PETITIONER:
GUJARAT STATE COOPERATIVE LAND DEVELOPMENT BANK LTD.
Vs.
RESPONDENT:
P. R. MANDED AND ORS.
DATE OF JUDGMENT23/01/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 1203 1979 SCC (3) 123
ACT:
New plea, entertainments of-Not permissible at the
appellate level.
Bombay Co-operative Societies Act, 1925, (Bombay Act
VII of 1925) Section 54 and Section 96 of the Gujarat Co-
operative Societies Act, 1961-Scope of the words "any
dispute touching the business of the society" Bombay
Industrial Relations Act, 1946 (Bombay Act 11 of 1947)
Section 2(4) notification under, read with s. 166(1) of the
Gujarat Co-operative Societies Act, 1961, effect of.
HEADNOTE:
The appellant Bank was a society registered under the
Bombay Co-operative Societies Act, 1925 and with the coming
into force from May 1, 1962 of the Gujarat Co-operative
Societies Act, 1961, it came to be governed by the said Act.
By Notification No. BIR-1362-5-H dated March 2, 1963, the
Government of Gujarat directed under s. 2(4) of the Bombay
Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that
all the provisions of the said Act shall apply with effect
from March 15, 1963 to the business of banking by Co-
operative Banks in the Saurashtra and Kutch areas of the
State, registered and deemed to be registered under the
Gujarat Co-operative Societies Act, 1961.
The second respondent, Babu Bhai Negracha who was
working as an additional supervisor in the Dasada Branch of
the appellant Bank and whose services were terminated by an
order dated February 21, 1962, by giving him one month's pay
in lieu of notice under Staff Regulation No. 15, filed an
application in the Labour Court Rajkot, alleging that his
services had been illegally and maliciously terminated as an
act of victimisation on account of his trade union
activities and praying for setting aside the order of his
termination of service and for reinstatement with full back
wages.
The Labour Court by its order dated June 11, 1963,
over-ruled the preliminary objection raised by the appellant
Bank, namely, that "the Bombay Industrial Relations Act,
1946 under which the application was made by the respondent
was not applicable to its case, as it was a co-operative
society governed by the Gujarat Co-operative Societies Act,
under which only the Registrar or his nominee had
jurisdiction to decide the dispute, and the Labour Court had
no jurisdiction to entertain and decide the application".
The appellant Bank's writ petition challenging the said
order of the Labour Court was dismissed by the Gujarat High
Court by its judgment dated August 25, 1967.
Dismissing the appeal by certificate, the Court
^
HELD: 1. No new plea can be raised for the first time
in the Supreme Court, as a matter of right. In the instant
case, the new plea that "the appellant is not doing banking
business" was not entertained for the reasons
1024
namely (i) it was much too belated; (ii) it stood in direct
contradiction to the position taken by the appellant in its
writ petition and the affidavit in support thereof in the
High Court wherein it had been clearly admitted that "the
society is engaged in the business of banking" and (iii) it
was not a purely legal plea but a mixed plea of law and fact
and could not be determined on the basis of material already
on the record. [1027 F-G]
2. The expression "any dispute" referred to in Section
54 of the Bombay Cooperative Societies Act, 1925 and in
Section 96 of the Gujarat Cooperative Societies Act, does
not cover a dispute of the kind raised by respondent 2
against the appellant-bank. [1034 C]
(a) It is clear from the object and the scheme of the
Acts of 1925 and 1961 that the legislature never intended to
give such a wide scope to the expression "any dispute" so as
to cover all classes of disputes whatever be their nature as
the prefix "any" to "dispute" appears to give. The term
"dispute" means a controversy having both positive and
negative aspects. It postulates the assertion of a claim by
one party and its denial by the other.
