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1991 DIGILAW 1265 (ALL)

MOHAN SINGH NEGI v. STATE OF UTTER PRADESH

1991-09-30

K.K.BIRLA, S.K.DHAON

body1991
S. K. DHAON, J. ( 1 ) IN the purported exercise of powers under Section 71 of the U. P. Co-operative Societies Act, 1965 (hereinafter referred to as the act) the arbitrator on 21st April, 1980, passed an award whereby he held that the petitioner was liable to pay sum of Rs. 9,279. 45 P. to the Bhaldawa sadhan Sahkari Samiti Limited, the respondent No. 2 (hereinafter referred to as the Samiti ). The petitioner having failed to pay up the said amount, steps were taken by the Samiti to realise the said sum from him as arrears of land revenue on 3rd February, 1982, the Tehsildar concerned issued a citation calling upon the petitioner to appear before him and pay up a sum of rs. 11,771. 30 P. The recovery proceedings are being impugned in the present petition. ( 2 ) A counter-affidavit has been filed on behalf of the Samiti. A rejoinder-affidavit has been filed by the petitioner. From the exchange of the affidavit between the parties the material facts, which have emerge are these the Samiti had a shop in which it was carrying on the business of sale of foodgrains and other items. The petitioner was employed as a salesman in the said shop. According to the Samiti, the petitioner, in his capacity as a salesman, misappropriated the sale amount, and also committed a criminal breach of trust in respect of sale money and other items entrusted to him. Thus, the petitioner caused loss to the Samiti. After audit inspections, a notice was given by and oa behalf of the Samiti to the petitioner to pay up a certain amount. The petitioner refused to do so. Thereupon the Samiti invoked the provisions of Section 70 of the Act and that is how the matter reached the arbitrator. In spite of due notice given by the arbitrator, the petitioner failed to appear. Eventually, the arbitrator gave his award on 21st april, 1980. ( 3 ) IT is not in dispute that the petitioner did not, at any stage of the proceedings before the arbitrator, challenge the jurisdiction of that officer and the petitioner did not avail the statutory right of appeal as given by the Act. Eventually, the arbitrator gave his award on 21st april, 1980. ( 3 ) IT is not in dispute that the petitioner did not, at any stage of the proceedings before the arbitrator, challenge the jurisdiction of that officer and the petitioner did not avail the statutory right of appeal as given by the Act. ( 4 ) SRI K P. Agarwal, the learned Senior Advocate, appearing on behalf of the petitioner, has urged that since the Samiti could not invoke Section 70 the entire proceedings as initiated by it as well as the award of the arbitrator were void and, therefore, the petitioner was under no obligation to exhaust the remedy of appeal. He has also urged that since the question of jurisdiction goes to the root of the matter, he is entitled to raise it even for the first time in this Court by means of this petition. In view of our decision on the merits of the contention to be given immediately, we do not consider it necessary to give our decision on the aforemention preliminary objections raised by the learned counsel for the Samiti. ( 5 ) SUB-SECTION (1) of Section 70 of the Act, in so far as material to the present controversy, provides that 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 cooperative society other than a dispute regard ing disciplinary action taken against a paid servant of a society arises between the society or its committee and any past committee, any officer, agent or employee or any past officer past agent or past employee such dispute shall be referred to the Registrar for action in accordance with the provisions of the act and the rules and no court shall have jurisdiction no entertain any suit or other proceeding in respect of any such dispute. Sub-section (2) (c) of section 70 is relevant and may be extracted : (2) For the purpose of sub-section (1) the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely (c) a claim by a society for any loss caused to it by a member, officer, agent or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not. ( 6 ) IT is urged on behalf of the petitioner that the words "dispute relating to business" as used in sub-section (1) of Section 70 should be given a restricted meaning. The argument really is that Section 70 read as a whole contemplates a dispute directly arising out of a business transaction between the Samiti and its employee and not a dispute which springs from a pure and simple relationship of employer and employee. For building up this argument reliance is placed upon certain decisions of the Supreme Court. They are (1)dm. Co-operative Sank v. Dalichand, AIR 1960 SC 1370 (2) Co-operative central Bank Limited v. Addl Industrial Tribunal Ahdhra Pradesh Hyderabad, air 1970 SC 245 and (3) Allahabad District Co-operative Bank v. Honuman dan Tewari, AIR 1982 SC 120 . ( 7 ) IN the first case sub-section (1) of Section 91 of the Maharashtra co-operative Societies Act, 1960, is under consideration. It reads : notwithstanding anything contained in any law for the time being in force, any dispute touching the constitution, elections of the office bearers, conduct of general meetings, management or business of a society shall be referred on behalf of any of the parties to the dispute to the Registrar sub-para (iii) of Explanation 2 to sub-section (3) of Section 91 may also be extracted :"a claim by a society for any loss caused to it by a member, past member or deceased member, by any officer, past officer or deceased officer, by any agent, past agent or deceased agent, or by any servant, past servant or deceased servant, or by its committee, past or present, whether such loss be admitted or not "the facts are these. The original owner of a certain property was the chairman of a banking company, which was registered as a co-operative