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Narendra Kumar Tyagi Vs. Rajasthan State Co-operative Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1388 of 1976
Judge
Reported in1985(2)WLN75
AppellantNarendra Kumar Tyagi
RespondentRajasthan State Co-operative Tribunal and ors.
DispositionPetition allowed
Cases Referred and U.P. Cooperative Cane Union Federation v. Liladhar
Excerpt:
.....had clearly held that the registrar had jurisdiction to enter-fain this petition as it is a dispute touching the management of the society, and this point of the order could not be challenged or set aside by the tribunal section 123 provides for appeal to the tribunal against the order of the registrar. after framing of the bye-laws laying down the conditions of the service, person entering into the service of the society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like the conditions of service specifically forming part of the contract of service while dealing with the powers of the registrar, their lordships further observed that while dealing with the dispute under section 61 of the..........act shall be final so far as the question whether the dispute referred to the registrar, is the dispute touching the constitution, management or business of the co-operative society and the said decision of the registrar cannot be called in question in any court, he has also placed reliance on section 75(3) of the act which runs as under:if any question arises whether a dispute referred to the registrar under this section is a dispute touching the constitution management or the business of a co-operative society, the decision thereon of the registrar shall be final and shall not be called in question in any court.since the dy. registrar while disposing of the application of the petitioner raising the dispute had clearly held that the registrar had jurisdiction to enter-fain this.....
Judgment:

Surendra Nath Bhargava, J.

1. The petitioner was appointed as Manager of the Marketing Co-operative Societies by the Registrar of the Co-operative Societies and was posted at Sawai Madhopur Co-operative Society (here in after called as the Society). The petitioner was suspended by the Chairman of the Society on January 16 1969 in pursuance of the resolution passed by the Board of Directors. Later on the petitioner was served with the charge sheet and ultimately his services were terminated by the order dated June 24, 1969 Annexure 5, by the President of the Society. There after, the petitioner raised the dispute Under Section 75 of the Rajasthan Co-operative Societies Act, 1965 (here in after called as the Act) before the Registrar of the Co-operative Societies, The said matter was referred to the Dy. Registrar before whom the Society filed a reply and the Dy. Registrar rejected the petitioner's petition making the dispute vide his order dated February 16, 1971. The petitioner filed an appeal against the order dated February 16, 1971 before the Rajasthan State Co-operative Tribunal (here in after called as the Tribunal). The tribunal also dismissed the appeal vide their order dated November 15,1975. Thereafter, the petitioner filed a review application before the Tribunal which was also rejected by the order dated April 17, 1976. Hence the present writ petition has been filed on August 1, 1976 before this Court for getting the orders dated February 16, 1976, November 15, 1975 and April 17, 1976 quashed and to accept the dispute raised by the petitioner before the Registrar. The writ petition was admitted by this Court on August 12, 1976. A reply to the writ petition was filed on October 8, 1976. The writ petition has come up for hearing now.

2. Learned counsel for the petitioner has submitted that the order of the Tribunal dated November 15, 1975 is liable to be quashed and since the Tribunal has seriously erred in holding that the dispute between an employee and employer cannot be raised before the Registrar. He has submitted that the order of the Registrar Under Section 75 of the Act shall be final so far as the question whether the dispute referred to the Registrar, is the dispute touching the constitution, management or business of the Co-operative society and the said decision of the Registrar cannot be called in question in any Court, He has also placed reliance on Section 75(3) of the Act which runs as under:

If any question arises whether a dispute referred to the Registrar under this Section is a dispute touching the constitution management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.

Since the Dy. Registrar while disposing of the application of the petitioner raising the dispute had clearly held that the Registrar had jurisdiction to enter-fain this petition as it is a dispute touching the management of the society, and this point of the order could not be challenged or set aside by the Tribunal Section 123 provides for appeal to the Tribunal against the order of the Registrar. Section 123(6) reads as under:

Any person aggrieved by:

(a) any decision of the Registrar made under clause (a) of Sub-section (1) of Section 77; or

(b) any decision of the person invested by the Government with powers in that behalf under clause (b) of Sub-section (1) of Section 77; or

(c) any award of an arbitrator under clause (c) of Sub-section (1) of Section 77; or

(d) any order made Under Section 120 with a view to prevent any delay or obstruction in the exceution of any decision or award that may be made Under Section 77; or

(3) an order of the Registrar removing a member of a Co-operative Society or debarring a member from election or appointment to a Committee Under Section 36;

may within sixty days from the date of the decision award or order as the case may be, appeal to the Tribunal.

