Smt. K. A. Annamma vs The Secretary, Cochin Co-Operative Hospital Society Ltd.

2. The majority view of three Judges in **Chirayinkeezhu Services Cooperative Bank Ltd. vs. Santosh 2015 (4) KLT 163 (LB) held that the service dispute arising between the Co-operative Society’s Employee and the Employer (Co-operative Society) is triable only by the forum prescribed under the KCS Act, 1969 and the jurisdiction of the ID Act is excluded and barred to try such service dispute. Where as the minority view of two Judges concerned, it held that such service dispute is triable under both the Acts, i.e., the KCS Act and the ID Act. In other words, it held that both the Acts possess and enjoy concurrent jurisdiction to decide such service dispute and it is for the aggrieved person to choose the forum of his/her choice out of the two Acts to get the service dispute settled subject to proving the ingredients of the definition of “Workman”, “Industrial Dispute” and the cooperative Society to be the “Industry” as defined under the ID Act, if he/she desires to invoke the jurisdiction of the ID Act for deciding the service dispute.[Paras 20-21][297-D-F]

3.1 The ratio of *Dharappa’s case is that firstly, Section 70 of the Karnataka CS Act as it originally stood and amended by first Amendment Act 19 of 1976 adding therein two clauses (d) and (e) to Section 70, whether one reads it independently or/and in juxtaposition with other Sections would find that it did not provide for express ouster or exclusion of the jurisdiction of the Labour Court/Industrial Tribunal under the ID Act. In other words, it did not create any express bar for the Labour Court/Industrial Tribunal from deciding the service disputes arising between a Cooperative Society’s Employee and his/her Employer (Co-operative Society). [Paras 72-73] [314-E-G] HOSPITAL SOC. LTD.

3.2 Second, any Co-operative Society’s Employee satisfying the definition of the expression “Workman”, “Industrial Dispute” and the Co-operative Society to be an “Industry” as defined under the ID Act has the choice to select one forum out of the two forums for filing a case in relation to his service dispute, i.e., either to file a case under the Karnataka CS Act or to seek an industrial reference under Section 10 of the ID Act or to file an application under Section 10(4-A) of the ID Act. [Para 74][314G-H; 315-A]

3.3 Third, both the Acts, namely, Karnataka CS Act and the ID Act possessed and enjoyed concurrent jurisdiction over such service disputes till 20.06.2000. [Para 75][315-B]

3.4 Fourth, consequent upon the second amendment made by the State of Karnataka in Section 70 by Amendment Act 2/2000, which received the Assent of the President on 18.03.2000 and was brought into force on 20.06.2000, the State legislature, for the first time, provided an express provision for exclusion of the jurisdiction of the Civil Court or Labour Court or Industrial Tribunal to decide any service dispute arising between a Cooperative Society’s Employee and his/her Employer (Co-operative Society). The effect of introducing such amended provision was that the provisions of the ID Act were held no longer applicable for deciding such service disputes. In other words, jurisdiction of the ID Act then stood excluded from deciding such service disputes from 20.06.2000 onwards. A fortiori, only the authorities specified under the Karnataka CS Act were held competent and possessed jurisdiction to try such disputes from 20.06.2000 onwards. [Paras 76-77][315-C-D]

3.5 Fifth, by way of rule of caution, the question of such nature should be decided by the Courts primarily keeping in view the language employed in the concerned State Act. [Para 78][315E]

3.6 Sixth, Article 254 of the Constitution is attracted when there is a repugnancy between any provision(s) of the State Act such as Karnataka CS Act and the provision(s) of any existing law enacted by the Parliament on the subject falling in concurrent list such as the ID Act. The inconsistency should be so irreconcilable that it must come in direct head on collusion with any provision of the Central Act in the field thereby creating a situation that obeying one Act would result in disobeying the other. [Paras 79- 80][315-F-G]

3.7 Seventh, if such a situation arises in any case, the State law (Karnataka CS Act) which is reserved for President’s Assent and on receiving the President’s Assent, will prevail over the Central law (ID Act) in that State by virtue of Art 254 (2) of the Constitution. [Para 81][315-H; 316-A]

4.1 When the question in the instant case is examined in the light of the ratio of *Dharappa’s case, substantial similarity is found between the language of Section 69 of the KCS Act as it originally stood and later amended by the Amendment Act 1 of 2000 with that of the language employed in Section 70 of the Karnataka CS Act as it originally stood along with amended one by first Amendment Act 19/ 1976. In other words, it is noticed that the phraseology and language of both unamended and amended Section 69 of KCS Act and Section 70 of the Karnataka CS Act as amended by first amendment by Act 1/2000 are in pari materia with each other. First, the KCS Act and the Karnataka CS Act have received the Assent of the President at the time of their respective enactment. Second, the KCS Act-Amendment Act 1/2000 received the Assent of the Governor so also Amendment Act 19/76 of Karnataka CS Act received the Assent of the Governor. Third, Section 69 and Section 70 start with a non-obstante clause. Fourth, Section 69 and Section 70 end with the words “such dispute shall be referred to the Registrar and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute”. Fifth, the KCS Act and the Karnataka CS Act had no provision expressly providing for ouster of the jurisdiction of Civil Court, Labour Court and the Industrial Tribunal from deciding service disputes alike the one introduced by Karnataka State for the first time in Section 70 by the Amendment Act of 2 of 2000 with effect from 20.06.2000 with the Assent of the President. This indicates that till 20.06.2000, there was similarity between the KCS Act and Karnataka CS Act. However, after Section 70 was amended by Act No.2/2000 w.e.f. 20.06.2000 providing therein a specific clause expressly excluding the jurisdiction of the Civil, Labour and Revenue Court and Industrial Tribunal to decide the service disputes, the scheme of HOSPITAL SOC. LTD.

