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The National Co-operative Consumers' Federation Ltd., New Delhi 24 Vs. Delhi Administration, Delhi and Ors. (05.03.1970 - DELHC) - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petn. No. 519 of 1969
Judge
Reported inAIR1971Delhi141
ActsBombay Cooperative Societies Act, 1925 - Sections 7(2), 54, 54-A(1), 55, 56 and 59; Delhi Cooperative Societies Act, 1925; Code of Civil Procedure (CPC), 1908; Specific Relief Act, 1963 - Sections 14(1); Constitution of India - Article 226
AppellantThe National Co-operative Consumers' Federation Ltd., New Delhi 24
RespondentDelhi Administration, Delhi and Ors.
Appellant Advocate H.R. Gokhale, Sr. Adv. and ; D.N. Gupta, Adv
Respondent Advocate B. Sen, Sr. Adv., ; Rustan M. Mehta and ; W.C. Chopra,
Cases ReferredState of U.P. v. Mohammad Nooh
Excerpt:
a) the case debated on whether the disputes between society and its employees came within the scope of section 54 of the bombay co-operative societies act, 1925 and could be classified as 'touching the business of the society' - it was held that any dispute arising when a servant of the society was doing some work not directly related to the business of the society would fall outside the scope of section 54 b) the court ruled that the powers of a registrar were not greater than powers of the civil courts under civil procedure code - further, the registrar or his nominee could not order reinstatement of a servant whose services were terminated by the society. c) the court ruled that the registrar and his nominee had no jurisdiction to decide jurisdiction facts - the civil court and the.....1. the bombay cooperative societies act, 1925 (as extended to delhi) (hereinafter called the act) is a typical state enactment intended as a fairly comprehensive code regulating the operation of cooperative societies. various powers are given to the registrar for such regulation including the power under section 54 of the act to decide disputes between societies and their employees. such a power also implies to the society or to the employees appropriate to the decision of the disputes by the registrar. the precise nature of the dispute which can be entertained by the registrar under section 54 and whether the relief of reinstatement can be given by him in deciding such a dispute are question of general public importance which have arisen in the present case.2. the petitioner is a.....
Judgment:

1. The Bombay Cooperative Societies Act, 1925 (as extended to Delhi) (hereinafter called the Act) is a typical State enactment intended as a fairly comprehensive Code regulating the operation of Cooperative Societies. Various powers are given to the Registrar for such regulation including the power under Section 54 of the Act to decide disputes between societies and their employees. Such a power also implies to the Society or to the employees appropriate to the decision of the disputes by the Registrar. The precise nature of the dispute which can be entertained by the Registrar under Section 54 and whether the relief of reinstatement can be given by him in deciding such a dispute are question of general public importance which have arisen in the present case.

2. The petitioner is a cooperative society registered under the Act. As shown by its name, its member are Consumers' Cooperative Stores. The object for which the petitioner federation was formed is to assist, aid and counsel its member-institutions and to facilitate their working and generally to act as the spokesman of the Consumers' Co-operative Movement in India. In furtherance of these objectives, it may undertake activities such as assistance to its members in grading, packaging, standardization, bulk buying, storing, pricing, accounts keeping etc. Respondent No. 6 K. Subba Rao was appointed as Accounts Officer in the petitioner's office on 15th May 1967 on Rs.700/- per month in the scale of Rs. 700-1250 plus allowances as per Annexure A to the writ petition. His period of probation was to be one year in the first instance. The period of probation was extended by the office order dated 20th June 1968 at Annexure B from 26th June 1968 for another six months. By the office order dated 9th December 1969 at Annexure C, the services of the Respondent No 6 were terminated at the expiry of the extended probation period and he was allowed to draw one month's pay exgratia.

