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Tulsi Ram Vs. Upbhokta Sahkari Bhandar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 574 of 1974
Judge
Reported in1978(11)WLN639
AppellantTulsi Ram
RespondentUpbhokta Sahkari Bhandar
DispositionAppeal dismissed
Cases ReferredDeccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain and Ors.
Excerpt:
payment of wages act, 1936 - section 17--memo of appeal accompanied with certified copy of direction filed within time--amount deposited in time but certificate of deposit produced after expiry of limitation as it was not issued--held, appeal is not time barred.; the employer deposited the amount in pursuance of the direction with the authority before the expiry of the period of the limitation on filing the appeal, and a certificate could not be filed along with it, as it was not issued at the time when the amount was deposited and even it was not ready on january 5, 1973, as it was signed by the authority on january 9, 1973.; an appeal under section 17(1) of the act, should be preferred in duplicate in the form of a memorandum and shall be accompanied with a certified copy of the order.....s.k. mal lodha, j.1. this revision by the employee, has been preferred against tie order, dated december 6, 1973, passed by learned district judge, jodhpur in an appeal, which was filed under section 17 of the payment of wages act (no. 4 of 1936)(hereinafter referred to as 'the act').2. the facts relevant for the disposal of this revision are these : the petitioner was an employee of the nonpetitioner up bhokta sahkari bhandar, ward no 25 ('the bhandar' hereafter) on a salary of rs. 100 per month he was not paid his salary for the period from september 1, 1%s to november 10, 1964 without any reason and was placed under suspension with effect from november 11, 1964 the case of the petitioner further is that since then, up to october 31, 1968, he was not paid any subsistence allowance or.....
Judgment:

S.K. Mal Lodha, J.

1. This revision by the employee, has been preferred against tie order, dated December 6, 1973, passed by learned District Judge, Jodhpur in an appeal, which was filed under Section 17 of the Payment of Wages Act (No. 4 of 1936)(hereinafter referred to as 'the Act').

2. The facts relevant for the disposal of this revision are these : The petitioner was an employee of the nonpetitioner Up Bhokta Sahkari Bhandar, Ward No 25 ('the Bhandar' hereafter) on a salary of Rs. 100 per month He was not paid his salary for the period from September 1, 1%S to November 10, 1964 without any reason and was placed under suspension with effect from November 11, 1964 The case of the petitioner further is that since then, up to October 31, 1968, he was not paid any subsistence allowance or salary. The petitioner also stated that he was assured on a number of occasions that he would be paid the subsistence allowance or the salary, bat that was not done. In these circumstance, he filed an application under Section 15(2) of the Act before the Authority appointed under the Act at Jodbpuron November 7, 1968. He claimed wages for the period from September 1, IMS, to October 31, 1968 i.e. for 62 months @ 00/-, amounting to Rs. 6200/-. Be also claim d compensation. In para 4A of his application, the petitioner stated that he was in constant touch with the rton petitioner who asiswed early payment and, therefore, the delay in presenting the application may be condoned. The non petitioner submitted his written statement dated January 6, 1969 The application was resisted, inter alia, on the ground that the petitioner was n )t validly employed as an employee of the non petitioner, that the claim was barred by time and that 'he Authority had no jurisdiction to entertain the application. It was also pleaded that one month after the suspension, the petitioner did not report himself of duty and engaged himself in service, and as such he was not entitled to any subsistence allowance with respect to the period of suspension. The following five issues were framed bf the Authority.

1. Whether the claim beirg time barred is not maintainable?

2. Whether the claim cannot be heard under the Payment of Wage Act as the opposite party is a co operative society & not an industrial establishment?

3. Whether the Registrar, Co-operative Societies is a necessary party?

4. Whether the applicant is entitled to get a sum of Rs. 6260/- as claimed and compensation?

5. Relief?

The Authority, vide its order dated November 17, 1972, recorded the following findings:

1. There was a genuine ground for the petitioner in not filing the application under Section 15(2) of the Act within limitation and, therefore, delay is condoned.

