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Judgment
S.S. Jha, J.
This order shall also govern the disposal of Writ Petition No. 2197/2000 (Gwalior Dugdha Sangh Sahakari Maryadit and another vs. Dinesh Kumar Sharma and others).
The question involved in this petition is whether petition filed by respondent No. 1 before the Deputy Registrar, Co-operative Societies, Gwalior, u/s 55 of the M.P. Co-operative Societies Act is within limitation ?
Respondent No. 1 who was employed with the petitioner-co-operative society was transferred vide order dated 30-9-1992 from Gwalior to Ambikapur on deputation. This order was challenged in a writ petition and the High Court vide its order dated 16-3-1994 in M.P. No. 1573/1992 quashed the order of transfer. Leave to appeal against the order in the writ petition was dismissed by Supreme Court of India in SLP vide order dated 16-1-1995. After dismissal of the petition backwages were not paid to the employee for the period from 3-10-1992 to 15-3-1994. Petition for contempt was filed before this Court and the same was dismissed vide order dated 17-9-1996. After dismissal of the contempt petition, representation for payment of backwages was filed before the employer and since backwages were not paid, proceedings were initiated before the Labour Court u/s 10 of the Industrial Disputes Act. Labour Court held that the application was not maintainable on the ground of lack of jurisdiction and it was held that the co-operative society is not an industry, therefore, provisions of Industrial Disputes Act are not applicable and dismissed the application vide order dated 31-8-1998. Then a dispute u/s 55 of the M.P. Co-operative Societies Act, 1960 (hereinafter, referred to as the ''Act'') was preferred before the Deputy Registrar, Co-operative Societies, Gwalior on 7-10-1998 along with an application u/s 14 of the Limitation Act for extending the period for the time utilised in another proceedings as bona fide. The application was opposed and the Deputy Registrar after hearing the parties held that the petition as filed is barred by limitation and has dismissed the application. In appeal, Appellate Court held that the application is not time barred and remanded the case back to the Deputy Registrar. In second appeal, the order of the first Appellate Court is affirmed.
It is contended by the petitioners that the provisions of Limitation Act are not applicable to the proceedings u/s 55 of the Act. Counsel for petitioners has placed reliance upon the judgment in the case of Ramjati Sharma vs. M.P. State Co-operative Tribunal and Ors., 2001 (3) MPLJ 399 : 2001 (II) MPJR 359 wherein this Court held that the dispute cannot be entertained beyond the period of 30 days and the provisions of Limitation Act are not applicable. The Act is a special Act and unless power is conferred upon the Authority under the Act to condone the delay, delay in filing the application cannot be condoned.
Learned counsel for petitioners also referred to the judgment in the case of Vijay Kumar Sharma and Others Vs. The Executive Engineer, Public Health and Others, wherein it is held that the Labour Court has no power to condone the delay in the matter of dispute under sections 31 and 62 of the M.P. Industrial Relations Act, 1960, Counsel for petitioners then submitted that such application cannot be treated to be u/s 64 of the Act and has referred to Division Bench judgment of this Court in the case of Sahakari Vipnan (Mkt.) Sanstha Maryadit Vs. Labour Court and Others, wherein it is held that the dispute raised by the employee seeking reinstatement with backwages is not covered by section 64 of the Act. It is contended that since section 55 is a special provision covering only service disputes, therefore, service disputes cannot be governed by section 64 of the Act which relates to all type of disputes. Counsel for the petitioners relied upon the judgment in the case of Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh, . Counsel for petitioners referred to para 22 of the judgment and submitted that if two constructions are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness and eschew the other which makes its operation unduly oppressive, unjust or unreasonable or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.
It is contended that in section 64(1) of the Act the words "conditions of employment of a society" were inserted by Amending Act No. 12 of 1994 and similarly section 47-A was also inserted in the original Act. Considering the scope of the amended position, the scope of section 55 is out of jurisdiction of the disputes u/s 64 of the Act.
Counsel for petitioners then relied upon the judgment in the case of The South India Corporation (P) Ltd. Vs. The Secretary, Board of Revenue Trivandrum and Another, and invited attention to para 18 of the judgment and submitted that even if Article 372 of the Constitution continues the Pre-Constitution laws of taxation, that provision is expressly made subject to the other provisions of the Constitution. The expression "subject to" conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. It is contended that while considering the entire scope of sections 55 and 64 of the Act, disputes are distinct and separate on bare reading of the provisions.
