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General Manager, Moradabad Dugdh ... vs Presiding Officer, Labour Court, ...

High Court Of Judicature at Allahabad|28 January, 1999

JUDGMENT / ORDER

JUDGMENT Aloke Chakrabarti, J.
1. This writ petition was heard along with Civil Misc. Writ Petition Nos. 15485 of 1994 and 26104 of 1994.
2. Award dated 12.5.1993 (Annexure-I to the writ petition) has been challenged by the General Manager. Moradabad Dugdh Utpadak Sangh Ltd. Dalpatpur, Moradabad. The respondent No. 4 got a reference made by the State Government to respondent No. 1 Labour Court in respect of his claim for reinstatement and back wages on an allegation that the said respondent No. 4 had been in employment as junior electrician under the present writ-petitioner who was made opposite party No. 3 before the Labour Court. The respondent No. 2. the present petitioner and respondent No. 3 were made respondents before, the said Labour Court and they filed separate written statements. After a contested hearing ultimately, the Labour Court passed the impugned award directing reinstatement of the respondent No. 4 and back wages for the period between June. 1991 and the date of reinstatement.
3. Learned counsel for the petitioner argued four points in support of the writ petition challenging the said award. The first contention of the petitioner is that the respondent No. 4 workman approached the State Government after a long delay and on the said ground, the impugned award could not stand and in support of such contention, reference was made to the case of U. P. State Electricity Board and others a. P. O. Labour Court, Kanpur and others, 1998 (78) FLR 511. The second point argued by the learned counsel for the petitioner is that the workman concerned did not raise the dispute before the employer at any stage and, therefore, the reference itself was bad and, the award is liable to be set aside.
4. With regard to the aforesaid two contentions, learned counsel for the respondents workman contended that both the said questions are on facts and the said objections had not been ever raised before the Labour Court. It is further contended that had those points been raised before the Labour Court the petitioner would have been getting opportunity to dislodge the said objections proving necessary facts.
5. Considering the aforesaid two contentions, I find that the learned counsel for the petitioner could not show from records that such objection had been raised at any earlier stage. Therefore, I am of the opinion that the argument of the respondents with regard to the said contentions of the petitioner, has force and those being based on facts cannot be permitted to be raised for the first time in writ court.
6. Learned counsel for the petitioner made his third contention that the workman himself is a daily-wager and. therefore, cannot complain of his retrenchment and in this connection, law decided in the case of Himanshu Kumar Vidyarthi and others v. State of Bihar and others, 1997 (76) FLR 237, has been relied on. Learned counsel for the respondent-workman contended that the said judgment is per incurrium as it did not take notice of settled law in respect of the said aspect and the provisions of Section 2(g) and Section 25B of the Industrial Disputes Act.
7. A perusal of the Judgment in the case of Himanshu Kumar Vidyarthi (supra) shows that in the said case, appointments of the employees there were admitted to have not been to the posts in accordance with Rules and they were engaged on the basis of need of the work and in the said admitted factual background, their disengagement from service was held not to be construed as retrenchment under the Industrial Disputes Act.
8. In the present case, in the impugned award, finding is that the workman was employed on the post of junior electrician and on facts, it was found that he completed 240 days' service within a span of twelve months. Therefore, the judgment in the case of Himanshu Kumar Vidyarthi (supra) does not apply in the facts of the present case.
9. Learned counsel for the petitioner made his fourth contention that the workman concerned here being an employee of a Co-operative Society could not avail of the remedy provided by the Industrial Disputes Act as the said Act itself does not apply in the case of an employee of a Co-operative Society. In support of this contention, law has been referred to as decided in the case of Vikramaditya Pandey v. Industrial Tribunal (III Lucknow and another. 1997 (75) FLR 844 and Arvind Kumar Agarwal v. State of U. P. and another. 1998 (78) FLR 440, as also District Cooperative Federation Ltd. v. Presiding Officer, Labour Court, Agra and another, 1998 (78) FLR 444. With regard to this contention, learned counsel for the respondent workman contended that the said question was also not urged before the Labour Court in any manner by the employer and, therefore, such question cannot be raised for the first time in writ petition.
10. Although in the oral argument only, the aforesaid four points were raised by the employer-petitioner but in the written argument filed by the petitioner, an additional question was raised as to under which employer the workman is to get his relief. A perusal of the records indicates that there is no necessity for any clarification as reference related to dispute on termination on 30.11.1986 and admittedly workman was in employment of Infant Milk Food Factory, Dalpatpur, Moradabad on the date of termination.
