IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10..6..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 17802 of 1994, 10161 of 1995, 14680 of 1996, 6219, 6220, 20964, 21003 of 2000 and 19704 of 2001 and W.P.M.P. No. 27073 of 1994 in W. P. No. 17802 of 1994, W.P.M.P. No. 9296 of 2000 in W. P. No. 6219 of 2000, 9297 and 25315 of 2004 in W.P. No. 6220 of 2000, W.P.M.P. No. 30485 of 2000 in W. P. No. 20964 of 2000 and W.P.M.P. No. 30557 of 2000 in W. P. No. 21003 of 2000 W.P. No. 17802 of 1994: 1. P. Eswaramoorthy 2. V. Saraswathi 3. V.K. Subbannan 4. M. Natarajan 5. K.T. Chellappan 6. S. Rajeswari 7. K.P. Subbiyan 8. R. Velusamy 9. P.N. Ramanathan 10. K. Subburaj 11. K.P. Thirunavukarasu 12. A. Siluvai Rathinam 13. T. Natarajan 14. P. Gunasekaran 15. S. Sivaram 16. A. Kamal Basha ... Petitioners 1.P.Venugopal 2.B.Radhakrishnan 3.J.Rajamuthukumar ..Petitioners in WP No.10161/95 The Ramanathapuram District Central Co-operative Bank LTd., Ramanathapuram rep. by its Special Officer. ..Petitioner in WP 14680/96 https://hcservices.ecourts.gov.in/hcservices/ K.Chennimalai ..Petitioner in WP 6219/2000 Kandasamy Ganesan ..Petitioner in WP 6220/2000 The Salem District Central Co-operative Bank Ltd., Cherry Road, Salem-1 rep. by its Managing Director ..Petitioner in WP 20964/2000, 21003/2000 K.A.Mohammed Sheriff ..Petitioner in WP 19704/2001 -vs- 1. R.J.B. Leoraj 2. The Coimbatore Central Co-operative Bank Ltd. Rep. by its Special Officer Coimbatore 3. C.S. Sarada 4. P.R. Rajendran 5. V. Seethalakshmi 6. K. Ganapathy 7. D. Murugesan 8. A. Padmanabhan 9. A. Saraswathi 10. R. Lakshmanan 11. The Deputy Registrar of Co-op. Societies Coimbatore ... Respondents 1.The Dy.Registrar of co-operative Societies, Coimbatore. 2.The Special Officer, Coimbatore City Co-operative Bank, Jail Road, Coimbatore. 3.S.Sridharan 4.G.Ramasamy 5.P.Arumugam ..Respondents in WP 10161/1995 https://hcservices.ecourts.gov.in/hcservices/ 1.The Additional Registrar (Marketing, Planning and Development) Office of the Registrar of Co-op.Societies, Madras-10 2.K.Giruvaiah ..Respondents in WP 14680/1996 1.Salem District Central Co-operative Bank rep. by its Managing Director, Salem. ..1st Respondent in WP Nos. 6219 and 6220/2000 and 2nd Respondent in WP 19704/2001 The Deputy Registrar of Co-operative Socities, Salem Circle, Salem. ..2nd Respondent in WP 6219, 6220/2000 and 1st Respondent in WP No.20964/2000,21003/2000 and 19704/2001 N.Thirunavukkarasu T.Sidharthan ..Respondents 3 & 4 in WP 6219/2000 K.A.Mohamed Sherif K.Raja ..Respondents 3 & 4 in WP 6220/2000 K.A.Mohamed Sheriff K.Raja Kandaswami Ganesan ..Respondent 2 to 4 in WP 20964/2000 N.Thirunavukarasu T.Sidharthan K.Chennimalai ..Respondents 2 to 4 in WP 21003/2000 Kandaswami Ganesan ..3rd Respondent in 19704/2001 Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari 1. calling for the records on the file of the eleventh respondent relating to the impugned order dated 31.8.1994 passed by the 11th respondent in A.R.C. No. 1198 / 1991-92 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ 2. calling for the records on the file of the first respondent relating to the impugned order bearing No.30/95-96 S.A.Pa-1 dated 30.5.95 passed by the first respondent and quash the same (W.P.10161/95) 3. calling for the records of the first respondent in R.C.No.57765/94-SF dated 24.5.1996 quash the same (w.P.NO.14680/96) 4. calling for the records of the 2nd Respondent relating to the proceedings dated 29.2.2000 in arbitration reference case No.10101/98 and 9657/98 respectively and quash the same. (W.P.No.6219/00 and 6220/00. 5. calling for the records in ARC Nos.9657 of 1998 and 10101 of 1998 respectively on the file of the Deputy Registrar of Cooperative Societies Salem cirle , Salem the first respondent herein and quash the order passed therein dated 29.2.2000 (W.P.Nos.20964/00 and 21003/00) and 6. to issue a writ of mandamus directing the 2nd respondent to implement the order of the Ist Respondent in proceedings A.R.C.NO.9657/98 dated 29.2.2000 and to give promotion to the petitioner as Assistant Manager with all the Benefits from the date on which the 3rd Respondent was promoted as Assistant Manager (W.P.No.19704/01) For Petitioner : Mr. Venkatesan for M/s Aiyar and Dolia in W.P.Nos.17802/94 and 10161/95 M/s. R. Parthiban in W.P.No.14680/96 M/s.Muthumani Doraisami in W.P.Nos.6219and 6220/00 M/s. M.R. Raghavan in W.P.Nos.20964, 21003/00 Mr.C. Selvaraj, Senior Counsel for M/s. S. Mani in W.P.No.19704/01 https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr. Ravichandran for Mr. Satish Parasaran for R1 M/s. R. Parthiban for (R2) C.S. Sarada (R3) P.R. Rajendran (R4) V. Seethalakshmi (R5) K. Ganapathy (R6) D. Murugesan (R7) A. Padmanabhan (R8) A. Saraswathi (R9) R. Lakshmanan (R10) in W.P.17802/94 Spl. Government Pleader (w) for R11 in W.P.No.17802/94 and for Ist Respondent in W.P.10161/95, 14680/96, 20964/00, 21003/00, 19704/01 and for 2nd Respondent in W.P.Nos.6219 and 6220/00. M/s. N.G. Kalaiselvi for 2nd respondent M/s.V. Manohar for Respondent 3 to 5 in W.P.No.10161/95 Mr.P. Chandrasekar for 2nd Respondent in W.P.No.14680/96 M/s. M.R. Raghavan K. Vasuvenkat for ISt Respondent M/s. Aiyar and Dolia for Respondent 3 and 4 in W.P.Nos.6219 and 6220/00 M/s. N.s. Varadhachari N.V. Vasudevan for 4th Respondent K.A. Mohamed Sherif for 2nd Respondent and Raja for 3rd Respondent in W.P.No.20964/00 M/s. Muthumani Doraisami Kandavadivel Doraisami for 4th Respondent in W.P.No.21003/00 and 3rd Respondent in W.P.No.19704/01 T. Sidharthan for 3rd Respondent M/s. K. Akilandeswari for 2nd Respondent in W.P.No.21003/00 Mr.M.R. Raghavan for 2nd Respondent in W.P.No.19704/01 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER K. CHANDRU, J. Heard the arguments of the learned counsel for the parties and perused the records. 2. W.P. No. 17802 of 1994: 2.1. When this matter came up for disposal before the learned single Judge on 31.7.2002, the learned single Judge framed two questions and directed the matter to be placed before the Hon'ble Chief Justice for posting the same before an appropriate Division Bench. Accordingly, the matter was posted before this Division Bench on the orders of the Hon'ble Chief Justice. The two questions are as follows:- 1. In matters relating to service conditions of employees of Cooperative Societies, whether the Industrial Disputes Act (Special Law) or the Cooperative Societies Act (General Law) is applicable? 2. Whether an employee of a Cooperative Society can invoke the provisions of Section 90 and /or Section 152 / 153 (Appeal / Revision) for redressal of his service grievances? 2.2. The reason for framing the two issues were an apparent conflict between the decisions rendered by this Court and referred by the learned Judge in his order are as follows:- (i) In Somasundaram v. Liyakat Ali [1997 (1) CTC 4], S.S. Subramani, J. has held that orders regarding inter-se seniority between employees of Co-operative Societies is not an order passed under the Co-operative Societies Act, such seniority cannot be decided and the bar of jurisdiction of Civil Court under Section 156 is not attracted in matters relating to determination of inter-se seniority of employees of Co-operative Societies and no remedy is available under the Industrial Act. As such, Civil Suit is maintainable. (ii) In K. Radhakrishnan v. Additional Registrar [2000 (II) CTC 147], P.Sathasivam, J. (as he then was) has held that seniority is part of service conditions of employees which may be construed as an action under Special bye-laws of the Union and a revision under Section 153 of the Co-operative Societies Act is maintainable. https://hcservices.ecourts.gov.in/hcservices/ (iii)In The Management of Madras Atomic Power Project Employees' Consumers (Co-operative Stores Limited, Kalpakkam rep. by its Special Officer v. The Deputy Commissioner of Labour (Appeal) Madras – 6 and 2 others [2000 (III) CTC 738], P.Sathasivam, J. (as he then was) has held that disciplinary action against paid servant of society is not a dispute under Section 90 or not one "touching business" of the society." 3. When this matter came to be listed, at the request of the members of the bar, several other writ petitions were also tagged on along with this writ petition on the ground that the answer to questions raised in this writ petition will have a bearing on the other writ petitions. 4. Before venturing into the legal issues raised in these writ petitions, it is necessary to briefly refer to the factual aspect of each of the writ petition. 4.1. In W.P. No. 17802 of 1994, there was a dispute between the petitioner and the contesting respondent regarding seniority and promotion and when the seniority list dated 11.11.1984 was published. Aggrieved by the said list, the first respondent filed a petition under Section 90 of the Tamil Nadu Co-operative Societies Act, 1983 in July 1991. The said dispute was taken on file by the Deputy Registrar of Co-operative Societies, Coimbatore (11th respondent) and the said dispute was allowed by an order dated 31.8.1994. As against the said order, the Co-operative Society filed an appeal u/s 152 before the Co-operative Tribunal. But even during the pendency of the same, the aggrieved private respondents moved this Court challenging the proceedings of the Arbitrator. This writ petition was admitted on 26.10.1994. 