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Kunj Bihari Tripathi And Another v. State Of U.P. Thru' Secry., Cooperative, U.P. And Others - WRIT - A No. 8335 of 2007  RD-AH 13854 (10 August 2007)
Civil Misc. Writ Petition No. 8335 of 2007
Kunj Bihari Tripathi and another
State of U.P. and others
Hon'ble V. K. Shukla, J.
Petitioners have approached this Court, questioning the validity of order dated 06.01.2007 passed by Joint Registrar, Co-operative Societies, U.P. Kanpur Region, Kanpur, rejecting representation moved under the provisions of Section 128 of the U.P. Cooperative Societies Act, 1965.
Brief facts, giving rise to instant writ petition, are that there is a co-operative society in the name and style of Ordinance Factory Cooperative Society Ltd. Kalpi Road, Kanpur ( in shot the Ordinance Factory Society). Thew said society was initially registered under the provisions of U.P. Co-operative Societies Act, 1912 with registration No.225/12.09.1946, and after enforcement of U.P. Co-operative Societies Act, 1965 stands deemed to have been registered under the provisions of the U.P. Co-operative Societies Act, 1965. Area of operation of the Ordinance Factory Society, as per its bye-laws is limited to Kanpur City, Armapur Estate and the Cantonment area, and its object is to provide loan to its members and to accept their deposits.
Petitioner No. 1 was initially appointed in the service of the Ordinance Factory Society as clerk on 23.01.1967, whereas petitioner No. 2 was appointed as clerk on 08.02.1968. Petitioner No. 2 was promoted on the post of Secretary in 1979 with the approval of the then Deputy Registrar, Cooperative Societies, U.P. Allahabad Region, Allahabad, and petitioner No. 2, who had been working as clerk, with the passage of time was promoted as Accountant. As per petitioners, the then Committee of Management/Board of Directors of the Ordinance Factory Society passed resolution in its meeting held on 3rd January, 1968, whereby age of superannuation of its employees was decided to be 60 years, and based on the same, the employees of the said society used to superannuate on completion of age of 60 years. Thereafter, in the year 1977, Administrator, in exercise of power of the Committee of Management, framed service Rules known as Ordinance Factory Co-operative Society Ltd. Kanpur Service Rules, 1977. Qua the said Rules, it has been stated that the same granted approval on 03.07.1991. It has been further stated that Rule 14 of the said Service Rules fixed the age of superannuation as 60 years with power to extend the aforesaid age in special cases. It has been stated that when report of 4th Pay Commission was implemented, then it was resolved that retirement age of employees of the society will be 60 years, and similar was the position while report of 5th Pay Commission was implemented on 30.10.1998. Petitioners have contended that in spite of the aforesaid decisions, particularly, relating to the age of superannuation of the employees of Ordinance Factory Society, the Committee of Management/Board of Directors on 17.07.1999 on 17.07.1999 formed opinion to re-fix the age of superannuation of its employees from 60 to 58 years and qua the same legal opinion was obtained. In the legal opinion which was given on 06.08.1999, it was mentioned that Committee of Management/Board of Directors had no jurisdiction to reduce the age of superannuation of tis employees. Secretary of the society wrote letter dated 06.11.1999 to the District Assistant Registrar, Cooperative Societies, Kanpur, specially stating therein that the Committee of Management/Board of Directors has descended from the legal opinion and requested him to give his opinion in the matter, keeping in view the provisions of U.P. Cooperative Societies Employees' Service Regulations, 1975. In response to the said letter of the Secretary, District Assistant Registrar in his turn on 06.12.1999 informed that Service Regulations have already been framed, and if they are approved, then action be taken in consonance with the Service Regulations, sand Committee should act accordingly. Petitioners submit that pursuant to the aforesaid direction, meeting was held on 24.12.1999, and the age of superannuation of the employees of the society as 60 years was reaffirmed. Petitioners submit that right from the very inception, the employees of the society have been superannuating at the age of 60 years and said practice continued in the society prior to 29.07.2006 and various incumbents have been permitted to continue. Petitioners submit that quite illegally, they have been sought to be superannuated after completing the age of 58 years on 29.07.2006 with effect from 31.07.2006. The said resolution had been questioned before this Court vide writ petition No. 41367 of 2006, which was finally disposed of on 10.08.2006 with direction to decide the representation of petitioner within six weeks. Pursuant to directive issued by this Court, Joint Registrar, Co-operative Societies, U.P. Kanpur has passed order dated 06.01.2007, which is subject matter of challenge before this Court.
