Input:
ivil Appeal Nos.
632 635 of 1980.
Appeals by Special Leave from the Award dated 1 3 1979 of the Central Government Industrial Tribunal cum Labour Court in I.D. No. 77 of 1977 and 67, 68 and 72 of 1977 respectively published in the Gazette of India dated 28 4 1979.
R. K. Garg, N. C. Sikri and A. K. Sikri for the Appellants.
G. B. Pai, O. C. Mathur and K. J. John for the Respondent No. 2.
The Judgment of V. R. Krishna Iyer and O. Chinnappa Reddy.
JJ. was delivered by Chinnappa Reddy, J. R. section Pathak, J. gave a separate opinion.
792 CHINNAPPA REDDY, J.
The facts of the four appeals before us (except the cases of Usha Kumari and Madhu Bala, two out of the seven appellants in Civil Appeal No. 633 of 1980) are almost identical with the facts in Santosh Gupta vs State Bank of Patiala decided by this Court on April 29, 1980.
Not unnaturally the appellants claim that they should be given the same reliefs as were given to the workman in that case, but which have been denied to them by the Labour Court in the instant cases.
The Labour Court found, as a fact, that except in the cases of three workmen, section C. Goyal, Usha Kumari and Madhu Bala, the termination of the services of the remaining appellants workmen was in violation of the provisions of section 25F of the and therefore invalid and inoperative.
But, as the termination of their services was a consequence of their failure to pass the tests prescribed for permanent absorption into the service of the Bank and as it was thought their reinstatement would have the effect of equating them with workmen who had qualified for permanent absorption by passing the test, the Labour Court refused to give the workmen the relief of reinstatement in service with full back wages, but, instead, directed payment of compensation of six months ' salary to each of the workmen, in addition to the retrenchment compensation.
The appellants claim that they should be awarded the relief of reinstatement with full back wages as was done in the case of Santosh Gupta vs State Bank of Patiala (supra) and other earlier cases decided by this Court.
On the other hand the learned counsel for the employer contended that non compliance with the requirements of section 25F of the did not render the termination of the service of a workman ab initio void but only made it invalid and inoperative and that the Court, when setting aside the termination of the services of a workman on the ground of failure to comply with the provisions of section 25F, had full discretion not to direct reinstatement with full back wages, but, instead, to direct the payment of suitable compensation.
The learned counsel invited our attention to cases where such discretion had been exercised and to other cases arising under sections 33 and 33A of the where it was held that discharge of workmen during the pendency of proceedings, without the previous permission in writing of the authority before which the proceeding was pending was not ab initio void and that the Labour Court or the Tribunal was not bound to direct reinstatement merely because it was found that there was a violation of section 33.
793 In Santosh Gupta vs State Bank of Patiala, (supra) the facts of which case were identical with the facts of the cases before us, this Court found "that the discharge of the workman on the ground that she did not pass the test, which would have enabled her to be confirmed, was retrenchment within the meaning of section 2(oo) and, therefore, the requirements of section 25F had to be complied with".
On that finding, the relief which was awarded was: "the order of the Presiding Officer Central Government Industrial Tribunal cum Labour Court, New Delhi, is set aside and the appellant is directed to be reinstated with full back wages".
Earlier, in Hindustan Steel Ltd. vs The Presiding Officer Labour Court, Orissa and Ors., a Division Bench of this Court consisting of Chandrachud, Goswami and Gupta JJ, on a finding that there was a contravention of the provisions of section 25F of the , affirmed the award of the Lower Court directing reinstatement with full back wages.
In another case M/s. Avon Services Production Agencies (P) Ltd. vs Industrial Tribunal, Haryana and Ors., Krishna Iyer and Desai JJ found that there was retrenchment without compliance with the prescribed conditions precedent.
Therefore, they said "the retrenchment was invalid and the relief of reinstatement with full back wages was amply deserved".
In M/s. Swadesamitran Limited, Madras vs Their Workmen dealing with an argument that even if the impugned retrenchment was justified, reinstatement should not have been ordered, Gajendragadkar, Subba Rao and Das Gupta JJ observed: "Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled.
Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement.
The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement.
This Court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (Vide :The Punjab National Bank Ltd. vs The All India Punjab National Bank Employees ' 794 Federation ; and National Transport and General Co. Ltd. V. The Workmen (Civil Appeal No. 312 of 1956 decided on January 22, 1957).
" In State Bank of India vs Shri N. Sundara Money, a Division Bench of this Court consisting of Chandrachud, Krishna Iyer and Gupta JJ held that a certain order of retrenchment was in violation of the provisions of section 25F and was, therefore, invalid and inoperative.
After so holding, they proceeded to consider the question of the relief to be awarded.
They observed: "What follows ? Had the State Bank known the law and acted on it, half a month 's pay would have concluded the story.
But that did not happen.
And now, some years have passed and the Bank has to pay, for no service rendered.
Even so, hard cases cannot make bad law.
Reinstatement is the necessary relief that follows.
At what point ? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw were he to be appointed in the same post today de novo.
As for benefits if any, flowing from service he will be ranked below all permanent employees in that cadre and will be deemed to be a temporary hand upto now.
He will not be allowed to claim any advantages in the matter of seniority or other priority inter se among temporary employees on the ground that his retrenchment is being declared invalid by this Court.
Not that we are laying down any general proposition of law, but make this direction in the special circumstances of the case.
As for the respondent 's emoluments, he will have to pursue other remedies, if any".
We do not propose to refer to the cases arising under section 33 and 33A of the or to cases arising out of references under sections 10 and 10A of the .
Nor do we propose to engage ourselves in the unfruitful task of answering the question whether the termination of the services of a workman in violation of the provisions of section 25F is void ab initio or merely invalid and inoperative, even if it is possible to discover some razor 's edge distinction between the Latin 'Void ab initio ' and the Anglo Saxon 'invalid and inoperative '.
Semantic luxuries are misplaced in the interpretation of 'bread and butter ' statutes.
Welfare statutes must, of necessity, receive a broad interpretation.
Where legislation is designed to give relief against certain kinds of 795 mischief, the Court is not to make inroads by making etymological excursions. 'Void ab initio '. 'invalid and inoperative ' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen.
Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen.
It is as if the order has never been and so it must ordinarily lead to back wages too.
But there may be exceptional circumstances which make it impossible or wholly inequitable vis a vis the employer and workmen to direct reinstatement with full back wages.
For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on.
In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders.
The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down.
The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer.
In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages.
That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown.
True, occasional hardship may be caused to an employer but we must remember that, more often than not.
comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.
In the cases before us we are unable to see any special impediment in the way of awarding the relief.
The Labour Court appears to have thought that the award of the relief of reinstatement with full back wages would put these workmen on a par with who had qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter.
First, they can never be on par since reinstatement would not qualify them for permanent absorption.
They would continue to be temporary, liable to be retrenched.
Second, there is not a shred of evidence to suggest that their reinstatement would be a cause for dissatisfaction to anyone.
There is no hint in the record that any undue burden would be placed on the employer if the same relief is granted as was done in Santosh Gupta vs State Bank of Patiala (supra).
The cases of Usha Kumari and Madhu Bala were treated by the Labour Court as distinct from the cases of all the other appellants 796 on the ground that, though they had worked for more than two hundred and forty days in the preceding twelve months, they had not been in employment for one year.
