ORDER
Mohan Shantanagoudar, J.
1. The orders at Annexures-H and J are called in question in this writ petition.
Respondent No. 3 was working as Secretary in petitioner Bank during the period 1.1.1961 to 18.10.76. While he was working as Secretary, he misappropriated certain sums of money belonging to the society. Then the petitioner society instituted proceedings under Section 69 of Karnataka Cooperative Societies Act before the Deputy Registrar of Cooperative Societies against the petitioner. The Deputy Registrar of Cooperative Societies passed the order dated:30/1/88 directing the petitioner to pay a sum of Rs. 14,969.69 paise with future interest on principle amount. The said order is confirmed by the Karnataka Appellate Tribunal on 29.12.89 in Appeal No. 353/88. The order of Karnataka Appellate Tribunal was confirmed by this Court in W.P. No. 20476/1991(disposed of on 26th May 1997). In pursuance to the order passed by this Court, the petitioner-bank filed Execution Petition in E.P. No. 646/1991 for recovery of Rs. 14,969.69 and interest. The same is pending before concerned authority.
In view of the misappropriation of the amount, the third respondent was kept under suspension on 27.8.76 and after holding enquiry, he was dismissed from service on 29.1.77. The order of dismissal was approved by the Joint Registrar of Co-operative Societies on 20.7.79. Accordingly, the order dated:16.8.79 was issued by the petitioner bank. In the mean-while, the Common Cadre Authority was established on 1.10.1978. It seems the third respondent approached Common Cadre Authority for redressal and the Common Cadre Authority withheld the order of dismissal passed by the petitioner bank as approved by Joint Registrar of Cooperative Societies. The petitioner filed W.P.No. 42580/1982 before this Court challenging the order passed by the Common Cadre Authority. This Court allowed the writ petition on 8.4.86 and consequently the order of Common Cadre Authority was set aside. The third respondent challenged the order passed by this Court in W.P.No. 42580/1982 before Hon'ble Supreme Court of India in SLP No. 5748/1986, which was ultimately numbered as Civil Appeal No. 2582/1986. The Appeal came to be dismissed on 18.2.91, as could be seen from Annexure-C. Thus the order of dismissal of third respondent was approved by Hon'ble Apex Court also.
2. When the facts stood thus, the third respondent filed application under Rule 18(4) of Karnataka Cooperative Societies Rules, 1960 praying for payment of gratuity before the Common Cadre Authority. Based on such application, the Common Cadre Authority directed the petitioner bank to pay a sum of Rs. 49,908/- towards gratuity. The copy of the letter of Common Cadre Authority is produced at Annexure-F to the writ petition. Subsequently based on such a letter, the third respondent raised a dispute under Section 70 of Karnataka Cooperative Societies Act claiming the aforesaid amount of gratuity. The first respondent passed the award as per Annexure-H on 27.6.2002 for a sum of Rs. 1,43,355/- The said order is confirmed by Karnataka Appellate Tribunal on 16.4.2005 in Appeal No. 832/2002. Hence this writ petition is filed by the petitioner.
3. At the time of hearing, learned Sr. Advocate Sri Padmanabha Mahale appearing on behalf of the petitioner raised a preliminary question relating to maintainability of dispute under Section 70 of the Karnataka Cooperative Societies Act before the Arbitrator for claiming the gratuity. According to him, the proceedings relating to payment of gratuity ought to have been initiated under the provisions of Payment of Gratuity Act, 1972, as the said Act is a self contained code by itself for dealing with questions relating to payment of gratuity. The said contention is opposed by Sri. G. Balakrishna Shastry, learned Advocate appearing on behalf of respondent No. 3. However Sri. A.G. Shivanna, learned Govt. Advocate supported the contention advanced on behalf of the petitioner by contending that the dispute may not lie under Section 70 of the Karnataka Cooperative Societies Act and the only remedy available for respondent No. 3 is to approach the concerned authority under the provisions of Payment of Gratuity Act, 1972.