Counter affidavit has been filed on behalf of respondent Nos. 6, 7 and 8, and therein plea has been taken that no resolution had been passed on 03.01.1968 fixing the age of superannuation of the employees as 60 years. It has been sought to be contended that on account of manipulation some employees were retired at the age of 60 years and qua illegal action no parity could be accorded. Qua annexure-1 to writ petition, it has been mentioned that same has no statutory force, and coupled with this, Administrator has no right to take any policy decision. As far as Rule 14 of Ordinance Factory Cooperative Society Ltd. Kanpur Service Rules, 1977, age of retirement has not at all been mentioned. Approval letter dated 03.07.1999 has been termed to be forged on the ground that Service Rules had been framed in the year 1977 and the approval of the same was sought on 27.08.19898 and particular approval has been accorded after 14 years. Moreover, Rule 14 does not to rescue of petitioners, having not come from any other society, but they have been directly appointed in the present society. Advice tendered by counsel has been termed to be illegal advice and reference has been given of resolution dated 17.07.1999, wherein decision has been taken to retire an incumbent at the age of 58 years. Reference has also been given that as per Cooperative Societies Rules, 1968, any resolution passed by Committee of Management cannot be challenged before six months and in case any such exercise is undertaken, same shall be void. It has been sought to be suggested that by means of resolution dated 17.07.1999, the age of superannuation has been determined and it has been reduced from 60 to 58 years, as such subsequent resolution within a period of six months without approval of the Registrar is of no consequence. Qua incumbents who have been superannuated at the age of 60 years, it has been stated that perpetuated themselves on account of collusion of petitioners. It is stated that the provisions of U.P. Cooperative Societies Employees' Service Regulations, 1975 are not applicable. It has also been contended that order dated 28.07.2005 has been recalled by the Joint Registrar on 31.03.2006. It has also been stated that error which has crept in the matter, same has been corrected on 19.01.2007 by Joint Registrar. The order which has been passed, has been justified, and it has been contended that Committee of Management of the society has taken rightful decision and none of the rights of petitioners has been infringed.
To the aforesaid counter affidavit, rejoinder affidavit has been filed,and therein statement of fact mentioned in the counter affidavit has been disputed and that of writ petition has been reiterated.
Sr H.R. Mishra, learned counsel for petitioner, contended with vehemence that Joint Registrar, Cooperative Societies, U.P. Kanpur, in the present case, has totally misdirected himself while proceeding to exercise the power vested under Section 128 of the U.P. Cooperative Societies Act, 1965, inasmuch as virtually no exercise has been undertaken by him and on totally wrong premises order in question has been passed , as such this is glaring case of failure to exercise the authority and jurisdiction vested upon the authoirity, as such writ petition deserves to be allowed.
Learned Standing Counsel as well as Sri S.K. Rai, Advocate, appearing on behalf of respondent Nos. 6, 7 and 8, on the other hand, contended that nowhere under Rule 14there is any provision fixing/prescribing the age of retirement, and as such determination of age of superannuation was well within the domain of the Committee of Management, and in present case, petitioners have been superannuated strictly in consonance with the existing policy of the society and as per valid resolution, as such no interference is required.
After respective arguments have been advanced, the order passed by the Joint Registrar, Cooperative Societies, U.P. Kanpur has been perused. The order in question starts with giving description of Ordinance Factory Cooperative Society, by mentioning that the said society has been functioning as per provisions as contained under the U. P. Cooperative Societies Act, 1965 and the Rules framed thereunder known as U. P. Cooperative Societies Rules,, 1968 and the registered Bye-laws and the directives issued by Registrar from time to time. Then Joint Registrar proceeds to mention, as to how proceeding has come up before him, questioning the validity of resolution No. 2 dated 29.07.2006, superannuating the petitioner and then order passed by this Court. The order passed by this Court has been quoted and then reference has been given of the representation moved under Section 128 of the U.P. Cooperative Societies Act, 1965, which was received in the office of the Joint Registrar. He further proceeds to mention that after said representation has been received , then copy of the same has been forwarded to District Assistant Registrar, Cooperative Societies, U.P. Kanpur Nagar for his comments. Copy of the said letter has also been sent to the Committee of management of the society for forwarding their comments. Thereafter, Joint Registrar proceeds to mention that Xerox copy of the order passed by this Court was supplied, on which action was not feasible, as such said Xerox copy was returned and certified copy of the order was asked for, which is said to have been supplied and reminder has been given to District Assistant Registrar to forward his comments. Thereafter Joint Registrar proceeds to note down the interim comments which had been forwarded on 28.09.2006. After the said interim comments has been noted down, then by means of letter dated 04.10.2006 detailed comment has been asked for. Thereafter detailed comment have been received on 10.10.2006. After the said detailed comments have been noted, then various dates, which were fixed in the case have been noted on page 67 and 68 of the paper book, and thereafter, it has been mentioned that on 28.11.2006 hearing took place, and during the course of hearing directives were given to produce details of the incumbents who have completed the age of 58 years and are still continuing in service, and the next date fixed in the matter was 11.12.2006. Thereafter, the Joint Registrar proceeds to mention that on 11.12.2006 no hearing took place and the matter was postponed to 21.12.2006. The order proceeds to mention that at the point of time when hearing was going on, on 21.12.2006, petitioner No. 1 raised objection that various incumbents are continuing in the society after attaining the age of 58 years, whereupon President of the society mentioned that instructions have been sought for from District Assistant Registrar and the District Assistant Registrar has informed on 14.12.2006 that instructions have been sent.. Thereafter instructions of District Assistant Registrar have been noted, and it has been mentioned that President of the Society contended that decision has been rightly taken and in respect of other employees of the society due information would be submitted. Thereafter, comments which have been submitted on 15.12.2006, have been noted. After the said comments have been noted, then it has been mentioned that President has requested for rejecting representation of petitioners made under Section 128. Thus, it is writ apparent that upto this stage no adjudication has been done and only case of the respective parties has been noted by the Joint Registrar. Thereafter, Joint Registrar, Cooperative Societies, U.P. Kanpur has proceeded to mention that from the facts narrated above, it is clear that society in question is outside the purview of U.P. Cooperative Societies Institutional Service Board, and then he proceeds to mention that provisions of U.P. Cooperative Societies Employees Service Rules, 1975 are applicable, and as per the same age of superannuation is 58 years in respect of class III employees. Then Joint Registrar proceeds to mention that as per record of the society, petitioner has been superannuated on 31.07.2006, and thereafter proceeds to mention that on 14.12.2006, District Assistant Registrar has also proceeded to issue directions in respect of other employees accordingly, and as such, it is found that resolution dated 29.07.2006 and the consequential order in respect of superannuation is strictly in consonance with the policy of the society, as such no action is required under Section 128 of the U.P. Cooperative Societies Act, 1965.