In the case of 1978 (37) FLR 280 (SC) , in paras 8 and 9, while considering the scope of jurisdiction under Admiralty Court Act, 1861 and the Maxim "generalis specialibus non derogant" it was held that the general words of section 7 of the Admiralty Court Act did not exclude the applicability of the Fatal Accidents Act and therefore, the Admiralty Court had no jurisdiction to entertain a claim for damages for loss of life. It is further held in para 9 of the judgment that in passing a Special Act, Parliament devotes its entire consideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former Special Act unless it appears that the Special Act again received consideration from Parliament. The Court considered various judgments while arriving at this conclusion. In para 10 of the judgment, it is held that the Industrial Employment (Standing Orders)Act is a special Act dealing with a specific subject namely the conditions of service, enumerated in the schedule, of workmen in industrial establishments. It is impossible to conceive that parliament sought to abrogate the provisions of the Industrial Employment (Standing Orders) Act embodying as they do hard-won and precious rights of workmen and prescribing as they do an elaborate procedure, including a quasi judicial determination, by a general, incidental provision like section 79(c) of the Electricity (Supply) Act. It is obvious that Parliament did not have before it the Standing Orders Act when it passed the Electricity Supply Act and the parliament never meant that the Standing Orders Act should stand pro-tanto repealed by section 79(c) of the Electricity Supply Act. It was held that the provisions of the Standing Orders Act must prevail over section 79(c) of the Electricity Supply Act, in regard to matters to which the Standing Orders Act applies.
Counsel for petitioners then submitted that when two remedies are available to a litigant, it is open for the litigant to avail either of the remedies. Once the respondent No. 1 has availed the remedy u/s 55 of the Act he cannot claim before this Court that the remedy is u/s 64 of the Act. Counsel for petitioners placed reliance upon the judgment in the case of The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, and submitted that in para 23 of the judgment, it is held that if two remedies are available, then the litigant may elect any of the remedies available to him.
Counsel for respondent No. 1 has submitted that it is true that in an application u/s 55 of the Act the Authority is not empowered to condone the delay. He submitted that section 64 of the Act has been amended by amending Act No. 12 of 1994 dated 8-5-1994 wherein in section 64(1) the words "any dispute touching the constitution, management or business, terms and conditions of employment of a society or the liquidation of a society shall be referred to the Registrar" have been inserted. He submitted that since service disputes have been included in the said section, therefore the application of respondent No. 1 cannot be thrown on technical ground, and it shall be deemed to be under the provisions of section 64 of the Act.
Counsel for respondent No. 1 referred to the judgment in the case of Govt. of Andhra Pradesh and Others Vs. Gudepu Sailco and Others, , and submitted that at an interlocutory stage of proceedings, no interference should be made under the provisions of Article 227 of the constitution of India and the matter should be allowed to take final shape before the Authority and the practice of challenging the orders at interlocutory stage is not advisable.
In the case of R.C. Tiwari Vs. M.P. State Co-operative Marketing Federation Ltd. and others, , Supreme Court has an occasion to consider the provisions of section 64 of the Act. In para 3 of the judgment, it is held as under:-
The learned counsel for the petitioner seeks to place reliance on section 64 of the Act dealing with disputes referable to the arbitration and contends that the dispute of dismissal from service of the employee of the society being not one of the disputes referable to arbitration under the Societies Act, the award of the Deputy Registrar is without jurisdiction. He relied on the decision of this Court in Co-operative Central Bank Ltd. and Others Vs. Additional Industrial Tribunal and Others, . He also places reliance on section 93 of the Societies Act which states that nothing contained in the Madhya Pradesh Shops and Establishments Act, 1958 the M. P. Industrial Workmen (Standing Orders) Act, 1959 and the M.P. Industrial Relations Act, 1960 shall apply to a society registered under this Act. By necessary implication, application of the Act has not been excluded and that, therefore, the Labour Court has jurisdiction to decide the matter. We find no force in the contention. Section 55 of the Societies Act gives power to the Registrar to deal with disciplinary matters relating to the employees in the society or a class of societies including the terms and conditions of employment of the employees. Where a dispute relates to the terms of employment, working conditions, disciplinary action taken by a society, or 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. As regards power u/s 64, the language is very wide viz. "notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, management or business of a society or the liquidation of a society shall be referred to the Registrar by any of the parties to the dispute". Therefore the dispute relating to the management or business of the society is very comprehensive as repeatedly held by this Court. As a consequence, special procedure has been provided under this Act. Necessarily, reference u/s 10 of the Societies Act stands excluded, the judgment of this Court arising under Andhra Pradesh Act has no application to the facts for the reason that under that Act the dispute did not cover the dismissal of the servants of the society for which the Act therein was amended.
