IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.19025 of 1991 Date of decision: 04.08.2009 Punjab State Federation of Consumer Cooperative Wholesale Stores Ltd., SCO 22, Sector 17-E, IInd floor, Chandigarh, through its Managing Director. …Petitioner versus Home Secretary, Union Territory, Civil Secretariat, Sector 9, Chandigarh and others. …Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr. Brijeshwar Singh, Advocate, for Mr. Govind Goel, Advocate, for the petitioner. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J.(Oral) 1. The writ petition challenges the order of reference made by the Government for adjudicating the dispute raised by a person claiming to be a workman arising out of an alleged illegal termination by the management through the Managing Director, Punjab State Federation of Consumer Cooperative Wholesale Stores Limited, Chandigarh. 2. The grounds of challenge were two-fold: one, the person who was seeking for a reference had been working as a field officer in Ludhiana, Cooperative Consumer Store and he could have no relief under the Industrial Disputes Act. The second objection was that he had already participated in the proceedings and domestic enquiry, had Civil Writ Petition No.19025 of 1991 - 2 - challenged the order to the Deputy Registrar and filed a revision to the Government and only after he failed he had sought for a reference to the Labour Court under the Industrial Disputes Act. According to him, the provisions of the Punjab Cooperative Societies Act, 1961 was a complete code itself as regards the provisions for enquiry relating to disciplinary matters and an adjudication before the Labour Court was barred by the provisions of the said Act. 3. As regards the contention that the person who was aggrieved by the order of termination was not a workman, we do not have all the details of the nature of work which had been assigned to him and whether he fulfilled the definition of a workman under the Industrial Disputes Act. All that is available is the reference made by the Government to the Labour Court and what considerations went into the decision making are not brought before Court. The learned counsel appearing for the petitioner refers to the charge-sheet which had been issued to the claimant as evidencing the nature of duties which he had to perform and that the charge-sheet would indicate that he was not a workman. The charge-sheet talks about the alleged defalcation of funds and makes reference to certain entries in accounts book which were found to be not true. The charge-sheet is hardly a document which can give details of the nature of engagement and whether a person is a workman or not. He also refers to the fact that the claimant had admitted to have handed over the administration of the sub-office CONSTOFED, Ludhiana and therefore, handing over the administration would mean that he could not have been a workman. Further reference by the learned Civil Writ Petition No.19025 of 1991 - 3 - counsel appearing for the petitioner was that the claimant was also incharge of CONSTOFED Dal and allied Mills and a person who was incharge of Mills could not have been a workman. The learned counsel refers to a decision of this Court in Arun Kumar Singh Versus The Labour Commissioner, Punjab and others-2006(4) RSJ 232, that the Government was required to have a prima facie satisfaction that a particular person who was seeking for an adjudication before the Labour Court was a workman and the Government itself shall not act merely as a post office and will certainly go prima facie into the merits of the dispute to find out whether the Government should make the reference or not. In my view, the judgment has no relevance to us for the Hon'ble Bench of this Court was referring to a case of an Assistant Engineer in establishment and was earning Rs.7,703/- who claimed that he was a workman and sought for a reference before the Government. It was an admitted fact that he was doing supervisory functions and he was earning more than Rs.1,600/-. In such a situation, the Hon'ble Bench said that there could not have been a valid reference. I have not the benefit of all the relevant materials to ascertain whether he fulfilled the status as a workman or not. It is possible that the management is able to establish by appropriate evidence that the person who was seeking for adjudication did not fulfill the status as such workman. Matters which are essentially issues of facts and which are disputed cannot be examined by this Court exercising jurisdiction under Article 226. When there is no document clearly evidencing the actual functions, the mere reference to how the charge-sheet had been drafted or what the charge-sheet refers to Civil Writ Petition No.19025 of 1991 - 4- does not enable me to take a definite finding that he cannot be a workman. 4. The surviving point for consideration would be whether by the provisions of Punjab Cooperative Societies Act, the industrial adjudication made under the Industrial Disputes Act would fall to be excluded. The learned counsel refers me to the provisions of Section 55 of the Punjab Cooperative Societies Act, which reads as follow :- “55. Disputes which may be referred to arbitration:- (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a cooperative society arises:- (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past member or person claiming through a member past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present; or (c ) between the society or its committee, any officer, agent or employee, or any past officer, agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society; or (d) between the society and any other co-operative society between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society; Such disputes shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.” Along with Section 55, the learned counsel brings my attention to Section 82 that contains the provisions for bar of jurisdiction of Court, which reads as follows:- “82. Bar of jurisdiction of Court:- (1) Save as provided in this Act, no civil or revenue Court shall have any jurisdiction in respect of:- (a) the registration of a co-operative society or its bye- laws or of an amendment of a bye-law; (b) the removal of a committee; Civil Writ Petition No.19025 of 1991 - 5 - (c ) any dispute required under Section 55 to be referred to the Registrar; and (d) any matter concerning the winding up and the dissolution of a co-operative society. (2) While a co-operative society is being wound up no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose. (3) Save as provided in this Act. No order decision or award made under this Act shall be questioned in any Court on any ground whatsoever.” According to him, a dispute raised by the workman must be taken to a dispute under Section 55 and by virtue of the exclusion of jurisdiction provided under Section 82, even the Labour Court would be barred from entertaining any adjudication on the issue of validity or otherwise of the termination. 