# GUJARAT STATE COOPERATIVE LAND DEVELOPMENT BANK LTD v. P. R. MANDED AND ORS

- **Citation:** [1979] 2 S.C.R. 1023
- **Court:** Supreme Court of India
- **Decided:** 1979-01-23
- **Bench:** R. S. Sarkaria, 0. Chjnnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gujarat-state-cooperative-land-development-bank-ltd-v-p-r-manded-and-ors-7559
- **Pages:** 15

## Headnote

New piea, entertainments of-Not permissible at the appellate level.
Bombay Co-op<rative Sociea,. Act, 1925, (Bombay
Act Vll of 1925)
Section 54 and Section 96 of the Gujarat Co-operative Societies Act,
1961...:....
Scope of the words "any dispute touching the business of the society" Bombay
Industrial Relations Act, 1946 (Bombay Act 11 of 1947) Section 2(4) notification under, read with s. 166(1) of the Gujarat Co-operative Societies Act,
1961, effect of.
The- appellant Bank was a. society registered under the Bombay Co-operative Societies Act, 1925 and with the coming into force ftom May 1,
1962
of the Gujtairat Co-operative Societies Act, 1961, it came to be governed by
A
B
c
the said Act.
By Notification No. BIR-1362·5·H dated March 2,
1963, the
Government of Gujarat directed under s. 2(4) of the Bombay Industrial Rela".'
D
lions Act, 1946 (Bombay Act 11 of 1947) that ell the provisions of the said
Act shall apply with effect from March 15, 1963 to the business of banking
by Ccroperative Banks in the Saurashtra and Kutch areas of the State, regis~
tered and deemed to be registered under the Gujarat Co-operativ'e
Societies,
Act, 1961.
The second respondent, Babu Bhai Negracha who was working
as
am
E
additional supervisor in the Dasada Branch of the appellant Bank and whose
se:r:vices were terminated by an order dated February 21, 1962, by giving him·
one month's pay in lieu of notice under Staff RegQ]ation No. 15, filed
an
applic:ition in the Utbour Court Rajkot, alleging that his services had
been
illegally and maliciously terminated as an act of victimisation on account of
,.ilr·--
his trade union activities and praying for setting aside the -order of his termina·
tion of service and for reinstatement with full back wages.
F
The Labour Court by its order dated June 11, 1963, over·ruled the preli·
mi nary objection raised by the appellant Bank, namely, that "the
Bombay
Industrial Relations Act, 1946 Under which the application Was made by the
respondent was not applicable to its ca:se, as it was a co.operative society
goVerned by the Gujarat Co-operative Societies Act, unde'r which only the
Reg5trar or his nominee had jurisdiction to decide the dispute, ·a·nd the Labour
G
Court had no jurisdiction to entertain and decide
the
application".
The
appellant Bank's writ petition challenging the said order of the Labour Court
OOs dismissed by the Gujarat High Court by its judgment dated August 25,
1967 .
Dismissing the appeal by certific·ate, the Court
HELD : 1. No new plea can be raised for the first time in the Supreme
Court, as a matter of right. In the instant case, the new
plea
that •
1the
appellant is not doing banking business" \V3S not enterta.ined for the reasons
9-119SCIJ79
H
•
•
___ ,__
1024
SUPREME COURT REPORTS
[1979] 2 S.C.R.
A
namely (i)-it was much too belated; (ii) it stood in direct contradiction· to
the position taken by the appellant in
i~ \\'Tit petition and the affidavit in
· support thereof in the High Court wherein it had been clearly admitted tb:i.t
"the society
i~ engaged 'in the business of ·banking" and (iii) it was not a
purely legal _plea but a mixed plea of law and fact and could not be detern1incd on the basis of material already on the record. [1027 F-01
B
1. 1be e.xpression "any dispute'' referred to in Section 54 of the
Bombav
c
D
E
IF
II
Cooperative Societies Act, 1925 and in Section 96 of the Gujarat Cooperativ~
Societies Act, does not cover a dispute of the kind raised by
respondent
2
.;1gainst the appellant-bank. [1034 C]
(a) It is clea.r from the object and the schcn1e of th'e AcL'i of 1925 anil
J.961 that the legis-laiurc never intended lo give such a wide
scope to
the
'expression "any dispute" so as to cover ~u classes of disputes whatever be
their nature a11 the prefix "any" to "dispute"
appears
to give.
The
tern1
"dispute" means a controversy ha.ving both positive and negati\·e aspects.
Jt
·postulates the .assertion of a claim by one party and its denial
by the other.
[1031 C-Dl
(b) The

## Text

•
1023
GUJARAT STATE COOPERATIVE LAND DEVELOPMENT
BANK LTD.
.
v.
P. R. MANDED AND ORS.
January 23, 1979
[R. S. SARKARIA AND 0. CHJNNAPPA REDDY, JJ.J
New piea, entertainments of-Not permissible at the appellate level.
Bombay Co-op<rative Sociea,. Act, 1925, (Bombay
Act Vll of 1925)
Section 54 and Section 96 of the Gujarat Co-operative Societies Act,
1961...:....