2. That it had jutisdiction to entertain the application under the Act

3. That the Registrar, Co-operative Societies, is not required to be impleaded as a necessary party.

4. That the petitioner is entitled to wages for the period from 1-9-1963 to October 31, 1968 @ Rs. 100/- amounting to Rs. 6200/-

5. That the application is entitled to compensation amounting to Rs. 25/-.

The Authority, therefore, directed the employer non-petitioner to pay the following amounts to the employee-petitioner within a period of 15 days from the date of the order:

a. Wages Rs. 6200/-b. Compensation Rs. 25/-c. Costs Rs. 30/-

3. Being aggrieved by the aforesaid order aid direction of the Authority, the employer petitioner preferred an appeal under Section 17 of the Act, before the District Judge., jodhpur. The learned District Judge, vide his judgment, dated December 6, 1973, allowed it in part and modified the order and direction passed 'by the Authority and, instead directed the payment of Rs. 1184/- upto October 31, 1968. He, however, maintained the order of the Authority in respect of the costs and compensation. Against the appellante-judgment, the employee petitioner has filed this revision. It may be stated here that the employer-non-petitioner remained satisfied with the judgment dated December '6, 1973, passed by the learned District Judge in as much as no revision against the judgment was preferred by it.

4. I have heard Mr. M.R. Singhvi, learned Counsel for the petitioner and Mr. I.C. Maloo, learned Counsel for the non-petitioner and have also gone through the record of the case.

5. Before I examine the various 'contentions, raised by the learned counsel for the parties, it will 'be' useful to state the 'findings', Which have been recorded by the learned District Judge. They are as under:

a. That a dispute between, the society, and its employee, regarding wages would not be a dispute touching the 'business' of society and therefore, it cannot be said that Under Section 75 of the Cooperative Societies Act, 1965 (hereinafter referred' to as 'the' Act Of 1965'), only the Registrar has jurisdiction to 'decide such dispute.

b. Because Of the notification No F4 (8)Fd/E/DR/65 dated September 6, 65, issued under Section 20 of the Raj Shops & Commercial Establishment Act, 1958 was applicable to the employees & the Bhandar & thus the Authority under the 'Payment of Wages Act had jurisdiction to decide the claim.

c. That the Court, hearing an appeal, under Section 17 of the Act can examine and set aside the order condoning the delay when it is incorrect and perverse.

d. That the claim of the petitioner beyond 12 months preceding the date of the application Under Section 15(2) of the Act, was not within limitation Thus, the claim for subsistence allowance upto the period 6.11-67 is not within limitation & the petitioner is entitled 'to only Rs. 1184/- as subsistence allowance for 12 months precedings Nove. 7, 1968.

e. That the non-petitioners is not entitled to an order for remind for leading evidence on various points, oh the basis of which, it wanted to challenge the rights of the petitioner to get the subsistence allowance.

6. It was contended by the learned Counsel for the petitioner that the appeal, before the learned District Judge, under Section 17 of the Act, was not competent in as much as it was not, accompanied a certificate by the Authority to the effect that the employer has deposited the amount payable under the direction appealed against. I nay state that the learned District Judge, over-ruled the objection and condone the delay and held that the appeal was within limitation. The appeal was filed on January 5, 1973. The amount was deposited with the Authority on January 2, 1973. The certificate was signed by the Authority under the Act on 9.1.1973 and the certificate was produced in the court on 12-1-73 It was mentioned in para 21 of the memo of appeal that the amount had been deposited on 2-1-73. His therefore clear that the employer deposited the amount in pursuance of the direction with the Authority before the expiry of the period of the limitation for filing the appeal, & a certificate could not be filed along with it, as it was not issued at the time when the amount was deposited arid even it was not ready on January 5, 1973, as it was signed b> the Authority on January 9, 1973 Soon after the certificate was issued, it was produced in the Court On January 12, 1973.

7. Section 17(1A) of the Act reads as under:

No appeal under Clause (a) of Sub-section (1) shall lie unless the memorandum of appeal is accompanied by a certificate by the Authority to the effect that the appellant has deposited the amount payable under the direction appealed against.

It will also be useful to refer to the provisions, of Section 30(1) of the, Workmen's Compensation Act, 1923 (hereinafter referred to as the Act of 1923),. which reads as under:

Section 30. Appeals (1) An appeal shall He to the High Court from the following orders of the Commissioner, namely,

(a) ...

(b) ...

(c) ...

(d) ...

(e) ...

