{"id":228109,"date":"1979-01-23T00:00:00","date_gmt":"1979-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gujarat-state-cooperative-land-vs-p-r-manded-and-ors-on-23-january-1979"},"modified":"2015-09-16T17:34:22","modified_gmt":"2015-09-16T12:04:22","slug":"gujarat-state-cooperative-land-vs-p-r-manded-and-ors-on-23-january-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gujarat-state-cooperative-land-vs-p-r-manded-and-ors-on-23-january-1979","title":{"rendered":"Gujarat State Cooperative Land … vs P. R. Manded And Ors on 23 January, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gujarat State Cooperative Land … vs P. R. Manded And Ors on 23 January, 1979<\/div>\n
Equivalent citations: 1979 AIR 1203, \t\t 1979 SCC (3) 123<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nGUJARAT STATE COOPERATIVE LAND DEVELOPMENT BANK LTD.\n\n\tVs.\n\nRESPONDENT:\nP. R. MANDED AND ORS.\n\nDATE OF JUDGMENT23\/01\/1979\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1979 AIR 1203\t\t  1979 SCC  (3) 123\n\n\nACT:\n     New plea,\tentertainments\tof-Not\tpermissible  at\t the\nappellate level.\n     Bombay Co-operative  Societies Act,  1925, (Bombay\t Act\nVII of\t1925) Section  54 and  Section 96 of the Gujarat Co-\noperative  Societies  Act,  1961-Scope\tof  the\t words\t\"any\ndispute\t touching   the\t business  of  the  society\"  Bombay\nIndustrial Relations  Act, 1946\t (Bombay  Act  11  of  1947)\nSection 2(4)  notification under, read with s. 166(1) of the\nGujarat Co-operative Societies Act, 1961, effect of.\n\n\n\nHEADNOTE:\n     The appellant  Bank was  a society registered under the\nBombay Co-operative  Societies Act, 1925 and with the coming\ninto force  from May  1, 1962  of the  Gujarat\tCo-operative\nSocieties Act, 1961, it came to be governed by the said Act.\nBy Notification\t No. BIR-1362-5-H  dated March\t2, 1963, the\nGovernment of  Gujarat directed\t under s. 2(4) of the Bombay\nIndustrial Relations  Act, 1946 (Bombay Act 11 of 1947) that\nall the\t provisions of\tthe said Act shall apply with effect\nfrom March  15, 1963  to the  business\tof  banking  by\t Co-\noperative Banks\t in the\t Saurashtra and\t Kutch areas  of the\nState, registered  and deemed  to be  registered  under\t the\nGujarat Co-operative Societies Act, 1961.\n     The second\t respondent,  Babu  Bhai  Negracha  who\t was\nworking as  an additional supervisor in the Dasada Branch of\nthe appellant  Bank and whose services were terminated by an\norder dated February 21, 1962, by giving him one month's pay\nin lieu\t of notice  under Staff\t Regulation No. 15, filed an\napplication in\tthe Labour  Court Rajkot,  alleging that his\nservices had been illegally and maliciously terminated as an\nact  of\t  victimisation\t on   account  of  his\ttrade  union\nactivities and\tpraying for  setting aside  the order of his\ntermination of\tservice and for reinstatement with full back\nwages.\n     The Labour\t Court by  its order  dated June  11,  1963,\nover-ruled the preliminary objection raised by the appellant\nBank, namely,  that \"the  Bombay Industrial  Relations\tAct,\n1946 under  which the application was made by the respondent\nwas not\t applicable to\tits case,  as it  was a co-operative\nsociety governed  by the Gujarat Co-operative Societies Act,\nunder  which   only  the   Registrar  or   his\tnominee\t had\njurisdiction to decide the dispute, and the Labour Court had\nno jurisdiction\t to entertain  and decide  the application\".\nThe appellant  Bank's writ  petition  challenging  the\tsaid\norder of  the Labour Court was dismissed by the Gujarat High\nCourt by its judgment dated August 25, 1967.\n     Dismissing the appeal by certificate, the Court\n^\n     HELD: 1.  No new  plea can be raised for the first time\nin the\tSupreme Court,\tas a matter of right. In the instant\ncase, the  new plea that \"the appellant is not doing banking\nbusiness\" was not entertained for the reasons\n1024\nnamely (i)  it was much too belated; (ii) it stood in direct\ncontradiction to  the position taken by the appellant in its\nwrit petition  and the\taffidavit in  support thereof in the\nHigh Court  wherein it\thad been  clearly admitted that \"the\nsociety is  engaged in the business of banking\" and (iii) it\nwas not a purely legal plea but a mixed plea of law and fact\nand could not be determined on the basis of material already\non the record. [1027 F-G]\n     2. The  expression \"any dispute\" referred to in Section\n54 of  the Bombay  Cooperative Societies  Act, 1925  and  in\nSection 96  of the  Gujarat Cooperative\t Societies Act, does\nnot cover  a dispute  of the  kind raised  by  respondent  2\nagainst the appellant-bank. [1034 C]\n     (a) It  is clear  from the object and the scheme of the\nActs of 1925 and 1961 that the legislature never intended to\ngive such a wide scope to the expression \"any dispute\" so as\nto cover all classes of disputes whatever be their nature as\nthe prefix  \"any\" to  \"dispute\" appears\t to give.  The\tterm\n\"dispute\" means\t a  controversy\t having\t both  positive\t and\nnegative aspects.  It postulates the assertion of a claim by\none party and its denial by the other.