# Singh and another v. State of U.P. and

- **Citation:** (2012) 1 ILRA 336
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-28
- **Case number:** Civil Misc Writ Petition No. 44864 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-and-another-v-state-of-u-p-and-42149
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226Employee of Cooperative Society Sugar
Mill-reference under Section 4 (b) of
Industrial Dispute Act?-whether properheld-'Non' provision of Industrial dispute
either
state
or
central
Acts
are
applicable-except
under
provision
of
1965 of Act-order of reference-Quashed.

Held: para 12

So far as objection that issue with
respect to non application of industrial
Dispute Act was not raised before the
Labour Court is concerned, the award
itself shows that the aforesaid objection
was raised but has been decided by
Labour Court against the petitioneremployer. The said view is contrary to
Apex Court's decision in Ghaziabad Zila
Sahkari Bank (supra) and, therefore, the
issue decided by Labour Court against
the
petitioner-employer
has
to
be
answered in its favour and if that is so,
the award itself cease to be a valid one.
The Labour Court, therefore, has no
jurisdiction in the matter.
Case law discussed:
2007 (11) SCC 756; 2011 (131) FLR 391;
Special Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others)

## Text

336 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc Writ Petition No. 44864 of 2005

M/s
Pradhan
Prabandhak,
Kishan
Sahkari
Chini
Mill
through
General
Manager

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Singh
Sri A.K. Mishra
Sri V.B. Mishra

Counsel for the Respondents:
Sri Anoop Trivedi
Sri Vinod Upadhyay
Sri M.K. Singh
C.S.C.

Constitution
of
India,
Article
226Employee of Cooperative Society Sugar
Mill-reference under Section 4 (b) of
Industrial Dispute Act?-whether properheld-'Non' provision of Industrial dispute
either
state
or
central
Acts
are
applicable-except
under
provision
of
1965 of Act-order of reference-Quashed.

Held: para 12

So far as objection that issue with
respect to non application of industrial
Dispute Act was not raised before the
Labour Court is concerned, the award
itself shows that the aforesaid objection
was raised but has been decided by
Labour Court against the petitioneremployer. The said view is contrary to
Apex Court's decision in Ghaziabad Zila
Sahkari Bank (supra) and, therefore, the
issue decided by Labour Court against
the
petitioner-employer
has
to
be
answered in its favour and if that is so,
the award itself cease to be a valid one.
The Labour Court, therefore, has no
jurisdiction in the matter.
Case law discussed:
2007 (11) SCC 756; 2011 (131) FLR 391;
Special Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others)

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Heard Sri V.B. Mishra, Advocate,
for petitioner and Sri Vinod Upadhyay,
Advocate, for contesting respondent no.
4-workman.

2. Writ petition is directed against
the award of Labour Court dated
28.9.2004 in Adjudication Case No. 27 of
2002. The workman-respondent no. 4
raised an industrial dispute regarding his
confirmation from crushing session 199798. The State Government in exercise of
power under Section 4-K of U.P.
Industrial Disputes Act, 1947 (hereinafter
referred to as "U.P. Act, 1947") vide
notification
dated
9.4.2002
made
following reference:

^^D;k lsok;kstdksa ds }kjk vius deZpkjh Jh
fodze flag iq= Jh fou;ik fyfid dks isjkbZ l=
1997&98 ls LFkk;h ?kksf"kr djrs gq, in ds vuq:i
osrueku u fn;k tkuk mfpr rFkk@ vFkok oS?kkfud
gSA ;fn gka rks lEcfU/kr Jfed fdl {kfriwfrZ
1⁄4fjyhQ1⁄2@ fgrykHk vuqrks"k vkfn ikus dk vf/kdkjh
gS rFkk vU; fdl fooj.k lfgr\^^

3. By impugned award dated
28.9.2004 the Labour Court has answered
reference in favour of workman.

4. Learned Counsel for petitioner
submitted that petitioner is a Co-operative
Society Sugar Mill and is governed by the
provisions of U.P. Cooperative Societies
Act, 1965 (hereinafter referred to as "Act,
1965")
therefore
the
provisions
of
Industrial Disputes Act are not applicable
1 All M/s Pradhan Prabandhak, Kishan Sahkari Chini Mill V. State of U.P. and others
337
in view of Apex Court's decision in
Ghaziabad Zila Sahkari Bank Vs.
Addl. Labour Commissioner 2007 (11)
SCC 756.

