Messrs Bhatinda Central Co-Operative Bank Ltd, Bhatinda vs The State of Punjab and others

B.R. Tuli, J.—The petitioner is a banking company registered under the Punjab Co-operative Societies Act, with its registered office at Bhatinda. Respondents 3 to 5 were removed from its service by the petitioner while respondents 6 to 11 were superseded in the matter of promotions. Respondents 3 to 5 filed appeals to the Registrar of Co-operative Societies under a bye-law of the petitioner bank but respondents 6 to 11 did not file any such appeal. All of them moved the State of Punjab to refer their disputes with the management of the petitioner-bank for adjudication to Labour Court and the Governor of Punjab issued notification No. 407-SF-III-L-67/10072, dated nil, which reads as under:

Whereas the Governor of Punjab is of opinion that an industrial dispute exists between the workmen and the management of M/s. Bhatinda Central Co-operative Bank Ltd., Bhatinda, regarding the matters hereinafter appearing;

And whereas the Governor of Punjab considers it desirable to refer the dispute for adjudication;

Now, therefore, in exercise of the powers conferred by clause (C) of sub-section (1) of section 10 of the Industrial disputes Act, 1947 the Governor of Punjab hereby refers to the Labour Court, Jullundur, constituted u/s 7 of the said Act. the matters specified below, being either matters in dispute or matters relevant to or connected with the dispute as between the said management and the workmen for adjudication:

(i) Whether the termination of services of the following workmen is justified and in order? If not, to what relief/exact compensation they are entitled?

Baibir Singh,

H.C. Gupta, Branch Manager.

Harpal Singh, Clerk-cum-Cashier.

(ii) Whether the following workmen have been superseded in the matter of promotions? If so, to what relief the workmen ire entitled?

Harnek Singh, Junior Accountant.

Tirlok Singh, Senior Clerk.

Tirath Ram, Clerk

Harnek Singh, Clerk.

Balbir Singh, Clerk. 6. Roop Singh, Clerk.

The Labour Court, Jullundur. presided over by Shri Manohar Singh Bakshi, gave notice to the parties in response to which they filed their respective pleadings on the basis of which the learned Presiding Officer framed the following issues:

Whether the reference is barred by sections 55 and 79 of the Punjab Co operative Societies Act. 1961. ?

Whether Shri H.C. Gupta, concerned workman, was not a ''workman'' as defined in section 2(s) of the Industrial Disputes Act, and, therefore, the reference qua him is invalid ?

Whether Sarvshri Balbir Singh, H.C. Gupta and Harpal Singh, concerned workmen, had filed appeals against the impugned orders of the management which are still pending and, for that reason, this reference is not competent?

Whether the remaining concerned workmen had not appealed against the impugned order of the management and, therefore, this reference is not competent?

Whether the termination of services of Sarvshri Balbir Singh, H. C. Gupta and Harpal Singh, concerned workmen, is justified and in order ?

Whether the following workmen had been superseded in the matter of promotions ?

Harnek Singh, Junior Accountant.

Tirlok Singh, Senior Clerk.

Tirath Ram, Clerk.

Harnek Singh, Clerk.

Balbir Singh, Clerk.

Roop Singh, Clerk.

Issues 1 to 4 were treated as preliminary issues and were decided against the management by the learned Labor Court vide order dated 3rd November, 1967. The order of reference was held valid and competent and the Labour Court was also held to have jurisdiction to adjudicate upon the matters covered by the reference. The petitioner-bank has filed the present writ petition for the quashing of the said order of the Labour Court.

When the writ petition was admitted, the passing of the final order was stayed pending the disposal of this writ petition. The return to the petition has been filed by the State of Punjab, respondent 1, and by respondents 3 to 11. Respondent 2 is the Labour Court

The first point that has been argued by the learned counsel for the petitioner is that the alleged dispute between the petitioner and respondents 3 to 11 could not be referred for adjudication to a Labour Court u/s 10 of the Industrial Disputes Act, in view of the provisions of sections 55 and 82 of the Punjab Co-operative Societies Act 1961 (hereinafter called the Act). Section 55 of the Act is as under:

Disputes which may be referred to arbitration : - (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society arises-

(a) among members, past members or persons claiming through members, past members, and deceased members, or

(b) between a member, past member or persons claiming through a member, past member and deceased member and the society, its committee or any officer, agent or employee of the society, or liquidator past or present or

(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, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, or

(d) between the society and any other co-operative society, between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society, since dispute shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.

(2) For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely-

(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;

(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the election of any officer of the society.

(3) If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.

