Case No: Civil Appeal No. 8 of 1975
Judge: Mahmud Husain,
Court: Appellate Division ,,
Advocate: Mr. T. H. Khan,MR. SR Pal,,
Citation: 28 DLR (AD) (1976) 187
Case Year: 1976
Appellant: Bangladesh Jatiya Matshajibi Samabaya Samity Ltd.
Respondent: Chairman, Labour Court
Subject: Labour Law,
Delivery Date: 1976-5-5
Syed A. B. Mahmud Husain CJ
Ahsanuddin Choudhury J
Kemaluddin Hossain J
Fazle Munim, J.
The Bangladesh Jatiya Matshajibi Samabaya Samity Ltd.
The Chairman, Labour Court, Chittagong
May 5, 1976.
Co-operative Societies Act (II of 1912)
This Act is a special enactment for a special purpose. An employee of a co-operative society is governed by this Act.
Case Referred to:
M/S Co-operative Milk Societies Union Ltd. Vs. State of West Bengal and others, 62 C.W.N. 405.
T. H. Khan, Senior Advocate with Mahbubur Rahman, A. N. M. Shahidullah, Advocates instructed by S. S. Hoda, Advocate-on-Record— For the Appellant.
S. R. Pal, Senior Advocate (on 4. 5. 76) with A. K. M. Shafiqur Rahman, Advocate instructed by Md. M. R. Khan, Advocate-on-Record—For Respondent No. 2.
Ex-parte—Respondent No. 1.
Civil Appeal No. 8 of 1975.
(On appeal from the judgment and order dated 28th March, 1974 passed by the High Court Division in Petition No. 252 of 1973).
Mahmud Husain, C. J.
This appeal by special leave is against a judgment of a Bench of the High Court Division passed in writ jurisdiction wherein the petitioner challenged the order dated 24.2.72 passed by Chairman, Labour Court, Chittagong directing re-instatement of respondent No. 2 in his post under the petitioner with all back wages and benefits attached to the same. The High Court Division discharged the Rule issued earlier thus upholding the order passed by the Labour Court.
2. Short facts for disposal of the case are that the appellant is a Co-operative Society registered under Co-operative Societies Act, 1940. The object of the appellant-Society is to improve the socio-economic condition of the fishermen of the country, to catch fish through its members and to export the same to different parts of the world and to import nylon and other twine for its members. Respondent No. 2 was appointed accountant of the Appellant-Society who was later on found negligent in the discharge of his duties and responsibilities and as such an order was served upon him on 2nd December, 1968 directing him to hand over the charge of his office to the Assistant Accountant and was placed under suspension from 7th December, 1968 pending drawing up proper proceeding. Charge-sheet was submitted against him on 21st January, 1969 with a direction to show cause as to why he should not be dismissed from service for his misconduct. Assistant Registrar of the Co-operative Society, Chittagong was appointed as Inquiry Officer. Respondent No. 2 submitted his explanation to the Inquiry Officer on 1. 2. 1969. The Inquiry Officer submitted a report and on that basis the respondent No. 2 was dismissed from service from 1st October, 1969.
3. Respondent No. 2 moved the Labour Court by an application under section 25(i)(b) of the Bangladesh Employment of Labour (Standing Orders) Act, 1965. The appellant appeared before the Labour Court and submitted its written statement and the Labour Court after hearing did not find Respondent No. 2 guilty of the misconduct as defined in section 17 (3) of the Standing Orders Act and accordingly held that the order of dismissal of respondent No. 2 was illegal and passed an order directing reinstatement as earlier stated. As against that the petitioner moved the High Court Division and raised only one point which is with respect to the jurisdiction of the Labour Court to try the case. The High Court Division held that the order passed by the Labour Court was not without jurisdiction. As against that the petitioner sought the leave contending that the High Court Division erred in holding that the Cooperative. Societies Act was not a special. Act and that the Labour Statutes superseded the Co-operative Societies Act in relation to disciplinary action against the employees of the Co-operative Society. Leave to appeal was granted for examining if workers under Co-operative Societies are entitled to invoke the Labour Statutes against disciplinary actions taken against them 4. Mr. T.H. Khan learned Counsel for the appellant submitted that the Cooperative Societies Act, 1940 is a complete Cede by it self and the provisions of the Act and the Rules made thereunder go to show that it is a special Act meant for Co-operative Societies only. He drew our attention to section 86 of the Co- operative Societies Act under Chapter IX dealing with settlement of disputes, section 86 runs thus:—
So, according to him all disputes relating to the affairs of the Co-operative Society shall be referred to the Registrar. Section 133 of the Cooperative Societies Act runs thus:—
(a) the registration of a co-operative Society or its by laws or of an amendment of its by-laws; or
(b) the dissolution of a managing committee and the management of the society on dissolution thereof; or
(c) any dispute required under section 86 to be referred to the Registrar; or
(d) any matter concerned with the wingding up and dissolution of a Co-operative Society.
