Tarun Agarwala - (1.) -Respondent's No. 1 father died-in-harness and, accordingly, the respondent No. 1 was appointed on compassionate ground as a driver on a permanent vacant post. Instead of paying the regular wages of a driver, the workman was being paid a fixed salary. The workman raised a demand for the payment of regular salary which was not considered by the employers. Consequently, he filed an application under Section 33C (2) of the Industrial Disputes Act and, the labour court, after considering the matter, awarded a sum of Rs. 55,102.88 towards the difference of wages. A review application was filed by the employer which was also rejected and eventually when a recovery certificate was issued, the employers, after paying the said amount to the workman also terminated his services on 2.7.1997. This led to an Industrial Dispute which was referred to the labour court under Section 4K of the Act for adjudication. The terms of the reference order was whether the employers were justified in not giving the workman the wages and other benefits on the post of driver w.e.f. 12.6.1997 and whether the employers were justified in terminating the services of the workmen w.e.f. 2.7.1997.
(2.) THE petitioner is a Co-operative Society and submitted before the labour court that it had no jurisdiction to decide the dispute since the provisions of U. P. Industrial Disputes Act was not applicable to a Cooperative Society. THE employees of a Cooperative Society were governed by the provisions of U. P. Cooperative Societies Act, 1965, which is a complete code in itself and that, the provisions of U. P. Industrial Disputes Act was not applicable to the Cooperative Society. THE labour court in its award specifically overruled objection of the petitioner relying upon a decision of this Court in Agra District Cooperative Bank Limited, Agra v. Presiding Officer, Labour Court, Agra, 1998 (80) FLR 40 : 1998 (3) AWC 1898, in which it was held that in view of Section 135 of the U. P. Cooperative Societies Act, the provisions of the U. P. Industrial Disputes Act was applicable in respect of a dispute arising out of Cooperative Societies Act relating to its employee. In the present case, the labour court, on merits, found that the workman was working as a driver in a permanent capacity on a permanent post, but was only being paid the wages of a daily rated worker and that the employers had adopted an unfair labour practice in not providing the workman the regular wages which the workman was entitled to. THE labour court further found that since the claim of the workman under Section 33C (2) was allowed, the employers illegally terminated the services of the workman without complying with the provisions of Section 6N of the U. P. Industrial Disputes Act inspite of the workman having worked for more than 240 days in a calendar year. The petitioner, being aggrieved by the aforesaid award has filed the instant writ petition. Heard Sri Dhananjay Awasthi, the learned counsel for the petitioner and Sri Avanish Misra, the learned counsel for the respondent-workman. The learned counsel for the petitioner has only urged that the petitioner is a Cooperative Society and is governed by the provisions of the Cooperative Societies Act, 1965. The service conditions of the employees of the petitioner are governed by the U. P. Cooperative Societies Employees Service Regulations, 1975 which has been framed under Section 122 of the U. P. Cooperative Societies Act. 1965, which has a full fledged mechanism to consider and redress the grievance of an employee of a Cooperative Society. The learned counsel for the petitioner submitted that the provisions of U. P. Industrial Disputes Act are not applicable to the employees of the petitioner's Society and therefore, the State Government had committed an error in referring the dispute for adjudication before the labour court. Consequently, the award of the labour court was void and was liable to be quashed. In support of his submission, the learned counsel for the petitioner has place reliance upon a decision of this Court in Ghazipur Zila Sahkari Sangh Ltd. v. Industrial Tribunal (1), U. P. at Allahabad and another, 2003 (3) ESC 1518 : 2003 (4) AWC 2647 and a decision of the Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd. v. Additional Labour Commissioner, 2007 (2) ADJ 25 : 2007 (2) AWC 1974 (SC).
(3.) ON the other hand, the learned counsel for the respondents submitted that the decision of the Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd. (supra) is per incurium and that the Supreme Court in its decision had not considered its earlier judgments. Consequently, the said judgment is not binding upon the High Court. The learned counsel for the respondents further submitted that the Supreme Court in the aforesaid judgment had not considered the impact of Regulation 103 of the U. P. Cooperative Societies Employee Regulations, 1975. The learned counsel further submitted that the Supreme Court in the aforesaid decision had not taken into consideration its earlier decision in the case of Gujarat Co-operative Land Development Bank v. P. R. Mankand, AIR 1979 SC 1203, and in the matter of Life Insurance Corporation of India v. D. J. Bahadur and others, AIR 1980 SC 2181 and in the case of Jai Bhagwan v. Management of the Ambala Central Cooperative Bank Ltd. and another, AIR 1984 SC 286. In order to appreciate the question as to whether a dispute of an employee working in a Cooperative Society could be referred for adjudication before a labour court or a Tribunal under the U. P. Industrial Disputes Act, it would be necessary to consider a few provisions of the Cooperative Societies Act (hereinafter referred to as the Act of 1965). The Act of 1965 provides for the registration of the Cooperative Societies. Section 122 of the Act provides that 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 the Cooperative Societies and may require such authority or authorities to frame regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employee. In exercise of the powers contained under Section 122 of the Act, the State Government framed U. P. Cooperative Societies Employees Service Regulations, 1975 (hereinafter referred to as the Regulations) for the recruitment, appointment, probation, confirmation, termination and retrenchment of the employees of the Cooperative Societies.;