1. List revised. Heard Sri G D Mishra, learned counsel for the petitioner and the learned standing counsel for the State-respondents. No one appeared for respondent no. 3 / workman.
2. By means of the present writ petition, the petitioner i.e. M/S Dugdh Utpadan Sahkari Sangh Ltd Farrukhabad, challenges the award dated 12.02.1997, published on 16.10.1997 (Annexure 1) in Adjudication Case No. 41 of 1994, between the petitioner and respondent no. 3.
3. The respondent no. 3 claims to have been appointed as a workman in the establishment of the petitioner in 1986 on wages of Rs. 36 per day and that when he insisted for payment of minimum wages, the petitioner in retaliation and without prior notice or compensation, dispensed his services on 09.02.1993. It appears that the petitioner challenged the dispensation of his services in O.S. No. 174 of 1993, wherein the learned Munsif, Farukhabad dismissed the injunction application on 21.07.1993. Although, the original suit was pending, yet at the instance of respondent no. 3, a reference under the provisions of Section 4-K of the U.P. Industrial Disputes Act, 1947 (for short "the Act") was made and the dispute was referred to the Labour Court as to whether the removal of respondent no. 3 is in accordance with law or not and as to what relief is he entitled to.
4. The case of the workman/respondent no. 3 before the Labour Court was that, he was appointed in 1986 on payment of Rs.36 as daily wages and that the services have been dispensed in retaliation, when respondent no. 3 insisted for grant of minimum wages, and that too without prior notice or payment of any compensation whatsoever, and that although a settlement was reached before the Assistant Labour Commissioner, Farukhabad on 22.02.1993 but the petitioner did not adhere to the same.
5. The case of the petitioner inter alia before the Labour Court was that there existed no relationship of employer and employee between the petitioner and respondent no. 3, inasmuch as respondent no. 3 was employed as a contract labour by one contractor, Ram Chandra Shukla and further during the pendency of O.S. No. 174 of 1993, the present proceedings were not maintainable.
6. The Labour Court on 09.02.1993 on consideration of the materials on record found that there existed a relationship of employer and employee between the petitioner and respondent no. 3 and his disengagement was not in accordance with law, and accordingly it directed for reinstatement of respondent no. 3 w.e.f. 09.02.1993 and also granted him entire wages with effect from the said date.
7. It is urged by Sri G D Mishra, learned counsel for the petitioner, that the there existed no relationship of employer and employee between the petitioner and respondent no. 3, inasmuch as on the basis of the materials on record, the employer of respondent no. 3 was the contractor. He would further submit that respondent no. 3 only being a daily wager had no right to the post. Finally, he would submit that respondent no. 3, if held to be an employee of the petitioners' cooperative society, then in view of the decision of the Apex Court in Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner 2007 (113) FLR 50 (S.C.), wherein it has been held that provisions of the U.P. Industrial Disputes Act, 1947 would not apply in relation to an employee of a cooperative society and therefore, the impugned award is liable to be set aside on this ground alone. Relevant paragraphs of the aforesaid decision are quoted hereinbelow:-
45.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. In this regard reference can be made to decisions of this Court in the case of The Co-operative Central Bank Ltd. and Ors. v. MANU/SC/0611/1969 : The Additional Industrial Tribunal, Andhra Pradesh and Ors. (1969)IILLJ698SC where this Court observed that:
Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under Section 61 of the Act. The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself. It is true that Section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression "touching the business of the society", in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression. Since the word "business" is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society. Further, the position is clarified by the provisions of Sub-section (4) of Section 62 of the Act which limit the power to be exercised by the Registrar, when dealing with a dispute referred to him under Section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of the Act, the rules and the bye-laws could not possibly permit the Registrar to change conditions of service of the workmen employed by the society. For the purpose of bringing facts to our notice in the present appeals, the Rules framed by the Andhra Pradesh Government under the Act, and the bye-laws of one of the appellant Banks