From the language of this section it is clear that the dispute which can be referred to arbitration must be a dispute touching the constitution, management, or the business of a co-operative society and must be between the persons or classes of persons mentioned in clauses (a) to (d) of sub-section (1). Sub-section (2) describes the dispute which shall be deemed to relate to the constitution, management or the business of a co-operative society in clauses (a), (b) and (c) from which it is evident that a dispute between the co-operative society and any of its employees arising out of the removal from service, or dismissal, or super session in regard to promotion is not dispute touching the constitution, management or the business of a co-operative society for the settlement of which the only mode provided is arbitration u/s 55 of the Act. This section, therefore, does not provide that any dispute between the management of.a co-operative society and its employees concerning their conditions of employment or removal from service or super session in matters of promotions has to be referred to arbitration for its settlement and does not bar the reference of such a dispute for adjudication u/s 10 of the Industrial Disputes Act, 1947, provided other conditions exist for such reference.

Section 82 of the Act only bars the jurisdiction of civil or revenue Courts to adjudicate on any dispute required u/s 55 of the Act to be referred to the Registrar. I have held that the dispute between the petitioner and respondents 3 to 11 did not come within the ambit of section 55 of the Act and was not referable for arbitration to the Registrar. For this reason the jurisdiction of a civil Court to adjudicate upon that dispute cannot be said to have been taken away by section 82 of the Act even if a Labour Court is considered to be a civil Court for the purposes of this Act. In am opinion, the Labour Court is not a civil Court but I need not delete on this matter any further.

The learned counsel for the petitioner has relied upon a Single Bench judgment of the Calcutta High Court in Syamapada Banerjee Vs. Asst. Registrar, Co-operative Societies, Burdwan and Others, in which it was held that a dispute between a co-operative society and its ex-officer is a dispute within the ambit of section 86 of the Bengal Co-operative Societies Act (1940). Section 86 of that Act runs as follows:

Any dispute touching the business of a co-operative society (other than a dispute regarding disciplinary action taken by a society or its managing committee against a paid servant of the society) or of the liquidator of a society shall be referred to the Registrar if the parties thereto are among the following, namely:

(a) the society, its managing committee, any past of present officer, agent or servant or the liquidator of the society; or

(b) a member, past member or person claiming through a member, past member or deceased member of the society; or

(c) a surety of a member, past member or deceased member of the society, whether such surety is or is not a member of the society; or

(d) any other co-operative society or the liquidator of such society.

The dispute in that case was between the secretary and an ex-manager on one side and the co operative society on the other with respect to defalcation made by the former from which it is clear that the dispute did not relate to the terras of service or the removal, dismissal or super session of the ex-officers. In fact section 86 had expressly excluded disciplinary action from its ambit. This judgment, therefore, does not support the learned counsel for the petitioner.

The next case relied upon by the learned counsel in South Arcot Co-operative Motor Transport Society Ltd. Vs. Syed Batcha and Others, , in which a Division Bench of the Madras High Court held that the respondents to the appeals were not workmen but they were share-holders of the society and any claim in regard to their service conditions was a matter touching the business of the co operative society. This observation does not hold good to a case where the employers or workmen are strangers and are not the members of the society. In the Madras case only members were the employees of the co-operative society and their case was brought within the ambit of clause (c) of sub-section (1) of section 51 according to which any dispute between the society and its members who were its share-holders regarding any claim had only to be referred to the Registrar for decision. This case also does not help the learned counsel for the petitioner as it is distinguishable on facts.

A Division Bench of this Court held in The The Jullundur Transport Co-operative Society Vs. The Punjab State and Another, , that an industrial dispute between a Co-operative Society under tin Punjab Co operative Societies Act and its workmen can, under the law, be referred to an Industrial Tribunal set up under the Industrial Disputes Act. The learned Judges were interpreting the words "touching the constitution or business of the society" in section 50(1) of the Punjab Co operative Societies Act, 14 of 1955, and it was held (as per head note ''A'') as under:

The disputes contemplated by section 0 are not intended by the Legislature to cover all kinds of disputes and this provision is not meant to be all embracing. A reading of sub-section (1) of section 50 clearly shows that though the words ''touching the constitution or business of the society'' are unqualified and extremely wide and comprehensive, still the Legislature did not intend to include in this expression ''industrial disputes'' for the adjudication of which the Parliament has enacted the Industrial Disputes Act. The proviso to section 50 (1) supplies a key to the intention of the Legislature and it almost conclusively suggests that it is only such disputes as are capable of being tried by a regular suit which are covered by the provisions of section 50. It is also significant that there is no provision in the Co-operative Societies Act which excludes the applicability of the Industrial Disputes Act to the industrial disputes which may arise between co-operative societies and their workmen. Besides, the Industrial Disputes Act is a special enactment dealing with the special subject of industrial disputes and special provisions have been made in this statute for setting up Tribunals qualified for adjudicating upon them. The Punjab Co-operative Societies Act when considered in this light is, on the other band, a general enactment and its provisions must yield to the provisions of the Industrial Disputes Act whenever the provisions of the latter Act are by their language clearly applicable to a particular dispute. In this view of things there is no inconsistency between the Punjab Act and the Central Act. They can both co-exist and be enforced without clashing.

