ARUN Tandon, J. - (1.) Zila Sahkari Federation Ltd. Bulandshahr has filed this present writ petition against the award of the Labour Court dated 1-11-1988 in Adjudication Case No. 190 of 1985 under Section 4-K of the U. P. Industrial Disputes Act, holding therein that the termination of the services of the workman, Atul Chand Tyagi vide order dated 23-11-1984 tantamount to retrenchment, the provisions of Section 6-N of the U. P. Industrial Disputes Act have not been followed, retrenchment was bad and as such workman was entitled to reinstate with full back wages alongwith continuity of services and all other benefits.
(2.) I have heard Sri Satish Chaturvedi, learned Counsel for the petitioner, Sri Y. K. Sinha, learned Counsel for the respondent workman and the learned Standing Counsel for the respondent No. 1. The foremost ground for challenging the award of the Labour Court as contended on behalf of the petitioner is that the dispute as referred for adjudication before the Labour Court, was not maintainable. The Co-operative Societies Act provides for statutory terms and conditions for employment of employees including disciplinary action, it is a special act, therefore, excludes the provisions of General Act namely, U. P. Industrial Disputes Act. The Co-operative Societies Act and Rules and Regulations framed there under, where a complete Code in itself thereby excludes the reference of dispute under the Industrial Disputes Act by implication. In support of the said contention. The petitioner has relied upon the judgments of this Court reported in 2003 (2) LBESR 640 (All) : 2003 ESC (Alld.) V-2, 1952; M/s. Kishan Seva Saharkari Samiti Ltd. Kushi Nagar v. Presiding Officer, Labour Court, U. P. at Gorakhpur and others, 2003 (1) LBESR 1115 (All) : 2003 (97) FLR 851, M/s. Handloom and Textile Co-operative Societies, Kanpur v. Mithlesh Kumar Tiwari and another as well the judgment of this Court reported in 1999, FLR V-82, 260 Nagar Palika, Dehradun & another v. The State of U. P. and another. The aforesaid three judgments of the Hon'ble Single Judges of this Court have placed reliance upon two judgments of the Hon'ble Supreme Court reported in 1997, SCC V-5, 125, R. C. Tiwari v. M. P. State Co- operative Marketing Federation Ltd. & Ors and 1997, FLR V. 76, 237; Himanshu Kr. Vidayarthi v. The State of Bihar. It is stated on behalf of the respondent workman that the three judgments of this Court referred to above in the cases of Kisan Seva Sahakari Samiti Ltd. Handloom and Textile Co-operative Society and Nagar Palika, Dehradun (supra) have not been notice of the earlier judgments of the Hon'ble Supreme Court reported in AIR 1979 SC 1203, The Gujarat State Co-operative Land Development Bank Ltd. v. P. R. Mankad and another and AIR 1984, SC 286, Jai Bhagwan v. Management of the Ambala Central Co- operative Bank Ltd. and another, as well as the Division Bench, judgment of this Court reported in 2000 (3) LBESR 721 (All) : 1997 FLR V-75 370, M/s. Sahkari Ganna Vikas Samiti Ltd. Basti v. The Presiding Officer, Shram Nayayalaya, Gorakhpur and others. The provisions of Section 6r (2) of the U. P. Industrial Disputes Act have also not been noticed in the three judgments. Consequently, the said three judgments of the Hon'ble Single Judges of this Court do not lay down the correct legal position, this Court is bound by the judgments of the Hon'ble Supreme Court as well as the judgments of the Division Bench of this Court wherein it has been held that the remedy made available to the workman under the Industrial Disputes Act is statutory remedy which can only be excluded by express provisions of a statute. There is no basis to deny to the workman, the statute recognized mode of redress of his grievance. Thus, the issue, is whether, a dispute raised by the workman, who was an employee of a Co-operative Society which is duly incorporated under the provisions of the Co-operative Societies Act and answered the descriptions of an industry within the meaning of Section 2 (z) of U. P. Industrial Disputes Act is legally maintainable before the labour Court or else the jurisdiction of the Labour Court stands excluded in view of the statutory provisions of the Co-operative Societies Act, Rules and Regulations of services framed thereunder.