3. The Respondent No. 6 thereupon approached the Registrar of Cooperative Societies under Section 54 of the Act on 20th December 1968 as per Annexure E to the writ petition asking that his dispute with the petitioner may be referred to arbitration. Before the Registrar, the petitioner filed preliminary objections on 14-1-1969 as per Annexure F to the writ petition stating that the application for Respondent No, 6 did not raise any substantial issue which could form the basis of a dispute for arbitration under Section 54 of the Bombay Cooperative Societies Act and further that no dispute touching the constitution or business of the petitioner society had come before the Registrar society had come before the Registrar and, thereforee, no action under Section 54 could be taken.

The Registrar, however, wrote on 28th January 1969 as per Annexure G to the writ petition that the petitioner should nominate its arbitrator within 15 days and the petitioner should not fill the post of the Accounts Officer vacated by Respondent No. 6 till the decision of the case. The petitioner repeated his objections to the jurisdiction of the arbitrators under Section 4 as its arbitrator. Respondent No. 5 was appointed as arbitrator of Respondent No. 6 while Respondent No. 3 was appointed as the arbitrator or the nominee of the Registrar. Later, Respondent No. 4 was unable to attend the proceedings of arbitration for a fortnight or so while Respondent No. 5 was away and was not available.

The Registrar, thereforee, withdraw the dispute from the two arbitrators of the petitioner and the Respondent No. 6 on the ground that the arbitrators had not given the award within two months as contemplated therein. The Registrar's nominee, thereforee, proceeded to decide the case alone and ultimately delivered the case alone and ultimately delivered the award, a copy of which is at Annexure Bb to the writ petition. Briefly, the termination of the services of Respondent No. 6 by the President of the petitioner-society was held to be illegal, inter alia, because the power to do so vested in the Board of Directors of the society and not in the President who alone purported to do so.

It was ordered thereforee that the Respondent No. 6 would be deemed to continue in the service of the petitioner and must be allowed to resume his duties immediately. It was also ordered that the Respondent No. 6 should be allowed full pay and allowances as on continuous duty plus one month's pay as token damages for the harassment and worry caused to him as also for the humiliation which he had been made to suffer. It was further order that if the petitioner has filed the vacancy of Respondent No. 6 in defiance of the restraint order which had been already passed by the Registrar, the expenditure so incurred should be recovered from the authority who had sanctioned the filling of vacancy.

4. In the writ petition, the very jurisdiction of the arbitrators and of the nominee of the Registrar, who entertained the dispute raised by the Respondent No. 6 against the petitioner has been challenged on the ground that the dispute was not one 'touching the business of the society' within the meaning of Section 54 of the Act. Secondly, even if it is assumed that the arbitrators and the Registrar's nominee had the jurisdiction to entertain the dispute, the jurisdiction was exceeded when the relief of reinstatement was given to the Respondent No. 6 by the award.

5. The Respondent 1 to 3, namely, the Delhi Administration, the Registrar and his nominee, the Respondent No. 6, K. Subba Rao denied the alleged lack of or excess of jurisdiction and pointed out that Section 54-A and 56 of the Act had afforded alternative remedies which the petitioner was bound to avail of before approaching this Court. The writ petition should not be entertained in view of the existence of these alternative remedies.

6. To appreciate the contention that the arbitrators and the Registrar's nominee had no jurisdiction to entertain the dispute raised by Respondent No. 6 regarding the termination of his services, it is necessary to read carefully the relevant portion of Section 54 of the Act which is reproduced below:

'Arbitration - If any dispute touching the constitution or business of a society, arises between members of the society and any officer, agent or servant of the society it shall be referred to the Registrar for decision by himself or his nominee or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned'

7. It would be seen that the following two conditions have to be fulfillled before a dispute could be entertained under Section 54, namely:-

(1) the dispute must be one 'touching the business of a society'

and

(2) it must arise between certain specified parties such as the society or its members on the one side and the members of the society or any officer, agent or servant of the society on the other side.

It follows that all the disputes arising between a society and its employees are not covered by Section 54. If that were so, the further qualification that such a dispute must be 'touching the business of the society' would have been unnecessary. thereforee the disputes arising between a society and its employees are divisible into two broad classes. On the one hand, would be those disputes which are 'touching the business of a society' while on the other hand, would be those disputes which would not be so touching the business of a society. It is only the former category of disputes which could be covered by Section 54. The latter category of disputes would fall outside the purview of Section 54 and would not be entertained either by the Registrar or the arbitrators. thereforee, the fundamental question is whether the dispute between Respondent No. 6 and the petitioner is one touching the business of the petitioner-society.