In this case, the question involved was whether the provisions of Industrial Disputes Act are applicable in view of the provisions contained in the Act for Co-operative Societies? In that case, the petitioner was dismissed from service for his misconduct, thereafter, he sought reference under the Societies Act which was affirmed and became final. After the dispute was decided by a competent forum, a dispute was raised before the Labour Court. The Supreme Court held that once the competent authority under the Act has determined the dispute, then subsequent dispute is not maintainable and principle of res judicata shall apply.
In the case of Gujarat State Co-operative Land Development Bank Ltd. Vs. P.R. Mankad and Others, it is held that the plea which was not raised earlier cannot be allowed to be raised for the first time before this Court under the provisions of Article 227 of the Constitution, the plea which was not raised before the Deputy Registrar, Registrar and the Co-operative Tribunal cannot be raised by the petitioner for the first time before this Court. In this case, the words ''any dispute which can be resolved by the Registrar of the co-operative societies'' and ''any dispute touching the business of the society'' were considered. It is, therefore, contended by the counsel for respondents that petition has no merit and deserves to be dismissed.
Counsel for respondents has further relied upon the judgment of this Court in the case of C.O.D. Employees Co-operative Society Vs. Presiding Officer, Labour Court and Others, wherein it is held that once service dispute is maintainable under the M.P. Co-operative Societies Act, then jurisdiction u/s 10 of the Industrial Disputes Act stands excluded, it is further submitted that it is open for the party to raise service dispute u/s 55 or section 64 of the Act, Counsel for respondents, therefore, submitted that the petition should be dismissed,
Counsel for the petitioners referred to the judgments in the case of R. C. Tiwari and C.O. D. Employees Co-operative Society, Jabalpur (supra) and submitted that use of words in section 64 of the Act is obiter as this question was not involved in the petition, if is further contended that it is not permissible to pick out words and questions from the judgment divorced from the context of the questions under consideration and referred to the judgment in the case of Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd., , and placed reliance on para 39 of the judgment.
Now I will proceed to consider the scope of Sections 55 and 64 of the Act, regarding the dispute relating to service conditions only.
Sections 55 and 64 of the Act are reproduced below:
Registrar''s power to determine conditions of employment in societies. - (1) The Registrar may, from time to time, frame rules governing the terms and conditions of employment in a society or class of societies and the society or class of societies to which such terms and conditions of employment are applicable shall comply with the order that may be issued by the Registrar in this behalf.
(2) 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.
Provided that the Registrar or the officer referred to above shall not entertain the dispute unless presented to him within thirty days from the date of order sought to be impugned.:
Provided further that in computing the period of limitation under the forgoing proviso, the time requisite for obtaining copy of the order shall be excluded.
S. 64. Disputes. - (1) Notwithstanding anything contained in any other law for the time being in force (any dispute touching the constitution, management or business, terms and conditions of employment of a society or the liquidation of a society shall be referred to the Registrar) by any of the parties to the dispute if the parties thereto are among the following:-
(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased agent or deceased servant of the society, or the liquidator of the society?
(b) a member, past member or a person claiming through a member past member or deceased member of a society or of a society which is a member of the society;
(c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person;
(d) a surety of a member, past member of deceased member or a person other than a member who has been granted a loan by the society, whether such a surety is or is not a member of the society;
(e) any other society or the liquidator of such a society; and
(f) a creditor of a society.
