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Balachandran Vs. Dy. Registrar of Co-operative Societies and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1977)ILLJ287Ker
AppellantBalachandran
RespondentDy. Registrar of Co-operative Societies and ors.
Cases ReferredM.C.C. Bank Ltd. v. State of Kerala
Excerpt:
- - the court said ;counsel is well-supported in his contention that if the subject-matter of tht; those tribunals and labour courts are trammelled by the inhibitions of contractual obligations or rights and can, in disregard of well-known concept of law, readjust rights and obligations in a manner conceived to be just in the light of socio-economic changes that are taking place in various countries in this century. he can only act subject to the limitations prescribed under section 70(3) of the act which says that he shall act in accordance with the provisions of this act and the rules and the bye-laws'.he can only decide such disputes as are specifically mentioned under section 2(i) read with section 69. he cannot disregard the well-known concepts of law and readjust rights and..........held:the general proposition urged that the jurisdiction of the industrial tribunal under the industrial disputes act would be barred if the disputes in question can be competently decided by the registrar under section 61 of the act is, therefore, correct and has to be accepted.a division bench of our high court in k.v. service co-op. society v. asst. registrar, (1973) k.l.t. 523, came to the same conclusion. the court said ;counsel is well-supported in his contention that if the subject-matter of tht; dispute before the 2nd respondent is one falling within the term 'dispute' as defined in section 2(i) and within section 69 of the act and, therefore, within the competence of the registrar to decide, this provision must prevail over the provisions in the industrial disputes act.....
Judgment:

T. Kochu Thommen, J.

1. The petitioner prays for a writ of certiorari or other appropriate writ, direction or order, to quash Exts. PI and P2 orders. Exhibit PI was passed by the 1st respondent under Section 69 of the Kerala Co-operative Societies Act, 1969 and Ext. P2 by the 2nd respondent under Section 82 of the Act.

2. The petitioner and the 4th respondent have been and still are employees of the 3rd respondent-Co-operative Bank. By resolution No. 221 adopted by the 3rd respondent. Bank on 10-4-1970 both the petitioner and the 4th respondent were promoted as assistant accountants. By the same resolution the Bank declared that the petitioner was senior to the 4th respondent. This part of the reso ution concerning seniority gave rise to a controversy between the petitioner and the Bank on the one hand and the 4th res. pondent on the other. The 4th respondent thereupon initiated proceedings under Section 69 of the Act by filing an arbitration case before the 1st respondent, the Deputy Registrar. The petitioner contended before the Deputy Registrar that he lacked jurisdiction to hear the matter, as it was not a dispute coming within the definition of Section 2(i) read with Section 69. This preliminary objection as to jurisdiction was overruled by the Deputy Registrar. After hearing both the parties and after taking evidence, the Deputy Regis-trar found that on the date of the resolution- i.e. 10-4-70-the petitioner did not have the same length of continuous service as in the case of the 4th respondent and that he had not acquired the requisite qualification fur being promoted as a clerk till March, 1968. The 4th respondent was found to have had ft longer continuous service and to have acquired the requisite qualification as early as 5-1-1966. Based on these facts, the 1st respondent Deputy Registrar held that resolution No. 221 dated 10-4-70 was invalid in so far as it declared the relative seniority of the petitioner. An appeal was filed by the petitioner before the second respondent Tribunal under Section 82 of the Act. The Tribunal after hearing the parties confirmed the order of the respondent-Deputy Registrar. The Tribunal stated as follows:

It can safely be said that the 2nd respondent is senior to the appellant and the Deputy Registrar has come to the correct conclusion regarding this aspect. Hence the appeal is without merits....

3. The petitioner challenges both these orders on the ground that the controversy which arose as a result of the resolution declaring the 1st petitioner to be senior vis-a-vis the 4th respondent was not a matter which came within the ambit of the definition 'dispute' under Section 2(i) read with Section 69. He, therefore, contends that jurisdiction was wrongly assumed by the first and 2nd respondents and consequently the orders are invalid. The petitioner has also contended that these two orders are vitiated by errors apparent on the face of the record.