8. The Co-operative Society is formed with certain objects. The objects of the petitioner-society are set out above. In achieving these objects, the society has to do certain incidental things. For instance, the society must have premises in which its office would be housed. The society must also employ servants to carry on the office work and other work of the society. thereforee, while the society would carry out its objects, at the same time it would be owing or possessing its premises and would also be employing servants to do its work which may be either to carry out its objects or to do other work which is not connected with the objects of the society. The relevant question, thereforee, would be whether the 'business of the society' would be confined to the objects for which the society was formed or would include everything that the society has to do in order to carry out its objects including the possession of premises and the employment of servants as stated above.

In Deccan Merchangs Cooperative Bank Ltd. v. Dalichand Jugraj Jain, : [1969]1SCR887 , the appellant society owned certain premises which were occupied by the respondents. The society called upon the respondents to vacate the premises which the respondents refused to do. The society, thereforee, applied to the Registrar of Cooperative Societies that the dispute between itself and the respondents be referred to arbitration. The Registrar entertained the dispute. Thereupon the respondents filed a petition under Art, 226 of the Constitution in the Bombay High Court submitting that the said dispute was not covered by Section 91 of the Maharashtra Cooperative Societies Act, 1961, inasmuch as it was not a dispute 'touching the business of the society'.

The Bombay High Court dismissed the writ petition relying on the Full Bench decision of that High Court in Farkhundali v. Potdar, : AIR1962Bom162 in which the following view of the meaning of 'business' was expressed:-

'The nature of business, which a society does, is to be ascertained from the objects of the society. But whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business. The word 'touching' is also very wide and would include any matter which relates to, concerns of effects the business of the society'.

In allowing the appeal, the Supreme Court, however, observed in paragraph (22) of the report as follows:

'While we agree that the nature of business which a society does can be ascertained from the objects of the society, it is difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business. We, however, agree that the word 'touching' is very wide and would include any matter which relates to or concerns the business of a society, but we are doubtful whether the word 'affects' should also be used in defining the scope of the word 'touching'.

The Court further observed that another limitation on the word 'dispute' was that it should be capable of being resolved by the Registrar or his nominee. A dispute between a landlord and a tenant was properly the subject-matter of the various Rent acts and it would be difficult to say that such a dispute was intended to be referred to the Registrar. Such a result may also follow from the interpretation of the Rent Acts and the Cooperative Societies Act.

9. In Cooperative Central Bank Ltd. v. Addl. Industrial Tribunal, A.P., : (1969)IILLJ698SC as industrial dispute between the Cooperative Central Banks and their workmen was referred by the Government of Andhra Pradesh to the Industrial Tribunal. The subject-matter of the dispute was the claims of the employees to various service benefits such as Dearness allowance etc. The Banks contended that the dispute between them and their employees was covered by Section 61 (1) of the Andhra Pradesh Cooperative Societies Act, 1964, as being a dispute 'touching the business of a Society'. The Supreme Court followed their previous decision regarding the meaning of the expression 'touching the business of a Society' and also held that the dispute related to alteration of number of conditions of service of the workmen, a relief, which would not be granted by the Registrar of Cooperative Societies but which could be granted by the Industrial Tribunal.

10. The Supreme Court has thus held that a dispute between a society and its tenants was not a dispute 'touching the business of the society' though the dispute must be said to be touching the premises of the society. For, the possession of he premises was not itself the business of the society. Similarly, the Supreme Court has held that the dispute between a society and its employees demanding various service benefits was not a dispute touching the business of the society. For, the mere employment of the servants was not itself the business of the society. Applying the ratio of these decisions to the present case, it must be said that the business of the petitioner society is to be found in the object for which the society was formed. Such objects do not include the employment of servants as such is not the business of the society. thereforee, every dispute between the society and its employees will not be dispute touching the business of the society.

