JUDGMENT Hon’ble Tarun Agarwala, J.—The workman was appointed as a “Sahyogi” by an order dated 2.2.1984 for a fixed period till 31.3.1984 @ Rs. 10.77 per day. After the expiry of the period, fresh appointment orders were again issued for a fixed period and, in this manner, the workman continued to work without any break in service. By an order of 15.5.1984, the petitioner fixed the pay of the workman @ Rs. 245.00 per month plus dearness allowance and housing allowance. According to the workman, this was an order of regularisation which was passed after interviewing him and which was also approved by the U.P. Cooperative Institutional Services Board. On the other hand, the petitioner has refuted this allegation, and contends that the petitioner continued to issue short-term appointment letters and that the last appointment letter issued to the workman, was dated 2.11.1985 which was till 31.3.1985. The workman worked till 31.3.85, and thereafter, no further extension was given and, in this manner, the services of the workman came to an end automatically after 31.3.1985. 2. The workman, being aggrieved by the removal of his services, raised an industrial dispute which was referred to the Labour Court on 31.7.1986. Since the petitioner did not appear, the Labour Court passed an ex parte award dated 25.10.86, directing reinstatement of the workman with back wages. Upon coming to know of the ex parte award, the petitioner filed an application for setting aside the ex parte award, which was rejected by an order of the Labour Court dated 27.6.1987. The petitioner, being aggrieved by the said ex parte award, filed writ petition No. 5112 of 1987, in which, an interim order dated 19.4.1988 was passed directing the petitioner to pay wages last drawn by the workman w.e.f. May 1988 onwards. Instead of paying last drawn wages, the petitioner reinstated the workman, by an order dated 12/16.9.1988. The aforesaid writ petition was allowed by a judgment dated 8.9.89 and the ex parte award was set aside and the matter was remanded to the Labour Court to decide the matter afresh. The Court, however, directed that till the pendency of the dispute before the Labour Court, the petitioner would continue to pay full salary to the workman. 3. The aforesaid writ petition was allowed by a judgment dated 8.9.89 and the ex parte award was set aside and the matter was remanded to the Labour Court to decide the matter afresh. The Court, however, directed that till the pendency of the dispute before the Labour Court, the petitioner would continue to pay full salary to the workman. 3. Before the Labour Court, the petitioner filed the written statement and submitted that the workman was appointed on a fixed term and that his services came to an end automatically upon the expiry of the period and that in view of the provisions of Section 2(oo) (bb) of the Industrial Disputes Act, there was no retrenchment and that the petitioner was not liable to pay any retrenchment compensation and consequently, no reference under Section 2-A of the Act could be made. It is necessary to state here that the petitioner did not raise any plea in the written statement with regard to the applicability of the U.P. Industrial Disputes Act. The Labour Court, after considering the evidence on the record, gave an award dated 9.8.1990 holding that the workman had worked for more than 240 days and was therefore entitled for the payment of compensation. The Labour Court held that since no retrenchment compensation was paid, the cessation of the service of the workman was illegal, and therefore, the workman was liable for reinstatement with continuity of service and with full back wages. 4. The petitioner, being aggrieved by the said award, filed writ petition No. 27947 of 1991 which was again allowed by a judgment dated 17.9.2001 and the matter was remitted again to the Labour Court with certain directions. The Court while remanding the matter, directed the Labour Court to give a finding, as to whether the workman had worked for 240 days in a calendar year or not and whether juniors to the workman were retained by the employer while dispensing with the services of the workman and whether any person was employed after the dispensation of the service of the workman by the employer? 5. 5. During the pendency of the proceedings before the Labour Court, the Supreme Court delivered a judgment in Ghaziabad Zila Sahkari Bank Limited v. Additional Labour Commissioner and others, 2007 (113) FLR 50, in which, it was held that the U.P. Cooperative Societies Act,1965 was a special Act and that the U.P. Industrial Disputes Act was a general Act and that the special Act would prevail over the general Act. The Supreme Court, further held that the U.P. Cooperative Societies Act, 1965 and the U.P. Cooperative Societies Employees Services Regulations, 1975 was a complete code by itself with regard to the service conditions of the employees of the Cooperative Society which provided a complete machinery for the adjudication of their disputes, and therefore, the provisions of U.P. Industrial Disputes Act was not applicable with regard to the adjudication of the claim of an employee of a Cooperative Society. 6. In the light of this judgment, the petitioner raised a plea before the Labour Court that the proceedings are without jurisdiction and that the Labour Court should decline to answer the reference raised by the State Government. The Labour Court, by its award dated 25.1.2008 repelled the contention of the petitioner and found that the petitioner was an industry and that the provision of the U.P. Industrial Disputes Act was applicable. The Labour Court, on the basis of the evidence, led by the parties held the workman had worked for more than 240 days in a calendar year and that the juniors to the workman were retained while dispensing with the services of the workman and also found that the petitioners had not appointed any person after removing the workman concerned. The Labour Court further found that since retrenchment compensation had not been paid and the provisions relating to the retrenchment compensation, had been violated by the petitioner, the Labour Court consequently directed reinstatement of the workman with continuity of service and with full back wages. The petitioner, being aggrieved by the said award, has filed the present writ petition. 