[1031 C-D]
(b) The expression "any dispute" has not been defined
in the Acts of 1925 and 1961. This expression has been used
in a narrower sense limited to contested claims of a civil
nature, which could have been decided by civil or revenue
courts, but for the provisions with regard to compulsory
arbitration by the Registrar or his nominee found in Section
54 of the Bombay Act of 1925 and in Section 96 of the
Gujarat Act, 1961. The words "as if the dispute were a suit
and the Registrar as Civil Court" occurring in sub-section
(k) of Section 97 of the Gujarat Act, also make this
position clear. [1031 C, D, E, G]
(c) The compulsory arbitration by the Registrar on
reference under s. 96 is only a substitute for adjudication
of disputes of a civil nature normally tried by the Civil
Court. It is incumbent, under sub-section (2) of s. 96 of
the 1961 Act, on the Registrar to decide as a preliminary
issue, whether the dispute is of a kind under sub-section
(1) of s. 96 falling within his jurisdiction. If this
preliminary issue is found in the negative he will have no
further jurisdiction to deal with the matter. [1031 F, G-
1032 F]
(d) Thus considered, a dispute raised against the
Society by its discharged servant claiming reliefs, such as,
reinstatement in service with back wages, which are not
enforceable in a civil court, is outside the scope of the
expression "touching the management of the Society" used in
s. 96(1) of the Act of 1961, and the Registrar has not
jurisdiction to deal with and determine it. What has been
directly bidden "out-of-bounds" for the Registrar by the
very scheme and object of the Act, cannot be directly
inducted by widening the connotation of 'management'. Such a
dispute squarely falls within the jurisdiction of the Labour
Court under the Bombay Industrial Relations Act. [1036 E-G]
3. The law of Industrial disputes or Industrial
Relations is a special law dealing with rights and
obligations specially created by it. The provisions in s. 54
of the Bombay Act and in s. 96 of the Gujarat Act being
general provisions in accordance with the maxim generalia
specialibus non derogant, nothing in these general
provisions can derogate from Bombay Industrial Relations
Act, and the Cooperative Societies Act must yield to the
special provi-
1025
sions in the Bombay Industrial Relations Act, whenever a
dispute clearly comes within the language of the latter Act.
Section 166(1) of the Gujarat Act, in terms, bars the
jurisdiction only of Civil or Revenue Court, and not of the
Labour Court or any Industrial Tribunal constituted under
the Bombay Industrial Relations Act or Industrial Disputes
Act. The legislature never intended to oust the jurisdiction
of the Labour Court or the Industrial Tribunal to determine
claims and industrial disputes which cannot be adjudicated
by the ordinary Civil Court. [1032 H, 1033 A, 1034 A-B]
In the instant case :
(a) The Labour Court is competent to grant the relief
of reinstatement while in view of s. 21(b) of the Specific
Relief Act, then in force, the Civil Court was not competent
to grant that relief. If a Court is incapable of granting
the relief claimed, normally the proper construction would
be that it is incompetent to deal with the matter. [1033 F,
H]
(b) The dispute was raised by the second respondent by
writing an approach letter to his employee, the appellant,
as required by the Bombay Industrial Relations Act. In
substance, it was an industrial dispute. It was not
restricted to a claim under the contract or agreement of
employment. [1033 F-G]
(c) The rights and reliefs claimed by the second
respondent could not be determined and granted by a Civil
Court in a suit. His allegation was that his services were
terminated unfairly and vindictively because of his
legitimate trade union activities, as an act of
victimisation. The relief claimed is reinstatement in
services with back wages. The rights claimed are those which
are conferred on workmen and employees under the Bombay
Industrial Relations Act to ensure social justice. Such
rights which do not stem from the contract of employment can
be enforced only in the Labour Court constituted under
B.I.R. Act. [1033 B-F]
Jullundur Transport Cooperative Societies Ltd. v.
Punjab State, AIR 1959 Pun. 34; approved.
Rohtas Industries Ltd. v. Brijnandan Pandey, [1956] SCR
800; referred to.
(d) Neither the Registrar nor his nominee will be
competent to grant the relief of requiring change in the
service conditions of the employee. Such a relief could be
granted by the Industrial Tribunal which under the
Industrial Disputes Act, has the jurisdiction even to vary
contracts of service between an employer and employees.
[1037 C-D]
Co-operative Central Bank Ltd. v. Additional Industrial
Tribunal, Hyderabad [1970] 1 SCR 205; applied.
Farkhundali Naunhay v. V. B. Potdar, AIR 1962 Bom. 362
over-ruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 236 of
1969.