Explanation.--The Tribunal hearing an appeal under this Act exercise all the powers conferred upon an appellate court by Section 97 and Order XLI in the First Schedule to the Code of Civil Procedure, 1908.

Learned counsel for the petitioner has submitted that appeal before the Tribunal lay only against the decision of the Registrar made under clause (a) or (b) or (c) of Sub-section (1) of Section 77 or an order passed Under Section 120 or an order passed Under Section 136, but since the order passed by the Dy. Registrar holding that the dispute related to the management of the society is not covered by clauses (a) (b) or (c) of Sub-section (1) of Section 77, the Tribunal could not have entertained the preliminary objection that the matter cannot be referred as a dispute touching the management of the society. Learned counsel for the petitioner further submitted that the case is not covered by the decision of the Supreme Court in Co-operative Central Bank Ltd. and ors. etc. v. Additional Industrial Tribunal, Andhra Pradesh : (1969)IILLJ698SC and the Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad and Anr. : [1979]2SCR1023 . Learned Counsel for the petitioner has frankly conceded that the present case is not covered by the dispute touching the business or the constitution of the society. He has drawn my attention to Chapter IV of the Act which deals with the management of the Cooperative Societies covering Sections and also to Chapter to IV of the Rajasthan Co-operative Societies Rules (here in after called as the Rules). Chapter IV of the Rules deals with management of the society. He submits that all the matters covered by Chapter IV of the Act and Chapter IV of the Rules shall be deemed to have been touching with the management of the society. Rule 41 deals with the officers and employees of the co-operative society and provides for appointment, conditions of service and suspension and dismissal of the employees. Therefore, his submission is that any matter with regard to services of an officer of the society shall be covered with the dispute touching the management of the society. In this connection he has placed reliance on Section 2(j) definition clause giving the definition of officer which includes a manager of the society. He is included in the definition of an officer provided Under Section 2(j). He has further submitted that this argument has not been considered either in Co-operative Central Bank Ltd.'s case and Gujarat Co-operative Land Development Bank Ltd.'s case (supra). He also placed reliance on The National Co-op. Consumers Federation Ltd. New Delhi v. Delhi Administration : AIR1971Delhi141 . He has further submitted that the Rajasthan High Court has also in Bhilwara Sahakari Upbhokta Wholesale Bhandar Ltd v. Prescribed Authority and Anr. 1982 RLR 927 held that the dispute relating to the termination of an employee of the cooperative society is not touching the constitution management or business of the cooperative society, and no dispute can be raised under Section 75 before the Registrar. He has further placed reliance on Kendriya Sarvoduy Sahakari Sangh Ltd. Jaipur v. Jawan Singh Ranawat 1967 RLW 73 wherein this Court had held that the manager of a cooperative society will also be a workman for the purpose of Industrial Disputes Act, and since in the present case there is no evidence as to what were the duties of the petitioner and designation alone is not decisive and therefore this Court cannot go into the question whether the industrial dispute can be raised by the petitioner. He has further submitted that reinstatement cannot be granted to the petitioner even by the civil court in view of the number of Supreme Court authorities including Executive Committee of UP State Warehousing Corporation Lucknow rs. Chandra Kiran Tyagi AIR 1970 SC 1244 and therefore the Registrar could not have granted relief of reinstatement to the petitioner. Reinstatement can be granted only by the Labour Court. Normally a contract of personal service is not enforceable by an order of specific performance. The remedy is to one for damages for wrongful dismissal. The second exception to normal rule is in case of public servant who had been dismissed in contravention of Article 311 of the Constitution or reinstatement under the industrial law I have considered the arguments of the learned counsel for the parties and have also gone through the record and also through the order of the Tribunal dated November 15, 1975 and various authorities cited at the bar D.M. Co-operative Bank v. Dalichand : [1969]1SCR887 was a case wherein the Supreme Court has only dealt with the dispute through the business of the society and in that case it was held that the dispute between a tenant and the member of the bank on a building which has subsequently been acquired by the bank cannot be said to be a dispute touching the business of the bank. In that authority while interpreting the word 'touching' they have said that the word 'touching' is very wide and would include any matter which relales to or concerns the business of a society. In the present case the petitioner has not argued that the matter relates to a dispute touching the bussiness of the society and therefore this authority is not of much help to the respondents. Coming to the Co-operative Central Bank Ltd. and Ors. v. Additional Industrial Tribunal, Andhra Pradesh, Hyderbad and Ors. : (1969)IILLJ698SC which was a case of an employee of the co-operative society. It was held that the dispute relating to alteration of conditions of service cannot be held to be a dispute touching the business of the society. It has further been held in that authority that bye-laws of a co-operative society framed in pursuance of the provisions of the Act cannot be held to be law or to have the force of law. The Supreme Court has further observed that bye-laws laying down the conditions of service of an employee of the society would be binding over the society and the employees of it in the same manner as the conditions of service laid down be a contract between the parties. After framing of the bye-laws laying down the conditions of the service, person entering into the service of the society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like the conditions of service specifically forming part of the contract of service While dealing with the powers of the Registrar, their Lordships further observed that while dealing with the dispute Under Section 61 of the Act Registrar is bound to decide the dispute in accordance with existing bye-laws. If the dipute relates to alteration of the conditions of service laid down by the bye-laws the Registrar will be incompetent to grant the relief claimed. In this case also the Supreme Court has not considered the question as to whether the dispute by the employee challenging removal shall be said to be touching the management of the society and therefore this authority is also of not much help to the respondents. Similarly National Co-operative Consumer's Federation Ltd. New Delhi v. Delhi Administration, Delhi and Ors. AIR 1971 Delhi 111 has also discussed the phrases 'touching the business of the society' and it was held in that dispute between the society and employees does