Scope of the words "any dispute touching the business of the society" Bombay
Industrial Relations Act, 1946 (Bombay Act 11 of 1947) Section 2(4) notification under, read with s. 166(1) of the Gujarat Co-operative Societies Act,
1961, effect of.
The- appellant Bank was a. society registered under the Bombay Co-operative Societies Act, 1925 and with the coming into force ftom May 1,
1962
of the Gujtairat Co-operative Societies Act, 1961, it came to be governed by
A
B
c
the said Act.
By Notification No. BIR-1362·5·H dated March 2,
1963, the
Government of Gujarat directed under s. 2(4) of the Bombay Industrial Rela".'
D
lions Act, 1946 (Bombay Act 11 of 1947) that ell the provisions of the said
Act shall apply with effect from March 15, 1963 to the business of banking
by Ccroperative Banks in the Saurashtra and Kutch areas of the State, regis~
tered and deemed to be registered under the Gujarat Co-operativ'e
Societies,
Act, 1961.
The second respondent, Babu Bhai Negracha who was working
as
am
E
additional supervisor in the Dasada Branch of the appellant Bank and whose
se:r:vices were terminated by an order dated February 21, 1962, by giving him·
one month's pay in lieu of notice under Staff RegQ]ation No. 15, filed
an
applic:ition in the Utbour Court Rajkot, alleging that his services had
been
illegally and maliciously terminated as an act of victimisation on account of
,.ilr·--
his trade union activities and praying for setting aside the -order of his termina·
tion of service and for reinstatement with full back wages.
F
The Labour Court by its order dated June 11, 1963, over·ruled the preli·
mi nary objection raised by the appellant Bank, namely, that "the
Bombay
Industrial Relations Act, 1946 Under which the application Was made by the
respondent was not applicable to its ca:se, as it was a co.operative society
goVerned by the Gujarat Co-operative Societies Act, unde'r which only the
Reg5trar or his nominee had jurisdiction to decide the dispute, ·a·nd the Labour
G
Court had no jurisdiction to entertain and decide
the
application".
The
appellant Bank's writ petition challenging the said order of the Labour Court
OOs dismissed by the Gujarat High Court by its judgment dated August 25,
1967 .
Dismissing the appeal by certific·ate, the Court
HELD : 1. No new plea can be raised for the first time in the Supreme
Court, as a matter of right. In the instant case, the new
plea
that •
1the
appellant is not doing banking business" \V3S not enterta.ined for the reasons
9-119SCIJ79
H
•
•
___ ,__
1024
SUPREME COURT REPORTS
[1979] 2 S.C.R.
A
namely (i)-it was much too belated; (ii) it stood in direct contradiction· to
the position taken by the appellant in
i~ \\'Tit petition and the affidavit in
· support thereof in the High Court wherein it had been clearly admitted tb:i.t
"the society
i~ engaged 'in the business of ·banking" and (iii) it was not a
purely legal _plea but a mixed plea of law and fact and could not be detern1incd on the basis of material already on the record. [1027 F-01
B
1. 1be e.xpression "any dispute'' referred to in Section 54 of the
Bombav
c
D
E
IF
II
Cooperative Societies Act, 1925 and in Section 96 of the Gujarat Cooperativ~
Societies Act, does not cover a dispute of the kind raised by
respondent
2
.;1gainst the appellant-bank. [1034 C]
(a) It is clea.r from the object and the schcn1e of th'e AcL'i of 1925 anil
J.961 that the legis-laiurc never intended lo give such a wide
scope to
the
'expression "any dispute" so as to cover ~u classes of disputes whatever be
their nature a11 the prefix "any" to "dispute"
appears
to give.
The
tern1
"dispute" means a controversy ha.ving both positive and negati\·e aspects.
Jt
·postulates the .assertion of a claim by one party and its denial
by the other.
[1031 C-Dl
(b) The expression "any dispute"' has not been defined in the Acts of 1925
and 1961.
This expression has been used in a narrower
scn.'ie limited
t.J
confested claims of a civil nature, which could have been decided by civil or
revenue courts, but for the provisioru with regard to compulsory arbitration
by the Registrar or hi9' nominee foimd in Section 54 of the Bombay Act of
·i925 and in Section 96 of the Gujarat Act. 1961.
The words ·"as
if
th·;
dispute were a suit and the R'egistrar as Civil Court" occurring in sub-6ection
(t} of Section 97 of the Gujarat Act, nlso make this po~ition clear. [1031 C, D.
E, G]
'
(c) The compulsory arbitration by the Registrar on rcfercni..--c under s. 96
is only a substitute for adjudication of disputes of a civil nature normally
tri'ed by the Civil Court. It is incumbent, under sub-section (2) of s. 96 of
the 1961 Act, on the Registrar to decide as a preliminary issue, whethef the
dispute· is of a kind under sub-section ( t) of s. 96 falling within his jurisdiction.