\n\t\t\t\t\t\t  [1031 C-D]\n     (b) The  expression \"any  dispute\" has not been defined\nin the\tActs of 1925 and 1961. This expression has been used\nin a  narrower sense  limited to contested claims of a civil\nnature, which  could have  been decided\t by civil or revenue\ncourts, but  for the  provisions with  regard to  compulsory\narbitration by the Registrar or his nominee found in Section\n54 of  the Bombay  Act of  1925 and  in Section\t 96  of\t the\nGujarat Act,  1961. The words \"as if the dispute were a suit\nand the\t Registrar as  Civil Court\" occurring in sub-section\n(k) of\tSection 97  of\tthe  Gujarat  Act,  also  make\tthis\nposition clear. [1031 C, D, E, G]\n     (c) The  compulsory arbitration  by  the  Registrar  on\nreference under\t s. 96 is only a substitute for adjudication\nof disputes  of a  civil nature\t normally tried by the Civil\nCourt. It  is incumbent,  under sub-section  (2) of s. 96 of\nthe 1961  Act, on  the Registrar  to decide as a preliminary\nissue, whether\tthe dispute  is of  a kind under sub-section\n(1) of\ts. 96  falling\twithin\this  jurisdiction.  If\tthis\npreliminary issue  is found  in the negative he will have no\nfurther jurisdiction  to deal  with the\t matter. [1031 F, G-\n1032 F]\n     (d) Thus  considered,  a  dispute\traised\tagainst\t the\nSociety by its discharged servant claiming reliefs, such as,\nreinstatement in  service with\tback wages,  which  are\t not\nenforceable in\ta civil\t court, is  outside the scope of the\nexpression \"touching  the management of the Society\" used in\ns. 96(1)  of the  Act of  1961, and  the Registrar  has\t not\njurisdiction to\t deal with  and determine  it. What has been\ndirectly bidden\t \"out-of-bounds\" for  the Registrar  by\t the\nvery scheme  and object\t of  the  Act,\tcannot\tbe  directly\ninducted by widening the connotation of 'management'. Such a\ndispute squarely falls within the jurisdiction of the Labour\nCourt under the Bombay Industrial Relations Act. [1036 E-G]\n     3.\t The   law  of\tIndustrial  disputes  or  Industrial\nRelations  is\ta  special   law  dealing  with\t rights\t and\nobligations specially created by it. The provisions in s. 54\nof the\tBombay Act  and in  s. 96  of the  Gujarat Act being\ngeneral provisions  in accordance  with the  maxim generalia\nspecialibus  non   derogant,  nothing\tin   these   general\nprovisions can\tderogate from  Bombay  Industrial  Relations\nAct, and  the Cooperative  Societies Act  must yield  to the\nspecial provi-\n1025\nsions in  the Bombay  Industrial Relations  Act, whenever  a\ndispute clearly comes within the language of the latter Act.\nSection 166(1)\tof the\tGujarat\t Act,  in  terms,  bars\t the\njurisdiction only  of Civil or Revenue Court, and not of the\nLabour Court  or any  Industrial Tribunal  constituted under\nthe Bombay  Industrial Relations  Act or Industrial Disputes\nAct. The legislature never intended to oust the jurisdiction\nof the\tLabour Court or the Industrial Tribunal to determine\nclaims and  industrial disputes\t which cannot be adjudicated\nby the ordinary Civil Court. [1032 H, 1033 A, 1034 A-B]\n     In the instant case :\n     (a) The  Labour Court  is competent to grant the relief\nof reinstatement  while in  view of s. 21(b) of the Specific\nRelief Act, then in force, the Civil Court was not competent\nto grant  that relief.\tIf a  Court is incapable of granting\nthe relief  claimed, normally  the proper construction would\nbe that\t it is incompetent to deal with the matter. [1033 F,\nH]\n     (b) The  dispute was raised by the second respondent by\nwriting an  approach letter  to his employee, the appellant,\nas required  by the  Bombay  Industrial\t Relations  Act.  In\nsubstance,  it\t was  an  industrial  dispute.\tIt  was\t not\nrestricted to  a claim\tunder the  contract or\tagreement of\nemployment. [1033 F-G]\n     (c) The  rights  and  reliefs  claimed  by\t the  second\nrespondent could  not be  determined and  granted by a Civil\nCourt in  a suit.  His allegation was that his services were\nterminated  unfairly   and  vindictively   because  of\t his\nlegitimate  trade   union   activities,\t  as   an   act\t  of\nvictimisation.\tThe   relief  claimed  is  reinstatement  in\nservices with back wages. The rights claimed are those which\nare conferred  on workmen  and employees  under\t the  Bombay\nIndustrial Relations  Act to  ensure  social  justice.\tSuch\nrights which do not stem from the contract of employment can\nbe enforced  only in  the  Labour  Court  constituted  under\nB.I.R. Act. [1033 B-F]\n     Jullundur\tTransport   Cooperative\t Societies  Ltd.  v.\nPunjab State, AIR 1959 Pun. 34; approved.\n     Rohtas Industries Ltd. v. Brijnandan Pandey,<\/a> [1956] SCR\n800; referred to.\n     (d) Neither  the Registrar\t nor  his  nominee  will  be\ncompetent to  grant the\t relief of  requiring change  in the\nservice conditions  of the  employee. Such a relief could be\ngranted\t by   the  Industrial\tTribunal  which\t  under\t the\nIndustrial Disputes  Act, has  the jurisdiction even to vary\ncontracts of  service between  an  employer  and  employees.\n[1037 C-D]\n     Co-operative Central Bank Ltd. v. Additional Industrial\nTribunal, Hyderabad<\/a> [1970] 1 SCR 205; applied.\n     Farkhundali Naunhay  v. V. B. Potdar, AIR 1962 Bom. 362\nover-ruled.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 236 of
