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Workmen's Co-operative Industrial Home, Ltd. Vs. First Industrial Tribunal and Ors. (29.02.1968 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1968)IILLJ772Cal
AppellantWorkmen's Co-operative Industrial Home, Ltd.
RespondentFirst Industrial Tribunal and Ors.
Cases ReferredHimangshu Bhusan Chakraberiti v. Nirmal Kumar Das A.I.R.
Excerpt:
- judgementd.n. sinha, c.j.1. the facts in this cases are briefly as follows:the appellant is a co-operative society registered under the bengal co-operative societies act, its object inter alia is to improve the poeuaiary condition of needy and indigent women who become its members. needy and refugee women are given training in handicrafts and cottage industries for their maintenance. the appellant supplies raw material to its members and the artieies manufactured by them are sold either amongst the members of in the open market to wholesalers of retailers on commission basis. on of about 19 november 1950 respondent 4 sujata mitra was appointed superintendent of the home maintained by the appellant at a salary of rs. 300 per month. the appointment was initially for a period of six months......
Judgment:
JUDGEMENT

D.N. Sinha, C.J.

1. The facts in this cases are briefly as follows:

The appellant is a co-operative society registered under the Bengal Co-operative Societies Act, Its object inter alia is to improve the poeuaiary condition of needy and indigent women who become its members. Needy and refugee women are given training in handicrafts and cottage industries for their maintenance. The appellant supplies raw material to its members and the artieies manufactured by them are sold either amongst the members of in the open market to wholesalers of retailers on commission basis. On of about 19 November 1950 respondent 4 Sujata Mitra was appointed superintendent of the home maintained by the appellant at a salary of Rs. 300 per month. The appointment was initially for a period of six months. The appointment of the said respondent came about in the following manner: For the purpose of running the establishment the home engages several workmen and it is run under the direct central and administration of the vice-president; with two secretaries. From the inception of this industrial home, there has been a post-the post of a superintendent whose duty it is to look after the work of the women workers, for betterment of its production and its quality and also to make arrangement for making production consistent with the orders received by the establishment and to market the finished goods. This home was running at a less and the vice-president Smt. Bina Das induced the said respondent Sujata Mitra who was a graduate and qualified in special crafts, to give up her employment under the Community Development Project and to accept the post of the superintendent of the establishment of the appellant called 'Uday Villa'. It is aileged that during the period when the said respondent acted as superintendent; quality of production improved to a great extent and she became very popular among the workers and other persons connected with this establishment. On or about 14 October 1961, her services were terminated by a letter issued under the same of Smt. Depali Ghosh, joint secretary of the appellant. It is this matter of the permission of the services of the said respondent that has given rise to a dispute which is the subject-manner of this appeal. The respective cases of the parties were as follows: According to the appellant, the said respondent was appointed on trial for six months only as superintendent and was incharge of control and supervision of the entire work of the appellant. On 29september 1961 she wrote a letter saying that she wanted to be relieved of her post, but the letter of withdrawn the same. It is alleged that having lost confidence in the respondent, it was decided by the managing committee of the appellant to terminate her service and to abolish the part of superintendent. Accordingly the services of the said respondent were terminated by a resolution passed at the meeting of the board of directors on 11 October1961 with effect from 15 October 1961. The case of the said respondent was that she had to work very hard for the establishment and in spite of the pressure of work she was compelled to entertain the friends and guests of the vice-president. This extra burden was resented by her and she thereupon resigned her posts, but later on changed her mind. It is alleges that the vice-president Smt, Bina Das was jealous about the increasing popular of the said respondent and brought about her dismissal. As stated above, a resolution was passed by the managing committee on 11 October 1961 abolishing the post of superintendent although there was no agenda at the meeting containing any such item to be considered. This is stated to be merely a device to get rid of the said respondent. A dispute was raised on behalf of the respondent by respondent 5-the Workman's Co-operative Industrial Home Employees Union, Uday Villa; On or about 28 August 1968 an industrial dispute was referred to the first industrial tribunal, in the following terms:

whether the termination of service of Smt. Sujata Mitra is justified?