(2) For the purposes of sub-section (1), a dispute shall include -
(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not;
(ii) a claim by a surety against the principal debtor where the 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 be admitted or not;
(iii) a claim by a society for any loss caused to it by a member, past member or deceased member, any officer, past officer or deceased officer, any agent, past agent or deceased agent or deceased agent, or any servant, past servant or deceased servant, or its committee, past or present, whether such loss be admitted or not;
(iv) a question regarding rights etc. including tenancy rights between a housing society and its tenants or members; and
(v) any dispute arising in connection with the election of any officer of the society or representatives of the society or of composite society:
Provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of the results,
(3) If any question arising whether a dispute referred to the Registrar is a dispute, the decision thereon of the Registrar shall be final and shall not be called in question in any Court,
Scope of section 55(2) of the Act is limited, clear and specific. Under sub-section (2) dispute includes a dispute regarding terms of employment, working conditions and disciplinary action taken by a society arises between a society and its employees. Those disputes can be considered and decided by the Registrar under sub-section (2) of section 55 of the Act. u/s 64 of the Act dispute touching the constitution, management or business, terms and conditions of employment of society or the liquidation of a society shall be referred to the Registrar. Thus, from the amended portion of section 64 it is clear that any dispute which is touching the constitution of the society, management or business of the society or terms and conditions of employment or liquidation of society shall be referred to the Registrar. Thus, u/s 64 of the Act, dispute pertaining the terms and conditions of employment of society shall be referred to the Registrar. Thus, the terms and conditions of the employment of the society, such as rules framed by the society for condition of service of the employees shall be a dispute which shall be governed by section 64 of the Act. This amendment is in terms of section 47A of the Act. Thus, any rule framed by the society for the conditions of service of its employees regarding pay scale of its employees can be framed by the co-operative society with prior approval of the Registrar. However, if some dispute arises for determination of terms and conditions of employment referred in the rules or payment and fixation of salary or other conditions of service, it shall be adjudicated by the Registrar. Thus, scope of section 64 of the Act in regard to service condition is limited to the terms and conditions of employment and rules framed there under. u/s 49-D of the Act, Registrar is empowered to issue directions to make Regulations to the society, to regulate the manner of carrying on trade or business of the society, rules shall be framed, whereas u/s 55(1) of the Act, it is provided that the Registrar may from time to time, frame rules governing the terms and conditions of employment in a society or class of societies and the society or class of societies to which such terms and conditions of employment are applicable shall apply with the order that may be issued by the Registrar in this behalf. Thus for adjudication of dispute u/s 64 of the Act, dispute is limited to constitution, management or business, terms and conditions of employment, working conditions and disciplinary action taken by the society which arises between society and its employees. While considering the scope of dispute u/s 55(2) of the Act, it has been held that dismissal of an employee of the co-operative society from service is a dispute within the meaning of section 55(2) of the Act. This question is determined by the Full Bench of this Court in the case of The Central Co-operative Bank Ltd., Raisen and Another Vs. The Board of Revenue, Gwalior and Others, . Thus, under sub-section (2) of section 55, jurisdiction is conferred upon the Registrar or any officer appointed by him to function and discharge his duties for determination of the dispute. It will also mean that any dispute between society and its employees whether arising under the rules framed or otherwise, shall be determined by the Registrar or any officer appointed by him, whereas u/s 64, scope of dispute is limited to the terms and conditions of employment of society. Thus, the disputes referred in section 55 are entirely different from section 64. u/s 55 disputes pertaining to disciplinary action, working conditions and any dispute between society and its employees, whereas u/s 64 only dispute pertaining to terms and conditions of the employment can be examined in respect of service matter and other disputes referred in the section.
In the present case non-payment of salary in spite of order of reinstatement can be treated as a dispute under sub-section (2) of section 55 or section 64 of the Act is to be determined.
If directions were given to the employer to reinstate the petitioner quashing the order of transfer, then he was entitled to be reinstated and the dispute raised by him is regarding recovery of salary. Thus dispute covered by section 55(2) of the Act is decided. Amount sought to be recovered will not be a dispute governed by sub-section (2) of section 55 and is a dispute within the meaning of section 64 of the Act, where amount due is sought to be recovered. Therefore, dispute raised in the petition is covered by the provisions of section 64 of the Act and not u/s 55 of the Act. As regards question of limitation for non-payment of backwages is concerned, it can be examined by the Authority in accordance with law. As such on the facts of the case, the dispute filed before the Deputy Registrar is u/s 64 and not u/s 55 of the Act. For a dispute u/s 66 of the Act, limitation is governed by section 65 of the Act, which is six years, sub-section (2) of section 65 provides that the period of limitation in the case of any other dispute except those mentioned in sub-section (1) of section 64 shall be regulated by the provisions of Indian Limitation Act, as if the dispute were a suit and the Registrar a Civil Court. Sub-section (3) of section 65 further provides that notwithstanding anything contained in sub-sections (1) and (2) Registrar may admit a dispute after the expiry of the period of limitation if the applicant satisfies the Registrar that he had sufficient cause for not referring the dispute within such period. Thus, power to condone the delay in a dispute under sub-sections (1) and (2) of section 64 of the Act is vested with the Registrar. Since the dispute is u/s 64 of the Act, Registrar is competent to condone the delay in referring the dispute. Therefore, no error is committed by the Tribunal in condoning the delay in filing the dispute,
In the result, petitions have no merit and are dismissed without any order as to costs.