The Management of The Postal and R.M.S. Co-operative Thrift and Credit Society Ltd. vs The Workmen of The Postal and R.M.S., Co-operative Thrift and Credit Society Ltd. and Others

Inder Dev Dua, J.—The management of the Postal and R.M.S. Co-operative Thrift and Credit Society Ltd., has approached this Court under Articles 226 and 227 of the Constitution praying for a writ of certiorari or any other appropriate writ, direction or order quashing or setting aside the award given by the Labour Court, Rohtak on 20th June, 1962 (Annexure ''A'' to the petition), disposing of the reference made by the Punjab Government for adjudication of an industrial dispute between the Workmen and the management of the Petitioner-society.

It is asserted that the workers interested in the dispute are also shareholders of the Petitioner-society. The principal question argued with great vehemence by the learned Counsel for the Petitioner relates to the applicability of the Industrial Disputes Act to the dispute between the Petitioner Co-operative Society and its workmen, who, according to the Petitioner, are also its shareholders. It is not disputed that under the Punjab Co-operative Societies Act (Punjab Act No. XIV of 1955) a dispute like the present one was covered by Section 10 of the Industrial Disputes Act and that a Division Bench of this Court has actually so held in The The Jullundur Transport Co-operative Society Vs. The Punjab State and Another, . The correctness of that view has not been assailed at the bar. The contention raised on behalf of the Petitioner, however, is that under the present Act (The Punjab Co-operative Societies Act No. XXV of 1961) the applicability of the Industrial Disputes Act is completely ruled out. This submission is based on the language of Sections 55 and 56 of the present Act. In my opinion, it is not at all necessary in the present case to decide this question because the present Act came into force on 20th October, 1961 whereas the reference which is sought to be taken out of the purview of the Act of 1955 had been made on 6th September, 1961. Shri Sarin has attempted to show the retrospective operation of the present Act by relying on Section 86 which is the repealing and saving provision and according to which notwithstanding the repeal of the Punjab Act No. XIV of 1955 anything done or any action taken under the repealed Act is, to the context of being consistent with the present Act, to be deemed to have been done or taken under it. It is argued that this section makes the whole of the present Act applicable to the pending references under the Industrial Disputes Act which were admittedly initiated prior to 20th October, 1961.

I am wholly unimpressed by this submission. Section 55 on which alone reliance has been placed for excluding the adjudication of the disputes under the Industrial Disputes Act so far as relevant for our purposes, reads as under:

Settlements of Disputes--55. (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society arises--

(a) * * * * * *

(b) * * * * * *

(c) * * * * * *

(d) * * * * * *

such dispute shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of a co-operative society.

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Now, what is barred by this section is entertainment of any suit or other proceeding in respect of the dispute mentioned therein by a Court. This raises two questions for consideration. The first question which arises is can the Labour Court be considered to be a Court and the reference u/s 10 of the Industrial Disputes Act to be a suit or other proceeding within the contemplation of this provisions? And the second one is, whether continuation of a reference which has already been entertained prior to the enforcement of this Act is also covered by this provision. The first question also covers the point as to how far the expression "other proceeding" takes colour from the word "suit".

The learned Counsel for the Petitioner has not submitted that the Labour Court constituted u/s 7 of the Industrial Disputes Act is a Court within the contemplation of this section and, as at present advised, I think he has rightly refrained from making such a submission. A faint-hearted contention raised, however, is that if a Court is debarred from entertaining any suit or other proceeding in respect of a dispute mentioned in Section 55 then by necessary implication the Labour Court constituted under the Industrial" Disputes Act should be equally deemed to be debarred from entertaining any proceeding in compliance with the mandatory provision contained therein. The counsel has not been able to cite any principle or precedent in support of his contention, and as at present advised, I am not convinced of the cogency of this contention. But assuming, without holding, such an implied prohibition being implicit in this provision, obviously it would only bar entertainment of a proceeding. Now the word "entertain" may have both a wider and a narrower meaning, depending on the context in which it is used. It may in certain circumstances, which would in my humble opinion be very rare, mean "to receive on file" or "to keep on file", but commonly understood it would seem to me to mean "to admit to consideration" or "to receive for the purpose of adjudication". In Smithies v. National Association of Operative Plasterers and Ors. L.R. 1909 1 K.B. 310, the expression "an action...shall not be entertained" was construed by the Court of Appeal to apply to future cases and the contention that this expression was equivalent to "shall cease to be entertained" was rejected. Also see for this view Beadling and Ors. v. Goll (1922-23) 39 T.L.R. 128, and Henshall v. Porter L.R. 1923 2 K.B. 193.

