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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 14TH DAY OF SEPTEMBER 21!"2#RD BHADRA, 1$#%
A.NO. 2!1' OF 2$ ( )
************************
AGAINST JUDGMENT DATED 1#.+.2$ IN .P(C) NO.#+!4 OF 2%OF THE HIGH COURT OF KERALA
APPELLANT(S)"PETITIONER:
************************
CHIRAYINKEEHU SER-ICE CO*OPERATI-E BANK
BANK LTD.NO.11!!, CHIRAYINKEEHU, REP.
BY ITS SECRETARY.
BY AD-. SRI.LIJU. M.P
RESPONDENT(S)"RESPONDENTS:**************************
1. K.SANTHOSH
RAILAY STATION, CHIRAYINKEEHU.
2. LABOUR COURT, KOLLAM.
R2 BY AD-. SRI.BECHU KURIAN THOMAS
R. BY AD-. SRI.PAUL JACOB (P)
R. BY AD-. SRI.ENOCH DA-ID SIMON JOEL
R. BY AD-. SRI.S.SREEDE- R. BY AD-. SRI.RONY JOSE
R. BY AD-. SRI.GEORGE A.CHERIAN
BY SPECIAL GO-ERNMENT PLEADER SMT. GIRIJA GOPAL
THIS RIT APPEAL HA-ING BEEN FINALLY HEARD ON 12.#.21!
ALONG ITH .A. NOS.1+4 AND %'4 OF 21, THE COURT ON 14.$.
21! DELI-ERED THE FOLLOING:
www.sahakari.net
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“C.R.”
ASHOK BHUSHAN, C.J.,THOTTATHIL B.RADHAKRISHNAN,
ANTONY DOMINIC, A.M. SHAFFIQUEAND
ALEXANDER THOMAS, JJ.====================================
W.A. No.2516 of 2009,W.A. No.764 of 2010
& W.A. No.184 of 2010
====================================
Dated t!" te #$t da% &' Se(te)*e+, -#
J U D / M E N T
0A"&1 B2"a3, C.J. '&+ !)"e4' a3d '&+ A.M.Sa''!52e, J.6
This Larger Bench has been constituted on a reference
dated 15.12.2014 made by a Three Judge Bench. While
hearing the Writ Aeals! a "i#ision Bench e$ressed its
doubt regarding the correctness of an earlier "i#ision Bench
Judgment reorted in Thodupuzha Taluk General
arke!"n# $o%opera!"e 'o("e!) . "(hael 'e*a+!"an
%2010 &1' (LT )*+,. The "i#ision Bench referred the matter
for consideration by a -ull Bench #ide its order dated
0+.12.2010. Before the "i#ision Bench in the Writ Aeals
and Writ etitions! the challenge /as to the
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
2
roceedingsorders assed by the 3tate o#ernment and
Labour ourts in e$ercise of the 6urisdiction under the
7ndustrial "isutes Act! 1)48 %hereinafter referred to as 9the
1)48 Act:,. AellantsWrit etitioners are ooerati#e
Ban;s! i.e.! entral ooerati#e 3ocieties /ho challenged
the ordersroceedings under the 1)48 Act on the ground
that the roceedings initiated by the emloyees of the o
oerati#e 3ocieties under the 1)48 Act are /ithout
6urisdiction since 6urisdiction under the 1)48 Act is e$cluded
by #irtue of 3ection
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
*
“The question raised in the connected writ appeals
is whether industrial dispute between the management of
a society and an employee should be settled before the
Labour Court or Industrial Tribunal to which it is referred
by Government or whether it should be decided by the
Arbitration Court under Section !"#$"d$ of the Co%
operative Societies Act& A 'ivision (ench of this Court in
the decision in Thodupu)ha Talu* General +ar*eting Co%
op&Society v& +ichael Sebastian reported in "#,-, "-$
.&L&T& !/0$ held that both the Industrial Tribunal and Co%
operative Arbitration Court have concurrent 1urisdiction
for settling industrial disputes between management and
wor*ers of a society& This position is also supported by a
earlier single (ench decision of this Court reported in
(oard of 'irectors2 3dava Service Co%operative (an* v&
The Co%operative Arbitration Court and others "#,,0 "/$
.&L&4 #5$& It is seen from the 1udgments that the
Government 6leader conceded before the 'ivision (ench
that the amendment introduced in the year #,,, under
Section !"#$"d$ of the Co%operative Societies Act was
not assented to by the 6resident& 7owever2 before us2
counsel appearing for the society and the Government
6leader submitted that amendment may be only
clarificatory and even the original provision of Section !
"-$"c$ ta*es in industrial disputes between societies and
employees and with these provisions of the Act got the
assent of the 6resident& Section !"-$"c$ of the Act will
prevail over the provisions of the Industrial 'isputes Act
by virtue of the operation of Article #89"#$ of the
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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Constitution of India& :e find force in the contention of
the counsel because2 if the amendment made in #,,, is
only clarificatory in nature2 then the original provision in
the statue ta*es in all industrial disputes which have to be
settled e;clusively by Arbitration Courts constituted under
the Co%operative Societies Act& 6rima facie2 we are not
able to concur with the view e;pressed by the 'ivision
(ench that the Arbitration Court2 Industrial Tribunal and
Labour Courts have concurrent 1urisdiction in the matter&
In our view2 if the provision of the Co%operative Societies
Act is valid2 then the Industrial Tribunal and Labour Court
will not have 1urisdiction in the matter and the 1urisdiction
of the Co%operative Arbitration Court will be e;clusive by
virtue of the operation of Article #89"#$ of the
Constitution& :e2 therefore2 refer these cases for
consideration by a
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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consideration before ans/ering the issues raised. The Three
Judge Bench thus formulated eight issues /hich ha#e arisen
before the -ull Bench and framed one more =uestion! i.e.!
issue >o.i$ as to /hether the t/o earlier -ull Bench
6udgments of this ourt lay do/n the correct la/? 7t is useful
to reroduce the ) 7ssues framed by the Three Judge Bench
/hich are u for consideration before this Larger Bench
(i) Whether Sec.69 the 1969 Act as
enacted contemplate disputes relating to
service between the Co-operative Societ
and its emploees to be re!erred to "abour
Court !or decision#
(ii) Whether Sec.69 as enacted
intends to override an contrar provision
in an law including the provisions o! the
19$% Act b virtue o! Sec.69(1) o! the 1969
Act#
(iii) Whether the 1969 Act was
enacted with &residential assent#
(iv) Whether the Amendment Act 1 o!
' b which amendments were made in
Sec.69 o! the 1969 Act are clari!icator in
nature#
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(v) Whether the Amendments made
in Sec.69 o! the 1969 Act b the
Amendment Act 1 o! ' are repugnant to
the provisions o! the 19$% Act and hence
inoperative#
(vi) Whether !or entertaining a
dispute regarding disciplinar proceedings
against emploees and o!!icers o! the Co-
operative an* both the Co-operative
Arbitration Court as well as the "abour
Court shall have concurrent +urisdiction#
(vii) Whether the Co-operative
Arbitration Court alone has e,clusive
+urisdiction to decide the dispute
pertaining to the disciplinar action
initiated against the o!!icers and emploees
o! the Co-operative an* and the "abour
Court shall have no +urisdiction to
entertain an such dispute#
(viii) Whether the ivision ench
+udgment o! this Court in hodupu/ha
alu* 0eneral ar*eting Co-operative
Societ v. ichael Sebastian ('1 213 4"
959) las down the correct law#
(i,) Whe!her !he ull -en(h
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
8
ud#/en!+ of !h"+ $our! % -ala(handran
. epu!) e#"+!rar 1978 3T 249 .-. a+
ell a+ ..'herl) . re+"den!,
arappura/ "lk rodu(er+ $o%opera!"e
'o("e!) !d. 2007 1: 3T 809 la) don
!he (orre(! la !ha! under 'e(.69 of !he
1969 A(! una/ended !he d"+pu!e+ of
e/plo)ee+ and off"(er+ of !he $o%opera!"e'o("e!"e+ re#ard"n# +er"(e /a!!er+ (anno!
