Writ Petition No.847 of 2008

5th February, 2008

Petitioner Counsel: Mr. A. S. DESHPANDE
Respondent Counsel: Mr. N. N. JADHAV

Cases Cited:
Morinda Co-operative Sugar Mills Ltd. Vs. Morinda Co-operative Sugar Mills Workers Union, 2006 AIR SCW 3849 [Para 10,12,17]
Abdul Rahman Vs. Prasony Bai, 2003(1) ALL MR 1208 (S.C.) [Para 10,14]
Amit Ashok Agrawal (Master) Vs. Khandesh Urban Co-operative Credit Society Ltd., 2002(2) ALL MR 669=2002(2) Bom.C.R. 749 [Para 10,13]
Co-operative Central Bank Ltd. Vs. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad, 1969(2) SCC 43 [Para 11,17]

JUDGMENT

JUDGMENT :- This is a petition by an employee of respondent no.8 who was appointed as in-charge Managing Director.

2. Petitioner's appointment as Managing Director was challenged by one Shri. Pramod Bhimrao More by filing Writ Petition No.773/2004. He again filed one petition being Writ Petition No.1774/2004 in which rule has been issued, however, interim relief has been refused.

3. The present respondent nos.1 to 7 have filed a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960, before Judge, Co-operative Court, Jalgaon, and prayed for various reliefs, main relief being as follows :-

"(A) It be held and declared that the opponent no.3 is not eligible for appointment to the post of General Manager and Acting Managing Director.

(B) It be held and declared that the decision of promotion of the opponent no.3 to the post of General Manager and Acting Managing Director, is contrary to law, contrary to notification, under section 74 issued by Commissioner for Co-operation, M. S. Pune.

(C) It be held and declared that the action of appointing opponent no.3 as General Manager, and also as Acting Managing Director of the opponent no.1 is contrary to law, and Government of Maharashtra orders dated 30-11-2002."

4. The said dispute filed in Co-operative Court is being contested by the petitioner by filing written statement. The trial court has framed issues. Issue Nos.1 and 2 which are relevant for the purpose of this petition are as follows :

"1. Whether this dispute is maintainable.

2. Whether this Court has jurisdiction to try and entertain the present dispute."

5. Petitioner herein filed application Exhibit 62 praying that the issue as to maintainability of dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960, be framed and be tried as a preliminary issue. Foundation of this claim as seen from Exhibit 62 annexure "F" to this petition, as seen in the application is as follows :

"The conditions of service of the employees of Co-operative Societies, the qualifications required to be possessed for a particular post prescribed under law do not fall within the mischief of Section 91 of the Maharashtra Co-operative Societies Act, 1960. The issues in relation to the qualifications and service conditions of the employees of a co-operative society, do not fall within the ambit and scope of the jurisdiction of this Hon'ble Court under Section 91 of the Maharashtra Co-operative Societies Act, 1960, as it does not relate to any act touching the "business of society". The present dispute mainly circles around the legality and validity of the appointment of the applicant - original opponent No.3, is beyond the scope and purview of the jurisdiction of this Hon'ble Court, as the same is not covered under the provisions of S.91 of the Maharashtra Co-operative Societies Act, 1960. The decision of the Hon'ble Apex Court reported in 2006 AIR SCW Page 3849 in Morinda Co-operative Sugar Mills Ltd. Vs. Morinda Cooperative Sugar Mills Workers Union is the complete answer in this respect. In the aforesaid decision, the Hon'ble Apex Court has ruled that, service conditions of the employees of the Cooperative Society do not fall within the mischief of the term 'business of society', and thus, a dispute in relation thereto would not fall within the jurisdiction and ambit of the Co-operative Court."

6. Said application was opposed by the present respondents/original plaintiffs. The substance of objection is that the issue of jurisdiction involves question of fact and law both and hence ought not be tried as a preliminary issue and also that since hearing of the dispute has been expedited by the Co-operative Appellate Court, Bench at Aurangabad, such piecemeal hearing would protract the final disposal.

7. The Judge, Cooperative Court, passed order on 1-12-2007 below Exhibit 62. In the body of order, on taking resume of respective submissions, the Judge, Co-operative Court, held that the case is already fixed for evidence, and in such circumstances, it is not just and proper to try the issue in respect of jurisdiction as a preliminary issue.

8. This order dated 1-12-2007 was carried by the present petitioner before the Maharashtra State Co-operative Appellate Court by filing revision application which is registered as Revision No.2/2008.

At the admission hearing the appellate court stayed the proceedings of the dispute till next date by order dated 10-1-2008 and fixed the hearing on 15-1-2008.

9. The Revision No.2/2008 has been heard and decided on merit and has been dismissed, aggrieved whereby petitioner is before this court and wants that Exhibit 62 of the trial court be allowed and the issue of maintainability and jurisdiction be heard and decided before hearing on all other issues.