Section 30(2) of/the Act of 1923, provides that the period of limitation for an appeal under. Section 30(1) shall b sixty days., Sub-section (3); of Section 30 lays down that the provisions of Section 5, of the Indian Limitation Act,: 1908, shall be applicable to appeals under Section 30(1).

8. The words used in Section 17(1A) of the Act, are 'shall lie'. A serious question arises as to What' these words signify?' Do they mean that after an appeal has been filed within the period of limitation allowed by law, it would be barred by time merely because it is not accompanied with certificate by the Authority to the effects that the appellant has deposited the amount, payable under the order appealed against Section, 17(1) of the Act; provides., that no appeal under Clause (a) of Sub-section (1) shall lie unless it is accompanied, by a certificate . The limitation for filing an appeal is provided, in Section 17(1) of the Act and it says that the appeal may be preferred within ,30, days of the date on which the order or direction was made. In my opinion, if the certificate is riot produced at some stage before1 the hearing of the appeal, if will not be entertained. To my mind, the limitation of 30 days, prescribed in Section 17(1) applies to the preferring of an appeal. Here, I may read Rule 12 of the Rajasthan Payment of Wages (Procedure) Rules, 1961 (hereinafter refened to as the Rules of 1961):

12 Appeals - (1) An appeal shall be preferred in duplicate in the form of a memorandum, on copy of which shall bear the prescribed court fee setting forth concisely the grounds of objection; to the order dismissing either wholly or in part an application made under Sub-section (3) of section for a direction made under subsection (3) or Sub-section (4) of the Section as the case may be and shall be accompanied by certified copy of the said order or direction....

(2) When an appeal is lodged, a notice shall issue to the respondent in Form G.

It is clear from Sub-rule (1) of Rule 12 of the Rules of 1961 that an appeal under Section 17(1) of the Act, should be preferred in duplicate in the form of a memorandum and shall be accompanied with a certified copy of the order or direction appealed against It is true that the certificate by the authority to the effect that the appelant had deposited the amount payable under the under or direction appealed against, is a very material document which the law enjoins to be filed in order that the appeal may be entertained, but the non-production of the certificate within the period of limitation, prescribed for preferring the appeal, would not make it barred by time. In this case, at the risk of the repetition, it may be mentioned that the memorandum of appeal accompanied by the certified copy of the order appealed against, presented on January 5, 1973, was within limitation It was mentioned in the memo of appeal that the amount had been deposited on January 2, 1973. After the presentation of the appeal, the office report was called on January 8, 1973. It was reported by the office, amongst others, that the certificate showing that the amount had been deposited, was not produced. The learned District Judge on January 8, 1973 ordered that this and the other defects may be removed by January 12, 1973 On January 12, 1973, reply to the objections raised by the office was submitted and in para 2, it was mentioned that the certificate by the Authority is submitted herewith. This reply was also accompanied by a certificate dated 9-1-1973 in which it was certified that the non-petitioner had deposited a sum of Rs. 6255/- with the Authority on January 2, 1973 as per order dated November 17 1972 passed in case No 233 of 1998, Tulsi Rim v. Up Bhokta Sahkari Bhaadar, Ward No 25, Jodhpur. Subsequent to this, the learned District Judge recorded the following order dated January 12, 1973 on the memorandum of appeal:

odhy vihykUV Jh bUnjpUn usAuthority dk Certificate is'k fd;k A pawfd ;g vihy dksijsfVo lkslk;Vh dh vksj ls is'k dh xbZ gS blfy, dksVZ Qhl dh vko;'drk ugh gS A vihy ntZ jftLVj gksA

Thereafter, the appeal was registered and summons was ordered to be issued to the respondent.

9. From these facts, it is clear that the memorandum of appeal, duly accompanied by the certified copy of the order or direction appealed against, was submitted within limitation, and that the amount payable under order or direction was also deposited with the Authority before the appeal was filed.

19 Section 30(1) of the Act of 1923 came up for consideration in Ram-Nivas Khandelwal and Anr. v. Mt. Mariam : AIR1951Pat260 in which Sarjoo Prasad J, as he then was, observed as under:

The limitation of sixty days applies to the preferring of an appeal. It is ro doubt true that the certificate in question may be a very material document which the law enjoins to be filed in order that the appeal may be entertained, but I feel doubtful whether merely because of the non-production of this certificate within the period of limitation, the appeal will become barred.