11. I would, thereforee, refer to the classification made by me above that the dispute between the society and its employees would be of two kinds, namely:

(1) those which touch the business of the society; and

(2) those which do not.

In G. I. P. Rly. Employees Cooperative Bank Ltd. v. Bhikhaji Merwanji : AIR1943Bom341 J. (as he then was) was construing the expression 'touching the business of the society' used in Section 54 of the Act in column 2 of page 344 of the report. The learned Judge observed that it was true that it was not one of the objects of the society to employ or dismiss servants but it is something which it does in the ordinary course of its business, a view which was later approved by the Full Bench of the Bombay High Court but has now been disapproved by the Supreme Court. The learned Judge further observed that the very fact that Section 54 refers to disputes between the society and its servants indicate that disputes regarding dismissal of a servant should be decided by the Registrar. For, it would be difficult to imagine what other kinds of disputes between a society and its servants would form the subject-matter of a dispute within the meaning of S.54.

The learned counsel Shri. Daphtary in that case suggested that there may be cases where an officer of a Bank did something which was contrary to the rules or where he was in possession of the funds of the company meaning that such disputes would be disputes touching the business of the society. But Changla, J. observed that this would narrow down the definition of the term 'servant' so as to include only high and important officials of the company and exclude the menial servants.

12. With the greatest, respect to the learned Judge, I am unable to agree that all disputes between a society and its menial servants would be excluded from Section 54 if its is required that the dispute must touch the business which is carried on by the society in pursuance of its objects. On the contrary, every servant of the society, high or low, would be concerned in doing work part of which would be touching the business of the society while the rest of it would not be so. For instance, one of the objects of the society is to give technical assistance to its members. Those servants of the society who give such technical assistance are doing the work which directly touches the business of the society. thereforee any dispute between the society and such servants regarding such work done by the servants would be a dispute touching the business of a society. On the other hand, if such servants or other servants are doing some work which is not directly related to the business of the society then a dispute between the society and such servants relating to the work which is not concerned with the business of the society would be outside the scope of Section 54.

13. Learned counsel for the respondent Shri. B. Sen has argued that the Respondent No. 6 was an Accounts Officer. The keeping of accounts was directly concerned with the business of the society. Even if this is assumed to be correct, this argument does not prove that every dispute between the society and the Respondent No. 6 would be a dispute touching the business of a society. If the dispute between the society and Respondent No. 6 did directly touching the business of the society, then the dispute regarding that work would be a dispute touching the business of the society. Any other disputes with Respondent No. 6 would not be a dispute touching the business of the society.

In the present case, the society exercised the elementary right of a master to terminate the services of a servant without assigning any reasons thereforee. The servant later contended before the Registrar's nominee that this termination was contrary to the bye-laws of the society according to which the power of the termination of the services vested in the Board of Directors of the society and not in the President of the society. The question, thereforee, is whether the violation of the relevant bye-laws gave rise to a dispute which touched the business of the society. Section 71 (2) (d) of the Act authorises the State Government to frame rules to carry out the purposes of the Act and in particular to prescribe the matter in respect of which a society may or shall make bye-laws.

Rule 4 (1) (f) authorises a society to make bye-law in respect of the mode of appointment and removal of members of the Committee and of the officers. The bye-laws relating to the appointment and the removal of the employees of the society have been made in exercise of this power. Can it be said that this power is directly concerned with the business of the Society? I do not think so. A separate power to make bye-laws is given in Rule 4 (1) (b). The Supreme Court has also said in the Cooperative Central Bank's case : (1969)IILLJ698SC referred to above in paragraph (7) of the report as follows:

'Since the word 'business' is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society'

It is clear to me, thereforee, that a mere termination of the services of the Respondent No. 6 by the petitioner did not constitute a dispute 'touching the business of a society' within the meaning of Section 54.

