Mr. Aniruddh Sharma, Advocate. vs S/o Sh. Baisakhi Ram,

Heard learned counsel for the parties and perused the record.

06. Mr. Rahul Pant, learned senior Advocate appearing on behalf of the petitioner-bank at the very outset while making his submissions in line with the contentions raised and grounds urged in the petition, would vehemently contend that the appeal preferred by the respondent 1 against the order of termination (supra) before the Registrar was incompetent, as the Registrar had no competence and jurisdiction under the Act of 1989 either to entertain the appeal of the respondent 1 herein or else to render any decision thereof qua the order of termination (supra) challenged therein by the respondent 1 herein. 8 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 Mr. Pant would further contend that even the tribunal-respondent 2 herein did not have any competence, power or jurisdiction to entertain the revision petition filed by the respondent 1 herein against the order of the Registrar dated 07.01.2002 or else to render any decision thereof, including the one dated 26.03.2003 impugned in the instant petition.

07. On the contrary, Mr. Anuj Dewan Raina, learned counsel appearing for the respondent 1 while opposing the contention of Mr. Pant would submit that the plea of jurisdiction was never raised by the petitioner-bank either before the Registrar or before the tribunal- respondent 2 herein, as such, the petitioner-bank is precluded from raising such a plea of jurisdiction for the first time before this Court in the instant petition.

08. Having regard to the aforesaid issue of jurisdiction raised by the learned senior counsel for the petitioner-bank and opposed by the learned counsel for the respondent 1, it is deemed appropriate to address to the said issue in the first instance, in that, said issue goes to the root of the case. 9 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004

09. The Apex Court in case titled as “Jagmittar Sain Bhagat Vs. Health Services, Haryana” reported in 2013 (10) SCC 136 wherein at paras 9, 10 and 11 following has been laid down and held:- becomes “9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).

10. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 SCC 193, this Court, after placing reliance judgments particularly on large number of its earlier in Premier Automobiles Ltd. v. K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; and Chandrika Misir & Anr. v. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, “performance cannot be forced in any other manner.”

11. Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing;, “it is an objection going to the nullity of the order on the ground of want of jurisdiction”. Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional 10 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide: Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of Jeypore, AIR 1919 PC 150; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. & Anr., AIR 2005 SC 4446; and Carona Ltd. v. M/s. Parvathy Swaminathan & Sons, AIR 2008 SC 187).”

10. In view of the aforesaid legal position, the contentions of the learned counsel for the respondent 1 herein that the plea of jurisdiction raised by the learned counsel for the petitioner-bank cannot be entertained now merits rejection and is, accordingly, rejected.

11. Having held that the question of jurisdiction can be raised by the petitioner-bank and entertained at this stage of the proceedings, the next issue to be addressed by this Court would be as to whether the Registrar as well as tribunal have had jurisdiction to adjudicate upon the matter/s instituted by the respondent 2 herein.

12. Before proceeding further in the matter, it would be pertinent to refer to the provisions of Section 70 of the Act of 1989 being relevant herein which is extracted and reproduced herein under:- “70. Dispute which may be referred to arbitration:-

1. Notwithstanding anything contained in any law for the time being if any dispute touching the constitution, management or the business of a Co-operative Society arises: in force, 11 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 a. Among members, past members and persons claiming through a member, past member or deceased member, and sureties of members, past members or deceased members whether such sureties are members or non- member; or b. Between any member, past members or persons claiming through a member, past members or deceased member, or sureties of members, past members or deceased members and the society, its committee or any officer, agent or employee of the society; 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 representative of any deceased officer, deceased agent or deceased employee or the society; or d. operative Society. Between the society and any other Co- Such disputes 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 disputes.

2. For the purpose of sub-section (1) the following shall be deemed constitution, management or the business of a Co-operative society, namely:- touching dispute a. b. c. d. A claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of deceased member, whether such debt or demand be admitted not; 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 the default of the principal debtor whether such debt or demand is admitted or not; Any dispute arising in connection with the election of any office of the society; The question whether a person is or was member of a Cooperative society or not 12 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004

3. If any question 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.”

13. Keeping in mind the aforesaid provisions of Section 70 and reverting back to the case in hand it needs to ascertain as to whether the appeal preferred before the Registrar by the respondent 1 herein against the order of termination, falls within the ambit and scope of the Section 70 of the Act (supra) and constituted a dispute touching either the constitution, management or the business of the bank and that the Registrar was possessed of the jurisdiction to adjudicate upon and to decide such a dispute. The said question, however, stands answered by the Apex Court in case titled as “Gujarat State Co-operative Land Development Bank Limited Vs P. R. Mankad” reported in 1979 (3) SCC 123 wherein following came to be observed and held qua held by the Apex Court in respect of an identical issue arising out of Bombay Co-operative Societies Act, 1925/1961:- “16. Before appreciating the contentions canvassed on both sides, it is necessary to notice the relevant provisions of the Act of 1925 and the Act of 1961.