*e adud"(a!ed;
The Larger Bench concluded the hearing in these Writ
Aeals and orders /ere reser#ed.
*. 7 had the ad#antage of going through the oinion
reared by esteemed Brother Justice Antony "ominic.
Justice Antony "ominic in his elaborate oinion has
concluded that 6urisdiction of the Labour ourt under the
1)48 Act and that of the Arbitration ourt under the 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
+
earlier t/o -ull Bench 6udgments do not re=uire
reconsideration. 7 regret my inability to agree /ith the
abo#e oinion! hence 7 roceed to consider the 7ssues in the
follo/ing manner
A$T'
4. -acts in brief gi#ing rise to these Writ Aeals are
@eference of facts in W.%, >o.12)4) of 2010 %The
all"(hal ar/e+ 'er"(e $o%opera!"e -ank !d. No.T%
677, Th"ruanan!hapura/ . '!a!e of 3erala and
before us. The arties shall be referred to as arrayed in W.
%, >o.12)4) of 2010. The second resondent /as an
emloyee of the Ban; /hose ser#ice /as terminated by the
Ban; by order dated 05.0
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
)
*0.12.200) made a reference of the industrial disute for
ad6udication before the Labour ourt. The Labour ourt
issued summons to the Ban;. Writ etition >o.12)4) of
2010 /as filed by the allichal -armers 3er#ice ooerati#e
Ban; raying for the follo/ing reliefs
“(i) Call for the records leading to Exhibit P5 and
quash the same by issuing a writ of certiorari.
(ii) To declare that the roceedings ending before
the !abour Court" #ollam in $.%.&'* is ultra+ires to ,ection -
of the #C, /ct and hence not maintainable.0
The abo#e Writ etition /as dismissed by a learned 3ingle
Judge #ide 6udgment dated 20.04.2010 relying on the
6udgments in A.. Na#ar 'er"(e $o%opera!"e -ank .
'!a!e of 3erala 2010 1: 3T 55, and Thodupuzha
Taluk General arke!"n# $o%opera!"e 'o("e!) .
"(hael 'e*a+!"an /herein it /as held that both the
Labour ourt and the ooerati#e Arbitration Tribunal ha#e
concurrent 6urisdiction to entertain disutes raised by
emloyees of the ooerati#e 3ocieties. Writ Aeal >o.8o.251< of 200) has been
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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filed against the 6udgment of the learned 3ingle Judge dated
1*.0+.200) in W.%, >o.*0+54 of 2008 %$h"ra)"hkeezhu
'er"(e $o%opera!"e -ank !d. No.115. . 3.'an!ho+h
and Ano!her by /hich Writ etition the a/ard of the Labour
ourt in fa#our of the emloyee of the ooerati#e 3ociety
/as challenged. The learned 3ingle Judge /hile dismissing
the Writ etition relied on the 6udgment of the Ae$ ourt in
harappa . -"apur $o%op. "lk rodu(er+ 'o("e!"e+
n"on !d 2007: 9 '$$ 109, and held that the
amendment in the 1)o.1+4 of 2010 has been filed by A.. Na#ar 'er"(e $o%
op. -ank !d., No..58= against '!a!e of 3erala and
Ano!her against the 6udgment dated 04.12.200) assed in
W.%, >o.28)0) of 200) filed by A.. Na#ar 'er"(e $o%
op. -ank !d. reorted in A.. Na#ar 'er"(e $o%op.
-ank !d. #. '!a!e of 3erala %2010 &1' (LT 55, in /hich
Writ etition order of the 3tate o#ernment dated
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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18.08.200) referring the industrial disute under the 1)48
Act /as under challenge. The Ban; had dismissed the *rd
resondent therein after conducting en=uiry. 7n the Writ
etition aart from challenging the order of reference! a
declaration /as also sought that 3ection
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'->''>
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settlement of disutes. 3ection
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roceedings under the 1)48 Act is barred and the learned
3ingle Judge in dismissing the Writ etition filed by the o
oerati#e 3ociety committed error. 7t is submitted that all
decisions rendered by the 3ingle Bench! "i#ision Bench and
-ull Bench ta;ing contrary #ie/ does not lay do/n the correct
la/.
8. Learned counsel for the resondentsemloyees
refuting the submissions of the learned counsel for the
aellants contended that discilinary roceedings against
the emloyees of the ooerati#e 3ocieties /ere ne#er
co#ered by the ro#isions of the 1)
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residential assent. (erala aCette dated 11.04.1)
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>'$''>
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3ocieties ha#e been reealed. The Fadras ooerati#e
3ocieties Act! 1)*2 /as in force in the Falabar "istrict
/hereas the Tra#.ochin ooerati#e 3ocieties Act! 1)51
/as oerating in the rest of the area. -or interreting a
statutory ro#ision an earlier ari materia enactment can
al/ays be used as e$ternal aid to interret the legislation.
What /as the statutory scheme of the 1)*2 and 1)51 Acts
thus is rele#ant to be noted /hich shall thro/ considerable
light /hile interreting the ro#isions of the 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
1)
claiming through members" ast members and deceased
members" or
(b) between a member" ast member or erson
claiming through a member" ast member or deceased member
and the society" its committee or any officer" agent or ser+ant of
the society or"
(c) between the society or its committee and any ast
committee" any officer" agent or ser+ant or any ast officer" ast
agent or ast ser+ant" or the nominee" heirs or legal
reresentati+es of any deceased officer" deceased agent or
deceased ser+ant of the society.0
3ection 51%2, ro#ided that the @egistrar on receit of the
such reference either may decide the disute himself or
transfer the same to another erson /ho has been in#ested
by the 3tate o#ernment /ith o/ers in that behalf. Dnder
3ection 51%5,! the @egistrar /as emo/ered to re#ise any
decision of the Arbitrator or Arbitrators to /hom the disute
/as referred. 3ection 51%
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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by the erson to whom such reference was transferred or by the
arbitrator or arbitrators to whom it was referred.
-(a) /ny decision that may be assed by the 4egistrar
under clause (a) of sub3section () or under sub3section (5) shall
be final and shall not be called in question in any ci+il or re+enue
court.
(b) /ny decision that may be assed by the erson to
whom a reference is transferred or by the arbitrator or arbitrators
to whom it is referred shall" sa+e as otherwise ro+ided in sub3
section (5)" be final and shall not be called in question in any ci+il
or re+enue court.
To the similar effect are the ro#isions of 1)51 Act. 3ection
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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reresentati+es of any deceased officer" deceased agent or
deceased ser+ant of the society" or
(d) between the society and any other registered
society"
such disute shall be referred to the 4egistrar for decision.1
3ection
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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14. >o/ /e refer to the ro#isions of the 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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committee" any officer" agent or emloyee or any ast officer" ast
agent or ast emloyee or the nominee" heirs or legal
reresentati+es of any deceased officer" deceased agent or
deceased emloyee of the society; or
(d) between the society and any other society; or
(e) between a society and the members of a society affiliated to it ;
or
(f) between the society and a erson" 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 or any erson
claiming through such a erson; or
(g) between the society and a surety of a member" ast
member" deceased member or emloyee or a erson" 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; or
(h) between the society and a creditor of the society" such
disute shall be referred to the 4egistrar for decision and no court
shall ha+e 7urisdiction to entertain any suit or other roceeding in
resect of such disute.0
As er 3ection 80! the @egistrar has to decide the disute
himself or refer it to the Arbitrator. As er 3ection 80
decision of the @egistrar or Arbitrator is final sub6ect to
3ection +2. hater G777 of the 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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@egistrar or Arbitrator under 3ection 80%*, /as made
aealable under 3ection +2. o/er of re#ision /as also
conferred to the Tribunal under 3ection +4. 3ection +5
ro#ided for o/er of re#ie/ by the Tribunal. o#ernment
has also been gi#en o/er of re#ision under 3ection +8. The
Tribunal has also been emo/ered to e$ercise #arious
o/ers of a ci#il court by 3ection )+ of the 1)!"t+a+, et9. t& a;e 9e+ta!3 (&?e+"
&' 9!;!4 9&2+t.3 (*) $n exercising the functions conferred on it or
him by or under this /ct" the Tribunal" the 4egistrar" the arbitrator or any other erson deciding a disute and the liquidator of a
society shall ha+e all the owers of a ci+il court while trying a suit
under the Code of Ci+il Procedure" *6 (Central /ct 5 of *6)"
in resect of the following matters" namely
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
2<
behalf may administer the oath to the deonent.