14. The restricted meaning of 'business' in the context may also be illustrated by another example. The various Sales Tax Acts provide that sale by a dealer is liable to be assessed to sales-tax. A dealer is a person who sale goods in the course of business. There fore, the sale of surplus goods by a dealer who was not carrying on the business of selling such goods was not liable to be taxed under the provisions of the Sales Tax Acts. Director of Supplies and Disposals v. Member, Board of Revenue Air 1967 Sc 1826. In the same way, the employment of an Accounts Officer or other staff is not itself the business of the petitioner society. thereforee, the arbitrators and the Registrar's nominee had no jurisdiction to entertain the dispute relating to the termination of the Respondent No. 6 by the petitioner under Section 54 of the Act inasmuch as it was not the dispute touching the business of the petitioner-society.

15. As to the powers which the Registrar can exercise in deciding the disputes under Section 54 the Act is silent. The Registrar has, however, been given the power to order attachment of the property of a party before the award is made by Section 55. Similarly, Section 59 gives the Registrar the power to recover money ordered to be paid under an award by singing a certificate which shall be deemed to be a decree of a civil Court and shall be executed in the same manner. It is not, clear what other powers of a civil Court, the Registrar can exercise, in granting reliefs to the parties in the proceedings before him.

For the purposes of the case before me, however, it is sufficient to assume that the powers of the Registrar can in no case be larger than the powers of a Civil Court under the Civil P.C. Regarding the relief of reinstatement of an employee whose services have been wrongfully terminated by the employer, the rule laid down in section 21 (b) of the Specific Relief Act 1877, now replaced by section 14(1)(b) of the Specific Relief Act, 1963 is that specific performance of a contract of service cannot be granted. This rule is subject to three well-recognised exceptions, namely:-

(1) when the termination of service is made contrary to Art 311 of the Constitution;

(2) when it is made in violation of a statutory obligation; and

(3) when such termination is challenged before a Tribunal acting under the Industrial Disputes Act, 1947.

This has been recently affirmed by the Supreme Court to Executive Committee, U.P. Warehousing Corporation v. Chandra Kiran Tyagi, : (1970)ILLJ32SC . The first and the third exceptions are not applicable to the present case. It has to be seen if the termination of Respondent No. 6 can be covered by the second exception.

16. A statutory obligation is normally imposed by a statute. At times a statute may indicate that the obligation may be spelt out by rules made under the statue or an order passed there under as was done by an order of the Central Government issued by virtue of the powers concerned on it by Section 11 of the Insurance Act, 1938. This is why the termination of the services was held to be contrary to a statutory obligation in Life Insurance Corporation of India v. Sunil Kumar Mukherjee, : (1964)ILLJ442SC . On the other hand, the Agricultural Produce (Development and Warehousing Corporation) act, 1956 did not itself give any protection of security of tenure of office to the employees of the Warehousing Corporation Nor did it indicate that such protection would be given by rules or regulations to be framed under the Act. Such protection was, however, given by the regulations framed by the Corporation under S.54 of the Act. The disciplinary enquiry held against Chandra Kiran Tyagi was vitiated by violation of Regulation No. 16. The termination of his services, was, thereforee, wrongful. But the relief of reinstatement was denied to him by the Supreme Court in Chandra Kiran Tyagi's case, : (1970)ILLJ32SC referred to above on the ground of any statutory obligations because the Act itself did not guarantee any statutory status to him nor did it impose any obligation on the employer in such matters. The termination of the services of Respondent No. 6 in the present case is said to be in violation of a bye-law which had been framed by the petitioner society.

This bye-law was formed under R-4 of the Delhi Cooperative Societies Rules, 1950. Clause (f) of Rule 4 (1) authorises a Cooperative Society to make bye-law regarding the mode of appointment and removal of members of the society and of the officers thereof. This rule has been framed by the Chief Commissioner of Delhi under Section 71 (2) (d) of the Act which authorises a State Government to make rules to carry out the purposes of the Act and in particular to prescribe the matters in respect of which a society may or shall make bye-laws. It has to be noted that while the rules are framed to carry out the purpose of the Act, the only purpose of the Act which is carried out by Rule 4 is that power is given to a Cooperative society to make bye-laws governing the appointment and removal of the employees of the society. But neither the Act nor the rule gives any indication that the tenure of the employees of the society was to be secured in any particular manner. thereforee, the violation of a bye-law cannot be said to be the violation of any obligation imposed on the employer either by the statute or by the rules framed there under.

