JUDGMENT
Bhagwati Prasad, J.
1. The present revision petition arises out the order of the Chief Judicial Magistrate, Bikaner dated 1.5.1997 whereby he has decided a preliminary objection regarding jurisdiction.
2. The petitioner Bank is a Cooperative Society registered under the Multi State Cooperative Societies Act, 1984 (referred to hereinafter as ‘the Act’. The plaintiff-non-petitioners filed a suit for declaration and injunction alleging inter alia that they were working as employees of the petitioner Bank on the post of Supervisors and they are its employees. The plaintiffs claimed that the pay, allowances, increments, promotion etc. to the employees are given similar to the Railway employees. It is alleged that as per the IVth Pay Commission’s Report which was adopted by the Board of Directors of the Bank, the senior most Upper Division Clerk was entitled to Special Pay of Rs. 70/-. The Board of Directors vide their resolution passed in the Meeting held on 30.7.1996 had ordered that Special Pay, which is being paid to these employees that should be merged with their original pay and accordingly their pay may be fixed and arrears may be paid. The plaintiffs further alleged that though this resolution was duly executed even in January February, 1997 but subsequently on 21.3.1997 On order was issued to keep this decision in abeyance and accordingly the Personnel Department of the Bank was instructed not to execute the order further. It is against this order, the plaintiffs have filed the suit for declaring it invalid and it is prayed that the defendants be restrained from executing the order, dated 21.3.1997. The plaintiffs have also moved an application for interim injunction.
3. The defendants appeared and filed application both in the original suit and the injunction application raising an objection that the civil suit is not maintainable against them in relation to a dispute relating to the service conditions of the petitioner Bank’s employee. The trial court considered that the dispute relates to payment of emoluments. Such a dispute cannot be held to be a dispute touching the constitution, management or business of a Multi State Cooperative Society. That being the position, the civil court has jurisdiction to entertain the suit.
4. Learned counsel for the petitioners submitted that the approach of the trial court was incorrect. According to Section 24 of the Act clearly lays down that as and when there that dispute between the employees of the Multi State Cooperative Society and the management of the Cooperative Society relating to constitution, management and business of the society, the matter shall be referred to the Registrar under Section 74(1) of the Act. Learned counsel for the petitioners has placed reliance on the provisions of Section 74 of the Act. Any dispute required to be referred under Section 74 of the Act to the Registrar is not liable to be taken note of by a civil court as no court shall have jurisdiction in respect of such matters as provided under Section 105 of the Act.
5. Learned counsel for the petitioners has supported his argument by various decisions of the Supreme Court and this Court.
6. In R.C. Tiwari v. M.P. State Cooperative Marketing Federation Ltd. and Ors. , the Hon’ble Supreme Court has held that the language of Section 64 of the M.P. Co-operative Societies Act, 1960 which is para materia to Section 74 of the Act is very wide and the dispute can be referred to the Registrar.
A Division Bench of this Court in Sawai Madhopur Co-operative Marketing Society Ltd. v. Rajasthan State Cooperative Tribunal, Jaipur and Anr. reported in AIR 1991 Raj. 121, has held that the dispute in relation to the validity of the suspension and termination of employee of Co-operative Society is a dispute touching the management of the society and falls within the ambit of Section 75 of the Rajasthan Co-operative Societies Act, 1965, which is para materia to Section 74 of the Act.
7. This Court in Narendra Kumar Tyagi v. Raj. State Coop. Tribunal and Ors., reported in 1985 R.L.R. 614 has held that matter relating to officers of society with regard to their service conditions including dismissal is within the purview of term “touching the management of the society” and as such could be referred to the Registrar. In this case, it has been observed that the Supreme Court in Deccan Merchants Co-operative Bank Ltd. v. M/s. Dalichdnd Jugraj Jain and Ors. and Co-operative Central Bank Ltd. and Ors. etc. v. Additional Industrial Tribunal, Andhra Pradesh have not considered the question as to whether the dispute by the employee regarding his pay or service condition or challenging removal shall be said to be touching the management of the society. Therefore, the ratio laid down by the Hon’ble Supreme Court in these cases will not govern this case.
Reliance has been placed by the learned Counsel for the petitioners on a decision of the Bombay High Court in Maharashtra Cooperative Housing Finance Society Ltd. Bombay and Ors. v. V.S. Loni and another reported in (4) Co-op. Cases 82. wherein it has been held that the term management will include a claim made by an employee of a co-operative society for wages. This Court in Tilam Sangh Rajasthan Sri Ganganager and Anr. v. Kamal Prasad Sharma. reported in 1998 (1) WLC (Raj.) 598, has held that any dispute regarding disciplinary, action taken by the society of its committee against a paid employee of the society has been excluded from the jurisdiction of the civil Court.
Learned counsel for the petitioners in the alternative has also urged that if it is held that the Registrar has no jurisdiction then the matter should be ordered to be adjudicated by the Industrial Tribunal. In this connection, the learned Counsel for the petitioners has placed reliance on The Premier Automobiles. Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., .
Learned counsel for the petitioners has also placed reliance on a Supreme Court decision rendered in The Rajasthan State Road Transport Corporation and another etc. etc. v. Krishna Kant etc. , wherein a dispute between Rajasthan State Road Transport Corporation and its workmen was a subject matter of discussion and it has been held that the Industrial Tribunal will be the forum where the dispute can be adjudicated upon.
