Case: K.A. Annamma Vs. The Secretary, Cochin Co-operative Hospital Society Ltd

2. This appeal is directed against the final judgment and order dated 21.12.2015 passed by the High Court of Kerala at Ernakulam in W.P.(C) No.18354 of 2010 whereby the High Court allowed the writ petition filed by the respondent herein and set aside the award dated 23.09.2009 of the Labour Court, Ernakulam in I.D.No.32 of 2006.3. In order to appreciate the controversy involved in the appeal, which is essentially legal in nature, mentioning of few undisputed facts would suffice.Facts in brief4. The respondent is the Cooperative Society registered under the KeralaCooperative Societies Act,r referred to as). The appellant was an employee of theBy order dated 22.03.2005, thedismissed the appellant from service.5. The appellant, felt aggrieved of her dismissal order, filed a complaint with the State Government against theunder the Industrial Dispute Act, 1947referred to as). The conciliation having failed, the appropriate Government made an industrial reference to the Labour Court, Ernakulum under Section 10 of the ID Act for deciding the legality and correctness of the appellants dismissal and to pass appropriate consequential orders, if any.6. The Labour Court, by award dated 23.09.2009 answered the reference infavour. It was held that the dismissal order is bad in law and was accordingly set aside. It was held that during the pendency of the reference, the appellant has attained the age of superannuation on 31.05.2007, therefore, she was entitled to get all monetary and other service benefits as are permissible in law.7. The respondent, felt aggrieved of the award of the Labour Court, filed Writ Petition (Civil) No.18354 of 2010 in the High Court of Kerala and questioned its legality and correctness.8. At this stage, it is necessary to state as to how the question involved in the writ petition, which eventually reached to this Court was decided by the different Benches of the Kerala High Court priorfiling the writ petition and during its pendency.9. The question, which frequently came up for consideration before the different Benches of the High Court of Kerala since 1978, was "when a service dispute arises between an Employee of anySociety and his EmployerSociety), whether such dispute is triable by the forum prescribed under the ID Act or under the KCS Act or under both the Acts as per the choice of an aggrieved person to select the forum under any of the two Acts for deciding such service dispute".

Court's reasoning:
19. By order dated 14.09.2015, theBench answered the questions referred in the case of Chirayinkeezhu Services Cooperative Bank Ltd. vs. Santosh, 2015(4) KLT 163(LB). However, there was a difference of opinion amongst the five Judges (3:2) on the questions referred.20. So far as the majority view of three Judges is concerned, it held that the service dispute arising between thes Employee and the EmployerSociety) is triable only by the forum prescribed under the KCS Act, 1969 and the jurisdiction of the ID Act is excluded and barred to try such service dispute.21. So far as the minority view of two Judges is concerned, it held that such service dispute is triable under both the Acts, i.e., the KCS Act and the ID Act. In other words, it held that both the Acts possess and enjoy concurrent jurisdiction to decide such service dispute and it is for the aggrieved person to choose the forum of his/her choice out of the two Acts to get the service dispute settled subject to proving the ingredients of the definition of "Workman", "Industrial Dispute" and the cooperative Society to be theas defined under the ID Act, if he/she desires to invoke the jurisdiction of the ID Act for deciding the service dispute.dispute.21. So far as the minority view of two Judges is concerned, it held that such service dispute is triable under both the Acts, i.e., the KCS Act and the ID Act. In other words, it held that both the Acts possess and enjoy concurrent jurisdiction to decide such service dispute and it is for the aggrieved person to choose the forum of his/her choice out of the two Acts to get the service dispute settled subject to proving the ingredients of the definition of "Workman", "Industrial Dispute" and the cooperative Society to be theas defined under the ID Act, if he/she desires to invoke the jurisdiction of the ID Act for deciding the service dispute.Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of learned counsel for the appellant (Employee).31. In our considered view, we are inclined to uphold the minority view for the reasons given infra.We find that both majority and minority Judges examined the questions largely in the light of the ratio laid down by this Court incase (supra). Indeed, the learned counsel, in their submissions before us, did not make any attempt to contend that the law laid down in the case of Dharappa (supra) needs reconsideration on any issue. On the other hand, both sides proceeded to make their submissions that, firstly,case has laid down the correct principle of law on facts involved therein and secondly, what needs to be examined is whether its ratio applies to the facts of this case and, if so, how and to what extent.35. In our opinion also, it may not be necessary to examine the issue involved in this case in the light of any other decision except confining its examination to the ratio laid down incase has discussed all earlier decisions of this Court on the subject in extenso.So far as the view of minority Judges (2) is concerned, in substance, it held:47. First, the question involved in the case is squarely covered by the ratio laid down incase.48. Second, Section 69 of the KCS Act and Section 70 as it originally stood and as amended by first Amendment Act (19 of 1976) of the Karnataka CS Act, are identically worded and, therefore, the ratio ofcase would apply while interpreting Section 69 of the KCS Act.49. Third, the Assent of the President was required for passing the Amendment Act No.1 of 2000 of the KCS Act.50. Fourth, since no Assent of the President was obtained, the Amendment Act (1 of 2000) did not make any effect on the exclusion of the jurisdiction of the forum under the ID Act. That apart, Section 69 or Section 100 of the KCS Act also does not have a clause akin to Section 70 of the Karnataka CS Act as amended by Amendment Act (2 of 2000) providing therein a clause for express exclusion of the jurisdiction of the Civil Court, the Labour Court and the Industrial Tribunal from deciding the service dispute.51. Fifth, the jurisdiction of Section 69 under the KCS Act before and after the amendment of the KCS Act by Amendment Act (1 of 2000) remains intact.52. Sixth, the jurisdiction of both the Acts, i.e., the KCS Act and the ID Act is concurrent.53. A fortiori, any service dispute arising between as Employee and his/here Society) is triable under both the Acts and it is for the aggrieved person to select one forum of his/her choice out of the two to get his/her dispute settled subject to proving that he/she is a workman, the dispute is an industrial dispute and the Cooperative Society is an industry as defined in the ID Act.54. Seventh, notwithstanding the amendment brought about in Section 69 of the KCS Act by Amendment Act (1 of 2000), the jurisdiction of the Labour Court under the ID Act is not excluded and thus not barred.55. And lastly, in the light of these findings, all decided cases taking this view are held correctly decided and, therefore, do not need any reconsideration.56. In our opinion, the fate of this appeal depends upon the question as to what extent the ratio ofcase applies to the issues involved in the case at hand.Now coming to the facts of the case at hand, when we examine the question in the light of the ratio ofcase, culled out above, on comparison, we find substantial similarity between the language of Section 69 of the KCS Act as it originally stood and later amended by the Amendment Act 1 of 2000 with that of the language employed in Section 70 of the Karnataka CS Act as it originally stood along with amended one by first Amendment Act 19/ 1976.83. In other words, we notice that the phraseology and language of both unamended and amended Section 69 of KCS Act and Section 70 of the Karnataka CS Act as amended by first amendment by Act 1/2000 are in pari materia with each other.This, in our view, indicates that till 20.06.2000, there was similarity between the KCS Act and Karnataka CS Act. However, after Section 70 was amended by Act No.2/2000 w.e.f. 20.06.2000 providing therein a specific clause expressly excluding the jurisdiction of the Civil, Labour and Revenue Court and Industrial Tribunal to decide the service disputes, the scheme of the two Acts no longer remained similar.90. Similarly, we find that the identical wording occurring in the beginning and the end of Section 69 and Section 70 was interpreted incase wherein it was held that such provisions cannot be construed as providing an express exclusion of the jurisdiction of other Courts including that of the Labour Court and the Industrial Tribunal under the ID Act. On the other hand, it was held that the Karnataka CS Act possesses concurrent jurisdiction for deciding the services disputes upto 20.06.2000. (see para 14/16 of Dharappa)91. This interpretation ofcase, in our view, would squarely apply to the provisions of the KCS Act if Section 69 is also suitably amended by the State of Kerala by making Section 69 at par with amended Section 70 of Karnataka CS Act. As on date, it is not so.92. Though the KCS Act was amended by Amendment Act 1 of 2000 (w.e.f. 02.01.2003) but it did not bring about any kind of inconsistency or repugnancy in the KCS Act qua any provision of the ID Act, 1947. Had the KCS Act including the amending one by Act 1/2000 brought about any kind of inconsistency or repugnancy between the provisions of the KCS Act and the ID Act such as the one brought about by the second Amendment Act (2/2000) in Section 70 of Karnataka CS Act w.e.f. 20.06.2000 qua the ID Act and had such amended provisions of the KCS Act received the Assent of the President, the provisions of the KCS Act too would have prevailed over the ID Act in the State by virtue of Article 254 (2) of the Constitution.93. Such is not the case here because though the KCS Act received the Assent of the President at the time of its enactment so also the Karnataka CS Act received, this Court while interpreting Section 70 as amended by Act No.19/1976 of the Karnataka CS Act with the Assent of the Governor, has held incase that Section 70 did not create any inconsistency or/and repugnancy with any provisions of the ID Act and possessed concurrent jurisdiction over such service dispute. This ratio ofThe law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well settled by the series of decisions of this Court. This Article is attracted in cases where the law is enacted by the Parliament and the State Legislature on the same subject, which falls in List IIIConcurrent list.96. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the Assent of the President will prevail over the Central Act in the concerned State by virtue of Article 254 (2) of the Constitution.97. A fortiori, in such a situation, if the State Act has received the Assent of the Governor then the Central Act would prevail over the State Act by virtue of Article 254 (1) of the Constitution.98. It is this principle, which was applied by this Court in the case of Dharappa while comparing the provisions of the Karnataka CS Act including its two amendments with that of the provisions of the ID Act.99. This takes us to examine another question. The majority Judges, as we find, proceeded to examine the questions by attempting to compare the language employed in the relevant Sections of the two repealed KCS Acts of 1932 and 1951 with that of the language of Section 69 of the KCS Act 1969 and noticing some departure in the language employed in Section 69, came to a conclusion that the language of Section 69 is comprehensive enough to exclude the jurisdiction of the Labour Court under the ID Act. The majority Judges also took note of some more Sections of the KCS Act and noticing somein the scheme of the KCS Act and Karnataka CS Act held that Section 69 of the KCS Act overrides the provisions of the ID Act since inception. We find ourselves unable to agree with the approach of the majority.100. In our view, when this Court incase has interpreted the language of Section 70 of the Karnataka CS Act, the questions involved herein should have been examined by comparing the language employed in Section 69 of the KCS Act with the language employed in Section 70 of the Karnataka CS Act rather than to compare with the repealed provisions.101. In other words, once on comparing the language of Section 69 and that of Section 70 as amended by the first amendment, a conclusion is reached that both Sections are akin to each other till 20.06.2000, a fortiori, the law laid down incase insofar as it interprets Section 70 as it originally stood and amended by Amendment Act 19/1976 would apply to Section 69 of the KCS Act. On the other hand, the ratio will not apply after 20.06.2000 because from that date, there was a change in the language of Section 70 which provided a clause to exclude the Jurisdiction of other Courts in express terms by Amendment Act of 2/2000.102. In the light of foregoing discussion, we are of the considered opinion that the view of majority Judges cannot be upheld whereas the view of the minority Judges deserves to be upheld and is accordingly upheld.103. We accordingly hold that the KCS Act and the ID Act both possess and enjoy the concurrent jurisdiction to decide any service dispute arising between thes Employee and his/here Society).104. We also hold that it is the choice of the Employee concerned to choose any one forum out of the two forums available to him/her under the two Acts (the KCS Act and the I.D. Act) to get his/her service dispute decided. It is, however, subject to satisfying the test laid down under the ID Act that the employee concerned is athe dispute raised by him/her is annd the Cooperative Society(Employer) is anas defined under the ID Act.In our considered opinion, the ratio ofcase is that firstly, Section 70 of the Karnataka CS Act as it originally stood and amended by first Amendment Act 19 of 1976 adding therein two clauses (d) and (e) to Section 70, whether one reads it independently or/and in juxtaposition with other Sections would find that it did not provide for express ouster or exclusion of the jurisdiction of the Labour Court/Industrial Tribunal under the ID Act.Similarly, we find that the identical wording occurring in the beginning and the end of Section 69 and Section 70 was interpreted ine wherein it was held that such provisions cannot be construed as providing an express exclusion of the jurisdiction of other Courts including that of the Labour Court and the Industrial Tribunal under the ID Act. On the other hand, it was held that the Karnataka CS Act possesses concurrent jurisdiction for deciding the services disputes upto 20.06.2000. (see para 14/16 of Dharappa)91. This interpretation of, in our view, would squarely apply to the provisions of the KCS Act if Section 69 is also suitably amended by the State of Kerala by making Section 69 at par with amended Section 70 of Karnataka CS Act. As on date, it is not so.