The obligations imposed on the employer by the bye-laws cannot be said to be an obligation imposed by a statute. Firstly, the bye-laws are made by the society itself. Secondly, such bye-laws would rather amount to terms of contract between the society and its employees. Lastly, they are not made by the authority external to the society. They are, thereforee, binding on the society only as terms of contract and not by a statute imposed on it from above. The Regulations framed by the Warehousing Corporation in Chandra Kiran Tyagi's case, : (1970)ILLJ32SC were not held to impose a statutory obligation on the Corporation itself.

For the same reason, the bye-laws made by the petitioner in the present case cannot be said to be a statutory body as the Warehousing Corporation was. The petitioner society is a private body which is only registered under the Act. Such registration does not give it the character of a statutory body or authority. I, thereforee, find that no statutory obligation was violated in dispensing with the services of Respondent No. 6. Consequently the Registrar or his nominee has no jurisdiction to give the relief of reinstallment to Respondent No. 6.

16-A. Above all, the arbitrators and the Registrar's nominee act under Section 54 of the Act only as arbitrators and it is well settled that an arbitrator cannot grant the relief of reinstatement, Dr. S. B. Dutta v. University of Delhi, : [1959]1SCR1236 .

17. The award made by the Registrar's nominee is, thereforee, seen to be void both because the dispute between the petitioner society and Respondent No. 6 was not one 'touching the business of the society' within the meaning of Section 54 and also because the Registrar's nominee had no power to grant the relief of reinstatement to Respondent No. 6. The condition that the dispute must be one 'touching the business of the society' goes to the very jurisdiction of the Registrar or the arbitrators purporting to act under Section 54. The Registrar and the arbitrators are not this jurisdictional fact. They can only take the preliminary view as to whether the dispute is one 'touching the business of the society'. But this preliminary view does not finally decide this point. It is open to the Civil Courts and also to the High Court to examine whether this jurisdiction condition has been satisfied or not and to hold that the seizure of the jurisdiction by the Registrar and the arbitrators is ultra virus the Act if the jurisdictional conditions is not fulfillled. Similarly, it is open to the civil courts and the High Courts to declare that the Registrar and the arbitrator do not have the power under the Act to grant the relief of reinstatement. The writ petition is thereforee entitled to succeed.

18. The Respondents 1 to 3 and 6 have, however, urged that this relief of quashing the award of the Registrar's nominee could have been obtained by the petitioner society either under Section 54-A or under Section 56 of the Act and that the petitioner was not entitled to approach this Court inasmuch as these alternative remedies under the Act were available to it. Let us first examine if such a relief could be obtained by the petitioner under Section 54-A or under Section 56. Section 54-A is as follows:

'54-A. Tribunal's power to modify and correct or remit award - (1) In the case of any award, made by the arbitrators, under Section 54 the Tribunal may, on the application of any of the parties to the award or otherwise for reasons to be recorded in writing:-

(i) modify the award, or

(ii) set it aside and order that the dispute shall be referred back to the arbitrators, in the manner provided under the said section.

Provided that no such order shall be made:-

(a) after the issue of a certificate, under Section 59 for the execution of the award, and

(b) except on any of the following grounds:-

(i) on objection to the legality of the award if apparent on the face of it, or

(ii) the award has been vitiated in consequence of corruption or misconduct on the part of any of the arbitrators, or

(iii) the award is in any way perverse

(2) In making an order under subsection (1) that the dispute shall be referred back to arbitration, the Tribunal may direct that all or any of the arbitrators who made the award, shall not act again as arbitrators for deciding the dispute.

(3) Where a dispute is referred back to arbitration under sub-section (1), the arbitrators shall make a fresh award; within same time, as may be fixed by the Tribunal. If the arbitrators fail to make a fresh award, within the time so fixed, the registrar or his nominee shall decide the dispute.