*. Ba+ &' @2+!"d!9t!&3 &' 9&2+t".3 :o ci+il or re+enue
court shall ha+e any 7urisdiction in resect of any matter for which
ro+ision is made in this /ct.0
18. The 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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against the order of the @egistrar under the earlier
enactments. The 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
2+
no such e$clusion in the 1)*2 and 1)51 Acts rather disute
regarding discilinary action against a aid ser#ant /ere
e$ressly e$cluded from reference to @egistrar /hich
ermitted emloyees to a#ail other -orum including -orum
under the 1)48 Act.
1+. The 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
2)
earlier one in ari materia is suggesti+e of the intention of the
!egislature that the language so used in the later statute is used in
the same sense as in the earlier one" change of language in a
later statute in ari materia is suggesti+e that change of
interretation is intended.> The learned author also refers to the
obser+ations of !ord @ac@illan in %. 4. Araser B Co. !td. +. The
@inister of :ational 4e+enue" /$4 * PC * < >Dhen an
amending /ct alters the language of the rincial ,tatute" the
alteration must be ta2en to ha+e been made deliberately.>0
-!& The submission! /hich has been ressed by the
learned counsel aearing for the resondents emloyees is
that the definition of the /ord disute under 3ection 2%i,
does not contemlate disute ertaining to ser#ice matters
of emloyees of ooerati#e 3ocieties. 7t is submitted that
ser#ice disute of the emloyees cannot be regarded as the
disute touching the business! constitution! establishment or
management of the 3ociety. The /ord disute has been
defined in .@amanathans La/ Le$icon in the follo/ing
manner
“/ conflict or contest; sometimes used in the sense of
contro+ersy. “Contro+ersy" debate" heated contention" quarrel"
difference of oinion.0
20. As er 3ection +0 of the 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
*0
establishment consists of the officers and emloyees of o
oerati#e 3ocieties. 3ection +0%2, ma;es the secific
reference to the number and designation of the officers and
ser#ants of different classes of ooerati#e 3ocieties. Thus!
the officers and ser#ants of the 3ociety are art of the
establishment as er the statutory scheme of the 1)
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
*2
7n the abo#e case an industrial disute bet/een the o
oerati#e entral Ban;s and their /or;men /as referred by
the go#ernment of Andhra radesh to the 7ndustrial Tribunal.
The sub6ect matter of the disute consisted of ser#ice
conditions and transfer of emloyees. ne of the ob6ections
raised on behalf of the Ban; /as that the ro#isions of the
Andhra radesh ooerati#e 3ocieties Act e$clude the
6urisdiction of the 7ndustrial Tribunal to deal /ith the same
disute under the 7ndustrial "isutes Act. 7n the abo#e case!
the Ae$ ourt considered the e$ression 9touching the
business of the 3ociety:. @eferring to t/o earlier 6udgments!
the Ae$ ourt held as follo/s
“$t is true that ,ection -* by itself does not contain any
clear indication that the 4egistrar cannot entertain a disute
relating to alteration of conditions of ser+ice of the emloyees of a
registered society; but the meaning gi+en to the exression
1touching the business of the society1" in our oinion" ma2es it
+ery doubtful whether a disute in resect of alteration of
conditions of ser+ice can be held to be co+ered by this exression.
,ince the word 1business1 is equated with the actual trading or
commercial or other similar business acti+ity of the society" and
since it has been held that it would be difficult to subscribe to the
roosition that whate+er the society does or is necessarily
required to do for the urose of carrying out its ob7ects" such as
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
**
laying down the conditions of ser+ice of its emloyees" can be
said to be a art of its business" it would aear that a disute
relating to conditions of ser+ice of the wor2men emloyed by the
society cannot be held to be a disute touching the business of
the society.0
2*. 7n the resent case the submissions ressed by
the learned counsel for the aellant is not on the basis of
the e$ression touching the business of 3ociety! rather!
disute regarding ser#ice matters of emloyees is sought to
be included in the term establishment. The Ae$ ourt in
Central Bank Co-operative Bank (supra) thus held that
the disute ertaining to ser#ice conditions of emloyees /as
not co#ered by 3ection
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*4
3ection 2%i,! /hich encomasses in itself matter touching the
establishment shall as er a statutory scheme include the
disute touching the establishment! i.e.! touching the officers
and ser#ants of the ooerati#e 3ocieties! since the officers
and ser#ants of ooerati#e 3ocieties are art of the
establishment.
25. "iscontinuation of the e$cetion as engrafted in
3ection 51 of the 1)*2 Act and 3ection
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*5
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*<
enumerated in the oncurrent List! then! sub6ect to the
ro#isions of clause %2,! the la/ made by arliament shall
re#ail and the la/ made by the Legislature of the 3tate
shall! to the e$tent of the reugnancy! be #oid. Article 254%2,
ro#ides that /here a la/ made by the Legislature of a 3tate
/ith resect to one of the matters enumerated in the
oncurrent List contains any ro#ision reugnant to the
ro#isions of an earlier la/ made by arliament or an e$isting
la/ /ith resect to that matter! then the la/ so made by the
Legislature of such 3tate shall! if it has been reser#ed for the
consideration of the resident and has recei#ed his assent!
re#ail in that 3tate. The 1)
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*8
number of cases. The 6udgment of the Ae$ ourt in Co-
operative Central Bank Ltd.'s case %sura, /as a case
/here the abo#e issue came u for consideration. The Ae$
ourt in the abo#e case has held that the Act is an enactment
assed by the 3tate Legislature /hich recei#ed the assent of
the resident! so that! if any ro#ision of a entral Act!
