M.M. Dutt, J.@mdashThis application under article 227 of the Constitution of India filed at the instance of the petitioner, Shaidur Rahaman Khan, is directed against the order dated March 6, 1985 of the Appellate Tribunal passed in appeal No. 43 of 1984 modifying the award made by the Arbitrator u/s 87 of the West Bengal Co-operative Societies Act, 1973, hereinafter referred to as ''the Act''. The dispute petition u/s 86(1) of the Act was filed before the Assistant Registrar of Co-operative Societies, Midnapore by the Midnapore District Wholesale Consumers Cooperative Society Ltd. hereinafter referred to as the Society for realization of a sum of Rs. 28,860,95 from the petitioner towards shortage of stock found on physical verification. It was alleged that the petitioner, Shaidur Rahaman Khan, was the sales-in-charge of the Digha Branch of the Society from 29.4.1977 to 20.6.1978, and of the Midnapore Chhotobazar Branch from 30.5.1979 to 27.9.1980. It was alleged that during this period shortage of goods of the aforesaid Branches took place and that was caused by the petitioner by not including the sales in the daily statement and not depositing the sale proceeds in the Bank a further claim of Rs.1916.08 was made towards excess salary alleged to have been drawn by the petitioner when he was at Egra Branch of the society.
2. It appears that ah arbitrator was appointed by the Registrar of Co-operative Societies, West Bengal u/s 37(1) (c) of the Act. Shorn of all details, it may be stated that the reference case came up for hearing before the learned Arbitrator on December 30, 1981. On that day, the Society was absent and the learned Arbitrator dismissed the case for default. Thereafter, the Society filed an application for restoration of the case, but there being no provision for such restoration, the learned Arbitrator rejected the application observing that the Society might start a fresh case.
3. A fresh reference was made by the Registrar at the instance of the Society. This time the learned Arbitrator made an award for the sum of Rs. 28.798.95 against the petitioner. Being aggrieved by the award, the petitioner preferred an appeal to the Appellate Tribunal. It was contended on behalf of the petitioner that as the first reference case was dismissed for default, the second reference was not maintainable. The Appellate Tribunal overruled the said contention and came to the finding that the petitioner was liable for the shortage of the goods. The Appellate Tribunal, however, slightly modified the award made by the learned Arbitrator. In modification of the award, the Appellate Tribunal held that the petitioner was liable for the sum of. Rs. 27,622.20. The petitioner was directed to pay to the Society the said sum within'' six months from the date of the award. The Society was granted liberty to take appropriate action for realisation of the said sum together with interest 2 1/2 per annum from the date of expiry of the period of six months mentioned above.
4. Mr. Biswanath Bajpayee, the learned Advocate appearing on behalf of the petitioner, submits that the order by which the previous reference case was dismissed for default by the learned Arbitrator is an award, and that after such an award the Arbitrator become functus officio and the second award could not be made on the basis of the second reference. In support of his contention he has placed much reliance upon a Bench decision of this Court in
5. In our opinion, the above decision has no manner of application inasmuch as no award was passed by the learned arbitrator, by dismissing the reference for default of appearance of the Society. We are also of the view that the order dismissing the reference for default cannot be held to be an award. Section 87 of the Act provides'' as follows:
On receipt of a reference u/s 86, the Registrar shall, subject to the rules-
(a) decide the dispute himself; or
(b) transfer it for disposal to any person authorized by the State Government to exercise the powers of the Registrar in this behalf; or
(c) refer it for disposal to one or more arbitrators to be appointed by the Registrar.
6. Under clause (a) of section 87(1) the Arbitrator has to decide the dispute himself. There can be no doubt when the Arbitrator dismissed the case for default, he did not decide the dispute between the parties. In our opinion, by no stretch of imagination can it be said that the order dismissing the reference case for default is an award. We may also refer to Rule 133 of the West Bengal Co-operative Societies Rules, 1974 which, inter alia, provides that upon the evidence recorded by the Arbitrator and after consideration of any documentary evidence produced by either party, the Arbitrator shall make an award in accordance with justice, equity and good conscience. Thus, unless there is a determination on merits by the Arbitrator of the disputes between the parties no award comes into being.
7. It may that an appeal would have been maintainable against the order dismissing the case for default u/s 134 of the Act, but there is no provision in the Act imposing a bar to a second reference like the provision of Order 9, rule 9 of the Code of Civil Procedure.
8. We do not, therefore, think that a second reference was barred or that the Arbitrator could not make an award on the second reference as contended on behalf of the petitioner. No other point has been urged us in this revisional application on behalf of the petitioner. For the reason aforesaid, the application is dismissed
There will however, be no order as to costs.
J.N. Chaudhuri, J.
I agree.
