S.K. Mukherjee, J. - (1.) This application was directed to be disposed of as a contested application on prayers being made by parties.
(2.) In this application, the petitioners have challenged the Government notification bearing no, 4801-COOP/D78 18/82 dated 11.11.83, which is Annexure 'D' to the writ, application. By the said notification, the Deputy Secretary of the Department of Cooperation, Government of West Bengal, communicated the decision of the Governor, made in exercise of power under sub-section 5 of Section 39 of the West Bengal Co-operative Societies Act, inter aha not to allow the Central Co-operative Banks and Primary Land Development Banks, incurring financial losses or having accumulated losses of the past, arid receiving assistance from the State Government, to increase their establishment costs by way of granting additional financial benefit either in the shape of variable dearness allowance or enhanced pay scale or both to its employees without the approval of the State Government. It was further embodied in the said notification, that proposal for enhancing Dearness. Allowance for the stall was to be submitted to the State Government through the Registrar of Co-operative Societies West Bengal for approval. The side notification was issued hi supersession of all previous orders and notifications. The petitioners case is that on the basts of the said notification the respondent Bank has stopped payment of the variable dearness allowance even on the basis of the rate accepted by the Managing Committee after taking into consideration the price index. It may be noted at this stage that though the reliefs were prayed for in the petition, at the stage of arguments, relief relating to V.D.A alone was pressed. The petitioners have contended that the Government has no power to issue such directive in terms of Section 39(5) of the West Bengal Cooperative Societies Act Secondly, it has been contended on behalf of the petitioners that there is a pending industrial dispute, where one of the issues is payment of such variable Dearness Allowance received by the petitioners since 1973 and pending such industrial dispute, the respondents, the Bank Authorities, have no power to discontinue such payment, without obtaining necessary approval from the authority under the Industrial Disputes Act. The petitioners, in this connection, have referred to and relied upon the provisions of Section 33 of the Industrial Disputes Act. It is contended on behalf of the petitioners that clause 4 of Appendix to Chapter IV of the W.B Co-operative Societies Rules does not apply to the instant case unless there is an alteration of the scale or the rate of variable Dearness Allowance but whatever alteration of the amount has occurred, has been due to variation in the price index, which alteration is not Covered by the provisions of the said clause 4 of Appendix to Chapter IV. It has also been urged, on behalf of the petitioners, that the Management of the Society, even assuming but not admitting that clause 4 of Appendix to Chapter IV does apply to the facts of the present case, has not taken any step for obtaining the approval of the Registrar, in terms of the said Clause but has stopped the payment on their own-an action which does not show its bona fides Lastly, it has been argued on behalf the petitioners that the power to vary the decision about payment of variable Dearness Allowance vests in the Managing Committee alone and the Executive Officer has no right to effect such variation or refuse, to pay in terms of the regulation of the Managing Committee.
(3.) Mr. A.P. Chatterjee, Learned Senior Standing Counsel, appealing for respondents 5 to 7, has contended, in the first place that in view of the principles land down in AIR 7977 SC 113 no writ is maintainable against the Co-operative Society and accordingly the application itself is liable to be thrown out in limine Secondly, it has been argued by Mr. Chatterjee that clause 4 of Appendix to Chapter IV of the West Bengal Co-operative Societies Rules is a specific bar to payment of such variable D.A. which would result in increase of expenditure for the Co-operative Society, without approval of the Registrar. Therefore, at best, according to Mr. Chatterjee, the matter may be referred to the Registrar but without the necessary approval, the petitioners hive no right to claim any writ against the Co-operative Society for making payment of such variable D.A. In this Connection it has been contended by Mr. Chatterjee that the term 'scale of' does not relate to pay alone but to allowances also. If there is any ambiguity on that question, Mr. Chatterjee submits, the construction of the said Clause should be made keeping in view the purpose and object of the whole Act and no construction of the said Clause should be made which would prejudicially affect the interest of the Co-operative movement.;