17. The relevant part of Section 54 of the Act of 1925, reads thus: 13 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 "(1) (a) If any dispute touching the constitution or business of Society arises between members or past members of the Society or persons claiming through a member or a past member or between members or past members or persons so claiming and any officer, agent or servant of the Society or its Committee, and any officer, agent, member or servant of the Society past or present, it shall be referred to the Registrar for decision by himself or his nominee..."

18. The corresponding Section 96 of the Act of 1961 lays down: "(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a Society shall be referred in the prescribed form.....if the parties thereto are from amongst the following:- (a) a Society, its Committee, any past Committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the Society, or the Liquidator of the Society...."

20. It is significant to note that the phrase "any dispute touching the constitution.... or business of the Society" is a common feature of both the aforesaid Sections. We emphasise this fact, because it is this common feature, rather than the points of difference between the two Sections, that holds the key to a correct solution of the problem before us.

21. From a conspectus of the decisions cited at the Bar, we may devise two broad tests to determine the points in controversy in the instant case. First, whether the expression "any dispute" spoken of in Section 54 of the Act of 1925, and Section 96 of the Act of 1961, is one which is capable of being resolved by the Registrar or his nominee under the relevant Cooperative Societies Act? Second, whether a dispute raised by a servant against his employer, the Cooperative Society, for setting aside his removal from service on the ground that it was an act of victimisation and for reinstatement in service with back wages, is one "touching the management or business of the Society" within the contemplation of the said provisions?

22. As regards the first test, it is to be noted that the expression "any dispute" has not been defined in the Acts of 1925 and 1961. The term "dispute" means a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. The word "any" prefixed to "dispute" may at first glance, appear to give the expression "any dispute" a very wide amplitude covering all classes of disputes, whatever be their nature. But the context of these provisions, the object and scheme of the Acts of 1925/1961 show that the Legislatures never intended to give such a wide scope to this expression. The related provisions and the scheme of the Acts unerringly indicate that the expression "any dispute" has been used in a narrower sense 14 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 limited to contested claims of a civil nature, which could have been decided by civil or revenue courts, but for the provisions with regard to compulsory arbitration by the Registrar or his nominee, found in Section 54 of the Act of 1925/96 of the Act of 1961. The first indication of this being the right construction, is discernible in sub-section (2) of Section 96 which states that when any question arises whether for the purposes of sub- section (1) a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final. This means, it is incumbent on the Registrar to decide as a preliminary issue, whether the dispute is of a kind under sub-section (1) of Section 96 falling within his jurisdiction. If this preliminary issue is found in the negative, he will have no further jurisdiction to deal with the matter.

27. Now, let us turn to the nature of the dispute raised by the second respondent. Is it a dispute relating to a right which he could establish by filing a suit in a Civil Court? ---assuming for the moment that nothing in the relevant Cooperative Societies Act is a bar to such a suit. The answer must be in the negative. The respondent is not claiming a civil right arising from the contract of employment with the appellant-Bank. What he is claiming is not enforcement of any term of the contract of his employment on the part of his employer. He is alleging that his services have been terminated unfairly and vindictively because of his legitimate trade union activities, as an act of victimisation. The relief claimed by him is of reinstatement in service with back wages. The rights and reliefs which he is claiming could not be determined and granted by a Civil Court in a suit. As Luding Teller puts it: A Court of Law proceeds on the footing that no power exists in the Courts to make contracts for people and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties had made. (Quoted with approval in Rohtas Industries Ltd. v. Brijnandan Pandey. (1) The rights claimed by the second respondent are those which are conferred on workmen and employees under the Bombay Industrial Relations Act, to ensure social justice. Such rights which do not stem from the contract of employment can be enforced only in the Labour Court constituted under the B.I.R. Act. The Labour Court is competent to grant the relief of reinstatement claimed by the respondent, while in view of Section 21(b) of the Specific Relief Act, then in force, the Civil Court was not competent to grant that relief.

28. The dispute was raised by the second respondent by writing an approach letter to his employer, the appellant, as required by the Bombay Industrial Relations Act. In substance, it was an industrial dispute. It was not restricted to a claim under the contract or agreement of employment. The Civil Court cannot grant the reliefs claimed by the second respondent. As rightly submitted by Mr. Rama Reddy, if a Court is incapable of 15 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 granting the relief claimed, normally, the proper construction would be that it is incompetent to deal with the matter.

29. The matter can be looked at from another angle, also. The law of industrial disputes or industrial relations is a special law dealing with rights and obligations specially created by it. As against this, the provision in Section 54 of the Act of 1925/Section 96 of the Act of 1961 is a general provision. In accordance with the maxim generalia specialibus non derogant, therefore, nothing in these general provisions can derogate from B.I.R. Act and the Cooperative Society Act must yield to the special provisions in the Bombay Industrial Relations Act, whenever a dispute clearly comes within the language of the latter Act.

30. In the light of the above discussion, the conclusion is inescapable that the expression "any dispute" referred to in Section 54 of the 1925 Act/Section 96 of the 1961 Act, does not cover a dispute of the kind raised by respondent 2 against the appellant-Bank.