It appears that Usha Kumari and Madhu Bala were in the employment of the Bank from May 4, 1974 to January 29, 1975 and had worked for 258 and 266 days respectively during that period.
As the period from May 4, 1974 to January 29, 1975 was not one year, it was conceded before the Labour Court that there was no violation of the provisions of section 25F of the .
Before us, the concession was questioned and it was argued that there was non compliance with the requirements of section 25F of the Act.
Since the facts were not disputed, we entertained the argument and heard the counsel on the question.
The concession was apparently based on the decision of this Court in Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen.
That decision was rendered before section 25B, which defines continuous service for the purposes of Chapter VA of the was recast by Act 36 of 1954.
The learned counsel for the employer submitted that the amendment made no substantial difference.
Let us take a look at the statutory provisions.
section 25 F, then and now, provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until certain conditions are fulfilled.
section 25 B 's marginal title is 'Definition of continuous Service '.
To the extent that it is relevant section 25 B(2) as it now reads is as follows: "Where a workman is not in continuous service. . for a period of one year or six months, he shall be deemed to be in continuous service under an employer. . . . (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than. . (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days in any other case; (b). . . Explanation. . .
The provision appears to be plain enough.
Section 25 F requires that a workman should be in continuous service for not less than one year 797 under an employer before that provision applies.
While so, present section 25 B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months.
There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months.
In fact, the thrust of the provision is that he need not be.
That appears to be the plain meaning without gloss from any source.
Now, section 25 B was not always so worded.
Prior to Act 36 of 1964, it read as follows : "For the purposes of Section 25 F and 25 F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year 's continuous service in the industry.
Explanation. . . " The difference between old 25 B and present 25 B is patent.
The clause "where a workman is not in continuous service . for a period of one year" with which present section 25 B(2) so significantly begins, was equally significantly absent from old section 25 B.
Of the same degree of significance was the circumstance that prior to Act 36 of 1964 the expression "Continuous Service" was separately defined by section 2(eee) as follows: "(eee) 'continuous service ' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or lock out or a cessation of work which is not due to any fault on the part of the workman;" section 2(eee) was omitted by the same Act 36 of 1964 which recast section 25 B. section 25 B as it read prior to Act 36 of 1964, in the light of the then existing section 2(eee), certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one year 's completed service so as to attract the provisions of section 25 F.
That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. vs Their Workmen (supra).
The Court said: "On the plain terms of the section (section 25 F) only a workman who has been in continuous service for not less than 798 one year under an employer is entitled to its benefit. 'Continuous Service ' is defined in section 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock out or a cessation of work which is not due to any fault on the part of the workman.
What is meant by "one year of continuous service ' has been defined in section 25B.
Under this section a workman who during a period of twelve calendar months has actually worked in an industry for not less 240 days shall be deemed to have completed service in the industry. . .
The position (therefore) is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days.
In our opinion that would not satisfy the requirement of section 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days.
Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more".
Act 36 of 1964 has drastically changed the position.
section 2(eee) has been repealed and section 25 B(2) now begins with the clause "where a workman is not in continuous service. for a period of one year".
These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year.
It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year.
So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants.
In the result all the appeals are allowed and the workmen appellants are directed to be reinstated with full back wages.
We, however, super impose the condition that the salary on reinstatement of the workmen will be the salary which they were drawing when they were retrenched (subject of course to any revision of scales that might have been made in the meanwhile) and the period from the date of retrenchment to the date of reinstatement will not be taken 799 into account for the purpose of reckoning seniority of the workmen among temporary employees.
The respondent is free to deal with its employees, who are temporary, according to the law.
There will be no order regarding costs.
PATHAK, J. I entirely agree with may learned brother Chinnappa Reddy in the order proposed by him.
The appeals raise strictly limited questions.
The appeals by Usha Kumari and Madhubala involve the question whether they can be regarded as being in continuous service for a period of one year within the meaning of section 25B(2), and if so, to what relief would they be entitled.
The remaining appeals require the court to examine whether the appellants should have been awarded reinstatement with back wages instead of the curtailed relief granted by the Industrial Tribunal cum Labour Court.
That is the entire scope of these appeals.
No question arises before us whether the termination of the services of the appellants amounts to "retrenchment" within the meaning of section 2(oo) of the Act.
The respondent Bank of India has apparently accepted the finding of the Industrial Tribunal cum Labour Court that the termination amounts to retrenchment.
It has not preferred any appeal.
I mention this only because I should not be taken to have agreed with the interpretation of section 2(oo) rendered in Santosh Gupta vs State Bank of Patiala.
Proceeding on the footing mentioned above, my learned brother Chinnappa Reddy has, I say with respect, rightly concluded that on the facts and circumstances before us the appellants should be reinstated with full back wages subject to the proviso that the salary on reinstatement will be the salary drawn by the respective appellants on the date of their retrenchment, qualified by the impact of any revisional scale meanwhile, and subject to the further proviso that the period intervening between the date of retrenchment and the date of reinstatement will be omitted from account in the determination of the seniority of these appellants among temporary employees.
Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement with full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief.
It has not been shown to us on behalf of the respondent why the ordinary rule should not be applied.
800 On the other question decided by my learned brother I have no hesitation in agreeing that having regard to the simultaneous amendments introduced in the by Act No. 36 of 1964 the deletion of section 2(eee) and the substitution of the present section 25B for the original section it is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of section 25B.
It is sufficient for the purposes of section 25B(2) (a) (ii) that he has actually worked for not less than 240 days during the preceding period of 12 calendar months.
The law declared by this Court in Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen does not apply to situations governed by the subsequently substituted section 25B of the Act.
With these observations, J concur with the order proposed by my learned brother.
P.B.R. Appeals allowed.

Output:
The respondent Bank terminated the services of the appellants on the ground that they could not pass the prescribed tests for their permanent absorption in its service.
On reference the Labour Court held that the Bank 's action in terminating their services (except in the case of two workmen) was in violation of section 25F of the and, therefore, was invalid and inoperative.
The Labour Court, however, refused to order their reinstatement with full back wages on the ground that reinstatement would have the effect of equating them with workmen who had qualified for permanent absorption by passing the test; instead it directed payment of compensation of six months ' salary in addition to retrenchment compensation.
In Santosh Gupta vs State Bank of Patiala it was held by this Court that the discharge of the workman for the reason that she did not pass the test which would have enabled her to be confirmed was retrenchment within the meaning of section 2(oo) and therefore the requirement of section 25F had to be complied with.
The workman in that case was directed to be reinstated with full back wages.
The workmen claimed that their case being identical with this case, they should be reinstated with full back wages.
The Bank on the other hand contended that non compliance with the requirements of section 25F did not render the termination of their service void ab initio but made it invalid and inoperative and that the Court had full discretion to direct payment of suitable compensation instead of ordering reinstatement with full back wages.
In respect of two of the seven appellants, however, it was conceded before the Labour Court that these two employees worked in the Bank for a few days more than 240 days during the preceding 12 months and since they had 790 not been in the Bank 's employment for one year, there was no violation of section 25F.
But this concession was questioned before this Court in appeal and it was contended that there was non compliance with the requirements of section 25F.
Allowing the appeals, ^ HELD: [per Krishna Iyer and Chinnappa Reddy, JJ.
