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Judgment
Misra, C.J.—This is a petition for issue of writ certiorari under Art. 226 of the Constitution. The petitioner prays that an order passed against him by the Registrar, Co-operative Societies, Hyderabad, under S. 51, Hyderabad Co-operative Societies Act, 1952, (16 of 1952) be quashed. Section 51 provides that:
(1) Within one month of the disposal by the arbitrator or arbitrators of a dispute referred under Cl. (b) of sub-s. (1) of S. 49, the Registrar may, of his own motion or on the application of a party to the dispute, revise the decision of the arbitrator or arbitrators and pass such decision on the dispute as he may think fit.
The petitioner, Chela Narayan, was in the service of the Taluqa Agricultural Co-operative Association, Kamareddy. During the period of his service certain defalcations of the funds of the association occurred and it became necessary in order to fix the liability of the persons concerned in the loss occasioned to the Society to settle the dispute between the Society and them. Under S. 48 of the enactment it is provided that where any dispute touching the business of a registered society arises between the society and its servants such a dispute must be referred to the Registrar for decision. The explanation appended to S. 48 makes it clear that a claim by a registered society on account of loss suffered by the society by reason of anything done or omitted to be done by a servant of the society comes within the expression "touching the business of the registered society." In fact acting under S. 48 the dispute was referred by the Registrar to an arbitrator and since the award went against the petitioner the matter was taken up by him to the Registrar in revision under S. 51. On consideration of the case the Registrar held that the total amount embezzled, viz., Rs. 8,725-5-0 should be paid by Chela Narayan and another servant of the Association, namely, G. Rajesham. Those two persons were in charge of the cloth depot for a long time and had the keys of the depot with them when the defalcation took place.
It is now urged on behalf of Chela Narayan that since he was dismissed from the service of the Association on 5-8-1952, that is to say, before the order of reference was made by the Registrar under S. 49, he could not be deemed to be a servant of the Association within the meaning of S. 48. On this basis it is argued that the Registrar had no jurisdiction to make the reference or to decide the case in revision.
On the question whether the expression ''servant'' as used in S. 48 means a servant at the time of the inquiry or a servant at the time when the loss is occasioned there is apparently some difference of opinion. In -- T.S. Narayana Aiyar and Others Vs. The Co-operative Urban Bank Ltd. and Another, King J., while dealing with S. 51, Madras Co-operative Societies Act (6 of 1932), held that the Registrar of Co-operative Societies has no jurisdiction under that section to decide the dispute between the Society and its past officers. The learned Judge relied in this connection on -- ''Municipal Permanent Investment Building Society v. Richards'', (1888) 39 Ch D 372 (B), and concluded as above on the ground that if Cl. (c) of S. 51 was intended to apply to a dispute between the co-operative society and its past officers specific mention would have been made to past officers in this clause also as is done in S. 49(1) and S. 51(b). The interpretation given by King J. necessitated an amendment of the section in the subsequent Madras Act by insertion of the words "past officers, past agents or past servants", (Vide S. 51 of the Act as it now stands after the amendment by Act 5 of 1937 and Act 20 of 1943).
This was done apparently ''ex abundanti cautela''. The same language as is employed in S. 48 of the Hyderabad Act is used in S. 54 of the Bombay Act (7 of 1925 as amended by the subsequent Acts of 1933, 1935 and 1936) and dealing with the question now agitated in this Court, Chagla J. in -- G.I.P. Railway Employees Co-operative Bank Ltd. Vs. Bhikhaji Merwanji Karanjia, ), held that the only two conditions which were necessary before S. 54 could apply, were that the parties to the dispute must be a society on the one hand and its servant on the other and that the dispute must relate to a matter touching the business of the society. He observed that:
I am not prepared to accept the contention sought to be placed by Mr. Daphtary on this particular clause of S. 54 of the Act. The only two conditions which are necessary, as far as the facts of this case are concerned, before S. 54 would apply, are that the parties must be the society and its servant and that it must relate to the dispute touching the business of the society. The section does not provide that at the time of the initiation of the arbitration proceedings the party other than the society must be in its employment. The curious result that would follow, if I were to accept Mr. Daphtary''s contention, would be that a servant would be entitled to agitate his claim before his dismissal with regard to any grievance that he may have relating to the contract of service, but as soon as he was dismissed he would no longer have the right to resort to the summary proceedings provided by S. 54, Bombay Co-operative Societies Act. In giving this wide construction to S. 54, I am taking into consideration what to my mind is the obvious object of the Act, viz., to provide a cheap and summary remedy in respect of all disputes between a co-operative society and those persons with whom it has got to deal as mentioned in S. 54 of the Act. Then; is no reason why a servant if he has a claim against the society or the society if it has a claim against the servant with regard to any dispute that may arise between them should not have the facility of these cheap and summary proceedings provided by the Act.
If the decision of the Bombay High Court is to be accented the view propounded on behalf of the petitioner must fail. Moreover, the question is one of interpretation and not of jurisdiction or of violation of the principles of natural justice.
There is, however, another reason why the petitioner should not be heard to urge the present grounds of want of jurisdiction. It is well known that in the matter of issue of a writ by way of certiorari the High Court''s powers are discretionary, and where the applicant armed with the point which would oust the jurisdiction of the subordinate tribunal has elected to argue the case on its merits before that Court, he must be taken to have submitted to its jurisdiction. He cannot be allowed later to repudiate that decision in a petition for a writ certiorari. Reference may in this connection be made to -- ''Rex v. West Suffolk County Compensation Authority'', (1919) 2 KB 374 (D); -- ''Rex v. Williams'', (1914) 1 KB 608 (E); -- O.A.O.K. Latchmanan Chettiar Vs. The Commissioner, Corporation of Madras and Another, ; -- ''Adiraju Mullikarjana Rao v. Somavaram Co-operative Society'', AIR 1938 Mad 69 (G) and -- R.V.K.M. Surya Rao Bahadur Varu, Rajah of Pithapuram Vs. The Board of Revenue (Settlement of Estates) Madras,
It may be as was pointed out on behalf of the petitioners that the consent of a party cannot confer jurisdiction upon a tribunal where such jurisdiction does not otherwise exist. In considering, however, whether the High Court will exercise its discretionary power in the interests of the petitioner, the conduct of the petitioner himself when the proceedings were going on before the arbitrator and the Registrar cannot be ignored. We notice that in the case before us he not only submitted himself to the jurisdiction of the arbitrator but himself moved the Registrar in revision. It is impossible in these circumstances to extend to him the remedy which he seeks.
We dismiss the application with costs of the opposite party which for the purposes of this case are assessed at Rs. 50/-.