Patna High Court
The Bihar State Co-Operative Bank Ltd. vs The Registrar, Co-Operative Societies ... on 22 November, 1974
Equivalent citations: AIR1975PAT187, AIR 1975 PATNA 187
JUDGMENT B.D. Singh, J.
1. This application under Articles 226 and 227 of the Constitution of India filed by the Bihar State Co-operative. Bank Limited (hereinafter to be referred to as 'the Bank') through its Secretary. Shri J. Char an is directed against the order dated the 28th February, 1973, (Annexure 2) passed by the Registrar, Co-operative Societies, Bihar, (Respondent No. 1) staying the operation of the decision of the Board of Directors of the Bank dated the 9th January, 1973, (Annexure 1) with regard to item No. 1 concerning the seniority of Brahmadeo Prasad (Respondent No. 2) vis-a-vis Shyama Charan Sinha and Nareshwar Prasad.
2. In order to appreciate the point involved in this application it will be necessary to state briefly the facts. The petitioner is a Society registered under the Bihar and Orissa Co-operative Societies Act, 1935, (hereinafter to be referred to as 'the Act'). Shyama Charan Sinha, an Inspecting Officer of the Bank, filed a representation to the petitioner to decide his seniority on the basis of Rule 12 of the Staff Regulations (hereinafter to be referred to as 'the Regulations'). On 9-1-1973 the Board of Directors of the Bank in its meeting decided seniority of Shyama Charan Sinha and Nareshwar Prasad vis-a-vis Brahmadeo Prasad in the following manner:--
1. Shayama Charan Sinha.
2. Nareshwar Prasad.
3. Brahmadeo Prasad.
Tn the said meeting, the Registrar of the Co-operative Societies (Respondent No. 1) was also present as one of the Directors of the Bank. A copy of the proceeding is marked as Annexure 1 to the application. Being aggrieved by the aforesaid decision Brahmadeo Prasad (Respondent No. 2) filed Misc. Award Case No. 1 of 1973 before Respondent No. 1 on 28-2-1973 under Section 48 of the Act and Regulation 37 of the Regulations whereupon respondent No. 1 passed the impugned order on the same day the relevant portion of which reads as:
"Perused the application and heard the petitioner. Admit under Section 48 (1) (c) of the Act. The operation of the decision of the Board of Directors of the Bank dated 9-1-73, item No. 1, which concerns the seniority of the petitioner vis-a-vis Shri Shyama Charan Sinha and Sri Nareshwar Prasad is stayed.
Notice the Bank to file all papers concerning the seniority of these officers together with their own show cause by the 17th of March, 1973, to which date this case is adjourned.
Send a copy of the petition to the Bank."
On receipt of the notice the petitioner appeared through its lawyer on 14-3-73 before respondent No. 1 and raised a preliminary objection regarding the maintainability of the application filed by respondent No. 2 before him. A copy of the objection petition filed by the petitioner is marked as Annexure 3 to this application. Respondent No. 1 heard both parties, namely, the petitioner and respondent No. 2, on 17-3-73 and thereafter the case was adjourned from time to time without deciding the preliminary objection raised by the petitioner. In that state of facts the petitioner obtained a rule of this Court on 13-12-73 when it was also ordered that till disposal of the application operation of the impugned order would remain stayed.
3. On receipt of notice respondent No. 2 filed a counter-affidavit on 17-5-74. Thereafter on 8-11-74 a rejoinder to the counter affidavit filed by respondent No. 2 was filed by the petitioner. On the same date respondent No. 2 filed supplementary counter affidavit in reply to the rejoinder during the course of hearing of this application. No counter-affidavit has been filed on behalf of respondent No. 1.
4. Mr. Kailash Roy, learned counsel appearing on behalf of the petitioner, has assailed the impugned order and has raised the following points for consideration before us:--
(i) Respondent No. 1, according to learned counsel, had no jurisdiction to entertain the application filed by respondent No. 2 under Section 48 of the Act.
