Civil Writ Petition No.18631 of 1991 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision :- 15.2.2011 Nirmal Singh ....Petitioner Versus The Cheema Khurd Dhak, Cooperative Agricultural Service Society Ltd. and another ....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Ms.Shikha Sharma, Advocate for the petitioner. Mr.M.S.Kang, Advocate for respondent No.1. M ehinder S ingh S ullar , J. (Oral) Succinctly, the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that petitioner Nirmal Singh workman (for brevity “workman”) was working as a Secretary with the management of The Cheema Khurd Dhak, Cooperative Agricultural Service Society Ltd. respondent No.1 (for short “the management”). Having rendered more than 13 years, his services were stated to have been illegally terminated on 15.9.1979 by the management. He filed the appeal against the order of termination, which was allowed by the Assistant Registrar (for brevity “AR”), Cooperative Societies, vide order dated 15.4.1981. Although the petitioner reported for duty, but he was not allowed to join the service. 2. The workman claimed that as neither management allowed to join his duty nor paid him the arrears of wages, therefore, he filed an execution application under section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter to be referred as “the Act”). During the course of these proceedings, the management took the objection that the order of AR was null and void. In view of this objection, the petitioner withdrew his execution application. The civil suit filed by Civil Writ Petition No.18631 of 1991 2 the workman was dismissed on the ground and the objection of management that the civil Court has no jurisdiction to try the suit. 3. Finding no alternative, the workman then raised an industrial dispute under section 10 of the Act, which was referred for adjudication to the Presiding Officer of the Industrial Tribunal-cum-Labour Court by the appropriate Government. 4. The management contested the claim of the workman and raised a preliminary objection, with regard to the maintainability of the reference petition on account of filing of the appeal by the workman before the AR. 5. In the wake of pleadings of the parties, the Labour Court framed the following issues:- 1. Whether the reference is bad in law, illegal and not maintainable being barred by principles of res judicata and for the reasons given in preliminary objections. 2. Whether the termination of services of the workman is justified and in order ? If not, to what relief he is entitled? 6. After hearing the learned counsel for the parties, the Labour Court sustained the objection of the management and while deciding issue No.1, it was held that the reference is barred by the principle of res judicata and dismissed the claim of the workman, by virtue of impugned award dated 11.2.1991 (Annexure P1). 7. The petitioner-workman did not feel satisfied and preferred the instant writ petition, challenging the impugned award, invoking the provisions of Articles 226 and 227 of the Constitution of India. 8. Levelling a variety of allegations and narrating the sequence of events, in all, the workman claimed that once the management had taken the objection during the course of proceedings under section 33C(2) of the Act that order of AR was null and void, in that eventuality, only the Labour Court has the jurisdiction to decide the matter. The question of res judicata did not arise at all Civil Writ Petition No.18631 of 1991 3 and the Labour Court fell in error and illegally dismissed the reference petition. On the basis of aforesaid allegations, the petitioner sought the quashment of impugned award (Annexure P1) in the manner depicted hereinabove. 9. The respondent No.1 contested the claim of the petitioner and filed written statement, inter-alia pleading certain preliminary objections of maintainability of the writ petition, cause of action and locus standi of the petitioner. According to the management that services of the workman were rightly terminated, vide resolution dated 15.9.1979. He filed departmental appeal, which was accepted by the AR, vide order dated 15.4.1981. The revision petition filed by the management was dismissed by the Registrar, by means of order dated 30.6.1981. Thereafter, the petitioner raised a dispute under sections 55 and 56 of the Punjab Cooperative Societies Act, 1961 for recovery of his pay from the management with effect from 15.9.1979 to June 1981. Concisely, the management claimed that since the workman had already availed his remedy before the AR, so, the Labour Court has rightly applied the principle of res judicata and dismissed the claim of the petitioner. It will not be out of place to mention here that the contesting respondent has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 10. Having heard the learned counsel for the parties, having gone through the record and relevant law with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be accepted for the reasons depicted hereinbelow. 11. As is evident from the record that services of the petitioner were terminated on 15.9.1979 by the management. The appeal filed by him was accepted on 15.4.1981 by the AR Cooperative Societies. The petitioner claimed that neither the Management allowed him to join the duty nor paid him the arrears and he filed the execution petition. During the course of these proceedings, the management took objection that the order of AR was null and void. In view of this Civil Writ Petition No.18631 of 1991 4 objection, the petitioner withdrew his execution application under section 33C(2) of the Act. The civil suit filed by the workman was dismissed for want of jurisdiction by the civil Court. Finding no alternative, the workman raised an industrial dispute under section 10 of the Act, which was referred for adjudication to Labour Court by the appropriate government. The Labour Court dismissed the same on the principle of res judicata, by way of impugned award (Annexure P1). 12. Such thus being the position on record, now the short and significant question, though important that arises for determination in this petition is, as to whether the filing of appeal before the AR by the workman would debar him from claiming his relief through the medium of Industrial Disputes Redressal Forum or not? 13. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer is in negative and the order of AR would not operate as res judicata on the proceedings under section 10 of the Act. 14. Ex facie, the arguments of learned counsel for the management that the reference petition was barred by the principle of res judicata, is neither tenable nor the observations of Hon'ble Apex Court in case Co-operative Central Bank Ltd. and others etc. v. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others etc. AIR 1970 Supreme Court 245 are at all applicable to the facts of the present case, wherein while interpreting the provisions of sections 16 and 61 of the Andhra Pradesh Cooperative Societies Act, 1964 vis-a-vis section 51 of the Madras Cooperative Societies Act, 1932, it was inter-alia observed (para 7) as under:- “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 Civil Writ Petition No.18631 of 1991 5 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. Further, the position is clarified by the provisions of sub-section (4) of Section 62 of the Act which limit the power to be exercised by the Registrar, when dealing with a dispute referred to him under Section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of the Act, the rules and the bye-laws could not possibly permit the Registrar to change conditions of service of the workmen employed by the society.” 15. Moreover, the Hon'ble Supreme Court approved the ratio of law laid down by Madras High Court in case South Arcot Cooperative Motor Transport Society, Ltd. (for ex-servicemen) v. Syed Batcha, AIR 1961 Mad 217, wherein it was held as under:- "Therefore, in regard to an industrial claim, like the retrenchment compensation, the remedy for the worker would be only to enforce it by the machinery created by the Industrial Disputes Act, namely, by Sections 10 and 33C(2). The Madras Co-operative Societies Act being itself a special statute, the authority, acting under it, would have no jurisdiction beyond what the enactment itself conferred on him. He could not, therefore, have jurisdiction to decide a dispute under the Industrial Disputes Act." 16. What is not disputed here is that in the instant case as well, there is no specific provision under the Cooperative Societies Act, authorizing AR to settle/decide/change the service conditions of an employee in this context. 17. Not only that, an identical question came to be considered by a Full Bench of this Court in case The Ambala Central Co-operative Bank Limited, Ambala v. The State of Haryana and others (1993-1) P.L.R. 424. Having interpreted the para materia provisions of the Cooperative Societies Act, it was ruled as under:- “However, Industrial Disputes Act dealing with the special subject relating to rights of the workman and the management and the relief provided therein could only be granted by the Court established under the Industrial Disputes Act. Section 128 of the Haryana Co-operative Societies Act was rightly held to be ultra vires i.e. the remedies available under the Industrial Disputes Act could not be denied to the workman of the management, a Co-operative Society. In that sense the order of the Registrar passed under the provisions Civil Writ Petition No.18631 of 1991 6 of the Co-operative Societies Act cannot be treated as a decision final to operative as res judicata in the Labour Court in a reference under Section 10 of the Industrial Dispute Act. Obviously when the order itself is under challenge the same cannot operate as res judicata. To sum up, it is held that after the Registrar decides the matter between an employee and employer, a Co-operative Society, with regard to the termination of his service under Sections 102 and 103 of the Haryana Co- operative Societies Act, 1984 the matter could be referred under Section 10 of the Industrial Disputes Act as an industrial dispute to the Labour Court for adjudication. It is further held that such a decision made by the Registrar under the Haryana Co-operative Societies Act would not operate as res judicata in proceedings initiated on reference under Section 10 of the Industrial Disputes Act in the Labour Court.” 18. Meaning thereby, the ratio of law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the instant case and is the complete answer to the problem in hand in this relevant connection. 19. Moreover, as indicated earlier, the execution application under section 33C (2) of the Act was withdrawn by the petitioner on the objection of the management that the order passed by the AR was void, ab initio. Thereafter, the suit filed by the workman was dismissed for want of jurisdiction by the civil Court. In such a situation, if the contention of learned counsel for management is accepted, then the workman would be rendered remedy-less. Above-all, the management cannot legally be permitted to blow hot and cold in the same breath in this relevant connection. 20. Therefore, it is held that the indicated order of AR would not operate as res judicata, the reference petition was maintainable and impugned award (Annexure P1) cannot legally be maintained in the obtaining circumstances of the case. 21. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 22. In the light of the aforesaid reasons and without commenting further anything on merits lest it may prejudice the case of either side during the course of trial of industrial dispute, the instant writ petition is accepted with costs. Civil Writ Petition No.18631 of 1991 7 Consequently, the impugned award (Annexure P1) is hereby set aside. The matter is remitted back to the Labour Court for its fresh decision, in view of the aforesaid observations and in accordance with law. 23. Needless to mention here that nothing recorded herein above would reflect on the merits of the case, in any manner, as the same has been so observed for a limited purpose of deciding the instant petition. 24. The parties through their counsel are directed to appear before the concerned Labour Court on 31.3.2011. (Mehinder Singh Sullar) 15.2.2011 Judge AS Whether to be referred to reporter? Yes/No