Tenor of the order passed is, thus, clear and categorical that the issues sought to be raised by petitioners for declaring resolution dated 29.07.2006 as null and void, in the facts and circumstances of the case, have not at all been considered and adverted to. Fact of the matter is that plea which has been raised by petitioners, have been noted by the Joint Registrar, but no attempt or endeavour has been made to answer the said issues as to whether they were correct or incorrect issues, sustainable or unsustainable issues. The Joint Registrar, Cooperative Societies, U.P. Kanpur has totally misdirected himself and failed to exercise the jurisdiction by not adjudicating the issues which had been raised and has totally sidelined the issues raised and conveniently ignored the same. Not only this, Joint Registrar has mentioned in his order that the provisions of U.P. Cooperative Societies Employees Service Rules, 1975 are applicable, and as per the same Group III employees are to be superannuated at the age of 58 years. Fact of the matter is that provisions of U.P. Cooperative Societies Employees Service Rules, 1975 were not at all applicable, and coupled with this, on the date when order in question was passed, provisions of U.P. Cooperative Societies Employees Service Rules, 1975 stood amended and age of superannuation of class III employees has been extended from 58 years to 60 years. Joint Registrar, Cooperative Societies, U.P. Kanpur once has taken final decision in the matter, then in order to cover up illegal order which has been passed by him proceeded to pass order dated 19.01.007 purported to rectify the mistake. Most surprising feature of the said rectification is that the said order was not at all in the knowledge and notice of petitioners, and as such specific plea was raised in respect of said illegality which has crept in the order, in the writ petition and then copy of the order dated 19.01.2007 has been appended with the counter affidavit. The facts and circumstances are speaking for themselves, and this Court is refraining itself to comment on the conduct of Joint Registrar, Cooperative Societies, U.P. Kanpur in deciding the matter. Once issue had been raised before the Joint Registrar, Cooperative Societies, under Section 128 of the U.P. Cooperative Societies Act, 1965, which clothes and vests authority on the Joint Registrar, Cooperative Societies to annul the resolution of cooperative society or cancel order passed after forming opinion that resolution or order is not covered by aims and objects of the society or the same was in supersession of the Act or Rules or bye-laws of the society, endeavour ought to have been made by the Joint Registrar, Cooperative Societies, U.P. at Kanpur to have looked into the problem from the said angle and addressed the same accordingly. Consequently, as no real exercise has been undertaken and totally on wrong premises order has been passed by the Joint Registrar, Cooperative Societies, Kanpur, and at no point of time endeavour has been made to go into the question as to what is the age of superannuation determined as per bye-laws of the society and as to whether as per said bye-laws, petitioners have been rightly superannuated or not, and under what circumstances incumbents were being illegally perpetuated when they had already crossed the age of superannuation in society.
Much emphasis has been laid that issue of age of superannuation be decided by this Court, as entire material, in the shape of resolutions are on record. The issue at the first instance, has to be adjudicated by statutory authority, and as there is failure to exercise jurisdiction, the matter necessarily has to be remitted back.
Consequently, writ petition is allowed, the order dated 06.01.2007 is hereby quashed and the matter is remitted back to Joint Registrar, Cooperative Societies , U.P. Kanpur, for deciding the issues raised before him, within two months from the date of receipt of a certified copy of this order, keeping in view each and every issue raised and involved by petitioners as well as society in question. Needless to say that decision be taken on the basis of record produced by respondent society and record supplied by petitioners, if any, after affording opportunity of hearing to petitioners as well as society in question.
No order as to costs.
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