(4) When the award is made by the arbitrators under sub-section (3), the Tribunal may, on the application of any of the parties to the award or otherwise for reasons to be recorded in writing:-

(i) modify the award, or

(ii) pass such order thereon, as it deems just.

To such modification or order, the provision to sub-section (1) shall apply.'

It will be seen that the Tribunal may either modify the award (which implied the jurisdiction to make it) or to set aside the award and order that the dispute shall be referred back to the arbitrators. This also implies that the arbitrators had the jurisdiction to make the award and would continue to have the jurisdiction to entertain upon the reference again after the case is returned to them by the Tribunal. The proviso to Section 54-A (1) refers only to 'such' orders. These orders can be made only when the fundamental jurisdiction was possessed by the arbitrators. Sub-sections (2) and (3) of Sections 54-A again refer to an order made under sub-section (1) thereof. Sub-section (4) refers to orders made under sub-section (3) thereof.

It is to be seen, thereforee, that Section 54-A gives the Tribunal power to modify or set aside an award for defects contained in the award itself as is indicated by the fact that the Tribunal may refer the dispute back to the arbitrators. thereforee, the proviso to Section 54-A (1) though worded widely cannot be construed to imply that the Tribunal had the power to entertain an objection to the jurisdiction of the arbitrators. Though the language of the proviso is analogous to the language of Section 30 of the Arbitration Act, 1940, it is significant that unlike Section 33 of the Arbitration Act, Section 54-A of the Bombay Cooperative Societies Act does not enable the Tribunal to decide the question as to the existence or validity of the arbitrators. The execution of such a provision from Section 54-A would suggest that objections regarding jurisdiction are not to be decided by the Tribunal under Section 54-A.

19. The powers exercisable by the Tribunal under Section 56 are those of an appellate authority. The jurisdiction of the appellate authority of the Registrar and the arbitrators against whose orders the appeals are filed. It would appear, thereforee, that the powers execisable by the Tribunal under Section 54-A and S. 56 are both similar inasmuch as they are concerned with the merits of the awards made by the Registrar and the arbitrators and not with the question whether the jurisdiction conditions for the making of the award by the Registrar or the arbitrators were fulfillled or not. The finality of the award of the arbitrators or a decision by the Registrar or his nominee under Section 64 and 66 means that the orders under these Sections are not to be challenged in any Civil Court only if they are made with jurisdiction. That is to say, their merits are not open to scrutiny by the Civil Courts. But the jurisdiction of the Registrar or the arbitrators can always be examined by the Civil Courts inasmuch as the Registrar and the arbitrator are not such Tribunals as have been given the jurisdiction to determine the jurisdictional conditions for the assumption of jurisdiction by them under S. 54. The execution of the jurisdiction of the civil courts is not to be presumed. If the legislature intended to exclude the jurisdiction of the Civil Courts from examining whether the jurisdiction conditions for the assumption of jurisdiction by the Registrar and the arbitrators have been fulfillled or not, then it would have been fulfillled or not, then it would have said so. But there is no such exclusion of the jurisdiction of the civil courts in the Act.

Further, as observed by the Supreme Court, after a survey of the previous case-law, in Dhulabhai v. State of Madhya Pradesh, : [1968]3SCR662 the legislature would make a provision in the Act itself by constituting machinery to grant reliefs which could have been to grant reliefs by constituting machinery to grant reliefs which could have been obtained from the Civil Court if the legislature intended to exclude the jurisdiction of the Civil Court altogether. But the Act by which the assumption of the jurisdiction by the Registrar or the arbitrators can be examined so that it may be determined whether the Registrar and the arbitrators had the jurisdiction to entertain a dispute under Section 54 or not. The conclusion is, thereforee, inescapable that the jurisdiction of the Civil Courts to determine if the Registrar and the arbitrators entertained the dispute under Section 54 with or without jurisdiction is not excluded by the Act.