The right to have an industrial dispute settled by means of a reference u/s 10 of the Industrial Disputes Act does not appear to me to be a mere matter of procedure; it seems to be a substantive or vested right which would definitely vest in a party at least when the reference is made. When vested rights have already accrued and legislation is passed using words expressive of futurity which would prima facie appear to be applicable to future cases, it is, in my view, not liable to be construed retrospectively so as to affect those vested rights, unless the words used clearly compel the Court to give it that construction. This, as Vaughan Williams L.J., has put in Smithies'' case, is only to impute common sense to the Legislature, and one would expect clear terms to divest a vested right. The right to carry on legal proceedings lawfully initiated or entertained by a Labour Court is, in my opinion, a substantive right of a party and the language used in Section 55 does not appear to me to prohibit the continuance of pending proceedings. Reliance on Section 56 is equally unavailing, for, it has not been pointed out how this section throws more helpful light on the point canvassed. Section 86, too, is of little assistance. This section merely lays down that on the repeal of Punjab Act No. XIV of 1955 anything done or any action taken under the repealed Act should be deemed to have been done or taken under the latter Act. It is not understood how a pending reference under the Industrial Disputes Act can be considered to have, by virtue of this section, become incompetent so far as its future progress is concerned. The counsel has not been able to elaborate this point, and, indeed, apart from merely reading this section, he has not thought fit to develop his argument.

Shri Sarin has referred to some decisions for the purpose of showing that Section 55 of the present Co-operative Societies Act is exhaustive. This may be so, but then it is not shown how pending proceedings under the Industrial Disputes Act can be held to have become incompetent on the enforcement of Section 55.

The Respondents counsel has also posed the question of the incompetence of the State Legislature to affect or control the operation of the Central Act like the Industrial Disputes Act (a special enactment) by the State Legislation like the Co-operative Societies Act. But, as this argument has not been fully developed, I need not say anything more on it.

The Petitioner''s counsel has next referred to Rule 8 of the Fidelity Bond Rules of the Petitioner society as reproduced in paragraph 5(d) of the petition and has submitted that the Labour Court has decided issue No. 4 wrongly. According to the counsel the balance-sheets produced before the Labour Court clearly establishment income from the Fidelity Bond business and that the Labour Court was wrong in observing that it was quite reasonable to set apart or the Fidelity Bond Reserve Fund twenty four per cent of the gross earnings from the Fidelity Bond business. This argument has been met by Shri Sachar by submitting that the balance sheets do not prove themselves and the facts mentioned therein have to be proved by evidence given on affidavit or otherwise and after giving an opportunity to the opposite party to contest the correctness of such evidence by cross-examination. Support for this submission has been sought from Petlad Turkey Red Dye Works Co. Ltd. Vs. Dyes and Chemical Workers'' Union, Petlad and Another, . This authority does support the Respondents'' contention. I am, therefore, unable to interfere with the impugned award on writ side on this ground.

Shri Sarin has then argued that the Labour Court has erred in not allowing interest. According to the Petitioner''s counsel, the balance-sheets, on the face of it, show that loans have been advanced to the members from the reserve fund and, therefore, interest should have been allowed on the amount of loan. On behalf of the Respondents the first objection to this contention is that there is no such ground contained in the writ petition. In the second place, it is again urged that the balance-sheets do not prove themselves and some evidence Whether in the form of affidavit or in some other legal form should have been adduced in support of the assertion. Here again, I agree with the Respondents'' contention and hold that the Petitioner is not entitled to any relief in these proceedings on this ground.

Lastly, it has been urged that the society in question is not an industry as contemplated by the Industrial Disputes Act and reliance has been sought for this contention from a decision of the Supreme Court in The National Union of Commercial Employees, etc. v. M.R. Meher, Indusirial Tribunal, Bombay, etc. 1962 2 S.C.A. 587, and particular reliance has been placed on some observations at p. 594. The reported case holds that carrying on of business as solicitors by a firm of solicitors is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act. The observations relied on in this context express the view of the Supreme Court that the essential basis of an industrial dispute is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service, and that this essential basis would be absent in the case of liberal professions like those of an attorney. I regret my inability to get any useful assistance from this decision.

Shri Kaushal has in this connection relied on D.N. Banerji Vs. P.R. Mukherjee and Others, where a dispute arising between municipalities and their employees in branches of work analogous to the carrying of a trade or business was held to be covered by the Industrial Disputes Act. He has also referred me to The The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, where a hospital run by the State for giving medical relief to citizens and imparting medical education was considered to constitute an industry within the Industrial Disputes Act. On behalf of the Respondents, it has also been urged that no objection having been taken before the Labour Court on this point it should not be allowed to be taken in the present proceedings. I am afraid mere omission to take an objection before a tribunal would not be conclusive and in a fit case if the objection goes to the root of the jurisdiction it might well be allowed, but in the present case I am far from convinced that the Labour Court had no jurisdiction to adjudicate upon the dispute and make the impugned award.

For the foregoing reasons, this petition fails and is hereby dismissed with costs.