not come within the purview of touching the business of the society'. So this case also does not help the respondent. The Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad and Anr. : [1979]2SCR1023 was a case of an employee of the society challenging his removal on the ground of an act of victimization and the workman had claimed the relief of reinstatement in service with back wages. In that case of course that Supreme Court after considering the meaning of the word 'management' has come to the conclusion that the dispute raised in that case cannot be said to be touching the management of the society. Section 96(1) of the Gujarat Co-operative Societies Act and Section 61 of the Andhra Pradesh Co-operative Societies Act and Section 91 of the Maharshtra Co-operative Societies Act are almost identical to Section 75 of the Rajasthan Act. Their Lordships of the Supreme Court in that case had focussed their attention on the expression 'management of the society' as used in Section 96(1) of the Gujarat Act. Considering the grammatical meaning of the term management their Lordships of the Supreme Court observed that one meaning of the term management is the Board of Directors or the apex body or Executive Committee at the helm which guides, regulates, supervises, directs and controls the affairs of the society and in this sense it may not include the individuals who under the over all control of the governing body or committee run the day to day business of the society. They also consider another meaning of the term 'management' which may be the act or acts of managing or governing by directions, guidance, superintendence, regulation and control of the affairs of a society. They rejected the contention that a still wider meaning of the word 'management' so as to include the entire staff of the servants, and workmen of the society. In the present case, the order terminating the service of the petitioner has been challenged on two grounds namely, (i) that since the petitioner was appointed by the Registrar of Co-operative Societies under bye law No. 43, he could not have been removed by the Board of Directors, secondly, bye-law 41(7) requires previous sanction of the Registrar of the Cooperative Societies before the petitioner could be suspended or removed from the service and since no previous sanction of the Registrar was obtained before removing the petitioner, the order removing the petitioner was not valid being in contravention of bye-law 41(7). The Dy. Registrar who was dealing with the application filed Under Section 75 has held that he had jurisdiction to entertain the petition Under Section 75 as the matter will be covered by expression touching the management of the society and thereafter on merits has rejected the contention of the petitioner and has held that the Board of Directors was competent to remove him from service and has not given any specific finding as to whether the previous sanction was obtained from the Registrar before passing the order of removal. The Tribunal while hearing the appeal against the order of the Dy. Registrar did not go into merits of the case and accepted the preliminary objection that since the matter did not come within the purview of the expression touching the management of the society, the reference Under Section 75 was not maintainable. Even before this Court the respondents have not replied on the merits of the dispute and they have mainly relied on legal objection that the present case does not come within the purview of the expression touching the management of the society. I need not go into the question whether the petitioner is an officer or a workman or that he could get relief to reinstatement under the industrial law by the Labour Court or the Industrial Tribunal. The only point for consideration is as to whether the present case can be said to be within the purview of expression of touching the management of the society. Learned counsel for the petitioner has relied on Navagarh Co-operative Central Bank Ltd. v. Narayana Rath and Ors. : AIR1975SC1895 for the purpose that it shall be for the Registrar to decide whether the matter is covered or is within the purview of expression the dispute touching the constitution management or business of the society. He also placed reliance on Everest Apartments Cooperative Housing Society Ltd., Bombay v. State of Maharashtra and Ors. AIR 1966 SC 144 wherein their Lordships of the Supreme Court have observed that the word 'final' means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on the Government. Learned counsel for the petitioner has also placed reliance on a Division Bench Judgment of this Court in Rajasthan State Cooperative Bank Ltd. v. H.N. Gupta and Ors. A.I.R. 1981 Raj 39, wherein the Division Bench has held that the word business shall be interpreted in a wide sense and the dispute regarding termination of the services of paid employees other than the dispute regarding the disciplinary action taken by the society would be dispute touching the business of the society. These observations were made while dealing with Section 61 of the Rajasthan Cooperative Societies Act, 1953 (old Act) in which the words management or constitution were not present. Learned counsel for the petitioner has submitted that if under the old Act where the only phrase was 'dispute touching the business of society' was there, if the matter relating to termination of an employee could be included in that phraseology the scope of Section 75 of the Act is much wider after including the words management, constitution of the society. In H.N. Gupta's case the Division Bench of this Court has considered all the cases except, the Gujarat State Cooperative Land Development Ltd. v. P.S. Mankad and Anr. : [1979]2SCR1023 and thereafter they had come to that conclusion. The recent judgment of this Court in Bhilwara Sahkari Upbbokta Wholesale Bhandar Ltd's case (supra) the learned single Judge after considering D.M. Cooperative Bank's case Cooperative Central Bank's case, Gujarat State Co-operative Land Development Bank Ltd.'s case and U.P. Cooperative Cane Union Federation v. Liladhar : (1981)ILLJ156SC has observed that the word 'management' cannot be given a wide connotation so as to include the dispute between an employee and society in regard to reinstatement in service. In the case before the learned single Judge, Shyamlal, who was appointed as Assistant Accountant-cum-clerk in the Sahakari Bhandar was removed from service and thereupon he had made an application under Section 28A of the Rajasthan Shops and Commercial Establishments Act, 1958 before the Prescribed Authority under that Act who had allowed his application and held that the termination of the service of Shyamlal was in contravention of Rules and therefore directed that the respondent No. 2 may be reinstated in service and also granted payment of back wages. It was against this decision that the Upbhokta Bhandar had come in writ petition before this Court challenging the order passed by the Prescribed Authority under Section 28 A of the Rajasthan Shops and Commercial Establishments Act. While dealing with this question the court made the above observations. The learned Single Judge dismissed the writ petition.