5. On the contrary, Sri Upadhyay
learned counsel appearing for workman
submitted that neither such objection was
raised before Labour Court nor there is
such averment in the entire writ petition
and, therefore, for the first time this
objection cannot be allowed to be raised
before this Court. He relied on a Single
Judge decision of this Court in Rama
Shanakr Vaish Vs. Presiding Officer
Labour Court 2011 (131) FLR 391.

6. The question as to whether the
dispute relating to service matter of an
employee and an employer which is a Cooperative Society can be raised under
provisions of Industrial Disputes Act,
1947 (hereinafter referred to as "Central
Act, 1947") or U.P. Act, 1947 came to be
considered in Ghaziabad Zila Sahkari
Bank (supra) and the Apex Court in para
36 said as under:

"36. It was submitted by learned
senior counsel that, The U.P. Cooperative
Societies Act, 1965 has been enacted to
further the Cooperative movement in the
State of U.P. and for providing for
functions
and
responsibilities
of
Cooperative Societies and the authorities
invested with their supervision, guidance
and control. Thus the objects and reasons
for the enactment of the said Act is not to
regulate the service conditions of the
employees of the cooperative societies
and the Act only incidentally provides
Sections 121 & 122 to regulate the terms
and conditions of all employees of the
Cooperative
Societies,
Officers,
Supervisors and other employees. It was
submitted that only those employees who
are not covered by the provisions of the
U.P. Industrial Disputes Act would fall
within the ambit of Sections 121 and 122
of the U.P. Cooperative Societies Act. On
the other hand, the U.P. Industrial
Disputes Act, 1947 has been held to be a
special statute in matters of settlement of
Industrial disputes arising out of the
terms and conditions of service of
employees who fall within the definition of
workmen, provided they are employed in
establishments covered by the said Act. In
regard to various establishments which
have their own services rules, the U.P.
Industrial Disputes Act will still apply to
workmen employed therein. Learned
senior counsel cited various decisions of
this Court in the case of U.P. State
Electricity Board and Anr. v. Hari
Shankar Jain and Ors. 1978 (4) SCC 16,
Life Insurance Corporation of India v.
D.J. Bahadur (1981) 1 SCC 315,
Allahabad District Cooperative Ltd. v.
Hanuman Dutt Tiwari (1981) 4 SCC 431
and
Premier
Automobiles
Ltd.
v.
Kamlekar Shantaram Wadke (1976) 1
SCC 496 in support of this contention."

7. Thereafter the Court also
considered whether dispute relating to
service conditions of employee of Cooperative Societies would be governed by
Section 70 or not, which was specifically
raised in para 39 of judgment, and
answered it in para 40 and 41 as under:

"41. This is further strengthened by
Rule 130 (2) which provides that if the
Resolution is not covered by Section 128
then it becomes operative immediately.

Application of Labour Laws
338 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

42. The learned senior counsel
submitted
that
the
legislature
has
specifically provided in the provisions of
the U.P. Cooperative Societies Act itself
that the Labour Laws will apply to the
employees of the cooperative societies, in
Regulation 103 and in non-enforcement of
Section 135. The fact that Section 135 has
not been brought into force indicates
clearly that (a) in order to exclude
Labour laws there must be statutory
exclusion (b) failing such an exclusion
Labour Law will apply. In this case, there
is a fact that an exclusion however under
Section 135 has not been brought into
force."

8. Thereafter, non-enforcement of
Section 135 was also considered from
para 42 and onwards and in para 56, 61,
62 and 65, the Court said as under:

"56. The present dispute is not "any
dispute relating to the constitution,
management or the business of a
cooperative society" and, therefore, the
machinery provided in Section 70 or 128
of the U.P. Cooperative Societies Act
would not be available to the employees
of the Bank to enforce the settlement."