As Section 5 of the Limitation Act was applicable to the appeals, preferred under Section 30(1), the delay was, however, condoned under the provisions of Section 30(3) of the Act of 1923 on the ground that the appellant in that case should be given benefit of the period taken in securing the certified copy of the order, passed by the Commissioner Immt state that the question if a memorandum of appeal unaccompanied by a certificate, contemplated by the last proviso of Section 30(1) of the Act of 1923, would in law, amount to a proper presentation of appeal, has been answered differently in the Patna High Court. Reference maybe made in this connection to Ramnivas's case : AIR1951Pat260 , Bhurangya Coal Co Ltd. v. Sahebjm Mian and Anr. : (1957)IILLJ522Pat and The Bihar Journals Ltd and Anr. v. Nityanandsingh : AIR1959Pat112 Provisions of Section 30(1) also came up for interpretation in B.P. Nandy of General Manager East India : AIR1954Cal453 . In that case the compensation awarded was not deposited when the memo of appeal was filed. A preliminaiy objection was taken that the appeal was not maintainable, in as much as in the absence of a deposit of the amount of the compensation required by the third proviso to Section 30(1) of the Act of 1923, no appeal lay from the order passed by the Commissioner. While upholding the objection, it was observed:

The principle is that if the appeal be such that, by it the workman's right to the compensation awarded to him is placed in jeopardy, security for the workman must be provided for by the deposit of the amount of compensation and such a deposit would be essential to the maintainability of the appeal. If, on the other hand, the workman's right to the compensation awarded does not come into question in the appeal at all, there is no risk to the workman's getting the compensation awarded to him and there is thus no necessity for requiring anyone, preferring such an appeal, to deposit the compensation maney.

The learned District Judge has referred the case reported in Sada Ram and Anr. v. Chhotu Rum . He however condoned the delay in Sling the certificate under Section 5 of the Limitation Act and observed that the appellant was sincere in depositing the money with the Authority, that he could not file the certificate in time because the same was issued to him on January 9, 1973 and that soon after, he produced the certificate in his Court on January 12, 1973.

11. In Sada Ram's case , the amount of compensation was deposited with the Commissioner, after the expiry of the period of limitation for filing an appeal and it was contended that delay may be condoned under Section 5 of the Limitation Act, as S 5 is applicable. The facts in that case were that the omission was pointed out to the appellants' counsel well within the period of limitation (i.e. 25 days before limitation was due to expire), but still the certificate was not produced within time and, therefore, learned Judicial Commissioner was of the opinion that the appellants in that case were very negligent and acted without due care and attention and they did not take action prompt even after being asked to furnish the certificate. He, therefore, declined to show any indulgence to them (appellants) and refused to condone the delay under Section 5 of the Act.

12. In Bhurangya Coal Co.'s case : (1957)IILLJ522Pat , the Commissioner delivered the order under appeal on August 27, 1951' and, thereafter the appeal was filed on November 9, 1951. The appeal was then as fifed obviously barred by time under Section 30(2) of the, Act of 1923. For that reason application for the condonation of delay as provided in Section 30(3) of the Act of 1923,was also filed along with the memorandum of appeal mentioning therein that an application for the necessary ceitificate by the Commissioner as, required by the proviso to Section 30(1)(a) of the Act 1923, had already been made. The Court on hearing the application condoned the delay and admitted the appeal. It, however, appeared that even by the time the order condoning the delay, was passed, the certificate referred to in the petition had not in fact been field in the Court. It was for the first time, filed on January 16, 1955 in the course of the hearing of that appeal., In the cercumstances of that case, it was held that appeal as presented was time barbed, The learned Judge, however, having regard to the circumstance of that case, condoned the delay in filing the certificate under Section 30(3) as Section 5 of the Limitation Act was applicable to the appeals.