including the 7ndustrial "isutes Act! is reugnant to any
ro#ision of the Act! the ro#ision of the Act /ill re#ail and
not the ro#ision of the entral 7ndustrial "isutes Act. The
follo/ing /as obser#ed by the Ae$ ourt in aragrah 2 of
the 6udgment
“. ....$t is no doubt true that the /ct is an enactment assed
by ,tate !egislature which recei+ed the assent of the President" so
that" if any ro+ision of a Central /ct" including the $ndustrial
%isutes /ct" is reugnant to any ro+ision of the /ct" the ro+ision
of the /ct will re+ail and not the ro+ision of the Central $ndustrial
%isutes /ct. The general roosition urged that the 7urisdiction of
the $ndustrial Tribunal under the $ndustrial %isutes /ct will be
barred if the disutes in question can be cometently decided bythe 4egistrar under ,ection -* of the /ct is" therefore" correct and
has to be acceted. The question" howe+er" that has to be
examined is whether the industrial disute referred to the Tribunal
in the resent cases was such as was required to be referred to
the 4egistrar and to be decided by him under ,ection -* of the
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*)
emloyees are >wor2men> as defined in the $% /ct. Clause (*) of
/rticle 5 ro+ides that if any ro+ision of a law made by a ,tate
!egislature is reugnant to any ro+ision of an existing law with
resect to one of the matters enumerated in the Concurrent !ist"
then" sub7ect to the ro+isions of clause ()" the existing law shall
re+ail" and the law made by the !egislature of the ,tate shall" to
the extent of the reugnancy" be +oid. Clause () of /rticle 5"
howe+er" ro+ides that where a law made by the !egislature of a
,tate with resect to one of the matters enumerated in the
Concurrent !ist" contains any ro+ision reugnant to an existing law
with resect to that matter" then" the law so made by the !egislature
of such ,tate shall" if it has been reser+ed for the consideration of
the President and has recei+ed his assent" re+ail in that ,tate. The
question of reugnancy can arise only with reference to a
legislation made by Parliament falling under the Concurrent !ist or
an existing law with reference to one of the matters enumerated in
the Concurrent !ist. $f a law made by the ,tate !egislature co+ered
by an Entry in the ,tate !ist incidentally touches any of the entries
in the Concurrent !ist" /rticle 5 is not attracted. ut where a law
co+ered by an entry in the ,tate !ist (or an amendment to a law
co+ered by an entry in the ,tate !ist) made by the ,tate !egislature
contains a ro+ision" which directly and substantially relates to a
matter enumerated in the Concurrent !ist and is reugnant to any
ro+ision of an existing law with resect to that matter in the
Concurrent !ist then such reugnant ro+ision of the ,tate law will
be +oid. ,uch a ro+ision of law made by the ,tate !egislature
touching uon a matter co+ered by the Concurrent !ist" will not be
+oid if it can co3exist and oerate without reugnancy with the
ro+isions of the existing law. Dhat is stated abo+e with reference
to an existing law" is also the osition with reference to a law made
by the Parliament. 4eugnancy is said to arise when < (i) there is
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
40
clear and direct inconsistency between the Central and the ,tate
/ct; (ii) such inconsistency is irreconciliable" or brings the ,tate /ct
in direct collision with the Central /ct or brings about a situation
where obeying one would lead to disobeying the other. $f the ,tate
!egislature" while ma2ing or amending a law relating to co3
oerati+e societies" ma2es a ro+ision relating to labour disutes
falling under the Concurrent !ist" then /rticle 5 will be attracted if
there is any reugnancy between such ro+ision of the ,tate /ct
(@C, /ct) with the existing law ($% /ct). De will ha+e to examine
the issue in this case 2eeing the abo+e legal osition in mind.0
*1. We ha#e to find out from the statutory scheme in
the 1)
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41
/hile elaborating interretation of nonobstante clause said
as follo/s
“/ clause beginning with >notwithstanding anything
contained in this /ct or in some articular ro+ision in the /ct or in
some articular /ct or in any law for the time being in force>" is
sometimes aended to a section in the beginning" with a +iew to
gi+e the enacting art of the section in case of conflict an
o+erriding effect o+er the ro+ision or /ct mentioned in the non3obstante clause. $t is equi+alent to saying that in site of the
ro+ision or /ct mentioned in the non obstante clause" the
enactment following it will ha+e its full oeration or that the
ro+isions embraced in the non obstante clause will not be an
imediment for the oeration of the enactment. Thus a non3
obstante clause may be used as a legislati+e de+ice to modify the
ambit of the ro+ision or law mentioned in the non3obstante clause
or to o+erride it in secified circumstances.
**. The use of nonobstante clause in 3ection
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42
statutory ro#ision beginning /ith nonobstante clause in
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4*
said area" shall stand rescinded" whether such forest roduce is
grown or found on land owned by ri+ate ersons or on land
owned by the ,tate o+ernment or in o+ernment forests
ro+ided that rescission of such contracts and grants shall not
affect the customary rights" if any" of the local Tribals to gather
and collect the secified forest roduce;
...............1
This amendment" beginning with the non obstante clause"
ro+ides that" on the coming into force of /ct of *6* by
notification issued under ,.* (9)" all contracts relating to any
secified forest roduce for the urchase" sale" collection etc."
including grants of rofits a rendre" whether such roduce is
grown or found ri+ate land or on o+ernment land or in
o+ernment forest" would stand rescinded" but such rescission
would not affect customary right" if any" en7oyed by the local tribals
to gather and collect secified forest roduce.
*. This sub3section o+errides 1any ro+ision to the contrary in
any other law1. These words are an exression of the widest
amlitude engulfing all rules ha+ing the force of law" whiche+er be
the source from which they emanate > statutory" 7udicial or
customary 3 the only excetion" in the context" being the
Constitution of $ndia. This means" once brought into force the sub3
section will" sub7ect to the Constitution" oerate with full +igour"
notwithstanding any statute or 7udicial decision or any other rule
recognising any right or interest or grant inconsistent with or
contrary to the ro+isions of the sub3section.0
*5. There is one more indication in 3ection
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44
referred to under 3ection
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45
As noted abo#e the e$cetion ro#ided for in the 1)*2 Act
and 1)51 Act in the /ords 9other than a disute regarding
discilinary action ta;en by the society or its committee
against a aid ser#ant of the society: /as /ithdra/n and not
continued in the settlement of "isute as delineated by
3ection
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4<
the ro#ision /as to e$clude and o#erride any other -orum
for settlement of disutes including the -orum of Labour
ourt as ro#ided under the 7ndustrial "isutes Act! 1)48. As
noted abo#e! the 1)
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48
that fficers of the ooerati#e 3ociety cannot ta;e
recourse to the ro#isions of the 1)48 Act. an the
3tatutory 3cheme be read in a manner as to e$clude the
ser#ice disutes of the emloyees from the ur#ie/ of
3ection
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4+
contemlated to be referred under 3ection
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
4)
shall decide such disute and no other court or other authority
shall ha+e 7urisdiction to entertain any suit or other roceedings in
resect of such disute.
() Aor the uroses of sub3section (*)" the following shall
also be deemed to be disutes" namely
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50
() shall continue to be o+ernment ser+ants for all uroses and
their terms and conditions of ser+ice shall continue to be the
same as alicable to them under the o+ernment.0
3ection 80B ro#ides for transfer of all ending disutes in
resect of nonmonetary disutes to the Arbitration ourt.
onse=uent amendments /ere also made in the (erala o
oerati#e 3ocieties @ules! 1)
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51
of ser#ice matters of /or;men of ooerati#e 3ocieties
ans/ering the definition of disute as defined under the
1)48 Act. Writ etition /as filed challenging the order of the
3tate o#ernment referring a disute of a /or;man of a
3ociety to the Labour ourt for ad6udication. The learned
3ingle Judge had noticed 3ection
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52
'er"(e $o%opera!"e 'o("e!) !d . A++"+!an!
e#"+!rar, ukundapura/ and
is clearly a mista;e and secondly! it is stated that
residential assent /ould be obtained after the reugnancy
coming into being. rior to insertion of 3ection
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
5*
*&9 (*) #er. 5 < *&9 () !!? 5* stating that >The /ct was
assed with the assent of the President after the enactment of the
$ndustrial %isutes /ct" *&>" the learned counsel for the ,ociety
would raise an argument that since the /ct itself had originally
recei+ed the assent of the President" after introduction of sub3s.
