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1. Whether a dispute between a Co-operative Society on the one hand, and the employee, agent, or member, of another Co-operative Society (claming through a member), is within the ambit of arbitration under S. 55(1)(b) of the Punjab Co-operative Societies Act, 1961--is the significant question which has necessitated the hearing of this writ petition by the Full Bench. Also at issue is some discordance of precedent within this Court though at the motion stage.

2. Mam Raj petitioner was working as the salesman of the Imbli Co-operative Agriculture Service Society Ltd. which used to purchase fertilizers from the Jagadhri Co-operative Marketing-cum-Processing Society Ltd., Jagadhri (hereinafter called the 'Marketing Society') on a consignment basis. The commission earned by the Imbli Co-operative Agricultural Service Society Ltd. (hereinafter called the Imbli Society), on the sale of such fertilizers payable by the Marketing society was shared equally by the petitioner and the Imbli Society. A dispute arose between the Marketing Society and the Imbli Society inter alia with regard to the payment of the commission on fertilizers and the matter was referred to the Assistant Registrar, Co-operative Societies, Yamunanagar for arbitration under S. 55 of the Punjab Co-operative Societies Act, 1961 (hereinafter called 'the Act'). The arbitrator rendered an Award therein, which, however, was later quashed by the Civil Court. Thereafter, the Marketing Society sought another arbitration claiming Rs. 16,721 from the petitioner. The arbitrator appointed in these proceedings gave his Award, Annexure P/1, against the petitioner as also the Mustafabad Farmers Co-operative Credit and Service Society Ltd., jointly and severally, with the further direction that the amount be recovered first from the petitioner and if it cannot be so done, then it should be recovered from the Mustafabad Farmers Co-operative Credit and Service Society Ltd. The petitioner appealed against the said Award and inter alia took up the stand that no arbitration was maintainable between the Marketing Society on the one hand and the petitioner on the other, because he was not a member of the said Society. The Joint Secretary to the Government, however, dismissed the petitioner's appeal vide annexure P/3. The present writ petition has been preferred against the said Award and was pressed primarily on the ground that no valid reference to the arbitration could be made as against the petitioner. At the motion stage, it was noticed that there were conflicting Division Bench decisions on the point and the writ petition was, therefore, admitted to a hearing by the Full Bench.

26. As noticed earlier the solitary point raised on behalf of the petitioner is thus concluded against him by the answer aforesaid. No other point was urged. The writ petition is, therefore, without merit and is hereby dismissed. There will be no order as to costs.

S.P. Goyal, J.

27. I have gone through the judgment prepared by my learned brother, the Chief Justice, but with utmost respect I regret my inability to concur with the same.

28. The facts as alleged in the petition are that Imbli Co-operative Agriculture Service Society, Limited, now represented by respondent No. 4, the Mustafabad Farmers Co-operative credit and Service Society Limited (hereinafter called the Imbli Society) used to purchase on consignment basis fertilizers from the Jagadhri Co-operative Marketing-cum-Processing Society, Limited, Jagadhri (for short called the Jagadhri Society) and get commission on its sale at the agreed rate. It further appointed the petitioner, Mam Raj, as its salesman to receive the fertilizers from the Jagadhri Society and effect its sales. The petitioner was not paid any fixed salary but under the agreement entered into with the Imbli Society he was to be paid 50 per cent of the commission earned by the Imbli Society. The petitioner under the agreement was further required to deposit the sale proceeds directly with the Jagadhri Society. Certain amounts on account of the price of the fertilisers having remained unpaid, the Jagadhri Society moved the Assistant Registrar, Co-operative Societies under S. 55 of the Punjab Co-operative Societies Act, 1961 (for brevity called the Act) for settling their dispute who gave award in the amount of Rs.16,721/- holding the petitioner and the Imbli Society responsible for its payment severally and jointly with a further direction that the amount may be first realised from the petitioner. The petitioner went in appeal against the award and challenged it mainly on the ground that no reference under S. 55 of the Act was competent between him and the Jagadhri Society. His appeal was dismissed by the Joint Secretary to Government which led to the filing of the present petition under Art. 226 of the Constitution.

30. The admitted facts between the petitioner and respondent No. 4 relating to the actual relationship between them are that the Imbli Society, through a written agreement appointed the petitioner as its salesman, authorised him to take delivery of the fertilizers from the Jagadhri Society, effect its sales and deposit the sale proceeds with the Jagadhri Society directly. For all this job, he was to share equally the commission received by the Imbli Society on the sale of the fertilizers from the Jagadhri Society instead of fixed remuneration. From these facts it is evident that the petitioner never joined the Imbli Society as partner in the sale of the fertilizers but was only appointed as salesman or agent to effect sales on behalf of the former on payment of 50 per cent of the commission which was to be received from the Jagadhri Society.

32. Before applying this test to the facts of the present case, it may also be observed that S. 55 of the Act does not create, declare or recognize any rights or liabilities of the parties concerned and instead only provides an alternative forum for deciding the disputes between them. The rights and liabilities giving rise to the dispute must have their foundations on the common law of the land or the provisions of the Act.

33. Now turning to the facts of the present case, we find that the petitioner was appointed as salesman by the Imbli Society on payment of half of the commission to be earned on the sales of the fertilizers and authorised to take its delivery from the Jagadhri Society on its behalf. The Imbli Society by its agreement with the petitioner never transferred any of its rights of liabilities under the agreement with the Jagadhri Society. By virtue of his agreement with the Imbli Society, the petitioner acquired no right or liability under the contract between the two societies and he was thus neither liable to render accounts to the Jagadhri Society for the sale proceeds of the fertilizers nor entitled to claim his share of the commission from it. He could not force the Jagadhri Society for delivery of the fertilizers or make any claim for damages for breach of the contract with the Imbli Society. He was just to act as authorised agent and was to be rewarded for the service rendered by the Imbli Society. For any dereliction of the duty or malpractice or misfeasance on his part, he was only answerable to its employer or the principal i.e. the Imbli Society. As he could neither claim anything under the agreement between the two societies nor was liable for payment of the price of the fertilizers of the Jagadhri Society by virtue of the said agreement, he cannot he said to be a "person claiming through a member" and, therefore, would not be covered by clause (b) of S. 55 of the Act.