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Judgment
B.S. Chauhan, J.—The instant writ petition has been filed challenging the impugned Award of the Labour Court dated 30.8.1995 (Annexure.3), by which it has been held that the respondent- workman had completed 240 days in a calendar year counting backward from the date of termination and the termination order has further been found to have been passed without complying with the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act of 1947").
The Labour Court has passed the order of reinstatement of the respondent-workman with continuity of service and with all the back wages. While making that award, the Labour Court has observed that the employer (present petitioner), after filing the counter-claim and entering appearance, did not participate in the proceedings nor it led any evidence to support its case that the respondent-workman was removed after following the enquiry, nor it had made any application that the issue may be determined under the Provisions of Section 11-A of the Act, nor it has controverted the oral as well as the documentary evidence adduced by the respondent-workman.
There can be no justification for interference with the Award in view of the facts stated above. If the representative of the employer has not prosecuted the case properly, no fault can be found with the award and the petitioner-employer was always at liberty to initiate disciplinary proceedings against such an erring employee. It has not been brought to the notice of the Court as to what action has been taken by the petitioner against him and what is the difficulty for it to recover the entire loss suffered by it from reinstatement of the respondent-workman and paying him the back wages.
The submission made by Mr. Sidhu is that the petitioner is a Co-operative Society governed by the provisions of the Rajasthan Co-operative Societies Act, 1965 (hereinafter called "the Act of 1965") and the Rules framed under it and as the 1965 Act is a special Act, the services of employees of the petitioner society, being governed by the provisions of the said Act, they cannot legally agitate the issue u/s 10 of the Act of 1947. In support of his submission, reliance has been placed by Mr. Sidhu on the judgments of the Supreme Court in R.C. Tiwari Vs. M.P. State Co-operative Marketing Federation Ltd. and others, wherein the Court held that any dispute touching the management or business of the society covers the disciplinary proceedings of a Co-operative society and hence covered by Section 64 of the M.P. Co-operative Societies Act and, thus, the reference u/s 10 of the Act, 1947 was not maintainable as an alternative forum for resolution of the dispute exists under the provisions of the Co-operative Societies Act.
In Sagar Mal v. District Sahkari Kendriya Bank Ltd., Mandsore, the Court held that a reference u/s 10(1)(d) in respect of removal of an employee of the Co-operative Bank, was not maintainable as the said removal or any award in respect of that was nullity for want of jurisdiction as the matter was covered by the provisions of M.P. Co-operative Societies Act, 1960. The Apex Court has categorically held therein that the provisions of the Act of 1947 had no application as the case could have been dealt with at the most, under the provisions of M.P. Industrial Relations Act, 1960 and as the issue had not been dealt with under the provisions of the said M.P. Act of 1960, nor under the Co-operative Societies Act, the award u/s 10 of the Act of 1947 was held to be nullity.
Mr. D.K. Parihar, learned Counsel for the respondent-workman has placed reliance on Automobiles Co-operative Workshop Ltd. Vs. Sukh Singh, wherein the Court placed reliance on the Supreme Court judgment in Gujarat State Co-operative Land Development Bank Ltd. Vs. P.R. Mankad and Others, , and rejected the contention that the issue cannot be dealt-with under the provisions of the Act of 1947 and it ought to have been decided u/s 75 of the Act of 1965, or in a civil suit. The Court observed that under the old Co-operative Societies Act, there was an analoguous provisions to the provisions of Section 75 of the present Act. Considering the similar provisions in Gujarat State Co-operative Land Development Bank Ltd. (supra), it was held that the reference u/s 10(1) of the Act of 1947 was maintainable for the reason that the dispute of the nature, i.e., termination of services of an employee, "should not be regarded as a dispute touching the business of the Co-operative Society" nor it can be regarded to be a dispute touching the "management" of the society.
Further, reliance has been placed upon a judgment of this Court in Har Nath and Another Vs. State of Rajasthan, wherein similar issue was considered and it was held that the word "management" under the Co-operative Societies Act cannot be given a wide connotation and the dispute raised against the co-operative society where a discharged servant claimed reinstatement in service, is, from its very nature, was out-side the scope of the expression "touching the management of the society" and the Registrar of the Co-operative Societies has no jurisdiction to deal with such a dispute which falls within the jurisdiction of the Industrial Court. The judgment of the Hon''ble Supreme Court in Gujarat State Co-operative Land Development Bank Ltd. (supra) was relied-upon.
