JUDGMENT
Untwalia, C.J.
1. The petitioner in this writ application is a Co-operative Society registered under the Bihar and Orissa Co-operative Societies Act, 1935 (hereinafter called the Act). Respondent No. 2 was its employee. His services were dispensed with by an order of termination communicated to him by the Chairman of the Society on 4-4-1972. A copy of the communication is Annexure 1 to the writ application. Respondent No. 2 took up the matter in reference under Section 48 of the Act to the Assistant Registrar. Co-operative Society, by his application dated 1-5-1972 (Annexure 2). His prayer was that since his services had been terminated without a show cause, without any rhyme or reason and arbitrarily, he was entitled to be reinstated with back wages, a notice of this application was issued to the petitioner, and it filed a show cause on 10-6-1972, a copy of which is Annexure 3. On 7-8-1972 the petitioner filed an application before the Assistant Registrar (respondent No. 1) taking the stand that the reference under Section 48 of the Act was incompetent, beyond the scope of the said provision and hence beyond the jurisdiction of the Assistant Registrar. It asked him to decide this as a preliminary issue. Eventually, the Assistant Registrar made the final award dated 25-9-1972 (Annexure 5), overruling the preliminary objection as also deciding the matter on merits against the petitioner-Society. It, therefore, filed an application under Articles 226 and 227 of the Constitution of India and obtained a rule against the respondents to show cause why the award contained in Annexure 5 should not be quashed by grant of an appropriate writ. Cause has been shown on behalf of respondent No. 2 by filing a counter-affidavit; an affidavit in reply has been put on behalf of the petitioner.
2. The case, in the first instance, came up for hearing before a Bench of this Court. One of the points involved in the case which, in the opinion of the Bench, seemed necessary to be decided was whether a dispute of the kind raised by respondent No. 2 before the Assistant Registrar under Section 48 of the Act was at all a dispute touching the business of the Society within the meaning of the said section. On this point, as it appeals, inadvertently there has occurred a conflict between two Bench decisions In Ramashankar Tewari v. Gopal Banerjee (1971 BLJR 671), distinguishing the decision of the Supreme Court in Deccao Merchants Co-operative Bank Ltd. v. Dalichand Jugraj Jain, AIR 1969 SC 1320.
I, sitting with Sarwar Ali, J., took the view that certain matters concerning the service or the service conditions of an employee of the Society are matters touching the business of the Society, as the word ‘business’ in the Bihar Act has not been used in a narrow sense. A wide interpretation is necessary to be given to it. When a similar question arose before another Bench in Bihar State Co-operative Marketing Union Ltd. v. The Registrar, Co-operative Societies, Bihar (AIR 1974 Pat 77), following the aforesaid decision of the Supreme Court as also another decision in Co-operative Central Bank Ltd. v. Addl. Industrial Tribunal, Andhra Pradesh, Hyderabad (AIR 1970 SC 245) wherein the Supreme Court had followed its earlier decision aforesaid, it was held that a matter like this is not covered by Section 48 of the Act as it is not in relation to the ‘business’ of the Society which word, in view of the authoritative pronouncement -of the Supreme Court, must be held to mean business in the commercial or trading activity sense. It is unfortunate that the attention of the Bench was not drawn to any of the three earlier decisions of this Court on the point out of which one decision had considered the decision of the Supreme Court in the case of Deccan Merchants Co-operative Bank Ltd., AIR 1969 SC 1320. The attention of the Bench, however, was drawn to the decision given by me sitting with Ramaswami, C. J., in Pt. Raghav Jha v. The Registrar, Co-operative Societies, Bihar, Patna, f (1962) ILR 41 Pat 325), but it was distinguished. In the circumstances, one could say that if the attention of the Bench deciding the case of Bihar State Co-operative Marketing Union Ltd. (AIR 1974 Pat 77) was not drawn to the earlier decisions and especially the one reported in 1971 BLJR 671, the earlier decision was binding and not the later. But, surely, it was advisable to get the conflict resolved by referring the case to ,a larger Bench, as was done by the Bench before which this case came up for hearing in the first instance. But when we proceeded to hear the matter we found that on the facts and in the circumstances of this case it was advisable to decide it on a shorter question. Going to the larger question will be perhaps academic, in any event, not necessary at all. We took the view that this was not a fit case where we should endeavour to resolve the conflict between the two Bench decisions referred to above.
