Hon'ble Pradeep Kumar Singh Baghel,J All the batch of the Petitions involves similar question of law. The Writ Petitions arise from different areas, though marginally facts are different but raise substantially similar issue of law. They can be disposed of by a common judgment.
Civil Misc. Writ Petition No. 49561 of 2002 (Brahmawarta Commercial Cooperative Bank Ltd.,Kanpur vs. Presiding Officer, Industrial Tribunal III, U.P. Kanpur, is a lead petition.
This petition is filed by the Brahmawarta Commercial Cooperative Bank Ltd.,Kanpur through its Secretary under Article 226 of the Constitution.
The petitioner has sought relief to quash the adjudication case no. 117 of 2001 pending before the Presiding Officer, Industrial Tribunal, III, U.P. Kanpur on the ground that the Tribunal does not have jurisdiction in respect of the employees of the cooperative Society. The brief facts of the case are as under.
The petitioner is a cooperative society, registered under the Provisions of the U.P. Cooperative Societies Act, 1965 (for short herein after referred to as 1965, Act) . The petitioner is carrying on Banking business in terms of the Circular issued by the Reserve Bank of India from time to time. Its area of operation is entire city of Kanpur. The provisions of the 1965 Act and the Rules framed thereunder are applicable to the petitioner.
The respondent no. 2 was the employee of the Bank. On 1.2.2001 the petitioner Bank dispensed with the services of the respondent no.2. The respondent no.2 aggrieved by the said action of the petitioners Bank raised an Industrial Dispute. The State Government referred the matter under section 4 K of the U.P. Industrial Dispute Act, 1947 to respondent no.1 in the following terms:-
"Kya Sewayojkon dwara shramik Shri Shiv Nath Katiyar, Lipik/cashier ko dinank 1.2.2001 ko karya se prithak/wanchit kiya jana uchit evam vaidhanik hai ? Yadi nahin, to sambandhit shramik kya hitlabh/chhatipurti pane ka adhikari hai? Kis thithi evam kis vivran ke sath?"
The petitioner filed its written statement before the respondent no.1, the Tribunal and raised an objection with regard to maintainability of the reference itself inter alia on the ground that the services of the respondent no.2 were governed by the provisions of the 1965 Act, and the Rules and Regulations framed thereunder. A copy of the written statement has been enclosed by the petitioner Bank as Annexure-1 to the writ petition.
From the record it appears that without waiting any decision of the Tribunal the petitioner filed the present writ petition as on the same issue several writ petitions were entertained by this Court under Article 226 of the Constitution and interim orders have also been granted staying the further proceedings in those adjudication cases which were pending in the Tribunals/Labour court pursuant to Reference made by the State Government under section 4K of the U.P. Industrial Dispute Act, 1947.
I have heard learned counsel for the petitioner Sri H.R.Mishra learned Senior Advocate and Sri O.P.Katiyar, Sri S.R.Verma and Sri A.P.Tewari and the learned Standing Counsel. Learned counsel for the petitioner Sri Mishra, submitted that the petitioner Bank is registered under the Provisions of the 1965, Act. In the said Act the State Government has framed U.P. Cooperative Societies Rules. The State Government has also framed the U.P. Cooperative Societies Employees Service Regulations, 1975 which has been approved by the State Government under section 122 of the U.P. Cooperative Societies Act. The 1965, Act is a self contained Act, it provides full fledged remedy and mechanism to agitate grievance of the employees of the Cooperative Societies. Sri Mishra has further submitted that 1965, Act is a Special Enactment and the U.P. Industrial Dispute Act, 1947 is a general Act as the 1965, Act is a Special Act it will prevail over the general Act. For the said reasons the reference under the general Act, the U.P. Industrial Dispute Act is not maintainable and for the said reason the Special Act namely U.P. Cooperative Societies Act, 1965 alone should apply in the matter of employment of Cooperative Societies.