11. With regard to contention relating to back wages, I find that nothing has been shown on behalf of the employer that such contention was raised with sufficient disclosure of facts before the Labour Court and, therefore, this question also cannot be raised in a writ proceeding.
12. With regard to the post claimed by the workman, a contention has been raised by the employers as to whether he was holding the post of plant-operator or junior electrician. At the time of hearing, nothing has been shown clearly relating to the said dispute and, therefore, I do not find any ground For interference on the said ground.
13. With regard to contention that forum under the Industrial Disputes Act is not available for an employee of a Co-operative Society, I find that for settlement of dispute forurn has been provided in the U. P. Co-operative Societies Act, 1965. But, in the said provision though a non-obstante clause has been provided but the dispute which can be referred for arbitration under the said provision specially excludes a dispute regarding disciplinary action taken against a paid servant of a society.
14. On behalf of employer, it has been contended that though notification had not been made in view of Section 135 of the Act but the intention of the Legislature is clear from the said section which is as follows :
"135. Certain Acts not to apply to Co-operative Societies.--The provisions contained in the Industrial Disputes Act, 1947 (Act XIV of 1947), and the U. P. Industrial Disputes Act (U. P. Act XVIII of 1947), shall not apply to Co-operative Societies."
15. Decision has been arrived by learned single Judge in the case of Vikramaditya Pandey v. Industrial Tribunal, 1997 (75) FLR 844, holding that in view of provision of Section 135 (although not notified making it enforced) and of Regulation 103 of U. P. Co-operative Societies Employees Service Regulations, 1975 the said labour laws are not applicable to cooperative employees. The law so decided has been followed in the case of Arvind Kumar Agarwal v. State of Uttar Pradesh, 1998 (78) FLR 440.
16. The aforesaid Regulation 103 of the Regulation of 1975 is as follows :
"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 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."
17. The above Regulation has been interpreted in the case of Vikramaditya Pandey (supra) holding that if there is any inconsistency between the Regulation and the Industrial Disputes Act. 1947, or any other labour law for the time being in force, the present Regulation shall be applicable and the other laws shall be deemed to be inoperative."
18. But the same Regulation 103 was considered earlier, in the case of Jai Kishun v. U. P. Cooperative Bank Limited. 1989 (2) UPLBEC 144, wherein Division Bench of this Court held that the said Regulation provides that provision of these Regulations to the extent of their inconsistency with any other provision of aforesaid labour law shall be deemed to be inoperative. The Division Bench also took into consideration that though U. P, Industrial Disputes Act has not been specifically mentioned in the said Regulation 103 but as the said statute is undoubtedly a labour law for the time being in force, the Regulation will not be applicable. In respect of statute relating to Co-operative Society prevailing in the State concerned, applicability of provision of Industrial Disputes Act was considered in the case of Gujarat State Co-operative Land Development Bank Ltd. v. P. R. Mankad, AIR 1979 SC 1203 and the case of R. C. Tiwari v. M. P. State Co-operative Marketing Federation, AIR 1997 SC 2652, which indicate that in the facts of the present case, the labour law becomes applicable and not the forum provided under the Co-operative Societies law.
19. With regard to Section 135 of U. P. Co-operative Societies Act, it is an admitted position that the said section has not been yet enforced by a notification and effect thereof has been considered in various cases decided by this Court. Such findings holding that the said section having not been enforced, there is no exclusion of jurisdiction of the forum provided by the U. P. Industrial Disputes Act, had been arrived at in the case of Mauranipur Kisan Sahakari Sewa Samiti v. State of U. P., 1988 UPLBEC 555 and the case of Sadhan Sahkari Samiti v. Presiding Officer, 1993 (67) FLR 87.
20. In this connection, it may also be noticed that the Co-operative Society had been held to be industry within the meaning of industrial law by seven member Constitution Bench of Apex Court in the case of Bangalore Water Supply v. R. Rqjappa, AIR 1978 SC 548.
21. In view of aforesaid position in law and in particular a decision of Division Bench of this Court interpreting Regulation 103 also and being fully in respectful agreement with the said finding, I am of the opinion that the judgments in support of the contentions of the employer cannot be applied and law which is required to be followed is that decided by the Division Bench in the case of Jai Kishun (supra) holding that for an employee of a Co-operative Society not the forum provided by Regulation but the forum provided by labour law prevailing is to be availed of.
22. In view of aforesaid findings, no interference can be made on the present writ petition and the same is hereby dismissed.
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Title

General Manager, Moradabad Dugdh ... vs Presiding Officer, Labour Court, ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
28 January, 1999
Judges
  • A Chakrabarti