3. It is not necessary to refer to the facts in any detail. Suffice it to say with reference to the impugned award (Annexure 5), the divergent stands taken by the parties before the Assistant Registrar as also in this Court, that according to the case of the petitioner-Society the service of respondent No. 2 was dispensed with by a simpliciter order of termination, offering one month’s wages in lieu of one month’s notice. On the other hand, the stand of respondent No. 2 has been that the order of termination was bad, no disciplinary action was taken against him, no such proceeding for taking a proper action for dispensing with his services was taken, the order was arbitrary, without giving any opportunity to respondent No. 2 to show cause against termination of his service. As is usual in such kinds of dispute, the stand of the employer is that it is a case of simpliciter termination and initiation of a proceeding for disciplinary action was not necessary, while the stand of the employee is that without such a proceeding, without any rhyme or reason, the service could not be terminated. In such a situation, the question for consideration is whether the dispute of the kind which was raised by respondent No. 2 in this case could be referred for adjudication to the Assistant Registrar of the Co-operative Society. I may mention here that various points were urged by Mr. B.C. Ghose, learned counsel for the petitioner, including the point that even if the reference under Section 48 was competent, the Assistant Registrar could not exercise the power of the Registrar for entertaining and deciding such a reference. Since I am going to hold in this case that the reference was incompetent as it was not covered by Section 48 of the Act on a shorter ground, it is neither necessary to state all the points urged on behalf of the petitioner nor to decide them.
4. I shall read Sub-section (1) of Section 48 of the Act:
“48. (1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises-
(a) amongst members, past members, persons claiming through members, past members or deceased member and sureties of members, past members or deceased members, whether such sureties are members or non-members; or
(b) between a member, past member, persons claiming through a member, past member or deceased member, or sureties of members, past members or deceased members, whether such sureties are members or non-members, and the society, its managing committee or any officer, agent or servant of the society; or
(c) between the society or its managing committee and any past or present officer, agent or servant of the society; or
(d) between the society and any other registered society; or
(e) between a financing bank authorised under the provisions of Sub-section (1) of Section 16 and a person who is not a member of a registered society; such dispute shall be referred t” the Registrar:
Provided…..”
For the purpose of the present case I shall assume, without resolving the conflict, as stated earlier, that if the matter would not have been covered by the words in the parenthesis, then the dispute would have been one touching the business of a registered society. But the simple question in this case is whether dispensing with the service of an employee by the Society by an order of termination simpliciter which is not accepted as such by the employee, and even assuming it is accepted but attacked on other grounds, is a dispute which is not taken out of the main provision of Sub-section (1) by the words in the parenthesis.
5. In Ratan N. Tata v. Capt. S.B. Mathur 1968 BLJR 985 = (1969 Lab IC 499) (Pat.) the case was of dismissal of the employee by a disciplinary action. Stating in this case at page 987, column 2,
“reading the relevant provisions of Section 48, it is clear that a dispute between the Society and its Managing Committee and any officer or servant of the Society, which must have included a dispute of this kind, was referable to the Registrar”, it was further stated
”but in express language a dispute regarding disciplinary action by the Society or the Managing Committee against the paid servant of the Society has been excluded from the category of disputes between the Society or its Managing Committee and any servant of the Society which can be referred for decision to the Registrar.”
In Narkatiagunj C. D. and C. M. Union Ltd. v. Registrar, Co-operative Societies, Bihar (1970 BLJR 551) the facts were that during the course of inspection of the Society the Joint Registrar found the employee unfit and advised the Society to discharge him and appoint a competent Head Clerk. The case of the Society was that the Managing Committee decided to terminate the services of the employee (respondent No. 3) and to pay him one month’s salary in lieu of one month’s notice. Such a matter went in reference under Section 48; and in that connection I, sitting with G.N. Prasad, J., said in paragraph 3 at page 553-
“If a dispute regarding disciplinary action cannot be referred, it follows logically that a dispute regarding termination of service or discharge of a paid servant of a society cannot also be referred.”
But on consideration of the relevant bye-laws it was held that an appeal lay to the Registrar from the order, and certain consequential directions were accordingly given. But the crux of the matter put in the words extracted above was that if a disciplinary action is excluded from operation of Section 48 as having been included by the words in the parenthesis, it does not stand to reason that a much simpler and lighter method of dispensing with the- services of an employee could have been intended by the Legislature to be made a subject-matter of reference under Section 48. It appeared illogical to take such a view. The correctness of this view has been strenuously attacked by Mr. Braj Kishore Prasad II, learned counsel for respondent No. 2. For the reasons which will be shortly stated hereinafter I do not feel persuaded even to doubt the correctness of the view expressed earlier, much less hold it to be incorrect. But before I do so, I may refer to the case of Ramashankar Tewari (1971 BLJR 671). On the special facts of that case it was held that the nature of the dispute was such as could be covered within the ambit of Section 48. It was this case, as I have said above, where I had compared the language of the Maharashtra Co-operative Societies Act which was in consideration before the Supreme Court in the case of Deccan Merchants Co-operative Bank Ltd. AIR 1969 SC 1320 and found contrast in the phraseology of the Bihar Act to induce me to take the view that the word ‘business’ in our Section 48 has been used in a wider sense to cover even the affairs of the Society. As a result of the said view I held that the dispute was covered by Section 48, but since the other requirement of the statute was not fulfilled the reference was incompetent. In Ramashankar Tewari’s case, 1971 BLJR 671, by making an advertisement Tewari had been appointed as an employee of the Society. Later on the Assistant Registrar of the Co-operative Society held that the appointment of the petitioner to the post of Accountant was irregular, and he directed issuance of a fresh advertisement for filling up the post. The petitioner’s appointment, therefore, was annulled, and fresh advertisement was issued. It was in such a situation that I felt persuaded to take the view that the dispute was one which was covered by Section 48 of the Act. I may, however, hasten to add that no argument seems to have been advanced in this case on the basis of the Bench decision in the case of Narkatiagunj C. D. and C. M. Union Ltd. (1970 BLJR 551) and with reference to the words in the parenthesis that the dispute raised by Tewari also could come within the brackets and, therefore, should be held to have been, excluded from the operation of Section 48. Be that as it may, on the facts Tewari’s case 1971 BLJR 671 is clearly distinguishable.