Tf thi9 p~eJirninary issue is found in the negative he will hav'e no further
jurisdiction to deal with the matter. [1031 F, G-1032 Fl
(d) Thus considered, a dispute raised against the Society by its discharged
se:rvant daiming reliefs, such as, reinstatcrn~nt in service with back wages, which
are not ·enforceable in a civil court,
is outside the scope of the expre8sion
"touching the management of the Society" userl ins. 96(1) of the Act of 1961,
ant1 the Re:gistra-r has not jurisdiction to deal \vith and determine it. What has
been directly bidden "out-of-bounds'' for the Registmor. by the very scheme and
object of the Act, cannot be directly inducted by widening the connotation cf
'management'. Such a dispute squarely fa1ls within the jurisdiction of the
l .abour Ct'urt under the Bombay Industrial Relations Act. [1036 E-G]
3. The law of Tndu9'tria1 disputes or Industrial Relations is a special law
·dealing With rights and obligations specially created by it.
The provisions in
s. 54 of the Bomba.y Act and in s. 96 of the Gujarat Act being: general provisions ii, :1ccordance with the maxim gl'11c1 alia spcciafi/Jus non dfro{!ant.
nothing in ·these general provisions can Jerogatc from Bombay Industrial Relation!! Act, -and itbe Cooperative Societies .A.ct must yield to the i;:pecial provi-
.f
>
I
J
'
•
•
.•
•
'
'C00P.ERA1U¥£ :SANK v. P. R. MANDl?D
1025
"Soions in the Bombay :Industrial Rclalions Act, whcn'ever
a. dispute
clearly
A .
.comes within the .language of the latter Act. Section 166(1) of the Gujarat
Act, in terms, bars the jurisdiction only of Civil or Revenue Court, and not
of the Labour Court or any Industrial 'Tribunal constituted under the. Bombay
Industrial Relations Act or Industrial Disputes
Act. The legislature
never
inte:"lded to oust the jurisdiction of the Labour Court or the Industrial Tribunal to determine claims and industrial dispute5 which cannot be adjudicated by
the 01dinaiy Civil Court. [1032 H, 1033 A, 1034 A-BJ
B
In the instant case :
(a) The Labour Court is con1petent to grant the relief
of reinstat.ement
while in view of s. 21(b) of the Specific Relief Act, then in force, the Civil
.Court was not competent to grant that relief. If a Court is
incapable of
granting the relief claimed, normally the :;roper construction \Vl!ltld be thnt
C
jf is incornpttent to deal \vith the n1attcr. [.1033 F, H]
(b) The dispute was raised by the second
respondent
by
writing an
approach k:Uer to his employee, the appeUnnt, as required by the Bom'f?ay
Industrial Relations Act. Jn substance, it was no industrial dispute. It was
.not reshicted to a daim under the contract or ngn.:'cn1cnt of (.;ffiployn1ent. 1_1033
F-G]
(c) The rights and reliefs claimed by the scOO\ld respondent could not be
,determined and granted by a Civil Court in a suit. lfis allegation was that
his ~crvices vie-re terminated unfairly and vind.ictlvcly bccau$el of his legitimate
1rade union activities, ~s an act of victimisation. The relief claimed is rein.statemep.t in services \Vith back wages.
The rights claimed are those which
.are conferred on workmen and employees under the Bombay Industrial Re1a-
·tions Act to ensure social justice.
Such rights which do not stem from the
.contra-:t of employment can be enforced only in the Labour Court constitukd
.under B,l.R. Act. [1033 B-FJ
Jullundur Transport Cooperath1e Sacieties Ltd. v. Punjab State, AIR 1959
"Puo. 34; approved.
D
Rohtos Industries Ltd. v. Brij1w11do11 Pandey, [1956] SCR 800; referred to.
F
(d) Neither the Registrar nor his nominee will be competent to grant the
relief of requiring change in the1 service cOnd~tions of the employee.
Such a
relief could be granted by the JndustriaJ Tribunal \Vhich under the .Industrial
Disputes Act, has the jurisdiction even to vary contracts of service bctl';'ecn
.:in employer and c_rnpJoyees. (1037 C-DJ
Co-operative Central Rnnk .Ltd. v. Additional Industrial Tribunal, Hydera-
.·bnd [1970] I SCR 205; applied.
G
Farkhundali 'J:i.lnunhay v. V. R. Potdar, AIR 1962 Born. 362 · over·ruied.
CrvrL ;'\PPEU.ATE Ju1usmcnoN : Civil Appeal No. 236 of 1969.
Appeal from the Judgment and Order dated 24/25th August 1967
,of the Gujarat High Court in SCA No. 585/63.
S. K. Dholnkia and R. C. 'Rhatia for th' Appellant.
H
r
1026
SUPREME COURT REPORTS:
[1979] 2 S.C.R.
P. Ram Reddy, Amicus Curiae for Respondent No. 2.
The Judgment of the Court was delivered by
SARKARIA, J.
The appellant is the Gujarat Sfate Cooperative Land
'
Development Bank Ltd. (hereafter referred to as "the Bank). It is a
Society registered under the Bombay Cooperative Societies Act, 1925,
B
B£ applicable to the erstwhile State of Saurashtra.
According to the
appellant's writ petition, it is doing banking business. It has 127
Branches spread 1!11 over the State of Gujarat.