Pathak, J. concurring] The five retrenched workmen should be reinstated with full back wages.
When an order terminating the services of a workman is struck down it is as if that order had never been passed and it must ordinarily lead to reinstatement of the workman with full backwages.
In cases where it is impossible or wholly inequitable vis a vis the employer and the worker to direct reinstatement with full back wages, as for instance, where the industry has closed down or where the industry is in severe financial straits, for to order reinstatement in such a case would place an impossible burden on the employer or where the workman had secured better or an alternative employment elsewhere and so on, there is a vestige of discretion left in the court to make appropriate orders.
Occasional hardship may be caused to the employer; but more often than not, far greater hardship is certain to be caused to the workman if the relief is denied than to the employer if the relief is granted.
[795B E] In the instant case there is no special impediment in the way of awarding the relief of reinstatement with back wages.
The apprehension of the Labour Court that reinstatement with full back wages would put these workmen on a par with those who were qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter is unfounded because firstly these workmen can never be on par with the others since reinstatement would not qualify them for permanent absorption but they would continue to be temporary liable to be retrenched.
Secondly there is nothing to show that their reinstatement would cause dissatisfaction to anyone nor even that it would place an undue burden on the employer.
[795F G] Santosh Gupta vs State Bank of Patiala (1980) Vol.
II LLJ 72, applied, Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, Orissa & Ors.
; , M/s. Avon Services Production Agencies (P) Ltd. vs Industrial Tribunal, Haryana and Ors. ; , M/s. Swadesamitran Limited, Madras vs Their Workmen ; 156 and State Bank of India vs Shri N. Sundara Money ; @ 166 referred to.
To attempt to discern a distinction between "void ab initio" and "invalid and inoperative", even if it be possible to discover some razor 's edge distinction would be an unfruitful task because semantic luxuries are misplaced in the interpretation of 'bread and butter ' statutes.
Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.
Whatever expression is used the workman and the employer primarily are concerned with the consequence of striking down the order of termination of the services of the workman.
[794H] The two other appellants were in much the same position as the five others.
The concession made before the Labour Court was apparently based on the decision of this Court in Sur Enamel & Stamping Works (P) Ltd. vs Their 791 Workmen ; which was a case before section 25B was recast by Act 36 of 1964.
The amendment Act 36 of 1964 has brought about a change in the law by repealing section 2(eee) (defining continuous service) and adding section 25B(2) which now begins with "where a workman is not in continuous service. . for a period of one year".
These changes are designed to provide that a workman who had actually worked under the employer for not less than 240 days during a period of 12 months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year.
It is enough that he has worked for 240 days in a period of 12 months.
[798F G] Pathak, J. concurring: The limited question for examination is whether the appellants should have been awarded reinstatement with back wages instead of the curtailed relief granted by the Labour Court.
The respondent bank having accepted that the termination of the services of the workmen amounted to retrenchment within the meaning of section 2(oo) it is not necessary to invoke the rule laid down by this Court in Santosh Gupta vs State Bank of Patiala for the interpretation of section 2(oo).
[799G E] Ordinarily a workman who has been retrenched in contravention of the law is entitled to reinstatement with full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief.
It has not been shown in this case why the ordinary rule should not be applied.
[799 G H] Having regard to the simultaneous amendments introduced in the by Act 36 of 1964 it is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of section 25B.
It is sufficient for the purpose of section 25B(2)(a)(ii) that he has actually worked for not less than 240 days during the preceding period of 12 calendar months.
[800A C] Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen ; , 622 3, held inapplicable.


Input:
Appeal No. 752 of 1966.
Appeal by special leave from the Award dated February 18, 1965 of the Labour Court, Assam in Reference No. 38 of 1962.
H. R. Gokhale, G. L. Sanghi and K. P. Gupta, for the appellants.
section V. Gupte, Solicitor General and D. N. Mukherjee, for respondent No. 1.
M. M. Kshatriya, G. section Chatterjee for P. K. Bose, respondents Nos. 2 and 3.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, by the workmen of Brahmputra Tea Estate, is directed against the award, dated February 18, 1965, of the Labour Court, Assam, in Reference No. 38 of 1962, holding that the Reference has become infructuous.
The circumstances.
under which the Reference was made, by the Government of Assam, may be stated.
The Brahmputra Tea Estate (hereinafter called the Tea Company), comprised of three gardens, viz., Negheritting, Rangamati and Missamara Tea Estates, with their outer gardens, were owned and managed by Brahmputra Tea Co. (India) Ltd. The Tea Company had incurred very heavy liabilities; and hence, on November 6, 1956, it created an equitable mortgage, by deposit of title deeds, in favour of the Eastern Bank Ltd., (hereinafter called the Bank).
The gardens, mentioned above, formed part of the security covered by the equitable mortgage.
This memorandum of equitable mortgage was registered on November 26, 1956.
As the Tea Company failed to make payment of the money due to the Bank, the latter filed Suit No. 21 of 1957, in the Court of the Subordinate Judge, Upper Assam, District Jorhat, for enforcing its rights, under the equitable mortgage.
A preliminary decree was passed, on February 21, 1958; this was followed, by a final decree, on September 19, 1960.
L/J(N)76SCI 14(a) 628 In the meantime, on September 16, 1958, the Calcutta High Court had ordered the winding up of the Tea Company, because of certain defaults made by it.
Mr. D. A. Weatherson, of the Bank, who had been appointed, by.the,Jorhat Court, as Receiver of the Tea Gardens, by his letter.
dated December 30, 1958, intimated the Superintendent of the Tea Gardens, about the windingup order, passed by the Calcutta High Court on September 16, 1958, and stated that the winding up order operated as a statutory 'notice of discharge, of all officers and employees of the Tea Company; nevertheless, the Receiver stated that he desired to offer employment to all the members of the staff who were employed in tile Tea Gardens on November 18.
1958, with the exception of fifteen employees, mentioned by him.
The Superintendent was requested to obtain the consent of the members of the staff, regarding the offer made by the Receiver.
It may be stated, at this stage, that the fifteen employees, who were excluded in the letter of the Receiver, were the persons, whose claims were referred, by the Government of Assam, to; the Labour Court.
in Reference No. 38 of 1962.
The Superintendent, in his turn, sent communication, dated January 19, 1959, to the various workmen, offering employment, on behalf of the Receiver, and requesting them to intimate acceptance; but, so far as the fifteen workmen, referred to above, were concerned, the Superintendent sent communication.
to each of them on August 21, 1961, terminating their services, with one month 's notice.
The workmen concerned were also promised to be paid the Provident Fund amounts that might stand to their credit.
It was specifically stated, by the Superintendent, that the communication was being sent, by him.
on behalf of tile Receiver of the Tea Company and that the termination of the services of the workmen was because of their age.
The Assam Chah Karmachari Sangha (hereinafter called the Karniachari Sangha) complained to the Conciliation Officer, Assam, stating that the termination of the services of the fifteen workmen, concerned, was illegal and arbitrary.
Though tile Conciliation Officer appears to have taken some steps to effect conciliation, he could not proceed further, because the Superintendent of the Tea Gardens regretted his inability to participate in the conciliation proceedings, as he had not been authorized to do so, by the Receiver of the Tea gardens.
Nevertheless, the Conciliation Officer, on September 18, 1961, wrote to the Receiver, direct, suggesting payment of compensation to the workmen concerned; but that suggestion was riot accepted.
by the Receiver.