This judgment gives a direct answer to the argument of the learned counsel for the petitioner that section 55 of the Act bars the reference of the dispute between the petitioner-bank and respondents 3 to 11 u/s 10 of the Industrial Disputes Act.5. As a result of the above discussion, I hold that sections 55 and 82 of the Act did not bar the reference of the dispute between the management of the petitioner-bank and respondents 3 to 11, in this case by the State Government for adjudication to a Labour Court u/s 10 of the Industrial Disputes Act. Section 79 of the Act has no applicability and has not even been referred to by the learned counsel.

The next point argued is the one covered by issues 3 and 4 framed by the learned Labour Court. The basis of this argument is that bye-law 37 framed by the petitioner- bank gives the power to appoint, dismiss, suspend or punish salaried or unsalaried employees of the bank, to the Board of Directors and if any employee is aggrieved by the order of the Board of Directors dismissing, suspending or otherwise punishing him, he can file an appeal from the order to the Registrar, Co-operative Societies, and the decision of the appellate authority has been made final and binding on the employee. It is submitted that respondents 3 to 5 did file appeals and these were pending when the State Government referred their dispute to the Labour Court for adjudication. These respondents, having adopted the remedy provided under the bye-laws, could not approach the Government for reference of their dispute for adjudication to the Labour Court. Respondents 6 to 11 did not avail themselves of the remedy of appeal under the said bye-laws and for this reason the decision of the Directors became final and there could not be said to be any dispute existing between them and the management of the petitioner-bank which could be referred u/s 10 of the Industrial Disputes Act. The learned counsel for respondents 3 to 5 has filed affidavits stating that they have withdrawn their appeals by making applications to the Registrar, Cooperative Societies. Remedy by way of appeal was neither adequate nor efficacious because the appeals which had been filed on 24th November, 1965, 29th November, 1965 and 6th December, 1965 had not yet been heard. In my opinion if two remedies are open to a person for redress of his grievances, it is open to him to adopt one of them or both of them and if he gets relief under one remedy, he can always give up the other one. He cannot take advantage of both the remedies. The adoption of one remedy at one stage will not bar him from adopting the other remedy at another stage provided no relief has been given to him under the remedy adopted earlier. For filing an appeal under bye-law 37 a time limit must have been provided and these respondents, by way of caution, filled the appeals within the period of limitation but the appeals went on pending for so long that no relief was afforded to them They were, therefore, justified in approaching the State Government for referring their dispute for adjudication to the Labour Court u/s 10 of the Industrial Disputes Act. Respondents 6 to 11 cannot be said to have lost their remedy of getting their disputes adjudicated u/s 10 of the Industrial Disputes Act merely because they did not adopt the remedy of appeal under bye-law 37. The condition precedent to making a reference u/s 10 of the Industrial Disputes Act is that the Government should be satisfied that an industrial dispute exists between the parties. In the instant case the Governor came to that conclusion as is stated in the notification and the opinion of the Governor about the existence of the industrial dispute cannot be challenged in a writ petition. By filing appeals or retraining from filing appeals the industrial dispute that existed between the management and respondents 3 to 11 did not get settled. The decision of the Board of Directors dismissing respondents 3 to 5 and superseding respondents 6 to 11 in the matter of promotion gave rise to the industrial dispute between the petitioner bank and respondents 3 to 11 and it had not been settled in any manner was the Governor of Punjab decided to make a reference of that dispute to the Labour Court u/s 10 of the Act.

In support of his argument, the learned counsel has referred to certain judgments of their Lordships of the Supreme Court in which alternative remedy has been held to be a bar to a writ petition under Article 226 of the Constitution. Evidently, those judgments have no relevancy to the facts of this case wherein the reference of industrial dispute to the Labour Court is argued to be incompetent in view of the provision of appeal in a bye-law of the petitioner-bank. It is also well settled that alternative remedy is no bar to a petition under Article 226 of the Constitution and it is for the Court to decide the writ petition on merits or to dismiss it leaving the petitioner to seek his alternative remedy under any statute. There is, therefore, no substance in this argument of the learned counsel.

The last point argued is that Shri H C. Gupta was not a ''workmen'' as defined in section 2(s) of the Industrial Disputes Act and, therefore, no reference qua him could be made u/s 10 of the said Act. For deciding this point, the definition of ''industry'', ''industrial dispute'' and ''workman'' are relevant and are reproduced below:

2(j) ''industry'' means any business, trade, undertaking, manufacture of calling of employers includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen;

(k) ''industrial dispute'' means any dispute or difference between employers and employers or between employers and workmen,'' or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person;

(s) ''workman'' means any person (including an apprentice) employed in any industry to do any skilled or un-skilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has b"en dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any person-

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature.

