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General Manager, Co-operative Super Market Vs. Additional Labour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1977)IILLJ274Mad
AppellantGeneral Manager, Co-operative Super Market
RespondentAdditional Labour Court and anr.
Cases ReferredMotor Union v. Nailathambi
Excerpt:
.....proposition that the industrial employment (standing orders) act 20 of i94g does not apply to co-operative societies. dalichand [1969]1scr887 ,is clearly distinguish able since that related to a case of a co-operative society engaged in house building activities and one of its members and the relationship there, was that of a landlord and tenant. 118 (1969)iillj698sc ;learned counsel appearing on behalf of the banks took us through tae provisions of tae act (andhra pradesh co-operative societies act) to indicate that, besides a local and special act, it is a self-contained act enacted for the purpose of successful working of co-operative societies, including co-operative banks and there ate provisions in the act, which clearly exclude the applicability of other laws if they happen to..........on the ground that the remedy of the second respondent was under section 73 of the tamil nadu co-operative societies act, 1961 (hereinafter referred to as the co-operative societies act) and, therefore, the labour court had no jurisdiction to compute the monetary benefit. this apart, the order passed under the relevant bye laws would be one falling under item i of schedule ii of the industrial disputes act and, there, fore, it had to be adjudicated by way of an industrial dispute under section 10(1) of the act the labour court, overruling the objections of the writ petitioner-society, computed the benefit and held that the second respondent was entitled to repayment of rs. 500 with interest at 4 per cent from 31.10.1966 till date of payment. aggrieved by the same, the present writ.....
Judgment:
ORDER

S. Mohan, J.

1. This writ petition is to quash the order of the Labour Court, Madurai made in Claim Petition No. 276 of 1969, dated 17.3.1972.

2. The short facts leading to the writ petition are as follows: The second respondent was employed as a salesman in the grocery section in the writ petitioner's society from 31.10.1966 to 17.5.1957. As required by the bye-laws he had to pay a security deposit at the time of appointment. Accordingly, he paid a sum of Rs. 503. This was kept in the society to adjust any loss or damage caused as a result of the employee's negligence or misconduct. A stock deficit was found and the liability of the second respondent was fixed at Rs. 389.21 p. To account for this deficit, notice dated 5.1.1968 (Ext. M 3) was issued calling for explanation and ultimately by an order dated 31.5.1968 (Ext. M 4) this sum was adjusted towards the security deposit.

3. The second respondent resigned his service in March. 1967. In June, 1969, he filed a claim petition under Section 33C(2) of the Industrial Disputes Act (hereinafter referred to as the Act) for the return of the security deposit of Rs. 500 and interest of Rs. 77.50 p. at 6 per cent for the period from 31 10.1966 to 3.6 1969. That petition was contested by the writ petitioner-Society mainly on the ground that the remedy of the second respondent was under Section 73 of the Tamil Nadu co-operative Societies Act, 1961 (hereinafter referred to as the Co-operative Societies Act) and, therefore, the Labour Court had no jurisdiction to compute the monetary benefit. This apart, the order passed under the relevant bye laws would be one falling under Item I of Schedule II of the Industrial Disputes Act and, there, fore, it had to be adjudicated by way of an industrial dispute under Section 10(1) of the Act The Labour Court, overruling the objections of the writ petitioner-Society, computed the benefit and held that the second respondent was entitled to repayment of Rs. 500 with interest at 4 per cent from 31.10.1966 till date of payment. Aggrieved by the same, the present writ petition has been preferred.

4-5. Mr. P. Chidambaram, the learned Counsel for the writ petitioner, raises the following submissions; (1) The matter relating to the return of the security deposit between the society and one of its employees is one which will fall within the phrase 'touching the business of the society' under Section 73 of the Co-operative Societies Act. It has been so laid down in Madhava Rao v. Surya Rao : AIR1954Mad103 . In such a case, the Tribunal will be barred from computing the claim under Section 33C(2) of the Act. In support of this submission, the learned Counsel relied on Co-operative Central Bank v. Industrial Tribunal Hyderabad : (1969)IILLJ698SC . The bye-laws of the Co-operative Society which is binding between the petitioner-Society and the second respondent are in the nature of the standing orders and they are covered by Schedule. II, Item I (i) of the Act. That being so, the industrial Employment (Standing Orders) Act 20 of 1946 should be held to be applicable. Therefore, the proper remedy is to raise an industrial dispute and cannot be computed under a claim petition. Even otherwise, this is not a benefit within the meaning of Section 33C(2) of the Act. In other words, there is no entitlement as far as the second respondent is concerned.