have been placed on the Paper-books of the appeals before us. It appears from them that the conditions of service of the employees of the Bank have all been laid down by framing special bye-laws. Most of the conditions of service, which the workmen want to be altered to their benefit, have thus been laid down by the bye-laws, so that any alteration in those conditions of service will necessarily require a change in the bye-laws. Such a change could not possibly be directed by the Registrar when, under Section 62(4) of the Act, he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye-laws. It may also be noticed that a dispute referred to the Registrar under Section 61 of the Act can even be transferred for disposal to a person who may have been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator by the Registrar. Such person or arbitrator, when deciding the dispute, will also be governed by the mandate in Section 62(4) of the Act, so that he will also be bound to reject the claim of the workmen which is nothing else than a request for alteration of conditions of service contained in the bye-laws. It is thus clear that, in respect of the dispute relating to alteration of various conditions of service, the Registrar or other person dealing with it under Section 62 of the Act is not competent to grant the relief claimed by the workmen at all. On the principle laid down by this Court in the case of the Deccan Merchants Co-operative Bank Ltd., therefore, it must be held that this dispute is not a dispute covered by the provisions of Section 61 of the Act. Such a dispute is not contemplated to be dealt with under Section 62 of the Act and must, therefore, be held to be outside the scope of Section 61.
Further this Court observed in R.C. Tiwari v. MANU/SC/0698/1997 : M.P. State Co-operative Marketing Federation Ltd. and Ors. (1997)IILLJ236SC , that:
...He also places reliance on Section 93 of the Societies Act which states that nothing contained in the Madhya Pradesh Shops and Establishments Act 1958, the M.P. Industrial Workmen (Standing Orders) Act, 1959 and the M.P. Industrial Relations Act, 1960 shall apply to a Society registered under this Act. By necessary implication, application of the Act has not been excluded and that, therefore, the Labour Court has jurisdiction to decide the matter. We find no force in the contention. Section 55 of the Societies Act gives power to the Registrar to deal with disciplinary matters relating to the employees in the Society or a class of Societies including the terms and conditions of employment of the employees. Where a dispute relates to the terms of employment, working conditions, disciplinary action taken by a Society, or arises between a Society and its employees, the Registrar or any officer appointed by him, not below the rank of Assistant Registrar, shall decide the dispute and his decision shall be binding on the society and its employees. As regards power under Section 64, the language is very wide, viz., "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, a management or business of a Society or the liquidation of a Society shall be referred to the Registry by any of the parties to the dispute." Therefore, the dispute relating to the management or business of the Society is very comprehensive as repeatedly held by this Court. As a consequence, special procedure has been provided under this Act. Necessarily, reference under Section 10 of the Societies Act stands excluded. The judgment of this Court arising under Andhra Pradesh Act has no application to the facts for the reason that under that Act the dispute did not cover the dismissal of the servants of the society which the Act therein was amended.
Similar view was taken by this Court in the case of Belsund Sugar Co. Ltd. v. State of Bihar and Ors. (supra), Allahabad Bank v. Canara Bank and Anr. (supra), State of Punjab v. Labour Court, Jullunder and Ors. (supra) and U.P. State Electricity Board v. Shiv Mohan Singh and Anr. (supra).
46.Also if we refer to the general principles of Statutory Interpretation as discussed by G.P. Singh, in his treatise on 'Principles of Statutory Interpretation', we can observe that, a prior general Act may be affected by a subsequent particular or special Act if the subject-matter of the particular Act prior to its enforcement was being governed by the general provisions of the earlier Act. In such a case the operation of the particular Act may have the effect of partially repealing the general Act, or curtailing its operation, or adding conditions to its operation for the particular cases. The distinction may be important at times for determining the applicability of those provisions of the General Clauses Act, 1897, (Interpretation Act, 1889 of U.K. now Interpretation Act, 1978) which apply only in case of repeals.