"61. The general legal principle in
interpretation of statutes is that 'the
general Act should lead to the special
Act'. Upon this general principle of law,
the intention of the U.P legislature is
clear, that the special enactment UP Cooperative Societies Act, 1965 alone
should apply in the matter of employment
of Co-operative Societies to the exclusion
of all other Labour Laws. It is a complete
code in itself as regards employment in
co-operative societies and its machinery
and provisions. The general Act the UPID
Act, 1947 as a whole has and can have no
applicability and stands excluded after
the enforcement of the UPCS Act. This is
also clear from necessary implication that
the legislature could not have intended
'head-on-conflict and collision' between
authorities under different Acts. In this
regard reference can be made to Cooperative Central Bank Ltd. and Ors. v.
The
Additional
Industrial
Tribunal,
Andhra Pradesh and Ors. (1969) 2 SCC
43 where this Court observed that:

"Applying these tests, we have no
doubt at all that the dispute covered by
the first issue referred to the Industrial
Tribunal in the present cases could not
possibly be referred for decision to the
Registrar under Section 61 of the Act. The
dispute related to alteration of a number
of conditions of service of the workmen
which relief could only be granted by an
Industrial Tribunal dealing with an
industrial dispute. The Registrar, it is
clear from the provisions of the Act, could
not possibly have granted the reliefs
claimed under this issue because of the
limitations placed on his powers in the
Act itself. It is true that Section 61 by
itself
does
not
contain
any
clear
indication that the Registrar cannot
entertain a dispute relating to alteration
of conditions of service of the employees
of a registered society; but the meaning
given to the expression "touching the
business of the society", in our opinion,
makes it very doubtful whether a dispute
in respect of alteration of conditions of
service can be held to be covered by this
expression. Since the word "business" is
equated with the actual trading or
commercial or other similar business
activity of the society, and since it has
been held that it would be difficult to
subscribe to the proposition that whatever
the society does or is necessarily required
1 All M/s Pradhan Prabandhak, Kishan Sahkari Chini Mill V. State of U.P. and others
339
to do for the purpose of carrying out its
objects,
such
as
laying
down
the
conditions of service of its employees, can
be said to be a part of its business, it
would appear that a dispute relating to
conditions of service of the workmen
employed by the society cannot be held to
be a dispute touching the business of the
society. Further, the position is clarified
by the provisions of Sub-section (4) of
Section 62 of the Act which limit the
power to be exercised by the Registrar,
when dealing with a dispute referred to
him under Section 61, by a mandate that
he shall decide the dispute in accordance
with the provisions of the Act and the
Rules and bye-laws. On the face of it, the
provisions of the Act, the rules and the
bye-laws could not possibly permit the
Registrar to change conditions of service
of the workmen employed by the society.
For the purpose of bringing facts to our
notice in the present appeals, the Rules
framed
by
the
Andhra
Pradesh
Government under the Act, and the byelaws of one of the appellant Banks have
been placed on the Paper-books of the
appeals before us. It appears from them
that the conditions of service of the
employees of the Bank have all been laid
down by framing special bye-laws. Most
of the conditions of service, which the
workmen want to be altered to their
benefit, have thus been laid down by the
bye-laws, so that any alteration in those
conditions of service will necessarily
require a change in the bye-laws. Such a
change could not possibly be directed by
the Registrar when, under Section 62(4)
of the Act, he is specifically required to
decide the dispute referred to him in
accordance with the provisions of the byelaws. It may also be noticed that a dispute
referred to the Registrar under Section 61
of the Act can even be transferred for
disposal to a person who may have been
invested by the Government with powers
in that behalf, or may be referred for
disposal to an arbitrator by the Registrar.
Such person or arbitrator, when deciding
the dispute, will also be governed by the
mandate in Section 62(4) of the Act, so
that he will also be bound to reject the
claim of the workmen which is nothing
else than a request for alteration of
conditions of service contained in the byelaws. It is thus clear that, in respect of the
dispute relating to alteration of various
conditions of service, the Registrar or
other person dealing with it under Section
62 of the Act is not competent to grant the
relief claimed by the workmen at all. On
the principle laid down by this Court in
Deccan Merchants Co-operative Bank
Ltd. Vs. Dalichand Jugraj Jain AIR 1969
SC 1320, therefore, it must be held that
this dispute i0.79"s not a dispute covered
by the provisions of Section 61 of the Act.
Such a dispute is not contemplated to be
dealt with under Section 62 of the Act and
must, therefore, be held to be outside the
scope of Section 61.