4.2. W.P. No. 10161 of 1995 is filed by three employees of the Co-operative Societies against the order of the first respondent Deputy Registrar in entertaining a petition under Section 90 of the Co-operative Societies Act and setting aside the promotion granted in favour of respondents 2 to 4. This writ petition was admitted on 08.8.1995. 4.3. W.P. No. 6219 of 2000 is filed by an employee of the Co- operative Society against an order passed by the second respondent Deputy Registrar, Salem in entertaining a petition regarding promotion granted to the writ petitioner by the Co-operative Society and setting aside the same and also directing the respondents 3 and 4 to be promoted to the post of Assistant Manager purporting to https://hcservices.ecourts.gov.in/hcservices/ exercise power under Section 90 of the Co-operative Societies Act. W.P. No. 21003 of 2000 was filed by the Management challenging the very same order. 4.4. In W.P. No. 6220 of 2000, the petitioner, an employee of the Co-operative Society, challenges the order of the Deputy Registrar made under Section 90 of the Co-operative Societies Act. By exercising power under Section 90 vide order dated 29.02.2000, the promotion of the writ petitioner was set aside and respondents 3 and 4 were directed to be promoted. The very same order is challenged by the Salem District Co-operative Bank in W.P. No. 20964 of 2000. W.P. No. 19704 of 2001 is also filed by one Mohammed Sheriff challenging the very same order. 4.5. W.P. No. 14680 of 1996 is filed by the Ramanathapuram District Central Co-operative Bank against a preliminary order passed by the first respondent (revisional authority) holding that the revision petition filed by the second respondent was prima facie maintainable and the objection of the petitioner Bank was overruled vide order dated 24.5.1996. The said writ petition was admitted on 09.10.1996. 5. The following contentions were raised by Mr.G.Venkataraman of M/s Aiyar & Dolia, learned counsel appearing for the petitioner in W.P. 17802 of 2004:- (a) The disputes relating to terms of employment, working conditions and disciplinary action would not come within 'any dispute' under Section 90 of the Tamil Nadu Co- operative Societies Act and 'any dispute' provided for therein is restricted in its scope to a dispute of civil nature which is capable of being resolved by the Registrar or his nominee and does not take in an 'industrial dispute between the society and its workmen which under Industrial Disputes Act is triable by Labour Court / Industrial Tribunal. (b) Industrial Disputes Act is a special law dealing with the special subject. Industrial disputes which in their nature are essentially different from ordinary civil disputes between an employer and his employee governed by the law of contract. Industrial disputes Act provides for special machinery for adjudication of industrial disputes. As against this, the Tamil Nadu Co-operative Societies Act is a general enactment and it must yield to Industrial Disputes Act. (c) The scope of the expression 'any dispute' touching the business of the Society occurring in Section 90 is limited to disputes directly relating to actual trading, or https://hcservices.ecourts.gov.in/hcservices/ commercial activities of the Society. This expression does not take in dispute between the Society an its employee relating to conditions of his employment such as Seniority, promotion, revision of scale of pay, revision of dearness allowance, disciplinary action, etc. (d) The expression 'Management' in Section 90 of the Tamil Nadu Co-operative Societies Act means as per Section 2(7) read with Section 33(1)(a), the Board of Directors in which the Management of the Society vests. It does not include individual workers or employees of the Society. The expression 'Management' does not take in the matter touching the service conditions of the servants of the Society such as their seniority, promotion or dismissal / termination from service. (e) Unless the State Legislature specifically by legislation bars the jurisdiction of the Labour Court / Industrial Tribunal as in the case of Karnataka Co-operative Societies Act or Madhya Pradesh Co-operative Societies Act in regard to adjudication of terms of employment, working conditions an disciplinary action against workmen of Co- operative Societies, the Industrial Tribunal / Labour Court alone has jurisdiction to decide the disputes. It cannot be taken as of now Section 90 provides for an alternative forum. 