(3.) THE statutory provisions of the Co-operative Societies Act, which have bearing on the controversy reads as follows: "section 70 - Disputes which may be referred to arbitration.- (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a Co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises: (a) among members, past members and person claiming through members, past members and deceased members; or (b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee management or any officer, agent or employee of the society, including any past officer, agent, or deceased employee of the society; or (c) between the society or its committee any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or (d) between a co-operative society and any other co-operative society or societies; such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any such dispute: (2) For the the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely (a) claims for amounts due when a demand for payment is and is either refused or not complied with whether such claims are admitted or not by the opposite party; (b) a claim by a surety against the principal debtor where the society has recovered from the surety and amount in respect of any debt or demand due to it from the principal debtor, whether such debt or demand is admitted or not; (c) all matter relating to the objects of the society mentioned in the bye-laws as also those relating to the election of officer-bearers. (3) If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution. Management or the business of a co-operative society, the decision thereon of the registrar shall be final and shall not be called in question in any Court. Section 122. Authority to control employees of co-operative societies.- (1) The State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of co-operative societies, or a class of co-operative societies, and may require such authority or authorities to frame regulations regarding recruitment, emoluments, terns and conditions of service including disciplinary control of such employees and, subject to the provisions contained in Section 70, settlement of disputes between an employer of a co- operative society and the society. Section 128. Registrar's power to annul resolution of a co-operative society or cancel order passed by an officer of a co-operative society in certain cases.- (i) annul any resolution passed by the Committee of Management or the general body of any co-operative society; or (ii) cancel any order passed by an officer of a co-operative society, if he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the bye-laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society: [provided that the Registrar shall, before making any order, require the Committee of Management, general body of officer of the co-operative society or reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall not be less than fifteen days, and if he deems fit may stay the operation of that resolution or the order during such period. Section 135. Certain Acts not to apply to Co-operative societies.-The provisions contained in the Industrial Disputes Act, 1947 (Act XIV of 1947) and he U. P. Industrial Disputes Act, 1947 (U. P. Act XVIII of 1947), shall not apply to co-operative Societies. In exercise of power under Section 122 of U. P. Co-operative Societies Act with the approval of the State Government and after publication in the gazette U. P. Co-operative Societies Employees Services Regulation, 1975 have been framed the relevant in respect of the controversy in hand read as follows: Regulation 19. Termination.-Services of an employee shall be terminable: (a) In case of a temporary employee, on one month's notice in writing on either side, or in lieu thereof by payment of one month's salary by the party which gives notice: Provided that in case of direct appointments made for a specific period it shall not be necessary to given any notice or any pay in lieu thereof. Explanation.-Specified period, means stated period of less than six months (b) by three months, notice in writing on either side in case of a confirmed employee. Explanation.- (1) A notice given by an employee under Regulation No. 19 shall be deemed to be proper only if he remains on duty during the period of the notice. Provided that the employee may be allowed on request to avail such portion of earned leave as may be due to him which shall however, not exceed the notice period. (2) The expression 'month' used in this regulations shall be a period of thirty days commencing on the date immediately following the date on which the notice is received by the employee of the appointing authority, as the case may be. Regulation 29. Rerenchment.- (i) a Co-operative society may, subject to the approval of the Registrar, retrench its employee if the business of the society has either shrunk or the concerned post or posts are to be reduced to effect economy: Provided that compensation where required under the Industrial Disputes Act, 1947, is paid to the employees. (ii) In making Rerenchment the policy shall be to retrench the junior most employee of the grade. Regulation 84. Penalties.- (i) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by any one of the following penalties: (a) censure, (b) withholding of increment, (c) fine on an employee of Category IV (Peon, Choukidar, etc.), (d) recovery from pay or security despite to compensate in whole or in part for any pecuniary loss caused to the co-operative society by the employee's conduct, (e) reduction in rank or grades held substantively by the employee, (f) removal from service, or (g) dismissal from service. Regulation 86. Appeal.-Orders imposing penalty under sub-clauses (a) to (d) of clause (1) of Regulation No. 84 shall be appealable to the authorities as mentioned in Appendix 'd'. Regulation 87. Order imposing penalty under sub-clauses (e) to (g) of clause (1) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board. Regulation 103 - The provisions of these regulations to the extent of their inconsistency, with any of the provisions of the Industrial Disputes Act, 1947, U. P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, Workmen's Compensation Act, 1923 and any other Labour laws for the time being in force, if applicable to any co-operative society or class of co-operative societies, shall be deemed to be inoperative. The provisions of the U. P. Industrial Disputes Act, which have bearing on the controversy in hand read as follows: Section 2 (s) 'retrenchment' means the termination by the employer of the service of a workman or any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include: (i) voluntary retirement of the workman; or (ii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf; Section 4-K Reference of disputes to Labour Court or Tribunal.-Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication as the case may be, shall have full power to determine by an to whom and to what extent and subject to what condition, if any, such costs are to be paid, and to give all necessary directions for the purpose aforesaid and such costs may, on application made to the State Government by the person entitled be recovered by the State Government in the same manner as an arrear of land revenue. Section 6. Awards and action to be taken thereon.- (1) Where an industrial dispute has referred to a Labour Court of Tribunal for adjudication, it shall hold its proceedings expeditiously and shall as soon as it is practicable on the conclusion thereof, submit its award to the State Government. (2) The award of a Labour Court or Tribunal shall be in writing and shall signed by its Presiding Officer. (2-A) An award in an industrial dispute relating to the discharge or dismissed of a workman may direct the setting aside of the discharge or dismissal and reinstatement of the workman on such terms and conditions if any, as the authority making the award may think fit, or granting such other relief to the workman, including the substitution of any lesser punishment for discharge or dismissal, as the circumstances of the case may require. (3) Subject to the provisions of sub-section (4) every arbitration award and the award of a Labour Court or Tribunal, shall, within a period of thirty days from the date of its receipt by the State Government be published in such manner as the State Government thinks fit. Section-6-N. Conditions precedent to retrenchment of workman.-No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by the employer until. (a) the workman has been given one month's notice in writing indication the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice: Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service: 0 (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months, and (c) notice in the prescribed manner is served on the State Government. Section-6-R: - Effect of laws inconsistent with Sections 6-J to 6-Q.- (1) The provision from Sections 6-J to 6-Q shall have effect notwithstanding anything inconsistent therewith contained in any other law (including Standing Orders) made under the Industrial Employment (Standing Orders) Act, 1946: Provided that nothing contained in this Act shall have effect to derogate from any right which a workman has under the Minimum Wages Act, 1948, or any notification or order issued there under or any award for the time being in operation or any contract with the employer. (2) For the removal of doubts, it is hereby declared that nothing contained in Sections 6-J to 6-Q shall be deemed of affect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial disputes but the rights and liabilities of employer and workman in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of Sections 6-J to 6-Q.;