(d)" the 7urisdiction under the $ndustrial %isutes /ct would stand
excluded since ,.- starts with the non obstante clause
>:otwithstanding anything contained in any law for the time being
in force> and since sub3clause (h) of sub3section (*) of ,.-"
stiulated that >no other Court or authority shall ha+e 7urisdiction to
entertain any suit or other roceedings in resect of such disute.>
This argument would not hold water for two reasons. The first is
that contrary to the obser+ation in the abo+esaid case" e+en for
the /ct" Presidential assent was not recei+ed. ,ince none of the
boo2s relating to #erala Cooerati+e ,ocieties /ct" *-
contained any reference to Presidential assent for the /ct" $
directed the learned o+ernment Pleader to ascertain from the
o+ernment as to whether the /ct had in fact recei+ed
Presidential assent. The learned o+ernment Pleader" after
getting instructions" confirmed that no Presidential assent was
recei+ed for the ,ocieties /ct. Therefore" the reference to such
assent in *&9 #=C * < *&9 #!T 59 < *&9 #!? 5* < $!4
*&9 (*) #er. 5 < *&9 () !!? 5* is clearly a mista2e. Aurther"
Presidential assent should be obtained after the reugnancy
comes into being. Prior to insertion of ,.-(*)(h) and ,.-()(d)"
there was no reugnancy between the ,ocieties /ct and the
$ndustrial %isutes /ct and therefore the question of requirement
of Presidential assent rior to /mendment /ct * of does not
arise at all. Therefore" without Presidential assent for /mendment
/ct * of " the 7urisdiction of the !abour Courts and $ndustrial
Tribunals under the $ndustrial %isutes /ct for ad7udicating
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54
industrial disutes raised by wor2men of cooerati+e societies
cannot be excluded by the ,ocieties /ct. That being so" in +iew of
the fact that the /mendment /ct * of amending ,.- of the
#erala Cooerati+e ,ocieties /ct has not recei+ed the assent of
the President as ro+ided under /rt.5() of the Constitution of
$ndia" the said ,ection does not exclude the 7urisdiction of the
!abour Courts and $ndustrial Tribunals in resect of disutes
raised by the wor2men of cooerati+e societies in #erala. ut" as
laid down by the ,ureme Court in %haraa>s case (sura)" the
7urisdiction to decide any disute of the nature mentioned in ,.-
()(d) of the #erala Cooerati+e ,ocieties /ct +ests concurrently
with !abour Courts ' $ndustrial Tribunals under the $ndustrial
%isutes /ct and with the Cooerati+e /rbitration Court and the
4egistrar as the case may be deending on whether the disute
is non monetary or monetary.0
40. The 6udgment on /hich much reliance has been
laced by the learned counsel for the resondents to buttress
their submission that Amendment Act 1 of 2000 ha#ing not
been enacted /ith the residential assent it cannot e$clude
the 6urisdiction of Labour ourts under the 1)48 Act is a
6udgment of the Ae$ ourt in harappa . -"apur $oop.
"lk rodu(er+ 'o("e!"e+ n"on !d. %sura,. 7t is
necessary to note the rele#ant facts and la/ as laid do/n by
the 3ureme ourt in the aforesaid case. 3er#ice of the
aellant /as terminated /ith effect from 01.0*.1)+0. An
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55
alication /as made by the aellant to the Labour ourt
see;ing declaration that his termination from ser#ice /ith
effect from 01.0*.1)+0 /as null and #oid and a direction be
issued for reinstatement /ith full bac; /ages. The
resondent! oo. Fil; roducers 3ociety filed an ob6ection
denying the claim of the aellant. The Labour ourt made
an a/ard on 15.10.1)+< directing reinstatement. The
3ociety challenged the a/ard by means of Writ etition. 7n
the mean/hile a "i#ision Bench of the (arnata;a Iigh ourt
deli#ered a 6udgment in Deera+ha"a $oop.-ank !d. .
re+"d"n#
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
5<
in the Ae$ ourt. The Ae$ ourt framed t/o =uestions
/hich fell for consideration.
9(i) Dhether the 7urisdiction of !abour Court under the $%
/ct" was barred by ,.& of the #C, /ct with reference to
cooerati+e societies and if so" from when.
(ii) E+en if !abour Court had 7urisdiction" whether the
aellant was entitled to file an alication under ,.*(/) of $%
/ct in resect of a cause of action which occurred in *&6.0
3ection 80 of the (3 Act has been e$tracted by the Ae$
ourt in aragrah 11 of the 6udgment. 3ection 80 /as
amended by Amendment Act 1)8< by /hich clauses %d, and
%e, /ere added. A further amendment /as made in sub
section %1,. The Amendment Act 2 of 2000 recei#ed the
assent of the resident on 1+.0*.2000 and brought into force
on 20.0
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58
(c) between the society or its committee and any ast
committee" any officer" agent or emloyee" or any ast officer"ast agent or ast emloyee or the nominee" heirs" or legalreresentati+es of any deceased officer" deceased agent" or deceased emloyee of the society" or
(d) x x x (omitted as not rele+ant)
such disute shall be referred to the 4egistrar for decision and noCourt shall ha+e 7urisdiction to entertain any suit or other roceeding in resect of such disute.
() Aor the uroses of sub3section (*)" the following shallbe deemed to be disutes touching the constitution" managementor the business of a co3oerati+e society" namely.
(a) a claim by the society for any debt or demand due to itfrom a member or the nominee" heirs or legal reresentati+es of adeceased member" whether such debt or demand be admitted or not;
(b) a claim a surety against the rincial debtor where thesociety has reco+ered from the surety any amount in resect of any debt or demand due to it from the rincial debtor" as a resultof the default of the rincial debtor whether such debt or demandis admitted or not;
(c) any disute arising in connection with the election of aPresident" Fice3President" Chairman" Fice3Chairman" ,ecretary"Treasurer or @ember of Committee of the society.
(9) x x x (omitted as not rele+ant).
,ection & was amended by #arnata2a Co3oerati+e ,ocieties
(/mendment) /ct" *&- (#arnata2a /ct * of *&-). The
/mendment /ct recei+ed the assent of the o+ernor on &.9.*&-.
$t was brought into effect from .*.*&-. The /mendment /ct
added the following as clauses (d) and (e) in sub3section () of
section & <
“&. ()(d) any disute between a co3oerati+e society and
its emloyees or ast emloyees or heirs or legal reresentati+esof a deceased emloyee" including a disute regarding the termsof emloyment" wor2ing conditions and discilinary action ta2enby a co3oerati+e society;
(e) a claim by a co3oerati+e society for any deficiency caused inthe assets of the co3oerati+e society by a member" ast member"deceased member or deceased officer" ast agent or deceasedagent or by any ser+ant" ast ser+ant or deceased ser+ant or byits committee" ast or resent whether such loss be admitted or
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5+
not.1
,ection & was again amended by #arnata2a Co3oerati+e
,ocieties (,econd /mendment) /ct" *& (#arnata2a /ct :o.
') in the following manner<
(i) $n sub3section (*)" for the words 1no court1" the words
1no ci+il or !abour or 4e+enue Court or $ndustrial Tribunal1 were
substituted.
(ii) /t the end of clause (d) of sub3section ()" the words
1notwithstanding anything contrary contained in the $ndustrial
%isutes /ct" *& (Central /ct * of *&)1 were inserted0
The said /mendment /ct (/ct of ) recei+ed the assent of
the President on *6.9. and was brought into force on
.-.. /fter the said amendments in *- and " ,ection
& of #C, /ct (rele+ant ortion) reads thus<
1&. %isutes which may be referred to 4egistrar for decision.3 (*) :otwithstanding anything contained in any law for the time being in force" if any disute touching the constitution"management" or the business of a Co3oerati+e ,ociety arises ....
(c) between the ,ociety or its committee and ...... any officer"agent or emloyee" or any ast officer" ast agent or astemloyee ...... of the ,ociety" H..
such disute shall be referred to the 4egistrar for decision and no
Ci+il or !abour or 4e+enue Court or $ndustrial Tribunal shall ha+e
7urisdiction to entertain any suit or other roceeding in resect of
such disute.
Aor the uroses of sub3section (*)" the following shall be
deemed to be disutes touching the constitution" management or
the business of a Co3oerati+e ,ociety" namely
(d) any disute between a Co3oerati+e ,ociety and itsemloyees or ast emloyees or heirs or legal reresentati+es of a deceased emloyee" including a disute regarding the terms of emloyment" wor2ing conditions" and discilinary action ta2en bya Co3oerati+e ,ociety notwithstanding anything contrarycontained in the $ndustrial %isutes /ct" *&(Central /ct * of *&)0.