6. In addition to the above submissions, Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioner in W.P. No. 14680 of 1996 submitted that what applies to Section 90 of the Co- operative Societies Act will also apply to the revisional powers conferred under Section 153 of the Co-operative Societies Act. Therefore, the order impugned in that writ petition is liable to be set aside. 7. Before proceeding to deal with the submissions made by the learned counsel for the parties, it is relevant to refer to the specific provisions of the Co-operative Societies Act with regard to settlement of disputes, Appeals and Revisional powers. 7.1. Section 73 of the Tamil Nadu Co-operative Societies Act, 1961 (Old Act) provided for settlement of disputes being referred to the Registrar for a decision. It is clearly stated that any dispute touching the constitution of the committee or the Management or the business of a registered society other than the dispute regarding disciplinary action taken by the society or its committee against the paid servant of the society, can be brought under the said Section. A similar provision has been made under Section 90 of https://hcservices.ecourts.gov.in/hcservices/ the Tamil Nadu Co-operative Societies Act, 1983 (New Act). In that provision, a specific exclusion was made regarding the disciplinary action taken by the competent authority constituted under Section 75(3) of the Act. 7.2. In the 1961 Act (Old Act), an appeal was provided under Section 96 as well as a revision was provided under Section 97. A bar of jurisdiction of the Civil Court was made under Section 100 of the Act. In the 1983 Act (New Act), an appeal is provided under Section 152 and a revision is made under Section 153 and there is also a bar of jurisdiction of Civil Court under Section 156. While the revisional powers under Section 97 of the 1961 Act (Old Act) was of general nature, under the 1983 Act (New Act), Section 153 includes revisional power over orders passed under Section 75(3) which deals with service conditions of the employees belonging to common cadre. While revision under Section 97 of the 1961 Old Act only refers to the examination of record of any officer subordinate to the Registrar, the revisional power under Section 153 under the 1983 New Act includes not only the revisional power over the orders passed by the subordinates but includes the action taken by the Board of Directors of the Society or any officer of the registered society or of the competent authority constituted under Section 75 (3) of the new Act. While the power under Section 73 (Old Act) or Section 90 (New Act) is more or less parimateria with each other, there is a vast difference between the revisional power under Section 97 (Old Act) compared to Section 153 (New Act). 8. This distinction will have to be kept in mind while referring to the decisions rendered under the Old Act. 9. With this background, the decisions referred at the bar can be dealt with. 10. A Full Bench of this Court in N.S. Madhava Rao and others v. D.V.K. Surya Rao and others [AIR 1954 Madras 103] compared the provisions found in the Madras Co-operative Societies Act 1912 and the Madras Co-operative Societies Act 1932. It was held that the words 'touching the business of the society' will cover a dispute concerning election and the Deputy Registrar can deal with such a dispute. 11. In South Arcot Co-operative Motor Transport Society Ltd. (for ex-servicemen) Devanam-Pattinam, Cuddalore v. Syed Batcha and others [AIR 1961 Madras 217], a learned single Judge had held that the claim for retrenchment compensation cannot be claimed under Section 51 which dealt with disputes touching the business of the Society. https://hcservices.ecourts.gov.in/hcservices/ 12. The Supreme Court vide its decision in Deccan Merchants Coop. Bank Ltd. v. Dalichand Jugraj Jain [1969 (1) SCR 887] dealt with the case of a tenant and the owner of the building, which was subsequently acquired by a co-operative society, and held that such a dispute cannot be brought under Section 91 of the Maharashtra Co- operative Societies Act which is almost in parimateria with Section 90 of our New Act. It also held that the term 'touching the business' though may be wider in connotation, but the word 'dispute' found in that section covers only those disputes which are capable of being resolved by the Registrar or his nominee. 13. The Supreme Court vide its decision in Coop. Central Bank Ltd. v. Additional Industrial Tribunal [1969 (2) SCC 43] held in paragraph 7 as follows:- Para 7: "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. It is true that Section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression “touching the business of the society”, in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression. 