13. In Bihar Journals Ltd's case : AIR1959Pat112 an objection was taken oil behalf of the impendent that no certificate by the Commissioner was filed in that case on behalf of the appellants as Required by Section 30(1) of the Act of 1923. An application was filed on behalf 6f the appellants' under Section 5 of the Limitation Act, praying that the delay in filing the certificate may be condoned. The application was made on August, 1, 1958 and the reason given for the delay was that an application for, certificate to the Commissioner, Workmen's Compensation, was filed on March 29, J955, The learned Judges rejected the application for condonation of delay under Section 5 of the Limitation Act as, according to them, no sufficient ground was made out on behalf of the appellants for nonfiling the certificate, required by Section 30 of the, Act of 1923. An additional point was also taken into consideration by the learned Judges that the certificate filed along with the application by the appellants on August 1, 1958 was not in accordance with the provisions of Section 31(1) of the Act of 1923. The learned Judges were of the opinion that the challan filed by the appellants along with the original memorandum of appeal does not comply with the requirements of Section 8(2) of the Act of 1923 of Rule 9 of the Workmen's Compensation Rules and, therefore, they concluded that theer was no compliance with the mandatory provisions of the third proviso to Section 30(1) of the Act. All the aforesaid decisions ate distinguishable.

14. In Sailendra Kimar Duila alias S.K. Dutta v. General Mandger, Gauhati 1973 Lab. Ind. Cases 383, it was held that the learned District Judge had no jurisdiction to entertain the appeal in absence of the certificate showing that the appellant has deposited the amount In that case, no challan showing the deposit was produced. In those circumstances it was observed as under:

We are, therefore, not required to consider a case as to what will happen if the certificate is lacking but the deposit has been made. It is clear that by an amendment of the Act the right of appeal has been abridged and precondition of deposit of the directed amount is insisted under Section 17(1A) before the District Judge is competent to entertain the appeal under Section 17(1)(a) if otherwise admissible under that Sub-section. We are, therefore, clearly of the opinion that in this case, the learned District judge had no jurisdiction to entertain this appeal.

This decision Is not of any help to the learned Counsel for the petitioner for it was rendered in the peculiar circumstances of the case.

15. In this case I am unable to hold that the memo of appeal which was filed on January 4, 1973 was not properly presented as it was not accompained by the certificate as required by Section 17(1A) off the Act. In other words, the non-production of the certificate within the period of limitation with the appeal, when amount in pursuance of the direction was deposited, before Sling the appeal, it cannot be treated as having become barred Section 29(3) of the Limition Act, 1963 read as under.

(2) Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) Shall apply only >n so far as, and to the extent to which, they are not expressly included by -such special or local law.

Sub-section (2) of Section 29 provides that when a special or local law provides for any suit, appeal or application, a period of limitation different from the period prescribed by the Limitation Act, it is the provision in the special or Local Act that will prevail and not the provisions of the Limitation Act except to the extent specified in the section; viz. (1) that Section 3 shall apply as if the period prescribed by the special or Local law were the period prescribed by the Schedule to the Act, and (2) Sections 4 to 24 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law.

16. Thus under the Limitation Act, 1963, Section 5 has been specifically .made applicable by Section 29, Sub-section (2), it can be availed of for the purpose of extending the period of 'limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not preferring the appeal or application within the period of limitation. Learned Counsel appearing for the petitioner could not point out any provision from the Act to show that Section 5 of the Limitation Act, 1963 has been expressly excluded. In these circumstances, even otherwise, the learned District Judge rightly condoned the delay under Section 5 of the Limitation Act, WSS. The decisions cited by the learned Counsel for the petitioner to show that Section 5 of the Limitation Act is not applicable Ate. under Section 29(2) of the Limitation Act, 1908 There is an important departure made by the Limitation Act, 1963 in so far as provision contained in Section 29(2) is concerned.

17. The next contention that was raised by the learned Counsel for the petitioner is that the learned District Judge (Appellate Authority) had no jurisdiction to re-examine the question of limitation when the Authority had entertained the application under Section 15(2) of the Act and has decided the issue relating to limitation in favour of the petitioner.

18. The Authority had framed issue No. I, which runs as under : 'Whether theelairri being time barred is not maintainable' It recorded its finding relying on the statement of the applicant that there was genuine ground for not filing the application under Section 15(2) in time and, therefore, it condoned the delay. It may be mentioned here that in the deposition on oath, the petitioner has stated that he approached the Authority of the Bhandar for payment but was replied that the payment would be arranged when the matter would be decided and he was further directed to wait for decision. On appeal, it was contended on behalf of the non-petitioner that the Authority was in grave error in condoning the delay and the learned District Judge held that the claim of the petitioner beyond 12 months preceding the application, was not within limitation.