Whether relief, if any, is she entitled to?

Respondent I heard the industrial dispute and made an award dated 20 June 1964 by which he held that the termination of the services of the said respondent was not justified, and that she should be paid a compensation of Rs.3000 for loss of her service and the said sum must be paid within a month of publication of the award in the Calcutta Gazette an application in this Court in the writ jurisdiction and a rule was issued calling upon respondent to show cause why the said award should not be quashed and for other reliefs. This application was heard by Mitra, J. who by his order dated 19 December1968 dismissed the same and discharge the rule. It is against this order that this appeal is directed. Sri Sen appearing on behalf of the appellant has before us, as in the Court below, principally relied on certain technical grounds. We might make it clear before proceeding further that we are against Sri Sen on the facts and are inclined to accept the facts as stated on behalf of the said respondent. But Sri Sen has raised very weighty points of law which we shall new proceed to consider. The principal contention of Sri Sen is based on Section85 of the Bengal Co-operative Societies Act. 1940. the relevant provision thereof runs as follows:

any dispute (touching) relating to the affairs of the business of a co-operative society (other than a dispute regarding disciplinary action taken by a society of its managing committee against a paid servant of the society) or of the liquidator of a society shall be referred to the Regular if the parties there to are among the following, namely:

(a) the society its managing committee, any post or present officer, agent or servant or the liquidator of the society; or a member, past member or person claiming through a member, past member or deceased member of the society: or

(b) a surely of a member past member or deceased member of the society, whether such surely is or is not a member of the society; or

(c) any other co-operative society or the liquidator of such society.

The word 'touching' was deleted by the amounting Act of 1965

2. According to him, the parties in this case governed by the Bengal Co-operative Societies Act, 1940, and there being a specific provision in the said Act for referring the dispute for adjudication to the Register, Co-operative Societies, the matter could not be referred as a dispute under the Industrial Dispute Act 194, and the order of reference as well as the award made thereon are without jurisdiction and therefore, void.

3. As regard Section as, it may be pointed out that prior to the amending Act of 1965 the word 'touching' appeared in the first line; but this has been replaced by the words 'relating to the affairs'. The said Act is an Act to amend the law relating to the co-operative societies in Bengal. The preamble says that it was passed because it was expedient to make further provision for the formation and working of the co-operative societies, and for the promotion, thrifts, self help and mutual aid among persons of moderate means with needs and interest in common, to the end that better condition of living and better methods pf production and business may there by result. By the amending Act of 1965the words' persons of moderate means' have been replaced by the word 'people.' The preamble is of importance because a point has arisen as to whether the said Act is a special Act and the Industrial Disputes Act is a general Act, or vice-versa. Upon this point it is regretted that a particular amendment of the Industrial Disputes Act, 1947(viz. Act 86 of 1956), had not been brought to the notice of either the industrial tribunal or the Court below. The principal contest in the Court below was upon the wording of Section 86 of the said Act. The question that was contested was as to whether the dismissal of a paid servants or an employee of a co-operative society could be the subject-matter of a dispute, 'touching' the business of a co-operative society. Upon this point there is a conflict of opinion. Since this question has been deals with in the court below and also argued before us at length I must note the argument, although it will presently be seen that the 1956 amendment of the Industrial Disputes Act will be the decisive factor in the matter.