Sri Mishra has relied on the judgment of the Supreme Court in the case of R.C. Tewari v. MP State Cooperative Marketing Federation Ltd. and others reported 1997 (5) SCC 125; Ghaziabad Zila Sahkari Bank Ltd. vs. Addl. Labour Commissioner and others, 2007 (113) FLR 50. He has also placed reliance on the judgment of this Court in the case of Deo Raj Singh vs. Fatehpur District Cooperative Bank Ltd. 2005 (107) FLR 28 and Brahmawarta Commercial Cooperative Bank Ltd. vs. Rajendra Kumar Dixit and others, 2007 (3) AWC 2428 .
Learned counsel for the respondent has submitted that in the case of Writ Petition No. 5860 of 2002; 5874 of 2002 and 5876 of 2002 the respondents/employees have already been paid their gratuity in terms of the relief sought by them in writ petition, as such in their cases no recovery in respect of the difference of sum under Payment of Gratuity Act, 1972 and under the provisions of 1965 Act and Regulations framed there under may not be recovered. However, learned counsel for the respondents have failed to dispute the principle of law which emerged from the judgments mentioned in forthcoming paragraphs of this order. He has not placed reliance on any judgment contrary to the law laid down in the judgments of the Supreme Court and of this Court mentioned in this judgment.
I have considered the rival submissions made by the learned counsels for the respective parties. Indisputably the respondents in all the writ petitions are employees of the various Cooperative Banks who are the petitioner in the present writ petition and in the connected writ petitions. In all these matters the employees have either invoked the provisions of the U.P. Industrial Dispute Act, 1947 or under the Payment of Gratuity Act, 1972.
The Suprme Court in the case of R.C.Tewari (supra) has held that Cooperative Societies Act of M.P. Deals with the dispute relates to the term of employment, working conditions, disciplinary action taken by the society under section 64 of the said Act. Registrar is empowered to decide the dispute and his decision shall be binding on the society and its employees.
In the case of Ghaziabad Zila Sahkari Bank Ltd. (supra) the employees of the Bank moved an application under section 6 H (1) of the U.P. Industrial Dispute Act, 1947 on the basis of an agreement. The Additional Labour Commissioner, allowed the application moved by the employees as an ex-gratia payment. The Registrar of the Cooperative Societies had issued a Circular prohibiting the payment of ex-gratia amount. However, an agreement for ex-gratia payment for 1999-2000 was entered by the Chairman of the Union without the permission of the Registrar. When the Bank refused to honour the said agreement inter alia on the ground that it was not a settlement and as such it does not attract the definition of the settlement of the agreement under section 2 (d) of the U.P. Industrial Dispute Act, 1947 read with Rule 5 (1) and 2 of the U.P. Industrial Dispute Rules, 1957. The Board of Directors of the Bank resolved that there was no requirement of the Registrar's permission for the ratification of the agreement and the Board of Directors took the decision to make the payment of ex-gratia amount to the employees. The matter was referred to the Registrar and by order dated 7.3.2001 the Deputy Registrar, Cooperative Societies, U.P. Meerut Division, Meerut in exercise of his power under section 128 (1) of the 1965, Act send the matter to reconsider the resolution as it was found that the said resolution was contrary to the Circular issued by the Registrar mentioned hereinunder. In respect of the said order passed by the Deputy Registrar under section 128 (1) of the Act the Board of Directors still decided to pay the same from 1999-2000 onwards. The Registrar thereafter again referred the matter back to the Chairman to reconsider the resolution. Aggrieved by the said decision 161 employees of the Union moved an application under section 6 H (1) of the U.P. Industrial Dispute Act, 1965 claiming their right in terms of the agreement dated 23.1.2001 and notice under section 6 H (1) was issued by the District Level Commissioner. The Bank filed an objection, however, the said objection was rejected. Aggrieved by the said decision the Bank filed the writ petition which was ultimately dismissed. In the said background the matter was carried to the Supreme Court.
