconduct or corruption; or
(iii) neglects or refuses to act.
(3) The Registrar or any other person to whom a dispute is referred for decision under this section may, pending the decision of the dispute, make such interlocutory orders as he may deem necessary in the interest of justice".
19. It is urged by Shri B.L. Sharma, learned counsel for the respondent that the revisional power can be exercised by the Tribunal only in proceeding when the stage of Section 77 is reached and before that if any order is passed under Sub-section (3) of Section 75, then that order is not revisable by the Tribunal nor any appeal is maintainable before the Tribunal. It may be stated that so far as the power of appeal vested in the Tribunal is concerned, it is correct that only decisions rendered by the Registrar under Clauses (a) (b) and (c) of Section 77(1) are appealable. Order passed under Section 75(3) is not appealable. After having entertained the dispute, when the dispute is decided on merits as contemplated under Section 77 the order would be appealable. So far as the power of the Tribunal in revision is concerned, it can be said that the Tribunals empowered to call for and examine the record of any proceeding in which an appeal lies to it. Appeal lies in the proceedings under Section 75, the proceedings begin when an application for reference is made under Section 75 and the proceedings continues till the dispute is finally decided under Section 77. It is one continuous proceeding and proceedings cannot be divided in two stages one up to the stage of admission of the dispute and the second stage of determination of dispute after its entertainment. It may be mentioned that Chapter IX deals with the settlement of disputes and this Chapter comprises of three sections relating to settlement of disputes so the proceeding falling under Section 75, 76 and 77 is one proceeding and in relation to such proceeding the Tribunal is clothed with all power of revision so in exercise of its revisional jurisdiction the objection regarding maintainability of the reference could be entertained by the Tribunal. Matters which are covered under Sections 75 to 77 and in respect of which power has been conferred on the Tribunal, are outside the purview of Section 128 as Section 128 clearly mentions that the record of any inquiry or the proceedings of any other matter, of any officer subordinate to them except those referred to in Section 125, can be called by the State Government and the Registrar. Section 125 clearly contemplates proceedings in which appeal lies to the Tribunal meaning thereby proceedings commenced under Chapter IX. Thus we do not find any force in the submission of the learned counsel for the respondent that the Tribunal had no jurisdiction to entertain the preliminary objection regarding maintainability of the reference under Section 75 of the Act.
20. No other point is pressed before us nor any other point survives for consideration.
21. In the result this appeal has no force so it is hereby dismissed with no order as to costs.