Mr. N.G.R. Prasad, the learned Counsel for the second respondent submits that this is not a matter touching the business of the Society and, therefore, Section 73 of the Co-operative Societies Act does not apply and as to what is the meaning of the word 'business' had been laid down in D.M. Co-operative Hank v. Dalichand : [1969]1SCR887 . Even assuming that the Registrar of Co-operative Societies will have jurisdiction to adjudicate upon the same, the remedy available under the Industrial Disputes Act is concurrent. There is no bar to determine that claim by the Labour Court. For this submission, the learned Counsel places reliance on Southern Road-ways (Pvt.) Ltd. v. Venkateswarlu (1970) 37 F.J.R. 316 (Mad). It is a well-settled proposition that the Industrial Employment (Standing Orders) Act 20 of i94g does not apply to Co-operative Societies. The bye-laws are in the nature of a contract and, therefore, there can be no set off. (3) Lastly, it is contended that the language of Section 33C(2) of the Act, is comprehensive in its nature and it includes any money or claim. The security deposit being an amount legitimately due to the workman, the Labour Court has every jurisdiction over this. The ruling in N.B.C. Corporation v. Pritam Singh : [1973]1SCR40 , would support his submission in this regard.

6. I .will now proceed to take up the above submissions in seriatim. Section 73 of the Co-operative Societies Act, so far as it is relevant for our purpose, reads:

73 (1): If any dispute touching the constitution of the Committee or the management or the business of a registered Society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises-

(a)...

(b)...

(D)...

such dispute shall be referred to the Registrar for decision.

7. In the instant case, undoubtedly, during the employment of the second respondent in the grocery section, a stock deficit was noticed and his liability came to be fixed at Rs. 389.21 p. He was called upon to furnish explanation and no explanation was furnished and, therefore, the order under Ext. M 4 dated 31.5.1968 was passed adjusting the said amount towards the security deposit. The deficit took place during the employment with regard to the transaction of the business of the society. Therefore, Mr. N.G.R. Prasad is not correct in saying that this is not a matter touching the business of the society. In fact in Madhava Rao v. Surya Rao : AIR1954Mad103 dealing with the corresponding provision of Section 51 of the Madras Co-operative Societies Act (VI of 1932) which is in part materia with Section 73 of the Co. operative Societies Act, the Full Bench held:

In Tonjore Co-operative Marketing Federation v. Krithivasan : AIR1951Mad352 , .our learned brother Govinda Menon, J., sitting as a single Judge, held that a suit by an ex-employee of a society to recover a security deposit made by him at the time when he was entertained by the society and for recovery of arrears of salary was not barred by Section 51 and that such a dispute did not relate to the business of the society. According to the learned Judge to take security deposits was not 'business' of the society which was to carry on some kind of co-operative business. Reference was made in that judgment to a decision of one of us in Narayana Nair v. The Secretary T.U.C.S. Ltd. : AIR1948Mad343 , as supporting the learned Judges conclusion, but it may be remarked that the decision in Narayana Nair v. The Secretary T.U.C.S. Ltd. (supra) was a case which directly within the exception in Section 51, that a dispute regarding the disciplinary action taken by a society or its committee against a paid servant is not within the scope of the section, and it does not in any manner help in construing the expression 'touching the business of the society'. In our view, this decision takes a very narrow view of the word 'business' and does not laydown the law, with great respect to the learned Judge correctly.

This authority is a complete answer to the argument of Mr. N G.R. Prasad that the claim relating to the security deposit does not relate to the business. D.M. Co-operative bank v. Dalichand : [1969]1SCR887 , is clearly distinguish able since that related to a case of a Co-operative Society engaged in house building activities and one of its members and the relationship there, was that of a landlord and tenant.

8. The more important question is, in a matter where the Registrar of Co-operative Societies could afford relief, would it be open to an employee of the Co-op. Society to seek redressed before the Labour Court under the Industrial Disputes Act. Mr. Chidambaram would very strongly rely upon Central Bunk v. Industrial Tribunal Hyderabad. : (1969)IILLJ698SC . It is his submission that the decision would squarely apply to this case. No doubt, their Lordships of the Supreme Court at page 247 of the report held:

The general proposition urged that the jurisdiction of the Industrial Tribunal under the Industrial Disputes Act will 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.