On February 18, 1961.
the Bank assigned all its rights, under the mortgage dated November 6, 1956 and the decree in Suit No. 21 of 1957, in favour of M/s Shaw Wallace & Co. Ltd. The Registrar of Companies, West Bengal, Calcutta, in or about 1960, 629 had filed a petition, in the Calcutta High Court for the winding up of the Tea Company, as it had failed to comply with certain statutory requirements.
By order dated June 16, 1961,the Calcutta High Court ordered the winding up of the Tea Company.
and appointed Shri H. K. Ganguli, the Official Liquidator of the High Court, as the Official Liquidator of the Tea Company.
On September 19, 1961.
the Calcutta High Court passed an order, withdrawing to its file, suit No. 21 of 1957, from the Jorbat Court, and the said suit was numbered as Transfer, Company Suit No., 7 of 1962.
On October 5, 1961.
the Calcutta High Court directed the substitution of the name of M/s Shaw Wallace & Co. Ltd., in (lie place of the Eastern Bank Ltd., in the suit; and it also appointed Shri K. C. Ganguli as Receiver of the Tea Gardens in the place of the Receiver appointed by the Jorhat Court.
The new Receiver, Shri K. C. Ganguli, was also put in possession and management of the said properties.
Therefore, the position was that the Tea Company, whose windingup had been ordered, was with the Official Liquidator.
and the Tea Gardens of the company, were in the possession and management of tile Receiver, appointed in the mortgage suit.
On July 27, 1962, the Government of Assam referred to the Labour Court, Assam, an industrial dispute between the management of Brahmaputra Tea Estate (Receiver in Possession) and their workmen, represented by the Karamchari Sangh.
The dispute that was referred, related to the justification, of the action of the management of the Tea Estate, in terminating the services of the fifteen employees, and, as to whether.
those fifteen workmen were entitled to reinstatement, or any other relief, in lieu thereof.
The fifteen workmen, referred to in this reference, are the identical workers whose services had been terminated, by the issue of the notice on August 21, 1961, by the Superintendent of the Tea Gardens, on behalf of the Receiver.
This is the reference, which had been numbered as Reference No. 38 of 1962.
We shall advert, later, to the claims made by the workmen, as well as the contest made, by the first respondent, before us.
The Labour Court, on receipt of this reference.
issued the necessary notices, on August 26, 1962.
In the liquidation proceedings, the Calcutta High Court, on August 17, 1962, permitted the Official Liquidator to sell the Tea Gardens, which were the subject of mortgage, and also certain other items of moveables.
The Official Liquidator, on the basis of this order, conveyed, by registered sale deed, dated August 11.
1962, in favour of Shri Ram Gopal Sahariya, the first respondent herein, the equity of redemption in the three Tea Gardens, and also certain tractors, lorries and other items of machinery, for a total consideration of Rs. 5,20,000.
This total consideration was made Lip of Rs. 2,20,000, being the price of the moveables and 630 Rs. 3,00,000 stated to be the value of the equity of redemption.
The sale, in favour of the first respondent, was specifically by the Official Liquidator, acting on behalf of the Tea Company, and what was conveyed in the Tea Gardens, was the equity of redemption, owned by the Tea Company, and the sale was subject to the mortgage decree and the liabilities payable to M/s Shaw Wallace & Co., Ltd. On September 18, 1962, the first respondent 's name was ordered, by the Calcutta High Court, to be included in Transfer Company Suit No. 7 of 1962.
The Court further ' discharged Shri K. C. Ganguli, from his Receivership in the suit, and he was also directed to deliver possession of the three Tea Gardens belonging to the Tea Company, to the first respondent.
The first respondent, on his own claim, by virtue of the purchase from the Official Liquidator, has become the sole proprietor of the Tea Gardens; he also got actual possession of the Tea Gardens, on September 21, 1962.
To resume the narrative, regarding the proceedings in Refer ence No. 38 of 1962, the Labour Court, as we have stated earlier, had issued notices to the parties concerned, on August 26, 1962.
The workmen filed a written statement, on February 23, 1963.
In that statement, they had stated that the fifteen workmen, concerned, had completed service, ranging from 8 to 47 years, in the Tea Estates, and that the termination of their services, by the Superintendent of the Tea Gardens, on behalf of the Receiver, was absolutely illegal and arbitrary.
They also referred to various other matters, which it is not necessary to advert, in this appeal.
It is enough to note that the workmen required relief, by way of reinstatement On June 27, 1963, one K. A. Muddu, as Superintendent of the Tea Estates, filed a written statement, on behalf of the management.
He has stated therein.
that the services of the fifteen employees were terminated on account of their age, and also because some of them were too ill to be continued in service.
He has adverted to the fact that two of the workmen had expressed a desire to retire voluntarily, from service.
It is further stated therein, that, as the employees concerned were 60 years or more, of age, it was not possible to continue them in service.
Again, the action of the Receiver, who was in management of the Tea Gardens, in terminating the services of the workmen, was also be justified.
The workmen filed an additional written statement, on Sep tember 2, 1963, controverting the allegation that they were either too ill or they had completed 60 years of age.
They again reiterated that the stand, taken by the management, was absolutely illegal and the Receiver bad no right to authorize the termination of their services.
631 On July 18, 1964/September 10, 1964, Shri R. G. Sahariya, as sole proprietor of the Tea Estates, filed an additional written statement, before the Labour Court, on behalf of the incoming management.
He has referred therein to the fact that the Tea Estate was no longer in the hands of a Receiver, and its management had vested in him as sole proprietor.
He has further referred to the fact that there is no continuity between the present management of the Tea Company, represented by him, and that of the past, when the Tea Gardens were owned by the Tea Company and were managed by the Receiver, appointed by the Court.
He then refers to the purchase made by him, on August 18, 1962, from the Official Liquidator of the Tea Company, of the equity of redemption in the Tea Gardens.
He has further stated that the services of the workmen concerned, had been terminated by the Superintendent of the Tea Gardens, acting on behalf of the Court Receiver, as early as August 21, 1961, long before the Tea Estates were purchased by him.
Shri Sahariya has further stated that, on July 27, 1962, when the Government of Assam made the present Reference, the incoming management was nowhere in the picture and it was not, in any manner concerned with the claim of the workmen, inasmuch as it had no liability, whatsoever, towards them.
He averred that he had not purchased the Tea Estates with the goodwill of the Tea Company, or, as a running concern.
Therefore, on all those grounds, he urged, that he was, in no manner, bound to reinstate or to compensate for the loss of employment of the workmen, concerned.
In fact, he has specifically prayed that an order may be passed, by the Labour Court, that the dispute, referred to it, by the Government of Assam, has lapsed.
The Labour Court, in its order under attack, has taken the view that the services of the workmen concerned, have been terminated, under instructions of the Receiver of the Tea Gardens, appointed in the suit, long before the first respondent became owner of the Tea Gardens.
It is also of the view that "the Brahmputra Tea Estate (Receiver in possession)".
is the only party impleaded, and the new management, viz., the first respondent, has not been brought on record, nor was it a party to the reference, made by the State Government.
The purchase of the Tea Gardens, by the first respondent, does not show that the latter has taken over any liabilities, of the previous management, with regard to the claims of the workmen, and that there has been no purchase of the goodwill of the Tea Company.