\n1969.\n<\/p>\n
     Appeal from the Judgment and Order dated 24\/25th August
\n1967 of the Gujarat High Court in SCA No. 585\/63.\n<\/p>\n
     S. K. Dholakia and R. C. Bhatia for the Appellant.\n<\/p>\n
1026<\/span><\/p>\n
     P. Ram Reddy, Amicus Curiae for Respondent No. 2.
\n     The Judgment of the Court was delivered by
\n     SARKARIA,\tJ.   The  appellant  is\t the  Gujarat  State
\nCooperative Land  Development Bank  Ltd. (hereafter referred
\nto as the Bank). It is a Society registered under the Bombay
\nCooperative  Societies\tAct,  1925,  as\t applicable  to\t the
\nerstwhile State\t of Saurashtra. According to the appellant’s
\nwrit petition,\tit is  doing banking  business. It  has\t 127
\nBranches spread\t all over  the State  of Gujarat. One of its
\nBranches is  in Dasada,\t Surendranagar\tDistrict.  The\tHead
\nOffice of the Bank is at Ahmedabad.\n<\/p>\n
     The second\t respondent, Babu Bhai Negracha, was serving
\nas an  Additional Supervisor  in the  Dasada Branch  of\t the
\nBank. His  services  were  terminated  by  an  order,  dated
\nFebruary 21,  1962, by giving him one month’s pay in lieu of
\nnotice under Staff Regulation No. 15.\n<\/p>\n
     The Gujarat  Cooperative Societies Act, 1961, came into
\nforce from  May 1,  1962, and  the appellant-Bank,  being  a
\nSociety, under\tthe Cooperative\t Societies Act,\t came to  be
\ngoverned by the said Act.\n<\/p>\n
     By Notification  No. BIR-1362-5-H, dated March 2, 1963,
\npublished  in\tthe  Gujarat  Gazette  in  March  1963,\t the
\nGovernment of  Gujarat directed\t under Section\t2(4) of\t the
\nBombay Industrial  Relations Act,  1946 (Bombay\t Act  11  of
\n1947) that  all the  provisions of  the said Act shall apply
\nwith effect  from March\t 15, 1963 to the business of banking
\nby Cooperative\tBanks in  the Saurashtra  and Kutch areas of
\nthe State,  registered and deemed to be registered under the
\nGujarat Cooperative Societies Act, 1961.\n<\/p>\n
     Aggrieved by the termination of his service, the second
\nrespondent approached  the appellant’s\tDasada’s Branch by a
\nletter, dated  August  20,  1962,  stating  that  since\t his
\nservices were  terminated illegally by way of victimisation,
\nhe should be reinstated in the service.\n<\/p>\n
     Thereafter, the  second respondent filed an application
\nin the Labour Court at Rajkot, alleging that his service had
\nbeen illegally\tand maliciously\t terminated  as\t an  act  of
\nvictimisation on  account of  his trade union activities. He
\nprayed for  setting aside  the order  of his  termination of
\nservice and for reinstatement with full back wages.\n<\/p>\n
     The  Bank\t filed\ta   written  statement,\t  raising  a
\npreliminary objection  that the\t Bombay Industrial Relations
\nAct, 1946,  under which\t the application  was  made  by\t the
\nrespondent, was\t not applicable\t to its\t case, as  it was  a
\nCooperative Society  governed by  the  Gujarat\tCo-operative
\nSocieties Act, under which only the Registrar or his nominee
\n1027<\/span>
\nhad jurisdiction to decide the dispute, and the Labour Court
\nhad no\tjurisdiction to entertain and decide the application
\nof the second respondent.\n<\/p>\n
     By its  Order, dated  June 11,  1963, the\tLabour Court
\noverruled this\tobjection and  held that it had jurisdiction
\nto hear the application.\n<\/p>\n
     The Bank  then filed  a writ petition under Article 226
\nof the Constitution in the High Court to challenge the Order
\nof the\tLabour Court.  The High\t Court by  a common judgment
\ndated August  25, 1967\tdismissed the  writ petition, but in
\nview of\t the importance\t of the\t question of  law  involved,
\ngranted a certificate of fitness for appeal to this Court.\n<\/p>\n
     On the  strength of that certificate, the Bank has come
\nin appeal  before us  against the  aforesaid judgment of the
\nHigh Court.\n<\/p>\n
     In this  Court on\tJanuary 22,  1969, the\tBank made an
\napplication for\t leave to urge as additional ground, namely,
\nthat the  Bank is not doing banking business, i.e. accepting
\nfor the\t purpose of  lending or\t investment of\tdeposits  of
\nmoney from the public, repayable on demand or otherwise, and
\nwithdrawable by cheque, draft, order or otherwise as defined
\nin Section  5, Clauses\t(b) and (c) of the Banking Companies
\nAct, 1949;  and that  this  being  the\ttrue  position,\t the
\nNotification  No.   DIR-1362-IV-H  dated   March  2,   1963,
\npublished in  the Gujarat  Government Gazette dated March 7,
\n1963, under  Section 2(4) of the Bombay Industrial Relations
\nAct, 1946  (Bombay Act\tXI of 1947) is not applicable to the
\nappellant. This\t application was strenuously opposed by Shri
\nRam Reddy,  who is  assisting the  Court as amicus curiae on
\nbehalf of  respondent 2, who has not been able to appear and
\ndefend himself in this appeal.\n<\/p>\n
     We have  declined permission to raise this new plea for
\nthe first  time in  this Court, for these reasons: (i) It is
\nmuch too  belated; (ii) It stands in direct contradiction to
\nthe position taken by the appellant in its writ petition and
\nthe affidavit  in support  thereof filed  in the High Court.