7. Since counter and rejoinder affidavits has been exchanged, the matter is being decided at the admission stage itself with the consent of the parties. 8. Heard the learned counsel for the parties. 9. The petitioner, being aggrieved by the said award, has filed the present writ petition. 7. Since counter and rejoinder affidavits has been exchanged, the matter is being decided at the admission stage itself with the consent of the parties. 8. Heard the learned counsel for the parties. 9. Shri K.N. Mishra, the learned counsel for the petitioner submitted that, in view of the decision of the Supreme Court in the matter of Ghaziabad Zila Sahkari Bank Limited (supra), the Labour Court had no jurisdiction to entertain the cases relating to disputes between the Cooperative Societies and its employees, and therefore, the award of the Labour Court, being without jurisdiction, was liable to be quashed. 10. On the other hand, Shri P.K. Sinha, the learned counsel for the workman submitted that the judgment of the Supreme Court can only apply prospectively and could not apply retrospectively to proceedings, which were raised validly, prior to the aforesaid decision. 11. In support of his submission, the learned counsel placed reliance upon a decision in Managing Director, ECIL, Hyderabad v. B. Karunakar, 1993 (67) FLR 1230. The learned counsel further submitted that the Supreme Court in the aforesaid decision of Ghaziabad Zila Sahkari Bank Limited (supra) had not considered its earlier decision in the matter of Gujarat State Cooperative Land Development Bank Limited v. P.R. Mankad and others, AIR 1979 SC 1203 , and therefore, the said decision was per incurium. 12. Shri K.P. Agarwal, an exponent on industrial law, and a Senior Counsel of this Court, expressed his desire to address the Court, which the Court permitted. Shri K.P. Agrawal submitted that the Supreme Court in the Ghaziabad Zila Sahkari Bank Limited (supra) has not taken into consideration various provisions of law and the earlier judgments of the Supreme Court, and therefore, the said decision was per incurium. The learned counsel submitted that Section 70 of the U.P. Cooperative Societies Act excluded service dispute, whereas, the Supreme Court in the aforesaid decision of Ghaziabad Zila Sahkari Bank Limited (supra) has relied upon the provisions of M.P. Cooperative Societies Act and relied upon the decision in R.C. Tiwari v. M.P. State Cooperative Marketing Federation Ltd. and others, 1997 (5) SCC 125 , in which the provision was distinct and different. The learned counsel further submitted that Section 135 of the U.P. Cooperative Societies Act excludes the application of the U.P. Industrial Disputes Act and that the said provision has not as yet been enforced by the legislature and the Courts including the Supreme Court cannot enforce a particular provision. 13. Shri K.P. Agarwal submitted that Section 122 of the U.P. Cooperative Societies Act provides constitution of an authority for recruitment and disciplinary control of the employees of Cooperative Societies and also provides the authority to frame regulations regarding terms and conditions of service, including disciplinary control, pursuant to which, U.P. Cooperative Societies Employees’ Service Regulations, 1975 was enacted, which does not provide any forum for adjudication of a service dispute. 14. Consequently, according to Shri K.P. Agarwal the industrial forum was the only forum under the Industrial Disputes Act for adjudication of a dispute between the employer and its employees. Shri K.P. Agrawal further submitted that under Section 55 of the M.P. Cooperative Societies Act, the Registrar was empowered to decide the dispute, including a dispute regarding the terms of employment, whereas, under Section 70 of the U.P. Cooperative Societies Act, 1965, a dispute regarding disciplinary action is excluded and cannot be decided by the Registrar. 15. Further, under Section 128 of the U.P. Cooperative Societies Act, the Registrar was only empowered to annul any resolution, passed by the Committee of Management, or by the general body of a Cooperative Societies, or cancel any order, passed by an officer of the Cooperative Societies, and that orders regarding termination of the services of an employee, are not covered under this provision. 16. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Gujarat State Cooperative Land Development Bank Ltd. (supra), and Cooperative Central Bank Ltd. and others v. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others, AIR 1970 SC 245 . Shri K.P. Agrawal, consequently, submitted that the observation made by the Supreme Court in Ghaziabad Zila Sahkari Bank Limited (supra) is not a finding but only an observation and cannot be used as a ratio decidendi, and consequently, as a precedent, and therefore, the said judgment was not binding. The learned counsel submitted that in any case, the said judgment was per incurium, and therefore, not binding upon this Court. 17. The learned counsel submitted that in any case, the said judgment was per incurium, and therefore, not binding upon this Court. 17. In rejoinder, Shri K.N. Mishra, the learned counsel for the petitioner submitted that the Act of 1965 and the Regulations of 1975 was a complete Code by itself and could also decide disciplinary disputes. The learned counsel further submitted that the appointment of the workman was made under statutory rules, and therefore, the concept of ‘industry’, to that extent, was excluded, and consequently, the Industrial Disputes Act could not be made applicable or invoked. In support of his submission, the learned counsel placed reliance upon a decision in Himanshu Kumar Vidyarthi and others v. State of Bihar and others, JT 1997 (4) SC 560. 18. Having given my considerable thought in the matter, this Court is not inclined to agree with the submission of the learned counsel for the respondent that the judgment of the Supreme Court in Ghaziabad Zila Sahkari Bank Limited (supra) was per incurium, and that, the provision of the U.P. Cooperative Societies Act had wrongly been interpreted by the Supreme Court. This Court is not in a position to hold that the judgment of the Supreme Court is per incurium or that a particular provision of the Act or the Regulations was wrongly applied. 