62. Further this Court observed in
R.C. Tiwari v. M.P. State Co-operative
Marketing Federation Ltd. (1997) 5 SCC
125 that:

"3....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
340 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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 under Section 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 Registry 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 under Section
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."

Similar view was taken by this Court
in Belsund Sugar Co. Ltd. v. State of
Bihar (1999) 9 SCC 620, Allahabad Bank
v. Canara Bank (2000) 4 SCC 406, State
of Punjab v. Labour Court (1980) 1 SCC
4 and U.P.SEB Vs. Shiv Mohan Singh
(2004) 8 SCC 402."

"65. We are therefore of the view
that the Asst. Labour Commissioner
(ALC)'s jurisdiction was wrongly invoked
and his order dated 15.03.2003 under
Section 6H, U.P. Industrial Disputes Act,
1947 is without jurisdiction and hence
null and void and it can be observed that,
in view of the said general legal principle,
it is immaterial whether or not the
government has enforced Section 135
(U.P. Cooperative Societies Act) because,
in any case the said provision (Section
135) had been included in the Act only by
way
of
clarification
and
abundant
caution."

9. It is clear from above judgement
that even a dispute relating to service
conditions of an employee of Cooperative Society would be governed by
provisions of Act, 1965 and Central Act,
1947 or U.P. Act, 1947 would have no
application despite that Section 135 has
not been enforced.

10. A Division Bench of this Court
(in which I was also a member) in Special
Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others) and other connected matters
decided on 19.12.2008 referring to the
Apex Court decision in Ghaziabad Zila
Sahkari Bank (supra) observed as
under:

"It is said that Section 135 has not
been enforced so far but the question as to
whether despite of non-enforcement of
Section 135 of 1965 Act, the Central Act,
1947 or U.P. Act, 1947 would apply to the
employees of a cooperative society
governed by the provisions of 1965 Act
1 All M/s Pradhan Prabandhak, Kishan Sahkari Chini Mill V. State of U.P. and others
341
and the rules and regulations framed
thereunder came to be considered in
Ghaziabad Zila Sahkari Bank Ltd. Vs.
Addl. Labour Commissioner and others,
JT 2007(2) SC 566 and it was held that
Section 135 has been added only by way
of clarification and abundant caution and,
therefore, where the provisions are
contained in 1965 Act, the labour laws
and in particular the U.P. Act, 1947
would not be applicable. It is also said
that 1965 Act alone would apply in the
matter of employment of cooperative
societies to the exclusion of all other laws
since it is a complete code in itself as
regards
employment
in
cooperative
societies and its machinery etc. In para 78
of the judgement the Apex Court held:

"It is relevant to mention here that
the services of the employees of the Bank
are governed by service regulations 1975
framed under the Act of 1965, which
provides
complete
machinery
and
adjudication. Moreover, the provisions
under Section 70 of the U.P. Cooperative
Societies Act, 1965 is elaborate in this
regard,
which
provides
complete
machinery that if there is any dispute
between the employers and the employees
of the Cooperative Society, the matter
shall be referred to the Arbitrator as
provided under Section 70 of the U.P.
Cooperative Societies Act, 1965. Section
70 of the U.P. Cooperative Societies Act
and Section 64 of the M.P. Cooperative
Societies Act are pari materia and this
Court in the matter of R.C. Tewari vs.
M.P.
State
Cooperative
Marketing
Federation Ltd. 1997 (5) SCC 125 held
that Labour Court and Industrial Laws
are not applicable where complete
machinery has been provided under the
provisions of the Cooperative Societies
Act and in such view of the matter the Ld.
Additional Labour Commissioner U.P.
has no jurisdiction to pass orders in the
nature it has been passed."

11. Hon'ble Single Judge however in
Rama
Shankar
(supra)
has
not
considered the above exposition of law
laid down in Division Bench decision that
the dispute even relating to conditions of
service of employer-Co-operative Society
and its employee are to be looked into
under the provisions of Act, 1965 and
Industrial
Disputes
Acts
have
no
application.
Therefore
the
aforesaid
judgment is per incuriam.

12. So far as objection that issue
with respect to non application of
industrial Dispute Act was not raised
before the Labour Court is concerned, the
award itself shows that the aforesaid
objection was raised but has been decided
by Labour Court against the petitioneremployer. The said view is contrary to
Apex Court's decision in Ghaziabad Zila
Sahkari Bank (supra) and, therefore, the
issue decided by Labour Court against the
petitioner-employer has to be answered in
its favour and if that is so, the award itself
cease to be a valid one. The Labour Court,
therefore, has no jurisdiction in the
matter.

13. In the result, writ petition is
allowed.
Impugned
award
dated
28.9.2004 (Annexure 3 to writ petition) is
hereby set aside.

14. However, this order shall not
preclude the respondent-workman to take
such legal recourse as permissible in law.
---------
342 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2012

BEFORE
THE HON'BLE S. K. SINGH, J.
THE HON'BLE PANKAJ NAQVI, J.

Civil Misc. Writ Petition No. 45321 of 2008

Vinod Kumar Srivastava
 ...Petitioner
Versus
Secretary, Public Works Department and
others

 ...Respondents

Counsel for the Petitioner:
Sri Gyanendra Kumar Singh
Sri Vipin Sinha

Counsel for the Respondents:
C.S.C.

Constitution of India , Article 226Punishment-allegation
against
three
persons-common
and
sameexhonorating
two
others-punishment
against
petitioner-held-discriminatorynot sustainable.

Held: Para 23

On
the
facts
and
totality
of
the
circumstances we are satisfied that the
respondents while awarding punishment
to the petitioner have failed to consider
the fact that charges against two other
employees were the same but they were
not
punished,
and
thus
have
discriminated against the petitioner by
inflicting a punishment and, therefore,
the order passed by the respondent no. 1
is liable to be quashed.
Case law discussed:
(2010) 5 SCC 783; (2007) 7 SCC 206

(Delivered by Hon'ble S. K. Singh, J.)

1. Heard Sri Vipin Sinha, learned
Advocate in support of this writ petition
and learned Standing Counsel.

2. By means of this writ petition,
petitioner has prayed for quashing of the
impugned order dated 23.5.2006 passed
by the respondent no. 1 (annexure no. 10)
by which in the disciplinary proceedings
punishment of (i) censor (ii) stoppage of
one increment with cumulative effect was
given.

3. For disposal of the writ petition,
facts in brief will suffice.

4. Petitioner was working as
Assistant Engineer in Public Works
Department in district Basti. In respect to
widening of Duddhi - Lumbini - Mani
Road on the charge of use of sub standard
material, when in the night of 9.10.2001 a
visit of the Minister concerned took place,
some shortcomings were pointed out,
upon which suspension of several officers
followed
and
it
is
thereafter
correspondence between higher officials
and disciplinary proceedings started,
resulting into the impugned action.

5. Submission is that the enquiry in
the charge has not proceeded in the fair
manner
and
although
disciplinary
proceedings
proceeded
against
other
officers also but all have been exonerated
and the petitioner has been singled out for
ulterior motive.

6. It is further submitted that
departmental enquiry proceeded against
D. P. Roy, Assistant Engineer and Sunil
Kumar, Junior Engineer who were posted
along with the petitioner for the same
work and for the same charge but the
proceedings against D. P. Roy was finally
dropped and against Sunil Kumar also
nothing wrong was found and he was