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
5)
The Ae$ ourt after noticing Article 254 of the onstitution
of 7ndia held that /here a la/ co#ered by an entry in the
3tate List %or an amendment to la/ co#ered by the entry to
3tate List, made by the 3tate Legislature contains a ro#ision
/hich directly and substantially relates to a matter
enumerated in the oncurrent List then such reugnant
ro#ision of the 3tate la/ /ill be #oid. 3uch a ro#ision of
la/ made by the 3tate Legislature touching uon a matter
co#ered by the oncurrent List /ill not be #oid if it can
coe$ist and oerate /ithout reugnancy /ith the ro#isions
of the e$isting la/. The obser#ations made in aragrah 12
has already been e$tracted abo#e.
41. @eferring to the 1)8< Amendment it /as held by
the Ae$ ourt that the said Amendment ha#ing not
recei#ed the assent of the resident! it cannot be said that
3ection 80%1,%c, of the (3 Act /ould re#ail o#er the
ro#isions of the 1)48 Act. onse=uently! e#en after the
1)8< Amendment Act! the Labour ourts and 7ndustrial
Tribunals functioning under the 1)48 Act continued to ha#e
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industry> and the disute was an >industrial disute>. ut when
sub3section (*) of ,.& of #C, /ct was further amended by /ct
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63/191
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65/191
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66/191
W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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67/191
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68/191
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69/191
W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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70/191
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between emloyees" ta2en by the emloyer on or after 3*39.
$n that +iew of the matter" Ext. P decision of the ?oint 4egistrar of
Cooerati+e ,ocieties in urorted exercise of authority under
4.*&- of the 4ules and Ext. P5 aellate order assed by the
o+ernment lac2 in 7urisdiction and they cannot" therefore" stand"
they being +oid.0
The abo#e 6udgment of the learned 3ingle Judge /as
aro#ed by a "i#ision Bench in aeendran . '!a!e
%2008 %*, (LT 55+,. Before the "i#ision Bench =uestion arose
as to /hether the disute ertaining to inter se seniority of
the emloyees of the ooerati#e 3ociety can be decided
under 3ection
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ro+isions it is clear that any disute arising in connection with
emloyment of officers and ser+ants of the different classes of
societies secified in sub3section (*) of ,.6 including their
romotion and inter se seniority is to be decided by the /rbitration
Court. Gn the constitution of Cooerati+e /rbitration Court" e+ery
disute ending before the 4egistrar or any erson in+ested with
the ower to disose of the same by the o+ernment or the
arbitrator aointed by the 4egistrar in resect of non monetary
disutes relating to the local area of 7urisdiction of the /rbitration
Court" shall be transferred to such /rbitration Court and the Court
shall disose of the same as if it were a disute referred to it
under ,.-. ,ame is the +iew ta2en by the %i+ision ench of this
Court in D/ :o. **- of -. De therefore fully endorse the
+iew ta2en by the learned ?udge in Pra2asini>s case.
Consequently writ aeal lac2s merits and the same would stand
dismissed.0
Another 6udgment of a learned 3ingle Judge in Fdaa
'er"(e $o%opera!"e -ank !d. . $o%opera!"e
Ar*"!ra!"on $our! %200+ %*, (LT 8+0, has considered the
ro#isions of the 1)
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under 3ection
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8*
within the ur+iew of disutes which are to be decided by the
Cooerati+e /rbitration Court in terms of ,.-(*) of the /ct.0
The learned 3ingle Judge also d/elled uon the deeming
ro#ision of 3ection
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fiction has to be carried to its logical conclusion" sub7ect only to
the inhibition that such fiction should not be extended beyond its
legitimate field. The mode in which the deeming ro+ision is used
in ,.- is only to gi+e full lay to the fiction and the ob7ect of its
creation" namely" the exclusi+e conferment of authority with the
Cooerati+e /rbitration Courts or /rbitrators" as the case may be"
to decide the disutes.
&. :ot only that" the words relied on" on behalf of the etitioners"
only further enlarge the scoe of the term >disute>. /ll that is
ro+ided is that any disute as to romotion and inter se seniority
would also fall within the scoe of the term >disute> for the
urose of ,.-(*). There aears to be a reason for such an
inclusion. / lain reading of ,.-(*)(c) may generate an argument
that disutes between officers or emloyees or between ast
officers or ast emloyees of a ,ociety are not disutes which fall
within the swee of that ro+ision" though disutes between
officers or emloyees of a ,ociety are intricately connected with
the affairs of the ,ociety and matters touching its business and
therefore that could fall within ,.-(*)(c) of the /ct. The inclusion
of the words >including their romotion and inter se seniority> as
the last limb of ,.-()(d) only clarifies the osition that
notwithstanding any +agueness that may be ointed out in that
regard in ,.-(*)(c)" such disutes also fall within the ur+iew of
that ro+ision.:
Against the abo#e 6udgment of the learned 3ingle Judge! the
Ban; filed W.A. >o.2058 of 200+ %-oard of "re(!or+,
Fdaa 'er"(e $o%opera!"e -ank !d. . The $o%
opera!"e Ar*"!ra!"on $our! and
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Bench by its 6udgment dated 0).0
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emloyment. The abo+e words were not meant to be exhausti+e
or restricti+e" but only exlain what is already included. ,o" the
decision of the /ex Court relied on by the aellants has no
alication" whatsoe+er" to the facts of this case. oing by the
lain meaning of the abo+e quoted ro+ision" it can be safely
concluded that all disutes concerning denial of emloyment"
remo+al from ser+ice" dismissal from ser+ice" etc." will be
disutes which could be ad7udicated by the Co3oerati+e
/rbitration Court. /ny other interretation will not do 7ustice to the
scheme of the /ct. The 7urisdiction secifically conferred by the
legislature cannot be ta2en away by this Court" by underta2ing an
exercise of interretation. ,o" we agree with the reasons and
conclusions of the learned ,ingle ?udge.0
50. We ha#e already noticed abo#e that the "i#ision
Bench of this ourt in Thodupuzha Taluk General
arke!"n# $o%opera!"e 'o("e!) . "(hael 'e*a+!"an
and A.. Na#ar 'er"(e $o%opera!"e -ank . '!a!e of
3erala %sura, has held that the 6urisdiction of the Labour
ourt and ooerati#e Arbitration ourt is concurrent e#en
after the amendment made by Act 1 of 2000.
51. T/o more decisions need to be noted in this
conte$t. 7n $heranallur 'er"(e $o%opera!"e -ank !d.
. The '!a!e of 3erala and
the learned 3ingle Judge after noticing the ro#isions of
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3ection
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disute. That aart" as held by this Court in /.4.:agar ,er+ice Co
3 oerati+e an2 +. ,tate of #erala (sura) and ThoduuIha Talu2
eneral @ar2eting Co 3 oerati+e ,ociety +. @ichael ,ebastian
(sura) in the case of emloyees who are go+erned by the
$ndustrial %isutes /ct" the 7urisdiction is concurrent. $f the !abour
Court or the $ndustrial Tribunal constituted under the $ndustrial
%isutes /ct can order reinstatement in ser+ice of a wor2man who
is go+erned by the $ndustrial %isutes /ct" $ find nothing wrong in
the Co 3 oerati+e /rbitration Court directing reinstatement in
ser+ice. That aart" under ,.* of the /ct" the 7urisdiction of a
ci+il or 4e+enue Court is barred only in resect of any matter for
which any ro+ision is made in the /ct. ,.- of the /ct ma2es a
ro+ision for ad7udication of disutes in connection with
emloyment of officers and ser+ants of the different classes of co 3
oerati+e societies" which as held by this Court would ta2e in
disutes arising under discilinary roceedings also. Therefore"
merely because ,.* bars the 7urisdiction of a Ci+il Court in
resect of matters for which ro+ision has been made in the /ct" it
cannot be said that the Co 3 oerati+e /rbitration Court could not
ha+e entertained the disute. $n the absence of a challenge by the
etitioner to the constitutional +alidity of sub3section () of ,.- of
the /ct" the contention that the Co 3 oerati+e /rbitration Court
cannot order reinstatement" is liable to be re7ected.0
The learned 3ingle Judge also re6ected the contention that the
ooerati#e Arbitration ourt cannot order reinstatement.