The Supreme Court held that the U.P. Industrial Dispute Act, 1947 is a general Act and the U.P. Cooperative Societies Act, 1965 is a Special Act. Thus the Special Act alone should apply in the matter of employment of Cooperative Societies. The relevant observations of the Supreme Court is in the following terms:
"The general legal principle in interpretation of statutes is that 'the general Act should lead to the special Act'. Upon this general principle of law, the intention of the U.P legislature is clear, that the special enactment UP Co-operative Societies Act, 1965 alone should apply in the matter of employment of Co-operative Societies to the exclusion of all other Labour Laws. It is a complete code in itself as regards employment in co-operative societies and its machinery and provisions. The general Act the UPID Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the UPCS Act. This is also clear from necessary implication that the legislature could not have intended 'head-on-conflict and collision' between authorities under different Acts.
The Supreme Court in this case has also relied on its earlier judgment in R.C. Tewari's case (Supra).
Coming to the second set of case where the issue of gratuity is involved. Civil Misc. Writ Petition No. 5860 of 2002 has been filed through its Secretary/General Manager aggrieved by the order of the Additional Labour Commissioner/Controlling Authority under the Payment of Gratuity Act,1972 dated 2.1.2002 and order passed by the Appellate Authority under the Payment of Gratuity Act,1972 dated 22.5.2001.
In the said case the respondent no.3 therein Surya Nath Pathak was the employee of the petitioner Bank, who was initially appointed on 23.7.1962 and attained the age of superannuation on 30.11.1998. The Bank paid him the amount of gratuity to the tune of Rs. 2,76,412.10 p in terms of the Regulations 95 of the U.P. Employees Service Regulations,1975. The said Regulation was framed under the provisions of the U.P. Cooperative Societies Act, 1965 and the Rules framed thereunder. The employees of the Cooperative Bank are governed by the said Regulations (for short 1975 Regulations). The 1975 Regulations were framed by the Institutional Board under section 122 of the U.P. Cooperative Societies Act, 1965 . The Regulations 95 deals with the gratuity, it provides that an employee is entitled to gratuity equivalent not more than 15 days salary for every completed year of service, if he has attained the age of superannuation. The Bank stand is that it has paid the gratuity to its above mentioned employee in terms of the said Regulations. However, after receiving the said amount the employee moved all application under the provisions of the Payment of Gratuity Act, 1972 and he claimed a higher amount of the gratuity. The Controlling Authority had his application registered as APGA case No. 9 of 1999. The Bank filed a detailed written statement refuting the claim of its employee inter alia on the ground that the Regulation 95 will override the provisions of any agreement arrived at between the parties.
The stand of the employees before the Controlling Authority was that there was an agreement between the U.P. Bank Employees Union and the management under the proviso 6-B(1) and the said settlement provides that the gratuity was payable at the rate of one months salary of each completed year of service. The Controlling Authority relying on the said settlement allowed the application of the employee and directed the Bank to pay gratuity amount to the tune of Rs. 4,97,880/- and also imposed 12% interest over the balance amount. Aggrieved by the order of the Controlling Authority the Bank filed an appeal under the provisions of the Gratuity Act, 1972 . The appeal was also dismissed by the Appellate Authority respondent no.1 herein, by order dated 22.5.2001 and 2.2.2001. The Bank aggrieved by the said orders dated 22.5.2001 and 2.1.2002 has filed the present writ petition.
Sri H.R.Mishra, learned counsel for the petitioner in this case has raised the same legal plea and has urged that common settlement which arrived at in the year 1966 which was registered under section 6 B(1) of the U.P. Industrial Dispute Act, 1947 was ineffective as its life was only one year in terms of the said sections. Further elaborating his argument he has submitted that the Bank vide its resolution No. 10 dated 11.1.91 terminated the said settlement. The Regulations 95 which specifically deals with the gratuity has override effect over the provisions of the U.P. Industrial Dispute Act, 1947 as well as Gratuity Act, 1972. The said Regulations have been framed by the Institutional Board which has been constituted under section 122 of the Act, 1965.
