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Judgment
Heard Mr. J. Patnaik, learned Senior Advocate for the petitioner.
This writ appeal has come to be filed seeking to challenge the judgment dated 03.03.2015 of this Court rendered in W.P.(C) No. 18709 of 2011.
Mr. Patnaik, learned Senior Advocate contends that the Government of India in the Ministry of Agriculture (Department of Agriculture & Cooperation) in exercise of power under Section 84(4) of the Multi-State Co-operative Societies Act, 2002 appointed Sri V.K. Malhotra, Ex-Chairman, Food Corporation of India as an arbitrator to settle the dispute between one Sri Ram Dayal Singh and the Food Corporation of India Workers'' Co-operative Credit Society Ltd., Cuttack and others.
By drawing the Court''s attention to the Arbitrators order of appointment dated 7th June, 2011 under Annexure-1, it was contended that notice was issued to one Sri Shamsher Singh as Chairman of the FCI Workers Cooperative Credit Society Ltd. It is submitted that Sri Shamsher Singh was the erstwhile Chairman of the FCI Workers Cooperative Credit Society Ltd. and the process of election had commenced on 20.04.2011 and results was declared on 14.05.2011. It is further submitted that the present incumbents to the office of the said society on receipt of Annexure-1, assumed that this matter relates to the earlier period during which Sri Shamsher Singh, the erstwhile Chairman was in office. Thereafter, it appears that a corrigendum was issued by the Director (Cooperation) in the Ministry of Agriculture, Government of India on 7th July, 2011 under Annexure-2 correcting the name of the Chairman, FCI Workers Cooperative Credit Society Ltd. to that of the present incumbent Sri Ghanashyam Jena. It further appears from the said Annexure that the arbitrator-Sri V.K. Malhotra was informed that a copy of the dispute petition dated 29.05.2011 was enclosed and the dispute petition dated 06.05.2011 earlier sent inadvertently, may please be ignored.
Based on the aforesaid fact situation, it is contended on behalf of the petitioner that the original complaint petition was dated 06.05.2011 and no appointment of arbitrator ought to have been made on that basis and assuming even that an arbitrator had been appointed on the basis of dispute petition dated 06.05.2011, once the corrigendum was issued on 07.07.2011 referring the dispute petition dated 29.05.2011 was wholly erroneous and could not have been made. Reliance was placed by Mr. Patnaik on the judgment of the Hon''ble Supreme Court in the case of S.B.P. and Co. Vs. Patel Engineering Ltd. and Another, AIR 2006 SC 450 : (2005) 3 ARBLR 285 : (2005) 128 CompCas 465 : (2006) 2 CompLJ 7 : (2005) 5 CTC 302 : (2005) 9 JT 219 : (2005) 9 SCALE 1 : (2005) 8 SCC 618 : (2006) 1 UJ 156 : (2005) AIRSCW 5932 : (2005) 7 Supreme 610 in order to buttress his argument that the act of appointment of an arbitrator even by a Court under Section 11 of the Arbitration and Conciliation Act was the quasi-judicial act and required prior notice to other side prior to appointment of the arbitrator in view of the possibility of objection being raised by the opposite party to the necessity for appointment of an arbitrator or the existence of a dispute.
At the very outset, we may record that the first contention advanced on behalf of the appellant appears not to be based on factual evidence available on record. Although the Union of India has not filed any counter affidavit in the writ application, we find that the complainant, namely, Ram Dayal Singh has filed a counter affidavit and Annexure-A thereto reads as follows:
"No. L-11014/49/2011-L & M Government of India Ministry of Agriculture (Department of Agriculture & Cooperation) ....
Krishi Bhawan, New Delhi Dated: 26 May, 2011
To
Shri Ram Dayal Singh, S/o. Late Shri Ram Aslok singh, Sardar Gang No. 1, FCI, FSD Chanpatia, Distt. West Champaran, Bihar.
Sub: Dispute under Section 84(1) read with section 84(2)(c) of the Multi-State Cooperative Societies Act, 2002 for reference and settlement by the arbitrator.
....
Sir,
I am directed to refer to your dispute petition dated Nil filed on 6.5.2011 before the Central Registrar of Cooperative Societies on the subject cited above and to say that the above petition have been examined and it has been observed that the dispute has been filed against the notice dated 20.4.2011 issued by the Secretary of the society regarding holding of the General Meeting of the society on 14.5.2011. Any dispute in respect of the election of the society may be filed after the completion of the election but the dispute has been filed midway while the election was on and the exercise of the same was yet to be completed.
Therefore, the dispute petition cannot be entertained at this stage. You may, if so desired, file an election dispute after the election is completed.
Yours faithfully,
Sd/- (Harish Chandra) Section Officer (L & M)"
In view of what has been noted at Annexure-A of the counter affidavit of Ram Dayal Singh, it is clear therefrom that although he had filed a complaint petition on 06.05.2011, the said complaint petition was not accepted by the Central Registrar of Cooperative Societies, since the general meeting of the society and the elections were scheduled to be held on 14.05.2011 and, therefore, the Ministry of Agriculture and the Central Registrar did not act upon the complaint dated 06.05.2011 and advised the complainant that if any dispute arises in respect of the election of the society, to file a complaint petition after the completion of the election i.e. after 14.05.2011.