One of its Branches
is in Dasada, Surendranagar District.
The Head Office of the Bank
is at Ahmedabad.
C
The second respondent, Babu Bhai Negracha, was serving as an.
. ~-
Additional Supervisor in the Dasada Branch of the· Bank.
His services
were terminated by an order, dated February 2r, t962, by giving him
one month's pay in lieu of notice under Staff Regulation No. 15.
The Gujarat Cooperative Societies Act, 1961, came into force from
D
May 1, 1962, and the appellant-Bank, being a Society, under the
Cooperative Societies Act, came to be governed by the said Act.
E
F
G
By Notification No. BIR-1362-5-H, dated March 2, 1963, pubJ1shed in the Gujarat Gazette in March 1963, the Government of
Gujarat directed under Section 2 ( 4) of the Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions ot
the said Act shall apply with cifoct from March 15, 1963 to the•
business of banking by Cooperative Banks in the Saurashtra and Kutcn
-,reas of the State, registered and deemed to be registered under the
Gujarat Cooperative Societies Act, 1961.
'
Aggrieved by the termination of his service, the second respqndent
approached the appellant's Dasada's Branch by a letter, dated August
20, 1962, stating that since his services were terminated illegally by
way of victimisation, he should be reinstated in the service.
Thereafter, the second respondent filed an application in the Labour·
Court at Rajkot, alleging that his service had been illegally and maliciously terminated as an act of victimisation on account of his trade
union activities. He prayed for setting aside the order of his termination of service and for reinstatement with full back wages.
The Bank filed a written statement, raising a preliminary objection
that the Bombay Industrial Relations Act, 1946, under which
the·
H
application was made by the respondent, was not applicable to its.
case as it was a Cooperative Society governed by the Gujarat Coope:ative Societies Act, under which only the Registrar or his nominee•
'
l
•
•COOPERATIVE BANK"· P. R. MANDED (Sarkaria, J.)
1027
had jurisdiction to decide the dispute, and the Labour Court had no
jurisdiction to entertain and decide the applica\ion of the second
respondent.
By its Order, dated June 11, 1963, the Labour Court overruled
.this objection and held that it had jurisdiction to hear the application.
The Bank then filed a writ petition under Article 226 of \be Con-
'Stitution in the High Court to challenge the Order of the Labour
Court. The High Court by a common judgment dated August 25,
1967 dismissed the writ petition, but in view of the importance of the
question of law involved, granted a certificate of fitness for appeal to
A'
B
;this Court.
C
.On the strength of that certificate, the Bank has come in appe~
'before us against the aforesaid judgment of the High Court.
In this Court on January 22, 1969, the Bank made an application
for leave to urge as additional ground, namely, that the Bank is not
D
doing banking business, i.e. accepting for the purpose of lending or
investment of deposits of money from the public, repayable on demand
·or otherwise, and withdrawable by cheque, draft, order or otherwise as
.defined in Section 5, Clauses (b) and (c) of the Banking Companies
Act, 1949; and that this being the true position, the Notification No.
DIR-1362-IV-H dated March 2, 1963, published in the Gujarat GovE
emment Gazette dated March 7, 1963, under Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act XI of 1947) is not
applicable to the appellant.
This application was strenuously opposed
by Shri Ram Reddy, who is assisting the Court as amicus curia{; on
behalf of respondent 2, who has not been able to appear and defend
;himself in this appeal.
F
We have declined permission to raise this new plea for the first
·time in this Court, for these reasons : (i) It is much too belated; (ii)
It stands in clirect contradiction to the position taken by the appellant
in its writ petition and the affidavit in support thereof filed in the
High Court.
Therein, the appellant had categorically pleaded : "The
petitioner is a Society registered under the
Bombay
Cooperative
.Societies Act, 1925 (Bombay Act VII of 1925) ..... . and is engaged
in the business of banking." (iii) It is not a purely legal plea but a
mixed plea of .law and fact, and cannot be determined on the basis
, of material already on the record.
We, therefore, take it that the appellant is a Cooperative Society
,engaged .in Jlw J>y§iness of banking and, as such, the Bombay Industrial
G
H
'.~,
- -
1028
l
•
; ~ .
SUPREME COURT REPORTS
(1979] 2 S.C.R.
A
Re~ations Act,_ 1946 is applicable to it by virtue of th~ aforesaid Notification dated March 2, J 963, issued by the State G<}vernment ·uii<ler
Section 2 ( 4) of that Act.
B
c
The ar~unients of Mr. Dholakia, appearing for the appellant, may
be summansed as follows :
(i) The case is governed by the Gujarat Cooperative Societicc, Act,
l 961 (hereafter called the Act of 1961) and not by the Bombay
Cooperative Societies Act, 1925 (hereafter referred to as the Act of
1925).
(ii) The phrase "any dispute touching ...... the businci;s of the
Society", particularly the word "touching'' the.rein, is of very \vid~
amplitude. It would comprehend any matter which relates to, or concerns or affects the business of the Society. Every society, ex-necessitiate
employs SOillle servants for the purpose of carrying on its business.