4. The question that was mainly urged before me by the petitioner's counsel was as regards the competence of the Registrar. I shall first deal with this point. Section 2(i) of the Act defines a 'dispute' as follows:

'Dispute' means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not;

(italics supplied)

Section 69 says:

Notwithstanding anything contained in any law for the time being in force, if a dispute arises-

(a).... .... .... ....(b).... .... .... ....(c) between the society or its committee, and any past committee, any officer, agent or employee, or any past officer, pa>t agent or past employee, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or.. .... ..... .....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.

5. The term 'dispute' takes in matters touching, among other things, establishments. Section 80 of the Act deals with 'establishment' and Sub-section (3) thereof provides for rules being made by the Government 10 regulate, inter tiles, conditions of service. If a dispute arises between the society and its employee touching the establishment concerning conditions of service it can be referred to the 1st respondent for his decision. Counsel for the prisoner contends that if the same matter also comes within the competence of the Industrial Tribunal it cannot for the Subject-matter of a dispute within the scope of Section 2(i). He. therefore, maintains that even if the question in issue touches in some manner the establishment the Registrar has no jurisdiction under the Act as the same question can also be dealt with by the Industrial Tribunal. This aspect of the matter was examined by the Supreme Court and also by our High Court. In Co-op, Central Bank v. Ind. tri., Hyderabad, : (1969)IILLJ698SC , the Supreme Court held:

The general proposition urged that the jurisdiction of the Industrial Tribunal under the Industrial Disputes Act would be barred if the disputes in question can be competently decided by the Registrar under Section 61 of the Act is, therefore, correct and has to be accepted.

A Division Bench of our High Court in K.V. Service Co-op. Society v. Asst. Registrar, (1973) K.L.T. 523, came to the same conclusion. The Court said ;

Counsel is well-supported in his contention that if the subject-matter of tht; dispute before the 2nd respondent is one falling within the term 'dispute' as defined in Section 2(i) and within Section 69 of the Act and, therefore, within the competence of the Registrar to decide, this provision must prevail over the provisions in the Industrial Disputes Act which provides for the settlement of disputes such as that are referrable to the Industrial Tribunals or Labour Courts.

It is thus clear that if the matter in controversy directly comes within the definition of the term 'dispute' under the Co-operative Societies Act, the Registrar undoubtedly has jurisdiction to the exclusion of Industrial Tribunals.

6. The question that, therefore, arises for consideration is whether the controversy as regards the relative seniority of the petitioner and the 4th respondent would be a matter which would come within the definition of 'dispute' under the Act. Counsel for the petitioner submits that there is a long line of authority for the proposition that matters touching establishments would not come within competence of the Registrar. He cited Co-op.-Cr. Bank v. Ind. Tri., Hyderabad (1970) S.C. 245. M.C.C. Bank ltd. v. State of Kerala (1963) K.L.T. 703, Kerala State Handloom Ltd. v. State of Kerala, (1964) K.L.J. 173 and K.V. Service Co-no. Society v. Asst. Registrar, (1973) K.L.T. 523, in support of this proposition. Counsel for the 4th respondent rightly contends that the decision cited above with the exception of K.V. Service Co-op. Society v. Asst. Registrar (1973) K.L.T. 523, related to enactments which did not contain the expression 'establishment' in the definition of the term 'dispute' and, therefore, the Courts were not called upon in those cases to consider whether matters touching establishment would come within the competence of the Registrar. His further maintains that under the present Act any matter touching the establishment would come exclusively within the competence of the Registrar. He hag referred me to the observations of the Supreme Court in Co-op. Cr. Bank v. Ind. Tri,, Hyderabad : (1969)IILLJ698SC , to support this contention. He says that in dealing with the question whether the matters in dispute in that case, came within the ambit of the expression 'business' or 'management,' the Court observed by implication that if the term 'establishment' had been a part of the' defmition of 'dispute' under the Act, then matters relating to con-ditions of service would also have come within the competence of the Registrar. Relying upon certain observations of the Supreme Court in D.M. Co-op. Cr. Bank v. Dalichand, A T.R. 1969 S.C. H20 at 1326-paragraph 23, he says that the expression 'touching' in the definition of 'dispute' is wide enough to take in all matters relating to establishment. He relies on Section 80 of the Act to show that the term 'establishment' includes conditions of service. Seniority being a part of the conditions of service, it is a matter coming within the competence of the Registrar.