\nTherein,  the  appellant  had  categorically  pleaded:\t“The
\npetitioner  is\t a  Society   registered  under\t the  Bombay
\nCooperative  Societies\t Act,  1925   (Bombay  Act   VII  of
\n1925)….and is\t engaged in  the business of banking.” (iii)
\nIt is  not a  purely legal  plea but a mixed plea of law and
\nfact, and  cannot be  determined on  the basis\tof  material
\nalready on the record.\n<\/p>\n
     We,  therefore,   take  it\t that  the  appellant  is  a
\nCooperative Society  engaged in the business of banking and,
\nas such, the Bombay Industrial
\n1028<\/span>
\nRelations Act,\t1946 is\t applicable to\tit by  virtue of the
\naforesaid Notification\tdated March  2, 1963,  issued by the
\nState Government under Section 2(4) of that Act.\n<\/p>\n
     The  arguments  of\t Mr.  Dholakia,\t appearing  for\t the
\nappellant, may be summarised as follows:\n<\/p>\n
     (i) The  case is  governed by  the Gujarat\t Cooperative
\nSocieties Act,\t1961 (hereafter\t called the Act of 1961) and
\nnot by the Bombay Cooperative Societies Act, 1925 (hereafter
\nreferred to as the Act of 1925).\n<\/p>\n
     (ii) The  phrase “any dispute touching…..the business
\nof the\tSociety”, particularly\tthe word “touching” therein,
\nis of  very wide  amplitude. It\t would comprehend any matter
\nwhich relates to, or concerns or affects the business of the
\nSociety.  Every\t  society,  ex-necessitiate   employs\tsome
\nservants for  the purpose  of carrying on its business. That
\nbeing so,  the payment\tof wages, appointment and removal of
\nits servants  under  law  is  a\t part  of  the\tbusiness  or
\n“touches” the  business of  the Society.  (Reliance for this
\nargument has  been placed  on Farkhundali  Naunhay v.  V. B.
\nPotdar (1).\n<\/p>\n
     (iii) Even\t if contention\t(ii) is\t not  accepted,\t the
\ndispute raised\tby the respondent, Babu Bhai Negracha is one
\n“touching the  management of  the Society”.  The  expression
\n‘management’ takes  in the  entire staff or establishment of
\nservants which run the affairs of the Society.\n<\/p>\n
     (iv) Once\tit is  held that  the  dispute\tbetween\t the
\nSociety and  its past  servant, Babu  Bhai Negracha, touches
\nthe “business”\tor the “management” of the Society, or both,
\nwithin the  meaning of\tSection 96,  the  Registrar  or\t his
\nnominee, alone,\t shall have  jurisdiction to adjudicate such
\ndispute by  compulsory\tarbitration;  and  the\tnon-obstante
\nclause in  the Section\tshall bar  the determination of that
\ndispute by the Industrial Tribunal or the Labour Court under
\nthe Bombay Industrial Relations Act.\n<\/p>\n
     As against\t the above,  Mr. Rama  Reddy, amicus curiae,
\nsubmitted as under:\n<\/p>\n
     (i) Since\tthe services  of the  second respondent were
\nterminated on February 21, 1962, before the Act of 1961 came
\ninto force,  the Act relevant for this discussion is the Act
\nof 1925.\n<\/p>\n
     (ii) Irrespective of whether the Act of 1925 or the Act
\nof 1961\t governs the  appellant-Society, the expression “any
\ndispute” commonly occurring in Section 54 of the Act of 1925
\nand Section 96 of the
\n1029<\/span>
\nAct of\t1961, is  restricted in\t its scope to a dispute of a
\ncivil nature  which is\tcapable of  being  resolved  by\t the
\nRegistrar or his nominee, and does not take in an industrial
\ndispute between\t the Society and its workmen which under the
\nB.I.R.\tAct   is  triable  by  the  Labour  Court\/Industrial
\nTribunals, only.\n<\/p>\n
     (iii) B.I.R.  Act is  a special  law, dealing  with the
\nspecial subject\t of  industrial\t disputes,  which  in  their
\nnature\tare   essentially  different   from  ordinary  Civil
\ndisputes between  an employer  and his\temployee governed by
\nthe Law\t of Contract,  B.I.R. Act  provides  for  a  special
\nmachinery  for\t adjudication  of  industrial  disputes.  As
\nagainst this,  the Cooperative\tSocieties Act  of 1925\/or of
\n1961 is\t a general enactment and it must yield to the B.I.R.
\nAct whenever  the provisions of the latter by their language
\nare clearly applicable to a dispute. Reference has been made
\nto Jullundur  Transport Cooperative  Society Ltd.  v. Punjab
\nState(1).\n<\/p>\n
     (iv) The  scope of the expression “any dispute touching
\nthe business of the Society”, occurring in Section 54 of the
\nAct of\t1925\/or Section\t 96 of the Act of 1961 is limited to
\ndisputes  directly   relating  to   the\t actual\t trading  or
\ncommercial activities  of the  Society. This expression does
\nnot take  in a\tdispute between the Society and its employee
\nrelating to  the conditions  of his  employment, which\twill
\ninclude the  termination of  his employment.  This point  is
\nconcluded by  the decision  of\tthis  Court  in\t Cooperative
\nCentral\t Bank\tLtd.  v.   Additional  Industrial  Tribunal,
\nHyderabad<\/a>(2),  which   follows\tthe  ratio  of\tits  earlier
\ndecision  in  Deccan  Merchants\t Cooperative  Bank  Ltd.  v.
\nDalichand Jungraj  Jain<\/a>(3). In\tview of these decisions, the
\nratio of  Farkhundali’s case  (ibid) decided  by the  Bombay
\nHigh Court, is no longer good law.\n<\/p>\n
     (v) The  expression “management”  in Section  96 of the
\nAct of\t1961, means  “the Board of Directors”, or “the Board
\nof Trustees”,  or the  “Managing  Committee”  or  “Executive
\nBody” which  has the  overall control  of  the\taffairs\t and
\nbusiness of  the  Society,  and\t it  does  not\tinclude\t the
\nindividual  workers  or\t employees,  individual\t workmen  or
\nemployees  of  the  Society  who  carry\t on  the  day-to-day
\nadministration of  the Society;\t nor will it take in matters
\ntouching the  service conditions  of  the  servants  of\t the
\nSociety such  as  their\t appointment  to  service  or  their
\ndischarge, removal  from service  and their wages. A dispute
\nof the kind raised by the second respondent, therefore,
\n1030<\/span>
\nwill not  fall within the purview of the phrase “any dispute
\ntouching the management of the Society” used in Section 96.\n<\/p>\n
     Before appreciating  the contentions  canvassed on both
\nsides, it  is necessary to notice the relevant provisions of
\nthe Act of 1925 and the Act of 1961.\n<\/p>\n
     The relevant  part of  Section 54\tof the\tAct of 1925,
\n     reads thus:\n<\/p>\n
\t  “(1) (a)  If any dispute touching the constitution
\n     or business  of Society  arises between members or past
\n     members of\t the Society  or persons  claiming through a
\n     member or\ta past\tmember or  between members  or\tpast
\n     members or\t persons so  claiming and any officer, agent
\n     or servant\t of the\t Society or  its Committee,  and any
\n     officer, agent,  member or\t servant of the Society past
\n     or present,  it shall  be referred to the Registrar for
\n     decision by himself or his nominee…”\n<\/p>\n
The corresponding Section 96 of the Act of 1961 lays down:\n<\/p>\n
\t  “(1) Notwithstanding\tanything  contained  in\t any
\n     other law\tfor the\t time being  in force,\tany  dispute
\n     touching the  constitution, management or business of a
\n     Society shall be referred in the prescribed form…..if
\n     the parties thereto are from amongst the following:-\n<\/p><\/blockquote>\n
\t  (a)  a Society, its Committee, any past Committee,
\n\t       any past\t or present  officer,  any  past  or
\n\t       present agent, any past or present servant or
\n\t       nominee, heir  or legal representative of any
\n\t       deceased officer,  deceased agent or deceased
\n\t       servant of  the Society, or the Liquidator of
\n\t       the Society….”<\/p><\/blockquote>\n
     A comparison  between the portions of the two Sections,
\nextracted  above,  brings  out\ttwo  points  of\t difference.
\nFirstly, in  Section 54,  there is  no non-obstante  clause,
\nwhile Section  96(1) begins  with the words “Notwithstanding
\nanything contained  in any  other law  for the time being in
\nforce”. Secondly, while in Section 54, the word ‘management’
\ndoes not  occur, in  the corresponding\tSection 96(1) of the
\n1961 Act, the word ‘management’ has been inserted in-between
\nthe words ‘constitution’ and ‘business’.\n<\/p>\n
     It is  significant to note that the phrase “any dispute
\ntouching the constitution…. or business of the Society” is
\na  common   feature  of\t both  the  aforesaid  Sections.  We
\nemphasise this\tfact, because  it is  this  common  feature,
\nrather\tthan  the  points  of  difference  between  the\t two
\nSections, that\tholds the  key to  a correct solution of the
\nproblem before us.\n<\/p>\n
1031<\/span><\/p>\n
     From a conspectus of the decisions cited at the Bar, we
\nmay devise  two broad  tests  to  determine  the  points  in
\ncontroversy  in\t  the  instant\t case.\tFirst,\twhether\t the
\nexpression “any\t dispute” spoken of in Section 54 of the Act
\nof 1925,  and Section 96 of the Act of 1961, is one which is
\ncapable of  being resolved  by the  Registrar or his nominee
\nunder  the   relevant  Cooperative  Societies  Act?  Second,
\nwhether a  dispute raised by a servant against his employer,
\nthe Cooperative\t Society, for setting aside his removal from
\nservice on  the ground\tthat it\t was an act of victimisation
\nand for\t reinstatement in  service with\t back wages,  is one
\n“touching the  management or business of the Society” within
\nthe contemplation of the said provisions?\n<\/p>\n
     As regards\t the first  test, it is to be noted that the
\nexpression “any dispute” has not been defined in the Acts of
\n1925 and 1961. The term “dispute” means a controversy having
\nboth  positive\tand  negative  aspects.\t It  postulates\t the
\nassertion of  a claim  by one  party and  its denial  by the
\nother. The  word “any”\tprefixed to  “dispute” may  at first
\nglance, appear\tto give\t the expression “any dispute” a very
\nwide amplitude covering all classes of disputes, whatever be
\ntheir nature.  But the\tcontext\t of  these  provisions,\t the
\nobject and  scheme of  the Acts\t of 1925\/1961  show that the
\nLegislatures never  intended to\t give such  a wide  scope to
\nthis expression.  The related  provisions and  the scheme of
\nthe  Acts  unerringly  indicate\t that  the  expression\t“any
\ndispute” has  been used\t in  a\tnarrower  sense\t limited  to
\ncontested claims  of a\tcivil nature,  which could have been
\ndecided by  civil or  revenue courts, but for the provisions
\nwith regard  to compulsory  arbitration by  the Registrar or
\nhis nominee,  found in\tSection 54  of the Act of 1925\/96 of
\nthe Act\t of 1961.  The first  indication of  this being\t the
\nright construction,  is discernible  in sub-section  (2)  of
\nSection 96  which  states  that\t when  any  question  arises
\nwhether\t for  the  purposes  of\t sub-section  (1)  a  matter
\nreferred to  for decision  is a dispute or not, the question
\nshall be  considered by\t the Registrar, whose decision shall
\nbe final.  This means,\tit is  incumbent on the Registrar to
\ndecide as  a preliminary  issue, whether the dispute is of a
\nkind under  sub-section (1) of Section 96 falling within his
\njurisdiction. If  this preliminary  issue is  found  in\t the