The abo#e decision of the learned 3ingle Judge /as
challenged in W.A. >o.1+1+ of 2012 %$heranallur 'er"(e
$o%opera!"e -ank !d. . The '!a!e of 3erala and
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8)
6udgment in A..Na#ar 'er"(e $o%opera!"e -ank .
'!a!e of 3erala and Thodupuzha Taluk General
arke!"n# $o%opera!"e 'o("e!) . "(hael 'e*a+!"an
%sura,. Thus almost all the 6udgments of this ourt
interreting 3ection
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resondent. The 4th resondent initiated roceedings under
3ection
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+1
: The -ull Bench further held that it is beyond the disute
that no rules or byela/s regulating seniority and
romotion as bet/een the aellant and the 4th resondent
ha#e been framed and in the absence of such rules and
byela/s disute as to seniority or romotion cannot be
entertained or made sub6ect to litigation in ci#il court. The
-ull Bench thus oined that the matter /as not cogniCable by
the @egistrar under 3ection establishments> in the definition of the word
>disute>" which we ha+e extracted earlier. $n so finding the
learned ?udge has lost sight of the imortant rincile stated by
the decisions to which we ha+e 7ust made reference" that the
7urisdiction of the 4egistrar is co3terminous with the 7urisdiction of
the ordinary ci+il courts. $t is beyond disute that no rules or bye3
laws regulating seniority and romotion as between the aellant
and the th resondent" or in resect of the emloyees of the Co3
oerati+e ,ociety ha+e been framed. $n the absence of such
rules" regulations or bye3laws" a disute as to seniority or
romotion cannot be entertained or made the sub7ect of litigation
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in a ci+il court. The ro+isions of ,.*(*)(b) of the ,ecific 4elief
/ct and the inability to grant the relief of reinstatement would
exclude them from the ur+iew of the ordinary ci+il courts" as
stated in the decision already noticed. Ex hyothesi such a
disute cannot be a sub7ect matter of arbitration by the 4egistrar.0
As noted abo#e! the -ull Bench came to the abo#e
conclusion on the remise that no rules or byela/s
regulating seniority or romotion ha#e been framed and in
the absence of such rules or byela/s disutes regarding
seniority or romotion cannot be entertained or made
sub6ect to litigation in ci#il court. The abo#e /as the basis for
holding by the -ull Bench that the disute /as not co#ered
by 3ection
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+*
the establishment of a Co3oerati+e ,ociety may" for good and
sufficient reasons" be unished by imosing any of the following
enalties" namely
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+4
obser#ations as noted abo#e and the -ull Bench cannot be
held to lay do/n any ratio to the effect that the disute
ertaining to ser#ice matters of the emloyees cannot be
made sub6ect matter of disutes under 3ection e$t -ull Bench 6udgment /hich need to be noted
is the 6udgment in ..'herl) . The re+"den!,
arappura/ "lk rodu(er+ $o%opera!"e 'o("e!) !d.
%2008 &1' (LT +0),. 7n the abo#e case discilinary
roceedings against emloyees of the ooerati#e 3ociety
/as initiated. The @egistrar e$ercised his o/er under @ule
18< of the @ules. uestion arose as to /hether it is oen to
the aggrie#ed emloyee to ta;e recourse to the remedy
a#ailable under the 1)48 Act. uestion has been osed by
the -ull Bench itself in aragrah 1 /hich is to the follo/ing
effect
“*. $n the matter of discilinary roceedings against an
emloyee of a cooerati+e society registered under the ro+isions
of the #erala Cooerati+e ,ocieties /ct" *-" (hereinafter
referred to as >the #C, /ct>) once the 4egistrar exercises his
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+5
ower under 4.*&- of the #erala Cooerati+e ,ocieties 4ules"
*- (hereinafter referred to as >the #C, 4ules>)" is it oen to the
aggrie+ed emloyee to ta2e recourse to the remedies under the
$ndustrial %isutes /ct" *& (hereinafter referred to as >the $.%.
/ct>) is essentially the question referred to the Aull ench. To ose
a general question" is an emloyee sub7ected to discilinary
roceedings entitled to ha+e his grie+ance ad7udicated before an
authority" Aorum" Tribunal or Court" which is indeendent of the
executi+eJ0
89& 7n the abo#e case 3tate o#ernment made
reference of the disute for ad6udication before the 7ndustrial
Tribunal. The Tribunal assed an order setting aside the
dismissal order against /hich the /rit etition /as filed by
the 3ociety. The learned 3ingle Judge held that relief ha#ing
been obtained by an ad#erse decision at the hands of "euty
"irector on his statutory etition under @ule 18< of the 1)o relief /as granted to the emloyee against
/hich 6udgment aeal /as filed by the emloyee! /hich
came to be decided by -ull Bench. The -ull Bench obser#ed
that disute in connection /ith ser#ice of an emloyee /as
not an item enumerated under 3ection
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+<
after setting u the ooerati#e Arbitration ourt /hich /as
introduced by Act 1 of 2000. The -ull Bench held that an
emloyee sub6ected to discilinary action has right to raise
grie#ance before an indeendent -orum %a -orum! Tribunal!
Labour ourt! etc, ha#ing the traings of the ourt after he
has e$hausted the deartmental remedies. The -ull Bench in
aragrah 1* has laid do/n as follo/s
“*9. /n emloyee sub7ected to a discilinary action has right
to ha+e his grie+ance ad7udicated before an indeendent Aorum (a
Aorum" Tribunal" !abour Court etc.) ha+ing the traings of a Court
after he has exhausted the deartmental remedies. $n the instant
case" the emloyee did not get an oortunity before the Co3
oerati+e /rbitration Court since the same had not been notified and
hence the reference of the disute by the o+ernment before the
industrial Tribunal is certainly +alid. The decision of the %euty
%irector cannot stand in her way. The wor2er must be conceded
right to raise an industrial disute contending that her dismissal
affirmed by the managing committee and the %euty %irector is bad
in law. =owe+er" we may clarify the legal osition that if the remedy
under the statute is before a forum a2in to Court" which is bound to
follow 7udicial rocedure and its decision is made final by the statute"
the osition would be different.0
88& The -ull Bench in the abo#e case too; the #ie/
that since the ooerati#e Arbitration ourt has not been
notified! reference of the disute by o#ernment before the
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+8
Tribunal is #alid. Io/e#er! the -ull Bench clarified the legal
osition that if remedy under the 3tatute is before a -orum
a;in to ourt /hich is bound to follo/ 6udicial rocedure and
its decision is made final by the 3tatute! the osition /ould
be different.: 7n the abo#e 6udgment -ull Bench made the
follo/ing obser#ations %i, disute /ith emloyees officers
and ser#ant /as not enumerated as a disute under 3ection
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++
disute as held abo#e. Thus the obser#ation of -ull Bench
that 1)
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+)
3ocieties by o#ernment. 7t /as contended that the o/er
under the Act emo/ers the o#ernment to ma;e
aointment of a erson not ha#ing education in la/ for
discharging the 6udicial function /hich /as imermissible.
Dnder the F.. ooerati#e 3ocieties Act 1)
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)0
emloyment of a society or the liquidation of the society.0
8& The la/ laid do/n by the Ae$ ourt as abo#e
clearly ro#es that the @egistrar! rior to the amendment of
3ection
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)1
that cannot be a ground for 6ustifying reference of disute to
the Labour ourt under the 1)48 Act.