7. Counsel for the petitioner would, however, contend that this Court had as early as 1963, M.C.C. Bank Ltd. v. State of Kerala, (1963) K.L.T. 705, held that questions concerning promotion arc matters which should be referred to the Industrial Tribunal and, therefore, the Registrar would not have any jurisdiction. As pointed out above, this decision was rendered on the basis of an enactment which did not contain the expression 'establishment' in the definition of 'dispute'. Consequently the Registrar was not competent to hear such disputes under that Act. The question really is not whether the matter in controversy touches establishment, but whether the Registrar has jurisdiction under the present Act in regard 10 this matter. In K.V. Service Co-op. Societv v. Asst. Registrar. (1973) K.L.T. 523, this Court held in para 6 :

The real question is not whether the dispute is one touching the business of a society or its management or establishment but whether it is a dispute within the competence of the Registrar to decide.

(italics supplied).

8. Counsel for the petitioner further contends that the Registrar has jurisdiction only to enforce the rules or bye-laws and in the absence of such provisions the Registrar would have no jurisdiction. In Co-op. Cr. Dank v. Ind. Tri, Hyderabad : (1969)IILLJ698SC Paragraph 7, the Supreme Court examined the question as to the limit of the powers of the Registrar in matters touching subjects mentioned under Section 2(i). The Court said that the powers of the Registrar are of necessity limited by the provisions of the Act. He can only enforce the rules or the terms of contract. In matters not covered by such provisions the Registrar has no function. The Registrar cannot in resolving the dispute alter the bye-laws or go beyond the scope of the byelaws. On the other hand an Industrial Tribunal can go beyond the byelaws and lay down rules of its own in the interest of social justice and industrial peace. However, in matters regulated by the bye-laws concerning subjects falling within the definition of 'dispute' the Registrar has exclusive jurisdiction.

9. In the above case Co-op. Cr. Bank v. Ind. Tri. Hyderabad, : (1969)IILLJ698SC , the Supreme Court considered the question whether the word 'business' would take in disputes relating to alteration of conditions of service; the Court said that it would not. The Court further examined whether the Registrar, under Section 62 of that Act, had the power to deal with such disputes. The answer again was no. The Court said 3

Further, the position is clarified by the provisions of Sub-section (4) of Section 62 of the Act which limit the power to be exercised by the Registrar, when dealing with a dispute referred to him under Section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of the Act, the rules and the bye-laws could not possibly permit the Registrar to change conditions of service of the workmen employed by the society.... It appears from them that the conditions of service of the employees of the Bank have all been laid down by framing special bye-laws. Most of the conditions of service, which the workmen want to be altered to their benelit, have thus been laid down by the bye-laws, so that any alteration in those conditions of service will necessarily require a change in the bye-laws. Such a change could not possibly be directed by the Registrar when, under Section 62(4) of the Act, he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye-laws...The Registrar or other person dealing with it under Section 62 of the Act is not competent to grant the relief claimed by the workmen at all. (para 7.)

The Court then went on to say :

The jurisdiction which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil Court or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No. 1, the Tribunal will have to vary the special bye-laws framed by the Co-operative Bank does not lead to the inference that the Tribunal would be incompetent to grant the relief's sought in this reference. In fact the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section 61 of the Act. (Para 10).