That being so, the payment of wages, appointment and removal of its ·
, servants under law is a part of the business or "touches" the business
D
of, the Society.
(Reliance for this argument bas been placed on
E
Farkhundali Naunhay v. V. B. Potdar (').
(iii) Even if contention (ii) is not accepted, the dispute raised
by the respondent, Babu Bhai Negracha is one "touching th~ managen1ent of the ·society''.
The expression 'management' takes in the entire
'
'
'
staff or establishment of servants which run the affairs of tl1c Society.
(iv) Once it is held that the dispute between the Society and its
past servant, Babu Bhai Negracha, touches the "business"
or
the
"management" of the Society, or both, within the meaning of Sectiofr
96, the Registrar or his nominee, alone, shall have jurisdiction to
p
adjudicate such dispute by compulsory arbitration; and the non-obstante
clanse in the Section shall bar the determination of that dispute hv <'· ·
Industrial Tribunal or the Labour Court under the Bombay Industrial
Relations Act.
G
H
As against the above, Mr. Rama Reddy, amicus rnriae, submitted
as under:
(i) Since the se.rvices of the second respondent were terminated
on February 21, 1962, before the Act of 1961 came into force, the
Act relevant for" this discussion is the Act of 1925.
(ii) Irrespective of whether the Act of 1925 or the Act of 1961
governs the appellant-Society, the expression "any dispute" commonly
occurring in Section 54 of the Act of 1925 and Section 96 of the'.
(I) AJ.R. 1962 Born. 162.
,
•
-
r"'"•
•
COOPERATIVE BANK v. P. R. MANDED (Sarkaria, J.)
1029
Act of 1961, is restricted in its scope to a dispute of a, civil nature
which is capable of being resolved by the Registrar or his nominee,
and does not take in an industrial dispute between the Society and
its workmen which under the B.l.R. Act is triable by the Labour
Court/Industrial Tribunals, only.
(iii) B.I.R. Act is a special law, dealing with the special subject of
industrial disputes, which in their nature arc essentially different from
ordinary Civil disputes between an employer and
his
employee
governed by the Law of Contract, ,B.I.R. Act provides for a special
machinery for adjudication of industrial disputes.
As against this,
the Cooperative Societies Act of 1925/or of 1961 is a general enactment and it must yield to the B.IR. Act whenever the provisions
of the latter by their language are clearly
applicable to a dispute.
Reference has been made to Jul/undur Transport Cooperative Society
Ud. v. Punjab State(').
(iv) The scope of the expression "any dispute touching the business of the Society", occurring in Section 54 of the Act of 1925/or
Section 96 of the Act of 1961 is limited to disputes directly relatillg
to the actual trading or commercial activities of the Society.
This
expression does not take in a dispute between the Society and its
employee relating to. tl1e conditions of his employment, which will
include the termination of his employment.
This point is concluded
by the decision of this Court in Cooperative Central Bank Ltd. v.
A dditic>nul Industrial Tribunal, Hyderabad('), which follows the ratio
of its earlier decision in Deccan Merchants Cooperative Bank Ltd. v.
J)alichand lungraj Jain(').
In view of these decisions, the ratio of
Farkhundali's case (ibid) decided by the Bombay High Court, is no
longer good law.
( v) The expression "management" in Section 96 oE the Act of
1961, means "the Board of Directors", or "the Board of Trustee~".
or the "Managing Committee" or "'Executive Bcxiy'' which. has the
overall control of the affairs and business of the Society, and it does
not include the individual workers or employees, individual workmen
, or employees of the Society who carry on the day-to-day administra•
tion of the Society; nor will it take in matters touching the service
conditions of tl1e servants of the Society such as their appointment
to service or their discharge, removal from service and their wag~.
A dispute of the kind raised by the second . respondent, therefore,
(I) A.I.R. 1959 Punj. 34.
(2) [1970] 1 S.C.R. 205.
(3) [1969] l S.C.R. 885.
A
B
c
D
E
F
G
H
1030
SUPREME COURT REPORTS
[1979] 2 S.C.R.
It.
will not fall within the purview of the phrase "any dispute touching
the management of the Society'' used in Section 96.
Before appreciating the contentions canvassed on both sides, it is
necessary to notice the relevant provisions of the Act of 1925 and
•
the Act of 1961.
B
c
The relevant part of Section 54 of the Act of 1925, reads thus :
"(1) (a) If any dispute touching the constitution or
business of Society arises between members or past members
of the Society or persons claimir g through a member or a
past member or between members or past members or persons
so claiming and any o;ffice.r, agent or servant of the Society
or its Committee, and any officer, agent, member or servant
of the Society past or present, it shall be referred to the
Registrar for decision by himself or his nominee ...... "
The corresponding Section 96 of the Act of 1961 lays down :
D
"(1) Notwithstanding anything contained in any other
E
F
G
H
law for the time' being in force, any dispute touching the
constitution, management or business of a ·Society shall be
referred in ~e prescribed form . . . . if the parties thereto
are from amongst the follo\\~ng :-
(a) a Society, its Committee, any past Committee, any
past or present officer, any past or present agent, any
past or present servant or nominee, hci.r or legal
representative of any deceased officer, deceased agenl:
or deceased servant of the Society, or the Liquidatoc
of the Society .... "
A comparison between the portions of the two Sections, extracted
above, brings out two points of difference.