Appeal from the Judgment and Order dated 24/25th August
1967 of the Gujarat High Court in SCA No. 585/63.
S. K. Dholakia and R. C. Bhatia for the Appellant.
1026
P. Ram Reddy, Amicus Curiae for Respondent No. 2.
The Judgment of the Court was delivered by
SARKARIA, J. The appellant is the Gujarat State
Cooperative Land Development Bank Ltd. (hereafter referred
to as the Bank). It is a Society registered under the Bombay
Cooperative Societies Act, 1925, as applicable to the
erstwhile State of Saurashtra. According to the appellant’s
writ petition, it is doing banking business. It has 127
Branches spread all over the State of Gujarat. One of its
Branches is in Dasada, Surendranagar District. The Head
Office of the Bank is at Ahmedabad.
The second respondent, Babu Bhai Negracha, was serving
as an Additional Supervisor in the Dasada Branch of the
Bank. His services were terminated by an order, dated
February 21, 1962, by giving him one month’s pay in lieu of
notice under Staff Regulation No. 15.
The Gujarat Cooperative Societies Act, 1961, came into
force from May 1, 1962, and the appellant-Bank, being a
Society, under the Cooperative Societies Act, came to be
governed by the said Act.
By Notification No. BIR-1362-5-H, dated March 2, 1963,
published in the Gujarat Gazette in March 1963, the
Government of Gujarat directed under Section 2(4) of the
Bombay Industrial Relations Act, 1946 (Bombay Act 11 of
1947) that all the provisions of the said Act shall apply
with effect from March 15, 1963 to the business of banking
by Cooperative Banks in the Saurashtra and Kutch areas of
the State, registered and deemed to be registered under the
Gujarat Cooperative Societies Act, 1961.
Aggrieved by the termination of his service, the second
respondent approached the appellant’s Dasada’s Branch by a
letter, dated August 20, 1962, stating that since his
services were terminated illegally by way of victimisation,
he should be reinstated in the service.
Thereafter, the second respondent filed an application
in the Labour Court at Rajkot, alleging that his service had
been illegally and maliciously terminated as an act of
victimisation on account of his trade union activities. He
prayed for setting aside the order of his termination of
service and for reinstatement with full back wages.
The Bank filed a written statement, raising a
preliminary objection that the Bombay Industrial Relations
Act, 1946, under which the application was made by the
respondent, was not applicable to its case, as it was a
Cooperative Society governed by the Gujarat Co-operative
Societies Act, under which only the Registrar or his nominee
1027
had jurisdiction to decide the dispute, and the Labour Court
had no jurisdiction to entertain and decide the application
of the second respondent.
By its Order, dated June 11, 1963, the Labour Court
overruled this objection and held that it had jurisdiction
to hear the application.
The Bank then filed a writ petition under Article 226
of the Constitution in the High Court to challenge the Order
of the Labour Court. The High Court by a common judgment
dated August 25, 1967 dismissed the writ petition, but in
view of the importance of the question of law involved,
granted a certificate of fitness for appeal to this Court.
On the strength of that certificate, the Bank has come
in appeal before us against the aforesaid judgment of the
High Court.
In this Court on January 22, 1969, the Bank made an
application for leave to urge as additional ground, namely,
that the Bank is not doing banking business, i.e. accepting
for the purpose of lending or investment of deposits of
money from the public, repayable on demand or otherwise, and
withdrawable by cheque, draft, order or otherwise as defined
in Section 5, Clauses (b) and (c) of the Banking Companies
Act, 1949; and that this being the true position, the
Notification No. DIR-1362-IV-H dated March 2, 1963,
published in the Gujarat Government Gazette dated March 7,
1963, under Section 2(4) of the Bombay Industrial Relations
Act, 1946 (Bombay Act XI of 1947) is not applicable to the
appellant. This application was strenuously opposed by Shri
Ram Reddy, who is assisting the Court as amicus curiae on
behalf of respondent 2, who has not been able to appear and
defend himself in this appeal.
We have declined permission to raise this new plea for
the first time in this Court, for these reasons: (i) It is
much too belated; (ii) It stands in direct contradiction to
the position taken by the appellant in its writ petition and
the affidavit in support thereof filed in the High Court.
Therein, the appellant had categorically pleaded: “The
petitioner is a Society registered under the Bombay
Cooperative Societies Act, 1925 (Bombay Act VII of
1925)….and is engaged in the business of banking.” (iii)
It is not a purely legal plea but a mixed plea of law and
fact, and cannot be determined on the basis of material
already on the record.
We, therefore, take it that the appellant is a
Cooperative Society engaged in the business of banking and,
as such, the Bombay Industrial
1028
Relations Act, 1946 is applicable to it by virtue of the
aforesaid Notification dated March 2, 1963, issued by the
State Government under Section 2(4) of that Act.
The arguments of Mr. Dholakia, appearing for the
appellant, may be summarised as follows:
(i) The case is governed by the Gujarat Cooperative
Societies Act, 1961 (hereafter called the Act of 1961) and
not by the Bombay Cooperative Societies Act, 1925 (hereafter
referred to as the Act of 1925).
(ii) The phrase “any dispute touching…..the business
of the Society”, particularly the word “touching” therein,
is of very wide amplitude. It would comprehend any matter
which relates to, or concerns or affects the business of the
Society. Every society, ex-necessitiate employs some
servants for the purpose of carrying on its business. That
being so, the payment of wages, appointment and removal of
its servants under law is a part of the business or
“touches” the business of the Society. (Reliance for this
argument has been placed on Farkhundali Naunhay v. V. B.
Potdar (1).
(iii) Even if contention (ii) is not accepted, the
dispute raised by the respondent, Babu Bhai Negracha is one
“touching the management of the Society”. The expression
‘management’ takes in the entire staff or establishment of
servants which run the affairs of the Society.
(iv) Once it is held that the dispute between the
Society and its past servant, Babu Bhai Negracha, touches
the “business” or the “management” of the Society, or both,
within the meaning of Section 96, the Registrar or his
nominee, alone, shall have jurisdiction to adjudicate such
dispute by compulsory arbitration; and the non-obstante
clause in the Section shall bar the determination of that
dispute by the Industrial Tribunal or the Labour Court under
the Bombay Industrial Relations Act.
As against the above, Mr. Rama Reddy, amicus curiae,
submitted as under:
(i) Since the services of the second respondent were
terminated on February 21, 1962, before the Act of 1961 came
into force, the Act relevant for this discussion is the Act
of 1925.
(ii) Irrespective of whether the Act of 1925 or the Act
of 1961 governs the appellant-Society, the expression “any
dispute” commonly occurring in Section 54 of the Act of 1925
and Section 96 of the
1029
Act of 1961, is restricted in its scope to a dispute of a
civil nature which is capable of being resolved by the
Registrar or his nominee, and does not take in an industrial
dispute between the Society and its workmen which under the
B.I.R. Act is triable by the Labour Court/Industrial
Tribunals, only.
(iii) B.I.R. Act is a special law, dealing with the
special subject of industrial disputes, which in their
nature are essentially different from ordinary Civil
disputes between an employer and his employee governed by
the Law of Contract, B.I.R. Act provides for a special
machinery for adjudication of industrial disputes. As
against this, the Cooperative Societies Act of 1925/or of
1961 is a general enactment and it must yield to the B.I.R.
Act whenever the provisions of the latter by their language
are clearly applicable to a dispute. Reference has been made
to Jullundur Transport Cooperative Society Ltd. v. Punjab
State(1).
(iv) The scope of the expression “any dispute touching
the business of the Society”, occurring in Section 54 of the
Act of 1925/or Section 96 of the Act of 1961 is limited to
disputes directly relating to the actual trading or
commercial activities of the Society. This expression does
not take in a dispute between the Society and its employee
relating to the conditions of his employment, which will
include the termination of his employment. This point is
concluded by the decision of this Court in Cooperative
Central Bank Ltd. v. Additional Industrial Tribunal,
Hyderabad(2), which follows the ratio of its earlier
decision in Deccan Merchants Cooperative Bank Ltd. v.
Dalichand Jungraj Jain(3). In view of these decisions, the
ratio of Farkhundali’s case (ibid) decided by the Bombay
High Court, is no longer good law.
(v) The expression “management” in Section 96 of the
Act of 1961, means “the Board of Directors”, or “the Board
of Trustees”, or the “Managing Committee” or “Executive
Body” which has the overall control of the affairs and
business of the Society, and it does not include the
individual workers or employees, individual workmen or
employees of the Society who carry on the day-to-day
administration of the Society; nor will it take in matters
touching the service conditions of the servants of the
Society such as their appointment to service or their
discharge, removal from service and their wages. A dispute
of the kind raised by the second respondent, therefore,
1030
will not fall within the purview of the phrase “any dispute
touching the management of the Society” used in Section 96.
Before appreciating the contentions canvassed on both
sides, it is necessary to notice the relevant provisions of
the Act of 1925 and the Act of 1961.
The relevant part of Section 54 of the Act of 1925,
reads thus:
“(1) (a) If any dispute touching the constitution
or business of Society arises between members or past
members of the Society or persons claiming through a
member or a past member or between members or past
members or persons so claiming and any officer, agent
or servant of the Society or its Committee, and any
officer, agent, member or servant of the Society past
or present, it shall be referred to the Registrar for
decision by himself or his nominee…”
The corresponding Section 96 of the Act of 1961 lays down:
“(1) Notwithstanding anything contained in any
other law for the time being in force, any dispute
touching the constitution, management or business of a
Society shall be referred in the prescribed form…..if
the parties thereto are from amongst the following:-
(a) a Society, its Committee, any past Committee,
any past or present officer, any past or
present agent, any past or present servant or
nominee, heir or legal representative of any
deceased officer, deceased agent or deceased
servant of the Society, or the Liquidator of
the Society….”
A comparison between the portions of the two Sections,
extracted above, brings out two points of difference.
Firstly, in Section 54, there is no non-obstante clause,
while Section 96(1) begins with the words “Notwithstanding
anything contained in any other law for the time being in
force”. Secondly, while in Section 54, the word ‘management’
does not occur, in the corresponding Section 96(1) of the
1961 Act, the word ‘management’ has been inserted in-between
the words ‘constitution’ and ‘business’.
It is significant to note that the phrase “any dispute
touching the constitution…. or business of the Society” is
a common feature of both the aforesaid Sections. We
emphasise this fact, because it is this common feature,
rather than the points of difference between the two
Sections, that holds the key to a correct solution of the
problem before us.
1031
From a conspectus of the decisions cited at the Bar, we
may devise two broad tests to determine the points in
controversy in the instant case. First, whether the
expression “any dispute” spoken of in Section 54 of the Act
of 1925, and Section 96 of the Act of 1961, is one which is
capable of being resolved by the Registrar or his nominee
under the relevant Cooperative Societies Act? Second,
whether a dispute raised by a servant against his employer,
the Cooperative Society, for setting aside his removal from
service on the ground that it was an act of victimisation
and for reinstatement in service with back wages, is one
“touching the management or business of the Society” within
the contemplation of the said provisions?
As regards the first test, it is to be noted that the
expression “any dispute” has not been defined in the Acts of
1925 and 1961. The term “dispute” means a controversy having
both positive and negative aspects. It postulates the
assertion of a claim by one party and its denial by the
other. The word “any” prefixed to “dispute” may at first
glance, appear to give the expression “any dispute” a very
wide amplitude covering all classes of disputes, whatever be
their nature. But the context of these provisions, the
object and scheme of the Acts of 1925/1961 show that the
Legislatures never intended to give such a wide scope to
this expression. The related provisions and the scheme of
the Acts unerringly indicate that the expression “any
dispute” has been used in a narrower sense limited to
contested claims of a civil nature, which could have been
decided by civil or revenue courts, but for the provisions
with regard to compulsory arbitration by the Registrar or
his nominee, found in Section 54 of the Act of 1925/96 of
the Act of 1961. The first indication of this being the
right construction, is discernible in sub-section (2) of
Section 96 which states that when any question arises
whether for the purposes of sub-section (1) a matter
referred to for decision is a dispute or not, the question
shall be considered by the Registrar, whose decision shall
be final. This means, it is incumbent on the Registrar to
decide as a preliminary issue, whether the dispute is of a
kind under sub-section (1) of Section 96 falling within his
jurisdiction. If this preliminary issue is found in the
negative, he will have no further jurisdiction to deal with
the matter.