society. He had taken a loan from the bank and as security for the due payment of the loan taken by him he bad deposited the title deed of the said property with the bank and bad thus mortgaged the building to the bank. Upon the failure of the original owner of the property to pay lip the amount due to the bank, the property stood transferred to the bank and the physical possession was also taken by it (the bank ). There were tenants of the property which stood transferred to the Bank. Upon the failure of the original owner of the property to pay lip the amount due to the bank, the property stood transferred to the bank and the physical possession was also taken by it (the bank ). There were tenants of the property which stood transferred to the Bank. The tenants having failed to vacate the property, the Bank initiated proceedings under Section 91. In this background the word "business" is interpreted It is held that the said word has been used in a narrower sense and it means the actual trading or commercial or other similar activities of the society which a society is entitled to enter into under the Act and rules and its bye-laws This authority may have some relevance for interpreting the word business as used in Section 70 of the Act in the context of clause (c) of sub-section (1) of Section 70. ( 8 ) IN the second case sub-section (1) of Section 61 of the Andbra pradesh Co-operative Societies Act, 1964, is under consideration. The words used therein are in part materia with the words used in Section 9 of the Act which was under consideration in the first case. In this case, an industrial dispute arose between the Co-operative Societies Banks and their workmen. The question decided is whether in view of the provisions as contained in section 61 of the Andhra Pradesh Co-operative Societies Act the jurisdiction of the Tribunal under the Industrial Disputes Act is barred. It is held that 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 in required to do for the purposes of carrying 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 the conditions of service of the workmen employed by the society cannot be said to be a dispute touching the business of the society. This authority is again relevant for interpreting clause (c) of sub-section (1) of Section 70 of the Act. ( 9 ) IN the last case Section 70 of the Act is under consideration. This authority is again relevant for interpreting clause (c) of sub-section (1) of Section 70 of the Act. ( 9 ) IN the last case Section 70 of the Act is under consideration. The question is whether a suit for declaration by an employee of a society that retrenchment of his service by the society is illegal as barred under Section 70, relying upon the first two cases, it is held the suit is not barred. This again may be helpful for interpreting clause (c) of sub-section (1) of Section 70. ( 10 ) REVERTING to sub-section (2) of Section 70, we find that by legal fiction the scope of sub-section (1) has been enlarged so as include, amongst other, clause (c) aforequoted. For the purposes of present controversy it is not necessary to express any opinion as to whether the situations enumerated in sub-section (2) are illustrative or exhaustive. Suffice to say that in Rajpal singh v. The Co-operative Tribunal U P. Lucknow, 1978 ALJ 430 it has been held by a Division Bench of this Court that sub-section (2) of Section 70 provides a legal fiction which elaborates and illustrates the disputes, which shall be deemed to be the dispute relating to the constitution, management and business of the society. We have, therefore, to discern the precise scope of clause (c) in sub-section (2 ). ( 11 ) THE words "relating to or in relation to" are words of comprehensiveness which might both have a direct consequence as well as indirect consequence depending on the context. They are not words of restrictive content and ought not to be so construed. In 76 Corpus Juris Secundum 621 the commentary on the word "relate" is : "it is very broad word and it presupposes another subject matter". Applying the meaning assinged to the word "business" by the Supreme Court in the first case cited by the learned counsel for the petitioner, there is no difficulty in taking the view that the sale of foodgrains and other items in the shop run by the Samiti is the normal business acvitity of the Samiti. Indeed, it is not the case of the petitioner that such an activity is not the business of the Samiti. Indeed, it is not the case of the petitioner that such an activity is not the business of the Samiti. The petitioner being a salesman in the shop is directly related with the business of the Samiti, there is a nexus between the petitioner and the business of the Samiti. Therefore, the activity of the petitioner as a salesman is related to the business of the Samiti, ( 12 ) THERE is no dispute that in his capacity as the salesman the petitioner caused loss to the Samiti. The loss has a direct connection with the business of the Samiti and the petitioner as a salesman. The loss, therefore, is related to the business. It is not in dispute that the Samiti called upon the petitioner to pay up a quantified amount and the petitioner refused to pay off the same. This gave me to a dispute. Again the dispute was directly related with the business of the Samiti. The petitioner having failed to pay up the amount, a claim was lodged by the Samiti by initiating proceedings under section 70. Thus, the provisions as contained in clause (c) of sub-section (2)were fully attracted so as to entitle the Samiti to invoke the provisions of section 70. It follows that a competent reference was made to the arbitrator. It also follows that the arbitrator had full jurisdiction to take cognizance of the dispute referred to him and he acted well within his jurisdiction by giving an award as against the petitioner. ( 13 ) THERE is no substance in this petition. It is dismissed with costs. Petition dismissed. .