Firstly,
in Sectioa 54,
there is no non-<Jbstante clause, while Section 96( 1) begins with the
words "Notwithstanding anything contaiped in any other law for the
time being in force".
Secondly, while in Section 54, the word
'management' does not occur, in the corresponding Section 96(1) of
the. 1961 Act, the word 'management' has been inserted in-between
the words 'constitution' and 'business'.
It is significant to note that the phrase "any dispute touching the
constitution. . . . or business of the Society" is a common feature
of both the aforesaid Sections. We emphasise this fact, because it is
thls common feature, rather than the points of difference between the
two Sections, that holds the key to a correct solution of the problem
before us.
.i..
•
•
COOPERATIVE BANK v. P. R. MANDED (Sarkaria, .T.)
I 031
From a conspectus of the decisions cited at. the Bar, we may devise
two broad tests to determine the points in controversy in the instant
·case:
First, whether
the expression "any dispute" spoken
of in
Section 54 of the Act of 1925, and Section 96 of the Act of 1961,
is one which is capable of being resolved by the Registrar or his
nonrinee under the relevant Cooperative Societies Act ? Second, whe-
·ther a dispute raised by a servant against his employer, the Cooperative
Society, for setting aside his removal from service on the ground that
it was an act of victinrisation and for reinstatement in service with
back wages, is one "touching the management or business
of the
Society" within the contemplation of the said provisions ?
As regards the first test, it is to be noted that the expression "any
dispute" has not been defined in the Acts of 1925 and 1961.
The
term "dispute" means a controversy having both positive and negative
aspects.
It postulates the assertion of a claim by one party ana itS
denial by the other.
The word "any" prefixed to "dispute" may at
·first glance, appear to give the expression "any dispute" a very wide
amplitude covering all classes of disputes, whatever be their nature.
But the context of these provisions, the object and scheme of the Acts
of 1925/1961 show that the Legislatures never intended to give such a
wide scope to this expression. The related provisions and tlie scheme
of the Acts unerringly indicate that the expression. "any dispute" has
been used in a narrower sense limited to contested claims of a civil
nature, which could have been decided by civil or revenue courts, but
for the provisions with regard to compulsory arbitration by the Registrar
or his nominee, found in Section 54 of the Act of 1925 /96 of the Act
·Of 1961. The 'first indication of this being the right construction, is
discernible in sub-section (2) of Section 96 which states that when
,any question arises whether for the purposes of sub-section (1) a
·matter referred to for decision is a dispute or not, the question sha1!
\be considered by the Registrar, whose decision shall be final.
This
means, it is incumbent on the Registrar to decide as a prelinrinary issue,
whether the dispute is of a kind under sub-section ( 1) of Section 96
·falling within his jurisdiction. Ji this preliminary issue is found in the
negative, he will have no further jurisdiction to deal with the matter.
A further clue to the interpretation of "any dispute" used in
'Section 96(1) is available in Section 97(1) which prescribes periods
of linritation for disputes of the kind specified in its clauses (a) and
(b), referred to the Registrar under Section 96.
Sub-section (2) of
'Section 97 which is in the nature of a residuary provision, states that
the period of limitation in the case of any dispute other than those
mentioned in sub-section (1) which are required to be referred to the
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SUPREME COURT REPORTS
[1979] 2 S.C.R.-
Registrar under Section 96, shall be regulated by the provisions of the
lndian Limitation Act, "as if the dispute were a suit, and the Registrar
as Civil Court". The last clause M sub-section (2) which has been
underlined, unmistakably shows that only disputes of a civil nature
which could be the subject of civil suits triable by ordinary civil courts,
will fall within the scope of the expression "any dispute" used
in
Section 96 (1 l-
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Another definite pointer to the above being the right construction
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of "any dispute" is available in sub-section (3) of Section 98 which
provides:
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"Notwithstanding anything contained in Section 96, the·
Registrar may, if he thinks fit. suspend proceedings in regard
to any dispute, if the question at issue between a society and·
a clain1ant or between different claimants 1 is one irivolving
complicated question of Jaw or fact, until the question has
been tried by a regular suit instituted by one of the parties or
by the society. If any such suil is not instituted within two·
months from the Registrar's order suspending proceedings,.
the Registrar shall take action as is provided in sub-section
(1) ."
It is 110teworthy that this sub-section is substantially in the sam<:·
Etem1s as the proviso to sub-section ( 1) of Section 54 of the Act of
J 925, extracted earlier.
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The proviso to sub-section (I) of Section 54 of the Act of 1925
corresponding to sub-section (3) of Section 98 of the Act of 1961,.
unmistakably shows that the compulsory arbitration by the Registr&r,
on a reference under Section 96. is only a substitute for adjudicatiouof disputes of a civil nature normally tried by civil courts.