On these grounds, the Labour Court held that no relief could be granted, as against the first respondent, and that the reference itself had become infructuous.
Mr. Gokhale.
learned counsel for the workmen appellants.
raised two contentions before us: (i) that the view of the Labour Court, that the first respondent is not liable for the claims of the 632 workmen, is erroneous; and (ii) that even if it is held that the first respondent is not liable, the Labour Court, which had ample jurisdiction, in this regard, should have issued notice, either to the Receiver, appointed in the suit, or the Official Liquidator, to the both of them, and proceeded to investigate and adjudicate upon the claims of the workmen.
In this connection, Mr. Gokhale pointed out that the document of purchase, by the first respondent, would clearly show that the Official Liquidator ha(1)realised a sum of Rs. 5,20,000, as sale consideration, and there might also be other assets of the company; if a proper adjudication, in the presence of those parties, had been made, and relief granted to the workmen, they would have been in a position to enforce their claims, as against these amounts and assets of the company.
The learned Solicitor General.
appearing on behalf of the first respondent, urged that his client was not, in any manner, answerable to the claims made, by the workmen.
The first respondent was not the successor in interest of the Tea Company , nor did he claim through the Receiver, who wag one of the parties to the Reference, before the Labour Court.
Even if the Tea Company could be considered to be a party to the Reference.
his client Could not be considered to be a successor in interest of the Tea Company, because, he had purchased only some of the assets belonging to the said company, by virtue of the sale.
The document of purchase, by the first respondent.
would clearly show that he has not taken over any other liabilities of the Tea Com pany, in that regard .
The learned Solicitor General further pointed out that the remedy.
if any.
of the appellant, if so advised, was only to proceed against the Receiver, or the Official Liquidator; even if it be held that the ownership or management of the undertaking had been transferred in favour of the first respondent, the rights of the workmen would have to be worked out, as against the Receiver, or the Official Liquidator, under section 25FF, of the (Act XIV of 1947) (hereinafter called the Act), inasmuch as there was nothing to show that the transfer, in this case, came within the proviso to that section.
We are in agreement with the contentions of the learned Solicitor General that the view of the Labour Court, that the first respondent is not liable to answer any of the claims of the workmen concerned, is perfectly justified.
From the various facts, given above, it will clearly be seen that the order terminating the services of the workmen, was made on August 21, 1961, by the Superintendent of the Tea Gardens, under instructions from The Receiver appointed by the Jorhat Court, in the mortgage suit.
On October 5.
1961, the High Court had appointed a Receiver, for the Tea Gardens.
as separate from the Tea Company, in the suit, Transfer Company Suit No. 7 of 1962.
The order, referring the dispute to the Labour Court was made, by the Government, on July 27, 1962, The 1st respondent, admittedly, 633 was not in the picture, on these various dates.
It cannot also be stated, having due regard to the various recitals, contained in the sale deed, dated August 11, 1962, and considered, in the light of the principles, laid down by this Court, in Anakapalla Cooperative Agricultural & Industrial Society Ltd., vs Workmen(1), that the first respondent is the successor in interest of the Tea Company.
What was purchased, by the first respondent, was only the equity of redemption in a part of the assets of the Tea Com pany, in respect of which the Official Liquidator was still functioning.
Therefore, the learned Solicitor General is perfectly justified in his contention that the first respondent cannot be considered to be a successor in interest of the Tea Company nor can he be considered to claim through the Receiver, or Liquidator.
Even on the basis that the first respondent is considered to be a person, to whom the ownership of the undertaking has been transferred, it will be seen that the claims of the workmen will have to be considered.
as against the Tea Company, in accordance with section 25FF of the Act, when its proviso cannot be invoked.
Learned counsel, for the appellant, has not been able to satisfy us that the transfer, in this case, in favour of the respondent, comes within the proviso to section 25FF.
The appellants, ,is laid down by this Court, under the circumstances, in the decision referred to above, will not be entitled to claim reinstatement, as against the first respondent.
Section 25FF was first introduced in the Act, by the Industrial Disputes (Amendment) Act, 1956 (LXI of 1956), and, in its present form, it has been substituted, by the Industrial Disputes (Amendment) Act, 1957 (Act XVIII of 1957).
Section 25F was in force, on August 21, 1961, when the services of the workmen were terminated, and s, 25FF had(1) come into effect long before the purchase, by the first respondent of the Tea Gardens; and, we have already shown, that there is no liability, so far as the first respondent is concerned.
Therefore, the first contention of Mr. Gokhale, will have to be rejected.
But we are impressed by the second contention of Mr. Gokhale, that the Labour Court should have issued notices to the Receiver, or Official Liquidator.
or to both, as it was entitled to.
and proceeded to consider, as to whether any reliefs Could be granted to the appellants.
In this connection, counsel pointed out that section 18 of the Act clearly visualizes parties being summoned ', to appear, by the Labour Court, in proceedings, as parties to the disputes, in which case, the award made, will be binding on them also.
In this appeal, before us.
the Tea Company, in Liquidation, and the Official Liquidator of the Tea Company, figure as respondents Nos. 2 and 3, respectively, and are represented by same counsel.
Learned counsel, appearing for those parties, pointed out that the Official Liquidator may have various defences, (1) [1963] Supp. 1 S.C.R. 730.
634 available to him, if any claim is sought to be enforced against the company, in liquidation, or the Official Liquidator.
Those matters do not arise for consideration, at this stage, in this appeal, because the claim of the appellants, as against those persons, remains yet to be considered by the Labour Court.
We are satisfied that, even after negativing the claims, of the workmen, as against the first respondent, the Labour Court should not have merely closed the proceedings, by holding that the reference has lapsed.
On the other hand, the Labour Court should have issued notices to the Receiver, or the Liquidator.
or to both, and, in their presence, should have considered the question as to whether the workmen were entitled to claim any relief.
In fact, the order of reference also clearly shows that the Labour Court will have full jurisdiction to consider as to whether the termination, of the services of the workmen concerned, is justified and, whether they are entitled to either reinstatement, or any other relief, in lieu thereof.
When the proceedings are being dealt with, afresh, as against the parties indicated above, the Tribunal will bear in mind the observations made above, and consider the nature of the relief, if any, that may be granted to the workmen concerned .
We make it clear, that if and when either the Receiver, or the Tea Company, in liquidation, or the Official Liquidator, or all of them, are brought before the Labour Court, they will be entitled to raise any plea in defence of the claim of the workmen, that may be available to them, in law.
In that adjudication, the first respondent herein, will be completely out of the picture, as no relief can be claimed by the workmen, against him.
Further, if the claim of the workmen, is that their services have been dispensed with, by way of retrenchment, that claim will have to be adjudicated in accordance with section 25F, of the Act.
If, on the other hand, their claim is based, on the event of a transfer having been effected, that claim will have to be adjudicated, under section 25FF of the Act.
All these aspects will have to be properly considered, and adjudicated upon, by the Labour Court.
In the result, while confirming the findings of the Labour Court, that the first respondent is not answerable for any of the claims of the workmen, the award, dated February 18, 1965, is set aside and the Labour Court is directed to take up the Reference, over again, for being dealt with, afresh, in the light of the directions contained above.