\nnegative, he  will have no further jurisdiction to deal with
\nthe matter.\n<\/p>\n
     A further\tclue to\t the interpretation of “any dispute”
\nused in\t Section 96(1)\tis available  in Section 97(1) which
\nprescribes periods  of limitation  for disputes\t of the kind
\nspecified in  its clauses  (a)\tand  (b),  referred  to\t the
\nRegistrar under\t Section 96.  Sub-section (2)  of Section 97
\nwhich is in the nature of a residuary provision, states that
\nthe period  of limitation  in the  case of any dispute other
\nthan those  mentioned in  sub-section (1) which are required
\nto be referred to the
\n1032<\/span>
\nRegistrar under\t Section  96,  shall  be  regulated  by\t the
\nprovisions of  the Indian Limitation Act, “as if the dispute
\nwere a\tsuit, and  the Registrar  as Civil  Court”. The last
\nclause\tof   sub-section  (2)  which  has  been\t underlined,
\nunmistakably shows  that only  disputes of  a  civil  nature
\nwhich could  be\t the  subject  of  civil  suits\t triable  by
\nordinary civil\tcourts, will  fall within  the scope  of the
\nexpression “any dispute” used in Section 96(1).\n<\/p>\n
     Another definite  pointer to  the above being the right
\nconstruction of\t “any dispute”\tis available  in sub-section
\n(3) of Section 98 which provides:\n<\/p>\n
\t  “Notwithstanding anything contained in Section 96,
\n     the  Registrar   may,  if\t he  thinks   fit,   suspend
\n     proceedings in  regard to\tany dispute, if the question
\n     at issue  between a  society and  a claimant or between
\n     different\tclaimants,   is\t one  involving\t complicated
\n     question of  law or  fact, until  the question has been
\n     tried by  a regular  suit\tinstituted  by\tone  of\t the
\n     parties or\t by the\t society. If  any such\tsuit is\t not
\n     instituted within two months from the Registrar’s order
\n     suspending proceedings, the Registrar shall take action
\n     as is provided in sub-section (1).”<\/p><\/blockquote>\n
     It is noteworthy that this sub-section is substantially
\nin the\tsame terms  as the  proviso to\tsub-section  (1)  of
\nSection 54 of the Act of 1925, extracted earlier.\n<\/p>\n
     The proviso to sub-section (1) of Section 54 of the Act
\nof 1925\t corresponding to  sub-section (3)  of Section 98 of
\nthe Act\t of 1961,  unmistakably shows  that  the  compulsory
\narbitration by\tthe Registrar,\ton a reference under Section
\n96, only  a substitute\tfor adjudication  of disputes  of  a
\ncivil nature normally tried by civil courts.\n<\/p>\n
     Further indication\t regarding the\tnature\tof  disputes
\nwhich the  Registrar may  determine, is furnished by Section
\n166(1) which provides:\n<\/p>\n
\t  “166(1). Bar\tof jurisdiction\t of Courts : Save as
\n     expressly provided\t in this  Act, no  Civil or  Revenue
\n     Court shall have any jurisdiction in respect of-\n<\/p><\/blockquote>\n
\t  (a)  …………\n<\/p><\/blockquote>\n
\t  (b)  any dispute  required to\t be referred  to the
\n\t       Registrar,  or\this  nominee,  or  board  of
\n\t       nominees, for decision.”<\/p><\/blockquote>\n
     It will  be seen  that Section  166, in terms, bars the
\njurisdiction only  of Civil or Revenue Court, and not of the
\nLabour Court or any
\n1033<\/span>
\nIndustrial Tribunal  constituted under\tthe  B.I.R.  Act  or
\nIndustrial Disputes  Act to  adjudicate industrial disputes.
\nIt is  clear that the Legislature never intended to oust the
\njurisdiction of\t the Labour Court or the Industrial Tribunal
\nto determine  claims and industrial disputes which cannot be
\nadjudicated by the ordinary Civil Courts.\n<\/p>\n
     Now, let us turn to the nature of the dispute raised by
\nthe second  respondent. Is  it a dispute relating to a right
\nwhich he  could establish by filing a suit in a Civil Court?\n<\/p>\n
-assuming for  the  moment  that  nothing  in  the  relevant
\nCooperative Societies  Act is  a bar  to such  a  suit.\t The
\nanswer must  be in  the\t negative.  The\t respondent  is\t not
\nclaiming  a   civil  right  arising  from  the\tcontract  of
\nemployment with\t the appellant-Bank.  What he is claiming is
\nnot  enforcement   of  any  term  of  the  contract  of\t his
\nemployment on  the part of his employer. He is alleging that
\nhis services  have been terminated unfairly and vindictively
\nbecause of  his legitimate trade union activities, as an act
\nof  victimisation.   The  relief   claimed  by\t him  is  of
\nreinstatement in  service with\tback wages.  The rights\t and
\nreliefs which  he is  claiming could  not be  determined and
\ngranted by  a Civil  Court in  a suit. As Luding Teller puts
\nit, “a\tCourt of  Law proceeds\ton the footing that no power
\nexists in  the Courts  to make\tcontracts for people and the
\nparties must  make their  own contracts.  The  Courts  reach
\ntheir limit  of power  when they enforce contracts which the
\nparties\t had   made.”  (Quoted\t with  approval\t  in  Rohtas
\nIndustries Ltd.\t v. Brijnandan Pandey.<\/a>(1) The rights claimed
\nby the\tsecond respondent  are those  which are conferred on
\nworkmen and  employees under the Bombay Industrial Relations
\nAct, to ensure social justice. Such rights which do not stem
\nfrom the  contract of employment can be enforced only in the
\nLabour Court  constituted under\t the B.I.R.  Act. The Labour
\nCourt is  competent to\tgrant the  relief  of  reinstatement
\nclaimed by the respondent, while in view of Section 21(b) of
\nthe Specific  Relief Act, then in force, the Civil Court was
\nnot competent to grant that relief.\n<\/p>\n
     The dispute  was raised  by the  second  respondent  by
\nwriting an  approach letter  to his employer, the appellant,
\nas required  by the  Bombay  Industrial\t Relations  Act.  In
\nsubstance,  it\t was  an  industrial  dispute.\tIt  was\t not
\nrestricted to  a claim\tunder the  contract or\tagreement of
\nemployment. The Civil Court cannot grant the reliefs claimed
\nby the\tsecond respondent.  As rightly submitted by Mr. Rama
\nReddy, if  a Court  is\tincapable  of  granting\t the  relief
\nclaimed, normally,  the proper construction would be that it
\nis incompetent to deal with the matter.\n<\/p>\n
1034<\/span><\/p>\n
     The matter\t can be\t looked at from another angle, also.