58. Whether the amendment incororated under sub
section %2, of 3ection
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)2
$oun("l &1)52 A 10)'. -ollo/ing obser#ations /ere made
by Lord As=uith
“$f you are bidden to treat an imaginary state of affairs as
real" you must surely" unless rohibited from doing so" also imagine
as real the consequences and incidents which" if the utati+e state of
affairs had in fact existed" must ine+itably ha+e flowed from or
accomanied it. Gne of these in this case is emanciation from the
*9 le+el of rents. The statute says that you must imagine a
certain state of affairs; it does not say that ha+ing done so" you must
cause or ermit your imagination to boggle when it comes to the
ine+itable corrollaries of that state of affairs.0
80& The Ae$ ourt in '!a!e of -o/*a) .
anduran# D"na)ak and o!her+ &A7@ 1)5* 3 244' has
=uoted the abo#e obser#ation of Iouse of Lords /ith
aro#al. 7t /as held by the 3ureme ourt that /hen a
statute enacts something shall be deemed to ha#e been
done /hich in fact /as not done! the court is entitled and
bound to ascertain for /hat urose the fiction is to be
resorted to and full effect must be gi#en to the statutory
fiction. -ollo/ing /as laid do/n by the Ae$ ourt in
aragrah 5
“5. xx xx xx
Dhen a statute enacts that something shall be deemed to
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)*
ha+e been done" which in fact and truth was not done" the Court is
entitled and bound to ascertain for what uroses and between
what ersons the statutory fiction is to be resorted to and full effect
must be gi+en to the statutory fiction and it should be carried to its
logical conclusion.0
8!& Thus the urose and ob6ect for /hich the legal
fiction has been created has to be ascertained to gi#e full
meaning to the legal fiction. 3ection
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)4
ertaining to ser#ice matters of the emloyee shall not fall
under 3ection
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)5
emloyees of the Ban; had made an alication under
3ection
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that “the general /ct should lead to the secial /ct0. 8on this
general rincile of law" the intention of the 8.P. !egislature is clear"
that the secial enactment 8.P. Co3oerati+e ,ocieties /ct" *-5
alone should aly in the matter of emloyment by co3oerati+e
societies to the exclusion of all other labour laws. $t is a comlete
code in itself as regards emloyment in cooerati+e societies and its
machinery and ro+isions. The general /ct" the 8.P. $ndustrial
%isutes /ct" *& as a whole has and can ha+e no alicability and
stands excluded after the enforcement of the 8.P. Cooerati+e
,ocieties /ct. This is also clear from necessary imlication that the
legislature could not ha+e intended head-on conflict and collision
between authorities under different /cts. Kx xx xx0
,& 7n the D..ooerati#e 3ocieties Act! 3ection 80
ro#ides for the "isutes /hich may be referred to
arbitration and 3ection 81 ro#ides for reference of disute
to the Arbitration. There /as a secific ro#ision under the
D.. ooerati#e 3ocieties Act! 1)
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)8
had not been brought into force /hich fact has been
secifically noted by the 3ureme ourt in aragrah 42
/hich is =uoted as follo/s
“. The learned ,enior Counsel submitted that the
legislature has secifically ro+ided in the ro+isions of the 8.P.
Cooerati+e ,ocieties /ct itself that the labour laws will aly to the
emloyees of the cooerati+e societies" in 4egulation *9 and in
non3enforcement of ,ection *95. The fact that ,ection *95 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 aly. $n this case" there is a fact that an
exclusion howe+er under ,ection *95 has not been brought into
force.0
-& The =uestion /hich arose for consideration before
the Ae$ ourt /as as to /hether the alication filed by the
emloyee under 3ection
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/as null and #oid. -ollo/ing /as held by the Ae$ ourt in
aragrahs
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))
followed in gi+ing to the ro+isions of the 4eco+ery of %ebts due to
an2s and Ainancial $nstitutions /ct *9 (4% /ct) o+erriding
effect o+er the ro+isions of the Comanies /ct" *5-. The 4% /ct
constitutes a tribunal and by ,s.*& and *6 confers uon the tribunal
exclusi+e 7urisdiction to entertain and decide alications from the
ban2s and financial institutions for reco+ery of debts (defined to
mean any liability which is claimed as due). The /ct also lays down
the rocedure for reco+ery of the debt as er the certificate issued
by the tribunal. The ro+isions of the 4% /ct" which is a secial
/ct" were held to re+ail o+er ,s." -" 59& and other sections
of the Comanies /ct which is a general /ct" more so because ,.9
of the 4% /ct gi+es o+er riding effect to that /ct by ro+iding that
the ro+isions of this /ct shall ha+e effect notwithstanding anything
inconsistent therewith contained in any other law for the time being
in force.
-5. De are therefore of the +iew that the /sst. !abour
Commissioner (/!C)>s 7urisdiction was wrongly in+o2ed and his
order dated *5.9.9 under ,.-=" 8.P. $ndustrial %isutes /ct"
*& is without 7urisdiction and hence null and +oid and it can be
obser+ed that" in +iew of the said general legal rincile" it is
immaterial whether or not the go+ernment has enforced section*95
(8PC, /ct) because" in any case the said ro+ision (,.*95) had
been included in the /ct only by way of clarification and abundant
caution.0
The Ae$ ourt in the abo#e 6udgment held that the
ro#ision of 3ection 1*5 has been included in the Act only by
/ay of clarification and abundant caution. 7n the resent
case the ro#ision of 3ection
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100
/ay of abundant caution and by /ay of clarification. The
abo#e 6udgment of the Ae$ ourt clearly reinforces our #ie/
that ro#isions of 3ection
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that ser#ices of the emloyee /as a matter falling under
3ection
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W.A. No+.2516 of 2009, 764 of 2010 & 184 of 2010
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. Counsel is well suorted in his contention that if the
sub7ect3matter of the disute before the nd resondent is one falling
within the term >disute> as defined in ,.(i) and within ,.- of the
/ct and therefore within the cometence of the 4egistrar to decide"
this ro+isions must re+ail o+er the ro+isions in the $ndustrial
%isutes /ct which ro+ides for the settlement of disutes such as
that are referable to the $ndustrial Tribunals or !abour Courts. $t is
unnecessary to cite authorities for this roosition" but we may as
well refer to a assage from the decision of the ,ureme Court in
C&:&(e+at!;e Ce3t+a4 Ba31 Ltd. A3d &te+" et9. Add!t!&3a4
I3d2"t+!a4 T+!*23a4, A3d+a 7+ade", H%de+a*ad a3d &te+" et9.
reorted in /$4 *& ,C 5<
“The general roosition urged that the 7urisdiction of
the $ndustrial Tribunal under the $ndustrial %isutes /ct will
be barred if the disutes in question can be cometently
decided by the 4egistrar under ,.-* of the /ct is" therefore"
correct and has to be acceted.0
8& The "i#ision Bench ho/e#er! held that the real
=uestion is not /hether the disute is one touching the
business of the 3ociety or its management or establishment!
but /hether it is a disute to be decided by the @egistrar.
The "i#ision Bench held in aragrahs
ortion, as follo/s
“-. The real question is not whether the disute is one
touching the business of a society or its management or
establishment but whether it is a disute within the cometence of
the 4egistrar to decide.
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&. The same +iew has been exressed by the ,ureme
Court in the decision in De99a3 )e+9a3t" C&:&(e+at!;e Ba31 Ltd.
. M". Da4!9a3d J2>+a@ Ja!3 a3d &te+" reorted in /$4 *- ,C
*9. =a+ing referred to the matter as to whether the disute was
one touching the business of the ,ociety" their !ordshis obser+ed<
“Aurther the word >disute> co+ers o