The appeal is allowed, to the extent, indicated above, and in other respects, will stand dismissed as against 1st respondent.
Parties will bear their own costs, in this appeal.

Output:
On reference of an industrial dispute, the Labour Court took, the view that the services of the workmen concerned had been terminated, under instructions of the Receiver of the Company appointed in a suit long before the first respondent became owner of the company; that the Receiver in possession was the only party impleaded and the new management, viz., the first respondent had not been brought on record, nor was it a party to the reference, made by the State Government; that the purchase of the company, by the first respondent, did not show that the latter had taken over any liabilities of the previous management, with regard to the claim of the workmen; and that there had been no purchase of the goodwill of the company.
On these grounds, the Labour Court held that no relief could be granted, as against the first respondent, and that the reference itself had become infructuous.
In appeal to this Court, the workmen appellants contended that (i) the view of the Labour Court that the first respondent was not liable for the claims of workmen was erroneous; and (ii) even if it be held that the first respondent was not liable, the Labour Court, which had ample jurisdiction, in this regard, should have issued notice, either to the Receiver appointed in the suit, or the Official Liquidator, or to both of them an proceeded to investigate and adjudicate upon the claims of the work men.
HELD: (i) The first respondent was not liable to answer any the claims of the workmen.
He was not in the picture when the order terminating their service was made, nor when the order referring the dispute to the Labour Court was made.
Having due regard to the various recitals in the sale deed and considered in the light of the principles laid down by this Court, in Anakapalla Cooperative Agricultural & Industrial Society Ltd. vs Workmen, the first respondent was not the successor in interest of, the Company.
What was, purchased, by the first respondent, was only the equity of redemption in a part of the assets of the Tea Company, with respect to whit the Official Liquidator was still functioning.
Even on the basis that the first respondent was considered to be a person, to whom the ownership of the undertaking has been transferred, the claims of the workmen had to be considered, as against the Company, in accordance with section 25 FF of the Industrial Disputes Act, when its pro viso could not be invoked.
Section 25F was in force when the se vices of the workmen were terminated and section 25FF had come in effect long before the purchase by the first respondent.
[632G 633F] 627 Anakapalla Co operative Agricultural and Industrial Society Ltd. V. Its Workmen, [1963] Supp. 1 S.C.R. 730, followed.
(ii) Even after negativing the claims of the workmen, as against the first respondent, the Labour Court should not have merely closed the proceedings, by holding that the reference had lapsed.
On the other hand, the Labour Court should have issued notices to the Receiver, or the Liquidator or to both, and, in their presence, should have considered the question as to whether the workmen were en titled to claim relief.
In fact, the order of reference also clearly showed that the Labour Court had full jurisdiction to consider as to whether the termination of the services of the workmen, was justified, and whether they were entitled to either reinstatement, or any other relief, in lieu thereof.
[634B D]


Input:
Civil Appeal No. 236 of 1969.
Appeal from the Judgment and Order dated 24/25th August 1967 of the Gujarat High Court in SCA No. 585/63.
section K. Dholakia and R. C. Bhatia for the Appellant.
1026 P. Ram Reddy, Amicus Curiae for Respondent No. 2.
The Judgment of the Court was delivered by SARKARIA, J.
The appellant is the Gujarat State Cooperative Land Development Bank Ltd. (hereafter referred to as the Bank).
It is a Society registered under the Bombay Cooperative Societies Act, 1925, as applicable to the erstwhile State of Saurashtra.
According to the appellant 's writ petition, it is doing banking business.
It has 127 Branches spread all over the State of Gujarat.
One of its Branches is in Dasada, Surendranagar District.
The Head Office of the Bank is at Ahmedabad.
The second respondent, Babu Bhai Negracha, was serving as an Additional Supervisor in the Dasada Branch of the Bank.
His services were terminated by an order, dated February 21, 1962, by giving him one month 's pay in lieu of notice under Staff Regulation No. 15.
The Gujarat Cooperative Societies Act, 1961, came into force from May 1, 1962, and the appellant Bank, being a Society, under the Cooperative Societies Act, came to be governed by the said Act.
By Notification No. BIR 1362 5 H, dated March 2, 1963, published in the Gujarat Gazette in March 1963, the Government of Gujarat directed under Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions of the said Act shall apply with effect from March 15, 1963 to the business of banking by Cooperative Banks in the Saurashtra and Kutch areas of the State, registered and deemed to be registered under the Gujarat Cooperative Societies Act, 1961.
Aggrieved by the termination of his service, the second respondent approached the appellant 's Dasada 's Branch by a letter, dated August 20, 1962, stating that since his services were terminated illegally by way of victimisation, he should be reinstated in the service.
Thereafter, the second respondent filed an application in the Labour Court at Rajkot, alleging that his service had been illegally and maliciously terminated as an act of victimisation on account of his trade union activities.
He prayed for setting aside the order of his termination of service and for reinstatement with full back wages.
The Bank filed a written statement, raising a preliminary objection that the Bombay Industrial Relations Act, 1946, under which the application was made by the respondent, was not applicable to its case, as it was a Cooperative Society governed by the Gujarat Co operative Societies Act, under which only the Registrar or his nominee 1027 had jurisdiction to decide the dispute, and the Labour Court had no jurisdiction to entertain and decide the application of the second respondent.
By its Order, dated June 11, 1963, the Labour Court overruled this objection and held that it had jurisdiction to hear the application.
The Bank then filed a writ petition under Article 226 of the Constitution in the High Court to challenge the Order of the Labour Court.
The High Court by a common judgment dated August 25, 1967 dismissed the writ petition, but in view of the importance of the question of law involved, granted a certificate of fitness for appeal to this Court.
On the strength of that certificate, the Bank has come in appeal before us against the aforesaid judgment of the High Court.
In this Court on January 22, 1969, the Bank made an application for leave to urge as additional ground, namely, that the Bank is not doing banking business, i.e. accepting for the purpose of lending or investment of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise as defined in Section 5, Clauses (b) and (c) of the Banking Companies Act, 1949; and that this being the true position, the Notification No. DIR 1362 IV H dated March 2, 1963, published in the Gujarat Government Gazette dated March 7, 1963, under Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act XI of 1947) is not applicable to the appellant.
This application was strenuously opposed by Shri Ram Reddy, who is assisting the Court as amicus curiae on behalf of respondent 2, who has not been able to appear and defend himself in this appeal.
We have declined permission to raise this new plea for the first time in this Court, for these reasons: (i) It is much too belated; (ii) It stands in direct contradiction to the position taken by the appellant in its writ petition and the affidavit in support thereof filed in the High Court.
Therein, the appellant had categorically pleaded: "The petitioner is a Society registered under the Bombay Cooperative Societies Act, 1925 (Bombay Act VII of 1925). and is engaged in the business of banking." (iii) It is not a purely legal plea but a mixed plea of law and fact, and cannot be determined on the basis of material already on the record.
We, therefore, take it that the appellant is a Cooperative Society engaged in the business of banking and, as such, the Bombay Industrial 1028 Relations Act, 1946 is applicable to it by virtue of the aforesaid Notification dated March 2, 1963, issued by the State Government under Section 2(4) of that Act.
The arguments of Mr. Dholakia, appearing for the appellant, may be summarised as follows: (i) The case is governed by the Gujarat Cooperative Societies Act, 1961 (hereafter called the Act of 1961) and not by the Bombay Cooperative Societies Act, 1925 (hereafter referred to as the Act of 1925).