In Bhilwara Sahkari Upbhokta Wholesale Bhandar Ltd. v. Prescribed Authority and Ors. 1982 RLR 927, this Court has taken a view that Section 75 of the Rajasthan Co-operative Societies Act does not debar the jurisdiction of the Civil Court to entertain such dispute as the management may mean that the Board of Directors or the Apex Body or the Executive Committee may create, regulate, supervise, direct and control the affairs of the society and it does not include the individuals who under the over-all control of the Governing Body or Committee, run the day to day business of the society. It was also observed that management may mean and include managing, governing, directing, guidance, superintendence, regulation and control over the affairs of the society it cannot take within its ambit the dispute in respect of the discharge of an employee.
In Life Insurance Corporation of India Vs. D.J. Bahadur and Others, the Hon''ble Supreme Court has observed as under -
In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purpose it may be special dealing with finer points of law. In law, we have a cosmos of relativity, not absolute - so too in life. The I.D. Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infra-structure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements.
The same view has been reiterated by the Apex Court in The J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Others, and U.P. State Electricity Board v. Hari Shanker Jain AIR 1979 SC 65 . In Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others, the Constitution Bench of the Supreme Court held that where the literal meaning of general enactment covers a situation, for which specific provision is made by another enactment, contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt-with by the specific provision rather than the latter general one. The principle embodied in the maxim generalia specilibus non derogant (a general provision does not derogate from a special one) is applicable in the instant case.
In the Gujarat State Co-operative Land Development Bank Ltd. (supra), the Supreme Court held as under-
The law of industrial disputes or industrial relations is a special law dealing with rights and obligations specially created by it. As against this, the Provision in Section 54 of the Act of 1925/Section 96 of the Act of 1961 is a general provision. In accordance with the maxim generalia specilibus non derogant, therefore, nothing in these general provisions can derogate from B.I.R. Act and the Co-operative Society Act must yield to the special provisions in the Bombay Industrial Relations Act, whenever a dispute , clearly comes within the language of the latter Act.
Similar view has been taken by this Court in Madan Mohan Maharaj v. State of Rajasthan and Ors. 1978 WLN 66.
Moreover, the provisions of Section 14 of the Specific Relief Act compulsorily debars the civil court or an Arbitrator to deal with the issue of contract of service. The ratio of the judgment in Co-operative Central Bank Ltd. and Others Vs. Additional Industrial Tribunal and Others, , is not applicable in the instant case in view of the fact that the dispute involved herein is not capable of being resolved by the Registrar. Similarly, the judgment in Sawai Madhopur Co-operative Marketing Society Ltd. v. Rajasthan State Cooperative Tribunal RLW 1989 (2) 321 cannot be attracted here for the reason that in that case the issue of suspension and termination of the Manager and not of a workman, was involved. Thus, the only appropriate remedy, which a workman can seek, is under the Industrial Disputes Act. Thus, in view of the above, it can safely be held that the judgment of the Supreme Court in R.C. Tiwari (supra) is per incurium as the Court''s attention was not drawn to the earlier judgments of the Hon''ble Supreme Court and judgment in Sagar Mal has no application to the facts of the instant case.
On merit, Mr. Sidhu submitted that the respondent- workman was a Salesman and cannot be covered by the definition of "workman". Reliance was placed upon the judgment of the Hon''ble Supreme Court in T.P. Srivastava Vs. National Tobacco Co. of India Limited, wherein the Court has held that the workman does not include a salesman employed for canvassing and promoting the sale of a company''s product in an area. In H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc., the Court has held that the medical representatives are not covered by the provisions of Section 2(s) of the Industrial Disputes Act and he can be held workman only if he is asked to do a manual, unskilled, skilled, technical, and operational work.
In the instant case, I have gone through the counter claim filed by the petitioner before the Labour Court. No such pleading has been taken. Whether the respondent-workman falls within the definition of a "workman", is a question of fact and it cannot be decided here in exercise of power under Article 227 of the Constitution. The petitioner has to plead his case by taking all the pleadings before the appropriate court or forum and prove it by adducing sufficient evidence. Vide Bharat Singh and Others Vs. State of Haryana and Others, ; M/s. Larsen and Toubro Ltd. Vs. State of Gujarat and Others, ; and T.N. Jain, Assistant Registrar (Adm.) v. Honorary Secretary, Supreme Court Bar Association, New Delhi 1998 (7) SCC 466. Thus, the contention cannot be entertained at this stage.
The facts and circumstances of the present case do not warrant any interference in a limited jurisdiction of judicial review under Article 227 of the Constitution of India. Petition is accordingly dismissed with no order as to costs.