3. A perusal of Chapter 4 of the Rules particularly Rule 41 which deals with the officers and employees of the Cooperative Society indicates the intention of the legislature. These rules which are framed under Section 148 of the Act authorise the State Government to make rules for the purpose of administration of Act. Chapter IV of the Rules where Rule 41 finds place deals with the management of the Cooperative Society. Therefore in my view matter relating to the officers of the society with regard to their service conditions shall be covered and shall be within the purview of the term touching the management of the Society. Similarly rules also exist in the Gujarat Act which deals with the management of the society and Section 96 specifically is in regard to appointment of the officers and their conditions of service. Though Gujarat State Cooperative Land Development Ltd.'s case considered Gujarat Co-opeative Societies Act, but this argument was not referred to before their Lordships of the Supreme Court and therefore they resorted to the grammatical meaning of the word management. If Section 76 would have been brought to the notice of their Lordship of the Supreme Court, they may not have referred to the general meaning or grammatical meaning of the word management as they have done while deciding that case. In view of my decision on the interpretation of the word touching management of the society, I need not decide the other points raised before me because the order of the learned Tribunal dated 15-11-1975 has to be set side and the case is remanded back to the Tribunal to decide the appeal of the petitioner against the order dated 16-2-1971 on merits in accordance with law. Since the petitioner was removed from service by the order dated 26-4-1979. I think it proper to direct the tribunal to decide the case within 4 montns. The parties should appear before the tribunal on July 6, 1985.

4. The writ petition is allowed with no order as to costs.


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