From Annexure-B to the said affidavit of Ram Dayal Singh, we find that after the elections were concluded and results declared on 14.05.2011, Ram Dayal Singh has filed another complaint petition on 29.05.2011 which is appended as Annexure-B and it is that complaint which formed the basis for appointment of Sri V.K. Malhotra, Ex-Chairman, FCI as arbitrator vide Annexure-2 dated 07.07.2011. It appears from the appointment letter of Sri V.K. Malhotra (as the arbitrator) which was issued on 07.06.2011 under Section 84(4) of the MSCS Act, 2002 under Annexure-1 that, there is ipso facto no direct reference to any particular date of complaint petition. The complaint had obviously been filed on 29.05.2011 and possibly by an inadvertent error, the earlier dispute petition dated 06.05.2011 which had not been entertained by the Central Registrar, had been sent to the arbitrator which was corrected by way of corrigendum dated 07.07.2011 under Annexure-2. Therefore, on the first issue raised on behalf of the appellant, we are of the considered view that, in fact, the Union of India has not acted on the basis of any complaint dated 06.05.2011 and had appointed the arbitrator on 07.06.2011 only after the complaint was registered and filed on 29.05.2011. Therefore, we find no merit in the first contention raised on behalf of the appellant.
Insofar as the second issue raised by the appellant is concerned, there can be no doubt that the Hon''ble Supreme Court has laid to rest the scope and ambit of Section 11 of the Arbitration and Conciliation Act in the judgment of Patel Engineering (supra) but, in the said case which is relied upon by the petitioner, obviously the Hon''ble Supreme Court was not dealing with a matter arising out of Multi-State Cooperative Societies Act, 2002 and, in particular, proceeding under Section 84 thereof, which is quoted hereunder:
"84. Reference of disputes.--(1) Notwithstanding anything contained in any other law for the time being in force, if any dispute [other than a dispute regarding disciplinary action taken by a multi-State cooperative society against its paid employee or an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947)] touching the constitution, management or business of a multi-State cooperative society arises.
(a) among members, past members and persons claiming through members, past members and deceased members, or
(b) between a member, past members and persons claiming through a member, past member or deceased member and the multi-State co-operative society, its board or any officer, agent or employee of the multi-State co-operative society or liquidator, past or present, or
(c) between the multi-State co-operative society or its board and any past board, any officer, agent or employee, or any past officer, past agent or past employee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the multi-State co-operative society, or
(d) between the multi-State co-operative society and any other multi-State cooperative society, between a multi-State cooperative society and liquidator of another multi-State co-operative society or between the liquidator of one multi-State co-operative society and the liquidator of another multi-State co-operative society, such dispute shall be referred to arbitration.
(2) For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or business of a multi-State co-operative society, namely:--
(a) a claim by the multi-State co-operative society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor where the multi-State co-operative society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of any officer of a multi-State co-operative society.
(3) If any question arises whether a dispute referred to arbitration under this section is or is not a dispute touching the constitution, management or business of a multi-State co-operative society, the decision thereon of the arbitrator shall be final and shall not be called in question in any Court.
(4) Whether a dispute has been referred to arbitration under sub-section (1), the same shall be settled or decided by the arbitrator to be appointed by the Central Registrar.
(5) Save as otherwise provided under this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to all arbitration under this Act as if the proceedings for arbitration were referred for settlement or decision under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996)."
In our considered view on a reading of the aforesaid provision which applies to the fact situation that arises for consideration in the present case, few things are clear therefrom. Firstly, that under sub-section (2) legislature has mandated that apart from the disputes covered under sub-section (1) other disputes listed out in sub-section (2) "shall be deemed to be disputes". Therefore, clearly a dispute arising in connection with the election of an officer of a Multi-State Cooperative Society is by legislative intent "deemed to be a dispute". In this connection, reference also needs to be made to sub-section (3) thereof, wherein the Parliament made it clear that if any question arises whether a dispute refer to arbitrator under this section is or not a dispute touching the constitution management of business of a Multi-State Cooperative Society, the decision thereon of the "arbitrator" shall be final and shall not be questioned in any Court.
Therefore, in our considered view Section 84 subsection 2(c) clearly applies to the fact situation of the present case and the second contention advanced by Mr. Patnaik, learned Senior Advocate on behalf of the appellant is clearly covered under sub-section (3) and cannot be called into question in any Court since such issue can also be raised if the party so desires before the arbitrator. It would also be relevant herein to take note of sub-section (4) as noted hereinabove, whereunder the Central Registrar is mandated to refer all such election disputes for appointment of arbitrator and, consequently, in view of sub-section (3) he has no discretion in the matter of adjudication as to the existence or otherwise of any dispute.
For the additional reasons as recorded hereinabove, we concur with the view expressed by the Hon''ble Single Judge in the said regard. Therefore, we are not inclined to entertain this writ appeal.
Accordingly, the writ appeal stands dismissed.
Urgent certified copy of this order be granted on proper application.