(ii) Even under Regulation 37 of the Regulations respondent No. 1 had no jurisdiction to entertain the application on the facts and circumstances of the instant case,
(iii) Even on merit the Board of Directors of the Bank had ample jurisdiction to decide seniority of Shyama Charan Sinha and Nareshwar Prasad vis-a-vis Brahmadeo Prasad, being the employees of the Bank, under Regulation 12 of the Regulations, and;
(iv) Respondent No. 1 having participated in the meeting of the Board of Directors held on 9-1-73 as mentioned above he was estopped from challenging the validity of the resolution contained in Annexure 1 being himself a party thereto.
5. In my opinion, for the purpose of this application it will be sufficient to deal with only points (i) and (ii) together. In order to decide these points it will be necessary to decide the scope of the provisions contained in Section 48 of the Act and Regulation 37 of the Regulations, which will throw light on the main questions involved in this application, namely, whether respondent No. 1 had jurisdiction to entertain the application filed by respondent No. 2 or not. In support of his contention that the respondent No. 1 had no jurisdiction to entertain the application under Section 48 of the Act learned counsel relied on a Bench decision of this Court in Bihar State Co-operative Marketing Union Ltd. v. The Registrar, Cooperative Societies, Bihar, 1973 BBCJ 522 = (AIR 1974 Pat 77) where S. N. P. Singh, J. (now C. J.) and H. L. Agrawal, J. had occasion to deal with the provision under Section 48 of the Act. In that case two posts of Accountant in the office of the Marketing Union fell vacant in the year 1970. The Executive Committee of the Marketing Union recommended to the Board of Directors that one of the posts of Accountant be filled in by promotion from the Ministerial staff at the Headquarters. The Board of Directors by the resolution dated the 24th of June, 1970 approved the recommendation of the executive committee and promoted the cashier Shri H. N. Banker as accountant. Thereafter the Bihar Co-operative Marketing Employees Union filed an application before the Registrar under Section 48 (1) (b) and (c) of the Act challenging the decision of the Board of Directors. In that case also the Marketing Union had raised preliminary objection about the maintainability of the application under Section 48 of the Act before the Registrar. Their Lordships after having surveyed various decisions on the point held that the dispute did not relate to the business of the Society and the Registrar had no jurisdiction to deal with such dispute under Section 48 of the Act. The above view of their Lordships was further approved by a Full Bench of this Court in Tisco Oriya Co-operative Credit Society Ltd. v. The Assistant Registrar, Co-operative Society, Jamshedpur Circle, (C. W. J. C, No. 1258 of 1972), decided on 29-8-1974 (FB) wherein the award of the Assistant Registrar was quashed,
6. Mr. Shyama Prasad Mukherji appearing on behalf of the respondent No. 2 has not challenged the correctness of the two decisions referred to above with regard to the scope of Section 48 of the Act, but he contended that in those decisions the scope of Regulation 37 of the Regulations was not considered. According to him, in the impugned order respondent No. 1 has passed order under Regulation 37 and by mistake respondent No. 1 had mentioned Section 48 of the Act therein. He drew our attention to the application filed by respondent No. 2 before respondent No. 1 on 28-2-73. In the application both Section 48 and Regulation 37 are mentioned. He referred to Regulation 37 of the Regulations, which is to this effect:--
"In case an employee claims difference of opinion with Management in interpretation of these Rules, either generally or in an individual case, and if the Chairman is satisfied that it is necessary to obtain a ruling, the Management shall refer the case to Registrar whose decision shall be final."
Section 66 of the Act gives power to make rules under which the Co-operative Societies Rules, 1959, (hereinafter to be referred to as 'the Rules') were framed. Rule 15 of the Rules empowers the Registrar of the Societies, subject to the provisions of the Act and the Rules, to make bye-laws. Under Rule 15 of the Rules bye-laws of the Bihar State Co-operative Bank Ltd. were made. Clause 57 (xviii) (b) of the bye-laws empowers the Board to frame Regulations concerning the strength of officers and staff, their pay scales and other service conditions. Therefore, Mr. Mukherji contended that respondent No. 1 had ample jurisdiction to pass the impugned order under Regulation 37 and it had binding effect on all parties concerned, including the petitioner.
