KOLHAPUR ZILLA SAHAKARI DOODH SANGH LIMITED AND DHONDIRAM DADA PATIL Vs. B G MATHANKAR JUDGE 1ST CO OPERATIVE COURT KOLHAPUR AND S Y PATIL MANAGING DIRECTOR KOLHAPUR DIST CO OP DUDH SANGH

JUDGEMENT

(1.) Both these petitions arise out of an order of termination of services of the petitioner in Writ Petition No. 957 of 1980 (hereinafter referred to as the employee) who was in the employment of the Kolhapur Zilla Sahakari Dudh Sangh (hereinafter referred to as the employer) as the Milk Distribution Officer. Admittedly the services of the employee were terminated by an order dated 14th July, 1977 and on 18th July, 1977 the employee filed a dispute before the Co-operative Court under section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act) for an adjudication of the said termination as invalid. In that proceeding the Co-operative Court granted an injunction on 26th July, 1977 restraining the employer from giving effect to the order of termination. After the revision application was filed before the Co-operative Tribunal the employer filed Special Civil Application No. 1599 of 1977 in this Court for a writ of quo waranto against the Judge who was functioning as the Co-operative Court on the ground that the Judge was not qualified to be appointed as the Co-operative Court. Thereafter the employer filed Writ Petition No. 1640 of 1979 for quashing the proceedings before the Co-operative Court on the ground that a dispute with regard to the validity of termination of the services of the employee did not fall within section 91 of the Act. In this petition the order of injunction granted by the Co-operative Court as well as all further proceedings before the Co-operative Court were stayed.

(2.) In the meantime, the employee made a complaint before the Industrial Tribunal, Pune, under section 33-A of the Industrial Disputes Act, 1947, on the ground that as a dispute was pending before the Industrial Tribunal, the termination of the services of the employee was effected without taking the approval of the Industrial Tribunal as required under section 33(2)(b) of the Industrial Disputes Act, 1947. In that complaint the employee asked for being reinstated with full back wages on the ground that the termination order was in contravention of the provisions of section 33 of the Industrial Disputes Act. The employee had also filed a complaint alleging that the termination of his services was an unfair labour practice. In the proceedings before the Industrial Tribunal, the primary defence of the employer was that the complainant was not a workman as defined in section 2(s) of the Industrial Disputes Acts, 1947 as he was drawing a salary of more than Rs. 500/- and he was employed in a managerial and administrative capacity. The employer had also taken the stand that the provisions of section 33 of the Industrial Disputes Act were not applicable and that the complainant was discharged with one months pay in lieu of notice. A further stand was taken that the employee having already resorted to the remedy under section 91 of the Act, the Industrial Tribunal had no jurisdiction to entertain the dispute. The Industrial Tribunal held that the duties of the employee were of a supervisory nature and the writing ledger, etc. were incidental to his main duties and the employee was, therefore, employed in supervisory capacity and was not a workman within the meaning of section 2 (s) of the Industrial Disputes Act. The Industrial Tribunal further held that the employee having already chosen the forum under the Act, he could not pursue the matter before the authority under the Industrial Disputes Act. The Tribunal, therefore, held that it was not open to the employee to pursue his remedy before the Industrial Tribunal. Consequently the complaint came to be dismissed. This order is challenged by the employee in Writ Petition No. 957 of 1980.

(3.) In Writ Petition No. 1640 of 1979 it is contended by Mr. Naik appearing on behalf of the employer co-operative society that a dispute between an employee of a co-operative society and the co-operative society with regard to termination of employment does not fall within section 91 of the Act because such a dispute is not a dispute touching the management or business of a society and reliance is placed on a decision of the Supreme Court in (Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad) A.I.R. 1979 S.C. 1203. The Supreme Court in that decision was concerned with the question as to whether a dispute raised by an employee of a co-operative society for setting aside the removal from service on the ground that it was an act of victimization and for reinstatement in service with back wages was a dispute which could be resolved by the Registrar of Co-operative Societies or whether it was a dispute touching the business of a society within the contemplation of section 96 of the Gujarat Co-operative Societies Act, 1962, or within the meaning of section 54 of the Bombay Co-operative Societies Act, 1925. Section 96 of the Gujarat Co-operative Societies Act is identical to the provisions of section 91 of the Maharashtra Co-operative Societies Act, 1960. The material part of section 91 (1) of the Maharashtra Act reads as follows: