SCA/8211/1994 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8211 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAFATLAL KESHAVLAL PATEL - Petitioner(s) Versus JAGUDAN DUDH UTPATAK SAHAKARI MANDLI LTD & 1 - Respondent(s) ========================================================= Appearance : MR AK CLERK for Petitioner(s) : 1, MR PRAKASH K JANI for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.S.GARG Date : 28/11/2006 ORAL JUDGMENT 1. Mr.A.K. Clerk, learned counsel for the petitioner and Mr. Prakash K. Jani, learned counsel for the respondent No.1. None for the respondent No.2 though served. SCA/8211/1994 2/7 JUDGMENT 2. Short facts leading to the present petition are that the petitioner worked as an employee with the respondent No.1 society for the period between 1/9/1979 and 16/7/1992. In accordance with the settlement between the society and its employees, every employee, at the time of retirement was entitled to one month salary (inclusive of allowances) for completion of each year service, the petitioner under the circumstances withdrew 13 months salary towards the payment of the gratuity. His salary with all his allowances etc. at the time of retirement was Rs.1490.00 and consequent upon the calculation, he withdrew a sum of Rs.19,370.00. The society, thereafter, found that the present petitioner / employee had withdrawn something to which he was not entitled and consequent upon this finding, filed a dispute under sec.96 of the Gujarat Cooperative Societies Act for recovery of the extra amount paid to the petitioner. The petitioner filed an application (Exh.16) in the Nominees Court submitting inter-alia that the Court had no jurisdiction to try the suit, however, the application was rejected by the Nominee Court and the revision against the said order was also dismissed by the Tribunal. Being aggrieved by the said orders, the petitioner is before this SCA/8211/1994 3/7 JUDGMENT Court under Article 226/227 of the Constitution of India. 3. Mr.A.K. Clerk, learned counsel for the petitioner placing his strong reliance upon a judgment of the Supreme Court in the matter of Gujarat State Co-operative Land Development Bank Vs. P.R. Mankad and anr., reported in A.I.R. 1979 S.C. 1203, submits that according to the Supreme Court, a suit between the employee and the Co- operative Society would not be maintainable, as the cooperative authorities would have no jurisdiction to entertain such a suit. He also submitted that in a case like present, the society would be required to choose some other competent forum for the recovery of the money which, according to them, has been paid in excess to, or, was withdrawn in excess by, the present petitioner – employee. 4. Mr.Jani, learned counsel for the respondent society after taking me through the very same judgment of the Gujarat State Co-operative Land Development Bank Ltd. (supra) submitted that the Apex Court has decided the case on particular facts of the case and the said judgment would not apply to the present set of the facts. He further submitted that sec.96(1)(a) encompasses disputes between the present and past servant and the society, SCA/8211/1994 4/7 JUDGMENT therefore, the Cooperative Court / Tribunal would have full jurisdiction to hear the matter. Placing reliance upon the judgment of the Supreme Court in the matter of Rajasthan State Road Transport Corporation and anr. Vs. Zakir Hussain, reported in (2005) 7 S.C.C. 447, he submits that a Civil Court would have no jurisdiction in the matter and if there is no alternative forum to the respondent society, then this Court must hold that the Co-operative Court / Nominee Court would have fullest jurisdiction in the matter. 5. In the matter of the Gujarat State Co-operative Land Development Bank Ltd. (supra), an employee came to the Labour Court submitting inter-alia that his termination was colourable, it amounted to victimization and he was entitled to reinstatement with back wages. The defendant of the said suit (Gujarat State Co-operative Land Development Bank Ltd.) filed an application submitting that the Labour Court had no jurisdiction in the matter as Section 96 of the Gujarat Cooperative Societies Act, 1961 (Gujarat Act No.10 of 1962) was to cover the field. The matter ultimately went to the Supreme Court. It was submitted before the Apex Court that as the employee was terminated prior to coming into force of 1961 Act, the SCA/8211/1994 5/7 JUDGMENT provisions of 1925 Act would apply to the facts of the case. The Supreme Court referred to sec.24 of the Act of 1925 and also referred to Sec.96(1)(a) of 1961 Act and after perusing both the provisions, it ultimately held that in matters of employee or servant, Cooperative Court would have no jurisdiction. 6. The arguments of Mr.Jani could well be appreciated if the Supreme Court had not referred to clause (a) of sec.96(1) of 1961 Act. When the Apex Court was alive to the language of clause (a) of section 96(1), then by no stretch of imagination or ingenuity, it can be submitted before the Court that the judgment is per-incuriem or particular provisions of the Act were not brought to the notice of the Court. 7. In view of the said judgment of the Supreme Court, I am unable to hold in favour of the respondent society. 8. So far as the judgment in the case of Rajasthan State Road Transport Corpn. and anr. (supra) is concerned, that was a matter where the Supreme Court was considering the question that whether the Civil Court would have jurisdiction to hear and decide a dispute between an employer and employee, specially when the provisions of Industrial Disputes Act apply. Present is not a case where SCA/8211/1994 6/7 JUDGMENT the dispute is whether the provisions of Industrial Disputes Act or the provisions of Payment of Gratuity Act would apply. Present is a case where the petitioner's submission is that the suit before the Co-operative Court would not be maintainable. Mr.Jani's argument probably is on the question of forum in view of the judgement of the Supreme Court in case of State of Punjab Vs. Labour Court, Jullundur and ors., reported in A.I.R. 1979 S.C. 1981, wherein, the Supreme Court had observed that the Payment of Gratuity Act enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. The Supreme Court had observed that the application filed by the employee under sec.33-C(2) of the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of the said application. Assuming that the Labour Court has no jurisdiction or as argued by Mr.Jani, the Commissioner under the provisions of Payment of Gratuity Act also has no jurisdiction to direct recovery of the overpaid amount, then the petitioner will have to search a forum because this Court is not required to advice the respondent No.1 to go to a particular forum. SCA/8211/1994 7/7 JUDGMENT 9. In view of the judgment of the Supreme Court, I must hold that the Co-operative Court had no jurisdiction to entertain the suit. 10.The orders passed by the Board of Nominees and confirmed by the Revenue Tribunal are hereby quashed and set aside. The application filed at Ex.16 is allowed. It is held that the Board of Nominees has no jurisdiction to try the matter. 11.The petition is allowed. No costs. (R.S. GARG, J.) rafik