the two Acts no longer remained similar. [Paras 83-89][316-AH]

4.2 Similarly, it is found that the identical wording occurring in the beginning and the end of Section 69 and Section 70 was interpreted in *Dharappa’s case wherein it was held that such provisions cannot be construed as providing an express exclusion of the jurisdiction of other Courts including that of the Labour Court and the Industrial Tribunal under the ID Act. On the other hand, it was held that the Karnataka CS Act possesses concurrent jurisdiction for deciding the services disputes upto 20.06.2000. This interpretation of *Dharappa’s case would squarely apply to the provisions of the KCS Act if Section 69 is also suitably amended by the State of Kerala by making Section 69 at par with amended Section 70 of Karnataka CS Act. As on date, it is not so. [Paras 90-91][317-A-C]

4.3 Though the KCS Act was amended by Amendment Act

1 of 2000 (w.e.f. 02.01.2003) but it did not bring about any kind of inconsistency or repugnancy in the KCS Act qua any provision of the ID Act, 1947. Had the KCS Act including the amending one by Act 1/2000 brought about any kind of inconsistency or repugnancy between the provisions of the KCS Act and the ID Act such as the one brought about by the second Amendment Act (2/2000) in Section 70 of Karnataka CS Act w.e.f. 20.06.2000 qua the ID Act and had such amended provisions of the KCS Act received the Assent of the President, the provisions of the KCS Act too would have prevailed over the ID Act in the State by virtue of Article 254 (2). Such is not the case here because though the KCS Act received the Assent of the President at the time of its enactment so also the Karnataka CS Act received, this Court while interpreting Section 70 as amended by Act No.19/1976 of the Karnataka CS Act with the Assent of the Governor, has held in *Dharappa’s case that Section 70 did not create any inconsistency or/and repugnancy with any provisions of the ID Act and possessed concurrent jurisdiction over such service dispute. This ratio of *Dharappa’s case would apply to Section 69 of the KCS Act because it has been held that Section 69 is in pari materia with Section 70 of the Karnataka CS Act. That apart, the amending KCS Act (1 of 2000) having received the Assent of the Governor did not bring about any inconsistency or repugnancy with the provisions of the ID Act. In any event, in the absence of the Assent of the President to the amending KCS Act 1/2000, even if any inconsistency or repugnancy exists between the provisions of the KCS Act and the ID Act, it is the ID Act which will prevail over the KCS Act by virtue of Article 254 (1) but not vice-versa. [Paras 92-94][317-D-H; 318-A]

4.4 Article 254 of the Constitution is attracted in cases where the law is enacted by the Parliament and the State Legislature on the same subject, which falls in List III - Concurrent list. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the Assent of the President will prevail over the Central Act in the concerned State by virtue of Article 254 (2). A fortiori, in such a situation, if the State Act has received the Assent of the Governor then the Central Act would prevail over the State Act by virtue of Article 254 (1). It is this principle, which was applied by this Court in the case of *Dharappa while comparing the provisions of the Karnataka CS Act including its two amendments with that of the provisions of the ID Act. [Paras 95-98][318-B-E]

4.5 The majority Judges proceeded to examine the questions by attempting to compare the language employed in the relevant Sections of the two repealed KCS Acts of 1932 and 1951 with that of the language of Section 69 of the KCS Act 1969 and noticing some departure in the language employed in Section 69, came to a conclusion that the language of Section 69 is comprehensive enough to exclude the jurisdiction of the Labour Court under the ID Act. The majority Judges also took note of some more Sections of the KCS Act and noticing some dissimilarity in the scheme of the KCS Act and Karnataka CS Act held that Section 69 of the KCS Act overrides the provisions of the ID Act since inception. The approach of the majority cannot be concurred with. [Para 99][318-F-G]

4.6 When this Court in *Dharappa’s case interpreted the language of Section 70 of the Karnataka CS Act, the questions HOSPITAL SOC. LTD.

involved herein should have been examined by comparing the language employed in Section 69 of the KCS Act with the language employed in Section 70 of the Karnataka CS Act rather than to compare with the repealed provisions. In other words, once on comparing the language of Section 69 and that of Section 70 as amended by the first amendment, a conclusion is reached that both Sections are akin to each other till 20.06.2000, a fortiori, the law laid down in *Dharappa’s case insofar as it interprets Section

70 as it originally stood and amended by Amendment Act 19/1976 would apply to Section 69 of the KCS Act. On the other hand, the ratio will not apply after 20.06.2000 because from that date, there was a change in the language of Section 70 which provided a clause to exclude the jurisdiction of other Courts in express terms by Amendment Act of 2/2000. In the light thereof, the view of majority judges cannot be upheld whereas the view of the minority judges is accordingly upheld. [Paras 100-102][319A-C] *Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd. (2007) 9 SCC 109 : [2007] 5 SCR 729 – relied on.

**Chirayinkeezhu Services Cooperative Bank Ltd. v. Santosh 2015 (4) KLT 163 (LB) – overruled.

K. Balachandran v. The Dy. Registrar, Co-operative Societies & Ors. AIR 1978 Kerala 126 : 1978 KLT 249; Sherly M.U. v. The President, Parappuram Milk Producers Co-op. Society Ltd. & Ors. 2007 (1) KLT 809; Board of Directors, Edava Service Co-operative Bank v. The Co-operative Arbitration Court & Ors. 2008 (3) KLT 780; Thodupuzha Taluk General

Marketing Co-operative Society vs. Michael Sebastian 2010 (1) KLT 938; Veerashaiva Co-op. Bank Ltd. v. Presiding Officer, Labour Court (2001) 3 Kar. LJ 519; Karnataka Sugar Workers Federation v. State of Karnataka AIR 2003 Kar HCR 1802 – referred to.