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 a dispute touching the business of the society...." https://hcservices.ecourts.gov.in/hcservices/ 14. It is significant to note that Section 61 of the Andhra Praesh Act as interpreted by the Supreme Court is more or less a reproduction of Section 73 of the 1961 Tamil Nadu Act which is in parimateria of Section 90 of the 1983 Act. Therefore, the reasoning of the Supreme Court will have greater bearing on the issue on hand. 15. The Supreme Court once again, in Gujarat State Coop. Land Development Bank v. P.R. Mankad [1979 (3) SCC 123] while dealing with the term 'dispute' found in the Gujarat Co-operative Societies Act held that it did not include a dispute regarding a discharged employee of a co-operative society. The following passage found in paragraph 37 may be reproduced:- Para 37: "Be that as it may, what has been directly bidden “out-of-bounds” for the Registrar by the very scheme and object of the Act, cannot be indirectly inducted by widening the connotation of “management”. A construction free from contextual constraints, having the effect of smuggling into the circumscribed limits of the expression “any dispute”, a dispute which from its very nature is incapable of being resolved by the Registrar, has to be eschewed. Thus considered a dispute raised against the Society by its discharged servant claiming reliefs such as reinstatement in service with back wages, which are not enforceable in a civil court, is outside the scope of the expression “touching the management of the Society” used in Section 96(1) of the Act of 1961, and the Registrar has no jurisdiction to deal with and determine it. Such a dispute squarely falls within the jurisdiction of the Labour Court under the B.I.R. Act." 16. Once again, the Supreme Court in U.P. Coop. Cane Union Federation Ltd. v. Liladhar [1980 Supp SCC 437] dealt with a similar provision found in U.P. Co-operative Societies Act and paragraphs 16 to 18 may be usefully extracted below:- Para 16: "Therefore, on the strength of the aforementioned two decisions it has to be held that a dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of the society cannot be said to be a dispute touching the business of the society. Para 17: To some extent this conclusion can be reinforced by reference to the U.P. Cooperative Societies Act, 1965, which repealed and replaced the Cooperative https://hcservices.ecourts.gov.in/hcservices/ Societies Act, 1912, in its application to the State of U.P. Section 70 of the 1965 Act provides for settlement of disputes. The relevant portion reads as under : “70. Disputes which may be referred to arbitration.—(1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a cooperative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises— .…” Para 18: It will be crystal clear that while making a statutory provision for resolution of disputes involving cooperative societies by arbitration by the Registrar, the legislature in terms excluded a dispute relating to disciplinary action taken by the society against paid servants of the society from the purview of the compulsory arbitration. It is legislative exposition of the topic under discussion. It must, however, be made distinctly clear that at the relevant time 1912 Act was in force and the contention has to be answered with reference to 1912 Act and the rules framed thereunder. It is, however, difficult to believe that the 1965 Act which repealed and replaced the 1912 Act excluded from the field of operation that which was already included under the repealed Act. On the contrary it would appear that what was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not touch the business of the society and was not within the purview of the compulsory arbitration, was made explicit by expressly excluding it from the field of compulsory arbitration." 17. Further, once again, dealing with the very same provision of the U.P. Co-operative Societies Act, the Supreme Court vide its decision in Allahabad Distt. Cooperative Ltd. v. Hanuman Dutt Tewari [1981 (4) SCC 431] in paragraph 2 held as follows:- Para 2: "The expression “business of the society” has been construed by several decisions of this Court. In Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain it was pointed out that “the word ‘business’ has been used in a narrower sense and it seems the actual trading or commercial or other similar business activity of the society which the https://hcservices.ecourts.gov.in/hcservices/ society is authorised to enter into under the Act and the Rules and its bye-laws”. In Cooperative Central Bank Ltd. v. Addl. Industrial Tribunal, A.P. it is said “but the meaning given to the expression ‘touching the business of the society’, in