JUDGMENT D. P. Singh, J.
1. Heard learned counsel for the petitioner and the learned standing counsel.
2. This writ petition is directed against an award of the labour court dated 31.7.1980 by which the respondent workman has been granted reinstatement with full backwages.
3. Brief facts shorn of details, for decision of this petition are, that the respondent workman was appointed as Assistant Salesman on 10.12.1974 by the Committee of Management of the petitioner Co-operative Society and was also confirmed on 17.12.1976. However, vide notice dated 1.11.1977 he was given a months' notice that with effect from 1.12.1977 his services would stand retrenched, and which was retrenched without any compensation or other legal dues. It was alleged that juniors were retained. The petitioner denied the allegation by saying that the workman was appointed in contemplation of the approval of the Board, but the Service Board, which is the competent authority to grant appointment, did not approve the said appointment, therefore, it is alleged, services were terminated and the workman was paid 40 days average pay and was given one month's notice.
4. The labour court, though found that services were terminated because the Service Board had not approved the appointment but held that since the provisions of Industrial Disputes Act were not complied, therefore, the termination was illegal and as such it granted reinstatement with full back wages.
5. Learned counsel for the petitioner has raised two submissions in support of his petition. Firstly, that the Industrial Disputes Act was inapplicable in view of Sections 70 and 122 of the U. P. Co-operative Societies Act, 1961 (hereinafter referred to as the U. P. Act). Secondly, the labour court has granted reinstatement and back wages as a matter of course, which was illegal.
6. In support of his first contention learned counsel for the petitioner, relying upon a decision of the Supreme Court in R. C. Tiwari v. M. P. State Co-operative Marketing Federation, AIR 1997 SC 2652, has contended that the expression "dispute relating to management or business of the society" as occurring in Section 70 of the U. P. Act is very comprehensive and will take within its sweep service disputes also. Further, relying upon another decision of the Supreme Court in the case of Himanshu Kumar Vidyarthi v. State of Bihar, AIR 1997 SC 3657, he has urged that since the services of the respondent workman were governed by Regulations framed under Section 122 of the U. P. Act by implication the provisions of Industrial Disputes Act would not apply and to that extent, the petitioner cannot be termed as an industry.
7. In R. C. Tiwari's case (supra), the Supreme Court had taken note of Sections 55 and 64 of M. P. Cooperative Societies Act, 1960 (hereinafter referred to as the M. P. Act). Section 55 of the M. P. Act (corresponding to Section 122 of the U. P. Act) reads as follows :
"55. Registrar's power to determine conditions of employment in societies.--(1) The Registrar may, from time to time frame rules governing the terms and conditions of employment in a society or class of societies and the society or class of societies to which such terms and conditions of employment are applicable shall comply with the order that may be issued by the Registrar in this behalf.
(2) Where a dispute including a dispute regarding terms of employment working conditions and disciplinary action taken by a society, 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 :
Provided that the Registrar or the officer referred to above shall not entertain the dispute. Unless presented to him within thirty days from the date of the order sought to be impugned.
Provided further that in computing the period of limitation under the foregoing proviso the time requisite for obtaining copy of the order shall be excluded."
While Section 122 of the U. P. Act reads as :
"122. Authority to control employees of co-operative societies. -- (1) 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 co-operative societies, or a class of 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 employees and, subject to the provisions contained in Section 70, settlement of disputes between an employee of a co-operative society and the society.
(2) The regulations framed under Sub-section (1) shall be subject to the approval of the State Government and shall, after such approval, be published in the Gazette, and take effect from the date of such publication and shall supersede any regulations made under Section 121."
8. A perusal of Section 55 of the M. P. Act shows that under Sub-clause (1) the Registrar is empowered to frame rules governing the terms and conditions of employment in a 'society' or class of societies, whereas from perusal of Sub-clause (2) of Section 55 of the M. P. Act it is clear that the Registrar, has power either himself or through any other officer not below the rank of Assistant Registrar, so appointed by him, to decide dispute relating to conditions of employment including disciplinary action and which decision shall be binding on both. But unlike Section 55 of the M. P. Act. Section 122 of the U. P. Act talks only about framing of Rules and Regulations to govern the conditions of service of the employees subject to Section 70.
9. Vide Sub-clause (2), Section 122 of the U. P. Act mandates that such regulations framed would be subject to the approval of the State Government and supersede any regulation made under Section 121.
10. Again Section 70 of the U. P. Act (corresponding to Section 64 of the M. P. Act) reads as under :
"70. Disputes which may be referred to arbitration.--(1)Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises :
(a) .................................
(b) .................................