31. Coming now to the second test, it may be observed that to a part of it, the pronouncement of this Court in Cooperative Central Bank Ltd. v. Additional Industrial Tribunal, Hyderabad (ibid), furnishes a complete answer, wherein the interpretation of this very phrase "touching the business of the Society" occurring in Section 61 of Andhra Pradesh Cooperative Societies Act, 1964, which largely corresponds to Section 96 of the Gujarat Act, 1961, came up for interpretation. The subject- matter of the dispute was divided into three issues. The first issue comprised a number of service conditions including inter alia salary, scales and adjustment or dearness allowance, conveyance charges, provident fund and gratuity, etc.

32. It was contended on behalf of the Bank that the effect of Section 61 and other provisions of Andhra Pradesh Cooperative Societies Act was to exclude the jurisdiction of the Industrial Tribunal to deal with such disputes under the Industrial Disputes Act. After noticing a number of decisions and after referring to the previous decision of this Court in Deccan Cooperative Bank, the Court negatived the contention with these observations: "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.... 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 16 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 service of its employee, 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...Thus it is clear that in respect of the dispute regarding the 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 Cooperative Bank Ltd., Civil Appeal No. 358 of 1967 dated 29-8- 68, AIR 1969 SC 1320 (supra) 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." The observations quoted above, negate contention (ii) advanced by Mr. Dholakia.

33. It however, remains to be considered whether the dispute raised by the second respondent in the present case, comes within the purview of the expression "touching the management of the Society" used in Section 96(c) of the Act of 1961.

34. In this connection, it may be noticed that just as in Section 96(1), in Section 61 of the Andhra Pradesh Corporation Societies’ Act, 1964, also, which came up for consideration in Cooperative Central Banks’ case before this Court, the term management does occur the collocation of words "constitution, management or business". But no specific argument seems to have been then raised that a dispute between the Society and its former servants relating to the conditions of service, comes within the purview of the expression ’touching the management of the Society’. Perhaps, it was taken for granted that if the dispute was not comprehended by the expression "business of the Society", it would not be covered by the words "management of the Society", either. Although there is little discussion in the judgment about the ambit and import of the expression "management", yet it was clearly and emphatically held that the dispute in that case was "outside the scope of Section 61. in conclusion, focus attention on

35. We will now, the expression "management of the Society" used in Section 96(1) of the Act of 1961. Grammatically, one meaning of the term ’management’ is: ’the Board of Directors’ or ’the apex body’ or Executive Committee at the helm which guides, regulates, supervises, directs and controls the affairs of the Society’. In this sense, it may not include the individuals who under the over-all control of that governing body or Committee, run the day-to-day business of the Society. (see Words and phrases, by West Publishing Co. Permanent Edition, Vol. 26, page 357, citing, Warner & Swasey Co. v. Rusterholz D. C. Minn.(1). Another 17 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 meaning of the term ’management’, may be: ’the act or acts of managing guidance, superintendence, regulation and control the affairs of a Society.’ governing direction,

36. A still wider meaning of the term which will encompass the entire staff of servants and workmen of the Society, has been canvassed for by Mr. Dholakia. The use of the term ’management’ in such a wide sense in Section 96(1) appears to us, to be very doubtful. the effect of smuggling ’management’. A construction

37. Be that as it may, what has been directly bidden "out- of- bounds" for the Registrar by the very scheme and object of the Act, cannot be indirectly inducted by widening the connotation from contexual constraints, having circumscribed limits of the expression "any dispute", a dispute which from its very nature is incapable of being resolved by the Registrar, has to be eschewed. Thus considered, a dispute raised against the Society by its discharged servant claiming reliefs, such as reinstatement in service with back wages, which are not enforceable in a Civil Court, is outside the scope of the expression "touching the management of the Society" used in Section 96(1) of the Act of 1961, and the Registrar has no jurisdiction to deal with and determine it. Such a dispute squarely falls within the jurisdiction of the Labour Court under the B.I.R. Act.

14. In view of the aforesaid position of law obtaining in the matter as laid down by the Apex Court, it is manifest that the Registrar under section 70 of the Act had no jurisdiction to adjudicate upon the dispute raised by the respondent 1 herein with the petitioner-bank herein so also the tribunal lacked jurisdiction in the matter either to entertain the revision petition filed by the respondent 1 or to pass the impugned order.

15. Viewed thus, the plea of jurisdiction raised by the learned counsel for the petitioner in the matter succeeds and consequently, the petition deserves to be allowed. 18 SWP No. 1016/2003 IA No. 1037/2003 IA No. 551/2004 Accordingly, petition is allowed and impugned order dated 26.03.2003 is quashed and, consequently, the appeal and revision filed by the respondent 1 herein before the Registrar and the tribunal shall stand dismissed.

16. In view of the aforesaid position, the rest of the grounds urged by the petitioner-bank in the petition pale into insignificance and need not to be adverted to. (JAVED IQBAL WANI) JUDGE JAMMU 06.02.2024 Bunty Whether the order is speaking: Yes Whether the order is reportable: Yes