47.A general Act's operation may be curtailed by a later Special Act even if the general Act will be more readily inferred when the later Special Act also contains an overriding non-obstante provision. Section 446(1) of the Companies Act 1956 (Act 1 of 1956) provides that when the winding up order is passed or the official liquidator is appointed as a provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of winding up order shall be proceeded with against the company except by leave of the Court. Under Section 446(2), the company Court, notwithstanding anything contained in any other law for the time being in force is given jurisdiction to entertain any suit, proceeding or claim by or against the company and decide any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up. The Life Insurance Corporation Act, 1956 (Act 31 of 1956) constituted a Tribunal and Section 15 of the Act enabled the Life Insurance Corporation to file a case before the tribunal for recovery of various amounts from the erstwhile Life Insurance Companies in certain respects. Section 41 of the LIC Act conferred exclusive jurisdiction on the tribunal in these matters. On examination of these Acts, it was held that the provisions conferring exclusive jurisdiction on the tribunal being provisions of the Special Act i.e. the LIC Act prevailed over the aforesaid provisions of the general Act, viz., the Companies Act which is an Act relating to Companies in general and, therefore, the tribunal had jurisdiction to entertain and proceed with a claim of the Life Insurance Corporation against a former insurer which had been ordered to be wound up by the Company Court. This case was followed in giving to the provisions of the Recovery of Debts due to Banks and Financial Institutions Act 1993 (RDB Act) overriding effect over the provisions of the Companies Act, 1956. The RDB Act constitutes a tribunal and by Sections 17 and 18 confers upon the tribunal exclusive jurisdiction to entertain and decide applications from the banks and financial institutions for recovery of debts (defined to mean any liability which is claimed as due). The Act also lays down the procedure for recovery of the debt as per the certificate issued by the tribunal. The provisions of the RDB Act, which is a special Act, were held to prevail over Sections 442, 446, 537 and other sections of the Companies Act which is a general Act, more so because Section 34 of the RDB Act gives over-riding effect to that Act by providing that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
48.We are therefore of the view that the Asst. Labour Commissioner (ALC)'s jurisdiction was wrongly invoked and his order dated 15.03.2003 under Section 6H, U.P. Industrial Disputes Act, 1947 is without jurisdiction and hence null and void and it can be observed that, in view of the said general legal principle, it is immaterial whether or not the government has enforced Section 135 (UPCS Act) because, in any case the said provision (Section 135) had been included in the Act only by way of clarification and abundant caution.
8. Sri G D Mishra, learned counsel for the petitioner, has also brought to the notice of the Court two unreported judgments of this Court in Writ C No. 25816 of 1998 & Writ C No. 17412 of 1999, wherein a similar view has been taken and the impugned awards have been set aside.
9. After a careful analysis of the judgment of the Apex Court, the irresistible conclusion is that the Apex Court has clearly held in unequivocal terms that notwithstanding the non-enforcement of Section 135 of U.P. Cooperative Society Act, 1965, which was only by way of clarification and applying the principle that "special" excludes "general" i.e. where there is a special statute which provides a machinery for adjudication / settlement of disputes, then the remedy available under the general law would stand excluded, i.e. the provisions of U.P. Cooperative Society Act, 1965 and the regulations framed thereunder would override the provisions of U.P. Industrial Disputes Act, 1947 in so far it pertains to an employee of a cooperative society, as defined in the U.P. Cooperative Society Act, 1965 and / or the regulations framed thereunder. As the impugned award holds respondent no. 3 to be an employee of the petitioner, the law laid down in the aforesaid case would squarely apply on the facts of the present case and consequently the award is liable to be set aside on this ground alone.
10. The writ petition succeeds and is allowed. The award dated 12.02.1997, published on 16.10.1997 (Annexure 1) in Adjudication Case No. 41 of 1994, is set aside. However, in case, any amount, in terms of interim order passed by this Court, was paid by the petitioner to respondent no. 3, the same is not liable to be refunded. No order as to costs.
Order date:- 22.08.2012 Chandra