20. Even if it is assumed for the sake of argument that the petitioner could have resorted to proceedings under Section 54-A or S.56 to get the award set aside on the ground of want of jurisdiction and also because the Registrar's nominee exceeded this jurisdiction in granting the relief of reinstatement, the existence of such alternative remedies does not exclude the jurisdiction of this Court to act under Art 226 of the Constitution. As observed by the Supreme Court in State of U.P. v. Mohammad Nooh : [1958]1SCR595 :

'There is no rule with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally. effective remedy. It is well established that provided the requisite grounds exist, certiorari, will be although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Volume 11, p. 130 and the cases cited there).'

Their Lordships further observed at pp. 607, 608 and 609 (of SCR) = (at pp; 93 and 94 of Air ) as follows:-

'It has also been held that a litigate who has lost his right of appeal (as in the present case after the expiry of 30 days under Section 56 of the Act) or has failed to prefer an appeal by no fault of his own may in a proper case obtain a review by certiorari (See Corpus Jurisdiction Secundum Vol. 14 Art 40, p. 189). If, thereforee, the existence of other adequate remedies is not parse a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi judicial functions and not to relegate the petitioners to other legal remedies available to him and if the superior court can in a proper case exercise its jurisdiction in favor of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal, e.g., by furnishing security provided by the statute, should it then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair-play merely because such decision has been upheld by another inferior court or tribunal on appeal or revision? ............... On the authorities referred to above it appears to us that there may conceivably be cases - and the instant case is in point - where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to he rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally comes to our notice.'

thereforee, the circumstances of a particular case may justify entertaining the writ petition even if alternative remedies had existed which could have been availed of by the petitioner. It appears that such circumstances exist in the present case. The petitioner brought to the notice of the Registrar at the earliest opportunity and repeatedly thereafter that the dispute did not touch the business of the society and the Registrar had, thereforee, no jurisdiction to entertain it. The registrar, however, ignored this fundamental objection and proceeded to entertain the dispute.

The Registrar's nominee was not impressed even when the Supreme Court decisions to Deccan Merchangs Cooperative Bank's case, : [1969]1SCR887 and in Cooperative Central Bank's case, : (1969)IILLJ698SC were brought to his notice. The Registrar's nominee in his letter dated 28-1-1969 went to the length of restraining the petitioner society from filing the vacancy of the post of the Accounts Officer vacated by Respondent No. 6 pending the decision in the case before him. Further, in the award, the petitioner society has been ordered to pay one month's pay to Respondent No. 6 as damages for the harassessment and worry caused to him and the humiliation which he had to suffer. To grant such a relief in addition to reinstatement was not only illegal but outrageous - in the circumstance of the case.

The award in the last but one paragraph also refers to consultation by the Registrar's nominee with the arbitrator of Respondent No. 6 though the Registrar's nominee had taken over the case exclusively and was to decide it without the assistance of the arbitrator of one party behind the back of the other party was contrary to natural justice. Lastly, the Registrar's nominee repeated at the end of the award that if the petitioner society has filed the vacancy of Respondent No. 6 in defiance of the restraint order mentioned above, then the expenditure so incurred should be recovered from the authority who sanctioned the case even though such an authority was neither before the Registrar's nominee nor was it heard before such an order was passed against it.

The award is, thereforee, so flagrantly ultra virus the Act and the Registrar's nominee has exceeded his jurisdiction to such an extent that this would be a fit case to be entertained by this Court. Further the petitioner has approached this Court for a remedy in the nature of certiorari. The doctrine of exhaustion of the primary departmental remedies before a petitioner approaches this Court is not applied so rigorously in a petition for the relief of certiorari as would be done if the petitioner had come to this. Court for the relief of mandamus as pointed out by the Supreme Court in Mohammad Nooh's case : [1958]1SCR595 referred to above. The award of the Registrar's nominee dated 3rd June 1969 at Annexure Bb of the writ petition is, thereforee, quashed. The writ petition is allowed in the above terms with costs. Counsel's fee Rs. 250/- shall be payable to the petitioner by Respondent NO. 1 only.

21. Petition allowed.


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