4. It is relevant to note that as per the provisions under Rule 18(4) of Karnataka Cooperative Societies Rules, the respondent No. 3 being the employee of cooperative society is entitled to gratuity from the cooperative society, subject to certain condition. The Full Bench of this Court in the case of N.S. Srinivasamurthy and Ors. v. The Registrar of Cooperative Societies in Karnataka and Ors. reported in : (2004)ILLJ1085Kant has ruled out that a cooperative society is not exempt from the application of Payment of Gratuity Act. In the said judgment, the Full Bench has over-ruled the Division Bench judgment of this Court in the case of The Malleswaram Cooperative Society Ltd. v. The Senior Labour Inspector reported in : (1999)ILLJ1326Kant by observing thus:
Under the circumstances, the finding of the Division Bench in Malleswaram Cooperative Society's case that the provisions of the 1961 Act, are not inconsistent with the provisions under the 1946 Act, is unsustainable. The Division Bench has failed to take into account the provisions of the repealing and the reenacted Acts and has overlooked the fact as stated above that there is no provision for general exemption as contained in Section 6 of the 1948 Act in the 1961 Act, and hence, a Co-operative Society is not exempt from the application of P.G. Act.
Learned Counsel for the parties also submit that the Division Bench in Malleshwaram Co-operative Society's case, has observed that it is held that the provisions of the Minimum Wages Act and the Payment of Gratuity Act are not applicable to the employees of the Cooperative Societies', is not correct.
In view of the above of the above discussion, we hold that the decision of the Division Bench in Malleshwaram Co-operative Society's case ILR 1999 KAR 650 does not correctly lay down the law and overruling the said decision, we hold that the notification dated 17.05.1952 issued under 1948 Act, would not continue to operate under 1961 Act for the reason stated above. As discussed above, the reference made by the Division Bench is answered accordingly.
(emphasis supplied)
5. Thus it is clear from the aforesaid observations of the Full Bench of this Court that a Cooperative Society is not exempt from application of Payment of Gratuity Act.
6. On meticulous perusal of Payment of Gratuity Act, it would be clear that the said enactment is a complete code by itself which contains detailed provisions covering all the essential features of the scheme for payment of gratuity. Rule 18(4) of Karnataka Cooperative Societies Rules does not contain detailed provisions covering all the essential features of the scheme for payment of gratuity. The said Rule merely reiterates the right conferred on the employee of a society under the provisions of Payment of Gratuity Act. It merely says that the employee of a cooperative society has got right of payment of gratuity, but does not lay down the provisions relating to procedure for quantification of gratuity. On the other hand, the provisions of Payment of Gratuity Act covers all the essential features of the scheme for payment of gratuity. It creates the right of payment of gratuity, indicates when the right will accrue and lays down the provisions for quantification of gratuity. It provides further for recovery of the amount and contains provisions relating to interest at 9% p.a. to be paid by the society on delayed payment. For the enforcement of its provisions, Payment of Gratuity Act, 1972 provides for appointment of a Controlling Authority under Section 3 of the said Act, which is entrusted with the task of administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Authority particularly constituted under the provisions of Section 7(7) of the Payment of Gratuity Act. Section 14 of the said Act clearly discloses that the provisions of Payment of Gratuity Act (which is a subsequent enactment) have over-riding effect on other enactments. Thus in my considered opinion, the petitioner will have to approach the Controlling Authority under the provisions of payment of Gratuity Act, 1972 and he cannot raise a dispute under Section 70 of Karnataka Cooperative Societies Act for getting gratuity.
7. The aforesaid view of mine is supported by the judgment of the Apex Court in the case of State of Punjab v. Labour Court, Jullundur and Ors. reported in (1980) 1 SCC PAGE 4. In the said judgment, the Apex Court has exhaustively dealt with the provisions of Payment of Gratuity Act and has concluded that the Parliament intended that proceedings relating to payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. In the said judgment, the Apex Court has held that the Labour Court has no jurisdiction to entertain the application filed by the employees under Section 33C(2) of Industrial Disputes Act.
8. In view of the above, I conclude that wherever there is a serious dispute existing with regard to claim for payment of gratuity, in a cooperative society the proceedings will have to be initiated under the provisions of Payment of Gratuity Act and not under Section 70 of Karnataka Cooperative Societies Act, as the essential features relating to payment of gratuity and scheme etc., are not forthcoming under Karnataka Cooperative Societies Act. In view of the same, the impugned orders are liable to be quashed and accordingly the same are quashed.
It is open for the third respondent to approach appropriate authority under the provisions of Payment of Gratuity Act.
9. Accordingly, writ petition is allowed.