A further clue to the interpretation of “any dispute”
used in Section 96(1) is available in Section 97(1) which
prescribes periods of limitation for disputes of the kind
specified in its clauses (a) and (b), referred to the
Registrar under Section 96. Sub-section (2) of Section 97
which is in the nature of a residuary provision, states that
the period of limitation in the case of any dispute other
than those mentioned in sub-section (1) which are required
to be referred to the
1032
Registrar under Section 96, shall be regulated by the
provisions of the Indian Limitation Act, “as if the dispute
were a suit, and the Registrar as Civil Court”. The last
clause of sub-section (2) which has been underlined,
unmistakably shows that only disputes of a civil nature
which could be the subject of civil suits triable by
ordinary civil courts, will fall within the scope of the
expression “any dispute” used in Section 96(1).
Another definite pointer to the above being the right
construction of “any dispute” is available in sub-section
(3) of Section 98 which provides:
“Notwithstanding anything contained in Section 96,
the Registrar may, if he thinks fit, suspend
proceedings in regard to any dispute, if the question
at issue between a society and a claimant or between
different claimants, is one involving complicated
question of law or fact, until the question has been
tried by a regular suit instituted by one of the
parties or by the society. If any such suit is not
instituted within two months from the Registrar’s order
suspending proceedings, the Registrar shall take action
as is provided in sub-section (1).”
It is noteworthy that this sub-section is substantially
in the same terms as the proviso to sub-section (1) of
Section 54 of the Act of 1925, extracted earlier.
The proviso to sub-section (1) of Section 54 of the Act
of 1925 corresponding to sub-section (3) of Section 98 of
the Act of 1961, unmistakably shows that the compulsory
arbitration by the Registrar, on a reference under Section
96, only a substitute for adjudication of disputes of a
civil nature normally tried by civil courts.
Further indication regarding the nature of disputes
which the Registrar may determine, is furnished by Section
166(1) which provides:
“166(1). Bar of jurisdiction of Courts : Save as
expressly provided in this Act, no Civil or Revenue
Court shall have any jurisdiction in respect of-
(a) …………
(b) any dispute required to be referred to the
Registrar, or his nominee, or board of
nominees, for decision.”
It will be seen that Section 166, in terms, bars the
jurisdiction only of Civil or Revenue Court, and not of the
Labour Court or any
1033
Industrial Tribunal constituted under the B.I.R. Act or
Industrial Disputes Act to adjudicate industrial disputes.
It is clear that the Legislature never intended to oust the
jurisdiction of the Labour Court or the Industrial Tribunal
to determine claims and industrial disputes which cannot be
adjudicated by the ordinary Civil Courts.
Now, let us turn to the nature of the dispute raised by
the second respondent. Is it a dispute relating to a right
which he could establish by filing a suit in a Civil Court?
-assuming for the moment that nothing in the relevant
Cooperative Societies Act is a bar to such a suit. The
answer must be in the negative. The respondent is not
claiming a civil right arising from the contract of
employment with the appellant-Bank. What he is claiming is
not enforcement of any term of the contract of his
employment on the part of his employer. He is alleging that
his services have been terminated unfairly and vindictively
because of his legitimate trade union activities, as an act
of victimisation. The relief claimed by him is of
reinstatement in service with back wages. The rights and
reliefs which he is claiming could not be determined and
granted by a Civil Court in a suit. As Luding Teller puts
it, “a Court of Law proceeds on the footing that no power
exists in the Courts to make contracts for people and the
parties must make their own contracts. The Courts reach
their limit of power when they enforce contracts which the
parties had made.” (Quoted with approval in Rohtas
Industries Ltd. v. Brijnandan Pandey.(1) The rights claimed
by the second respondent are those which are conferred on
workmen and employees under the Bombay Industrial Relations
Act, to ensure social justice. Such rights which do not stem
from the contract of employment can be enforced only in the
Labour Court constituted under the B.I.R. Act. The Labour
Court is competent to grant the relief of reinstatement
claimed by the respondent, while in view of Section 21(b) of
the Specific Relief Act, then in force, the Civil Court was
not competent to grant that relief.