Further indication regarding the nature
of disputes which
the
Registrar may determine, is furnished by Se~lion 166(1) which pro-·
vides:
"166(1). Bar of jurisdiction of Courts :
Save as expressly provided in this Act, no Civil or Revenue Court shall
have any jurisdiction in respect of-
(a)
(b) any dispute required to be referred to the Registrar, or
his norrUnee, or board of nominees, for decision."
It will be seen that Section 166, in terms, bars the jurisdiction
only of Civil or Revenue Court, and 1101 of the Labour Court or any
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COOPERATIVE BANK I'. P. R. MANDED (Sarkaria, J.)
1033
Industrial Tribunal constituted under the B.I.R. Act or
Industrial
Disputes Act to adjudicate industrial disputes. It is clear that the
Legislature never intended to oust the jurisdiction of the Labour Court
or the Industrial Tribunal to determine claims and industr.ial disputes
which cannot be adjudicated by the ordinary Civil Courts.
Now. let us turn to the nature of the dispute raised by the second
respondent.
Is it a dispute relating to a right which he could establish
by filing a suit in a Civil Court? -assuming for the moment that
nothing in the relevant Cooperative Societies Act is a bar to such a•
suit.
The answer must be in the negative.
The respondent is not
claiming a civil right arising from the contract of employment with
the appellant-Bank.
What he is claiming is not enforcement of any
term of the contract of his employment on the part of his employer.
He is alleging that his services have been ter111inated unfairly and
vindictively becansc of his legitimate trade union activities, as an act
of victimisation.
The relief claimed by him is of rcinstarement in
service with back wages.
The rights and reliefs which he is claiming
could not be determined and granted by a Civil Court in a suit.
As
Luding Teller puts it,. "a Court of Law proceeds on the footing that
I no power exists in the Courts to make contracts for people and the
parties must make their own contracts.
The Courts reach their limit
of power when they enforce contracts which the parties had made."
(Quoted with
approval in Rohtas Industries Ltd. v.
Brijnandan
Pandey.(')
The rights claimed by the second respondent are those
which are conferred on workmen and employees under the Bombay
Industrial Relations Act, to ensure social justice.
Such rights which
do not stem froni the contract of employment can be enforced only in
the Labour Court constituted under the B.J.R. Act.
The
Labour
Court is competent to grant the relief o[ reinstatement claimed by the
respondent, while in view of Section 21 (b) of the Specific Relief AQ.,
then in force, the Civil Court was not competent to grant that relief.
The dispute was raised by the second respondent by writing an
approach letter to his employer, the appellant, as ·required by the
Bombay Industrial Relations Act.
In substance, it was an industrial
dispute. It was not restricted to a claim under the contract or agreement of employment.
The Civil Court cannot grant the reliefs claimed by the second respondent.
As rightly submitted by Mr. Rama
Reddy, if a Court is incapable of granting the relief claimed, normally,
the proper construction would be that it is incompetent to deal with
the matter.
(I) [19561 S.C..R. 800.
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SUPREME COURT REPORTS
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The matter can be looked at from another angle, also.
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 196.1 is
a general provision.
In accordance with the maxim
generalia specialibus non derogant, therefore, nothing in these general
provisions can derogate from B.I.R. Act and the Cooperative Society
6ct must yield to the special provisions in the Bombay Industrial
Relations Act, whenever a dispute clearly comes within the language
• of the latter Act.
In the light of the above discussion, the conclusion is inescapable
that the expression "any dispute" referred to in Section 54 of the 1925
Act/Section 96 of the 1961 Act, does not cover a dispute of the kind
raised by respondent 2 against the appellant-Bank.
Coming now to the second test, it may be observed that to a part
of it, the pronouncement of this Court in Cooperative Central Bank
Ltd. v. Additional Industrial Tribunal, Hyderabad (ibid), furnishes a
complete ariswer,
wherein the interpretation of this
very phrase
"touching° the
business
of the - Society"
occurring in
Section
61 of Andhra Pradesh Cooperative Societies Act, 1964, which largely
corresponds to Section 96 of the Gujarat Act, 1961, came up for
interpretation.
The subject-matter of the dispute was divided into
three issues.
The first issue comprised a number of service conditions including inter alla salary, scales and adjustment or
dearne.~s
allowance, conveyance charges, provident fund and grataity, etc.
It was contended on behalf of the Bank that the effect of Section
61 and other provisions of Andhra Pradesh Cooperative Societies Act
was to exclude the jurisdiction of the Industrial Tribunal to deal with
such disputes under the Industrial Disputes Act.
After noticing a
number of decisions and after referring to the previous decision of this
Court in Deccan Cooperative Bank, tl1c Court negatived the contention with these observations:
"The dispute related to alteration of a number of conditions of service of the workmeri 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
nnder this issue because of the limitations placed on his
powers
in the Act
itself. . . .
The word
"business" is
~uated with the actaal trading or commercial
or other
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COOPERATIVE BANK v. P. R. MANDED (Sarkaria, !.)
1035
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 to do
for the purpose of carrying out its objects, such as laying down
the conditions of service of its employee, 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 ..... Thus it is clear that in respect of the dispute regarding the 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 the case of the Deccan Merchants
Cooperative Bank Ltd., Civil Appeal No.· 358 of 1967
dated 29-8-68, AIR 1969 SC 1320 (supra)
therefore, it
must be held that this dispute is 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."
The observations quoted above, negate contention (ii) advanced
by Mr. Dholakia.
EIt however, remains to be considered whether the dispute raised
by the second respondent in the present case, comes within the purview of the expression "touching the management of the Society" used
in Section 96(c) of the Act of 1961. ·
In this connection, it may be noticed that just as in Section
96(1), in Section 61 of the Andhra Pradesh Corporation Societies'
Act, 1964, also, which came up for consideration in Cooperative
Central Banks' case before this Court, the term management does
occur in the collocation of words "constitution, management or business". But no specific argument seems to have been then raised that
a dispute between the Society and its former servants relating to the
conditions of service, comes within the purview of the expression
'touching the management of the Society'.
Perhaps, it was taken for
granted that if the dispute was not comprehended by the expression
"business of the Society", it would not be covered by the words
"management of the Society'', either.
Although there is little discussion in the j~dgment about the ambit and import of the expression
"management", yet in conclusion, it was clearly and emphatically held
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SUPREME COURT REPORTS
[I ~79] 2 S.C.R.
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We will now, focus attention on the expression "n1anagement of
the Society" used in Section 96(1) of the Act of 1961.
Grammatically, one meaning of the term 'management' is: 'the Board of Directors' or 'the apex body' or Executive Committee at the helm which
guides, regulates, supervises, directs and controls the affair.s of the
Society'. fo this sense, it may not include the individnals who under
the over-all control of that governing body or Cominittee, run the dayto-day business of the Society.
(see Words and phrases, by West
Publishing Co. Permanent Edition, Vol. 26, page 357, citing, Warner
& Swasey Co. v. Rusterholz D. C. Minn.('). Another meaning of the
t\:rm 'management', may be: 'U1e act or acts of managing or governing
by direction, guidance,
superintendence, regulation and control the
affairs of a Society.'
A still wider meaning of the term which will encompass the entire
staff of. servants and workmen of the Society, has been canvass_ed for
by Mr. Dholakia. The use of the term 'management' in such a
wide
sense In Section 96 ( l) appears to us, to be very doubtful.
Be that as it may, what has been directly bidden "out-of-bounds"
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for the Registrar by lh0 very scheme and object of the Act, can.not be
indirectly inducted by widening the connotation of 'management'. A
construction free from contexual
constraints, having
the effect of
smuggling into the circumscribed limits of the expression "any dispute", a dispute which from its
very nature is incapable of
being
resolved by the Registrar, has to be eschewed.
Thus considered, a
dispute raised against the Society by its discharged servant claiming . ,
reliefs, such ,as reinstatement in service with back wages, which are -,
not enforceable in a Civil Court, is outside the scope of the expression
"touching th~ management. of the Society" used .in Section 960) .of
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the Act of 1961, and the Registrar has no .iurisdiction to deal with
and determine it.
Such a dispute squarely falls within the jurisdiction
of the Labour Court under tl1e .BJ.R. Act.
.
Learned counsel for the appellant tried to· argue as a last resqrt that
the relief sought by the second respondent could be granted
~'r/.Y )he
Registrar by relaxing or moulding the StaffR~gulations and By,e7)aws
which lay down conditions of scryicc governing the cmployc~s ,of_,thc
Society. It is pointed ,out that.under the Act of 1961. the Jlegistrar
.has the power. \o amend or modify .such Regulations .and Bye-la,),'l'S.
'(1)41 F. Supp. 398, 505.
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COOPERATIVE BANK v. P. R. MANDED (Sarkaria, !.)
1037
Wr;. find no merit in this contention, also.
A similar argument was advanced before tbis Court in Coopera-
. tire Central Bank's Case; ibid, and was repelled inter alia, with the
reasoning that the bye-laws of the Bank, containing the conditions of
service were in the nature of a contract between the Bank and its
. employees and a change of such bye-Jaws, embodying the conditions
of employ111c11t, "could not possibly
be directed by the
Registrar
where, under s. 62 (4) of the (ANDHRA) Act, be is specifically required to decide the dispute referred to him iu accordance with the
provisions of the bye-laws". It was further observed that a dispute.
referred to the Registrar can even be transferred for disposal to a
person who may have been invested with powers iu that behalf, or
may be referred for disposal to an arbitrator. But neither the Registrar
nor bis nominee will be competent to grant the relief requiring a
change in the service conditions of the employees, under section 62
of the Andhra Act. Such a relief could be granted only by the Industrial Tribunal which under the Industrial Disputes Act, has the jurisdiction even to vary contracts of service between au employer and
employees. This reasoning is applicable mutatis mutandis to the instant
case.
For all the foregoing reasons, the appeal fails and is dismissed
with costs. Ju token of our gratitude for the valuable assistance
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an honorarium of Rs. 1500/- be paid to him, which shall be taxed
as costs awarded against the appellant.
V.D.K.
Appeal dismissed.