8. Per contra learned Counsel for the respondents urged that the argument of the learned Counsel for the petitioners suffers from fallacies. The dispute has been resolved by a Division Bench of this Court in the case of Rajasthan Rajya Sahkari Samitiyan Vyavasthapak Union and Anr. v. The Judge, Industrial, Rajasthan and Anr. reported in 1984 W.L.N. 415. wherein the Division Bench of this Court has held that the dispute in relation to conditions of service does not come within the purview of constitution, management or business of the cooperative society and, therefore, the matter requires to be adjudicated by the Industrial Tribunal. Therefore, the learned Counsel for the respondents urges that Section 74 has no application and the Registrar has no jurisdiction to adjudicate the reference.
9. Learned counsel for the respondents has further urged that in The Premier Automobiles Ltd. (supra) the Hon’ble Supreme Court has held that the matter can be referred to the Industrial Tribunal if the dispute is in relation to a right which is vested in the employee under the Industrial Disputes Act or under the industrial laws. In the instant case, the right of the respondent-plaintiffs flows from the bye-laws and not from the Industrial Disputes Act and, therefore, the matter cannot be referred to the Industrial Tribunal. If the matter cannot be referred to the Industrial Tribunal not being a right accrued to the respondents under the Act and the Registrar cannot adjudicate the reference then the respondents have no other remedy but to go to the civil court for getting their grievance redressed and the civil court is the only forum available to the present plaintiffs.
10. I have considered the rival submissions advanced on behalf of both the parties and have also perused the record.
11. The right of the respondents, which is the subject matter of controversy, is a right flowing from the bye laws. The bye-laws are enforceable in between the employees and the employee who can enforce and adjudicate a dispute under the bye-laws is the controversy in the instant case. Firstly it is to be seen whether the matter can be referred to the Industrial Tribunal.
12. The Hon’ble Supreme Court in Premier Automobiles Ltd. (supra) has laid down the law regarding the exclusion of the jurisdiction of the civil court in relation to the industrial disputes. The following observations have been made by the Hon’ble Supreme Court in this regard:
The principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.
13. By no stretch of imagination it can be said that the right claimed by the respondents is a right which emerges out of any industrial relationship and can be said to be an industrial dispute. Since the dispute does not relate to enforcement of a right or an obligation created under the Act, therefore, it cannot be said that the Industrial Tribunal/forum is the only adjudicatory forum available to the respondents.
14. The law laid down in Premier Automobiles Ltd. (supra) is clear enough and, thus, the argument of the learned Counsel for the petitioners that the Industrial Tribunal is the only forum where the plaintiffs should have moved their claim is negatived.
15. Now, comes to the question of implication of Section 74 of the Act. The Rajasthan High Court in different decisions has taken different views. In Rajasthan Rajya Sahkari Samitiyan Vyavasthapak Union (supra) a Division Bench of this Court has taken the view that dispute like the one which is subject-matter of controversy in the present case does not come within the purview of constitution, management or business of the society. Another Division Bench of this Court in Sawai Madhopur Co-op. Marketing Society Ltd. (supra) has held that the dispute in question relating to validity of suspension and termination of employee of Co-operative Society is a dispute touching the management of the Society. In this case, Hon’ble members of the Division Bench have not considered the decisions of the Division Bench delivered in the case Rajasthan Rajya Sahkari Samitiyan Vyavasthapak Union (supra) and two Single Benches of this Court in Tilam Sangh Rajasthan Sri Ganganagar (supra) and Narendra Kumar Tyagi (supra). In Narendra Kumar Tyagi one of the judges who constituted the Division Bench in Rajasthan Rajya Sahkari Samittyan Vyavasthapak Union was the same. Thus, it will be seen that there is a diversion of opinion on the question whether the conditions of service constitute a subject matter which can be referred to the Registrar.
16. The Hon’ble Supreme Court considered the question of a relief which can be granted by the Registrar in a reference. The matter in hand relates to a right flowing from the bye-laws framed by the society. The Registrar under the Act has not been shown to have any power to enforce these rights. The Hon’ble Supreme Court in the case of Cooperative Central Bank Ltd. v. Additional Industrial Tribunal, Andhra Pradesh and Ors. etc. (supra) has held as under:
Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under Section 61 of the Act. 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…. Since the word ‘business’ is equated with the actual trading or commercial or other 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 employees, 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 dispute touching the business of the society.
The Hon’ble Supreme Court in DM. Cooperative Bank (supra) has held as under:
Further the word ‘dispute’ covers only those disputes which are capable of being resolved by the Registrar or his nominee. It is very doubtful if the word ‘dispute’ would include a dispute between a landlord society and a tenant when the landlord society has not been set up for the purpose of constructing or buying and letting out houses. In the presence of various rents Acts which give special privileges to tenants it would be difficult to state that such disputes were intended to be referred to the Registrar.
The Hon’ble Supreme Court in Gaujat State Co-operative Land Development Bank Ltd. v. P.R. Mankad has considered the ratio of DM. Co-operative Bank and Central Cooperative Bank (supra) and has held as under:
A similar argument was advanced before this Court in Co-operative 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 Section 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 mutates mutandis to the instant case.
17. In view of the above referred decisions of the Supreme Court, it appears very clearly and unambiguously that the Registrar has no right to decide a dispute in reference where service condition are involved. Rights of an employee if they flow from the Industrial Disputes Act then the Industrial Tribunals are the Tribunals where the matter is required to be adjudicated upon. In this case the rights claimed does not flow from the Industrial Disputes Act but flow from the bye-laws. Therefore, the Industrial Tribunal is not the only forum to, the plaintiffs in view of the law laid down by the Hon’ble Supreme Court in Premier Automobiles Ltd. (supra). The terms management’ is not comprehensive enough to include the service conditions of an employee, therefore, the conclusion of the trial court that the civil court has jurisdiction cannot be faulted with.
18. In the result, there is no force in this revision petition and the same is dismissed.