The dispute was raised by the second respondent by
writing an approach letter to his employer, the appellant,
as required by the Bombay Industrial Relations Act. In
substance, it was an industrial dispute. It was not
restricted to a claim under the contract or agreement of
employment. The Civil Court cannot grant the reliefs claimed
by the second respondent. As rightly submitted by Mr. Rama
Reddy, if a Court is incapable of granting the relief
claimed, normally, the proper construction would be that it
is incompetent to deal with the matter.
1034
The matter can be looked at from another angle, also.
The law of industrial disputes or industrial relations is a
special law dealing with rights and obligations specially
created by it. As against this, the provision in Section 54
of the Act of 1925/Section 96 of the Act of 1961 is a
general provision. In accordance with the maxim generalia
specialibus non derogant, therefore, nothing in these
general provisions can derogate from B.I.R. Act and the
Cooperative Society Act must yield to the special provisions
in the Bombay Industrial Relations Act, whenever a dispute
clearly comes within the language of the latter Act.
In the light of the above discussion, the conclusion is
inescapable that the expression “any dispute” referred to in
Section 54 of the 1925 Act/Section 96 of the 1961 Act, does
not cover a dispute of the kind raised by respondent 2
against the appellant-Bank.
Coming now to the second test, it may be observed that
to a part of it, the pronouncement of this Court in
Cooperative Central Bank Ltd. v. Additional Industrial
Tribunal, Hyderabad (ibid), furnishes a complete answer,
wherein the interpretation of this very phrase “touching the
business of the Society” occurring in Section 61 of Andhra
Pradesh Cooperative Societies Act, 1964, which largely
corresponds to Section 96 of the Gujarat Act, 1961, came up
for interpretation. The subject-matter of the dispute was
divided into three issues. The first issue comprised a
number of service conditions including inter alia salary,
scales and adjustment or dearness allowance, conveyance
charges, provident fund and gratuity, etc.
It was contended on behalf of the Bank that the effect
of Section 61 and other provisions of Andhra Pradesh
Cooperative Societies Act was to exclude the jurisdiction of
the Industrial Tribunal to deal with such disputes under the
Industrial Disputes Act. After noticing a number of
decisions and after referring to the previous decision of
this Court in Deccan Cooperative Bank, the Court negatived
the contention with these observations:
“The dispute related to alteration of a number of
conditions of service of the workmen which relief could
only be granted by an Industrial Tribunal dealing with
an industrial dispute. The Registrar, it is clear from
the provisions of the Act, could not possibly have
granted the reliefs claimed under this issue because of
the limitations placed on his powers in the Act
itself…. The word “business” is equated with the
actual trading or commercial or other
1035
similar business activity of the society, and since it
has been held that it would be difficult to subscribe
to the proposition that whatever the society does or is
necessarily required to do for the purpose of carrying
out its objects, such as laying down the conditions of
service of its employee, can be said to be a part of
its business, it would appear that a dispute relating
to conditions of service of the workmen employed by the
society cannot be held to be a dispute touching the
business of the society…Thus it is clear that in
respect of the dispute regarding the alteration of
various conditions of service, the Registrar or other
person dealing with it under Section 62 of the Act is
not competent to grant the relief claimed by the
workmen at all. On the principle laid down by this
Court in the case of the Deccan Merchants Cooperative
Bank Ltd., Civil Appeal No. 358 of 1967 dated 29-8-68,
AIR 1969 SC 1320 (supra) therefore, it must be held
that this dispute is not a dispute covered by the
provisions of Section 61 of the Act. Such a dispute is
not contemplated to be dealt with under Section 62 of
the Act and must therefore, be held to be outside the
scope of Section 61.”
The observations quoted above, negate contention (ii)
advanced by Mr. Dholakia.
It however, remains to be considered whether the
dispute raised by the second respondent in the present case,
comes within the purview of the expression “touching the
management of the Society” used in Section 96(c) of the Act
of 1961.