Prima facie, this decision seems to support the contention of the writ petitioner Hut that case arose under the Andhra Pradesh Co-operative Societies Act (7 of 1964). In laying down the proposition, the non obstinate clause in Section 61 of the Act was taken note of which read:

Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the Society or its committee against a paid employee of the Society, arises-Such dispute shall be referred to the Registrar for decision.

It was because of this and also Section 133 of that Act which contained an overriding provision, the said decision came to be laid down, in the Co-operative Societies Act hers, it is fairly conceded by the learned Counsel for the writ petitioner that there is neither a non obstinate clause in Section 73 nor an overriding provision corresponding to Section 133 of the Andhra Pradesh Co-operative Societies Act. This, in my view, makes all the difference. I am fortified in my conclusion by referring to the Judgment of Ismail, J., in Southern Roadways (Pvt.) Ltd. V. D. Venkateswarlu (1970) 37 F.J.R. 316 (Mad). In that case, the learned Judge held:

Section 25 of the Motor Transport Workers Act, 1961, which states that the Payment of Wages Act, 1936, will apply to wages payable to motor transport workers, does not bar the jurisdiction of a Labour Court to deal with a claim under Section 33C(2) of the Industrial Disputes Act, 1947, either on the ground that the provisions of the Payment of Wages Act, 1936, have been incorporated in the Motor Transport Workers Act, 1961, by Section 25 being the procedure prescribed in the Payment of Wages Act, 1936, that procedure will constitute a special provision as contrasted with the provisions of Section 33C(2) of the Industrial Disputes Act, 1947, which will constitute a general provision, and, therefore, the special procedure laid down in the Payment of Wages Act, 1936, will exclude the provisions of Section 33C(2) of the Industrial Disputes Act, 1947. Moreover, there is do express provision in the Motor Transport Workers Act, 1961, which excludes the jurisdiction of the Labour Court to deal with a claim of a motor transport worker under Section 33C(2) of the Industrial Disputes Act, 1947.

9. In the course of the judgment at page 345 in dealing with the decision of the Supreme Court in Cooperative Central Bank Ltd. v. Industrial Tribunal Hyderabad : (1969)IILLJ698SC , it was held:

A question arose whether the machinery provided under the Co-operative Societies Act itself, enabling the Registrar to decide a dispute, touching the business of the society, will exclude the jurisdiction of the Industrial Tribunal under the provisions of the Industrial disputes Act. With reference to this question, the Supreme Court pointed out at pages 120-121 (1970) 37 F.J.R. 118 : (1969)IILLJ698SC ;

Learned counsel appearing on behalf of the Banks took us through tae provisions of tae Act (Andhra Pradesh Co-operative Societies Act) to indicate that, besides a local and special Act, it is a self-contained Act enacted for the purpose of successful working of co-operative societies, including co-operative banks and there ate provisions in the Act, which clearly exclude the applicability of other laws if they happen to be in conflict with the provisions of the Act. It is, no doubt, true that the Act is an enactment passed by a State Legislature which received the assent of the President, so that if any provisions of a Central Act, including the Industrial Disputes Act, is repugnant to any provision of the Act, the provision of the Act will prevail and no; the provision of the Central Industrial Disputes Act. The general proposition urged that the jurisdiction of the industrial Tribunal under the Industrial Disputes Act will by barred if the disputes in question can do competently decided by the Registrar under Section 61 of the Act is, therefore correct and has to be accepted. For coming to this conclusion, the Supreme Court examined the provisions of the Andhra Pradesh Co-operative Societies Act and noted that Section 61 of tae said Act opened by stating notwithstanding anything in any law for the time being in force, if any dispute touching the constitution, management or the basinets of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, arises...The Supreme Court also took note of Section 133 of the Andhra Pradesh Co-operative Societies Act which stated:

133. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.

Such provision clearly evincing an intention to exclude the applicability of, and the jurisdiction, of, the authorities under any other Act are absent in the Act and therefore that decision of the Supreme Court has no application to the facts of the present case. I may also point out that, in that decision, though the Supreme Court accepted the general principles of law, after analyzing the Andhra Pradesh Co-operative Societies Act and the actual dispute, it came to the conclusion that the dispute between the parties was one which could not be decided by the Registrar under Section 61 of the Andhra Pradesh Co-operative Societies Act Apart from these decisions, it is admitted before mo that there is no direct decision of the Supreme court or of this Court holding that the jurisdiction of the Labour Court under Section 33C(2) of the Industrial Disputes Act is barred.