10. Heard Mr. A. S. Deshpande, learned Advocate for the petitioner. He has placed reliance on following judgments :

(i) Morinda Co-operative Sugar Mills Ltd. Vs. Morinda Co-operative Sugar Mills Workers Union (2006 AIR SCW 3849).

(ii) Abdul Rahman Vs. Prasony Bai & another (2003(1) ALL MR 1208 (S.C.)), and

(iii) Amit Ashok Agrawal (Master) & another Vs. Khandesh Urban Co-operative Credit Society Ltd. (2002(2) Bom.C.R. 749 : [2002(2) ALL MR 669]).

11. Case of Morinda Co-operative Sugar Mills Ltd., Supra Item No.1.

This case was arising out of proceedings initiated in the form of a civil suit. It was a suit filed by the Union of the workmen employed by the Co-operative Society running a sugar mill. In the said suit, the Union claimed that the workmen were entitled to the benefit of variable Dearness Allowance on the basic wages and fixed allowance together, in accordance with para 317(ii) of the Third Wage Board Report, and had prayed for a consequential relief for permanent injunction. Issue No.5 was as follows:

"Whether the suit is liable to be dismissed on the ground of non service of notice under the Punjab Co-operative Societies Act ?"

It is seen that Issue Nos.1 to 4 were answered in favour of the plaintiff and hence need not be referred. The Issue No.5 was answered in negative holding that the suit was bad for want of service of notice which was mandatory since the subject matter of the suit was 'touching the business of Society' and hence statutory notice prior to filing of suit was not mandatory. It is seen that this judgment of the trial court was reversed in first appellate court. The employer Society lost in Second Appeal. The employer Society therefore approached the Supreme Court by filing Petition for Special Leave. Honourable Supreme Court relying on the judgment in case of Co-operative Central Bank Ltd. and others etc. Vs. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others etc. (1969(2) SCC 43), held that the dispute subject matter was not touching the business of the Society. In this background, Honourable Supreme Court found that the judgment of the High Court did not suffer from infirmity.

12. The ratio decidendi as is emerging from case of Morinda Co-operative Sugar Mills Ltd. (Supra) is that a question claiming alteration of conditions of service of workman or seeking a declaration by employees as to non-observance of such conditions of service would be a matter which would not be covered by expression "touching the business of the society".

13. In so far as the judgment of this court in case of Amit Ashok Agrawal (Master) and another [2002(2) ALL MR 669] (supra) is concerned, on facts of the case, this court was persuaded and observed that in the given case admittedly the issue involved was relating to very maintainability of dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960. It is apparent that a non-member's dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960, would not be maintainable. This issue was not just liable but was bound to be decided to be preliminary issue on the lines of Rule 2(1) of Order 14 of the Code of Civil Procedure, 1908.

14. Petitioner has then relied upon judgment of the Supreme Court in case of Abdul Rahman [2003(1) ALL MR 1208 (S.C.)] (supra). This case also is a dictum on the point that the question as to jurisdiction or res judicata have to be decided as a preliminary issue and there is no need for any further discussion on the point as this judgment reiterates pre-existing position.

15. Now, the question is whether on facts of the present case, the issue in question is of such nature that on the very face of it, the ouster of jurisdiction is made out.

16. Admittedly, the dispute in the present case as is seen from three prayer clauses of the dispute filed by the respondent nos.1 to 7 above pertains to a claim for declaration that the petitioner herein is not eligible for appointment, his appointment being contrary to notifications issued by the Commissioner of Co-operation and hence contrary to law. The claim and prayer contained in the dispute in question does not fall within the compass and category of clause of classification which would fall within the ambit of "alteration of conditions of service of workman or a claim for enforcement of conditions of service".

17. Admittedly, the writ petitioner herein has been appointed as a General Manager and Acting Managing Director. By no means, he is appointed as workman whose conditions of service would be a matter of exclusive jurisdiction of industrial adjudication as found by the Honourable Supreme Court in case of Co-operative Central Bank Ltd. and others (supra) and as followed by approval in case of Morinda Co-operative Sugar Mills Ltd. (supra). On this very glaring aspect alone, the argument that the dispute is not maintainable as it pertains to "alteration in conditions of service" has to fail as it is a far fetched submission. The result that follows is that the impugned judgment does not suffer from any error or illegality. The finding recorded by the appellate court in the revision application is legal and proper.

18. This court, therefore, concludes holding that the issue as to maintainability sought to be tried as a preliminary issue does not call for hearing as a preliminary issue as the subject matter is not on "trial whereof would be barred from an enquiry under Section 91". In the result, petition is dismissed.

Petition dismissed.