19. The argument of the learned Counsel is based on the wordings of Section 17(1A) of the Act. According to the learned Counsel, under Section 17(1A), appeal lies against an order dismissing either wholly or in part on application made under Sub-section (2), of Section 15, or against a direction under Sub-section (3) or Sub-section (4) of the section. He submitted that the scope of the appeal is limited and therefore, the order condoning the delay in presentation of the application under Section 15(2) of the Act by the Authority, can not be assailed. In support of his argument learned Counsel for the petitioner invited my attention to Hansroj, Octioi Moharrir, Municipal Committee Sangiur v. Municipal Comittee, Sargrur 1973 (2) SLR 489, Prem Narayan Amritlol Varma v. Ditisional Traffic Manager : (1953)IILLJ334Bom and Payment of Wages Inspector M.B. Government and Anr. v. Bramhodatta Bagtodia AIR 1956 MB 152. The view taken in these cases is that an order either condoning the delay or refusing to condone the delay does not amount to a direction under Section 15(3) or 15(4) and as an appeal is pre vided only against such a direction, the decision condoning the delay or refusing to condone it, is not appealable.

20. In the first order-sheet of the case, it was recorded that the claim of the petitioner was barred by limitation and (or that he had moved an application for condoring the delay It was also mentioned that the question of limitation would be decided first. The question of limitation was not decided until the decision of the application on November 17, 1973. The Authority decided issue No. 1 in favour of the petitioner. The finding of this issue was challenge before the learned District Judge, but he disagreed with the reasons given by the Athority. The view taken in Skio Prasad, Aligarh v. Addl districe Judge, Moradabed and Ors. 0043/1962 : AIR1962All144 is that although Section 17 makes no reference to Sub-section (2) of Section 15, it is open to the appellate authority to enter into the question whether the claims Commissioner was justified in condoning the delay under the second proviso to Sub-section (2) of Section 15. This view was followed in Divisional Superintendent Northern Railway Allahbad v. Hukam Chand Jain : (1967)IILLJ70All .

21. I while adopting the view taken in Divisional Personnel Officer, Northern Railway v. Regional Labour Commissioner (Central) Jabdpur 1965 RLW 210 and the aforesaid Allahabad decisions, unhesitatingly hold that it is open to the Appealte Authority while hearing an appeal under Section 17(1) of the Act to enter into a question whether the Authority was justified in condoning relay under Section 15(2) of the Act. With great respect, for the reasons given in Divisional Personnel officer's case (12) and the aforesaid Allahabad decisions. I have not been able to persuade myself to agree with the view taken in Hans-raj's case 1973 (2) SLR 489, Piem Narain's case : (1953)IILLJ334Bom and the Payment of Wages Inspector's case AIR 1956 MB 152.

22. Section 17(2) appears to be very significant in this connection. The legislature has expressly laid down what acts of the Authority under Section 15 would be final subject to an appeal under Section 17(1). No absolute finality was intended to be given to an order condoning delay under Section 15(2). No where under the Act it has been laid down that order cordoning delay shall not be called in question in any manner. It is true that the direction made on an appeal under Section 15(2) has been made appealable and in my opinion this indicates that every step taken by the Authority at an intermediate stage in the proceeding is liable to be questioned in appeal preferred against the direction. From Section 17, it cannot be inferred that the appellae authority while dealing with an appeal has to accept a decision under Sub-section (2) of Section 15 made by the Authority as final. I may mention that the provision in Section 17 is analogous to the provision in the C.P.C. for appeals against decrees The appellate court has all the powers of the trial court according to Section 107 CPC. and this principle should be applied to appeals under Section 17 of the Act.

23. In these circumstances, the contention of the learned Counsel for the petitioner that the learned District Judge had no jurisdiction to examine the question of delay in appeal is devoid of force and is, therefore, rejected.

24. Para 4A of the application under Section 15(2) of the Act reads as under:

The applicant was in constant touch with the opposite party who assured early payment hence delay may kindly be condoned.

