ZILA SAHAKARI BANK LTD Vs. LABOUR COURT GORAKHPUR

JUDGEMENT

(1.) By this petition under Art. 226 of the Constitution Zila Sahkari Bank Ltd., Gonda, the petitioner, seeks the quashing of an award dated 16-6-1978 made by the Labour Court, Gorakhpur. A copy of that award is Annexure No. 3 to the Writ Petition.

(2.) The facts giving rise to this petition are these : The petitioner is a Society registered under the Co-operative Societies Act. Nand Lal Misra, the opposite party No. 3, was initially appointed in Balrampur Central Co-operative Bank Ltd., Balrampur, as a Cashier/Clerk vide order dated 24-12-1963. He was subsequently transferred to Colonelganj branch of the said Bank in the same capacity where he took over charge on 19-3-1964. The Manager of the Head Officer of the Bank and the Assistant Registrar, Co-operative Society, Gonda made an inspection of the Colonelganj branch of the said Bank on 5-8-1965 and checked the cash which was found short to the tune of Rs. 4294.00. A charge sheet was served on Nand Lal Misra for the shortage in the cash under his charge by the Managing Director of Balrampur Central Co-operative Bank Ltd. Certain other charges were also levelled against him. A copy of that charge-sheet is Annexure No. 1 to the writ petition. By a resolution dated 22-9-1965 the Board of Directors of the Bank appointed Sri Yar Mohammad Khan, a Director of the Board to conduct an inquiry against Nand Lal Misra Sri Yar Mohammad Khan submitted his report on 16-10-1965 holding that Nand Lal Misra (hereinafter called the workman) was responsible for the embezzlement committed in the Bank along with Sri Saroj Kumar Srivastava. The Board of Directors then unanimously resolved to terminate the services of both the said employees. The workman made a mercy appeal to the Board of Directors who by their resolution dated 20-12-1965 resolved to revert him to the post of Godown Keeper. The Deputy Registrar, Co-operative Societies, however, by his letter dated 24-7-1967 addressed to the Assistant Registrar, Co-operative Society, Gonda, desired that the man of doubtful integrity should not be allowed to continue and, therefore, the services of Saroj Kumar and Nand Lal Misra, the workman, be terminated. The said letter was placed before the Board of Directors who resolved to terminate the services of Nand Lal Misra, the workman, and orders to that effect were accordingly issued. The workman made an appeal to the Board of Directors but the same was dismissed. The U. P. Bank Employees Union Unit, Balrampur District Gonda, espoused the claim of the workman and raised an industrial dispute. The Government referred that industrial dispute for adjudication to the Labour Court, Gorakhpur, vide notification No. 7993 (Shram-A)/36 Shram(K) 51-(GR)/68 dated December 3, 1970. The Labour Court made its award dated 17-6-1971 holding that the Registrar, Co-operative Societies had exercised his power under S. 38, U. P. Co-operative Societies Act, and the same was not barred by S. 70 of the said Act. The award was made against the workman. Feeling aggrieved by that award dated 7-6-1971 the workman Nand Lal Misra filed a petition under Art. 226 of the Constitution in this Court being Civil Misc. Writ Petition No. 8241 of 1971. This Court by its judgment dated 5-5-1976 allowed the petition and quashed the said award of the Labour Court and directed the Labour Court to restore the case to its original number and decide the dispute in accordance with law. It was held by this Court that the direction given by the Registrar to terminate the employment of Nand Lal Misra could not be held to be a valid order or direction. The dispute was then again taken up for consideration by the Labour Court which made its award in favour of the workman holding that the termination of his services was illegal and unjustified and that he should be reinstated to his post and be paid his full wages from the date of the termination order to the date of his re-instatement. The petitioner being aggrieved by that award has filed the instant petition which has been opposed and a counter- affidavit has been filed. The petitioner has filed a rejoinder affidavit in reply to the counter-affidavit.

(3.) For the petitioner it was urged that the Labour Court had failed to apply its mind while making the award against the petitioner and has acted mechanically in applying the law laid down by this Court in the aforesaid Writ Petn. No. 8241 of 1971. It was submitted that this Court while interpreting the scope of S. 38, Co-operative Societies Act, in the said writ petition had not taken into consideration the effect of R. 22 of the Balrampur Central Co-operative Bank Ltd., Balrampur Services Rules, and it was not open to this Court to interpret the provision of S. 38 of the Co-operative Societies Act which did not suffer from any ambiguity. I find no force in this contention. In the said Writ Petition No. 8241 of 1971 the contention of the workman, as would appear from the judgment made in that case, was that the Registrar had no jurisdiction to direct the removal of a workman like Nand Lal Misra and the Society could not merely on that basis change the punishment from reversion to removal from service. The Society in that case had relied on S. 38 of the Act to justify its order. The Labour Court had held that S. 38, Co-operative Societies Act gave power to the Registrar to direct the removal and the Society was accordingly authorised and justified to pass the removal order. The contention of the petitioner in that case was that S. 38 of the said Act applied not to cases of paid servants of the Society but only to elected officers of the Society. This Court held that normally the master can terminate the services of its employee on the application of its own mind, without any thing particular to indicate that the section contemplates the removal of paid servants of the Society, it would be difficult to hold that S. 38 deals with the removal of every servant or officer of the Co-operative Society as it would be contrary to all principles governing master-servant relationship. It was hence held that the workman in question will not come in the category of such officer who acts or performs the functions similar to the functions of the Secretary and he was only one of the paid servants employed to assist in the business activity of the Society and was not clothed with any official responsibility to carry on the business of the Society. It was, therefore, held that the direction given by the Registrar could not be held to be a valid direction passed in exercise of its powers under S. 38 of the said Act. It was also held that S. 128 of the said Act was thus not applicable to the facts and circumstances of the case and hence the direction given by the Registrar could not be held to be a valid order or direction even by S. 128 of the Act. As the decision of the Labour Court was based primarily on its treating the direction given by the Registrar as valid and binding on the employer, the award was held to suffer from a manifest error of law; hence the said Award was quashed by this Court and the Labour Court was directed to restore the case to its original number and decide the dispute in accordance with law.