7. In my opinion, the above contentions of Mr. Mukherji cannot be accepted. It may be noticed that in the impugned order respondent No. 1 had clearly mentioned Section 48 of the Act. He has not even referred to Regulation 37 of the Regulations. It cannot be said that by mistake instead of Regulation 37 respondent No. 1 had mentioned Section 48 of the Act. As mentioned earlier, no counter-affidavit has been filed on behalf of respondent No. 1. It was therefore, respondent No. 1 alone, who could have said whether such mistake was committed in his order, it is true that in the application the petitioner had also mentioned Regulation 37 along with Section 48 of the Act, but in my opinion, that by itself would not cure the defects in the impugned order. That apart, Regulation 37 of the Regulations has not acquired statutory force. Reference may be made to Co-operative Central Bank Ltd. v. Addl. Industrial Tribunal, Andh. Pra. Hyderabad (AIR 1970 SC 245), where at p. 252 in paragraph 10 their Lordships held that they were unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act could be held to be law or to have the force of law. It had no doubt been held that, if a statute gave power to a Government or other authority to make rules, the rules so framed had the force of statute and were to be deemed to be incorporated as a part of the statute. That principle, however, did not apply to bye-laws of the nature that a co-operative society was empowered by the Act to make. The bye-laws that were contemplated by the Act could be merely those which governed the internal management, business or administration of a society. They might be binding between the persons affected by them, but they did not have the force of a statute. In respect of bye-laws laying down conditions of service of the employee of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws laying down the conditions of service were made and any person entered the employment of a society those conditions of service would have to be treated as conditions accepted by the employee when entering the service and that would bind him like conditions of service specifically forming part of the contract of service. The bye-laws that could be framed by a society under the Act were similar in nature to the Articles of Association of a Company incorporated under the Companies Act, and such Articles of Association had never been held to have the force of law. Besides, it is well established that the Rules, Bye-laws and Regulations have to be read subject to the provisions of the Act.
8. Mr. Mukherji drew our attention to paragraph 14 of the counter-affidavit wherein it was stated by respondent No. 2 that he had filed an application dated 8-1-1973 to the Managing Director of the Bank, a copy of which is Annexure 'A' to the said counter-affidavit, Copy of the said application, learned counsel submitted, was sent to the Chairman and the Board of Directors of the Bank requesting the Chairman, Mathura Prasad Singh, to refer the case to respondent No. 1 under Regulation 37 of the Regulations. In my opinion, it was necessary for respondent No. 2 to file such an application direct to the Chairman under Regulation 37. Therefore, it cannot be said that any such application was filed by respondent No. 2 direct to the Chairman of the Bank. Mr. Mukherji submitted on the basis of some of the averments made in the counter-affidavit that Mathura Prasad Singh was biased against respondent No. 2 and no useful purpose would have been served by filing any petition direct to him. At any rate, the Chairman was aware of the grievance of respondent No. 2 as he had received the copy of Annexure 'A'. He ought to have, in the interest of justice, referred the matter to respondent No. 1 under Regulation 37 of the Regulations. The Chairman not having done so respondent No. 2 had no other alternative than to file the application before respondent No. 1. In my opinion, Regulation 37 of the Regulations has a limited scope. Respondent No. 1 can entertain a reference only if the Chairman was satisfied that it was necessary to obtain a ruling. Respondent No. 1 therefore should not have entertained even under Regulation 37 an application direct at the instance of respondent No. 2. No doubt it is a lacuna in the regulations, some remedy ought to have been provided therein to meet the situation as to what would happen if the Chairman was not satisfied that it was necessary to obtain a ruling. In my opinion, it is beyond our jurisdiction to fill up that lacuna. It is for the rule making authority to take note of and to provide remedy to meet such a situation. It is also well settled that when an aggrieved person is left with no remedy, he can come to this Court under Article 226 of the Constitution of India. But in the instant case it is not the issue as to whether respondent No. 2 could have come to this Court under writ jurisdiction if the Chairman would not have referred his case under Regulation 37 to respondent No. 1.