(c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any d eceased officer, deceased agent, or deceased employee of the society ; or
(d) .................................
such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the Rules and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute."
The relevant portion of Section 64 of the M. P. Act reads as :
"Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, management or business of a society or the liquidation of a society shall be referred to the Registrar by any of the parties to the dispute."
11. The difference between the two is apparent. The dispute other than a dispute regarding disciplinary action can be referred for arbitration under Section 70 of the U. P. Act but Section 64 of the M, P. Act refers only to general dispute. Under the U. P. Act, U. P. Co-operative Societies (Employees Service) Regulations, 1975, have already been framed. These Regulations also cover the employees of District and Central Co-operative Bank. A notification dated 4th March, 1972, as amended by notification dated 7th February, 1973 is quoted below :
"In pursuance of the provisions of Sub-section (1) of Section 122 of the Uttar Pradesh Co-operative Societies Act, 1965 (U. P. Act No. XI of 1966), read with Rule 389A of the U. P. Cooperative Societies Rules, 1968, the Government is pleased to constitute following authority known as the U. P. Co-operative Institutional Service Board (hereinafter referred to as the Board). For the recruitment, training and disciplinary control of the employees of the Apex Level Societies, Central or Primary Societies (excluding the Cooperative Cane Development Unions which include the U. P. Co-operative Cane Unions Federation Ltd., Lucknow) whose area of operation extends to more than one District or State, District or Central Co-operative Banks, District Co-operative Federations, Co-operative Milk Unions including Kanpur Co-operative Milk Board, Co-operative Cane Sugar Factories, Co-operative Textile Mills and U. P. Cooperative Housing Federation."
12. A perusal of the notification shows that since the petitioner society is District Co-operative Bank, the 1975 Regulations would apply to it. A perusal of the Regulations show that it deals with recruitment, training and disciplinary control of employees. Therefore, it is apparent that whenever there is disciplinary action against an employee, it cannot be decided through arbitration under Section 70. The question remains as to what happens in the present case where the termination is only on account of non-approval of appointment by the Board. The Apex Court in the case of Himanshu Kumar Vidyarthi (supra), has held that "when the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded." Thus, an employee of a cooperative society whose termination is not by way of disciplinary action can approach the Registrar under Section 70 of the U. P. Act and where the discharge is due to disciplinary action and rules are in existence, he could approach the authority under the Rules. Therefore, the first, contention of the learned counsel for the petitioner has to be accepted.
13. Though after recording the aforesaid finding, the second contention need not be decided, but this question is being raised in several petition, it would be useful to decide it.
14. The labour court has granted reinstatement and back-wages somewhat in a cursory manner, Having held that the termination was the outcome of a statutory provision together with the fact that the workman worked only for two years in the co-operative society and also that compensation under the Industrial Disputes Act was paid, though belatedly--were factors to be taken into account and which the labour court has failed to consider. In support of the second contention, learned counsel for the petitioner has placed reliance on the ratio rendered by the Apex Court in the case of Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya, 2002 (3) AWC 2444 (SC) : 2002 (6) SC 41. The said ratio applies with all force to the controversy at hand. Therefore, the second contention of the learned counsel for the petitioner is bound to be accepted.
15. The question now is, should this Court remand the matter to the labour court to deliberate afresh upon the relief to be granted to the workman. Normally after recording the aforesaid finding, the matter should be remanded. But, after about quarter of a century of termination of the respondent workman, it does not appeal to reason or justice that the matter should be remanded for reconsideration of the relief to be granted to the workman. When this writ petition was filed, a Division Bench had directed payment of entire back-wages up to date vide order dated 11.2.1981. This order was complied with as is evident from a perusal of the counter-affidavit sworn by Iftikhar Ahmad Ansari and the money has been withdrawn by the workman after furnishing security. It is apparent from the record that reply to the writ petition in the form of a counter-affidavit was filed after ten years of the institution of this petition and further not real effort was made by the workman to get the case decided. Even today, none has appeared for the respondent-workman. It appears the workman may have got a better job or may be otherwise is gainfully employed. The establishment is also only a cooperative society and not a big business enterprise and, therefore, after so many years, it would not be wise to burden the society financially specially when the retrenchment compensation had already been paid, though belatedly, at the time of termination. Taking into totality the circumstances of the case, in my opinion, it would meet the ends of justice that the amount already paid to the workman shall suffice the relief. It is made clear that security furnished for withdrawal of wages withdrawn in pursuance of the order of this Court, shall stand discharged.
16. In view of the discussions above, writ petition succeeds and is allowed in part. The relief of reinstatement is set aside and payments made under the orders of this Court, as aforesaid, shall be final and no other back-wages are payable.