19. In so far as, as to whether the judgment of the Supreme Court is prospective or not, this Court is of the opinion that the judgment of the Court is always retrospective unless the Court directs that it should be prospective. 20. However, in the facts and circumstances of this very case, this Court is not inclined to interfere in the impugned Award on the mere ground that the Labour Court has no jurisdiction to decide the matter, as this Court feels that in the facts and circumstances of this present case, the judgment of the Supreme Court cannot be made applicable for the reasons stated hereunder : The workman has been fighting for his right by raising an industrial dispute since 1985. The matter has been adjudicated before the Labour Court on three occasions and the dispute has not reached its finality. The matter has been adjudicated before the Labour Court on three occasions and the dispute has not reached its finality. This Court is of the opinion that there will be a travesty of justice if the claim of the workman is rejected at this stage, after 25 years, on the ground that the Labour Court had no jurisdiction to adjudicate upon the dispute between a Cooperative Society and its employees. This Court is further fortified by the fact that, in the earlier round of litigation before the Labour Court, the petitioner had accepted that an industrial dispute was the appropriate forum for adjudication of the dispute and had not raised any plea in their written statement. The employer only contended that the U.P. Industrial Disputes Act was not applicable, and that, the Industrial Disputes Act (Central) was applicable. Consequently, the petitioner, having acquiesced to the jurisdiction of the Labour Court, cannot turn around and contend that the Labour Court had no jurisdiction to adjudicate upon the dispute, after the Supreme Court had given the decision in Ghaziabad Zila Sahkari Bank Limited (supra). 21. There is another aspect of the matter. The High Court, in its judgment dated 17.9.2001, had rejected the plea of the petitioner that Industrial Disputes Act was not applicable and held that an industrial dispute could be raised between the parties, and that, the Labour Court had jurisdiction to decide the dispute. This judgment, inter se between the parties, became final, which was not challenged by the petitioner before the Supreme Court. The said judgment became binding upon the petitioner and it was no longer open to the petitioner to raise this plea either before the Labour Court or before this Court, merely because, in the meanwhile, a decision of the Supreme Court had been delivered. 22. This Court further finds that the High Court, by its judgment dated 17.9.2001, had remitted the matter to the Labour Court on a limited point, namely, to give a finding as to whether the workman had worked for more than 240 days in a calendar year or not, and whether juniors to the workman were retained by the employer by dispensing with the services of the workman, and whether any person was employed by the employer after the dispensation of the services of the workman. 23. 23. The Labour Court has given a finding that the workman had worked for more than 240 days in a calendar year, and that, juniors to the workman were retained while dispensing the services of the workman, and that the action of the employer was discriminatory. The petitioner, while challenging the said award, could only confine the writ petition to the said findings and could not enlarge the scope of the writ petition by raking such issues which had already been decided by the High Court by its earlier judgment. 24. Consequently, this Court is of the opinion that it is no longer open to the petitioner to raise the issue of the jurisdiction of the Labour Court again. 25. This Court further finds that the finding of the Labour Court that the workman had worked for more than 240 days is based on material evidence on record which, being a finding of fact, cannot be interfered with in a writ jurisdiction. The Court finds that the juniors to the workman were retained, whereas the services of the workman was dispensed with for the reasons best known to the employers. The action of the employer was patently arbitrary and discriminatory. The submission of the petitioner that the appointment of the workman was made pursuant to the Regulations framed under the Cooperative Societies Act is a mere afterthought, and no pleading, in this regard, has been filed, nor any order has been shown which would show that the appointment of the petitioner was based on any provision of the U.P. Cooperative Societies Act or its Rules and Regulations. Consequently, the plea that the appointment of the workman was made under the statutory rules and, therefore, the concept of ‘industry’, to that extent, was included, and therefore, the Industrial Disputes Act was not applicable, is patently an afterthought and is not based on any material evidence on record. 26. For the reasons stated aforesaid, the writ petition is dismissed with the following direction : The workman respondent No. 2 will be reinstated by the petitioner bank within four weeks from today. 26. For the reasons stated aforesaid, the writ petition is dismissed with the following direction : The workman respondent No. 2 will be reinstated by the petitioner bank within four weeks from today. Since during this period of 25 years, the petitioner has paid to the workman last drawn wages and had also reinstated him pursuant to the interim order of this Court at some point of time and for that period, he was paid the wages, consequently, the award of the Labour Court directing payment of back wages is modified and instead of remitting the matter to the Labour Court again for computation, this Court hereby awards a lump sum amount of Rs. 75,000 towards arrears of wages including cost for this long litigation which has been made at the behest of the petitioner. The award is modified to that extent. ————