Shri M.C. Gupta had joined service with the petitioner-bank as a clef k from which post he was promoted as Accountant and at the time his services were terminated he was working as Branch Incharge at Rampura Phul Branch of the bank. Before his posting at Rampura Phul the charge of that branch was held by a clerk and after his services were terminated, he was relieved by another clerk who officiated in his place till he was relieved by some other employee. As Branch Incharge he had powers to assign duties to the employees posted at that branch and also to himself without interference by the Head Office. The applications for leave made by the members of the staff at that branch were presented to him which he forwarded with his recommendation to the Head Office. According to bye law 53 he was competent to exercise all powers detailed therein subject to the control of the Managing Director/ Branch Secretary. By virtue of those powers, Shri H. C. Gupta as Branch Incharge could superintend the working of the office and he was also responsible for the proper and punctual maintenance of accounts, including the cash book and ledger, showing the accounts of every shareholder, depositor, creditor and borrower and stock register; sanction loans to member societies within their sanctioned credit limit and to members and non-members on the security of their deposits; receive deposits and issue receipts; borrow money with the previous sanction of the Registrar from any registered Central Co-operative Bank; to receive money due to the bank and give receipts for the same; to pay money due from the bank; to incur contingent expenditure subject to the sanction of the Board of Directors; to sign on behalf of the bank and conduct its correspondence; to certify copies of entries in the books as required under the Act; generally to conduct the current business of the bank and to perform all duties entrusted to him by the Board of Directors and to make, sign, accept, endorse and transfer promissory notes, cheques, drafts, bills of exchange, hundis, debentures, securities and other negotiable and non-negotiable instruments in the name and on behalf of the bank joint with others in accordance with bye-law 45. On the basis of these powers which Shri H. C. Gupta was competent to exercise, it has been submitted that he was employed mainly in a managerial or administrative capacity and, therefore, was not a ''workman'' as defined in section 2(s) of the Industrial Disputes Act. I regret my inability to agree to this submission. Shri H. C. Gupta had no independent powers of taking decisions. He could not sanction leave but only forwarded the leave applications for sanction to the Head Office. His powers enumerated above were also subject to the control of the Managing Director/Branch Secretary. The maintenance of proper and punctual accounts does not partake of managerial or administrative capacity. He could advance loans to member societies only within their sanctioned credit limits and to members and non-members on the security of their deposits. These and other powers could only be said to be of a supervisory nature and not of a managerial or administrative character. ''Managerial'', according to the Oxford English Dictionary, means "of or pertaining to or characteristic of a manager". ''Manager'' means one who manages and ''Manage'' means to control and direct the affairs of a household, institution, state, etc. ''Administrative'' means pertaining to, or dealing with, the conduct or management of affairs; executive. The word ''manager'' has been defined in section 2(24) of the Companies Act, 1956, to mean "an individual (not being the managing agent), who, subject to the superintendence, control and direction of the Board of directors, has the management of the whole, or substantially the whole, of the affairs of a company, and includes a director or any other person occupying the position of a manager, by whatever name called, and whether under a control of service or not." The words ''managerial'' or ''administrative capacity used in the definition of ''workmen'', in my opinion, refer to a person who has overall control of the whole affairs of the company or industry and not only of a branch or a department thereof. He must have the power to take initiative and to take decisions on important matters. A person who holds charge of a branch or a department may be said to be employed in a supervisory capacity and if his wages do not exceed Rs. 500/- per mensem, he will be a workman. In the instant case I find that Shri H. C. Gupta could exercise only those powers which were delegated to him by the Board of Directors and within the limits prescribed therefore and only for the branch of which he held the charge. He had no power to take a decision with regard to the affairs of the petitioner-bank as a whole. His functions can be described more appropriately as supervisory than as managerial or administrative ''Supervision'' means general management, direction, or control; oversight, superintendence, according to the Oxford English Dictionary. As Pranch In-charge of Rampura Phul Branch, Shri H. C. Gupta was drawing a salary of less than Rs. 300/- and, therefore, he was a ''workman.'' as per definition in section 2(s) of the Industrial Disputes Act, as his salary did not exceed Rs. 500/- per mensem. His dispute with the management of the petitioner-bank was, therefore, an industrial dispute which could be referred for adjudication to a Labour Court u/s 10 of the Industrial Disputes Act.

For the reasons given above, I find no merit in this Writ petition which is dismissed with costs. Counsel''s fee Rs. 100/- for respondent 1 and Rs. 300/- for respondents 3 to 11.