4. As I have stated above, by the amending Act of 1955 the word 'touching has been' replaced by the words 'relating to the a affairs.' There have been some argument advanced as to the difference in there two expressions. Etymelogically, the word 'touching' seems to have wider meaning than the expressions ' relating to the affairs.' The difference is; however, only one of degree. Besides, at the relevant time, the word 'touching' appeared in Section 86. I will now proceed to deal with cases often before us. The first case to be is one of the Madras High Court-Desereths Row v. Subba Row, Secretary, Co-operative Stores, Ltd. A.I.R. 1923Mad.481. In that case, a dispute arise between P.D. Row and the co-operative stores of Viasagram is regard to sum of money entrusted to the former by the letter, for purchase of certain articles. The stores claimed a balance due after certain adjustment and it was referred to the Register under Section 42(2)(1) of the co-operative Societies Act as applicable to Madras. It was argued that the words 'touching the business of a society' only referred disputes regarding the industrial management of the affairs of the society or disputes in regard to the principle which would regulate the conduct of the business. This contention was not accepted, inter alia, on the ground that in that event disputes between past member inter se or again between persons claiming through past member inter se would never come within its scope. It was held that the words of the section were very wide and a dispute arising out of any particular transaction would not be out side the scope of the section. The next case is one of the Allahabad High Court, Gopi Nath and Anr. v. Ram Nath .The Muttra District Co-operative Bank was one constituted under the Co-operative Societies Act, 1912(Central). The dispute that area was as regard the appointment of a director. The question was whether in report of each a dispute a suit was maintainable so the matter would have to be referred to the Register. It was argued that the word 'business' in the 1912 Act and the rules made thereunder, is confined to money business such as the giving of leans to member stand the settlement of money claims and did not apply to the election of a director. This was negatived. Is was held that the election of an officer was certainly a part of the business of the society, and it was the intention of the Act that such a dispute should be referred to the Register or the arbitrator appointed by him according to the rules framed under the 1912Act.

5. I next come to a single Bench judgment of this Court, Co-operative Milk Societies Union, Ltd v. State of West Bengal and Ors. 1958-II L.L.J.61. In that case, the facts were as follows; The Co-operative Milk Societies Union, Ltd, was a registered society under the said Act. A dispute between the said society and its workmen relating to 'wages and wage-scale and dearness allowances,' was referred for adjudication to an individual tribunal. It was contended that the said Act was a special Act relating to co-operative societies and the dispute was one 'touching' the business of the society and could only be deals with under Sections 86 and 87 of the said Act and not under the Individual Disputes Act. It was held that it was not any say and every dispute that could be referred to the Register under Section85. There was a limitation of the kind of dispute which is to be referred to the Register. The significance word limiting the nature and type of dispute is contained in the expressions 'touching the business of a co-operative society' in Section 86, The dispute should be such as touches the business of the society. The learned Judge said as follows:

It is, therefore; clear that the dispute has to touch the business of the co-operative society. Now a co-operative society can do many kinds of business which may certainly include business industrial nature. Can a dispute between the co-operative society and its own workmen be said to be a dispute touching the business of a co-operative society? Strictly speaking, dispute between a co-operative society and its workmen does not relate to the actual business of a co-operative society and therefore does not touch the business of the co-operative society. Consequentially how ever dispute between the co-operative society and its workmen may ultimately touch or affect the business of the co-operative society. I am inclined to think that the remote and the consequential result should not be included with in the expression any dispute touching the business of a co-operative society:

I am persuaded be accept that construction by the further consideration of the fact that a dispute regarding disciplinary action taken a society or its managing committees against a paid Servant of the society Is expressly excluded by this Section86 of the Act.

6. The learned judge then presented to consider the definition of the word 'dispute' in Section2(j) of the Act which provides that 'dispute' means any matters capable of being subject of civil itigation. The learned judge held that the disputes that was referred to the industrial tribunal was not capable of being the subject-matter of a civil action in a Court. The next point decided was upon the question as to which of the two Acts, namely, the said Act and the Industrial Disputes Act, 1947, was a special or a general Act relating to industrial disputes and the said Act was a special Act. The learned Judge said as follows:

I have given the next anxious thought to the argument based on the doctrine of conflict between general statutes and special statues. It is necessary to say here that the definition of the word 'dispute' in the Bengal Co-operative Societies Act was amended by Section2 of She. To the West Bengal Laws (Amendment and Repeal Act, 1947), being the words 'whether such claim be admitted or not. Now that Act became law by receiving the assent of the Governor-General and publication in the Calcutta Gazette on 12 February 1948. The Industrial Dispute Act however became law on 11 March1947. It is therefore clear that the amendment of the definition of the word 'dispute' in the Bengal Co-operative Societies Act was made subsequent to the passing of the Industrial Disputes Act. I draw from this the necessary conclusion that if the legislature wanted to exclude dispute between co-operative society under the Bengal Co-operative Societies Act and its workmen from the operatio0n of the Industrial Disputes Act, 1967, them it would have said so expressly when it was making these amendments, not having done so, I can only come to this conclusion that was not intended that the industrial dispute between a co-operative society and its workmen should come under Section 86 of the Bengal Co-operative Societies Act. I; therefore, held on a proper interpretation that the Industrial Disputes Act is the special statute relating to the settlement of all industrial disputes whether they relate to co-operative societies or other establishments. From that point of view and from the point the point of view of industrial disputes the Industrial Disputes Act in the special statute and the Bengal Co-operative Societies Act is the general statute. So long as the dispute is industrial within the meaning of the words 'industrial disputes' under the Industrial Disputes Act that Act has the exclusive jurisdiction.

7. So far as the ultimate conclusion was reached namely, that a dispute with regard to the scale of wages and dearness allowance was not a dispute within the scope of Section85, we fully agree. But with regard to the very wide statement that no dispute between a society and its workmen could 'touch' the business of a society and thus came within the scope of Section86 and the exclusion of the said Act by the Industrial Disputes Act, we think that the conclusions of the learned Judge are not correct. To start with, the attention of the learned Judge was not drawn to certain provisions of the Industrial Disputes(Amendment and miscellaneous Provisions) act, 1956 (Act 86 of 1956). This Act which came into operation on 28 August 1956 was an Act further to amend the Industrial Disputes Act, 1947, etc. Section 81 of the amending Act runs follows:

31. Act net to override State laws.:-(1) If, immediately before the commencement of this Act, of state Act relating to the settlement of adjudication of disputes the operation of such an Act in that State in relation to the matters covered by that Act shall not be affected by the Industrial Disputes Act, 1917(14 of1947), as amended by this Act.

(2) For the removal of doubts it is here by declared that nothing in the section shall be deemed to preclude the Central Government or the national tribunal from exercising any powers conferred on it by the Industrial Disputes Act, 1947, as amended by this Act.

8. Immediately before the commencement of the 1956 Act there was in force in the State of West Bengal, the said act which is a provisional or a State Act, Hence, by the provisions of the Industrial Disputes Act itself the said Act outs the provision of the industrial Disputes Act and the reasoning of the learned Judge on his point falls.

9. I confess that a part from this amending Act, it is very difficult to decide as to which is the special and which is the general Act. Looked as from the point of co-operative societies, the said Act seems to be a special one. On the other hand, looked at from the point of view of industrial disputes, it may be said even among kinds of disputes, some of which are industrial and Ors. not be and consequently, such disputes which are industrial disputes should be governed by the Industrial Disputes Act, which from this point of view, become a special act for our purpose, it is not necessary to go into these nice distinctions. The amendment mentioned above solves the problem, However, even under the said Act, the definition of 'disputes' must be satisfied, and we agree that a dispute regarding scale of wages and dearness allowances cannot satisfy the definition and ultimate decision of the learned Judge was correct. As regards the somewhat wide proposition which found acceptance by the learned Judge, namely, that as dispute between a co-operative society and its workmen could touch the business of a co-operative society. We think that the flading is too wide, and not support by the consemsus of authority. There are decisions directly in conflict with the same. This will appear from the very next authority that I will proceed to often namely, a decision of the Bombay High Court by Changla, S. (as he then was); Great Indian Peninsular Railway Employees Co-operative Bank, Ltd. v. Shikaji Merunji Karanjis A.I.R. (1948) Ram. S41. This case under Section54 of the Bombay Co-operative Societies Act, 1925, the wordings of which are similar to Section 86 of the said Act. The relevant expression which was explained was 'touching the business of a society.' This expression appeared in Section 86 of the said Act before 1965 amendment and has now been replaced by the expression 'relating to the affairs.' The facts of that case were as follows: The petitioner in that case was the Great Indian Peninsular Railway Employees' Co-operative Bank, Ltd, which was registered under the Bombay Co-operative Societies Act, 1925. The business of the company was banking and the respondent was an employee of the petitioner company. In June 1941 the respondent was served by the manager of the bank with a chargesheet and he was suspended from service pending the proceeding. The respondent refused to give an explanation and declined to answer the charges. On the other hand, he made an applicable to the Register of the Co-operative Societies requesting him to refer his case to arbitration under S54 of the Bombay Co-operative Societies Act. On 17 July 1941 the heard of directors of the bank received to terminate the respondent's service as and from 17 August 1941. In the mean time, the Register of Co-operative Societies had written to the manager pointing out that the respondent had urged that the disputes should be referred to arbitration under Section54 of the Bombay Act. Further correspondence passed and ultimately the Register decided that the dispute had to be decided according to Section54 of the Bombay Act and asked the appoint a nominee. The bank took to appoint that the dispute between itself and the respondent was not one 'touching the business' of the bank. However, the Registrar notified that he had appointed Sri J.A. Diss as his nominee in the dispute. The bank an application allaging that the respondent's claim was a claim by a discharge employees against the employers for wrongful dismissal and for defamation. It was contended that such a dispute was not a dispute touching the business of society with in the meaning of Section54 of the Bombay Act. It, therefore, wanted a declaration from the Court that there was no valid arbitration agreement. The application was made under Section38of the Arbitration Act (10 of 1940). It was firstly contended on behalf of the respondent hat the Arbitration Act had no application to the proceedings under the Bombay Co-operative Societies Act and the Court has been no jurisdiction to maintain the application; Changla. J. (as he then was), held that this contention was sound, but he also examined the position in the alternative, on the assumption that his view on this point was wrong. It was argued before him that the dispute related t o the employment of dismissal of a servant of the bank and this did not touch the business of the bank. It was argued that such employment or dismissal was not the business of the bank, but was merely a machinery to carry out the object for which the banking company was constituted. After setting out the relevant objects that there are to be found in the by laws, the learned judge proceeded to any as follows:

It is argued that employing or dismissing servants does not any one or these objects. The petitioner-company undoubtedly has to carry out these objects and it can only carry them out through the agency of various persons. In doing so, it has to employ servants, it has got to enter into contracts with servants: and it has to dismiss servants. It is therefore contended that if the grievance of a servant dismiss by the petitioner-company is that he was wrongfully dismissed or that he was entitled to damage, that is not a question which comes within the purview of Section54, Bombay Co-operative Societies Act, because it does not touch the business of the petitioner-company.

I do not think that it would be right to give a restricted meaning to the words 'touching the business of a society' used by the legislature in Section54 of the Act. The word 'business' is a very wide term and certainly it is not synonsmous with the objects of a society. The expression 'touching' the business' would mean affecting the business of a society; and it cannot be said that when a company employee or dismiss a servant, it does not do something which relates to its business. It is true that it is not one of the objects of the company to company or dismiss servants; but it is something which it does in the ordinary course of its does in the business. And what ever is done in the ordinary course of business certainly relates to or affects the business.