No affidavit in support of this allegation was filed along with the application 1 he Bhandar stated, in its reply, that the application is perverse, barred by limitation and absolutely no cause what to talk of sufficient cause has been shown by the applicant for the condonation of delay and as such the application deserves to be rejected The petitioner examined himself as witness in support of the application and he stated as follows -

eS ru[okg ds ckjs es lHkkifr ls dbZ ckj feyk rc dgk fd fu.kZ; gksxk rc nsxs rc rd bartkj djs A

25. The salary was claimed from September 1, 1963 to Nov. 10, 1964 and the application for the claim was filed as late as on November 7, 1968. The salary or the subsistence allowance became due to the petitioner on the expiry of each month. Learned District Judge, was of the opinion that the petitioner has slept over his rights for a period of almost 4 years Having taken into consideration evidence and the circumstances of the case, he learned District Judge rightly concluded that the claim of the respondent beyond 12 months preceding the date of application, was not within limitation The order of the learned District Judge,, in this regard can not be said to be perverse and it is not competent to this Court to correct the errors of fact, however, gross or even error of a law unless the said errors have a relation to the jurisdiction of the Court to try the dispute itself.

26. I maintain the finding of the learned District Judge that there was no ground on which the delay in the present, case could be condoned, and, therefore, he was right in holding that claim for subsistence allowance up to the period November 6, 1961 is not within limitation and the petitioner is entitled to only Rs. J184/ as subsistence allowance for 12 months preceding November 7, 1968.

27. The argument of the learned Counsel for the Bhandar that the Authority could not make an order under Section 15 of the Act as Section 75 of the Act of 1965 bars the jurisdiction of the Authority to entertain any proceedings in respect of the subject matter of the application under Section 15(2) of the Act has no force. This argument was also raised before the learned District Judge. The material portion of Section 75 of the Act of 1965 reads as under:

75 Disputes Which May Be Referred To Arbitration. - Notwithstanding any thing contained in any law ft r the time being in force, if any dispute touching the constitution, management, or the business of a co-operative society arises -

(a)...

(b)...

(c) between the society or its committee and any past committee, any office., agent or employee, or any past officer, past agent or past employe or the nominee, heirs or legal representatives or 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 disput.

The learned Counsel has placed reliance on the decisions reported in Cooperative Society Dhingranwali v. Muhmmad Din AIR 1939 Lahore 301. The Co operative-Housing Society Ltd. and Ors. : AIR1962Bom154 , South Arcot Co-operative Motor Transport Society Ltd. as Syed Batchul : (1964)ILLJ280Mad and Coperative Central Bank Ltd v. Additional Industrial Tribunul Andhra Pradesh : (1969)IILLJ698SC . Learned Counsel appearing for the petitioner, however contended that the claim for wages by the employee is not a dispute touching the business of a Operative Society and, therefore, Section 75 of the Act of 1965 was no bar in entertaining the application under Section 15(2) of the Act He placed reliance on Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain and Ors. : [1969]1SCR887 . A dispute between the Bhandar and its employee regarding the wages, cannot be said to be a dispute touching the business of Society and, therefore, it cannot be said that under Section 75 of the Act of 1965 only Registrar has jurisdiction to decide such dispute. Their Lordships of the Supreme. Court in Deccan Merchant's case : [1969]1SCR887 observed as follows:

It is clear that the word 'business in this context does not mean affairs of a society because election of office-bearers, conduct of general meetings and management of society would be treated as affairs of a society. In this subsection the word 'business' has been used in a narrower sense and it means the actual trading or commercial or other, similar business activity of the society which the society is authorised to enter into, under the Act and its bye-laws.

(Emphasis supplied).

Thus, the claim for wages, or subsistence allowance is not a dispute touching the business of the society (the Bhandar) In this view of the matter, the contention of the learned Counsel for the Bhandar that under Section 75 of the Act of 1965 only the Registrar has jurisdiction to decide the present dispute: covered by Section 15(2) of the Act,, is without force and it must be rejected I may add that the learned District Judge held the petitioner to be entitled to the subsistence allowance for 12 months amount in to Rs. 1184 whereby repelling the contention that Section 75 of the Act bars the jurisdiction of the Authority. The Bhandar did not feel aggrieved by this order in as much as it did not prefer any revision against this order of the learned District Judge questioning the award of Rs. 1184/ to the petitioner.

28. No other point was pressed for my consideration by either of the parties in this revision.

29. The result of the foregoing discussion is that the petitioner has not been successful in making out any case of interference with the order of the learned District Judge dated December 6, 1973.

30. For the aforesaid reasons, I find no merit in this revision application and it is accordingly dismissed. In the circumstances of the case, I leave the parties to bear their own costs of this revision application.


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