10. A similar view concerning the wages payable under the Minimum Wages Act was taken by Sadasivam, J., in W. P. Nos. 2914 to 2916 of 1968 (Mad) G. Vaidyalingam v. The Management of Sri Kaliaperumal Bus Service Chidambaram. That also has been adverted to by Ismail, J., as, seen from page 349 of the report wherein it is held:

Sadasivam, J., had occasion to consider a similar question in Writ Petition Nos. 2914 to 2946 of 1968 (Mad). In that case there was already an award for reinstatement and the workers concerned field petitions under Section 33C(2) of the Industrial Disputes Act for computation of the benefits under the award. The jurisdiction of the Labour Court to decide the same was contested a ad the Labour Court dismissed the claim petitions holding that any claim with reference to difference in wages or for other item connected with wages should be made under the Minimum Wages Act and not under Section 33C(2) of the Industrial Disputes Act. It was to quash that order of the Labour Court, the writ petitions referred to above were filed on the file of this Court and Sadasivam, J., quashed the order of the Labour Court holding that the Labour Court had jurisdiction to decide the matter. The learned Judge pointed out 'The mere fact that the Minimum Wages Act creates a right and provides for a remedy does not take away the right of a Labour Court to adjudicate on the same in the petition under Section 33C(2) of the Industrial Disputes Act when the sane has been in a way considered in an award made by the Labour Court in respect of an industrial dispute'. In one sense the observation of the learned Judge with reference to the Minimum Wages Act may not be correct in view of the judgment of the Supreme Court holding that Section 20 of that Act concerned only with the minimum rates of wages and not claims for payment of minimum wages as such. However, on analogous principle it can be held that the mere fact that the Payment of Wages Act provides for a remedy does not take away the right of the Labour Court to adjudicate on the same in a petition under Section 33C(2) of the Industrial Disputes Act, particularly when there is nothing in either of the Acts express or implied excluding the jurisdiction of the Labour Court.

Applying the ratio of this decision and for the reasons aforesaid. I necessarily conclude that the jurisdiction of the Labour Court is not taken away, even though it related to the security deposit.

11. Regarding the other contention that the Industrial Employment (Standing Orders) Act 20 of i945 applies to this case, as rightly contended by Mr. N.G.R. Prasad, that Act does not apply to Co operative Societies. Therefore, the argument of Mr. Chidambaram that only an industrial dispute ought to have been raised since -the bye-laws are in the nature of standing orders and would be covered by Schedule If, Item I (i) of the Industrial Disputes Act, fails.

12. No doubt, in the instant case, the second respondent, when he was issued Ex. M 3, did not furnish the necessary explanation. However, that would not enable the Society to contend that the second respondent is not entitled to the return of the security deposit Ramakrishnan, J., in Kodai kanal Motor Union v. Nailathambi : (1969)IILLJ141Mad held:

With regard to the claim for repayment of the security amount, it is urged by the learned Counsel for the management that since the order of dismissal involves a finding that the worker bad caused loss to (he management, the management would be entitled to retain the security amount as a set off against that loss. Here, however, the position is different from the case of bonus Prima facie the money belongs to the worker and in the normal course he would be entitled to get a refund of it. It was for the management to prove satisfactorily when the matter came before the Labour Court in a claim petition under Section 33C(2), that the management had a lien on that money for loss caused to it by the worker's misconduct. Necessary evidence establishing the link between the worker's conduct and the loss to the management should have been adduced in the context of the return of the security money.

In the instant case, it has not been proved that it was due to the misconduct of the second respondent that the deficit was caused. No attempt has been made to prove the same. The proper course would be to surcharge the second respondent and proceed against him under the provisions of the Cooperative Societies Act.

13. The contention that the security deposit is not an entitlement cannot be accepted since Section 33C(2) of the Act. says:

Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in tbis behalf by the appropriate Government.

Undoubtedly, this is a monetary benefit which can be computed under the said section. For all the above reasons, differing from the reasoning of the Labour Court that it does not relate to the business of the Society but ultimately agreeing with the conclusion regarding computation, I dismiss this writ petition The rule nisi is vacated. There will be no order as to costs.


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