JUDGMENT
O.P. Garg, J.
1. By means of the present writ petition, under Article 226 of the Constitution of India, it is prayed that the award dated July 31, 1998, Annexure 1 to the writ petition, published on February 11, 1999, be quashed. On behalf of the respondent No. 2, Sri Gopal Narain, Advocate has put in appearance. He maintained that since the order dated November 21, 19% terminating the services of the respondent No. 2 has been held to be illegal and unjustified and the workman has been reinstated in service with full back wages, along with Rs. 500 as cost, the petitioner be required to comply with the provisions of Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’).
2. Shri H.R. Misra, appearing on behalf of the petitioner urged that the reference under Section 4-K of the Act and the award made pursuant to the reference, aforesaid, is illegal and not binding on the petitioner for one simple reason that in view of the provisions of Section 135 of the U.P. Co-operative Societies Act, 1965 (hereinafter referred to as ‘the Act of 1965’) the provisions contained in the Act are not applicable to the employees of a registered Co-operative Society. It was prayed that this Court has taken the view in a number of writ petitions and has passed interim orders staying the operation of the awards on the ground that the provisions of Section 135 of the Act of 1965 exclude the jurisdiction of Labour Courts, placing reliance on the decision of this Court in Vikramaditya Pandey v. Industrial Tribunal II and Anr. (1998-III-LLJ (Suppl)-349) (All) and Arvind Kumar Agarwal v. State of U.P. and Ors. 1998 I CLR 971 (All.) Sri H.R. Misra pointed out that the law laid down in the aforesaid two decisions still holds the field and, therefore, the award which has been challenged in this writ petition cannot be enforced on the ground that the reference as well as the award concerning the employees of the registered co-operative societies are illegal and without jurisdiction. Sri Gopal Narain, learned counsel for the respondent No. 2 has repelled the above submission. It was pointed out that the law, as it stands, is that the employees of the U.P. Co-operative Societies are governed by the provisions of the Act and that the exclusion provision contained in Section 135 of the Act of 1965 has not yet been given effect to by making a notification as required under the Act.
3. I have given thoughtful consideration to the matter. Section 135 of the Act of 1965 deals with non-application of certain Acts to Co-operative Societies. It provides that:-
“The provisions contained in the Industrial Disputes Act, 1947 (Act No. XIV of 1947) and the U.P. Industrial Disputes Act, 1947 (U.P. Act No. XVIII of 1947) shall not apply to the Co-operative Societies.”
This provision obviously excludes the applicability of the Industrial Disputes Act, 1947 to the Co-op. Societies but this section has not been enforced. Sub-section (3) of Section 1 of the Act of 1965 envisages that the Act shall come into force from such date as the State Government may by notification in the gazette, appoint in this behalf. Proviso to Section 1 authorises the State Government to declare that any provision to by specified in the declaration shall not come into force from such appointed date and in that event such provision shall come into force from such date or dates as the Government may similarly appoint in that behalf. By notification dated December 30, 1967, published in the U.P. Government Gazette (Ext. Ordinary) dated December 31, 1967, the State Govern-ment in exercise of power under Sub-section (3) of Section 1 of the Act of 1965 declared that all the provisions of the Act excluding Section 135 thereof shall come into force w.e. f. January 26, 1968. No notification appointing, the date of! enforcement of the provisions of Section 135 of the Act has yet been made. This position, therefore, is undisputed and beyond the pale of challenge that the provisions of Section 135 of the Act of 1965 have not been enforced as yet. In the case of Sadhan Sahkari Samiti Basantpur Ltd. v. The Presiding Officer, Labour Court and Anr. 1993 (67) FLR 87, it has been held that so long as the provisions of Section 135 are not enforced, the applicability of the provisions of the Industrial Disputes Act to the Co-operative Societies, cannot be excluded. The submission that the provisions of the Industrial Disputes Act are not attracted to the co-operative societies was rejected as it betrayed utter ignorance: of the legal position. To the same effect were the observations made in the earlier decision of this Court in the case of Manuranipur Kisan Sahkari Sewa Samiti Manuranipur District Jhansi v. State of U.P. and Ors. 1998 (57) FLR 315 (All). In that case also a plea was taken on behalf of the petitioner, a registered co-operative society, that the provisions contained in the Industrial Disputes Act are not applicable and as such the court had no jurisdiction to hear the matter and thus, the dispute between the petitioner and the respondent No. 3 of the case does not come within the purview of Section 2(a) of the Industrial Disputes Act. The plea of exclusion of jurisdiction was raised in view of Section 135 of the Act of 1965. It was held that the exclusion was subject to the notification issued by the State Government and since no notification had been made, the question of ouster of jurisdiction of the Labour Court was unsustainable.