9. Mr. Mukherji reiterated that under Regulation 37 respondent No. 1 had implied power to entertain the application even at the instance of respondent No. 2 who was aggrieved by the decision of the Board under Regulation 12. He submitted that considering the facts and circumstances in the instant case and the avowed object of framing of regulation, that is, for maintaining uniformity in the treatment of the staff and in their service conditions, this court had ample jurisdiction to remedy evils meted out to respondent No. 2. I am conscious of the observation of Dwivedi, J., (now elevated to S. C.) in Ramesh Metal Works v. State (AIR 1962 All 227) (FB) where it was observed by his Lordship in paragraph 20 at pages 231-232 as under:
".........Law is, however, not an exercise in linguistic discipline. It is emerging as an important Therapy in disorder of social metabolism. It is a complex process and can be fully understood only by an alternative regard to its therapeutic function and its synthesis. There is accordingly growing recognition by Courts that a statute should be constructed, rather than interpreted, with due regard to its avowed object and to its character......."
In my opinion, the submission of Mr. Mukherji is not tenable nor the observation is applicable in the present case. Reference may be made to Craies on Statute Law, 6th Edition, page 109 where the author, while dealing with the construction by implication writes:
"If the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication, and to draw inference or supply obvious omissions. But the general rule is 'not to import into statutes words which are not to be found there', and there are particular purposes for which express language is absolutely indispensable. Words plainly should not be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context."
It is also mentioned therein that if a matter is altogether omitted from a statute, it is clearly not allowable to answer it by implication, for to do so would not be to construe the Act, but to alter it. It is, therefore, well settled that only necessary implications may be read into the statute. Mere desirability or plausibility alone will not meet test. However, there are cases where construction by implication is permitted. As for example, where the statutory grant of a power, privilege or property carries with it, by implication, everything necessary to its enjoyment or exercise. In my opinion, therefore, in the instant case there is absolutely no scope for such construction in Regulation 37.
10. Mr. Mukherji further pointed out that in the case under consideration respondent No. 1 has not passed final order under challenge. He has passed merely a preliminary order, which does not call for any interference under the writ jurisdiction at this stage. Therefore, according to him, writ application of the petitioner was not maintainable. He urged that it cannot be held that respondent No. 1 had complete lack of jurisdiction. This submission of Mr. Mukherji is also not acceptable. I have already held that respondent No. 1 could have exercised jurisdiction under Regulation 37 only on a reference having been made by the Chairman. Hence, according to me respondent No. 1 had complete want of jurisdiction ab initio. It is firmly settled that in case of absence of jurisdiction, this court would wholly forbid inferior court or Tribunal to exercise jurisdiction.
11. Mr. Mukherji then placed before us relevant portion of the counter-affidavit filed on behalf of respondent No. 2 as well as the counter-affidavit in reply to the rejoinder. On the basis of the averments made therein he submitted that the act of the Chairman was mala fide. In my opinion, I cannot investigate in the present case at the instance of respondent No. 2 the question of mala fide made against the Chairman. Besides, for holding the case of mala fide it is equally settled that a very strong foundation of facts is necessary (Vide N. P. Mathur v. State of Bihar, AIR 1972 Pat 93 (FB)). Mr. Mukherji by reference to the statement made in the counter-affidavit as well as the counter-affidavit in reply to the rejoinder, pointed out that as early as in the year 1967 seniority question was already decided and there was absolutely no occasion for reopening the matter by the Chairman. He submitted that the Chairman was performing a quasi-judicial function and he ought to have referred the claim of respondent No. 2 to respondent No. 1. In my opinion, this question does not arise in the present application. As mentioned earlier. I have already observed that respondent No. 2 had not filed his claim before the Chairman to enable him to exercise his jurisdiction under Regulation 37. On any view of the matter the impugned order cannot be sustained. At the same time I am of the view that it will be desirable for thy Chairman to refer the case to respondent No. 1 (Registrar) under Regulation 37, if any claim is filed by respondent No. 2 before him.
12. In the result, the application is allowed and the impugned order contained in Annexure '2' is quashed. However, it, is made clear that respondent No. 1 will exercise his jurisdiction under Regulation 37 if the matter is referred to him by the Chairman. In the circumstances, however, there will be no order as to costs.
Ali Ahmad, J.
I agree.