\nThe law\t of industrial disputes or industrial relations is a
\nspecial law  dealing with  rights and  obligations specially
\ncreated by  it. As against this, the provision in Section 54
\nof the\tAct of\t1925\/Section 96\t of the\t Act of\t 1961  is  a
\ngeneral provision.  In accordance  with the  maxim generalia
\nspecialibus  non   derogant,  therefore,  nothing  in  these
\ngeneral provisions  can derogate  from B.I.R.  Act  and\t the
\nCooperative Society Act must yield to the special provisions
\nin the\tBombay Industrial  Relations Act, whenever a dispute
\nclearly comes within the language of the latter Act.\n<\/p>\n
     In the light of the above discussion, the conclusion is
\ninescapable that the expression “any dispute” referred to in
\nSection 54  of the 1925 Act\/Section 96 of the 1961 Act, does
\nnot cover  a dispute  of the  kind raised  by  respondent  2
\nagainst the appellant-Bank.\n<\/p>\n
     Coming now\t to the second test, it may be observed that
\nto a  part  of\tit,  the  pronouncement\t of  this  Court  in
\nCooperative  Central  Bank  Ltd.  v.  Additional  Industrial
\nTribunal, Hyderabad<\/a>  (ibid), furnishes\ta  complete  answer,
\nwherein the interpretation of this very phrase “touching the
\nbusiness of  the Society”  occurring in Section 61 of Andhra
\nPradesh\t Cooperative  Societies\t Act,  1964,  which  largely
\ncorresponds to\tSection 96 of the Gujarat Act, 1961, came up
\nfor interpretation.  The subject-matter\t of the\t dispute was
\ndivided into  three issues.  The  first\t issue\tcomprised  a
\nnumber of  service conditions  including inter\talia salary,
\nscales and  adjustment\tor  dearness  allowance,  conveyance
\ncharges, provident fund and gratuity, etc.
\n     It was  contended on behalf of the Bank that the effect
\nof  Section  61\t and  other  provisions\t of  Andhra  Pradesh
\nCooperative Societies Act was to exclude the jurisdiction of
\nthe Industrial Tribunal to deal with such disputes under the
\nIndustrial  Disputes   Act.  After   noticing  a  number  of
\ndecisions and  after referring\tto the\tprevious decision of
\nthis Court  in Deccan  Cooperative Bank, the Court negatived
\nthe contention with these observations:\n<\/p>\n
\t  “The dispute\trelated to alteration of a number of
\n     conditions of service of the workmen which relief could
\n     only be  granted by an Industrial Tribunal dealing with
\n     an industrial  dispute. The Registrar, it is clear from
\n     the provisions  of the  Act, could\t not  possibly\thave
\n     granted the reliefs claimed under this issue because of
\n     the  limitations  placed  on  his\tpowers\tin  the\t Act
\n     itself…. The  word “business”  is  equated  with\t the
\n     actual trading or commercial or other
\n1035<\/span>
\n     similar business  activity of the society, and since it
\n     has been  held that  it would be difficult to subscribe
\n     to the proposition that whatever the society does or is
\n     necessarily required  to do for the purpose of carrying
\n     out its  objects, such as laying down the conditions of
\n     service of\t its employee,\tcan be\tsaid to be a part of
\n     its business,  it would  appear that a dispute relating
\n     to conditions of service of the workmen employed by the
\n     society cannot  be held  to be  a dispute\ttouching the
\n     business of  the society…Thus  it is  clear  that  in
\n     respect of\t the dispute  regarding\t the  alteration  of
\n     various conditions\t of service,  the Registrar or other
\n     person dealing  with it  under Section 62 of the Act is
\n     not competent  to\tgrant  the  relief  claimed  by\t the
\n     workmen at\t all. On  the principle\t laid down  by\tthis
\n     Court in  the case\t of the Deccan Merchants Cooperative
\n     Bank Ltd.,\t Civil Appeal No. 358 of 1967 dated 29-8-68,
\n     AIR 1969  SC 1320\t(supra) therefore,  it must  be held
\n     that this\tdispute is  not a  dispute  covered  by\t the
\n     provisions of  Section 61 of the Act. Such a dispute is
\n     not contemplated  to be  dealt with under Section 62 of
\n     the Act  and must\ttherefore, be held to be outside the
\n     scope of Section 61.”<\/p><\/blockquote>\n
     The observations  quoted above,  negate contention (ii)
\nadvanced by Mr. Dholakia.\n<\/p>\n
     It\t however,  remains  to\tbe  considered\twhether\t the
\ndispute raised by the second respondent in the present case,
\ncomes within  the purview  of the  expression “touching\t the
\nmanagement of  the Society” used in Section 96(c) of the Act
\nof 1961.\n<\/p>\n
     In this  connection, it  may be noticed that just as in
\nSection\t 96(1),\t  in  Section\t61  of\tthe  Andhra  Pradesh
\nCorporation Societies’\tAct, 1964,  also, which\t came up for
\nconsideration in Cooperative Central Banks’ case before this
\nCourt, the  term management does occur in the collocation of
\nwords  “constitution,\tmanagement  or\t business”.  But  no
\nspecific argument  seems to  have been\tthen raised  that  a
\ndispute between the Society and its former servants relating
\nto the\tconditions of  service, comes  within the purview of
\nthe expression\t‘touching the  management of  the  Society’.