This principle was restated by this Court in K, V. Service Co-op Society v. Asst. Registrar. (1973) K.L.T. 523--at 528, a follows :

The Industrial Disputes Act is meant for doing social justice and the powers conferred on the Industrial Tribunals and Labour Courts functioning under that statute are very much wider. Those Tribunals and Labour Courts are trammelled by the inhibitions of contractual obligations or rights and can, in disregard of well-known concept of law, readjust rights and obligations in a manner conceived to be just in the light of socio-economic changes that are taking place in various countries in this century. The jurisdiction exercised by such Tribunals and Labour Courts is, therefore, entirely different and though, as was observed by the Judicial Committee, A.I.R. 1949 P.C. 129, there may said to be ales and though there may be a judicial process involved, they do not function as Courts nor do they exercise powers of a court nor arc they inhibited by rules of law which must guide and control the decisions of Courts. (para 9).

In paragraph 5 of the same judgment this Court has extracted the following passage from the judgment of Chagla, C.J. in The Majoor Sahakare Bank Limited v. N.N. Majumdar and Anr. : (1955)IILLJ755Bom :

Now Mr. Rane has very rightly point-ed out that the disputes contemplated by Section 54 are disputes of a civil nature which could have been decided by civil Courts but for the provisions with regard to compulsory arbitration provided in Section 45. Mr. Rane has also rightly pointed out that she present dispute between the sound respondent and the petitioner:-' could that have bean the subject-matter of ulefeience to arbitration under Section 54. The second respondent is not claiming to assert any civil rights against the petitioners. What he is claiming is certain rights which are now conferred upon workmen and employees as t result of principles of social justice which arc now almost universally acknowledged alt the world over. There is no right of reinstatement under civil It is which can be enforced by an employee against his employer. No contract of personal service can be specifically enforced by a civil Court nor does a civil Court determine whether the wages paid to an employee arc proper wages or not. Civil Courts are bound down by the law of contract and it is under the law of contract:. that the civil Courts decide disputes between a master and his servant.

This Court in that case, (1973) K.L.T. 323, was examing the question whether an award made by the Registrar directing the reinstatement of an employee was validly made under Section 69 of the Act. This Court said that the Registrar was not competent to deal with such questions. He did not have the power to grant the relief of reinstatement and, therefore, the award was incompetent. This Court also said that the powers of the Labour Court functioning under the Industrial Disputes Act, (947 were unaffected by the powers of the Registrar in a dispute relating to reinstatement of an employee. Such a dispute, and the adjustment of rights arising there from, could not fall within the ambit of the term 'dispute' as defined under Section 2(i) read with Section 69 of the Act. The Registrar does not have the powers of an Industrial Court for his powers are limited in the manner that the powers of a civil Court are limited. He can only act subject to the limitations prescribed under Section 70(3) of the Act which says that he shall act in accordance with the provisions of this Act and the rules and the bye-laws'. He can only decide such disputes as are specifically mentioned under Section 2(i) read with Section 69. He cannot disregard the well-known concepts of law and readjust rights and obligations. The Tribunals and Labour Courts are unfettered by inhibitions of contractual obligations or rights. This concept weighed with this Court in its decision in Malabir Co-operative Central Bank Ltd., Kozhikode v. State of Kerala (1963) K.L.T. 705. In that case M.S. Menon, C.J. says:

Co-operative societies arc creatures of statute, controlled by their constitution, and concerned with that contracts. Industrial disputes stem, not from the subtle refinements of contractual obligations, but from the rougher jurisprudence social justice and readjustment. The uplands of the Industrial Tribunals are out of bounds to the Registrar of Cooperative Societies. (para 6)