4. The decision of this Court in the case of Arvind Kumar Agarwal (supra) was based on certain observations made in Vikramaditya Pandey’s case (supra), which were quoted in extenso in the case of Arvind Kumar Agarwal (supra). Hon’ble D.K. sETH, J. who had decided Vikramaditya Pandey’s case (supra) has clarified the whole position in a subsequent case of Agra District Co- operative Bank Ltd., Agra v. Labour Court, Agra and Ors. 1998 (80) FLR 40. It was held that though all the sections of Act of 1965 have been given effect to by notification, Section 135 has not yet been given effect to. Therefore, though there was legislative intention to exclude the operation of the Industrial Disputes Act in respect of the disputes arising out of Co-operative Societies Act relating to its employees, but Section 135 having not been given effect to, it cannot be said that the application of the Industrial Disputes Act is excluded. When a specific provision has been made but has not been given effect to, it cannot be said that the application of the Industrial Disputes Act is excluded so far as such disputes are concerned.
5. In another decision of this Court in Civil Misc. Writ No. 6477 of 1991 (decided on January 28, 1999) Sahkari Ganna Vikas Samiti Ltd. Modinagar Dist. Ghaziabad v. State of U.P. and Ors. 1999-m-LLJ (Suppl)-1296 (All). Hon’ble ALOKE CHAKRABARTI, J. has dealt with the question of the forum with reference to Section 135 of the Act of 1965. Placing reliance on the Division Bench decision of this Court in the case of Jai Kishun v. U.P. Co-operative Bank Ltd. 1989 (2) UPLBEC 144, two decisions of Manuranipur Kisan Sahkari Sewa Samiti & Sadhan Sahkari Samiti, (supra) and two decisions of the apex Court in Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad 1979 AIR SC 1203 and R.C. Tiwari v. M.P. State Co-operative Marketing Federation 1997 (5) SCC 125 : 1997-II-LLJ-236 it was held that there is no exclusion of jurisdiction of the forum provided by the U.P. Industrial Disputes Act and that an employee of a cooperative society is amenable to the jurisdiction conferred under the labour law,
6. Sri Gopal Narain further made a reference to the decision of the Apex Court reported in General Manager Telecom v. S. Srinivasa Rao and Ors. 1997 (8) SCC 767 : 1998-I-LLJ-255 and the decision of this Court in the case of Zila Sahkari Bank Ltd. v. Labour Court, Agra and Anr. 1991 II CLR 689 (All).
7. A resume of the above authorities would indicate that it was only in the case of Vikramaditya Pandey (supra) that this Court for the first time has held that even though no notification applying the provisions of Section 135 of the Act of 1965 had been made by the State Government the intention of the legislature was to exclude the application of the Industrial Disputes Act. The reasoning adopted in the said case has been given a complete go-by in the subsequent decision of Agra Dist. Co-operative Bank’s case (supra) by the same learned single Judge (Hon’ble D.K. sETH, J.). As said above the decision in Arvind Kumar Agarwal’s case (supra) rests on the observations in Vikramaditya Pandey’s case (supra) which will also stand explained by the subsequent decision in Agra Dist. Co-operative Bank (supra). The earlier decisions in the case of Manuranipur Kisan Sahkari Sewa Samiti & Sadhan Sahkari Samiti (supra) were not considered. The firm view, as it stands, is that since no notification to apply Section 135 of the Act of 1965 has been made, it does not exclude the applicability of the U.P. Industrial Disputes Act to the registered co-operative society and its employees. The primary ground of challenge raised by Sri. H.R. Misra on behalf of the petitioner that the provisions of the Industrial Disputes Act, 1947 were not applicable to the petitioner co-operative society and its employees and that the reference as well as impugned award are without jurisdiction, is otiose. The petitioner society was and is amenable to the labour laws and the validity of the award cannot be challenged on the ground aforesaid.
8. The validity of the award has further been challenged on the ground that the findings recorded by the Labour Court are in clear violation of Regulation 84 of the Employees Service Regulations, 1975. This plea requires scrutiny.
9. Let a counter affidavit be filed within six weeks on behalf of the respondent No. 2 and list thereafter.
10. In the meantime, the operation of the impugned award dated July 31, 1998, published on February 11, 1999, a copy of which is Annexure 1 to the writ petition shall remain stayed provided:-
(1) the backwages to the extent of 50 per cent payable under the award are deposited with the concerned Labour Court within two months from today;
(2) a sum equal to wages payable to the workman from the date of the award till the last preceding month are paid to the respondent workman within two months from today and,
(3) wages at the rate admissible under Section 17-B of the U.P. Industrial Disputes Act, 1947 for the succeeding months shall be paid to the respondent-workmen, month by month basis, till further orders of this Court.
The backwages so deposited in terms of this order, shall be invested in some Nationalized Bank by the concerned Labour Court under an interest earning term deposit scheme. This deposit shall be subject to the ultimate decision of this petition. In the event of default in complying with any of the aforementioned conditions, the present stay order shall automatically come to an end and award in question shall become enforceable and recovery proceedings, if any shall revive.
