IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.11231 of 2003 The Management of the Tiruchirapalli District Central Co-operative Bank Ltd., Fort Station Road, Tiruchirapalli- 2 rep. by its General Manager .. Petitioner Vs. 1. The Industrial Tribunal 2nd Floor, City Civil Court Buildings Chennai – 600 104. 2. The Tiruchirapalli District Central Co-operative Bank Employees' Association, rep. by its General Secretary 1, Fort Station Road Tiruchirapalli – 620 002. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the order of the 1st respondent in I.D.No.110 of 1997, dated 5.11.2001 and to quash the same. For Petitioner : Mr.R.Parthiban For Respondents : Mr.R.Sivakumar for 2nd respondent ORDER The writ petition is directed against the award dated 5.11.2001 passed by the Industrial Tribunal in I.D.No.110 of 1997 raised by the second respondent/Union. 2.1. The writ petitioner/Management, which is a co-operative society governed by the Tamil Nadu Co-operative Societies Act, 1983 (for brevity, "the Act") and the Rules framed thereunder, proposed to effect amendment in respect of the Special Bye-laws relating to the service conditions of its employees and the said amendment was relating to the medical leave facilities to the employees and the amendment was in the following terms: https://hcservices.ecourts.gov.in/hcservices/ "Every employee regularized or confirmed in the service of the Bank shall be entitled to 18 days sick leave per every 12 months of service." 2.2. The said amendment was approved by the Registrar of the Co- operative Societies on 10.5.1994 and as per the petitioner/Management, the amendment was to be given effect to from 10.5.1994. However, the second respondent/Union took a stand that the amendment should be given effect retrospectively to all employees who are in service and the benefits should be conferred to them. It is with that view the dispute was raised before the Industrial Tribunal. 2.3. The writ petitioner/management has taken the stand before the Tribunal that the extension of sick leave benefits to the employees was sought to be given as per the proceedings of the management dated 19.7.1994 and inasmuch as the petitioner/management is a society governed by the provisions of the Act and bye-laws framed under the said Act were registered, it is incumbent on the part of the writ petitioner/management to register the proposed amendment also and it is with that view registration was effected on 10.5.1994 and the petitioner/management has taken a definite stand that even though the said benefit was given by way of an amendment based on a settlement entered under Section 12(3) of the Industrial Disputes Act between the second respondent/Union and the petitioner/management, when once the amendment is registered it becomes statutory in nature and therefore, as per the provisions of the Act, the operation shall be only prospective. 2.4. The Industrial Tribunal, while accepting the stand of the second respondent/Union, has relied upon the circular issued by the petitioner/ management dated 19.7.1994, in which the petitioner/management has stipulated the scheme, as per the amendment for conferment of benefits of sick leave, stating that the persons who have put in up to 5 years of service will be entitled to 3 months sick leave; the persons with service of more than 5 years up to 10 years will be entitled to 6 months sick leave; persons with service of more than 10 years up to 15 years will be entitled to 9 months sick leave; persons with more than 15 years up to 20 years service will be entitled to 12 months sick leave; and persons with more than 20 years of service will be entitled to 18 months sick leave benefit, and has come to a conclusion that the effect of the said amendment shall be given to all the existing employees from the date of their original appointment. The Tribunal also took note of the fact that a note appended to the said circular dated 19.7.1994 should be ignored. The said note states that the benefit of sick leave conferred under the circular shall be given effect to only for the persons who joined either on 10.5.1994 or thereafter. However, while deciding about the interpretation of the amendment, the Industrial Tribunal has referred to the demand made by the second https://hcservices.ecourts.gov.in/hcservices/ respondent/Union for the past many years and also referred to various judgments of this Court, which are all relating to disciplinary action against the employees of the co-operative societies, and based on Section 90 of the Act has held that the amendment relates to the alteration of service conditions between the society and its employees and therefore, the industrial dispute is maintainable. 3.1. The award of Industrial Tribunal is assailed by the petitioner/ management, as submitted by the learned counsel for the petitioner, Mr.R.Parthiban, on the ground that the Industrial Tribunal has failed to take note of the fact that a preliminary objection has been raised about the jurisdiction of the Tribunal, since the service conditions in respect of the employees of co- operative societies are fully governed by the bye-laws framed under the Act and therefore, the further proceedings are to be initiated only under the provisions of the Act and consequently, raising of industrial dispute before the Tribunal lacks jurisdiction. 