\nPerhaps, it  was taken\tfor granted  that if the dispute was
\nnot  comprehended   by\tthe   expression  “business  of\t the
\nSociety”, it  would not\t be covered by the words “management
\nof the Society”, either. Although there is little discussion
\nin the judgment about the ambit and import of the expression
\n“management”,  yet   in\t conclusion,   it  was\tclearly\t and
\nemphatically held
\n1036<\/span>
\nthat the  dispute in  that case\t was “outside  the scope  of
\nSection 61.”\n<\/p>\n
     We\t will\tnow,  focus   attention\t on  the  expression
\n“management of the Society” used in Section 96(1) of the Act
\nof 1961. Grammatically, one meaning of the term ‘management’
\nis: ‘the Board of Directors’ or ‘the apex body’ or Executive
\nCommittee at  the helm\twhich guides, regulates, supervises,
\ndirects and  controls the  affairs of  the Society’. In this
\nsense, it  may not  include the\t individuals who  under\t the
\nover-all control  of that  governing body  or Committee, run
\nthe day-to-day\tbusiness of  the  Society.  (see  Words\t and
\nphrases, by  West Publishing Co. Permanent Edition, Vol. 26,
\npage 357,  citing, Warner  & Swasey  Co. v. Rusterholz D. C.
\nMinn.(1). Another  meaning of the term ‘management’, may be:
\n‘the act  or acts  of managing\tor governing  by  direction,
\nguidance,  superintendence,   regulation  and\tcontrol\t the
\naffairs of a Society.’
\n     A still  wider meaning of the term which will encompass
\nthe entire staff of servants and workmen of the Society, has
\nbeen canvassed\tfor by\tMr. Dholakia.  The use\tof the\tterm
\n‘management’ in\t such a\t wide sense in Section 96(1) appears
\nto us, to be very doubtful.\n<\/p>\n
     Be that  as it may, what has been directly bidden “out-
\nof-bounds” for\tthe Registrar  by the very scheme and object
\nof the\tAct, cannot  be indirectly  inducted by widening the
\nconnotation  of\t  ‘management’.\t A  construction  free\tfrom
\ncontexual constraints,\thaving the  effect of smuggling into
\nthe circumscribed  limits of the expression “any dispute”, a
\ndispute which  from its\t very nature  is incapable  of being
\nresolved  by   the  Registrar,\thas  to\t be  eschewed.\tThus
\nconsidered, a  dispute raised  against the  Society  by\t its
\ndischarged servant  claiming reliefs,  such as reinstatement
\nin service  with back  wages, which are not enforceable in a
\nCivil  Court,\tis  outside  the  scope\t of  the  expression
\n“touching the  management of  the Society”  used in  Section
\n96(1)  of  the\tAct  of\t 1961,\tand  the  Registrar  has  no
\njurisdiction to\t deal with  and determine it. Such a dispute
\nsquarely falls\twithin the  jurisdiction of the Labour Court
\nunder the B.I.R. Act.\n<\/p>\n
     Learned counsel  for the  appellant tried to argue as a
\nlast resort  that the relief sought by the second respondent
\ncould be  granted by  the Registrar  by relaxing or moulding
\nthe Staff Regulations and Bye-laws which lay down conditions
\nof service  governing the  employees of\t the Society.  It is
\npointed out  that under\t the Act  of 1961, the Registrar has
\nthe power to amend or modify such Regulations and Bye-laws.\n<\/p>\n
1037<\/span><\/p>\n
     We find no merit in this contention, also.\n<\/p>\n
     A similar\targument was  advanced before  this Court in
\nCooperative Central  Bank’s Case,  ibid,  and  was  repelled
\ninter alia,  with the  reasoning that  the bye-laws  of\t the
\nBank, containing  the conditions  of  service  were  in\t the
\nnature of  a contract between the Bank and its employees and
\na change  of such  bye-laws,  embodying\t the  conditions  of
\nemployment, “could not possibly be directed by the Registrar
\nwhere,\tunder\ts.  62\t(4)  of\t the  (ANDHRA)\tAct,  he  is
\nspecifically required  to decide the dispute referred to him
\nin accordance  with the\t provisions of the bye-laws”. It was
\nfurther observed  that a  dispute referred  to the Registrar
\ncan even  be transferred  for disposal\tto a  person who may
\nhave been  invested with  powers in  that behalf,  or may be
\nreferred for  disposal to  an arbitrator.  But\tneither\t the
\nRegistrar nor  his nominee  will be  competent to  grant the
\nrelief requiring  a change  in the service conditions of the
\nemployees, under section 62 of the Andhra Act. Such a relief
\ncould be granted only by the Industrial Tribunal which under
\nthe Industrial\tDisputes Act,  has the\tjurisdiction even to
\nvary contracts of service between an employer and employees.
\nThis reasoning is applicable mutatis mutandis to the instant
\ncase.\n<\/p>\n
     For all  the foregoing reasons, the appeal fails and is
\ndismissed with\tcosts. In  token of  our gratitude  for\t the
\nvaluable assistance  rendered to  us by\t Shri Rama  Reddy as
\namicus curiae, we direct that an honorarium of Rs. 1500\/- be
\npaid to\t him, which  shall be taxed as costs awarded against
\nthe appellant.\n<\/p>\n
V.D.K.\t\t\t\t\t   Appeal dismissed.\n1038<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gujarat State Cooperative Land … vs P. R. Manded And Ors on 23 January, 1979 Equivalent citations: 1979 AIR 1203, 1979 SCC (3) 123 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh PETITIONER: GUJARAT STATE COOPERATIVE LAND DEVELOPMENT BANK LTD. Vs. RESPONDENT: P. R. MANDED AND ORS. DATE OF JUDGMENT23\/01\/1979 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-228109","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGujarat State Cooperative Land ... vs P. R. 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