The same principle weighed with the Supreme Court in Deccan Merchant a Co-operative Bank Ltd, v. Dalichund Jugraj Jain and other. (1969) S.C. 1320, where' the Court considered the question whether a dispute which arose between a co-operative society and its tenant could be referred by the Registrar for arbitration under Section 91 of the Maharashtra Co-operative Societies Act, 1960. Holding that the dispute in question did not touch the business of the society, the Court said that the Registrar or his nominee had no competence in the matter. The Court said:

It seems to us very doubtful that the word 'dispute' would include a disptue between a landlord society and a tenant when the landlord society has not been set up for the purpose of constructing or buying and letting out houses. In the presence of various Rent Acts which give special privileges to tenants it would be difficult to say that such disputes were intended to be referred to the Registrar. (para 23)

Towards the end of this judgment the Court refers to this principle again in the following words;

If the matter is heard by the Registrar, none o| these provisions would apply. We can hardly imagine that it was the intention of the Legislature to deprive tenants in buildings owned by co-perative societies of the benefits given by the Rent Act. It seems to us that the Act was passed, in the main, to shorten litigation, lessen its coats and to provide a summary procedure for the determination of the disputes relating to the internal management of the societies. But under the Rent Act a different social objective is intended to be achieved and for achieving that social objective it is necessary that a dispute between the landlord and the tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of the Rent Act. (para 36).

The above discussions indicate that it is only in cases where a dispute cannot be resolved in accordance with the contractual obligations or rights or in accordance with the law and the rules that the powers of the Registrar are ousted. The Registrar can function only within the limits prescribed under the Act, But within those limits he can act uninhibited provided the dispute is capable of being resolved without deviating from the provisions of the Act, the rules and the bye-laws. If the dispute relates to a subject-matter specified under the Act and if it can be resolved in accordance with the provisions of the law or contract, the Registrar has the necessary jurisdiction and the provisions of the Act would prevail over those of the Industrial Disputes Act.

10. In the present case, the question is whether the Registrar can resolve the dispute regarding the relative seniority of the petitioner and the 4th respondent. The dispute arose as a result of the resolution adopted by the Co-operative Bank upholding the seniority of the petitioner. The 4th respondent naturally felt aggrieved by the resolution and a dispute consequently arose between the Bank and the petitioner on the one hand and 4th respondent on the other. None of the principles mentioned by M.S. Menou, C.J. in M.C.C. Bank Ltd. v. State of Kerala (1963) K.L.T. 705, arises in the dispute. The dispute, in my opinion, does not belong to the 'uplands' of the Industrial Tribunal and is, therefore, not 'out of bounds' to the Registrar of Co-operative Societies. Again, the need for adjusting and readjusting rights and obligations 'in a manner conceived to be just in the light of socio-economic changes that are taking place in various countries in this century' (as stated by this Court in (1973) K.L.T. 523 at 528, does not arise in the present case. The present dispute is only concerned with the question of relative seniority which is a subject touching establishment relating to conditions of service as mentioned under Section 80 and it is within the competence of the Registrar to resolve in accordance with the principles of law and contract, I, therefore, hold that the Registrar was competent to decide this dispute.

11. The next point which arises for consideration is whether the order of the Registrar is vitiated by any error apparent of the face of the record. The Registrar has come to a finding as regards the relative seniority of the two persons and also as regards the comparative qualifications of these persons. The Registrar found that the 4th respondent had a longer continuous service than the petitioner and that he acquired the necessary qualifications much earlier than the petitioner. On the basis of this finding, the Registrar came to the conclusion that the Resolution of the committee of the 3rd respondent-Bank on the question of seniority was unsustainable. In my opinion the conclusions drawn by the Registrar is justified by the evidence before him. This Court will not, in its writ jurisdication, embark on a reapprisal of such evidence or weigh it in a golden scale or attempt to draw an inference different from that which the Registrar had drawn. Accordingly Ext. P. 1 order is perfectly valid. For the same reasons, I hold that the order of the 2nd respondent, Ext. P 2, is also valid.

12. In the result, I dismiss the original petition. I make no order as to costs.


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