Sri Mishra has placed reliance on the judgment of this Court in case of Deo Raj Singh v. Fatehpur District Cooperative Bank Ltd. (supra).
In the matter of Deo Raj Singh (supra) the dispute arose under the provisions of the Payment of Gratuity Act, 1972. The issue raised before this Court was whether the payment of gratuity shall be made on the basis of the calculation as provided under the Service Regulations of 1995 or under the provisions of the award/agreement, 1966. In the said case the employees had invoked the provisions of the Payment of Gratuity Act, 1972, as under the said Act the gratuity was payable to the employee @ one month wages per year service or it was payable @ 15 days wages as per year of services as provided in the Payment of Gratuity Act, 1972. The employee in the said case raised the dispute under section 4 K of the Industrial Dispute Act and the matter was referred for adjudication to the Industrial Tribunal at Allahabad.
Regard being had to the fact that the employees of various Cooperative Banks had raised their dispute and it was decided by the Presiding Officer of the Industrial Tribunal, Allahabad and its award is commonly known as 'Joshi Award'. Several Cooperative Bank entered into agreement with the U.P. Bank Employees Union. Some of the employees had filed the writ petition in this Court for issuing a writ of mandamus directing the respondent Bank to pay them gratuity calculated @ of one month wages (inclusive of Dearness Allowance) per year of the service and also interest @ 18% on the ground of delay in the payment of total money due to the petitioner. This Court dismissed all the writ petitions and held that the provisions of the Payment of Gratuity Act, 1972 would not be applicable in this case because the U.P. Cooperative Institutional Service Board exercising power under section 122 of the U.P. Cooperative Societies Act, 1965 has framed Service Regulation, 1975 with the prior approval of the State Government. Therefore, the employees of the Bank continued to be governed by this Regulation in the matter like emoluments, promotion, disciplinary control etc. Regulation, 1995 provides that employees shall not get gratuity more than 15 days salary for each completed year of service, therefore neither any agreement contrary to the Regulations would be enforceable. Moreover the Payment of Gratuity Act would not prevail over the U.P. Cooperative Societies Act which is a Special Act. Thus the writ petition was dismissed.
The same view was taken by this Court in the matter of Brahmawarta Commercial Cooperative Bank Ltd. (supra). In the said case the matter arose in respect of provisions of Section 33 C (2) of the Industrial Dispute Act, 1947. This Court relying on the judgment of R.C.Tewari (supra) and Ghaziabad Zila Sahkari Bank Ltd. vs. Addl. Labour Commissioner and others (supra) held that the proceedings under section 33 C (2) of the Industrial Dispute Act, 1947 before the Presiding Officer, Labour Court, Kanpur were without jurisdiction. Similarly the proceedings under section 6 H (1) of the U.P. Industrial Dispute Act, 1947 before the Deputy Labour Commissioner, Kanpur Region were also held to be without jurisdiction.
On similar facts Civil Misc. Writ Petition No. 5876 of 2002 District Cooperative Bank, Shahjahanpur vs. Appellate Authority and others and Civil Misc. Writ Petition No. 5874 of 2002 District Cooperative Bank, Shahjahanpur vs. Appellate Authority and others have been filed. In all these matters employees have received their gratuity in terms of the order of the Controlling Authority. Thus they had received the excess amount.
Having regards to the facts and circumstances of the case, I am of the view that from the aforesaid judgments what emerges is that the U.P. Cooperative Societies Act, 1965 is a self contained Act and it excludes the jurisdiction of all other labour law such as Industrial Dispute Act and the Gratuity Act etc. In view of the aforesaid background the proceedings pending before the Labour/Industrial Tribunal in this writ petition and in the connected with petitions are quashed. However learned Senior Counsel Sri H.R.Mishra has very fairly submitted that the petitioner would not recover the difference of the Gratuity from the respondent employees who have received their Gratuity in terms of the agreement.
Accordingly this writ petition and connected writ petitions are allowed.
However, no order is passed as to cost.
Dated:31.5.2012 ssm