3.2. It is also the further contention of the learned counsel for the petitioner that when once the petitioner has sought the amendment to be incorporated as per the provisions of the Act, by registering the same in accordance with Section 11(8) of the Act, since there is no stipulation regarding the date from which the benefit is to be given effect to, the amendment has to be given effect to only from the date of registration, namely 10.5.1994 and that aspect has not been taken note of by the Tribunal. 3.3. It is the next contention of the learned counsel for the petitioner that even if the second respondent/Union is aggrieved by the amendment made to the bye-laws of the society from 10.5.1994, the remedy available is under Section 152 of the Act by way of an appeal and that aspect has also been ignored by the Tribunal. 4.1. On the other hand, it is the contention of the learned counsel for the second respondent/Union that inasmuch as the proposed amendment relates to the service conditions of the employees of the co-operative society, the employees are entitled to raise industrial dispute and therefore, it cannot be said that the Industrial Tribunal lacks jurisdiction. 4.2. It is also his contention, by quoting hierarchy of judgments of the Apex Court, that being a beneficial legislation, whether it is the under the Tamil Nadu Co-operative Societies Act or any other Act, inasmuch as it relates to the employees welfare, since the amendment itself is relating to the welfare measures to be given to the employees, the beneficial legislation must be given liberal interpretation. Therefore, according to the learned counsel, if the amendment is to be given effect to from the date of registration, it must be made applicable to all the employees who are in the service as on that date, with the result, the benefit has to be given to them https://hcservices.ecourts.gov.in/hcservices/ from the date of their original appointment. 5. I have heard the learned counsel for the petitioner and the second respondent, considered the various judgments relied upon by them and given my anxious thought to the issue involved in this case. 6. The reliance placed on by the learned counsel for the second respondent/Union on the government order in G.O.Ms.No.1119, Personal and Administrative Reforms (F.R.II) Department, dated 28.9.1979 to substantiate his contention that the amendment in question made by the petitioner/management was originally based on the proposal given by the Government as per the said government order is no doubt true. It is as per the III Pay Commission Report, the Government has given such proposal to all industrial establishments to confer the benefits of sick leave and it cannot be denied that it was based on the general policy of the government, the petitioner/management itself has given effect to the amendment to the bye-laws. 7. However, in respect of some of the co-operative societies, while giving effect to the concept of the said policy of the government, there has been a settlement entered under Section 18(1) of the Industrial Disputes Act between the management and the Union, as it is seen in respect of Tirunelveli Central Co-operative Bank, and as per the said settlement entered under Section 18(1) of the Industrial Disputes Act, it was agreed that the sick leave benefit should be given to all employees from the date of their appointment. 8. But, the question is as to whether such settlement entered under Section 18(1) of the Industrial Disputes Act between the parties can be correlated to that of a statutory amendment carried out to the bye-laws framed by the petitioner/management concerning the service conditions of its employees. 9. When once the statutory amendments are effected by the petitioner, thereafter the provisions of the Act hold the field. As correctly submitted by the learned counsel for the petitioner, Section 11 of the Act contemplates the procedure to be followed for the purpose of effecting an amendment to the bye-laws of the registered society. The registered society under the Tamil Nadu Societies Registration Act is entitled to frame bye-laws concerning the service conditions of its employees and such bye-laws are registered with the Registrar of Co-operative Societies when they are amended and the procedure to be followed is prescribed under Section 11 of the Act. Section 11(8) of the Act, which is as follows: "Section 11. Amendment of the by-laws of registered society.- (1) to (7) .... (8) An amendment of the by-laws of a registered society https://hcservices.ecourts.gov.in/hcservices/ shall take effect from the date, if any, specified in the amendment. Where no such date is specified, the amendment shall take effect from the date on which it is registered." in specific terms states that when after following the procedure contemplated therein an amendment to the bye-laws got registered with the Registrar of Co-operative Societies, it shall be effective as per the date contemplated under the amendment, if such date is available, and in the absence of such specific date given in the amendment, the amendment has to take effect from the date of registration. 