In this connection, it may be noticed that just as in
Section 96(1), in Section 61 of the Andhra Pradesh
Corporation Societies’ Act, 1964, also, which came up for
consideration in Cooperative Central Banks’ case before this
Court, the term management does occur in the collocation of
words “constitution, management or business”. But no
specific argument seems to have been then raised that a
dispute between the Society and its former servants relating
to the conditions of service, comes within the purview of
the expression ‘touching the management of the Society’.
Perhaps, it was taken for granted that if the dispute was
not comprehended by the expression “business of the
Society”, it would not be covered by the words “management
of the Society”, either. Although there is little discussion
in the judgment about the ambit and import of the expression
“management”, yet in conclusion, it was clearly and
emphatically held
1036
that the dispute in that case was “outside the scope of
Section 61.”
We will now, focus attention on the expression
“management of the Society” used in Section 96(1) of the Act
of 1961. Grammatically, one meaning of the term ‘management’
is: ‘the Board of Directors’ or ‘the apex body’ or Executive
Committee at the helm which guides, regulates, supervises,
directs and controls the affairs of the Society’. In this
sense, it may not include the individuals who under the
over-all control of that governing body or Committee, run
the day-to-day business of the Society. (see Words and
phrases, by West Publishing Co. Permanent Edition, Vol. 26,
page 357, citing, Warner & Swasey Co. v. Rusterholz D. C.
Minn.(1). Another meaning of the term ‘management’, may be:
‘the act or acts of managing or governing by direction,
guidance, superintendence, regulation and control the
affairs of a Society.’
A still wider meaning of the term which will encompass
the entire staff of servants and workmen of the Society, has
been canvassed for by Mr. Dholakia. The use of the term
‘management’ in such a wide sense in Section 96(1) appears
to us, to be very doubtful.
Be that as it may, what has been directly bidden “out-
of-bounds” for the Registrar by the very scheme and object
of the Act, cannot be indirectly inducted by widening the
connotation of ‘management’. A construction free from
contexual constraints, having the effect of smuggling into
the circumscribed limits of the expression “any dispute”, a
dispute which from its very nature is incapable of being
resolved by the Registrar, has to be eschewed. Thus
considered, a dispute raised against the Society by its
discharged servant claiming reliefs, such as reinstatement
in service with back wages, which are not enforceable in a
Civil Court, is outside the scope of the expression
“touching the management of the Society” used in Section
96(1) of the Act of 1961, and the Registrar has no
jurisdiction to deal with and determine it. Such a dispute
squarely falls within the jurisdiction of the Labour Court
under the B.I.R. Act.
Learned counsel for the appellant tried to argue as a
last resort that the relief sought by the second respondent
could be granted by the Registrar by relaxing or moulding
the Staff Regulations and Bye-laws which lay down conditions
of service governing the employees of the Society. It is
pointed out that under the Act of 1961, the Registrar has
the power to amend or modify such Regulations and Bye-laws.
1037
We find no merit in this contention, also.
A similar argument was advanced before this Court in
Cooperative Central Bank’s Case, ibid, and was repelled
inter alia, with the reasoning that the bye-laws of the
Bank, containing the conditions of service were in the
nature of a contract between the Bank and its employees and
a change of such bye-laws, embodying the conditions of
employment, “could not possibly be directed by the Registrar
where, under s. 62 (4) of the (ANDHRA) Act, he is
specifically required to decide the dispute referred to him
in accordance with the provisions of the bye-laws”. It was
further observed that a dispute referred to the Registrar
can even be transferred for disposal to a person who may
have been invested with powers in that behalf, or may be
referred for disposal to an arbitrator. But neither the
Registrar nor his nominee will be competent to grant the
relief requiring a change in the service conditions of the
employees, under section 62 of the Andhra Act. Such a relief
could be granted only by the Industrial Tribunal which under
the Industrial Disputes Act, has the jurisdiction even to
vary contracts of service between an employer and employees.
This reasoning is applicable mutatis mutandis to the instant
case.
For all the foregoing reasons, the appeal fails and is
dismissed with costs. In token of our gratitude for the
valuable assistance rendered to us by Shri Rama Reddy as
amicus curiae, we direct that an honorarium of Rs. 1500/- be
paid to him, which shall be taxed as costs awarded against
the appellant.
V.D.K. Appeal dismissed.
1038