(ii) The phrase "any dispute touching. .the business of the Society", particularly the word "touching" therein, is of very wide amplitude.
It would comprehend any matter which relates to, or concerns or affects the business of the Society.
Every society, ex necessitiate employs some servants for the purpose of carrying on its business.
That being so, the payment of wages, appointment and removal of its servants under law is a part of the business or "touches" the business of the Society.
(Reliance for this argument has been placed on Farkhundali Naunhay vs V. B. Potdar (1).
(iii) Even if contention (ii) is not accepted, the dispute raised by the respondent, Babu Bhai Negracha is one "touching the management of the Society".
The expression 'management ' takes in the entire staff or establishment of servants which run the affairs of the Society.
(iv) Once it is held that the dispute between the Society and its past servant, Babu Bhai Negracha, touches the "business" or the "management" of the Society, or both, within the meaning of Section 96, the Registrar or his nominee, alone, shall have jurisdiction to adjudicate such dispute by compulsory arbitration; and the non obstante clause in the Section shall bar the determination of that dispute by the Industrial Tribunal or the Labour Court under the Bombay Industrial Relations Act.
As against the above, Mr. Rama Reddy, amicus curiae, submitted as under: (i) Since the services of the second respondent were terminated on February 21, 1962, before the Act of 1961 came into force, the Act relevant for this discussion is the Act of 1925.
(ii) Irrespective of whether the Act of 1925 or the Act of 1961 governs the appellant Society, the expression "any dispute" commonly occurring in Section 54 of the Act of 1925 and Section 96 of the 1029 Act of 1961, is restricted in its scope to a dispute of a civil nature which is capable of being resolved by the Registrar or his nominee, and does not take in an industrial dispute between the Society and its workmen which under the B.I.R. Act is triable by the Labour Court/Industrial Tribunals, only.
(iii) B.I.R. Act is a special law, dealing with the special subject of industrial disputes, which in their nature are essentially different from ordinary Civil disputes between an employer and his employee governed by the Law of Contract, B.I.R. Act provides for a special machinery for adjudication of industrial disputes.
As against this, the Cooperative Societies Act of 1925/or of 1961 is a general enactment and it must yield to the B.I.R. Act whenever the provisions of the latter by their language are clearly applicable to a dispute.
Reference has been made to Jullundur Transport Cooperative Society Ltd. vs Punjab State(1).
(iv) The scope of the expression "any dispute touching the business of the Society", occurring in Section 54 of the Act of 1925/or Section 96 of the Act of 1961 is limited to disputes directly relating to the actual trading or commercial activities of the Society.
This expression does not take in a dispute between the Society and its employee relating to the conditions of his employment, which will include the termination of his employment.
This point is concluded by the decision of this Court in Cooperative Central Bank Ltd. vs Additional Industrial Tribunal, Hyderabad(2), which follows the ratio of its earlier decision in Deccan Merchants Cooperative Bank Ltd. vs Dalichand Jungraj Jain(3).
In view of these decisions, the ratio of Farkhundali 's case (ibid) decided by the Bombay High Court, is no longer good law.
(v) The expression "management" in Section 96 of the Act of 1961, means "the Board of Directors", or "the Board of Trustees", or the "Managing Committee" or "Executive Body" which has the overall control of the affairs and business of the Society, and it does not include the individual workers or employees, individual workmen or employees of the Society who carry on the day to day administration of the Society; nor will it take in matters touching the service conditions of the servants of the Society such as their appointment to service or their discharge, removal from service and their wages.
A dispute of the kind raised by the second respondent, therefore, 1030 will not fall within the purview of the phrase "any dispute touching the management of the Society" used in Section 96.
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.
The relevant part of Section 54 of the Act of 1925, reads thus: "(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. " 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. " A comparison between the portions of the two Sections, extracted above, brings out two points of difference.
Firstly, in Section 54, there is no non obstante clause, while Section 96(1) begins with the words "Notwithstanding anything contained in any other law for the time being in force".
Secondly, while in Section 54, the word 'management ' does not occur, in the corresponding Section 96(1) of the 1961 Act, the word 'management ' has been inserted in between the words 'constitution ' and 'business '.
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.
1031 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? 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 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.
A further clue to the interpretation of "any dispute" used in Section 96(1) is available in Section 97(1) which prescribes periods of limitation for disputes of the kind specified in its clauses (a) and (b), referred to the Registrar under Section 96.
Sub section (2) of Section 97 which is in the nature of a residuary provision, states that the period of limitation in the case of any dispute other than those mentioned in sub section (1) which are required to be referred to the 1032 Registrar under Section 96, shall be regulated by the provisions of the Indian Limitation Act, "as if the dispute were a suit, and the Registrar as Civil Court".
The last clause of sub section (2) which has been underlined, unmistakably shows that only disputes of a civil nature which could be the subject of civil suits triable by ordinary civil courts, will fall within the scope of the expression "any dispute" used in Section 96(1).
Another definite pointer to the above being the right construction of "any dispute" is available in sub section (3) of Section 98 which provides: "Notwithstanding anything contained in Section 96, the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated question of law or fact, until the question has been tried by a regular suit instituted by one of the parties or by the society.
If any such suit is not instituted within two months from the Registrar 's order suspending proceedings, the Registrar shall take action as is provided in sub section (1).
" It is noteworthy that this sub section is substantially in the same terms as the proviso to sub section (1) of Section 54 of the Act of 1925, extracted earlier.
The proviso to sub section (1) of Section 54 of the Act of 1925 corresponding to sub section (3) of Section 98 of the Act of 1961, unmistakably shows that the compulsory arbitration by the Registrar, on a reference under Section 96, only a substitute for adjudication of disputes of a civil nature normally tried by civil courts.
Further indication regarding the nature of disputes which the Registrar may determine, is furnished by Section 166(1) which provides: "166(1).
Bar of jurisdiction of Courts : Save as expressly provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of (a) . . (b) any dispute required to be referred to the Registrar, or his nominee, or board of nominees, for decision.
" It will be seen that Section 166, in terms, bars the jurisdiction only of Civil or Revenue Court, and not of the Labour Court or any 1033 Industrial Tribunal constituted under the B.I.R. Act or Industrial Disputes Act to adjudicate industrial disputes.
It is clear that the Legislature never intended to oust the jurisdiction of the Labour Court or the Industrial Tribunal to determine claims and industrial disputes which cannot be adjudicated by the ordinary Civil Courts.
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. vs 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.
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 granting the relief claimed, normally, the proper construction would be that it is incompetent to deal with the matter.
1034 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.
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.
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. vs 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.
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 1035 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 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, (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.
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.
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 in 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 in conclusion, it was clearly and emphatically held 1036 that the dispute in that case was "outside the scope of Section 61.
" We will now, focus attention on 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. vs Rusterholz D. C. Minn.(1).
Another meaning of the term 'management ', may be: 'the act or acts of managing or governing by direction, guidance, superintendence, regulation and control the affairs of a Society. ' 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.
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 of 'management '.
A construction free from contexual constraints, having the effect of smuggling into the 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.
Learned counsel for the appellant tried to argue as a last resort that the relief sought by the second respondent could be granted by the Registrar by relaxing or moulding the Staff Regulations and Bye laws which lay down conditions of service governing the employees of the Society.
