COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) 1799/2001 (Old No. 7255/1989) M/s Kahsipur Sahkari Ganna Vikas Va Vikri Samiti Ltd., Kashipur, Nainital Through its Secretary. …….Petitioner Versus The Presiding Officer, Industrial Tribunal (II), Lucknow & Other …….Respondents Sri Gopal Narain, learned Counsel for the petitioner. Sri A.D. Tripathi, learned Counsel for the respondent no. 2. 15 th July, 2008 Hon’ble P.C. Verma, J. This writ petition has been filed by the petitioner challenging the award dated 28.2.1989 passed by the respondent no. 1 in Adjudication Case No. 57 of 1987. The impugned award is contained in Annexure No. 1 to the writ petition. 2. Facts, in brief, are that the petitioner is a Cooperative Cane Union which is a Society registered under the Cooperative Societies Act and it is engaged in the business of supply of sugarcane to the factories concerned. The petitioner society effected termination of employment of as many as 139 workmen in the month of March, 1986. The workmen raised an industrial dispute and the State Government referred the dispute to the Industrial Tribunal under Section 4-K of the U.P. Industrial Disputes Act to decide as to whether the services of these seasonal employees were validly terminated by the petitioner society or not. The Tribunal in the impugned award held that the seasonal workmen of the petitioner society, being seasonal employees, be deemed in service during the full crushing season as per statutory definition of ‘Crushing Season’ contained in U.P. Cane Cooperative Service Regulations, 1975 and U.P. Sugarcane (Regulations of Supply and Purchase) Act, 1953, and that termination of their services effected earlier than the end of crushing season without giving any notice or pay in lieu thereof is illegal. 3. Learned Counsel for the petitioner relied heavily upon the judgment delivered by Hon’ble Apex Court in Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner & Others reported in (2007) 11 SCC 756. In that case, the dispute was relating to a circular issued by the Government prohibiting ex gratia payment (over and above pay) by the Cooperative Societies. In September 1989, the Registrar, Cooperative Societies issued circulars prohibiting payment of ex gratia amounts on 11.9.1987, 10.05.1995, 29.10.1997 and 17.2.2000 since the same was contrary to rules. Accordingly, ex gratia payments to employees were suspended. However, on 13.1.2001, the Board of Directors passed a resolution for grant of ex gratia to employees. An agreement for ex gratia payment for 1999- 2000 was entered into by the Chairman of the Union without the Registrar’s permission under Regulation 42. On 14.2.2001/17.2.2001, Secretary wrote to the Chairman to refer to the Board of Directors’ resolutions dated 13.1.2001 and 3.2.2001 to the Registrar. On failure to do so by the Chairman, the Secretary himself referred the matter to the Registrar under Rule 130. 2 4. The Deputy Registrar, who was exercising the powers of the Registrar of that Division, under Section 128 (1) of the U.P. Cooperative Societies Act, 1965 required the Chairman/Board of Directors to reconsider the resolutions dated 13.1.2001 and 3.2.2001, which were in respect of the payment of ex gratia amounts to the bank employees. Thereafter on 25.2.2001, the Board of Directors noted the ban on ex gratia and still decided to pay the same for 1999-2000 onwards. The Secretary again wrote to the Chairman to refer to Board of Directors’ resolution dated 25.2.2001 to the Registrar. On failure on the part of the Chairman to do so, the Secretary himself referred the matter to the Registrar. The Registrar, Cooperative Societies, on 7.3.2001/19.3.2001, in exercise of the powers conferred under Section 128 (1), directed the Board of Directors to reconsider the aforesaid resolutions. 5. Under Section 128, the Registrar has power to annul any resolution of a cooperative society or cancel any order passed by an officer of a cooperative society in certain cases. But there is a proviso appended thereto which provides that before making any order, the Registrar shall require the Committee of Management, general body or officer of the cooperative society to reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall not be less than fifteen days, and if he deems fit may stay the operation of that resolution or the order during such period. Obviously, when the matter was being remitted second time for reconsideration, the union of the employees approached the Labour Court under Section 6-H(1) of the U.P. Industrial Disputes Act. In these 3 factual backgrounds, the dispute arose as to whether the U.P. Industrial Disputes Act was applicable or the Cooperative Societies Act? The Hon’ble Apex Court while deciding this issue has held that the Cooperative Societies Act being special law shall prevail over the U.P. Industrial Disputes Act, which is a general Act. 6. But so far as the dismissal, termination or retrenchment of the employee is concerned, no remedy is available under the U.P. Cooperative Societies Act. The Hon’ble Apex Court in Civil Appeal No. 2727 of 2008, U.P.C.U.E.F. Ltd. v. Cane Commissioner & R.C.C.S. & Ors., in case of termination of an employee of a cooperative cane union, which is a cooperative society, on account of curtailment of period of crushing season which amounted to termination before expiry of term held that orders amending the definition of Crushing Season could not have been passed without giving any notice in compliance with Section 4-I read with the Third Schedule of the U.P. Industrial Disputes Act, 1956. The relevant observation of the Apex Court runs as under: “Admittedly, as per the earlier definition, as noted herein earlier, “Crushing Season” meant the period beginning on the 1st of October in any year and ending on 15th of July next following. By virtue of the amended definition, “Crushing Season” means the period commencing from the date when the crushing of sugarcane in the concerned sugar factories commences till the date when crushing ends. In our view, this change in the definition of “Crushing Season” would affect the period for which the employees are to be paid the wages and 4 this change is squarely covered by Clause I of the Third Schedule as noted herein earlier. Therefore, in our view, it was incumbent upon the Cane Commissioner to serve a notice upon the appellant before effecting any change in the definition of Crushing Season”.” 7. In case of Vikramaditya Pandey v. Industrial Tribunal, Lucknow & Another reported in 2001 SCC (L&S) 438, the Apex Court held that the remedy against the termination, dismissal, removal which amounted to retrenchment was available only under the Industrial Disputes Act, not under the Cooperative Societies Act. While referring to the Regulation 103 which reads “The provisions of these Regulations to the extent of their inconsistency with any of the provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, Workmen’s Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any cooperative society or class of cooperative societies, shall be deemed to be inoperative”, the Apex Court held that the only remedy was available under the U.P. Industrial Disputes Act. The regulations have been framed under Section 122 of the U.P. Cooperative Societies Act and are in force, while Section 135 though has been brought on the statute book but it has not been enforced so far. Thus, the case of Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner & Others (Supra) is clearly distinguishable from Vikramaditya Pandey’s case and ratio is not attracted in the facts and circumstances of the case. 5 8. Since the instant case is of the case of retrenchment which resulted on account of curtailment of period of crushing season, the remedy was only before the Industrial Tribunal. I do not find any infirmity or illegality in the impugned award and the Tribunal has rightly passed the award. Learned counsel for the petitioner has not argued anything else on the record. 9. In view of my foregoing discussion, the writ petition is devoid of merit. Dismissed accordingly without any order as to costs. (P.C. Verma, J.) 15.7.2008 Prabodh 6