(2) While a Co-operative Society is being wound up no suit or other legal proceeding relating to the business of such Society shall be proceeded with or instituted against the liquidator as such or against the society or any member thereof except by leave of the Registrar and subject to such terms as he may impose.
(3) Same as provided in this Act, no order, decision or award under this Act shall be liable to be challenged, set aside, modified, revised or declared void in any Court on any ground whatsoever except want of jurisdiction."
From the above section it appears that no Civil or Revenue Court shall have any jurisdiction in respect of any dispute as required under section 86 of the Co-operative Societies Act. The learned Judges of the High Court Division relying on the case of M/S Co-operative Milk Societies Union Ltd. Vs. State of West Bengal and others reported in 62 C.W.N. 405 held that a dispute between a Co-operative Society and its workmen does not relate to the actual business of a Co-operative Society and therefore, does not touch the business of the Co-operative Society. But the learned Judges, however, taking into consideration of the amendment of section 86 opined that the provision of section 86 is broad enough to include a dispute between the society and its employees with regard to disciplinary measure of his service condition. Mr. Khan submitted that the observation of the learned Judges of the High Court Division that "the Co-operative Societies involving people of all walks of life does not concern itself only with the relationship between the workers and their employees. In that sense the Industrial Relations Ordinance, 1969 and the Employment of Labour (Standing Orders) Act, 1965 are special statutes, while the Bengal Co-operative Societies Acts is a general one. In case of a conflict between the provisions of these two kinds of statutes, the special statute shall prevail" is erroneous and the conclusion arrived at relying on the case reported in 62 C.W.N. 405 cannot be sustained in law. It cannot be said that the provisions of Co-operative Societies Act involve people of all walks of life, rather the enactment can only be invoked by those who want to form a Co-operative Society to work on Cooperative basis for the promotion of thrift, self-held and mutual aid among persons of moderate means with needs and interests in common, to the end that better conditions of living and better methods of production and business may thereby result. From this it can be said without contradiction that it is a special enactment for specific purpose. So, in our view there is no conflict between, the Co-operative Societies Act and the Labour Statute. Both being special Statutes, the provisions thereunder should be invoked in relative matters. We, therefore, held that respondent No. 2 an employee of the appellant Cooperative Society is governed by the Cooperative Societies Act. His petition before the Labour Court was incompetent.
5. Mr. S.R. Pal, learned Counsel for the respondent raises no issue on the conflict of Co-operative Societies Act and Labour Statute, but he submitted that the inquiry held by the Assistant Registrar, Co-operative Society which was accepted by the employer (appellant) followed by the order of dismissal of the respondent No. 2 does not give an opportunity to the respondent No. 2 challenge the same in any forum and in that view of the matter the dispute between the worker and the employer was rightly adjudicated upon by the Labour Court. Mr. Pal does not dispute the provisions of section 133 of the Co-operative Societies Act, but says that since there was no prevision for mitigating any objection to the enquiry report if raised by the respondent No. 2 in any forum, the proper forum should be the Labour Court. We find no substance in this contention as no issue was raised as to the competency of the appellant to refer to the Assistant Registrar, Co-operative Society for inquiry. The respondent No. 2 having failed to raise any objection against the inquiry report and he having felt aggrieved only by the final order of dismissal, we are not required to look into a matter which has never been agitated before the Labour Court or the High Court Division. The inquiry report having been accepted by the appellant is a fact accomplished and in that view of the matter the respondent No. 2 cannot be allowed to go behind the order of dismissal nor could we go behind the said order which is a question which was never agitated by respondent No. 2 at the appropriate stage. In the result the appeal is allowed and the order passed by the High Court Division which affirmed the order of the Labour Court is set aside. The order of the Labour Court is also set aside and the petition of Respondent No. 2 is dismissed. There will be no order as to costs.