6. Learned counsel for respondent No. 2 urged that the scope of the words is in parenthesis in Sub-section (1) of Section 48 cannot and should not be enlarged. What has been excluded by the said words is “a dispute regarding disciplinary action taken by the society” and not a dispute regarding termination of service brought about by the society. In my opinion, to say that a dispute regarding disciplinary action which may result in imposition of punishment of any kind, including the punishment of dismissal, is excluded from the general language of Sub-section (1) and a similar action of much lesser gravity, imposing no punishment, casting no stigma, should be allowed to be covered by Section 48 will be manifestly absurd, palpably unjust, absurdly inconvenient and will lead to anomalous results. Quoting a passage from Craies on Statute Law, Fifth Edition, at page 82 to the effect– “Manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly to be avoided.” Subba Rao, J. (as he then was), has said in M. Pentiah v. Muddala Veeramallappa (AIR 1961 SC 1107) at page 1111, column 1 :
“Lord Davey in Canada Sugar Refining Co. v. R., 1898 AC 735 provides another useful guide of correct perspective to such a problem in the following words:
‘Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter’.”
Applying the test aforesaid I have unhesitatingly come to the conclusion that dispensing with the services of an employee of the Society in the course of disciplinary action, if not covered by Section 48 of the Act, surely comparatively much dwarf in stature and lighter dispute cannot be held to be covered within the four corners of Section 48; rather, such a dispute, in my opinion, as a matter of necessary construction of the words within the parenthesis must be held to have been excluded from the general dispute referred in the main part of Sub-section (1) of Section 48. By necessary implication, such an interpretation does follow.
7. Learned counsel for respondent No. 2 submitted that a case of casus omissus cannot be remedied by the Court. Perhaps the argument was based upon the observations made in several English and Indian authorities, including the one of the Privy Council in Hansraj Gupta v. Official Liquidators of Dehra Dun, etc., Co., (1932) ILR 54 All 1067 = (AIR 1933 PC 63). Lord Russel, delivering the judgment of the Board, said at page 1076 :
“The case may be a casus omissus. If it be so, then it is for others than their Lordships to remedy the defect.”
I am fully conscious of the weighty observations of the Privy Council in the decision aforesaid as also in many other cases. The same thing has been said by the Supreme Court in Nalinakhya Bysack v. Shyam Sunder Haldar (AIR 1953 SC 148) on the basis of the Privy Council decision aforesaid. Had I felt persuaded to take the view that it was a case of casus omissus I would not have ventured to remedy the defect. But, in my opinion, the decision of the Board in Hansraj Gupta’s case itself amply supports the conclusion and the interpretation arrived at and given by me above.
8. Lord Russel said in the case aforesaid that although the words in Section 186 of the Companies Act, 1913, were “any money due”, “for the reason that in view of the place and context in which these words are found, they must be confined in their Lordships’ judgment to money due and recoverable in a suit by the company and they do not include any moneys which at the date of the application under the section could not have been so recovered”. I think I have not departed, as I could not do, from the well established canons of interpretation of statutes. Principles are well settled. The difficulty, as usual, is to find out on which side a particular case will fall. With due care and caution I have found no difficulty in reiterating what I had said in the case of Narkatiagunj C. D. and C. M. Union Ltd., 1970 BLJR 551 on the point under consideration in this case.
9. For the reasons stated above, this writ application is allowed, the award of the Assistant Registrar dated 25-9-1972 (Annexure 5) is quashed by grant of a writ in the nature of certiorari. In the circumstances, there will be no order as to costs.
K.B.N. Singh, J.
10. I agree.
S.K. Jha, J.
11. I agree.