10. When that is the statutory implication of the amendment effected to the bye-laws, any circular that has been issued by the petitioner to the contrary cannot go beyond such amendment. In any event, the note to the circular, which has been referred to by the Industrial Tribunal and which specifically states that the amendment shall be effective from the date of its registration, namely 10.5.1994 and the benefits are applicable to only those employees who are appointed from the said date, cannot be said to be against the provisions of Section 11(8) of the Act. The contents of the circular only explain the policy as to the mode by which the benefit of sick leave is to be given to the employees. In my considered view, the Industrial Tribunal has failed to take note of the vital issue and implication of such registration. 11. With respect to the contention of the learned counsel for the petitioner about the maintainability of industrial dispute by the second respondent/Union, even though the same has not been raised by the petitioner/management in so many terms in the counter affidavit filed before the Industrial Tribunal, when the same was raised by the counsel at the time when the matter was before the Tribunal, that being a legal issue, the Tribunal, in my considered view, ought to have considered the same on merits and passed orders. Even otherwise, it is not as if the petitioner/ management is debarred from raising the legal issue. 12. The learned counsel for the petitioner has raised a specific issue now before this Court, as it is seen in the main grounds raised in support of the writ petition, about the maintainability of an industrial dispute before the Labour Court when once the remedy is available under the provisions of the Act. 13. Unfortunately, the Industrial Tribunal, while referring to the contention of the learned counsel for the petitioner/management that the matter has to be raised under the provisions of the Act and the question of applicability of provisions of the Industrial Disputes Act does not arise, made a reference to Section 90 of the Act to come to a conclusion that the said provision relates to the beneficial legislation and therefore, the dispute has to be sustained https://hcservices.ecourts.gov.in/hcservices/ before the Tribunal. 14. Section 90 of the Act relates to the settlement of disputes touching the constitution of the board or the management or the business of the registered society and that cannot, by any stretch of imagination, be construed to be relating to either the service conditions or the settlement of labour disputes. In fact, Section 90 of the Act incorporates the concept of arbitration for settlement of disputes in the management under the co-operation movement so as to avoid the cumbersome procedure in settling the disputes through civil court. That can never be treated as a ground for the purpose of settling disputes in respect of the employees. Therefore, the reason given by the Industrial Tribunal by accepting the maintainability of the industrial dispute before the Tribunal based on Section 90 of the Act is totally extraneous and cannot be sustained. 15. If it is the provisions of the Tamil Nadu Co-operative Societies Act which are to be followed, the necessary consequence is that if the second respondent/Union is aggrieved by such amendment or if the second respondent/Union's case is that the effect of such amendment shall be to give benefit to all the employees from the date of their appointment, who are on the rolls as on the date of registration, viz., 10.5.1994, it is for the second respondent/Union to work out its remedy of filing appeal under Section 152 of the Act. Section 152 of the Act which provides for appeal to the authorities from various orders, specifically includes the effect of an amendment carried out under Section 11 of the Act, as it is provided under Section 152(2)(a)(ii) of the Act, which is as follows: "Section 152. Appeal.- (2)(a) Any person aggrieved by any - (i) ... (ii) refusal to register the society under section 9 or the amendment of the by-laws under section 11;" Therefore, it is not as if the second respondent/Union had no remedy available under the Act. 16. In such view of the matter, I have no hesitation to hold that the award of the Industrial Tribunal is certainly not in accordance with the provision of the Act and hence, it is untenable and liable to be set aside. Accordingly, the writ petition stands allowed and the award of the Industrial Tribunal stands set aside. Considering the fact that the implication of the amendment itself is a welfare measure based on the policy of the government, it is open to the second respondent/Union to raise any negotiation with the Employer, in which event it is for the parties to arrive at an amicable settlement in this regard. It is also open to the second respondent/Union, if so advised, to approach the https://hcservices.ecourts.gov.in/hcservices/ appellate authority as per the provisions of the Act, as stated above, and if the second respondent/Union decides to file appeal under Section 152 of the Act and if such appeal is filed within a period of two weeks from the date of receipt of a copy of this order, the appellate authority shall receive the same, without rejecting it on the ground of limitation, and pass appropriate orders, on merits and in accordance with law. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sasi To: The Presiding Officer Industrial Tribunal 2nd Floor, City Civil Court Buildings Chennai – 600 104. 1 cc to Mr.R.Parthiban, Advocate, Sr.No.76396 1 cc to Mr.R.Sivakumar, Advocate, Sr.No.76173 W.P.No.11231 of 2003 GR {CO} TP/28.10.2010. https://hcservices.ecourts.gov.in/hcservices/