10. The Bombay case comes very near to the facts of the instant case. Only is must be pointed out that in Section86 of the said Act, disputes regarding the disciplinary section taken by a society or its managing committee against a paid servant of the society is encluded whereas there is the such exclusion in the Bombay Act. This exclusion in the Bombay Act. This exclusion, however, throws some light on the question on issue. If no dispute between a society and its employee could touch its business or related to its affairs, then there is no point in excluding a dispute regarding disciplinary action taken by a society or its managing committee against a paid servant the society. This rather supports the condition that other kinds of disputes the conclusion that other kinds of disputes will be covered by this section. In a subsequent Full Bench decision of the Bombay High Court, Forkkundali Nanshay v. V.B. Peider1962-I L.L.J. 51 the above decision of Changla, J. (as he then was), was approved. That was a case in which the petitioner was employed by a co-operative society registered under the Bombay Act. The disputes was with regard to payment of wages. The petitioner made an application before the Payment of Wages Authority for recovery of wages, retreatment compensation and leaves wages and the contention of the society was that this dispute was governed by Section54 of the Co-operative Societies Act. It was hold that whatever a society does or is necessarily required to do for the purpose of carrying out its object can be said to be a part of its business. The word 'touches' is very wide and would include any matter which relates to, concerns or affects the business of the society. Every society must necessarily employ some servants for the purpose of carrying on its business. The payment of wages or any sum due to them under the law is, therefore, part of the business of the society. In any case there was no doubt that such a payment would 'touch ' the business of the society. The decision of Mukherji, J. in 1968-II L.L.J. 61 (vide supra) was dissented from. Reference may be made to another single Bench judgment of this Court in Himangshu Bhusan Chakraberiti v. Nirmal Kumar Das A.I.R. 1962 Cal 489. There is was alleged that a certain defamatory statement was made by a member against the secretary of a co-operative society. It was too remote a matter to be included in the expression 'touching the business of a co-operative society.' It appears, therefore; that the consensus of judicial opinion is against the very wide proposition laid down by Mukharji, J. in 1958-II L.L.J.61 (vide supra) that no dispute between a society and its workmen could come within the scope of Section 36of the said Act. We hold therefore that the dispute in this case between the society and respondent 4 regarding her dismissal from service is a dispute, 'touching the business' of the society. It also relates to its affairs I now come to the second point decided by Mukherji, J., to the affect that the Industrial Disputes Act was a special Act and its provisions should prevail as against the Co-operative Societies Act, which was a general Act. As I have mentioned above, the attention of the learned Judge was not drawn to the provision of the Industrial Disputes (Amendment and Miscellaneous Provision) Act, 1956. By Section 31 of the Act, it has been on pressly provided that if immediately before the commencement of the 1965Act, there was in force in any State any provisional of State Act relating to settlement or adjudication of Disputes, the operation of such as Ac6t in that State in relation to the matters covered by that Act shall not be affected by the Industrial Disputes Act, 1947, as amended by the amending Act. The Bengal Co-operative Societies Act, 1940, is an earlier Act and Section86 provide for the adjudication of disputes between the society and its servant. Wherefore, such a provision will not be governed by the Industrial Disputes Act, 1947, but by the said Act. In view of this it is irrelevant to consider as to which Act is the general Act or which is the special act. Provision of the Industrial Disputes Act, 1947, have been expressly excluded.

11. The result is that, although on the merits we are in favour of respondent 4, we are bound to hold that in law the dispute raised by her against the society is governed by Section86 of the said Act and that the industrial tribunal had no jurisdiction in the matter. Consequently, a reference to such a tribunal and its award, are both invalid and must be quashed and set aside. The appeal is, therefore allowed and the judgment and order of the Court below is set aside. The rule is made absolute and there will be a writ of cetriorari quashing the award of the industrial tribunal dated 20June1964 and the respondent are ordered by an adequate writ; to desist from giving affect therefore. This will be without prejudice to any action that may be taken now in accordance with law. There will be no order as to costs.

Arun K. Mukherjea, J.

12. I agree.


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