It is pointed out that under the Act of 1961, the Registrar has the power to amend or modify such Regulations and Bye laws.
1037 We find no merit in this contention, also.
A similar argument was advanced before this Court in Cooperative Central Bank 's Case, ibid, and was repelled inter alia, with the reasoning that the bye laws of the Bank, containing the conditions of service were in the nature of a contract between the Bank and its employees and a change of such bye laws, embodying the conditions of employment, "could not possibly be directed by the Registrar where, under section 62 (4) of the (ANDHRA) Act, he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye laws".
It was further observed that a dispute referred to the Registrar can even be transferred for disposal to a person who may have been invested with powers in that behalf, or may be referred for disposal to an arbitrator.
But neither the Registrar nor his nominee will be competent to grant the relief requiring a change in the service conditions of the employees, under section 62 of the Andhra Act.
Such a relief could be granted only by the Industrial Tribunal which under the Industrial Disputes Act, has the jurisdiction even to vary contracts of service between an employer and employees.
This reasoning is applicable mutatis mutandis to the instant case.
For all the foregoing reasons, the appeal fails and is dismissed with costs.
In token of our gratitude for the valuable assistance rendered to us by Shri Rama Reddy as amicus curiae, we direct that an honorarium of Rs. 1500/ be paid to him, which shall be taxed as costs awarded against the appellant.
V.D.K. Appeal dismissed.

Output:
The appellant Bank was a society registered under the Bombay Co operative Societies Act, 1925 and with the coming into force from May 1, 1962 of the Gujarat Co operative Societies Act, 1961, it came to be governed by the said Act.
By Notification No. BIR 1362 5 H dated March 2, 1963, the Government of Gujarat directed under section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions of the said Act shall apply with effect from March 15, 1963 to the business of banking by Co operative Banks in the Saurashtra and Kutch areas of the State, registered and deemed to be registered under the Gujarat Co operative Societies Act, 1961.
The second respondent, Babu Bhai Negracha who was working as an additional supervisor in the Dasada Branch of the appellant Bank and whose services were terminated by an order dated February 21, 1962, by giving him one month 's pay in lieu of notice under Staff Regulation No. 15, filed an application in the Labour Court Rajkot, alleging that his services had been illegally and maliciously terminated as an act of victimisation on account of his trade union activities and praying for setting aside the order of his termination of service and for reinstatement with full back wages.
The Labour Court by its order dated June 11, 1963, over ruled the preliminary objection raised by the appellant Bank, namely, that "the Bombay Industrial Relations Act, 1946 under which the application was made by the respondent was not applicable to its case, as it was a co operative society governed by the Gujarat Co operative Societies Act, under which only the Registrar or his nominee had jurisdiction to decide the dispute, and the Labour Court had no jurisdiction to entertain and decide the application".
The appellant Bank 's writ petition challenging the said order of the Labour Court was dismissed by the Gujarat High Court by its judgment dated August 25, 1967.
Dismissing the appeal by certificate, the Court ^ HELD: 1.
No new plea can be raised for the first time in the Supreme Court, as a matter of right.
In the instant case, the new plea that "the appellant is not doing banking business" was not entertained for the reasons 1024 namely (i) it was much too belated; (ii) it stood in direct contradiction to the position taken by the appellant in its writ petition and the affidavit in support thereof in the High Court wherein it had been clearly admitted that "the society is engaged in the business of banking" and (iii) it was not a purely legal plea but a mixed plea of law and fact and could not be determined on the basis of material already on the record.
[1027 F G] 2.
The expression "any dispute" referred to in Section 54 of the Bombay Cooperative Societies Act, 1925 and in Section 96 of the Gujarat Cooperative Societies Act, does not cover a dispute of the kind raised by respondent 2 against the appellant bank.
[1034 C] (a) It is clear from the object and the scheme of the Acts of 1925 and 1961 that the legislature never intended to give such a wide scope to the expression "any dispute" so as to cover all classes of disputes whatever be their nature as the prefix "any" to "dispute" appears to give.
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.
[1031 C D] (b) The expression "any dispute" has not been defined in the Acts of 1925 and 1961.
This expression has been used in a narrower sense 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 Bombay Act of 1925 and in Section 96 of the Gujarat Act, 1961.
The words "as if the dispute were a suit and the Registrar as Civil Court" occurring in sub section (k) of Section 97 of the Gujarat Act, also make this position clear.
[1031 C, D, E, G] (c) The compulsory arbitration by the Registrar on reference under section 96 is only a substitute for adjudication of disputes of a civil nature normally tried by the Civil Court.
It is incumbent, under sub section (2) of section 96 of the 1961 Act, 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.
[1031 F, G 1032 F] (d) 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 not jurisdiction to deal with and determine it.
What has been directly bidden "out of bounds" for the Registrar by the very scheme and object of the Act, cannot be directly inducted by widening the connotation of 'management '.
Such a dispute squarely falls within the jurisdiction of the Labour Court under the Bombay Industrial Relations Act.
[1036 E G] 3.
The law of Industrial disputes or Industrial Relations is a special law dealing with rights and obligations specially created by it.
The provisions in section 54 of the Bombay Act and in section 96 of the Gujarat Act being general provisions in accordance with the maxim generalia specialibus non derogant, nothing in these general provisions can derogate from Bombay Industrial Relations Act, and the Cooperative Societies Act must yield to the special provi 1025 sions in the Bombay Industrial Relations Act, whenever a dispute clearly comes within the language of the latter Act.
Section 166(1) of the Gujarat Act, in terms, bars the jurisdiction only of Civil or Revenue Court, and not of the Labour Court or any Industrial Tribunal constituted under the Bombay Industrial Relations Act or Industrial Disputes Act.
The legislature never intended to oust the jurisdiction of the Labour Court or the Industrial Tribunal to determine claims and industrial disputes which cannot be adjudicated by the ordinary Civil Court.
[1032 H, 1033 A, 1034 A B] In the instant case : (a) The Labour Court is competent to grant the relief of reinstatement 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.
If a Court is incapable of granting the relief claimed, normally the proper construction would be that it is incompetent to deal with the matter.
[1033 F, H] (b) The dispute was raised by the second respondent by writing an approach letter to his employee, 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.
[1033 F G] (c) The rights and reliefs claimed by the second respondent could not be determined and granted by a Civil Court in a suit.
His allegation was that his services were terminated unfairly and vindictively because of his legitimate trade union activities, as an act of victimisation.
The relief claimed is reinstatement in services with back wages.
The rights claimed 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 B.I.R. Act.
[1033 B F] Jullundur Transport Cooperative Societies Ltd. vs Punjab State, AIR 1959 Pun. 34; approved.
Rohtas Industries Ltd. vs Brijnandan Pandey, ; ; referred to.
(d) Neither the Registrar nor his nominee will be competent to grant the relief of requiring change in the service conditions of the employee.
Such a relief could be granted by the Industrial Tribunal which under the Industrial Disputes Act, has the jurisdiction even to vary contracts of service between an employer and employees.
[1037 C D] Co operative Central Bank Ltd. vs Additional Industrial Tribunal, Hyderabad ; applied.
Farkhundali Naunhay vs V. B. Potdar, AIR 1962 Bom.
362 over ruled.