5. The learned counsel also refers me to the decisions of the Hon'ble Supreme Court in R.C.Tiwari Versus M.P.State Cooperative Marketing Federation Ltd. and others-AIR 1997 Supreme Court 2652 (1), relied on to support his contention that the jurisdiction of the Labour Court was in similar circumstance found to be excluded. In the above decision, the Hon'ble Supreme Court was dealing with the provisions of Section 55 of the Madhaya Pradesh Cooperative Societies Act which contained in sub-section 2 the following clause: “Where a dispute including a dispute regarding terms of employment working conditions and disciplinary action taken by a society, arises between a society and its employees, the Registrar or any officer, appointed by him not below the rank of Assistant Registrar shall decide the dispute and his decision shall be binding on the society and its employees.” The reading of sub-section would clearly indicate that a dispute which Civil Writ Petition No.19025 of 1991 - 6 - was contemplated there included a dispute as regards terms of employment, working condition and disciplinary action taken by the society. A specific reference to the dispute relating to a disciplinary action fell for adjudication by an independent body provided under the Act. In this case, however, the Section 55 of the Punjab Cooperative Societies Act refers only a dispute touching on the constitution, management or the business of a cooperative society. The dispute could be between members and past members and it also details the several classes of persons between whom the dispute might arise. In my view, a dispute touching on the constitution, management or business cannot be equated to a dispute relating to a disciplinary action taken by a management against a workman. The reference to M.P. Cooperative Societies Act will, therefore, not be fruitful for our exercise. 6. The learned counsel also refers to a decision of the Hon'ble Supreme Court in Dharappa Versus Bijapur Co-op. Milk Producers Societies Union Ltd.-AIR 2007 Supreme Court 1848, which dealt with interplay of the provisions of Karnataka Cooperative Societies Act and Industrial Disputes Act. The Act was amended in 2000 to provide for exclusive alternative forum of Registrar to adjudicate on labour related disputes. Originally Section 70 contemplated an additional alternative forum and made also a specific reference to adjudication of disputes relating to disciplinary matters. The amendment in 2000 modified the situation. The Hon'ble Supreme Court stated even in paragraph 23 that an award which was passed by the Labour Court was not without jurisdiction and a decision made shall not be reopened. We are not again Civil Writ Petition No.19025 of 1991 - 7 - dealing with the situation of an alternative or an additional forum prescribed under the Punjab Cooperative Societies Act. Therefore, the reliance of this judgment is equally without substance. 7. The learned counsel also refers to the decision of the Hon'ble Supreme Court in Engineering Kamgar Union Versus M/s Electro Steels Castings Ltd. and another-AIR 2004 Supreme Court 2401. The said case touched upon the dispute raised by a Union against the closure of an establishment. The contention was that the permission of the Government had not been obtained as per the provisions of Chapter V-B of the Industrial Disputes Act. The response on behalf of the management was that it was an establishment which had less than 300 workmen and the U.P. Industrial Disputes Act contained a provision which required a permission from the Government only in cases where the establishment had more than 300 workmen. In other words, the U.P. Industrial Disputes Act contained a provision which was distinct from the Central enactment and there was an obvious conflict. This U.P. Act had obtained the assent of the President inasmuch it contained a provision which was in conflict with the Central enactment. The Hon'ble Supreme Court said that even if there was such a conflict between the State Act and the Central Act, by virtue of the assent the State Act would prevail. We are not now here in this case discussing any issue of conflict between a State Act and a Central enactment. I have already observed that Section 55 of the Punjab Cooperative Societies Act operates in a different field and the exclusion of jurisdiction which talks about the dispute does not include a dispute relating to a disciplinary proceeding. Civil Writ Petition No.19025 of 1991 - 8 - While the Act provides for a separate forum, the exclusion does not still obtain by virtue of the interplay of Section 55 and Section 82 of the Punjab Cooperative Societies Act, since the sections do not contemplate industrial disputes. 8. The exclusion of jurisdiction as claimed by the management by virtue of the provisions of the Punjab Cooperative Societies Act is, in my view, misplaced and challenge to the reference on the basis that the Labour Court does not have jurisdiction, does not merit acceptance. 9. The reference has been of the year 1991 and unfortunately stood stayed by this writ petition. The Labour Court shall take up the case in right earnest and dispose it of as expeditiously as possible preferably within a period of four months from the date of receipt of the records. The management shall be at liberty to raise all the objections which are raised now before this Court relating to the status of the person as a workman and the right of the workman to obtain any relief before the Labour Court. Subject only to the above observation, the writ petition is dismissed. (K.KANNAN) JUDGE 04.08.2009 sanjeev