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2016 Supreme(HP) 1975
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN, JJ.
Nangal Jarialan, Cooperative Agriculture Service Society Ltd. & Anr. - Petitioners.
Versus
State of H.P. & Ors. - Respondents
CWP No. 2080 of 2016
Decided on : 06-12-2016
Advocate Appeared:
For the Petitioners:Ms. Archna Dutt, Advocate.
For the Respondents:Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Mr. Varun Chandel, Additional Advocate Generals and Mr. Kush Sharma, Deputy Advocate General, Mr. Ajay Sharma, Advocate
The main legal point established in the judgment is the need for transparency, accountability, and adherence to cooperative principles in the functioning of cooperative societies, as well as the prevention of unjust enrichment and undeserved gain made by litigants.
Headnote:
Cooperative Society - Managing Committee - H.P. Cooperative Societies Act, 1968, Rule 12 - The judgment discussed the legal provisions of the H.P. Cooperative Societies Act, 1968 and Rule 12 relating to the terms of employment and working conditions of employees of primary agriculture credit cooperative societies. The court highlighted the principles of democracy, equity, equality, and solidarity in cooperative societies and emphasized the need for transparency and accountability in their functioning. The judgment also referred to relevant case laws and legal principles to support its decision.
Fact of the Case:
The petitioner, a Secretary of a Cooperative Society, sought relief against his superannuation at the age of 60, claiming entitlement to continue till the age of 62 based on an amendment in the Service Rules. The Managing Committee's attempt to grant him an extension was not ratified by the General House, yet they continued his service, leading to a systematic fraud to favor the petitioner.
Finding of the Court:
The court found that the Managing Committee's actions were in violation of the cooperative principles and legal provisions, and amounted to a systematic fraud to confer undue benefit on the petitioner. It emphasized the need for transparency, accountability, and adherence to the cooperative principles in the functioning of cooperative societies.
Issues: The issues revolved around the petitioner's entitlement to continue in service till the age of 62, the validity of the Managing Committee's actions, and the principles governing the functioning of cooperative societies.
Ratio Decidendi: The court held that the Managing Committee's actions were in violation of the cooperative principles, legal provisions, and the Service Rules. It emphasized the need for transparency, accountability, and adherence to the cooperative principles in the functioning of cooperative societies.
Final Decision: The petition was dismissed with a cost of Rupees one lakh, to be paid by the then members of the Managing Committee and the petitioner, highlighting the need to prevent unjust enrichment and undeserved gain made by litigants.
The instant case is a glaring example where the Managing Committee of a Cooperative Society has shown undue interest in protecting the service of its Secretary and while doing so have thrown all the laws to the wind.
2. At the outset, it may be observed that initially the writ was filed by the Society wherein its Secretary was arrayed as respondent No. 4 and had prayed for the following reliefs:-
“(i) That the impugned orders dated 19.5.2016 and 29.7.2016 may very kindly be quashed and set aside and petitioner’s society may kindly be allowed to continue the respondent No. 4 in service till the age of 62 years with all consequential benefits, in the interest of justice and fair play.
(ii) That respondents may be directed to produce the record of payment made on bill basis to the persons serving with the respondent department.”
3. However, subsequently an application being CMP No. 6826 of 2016 was filed for transposition of respondent No. 4 as petitioner No. 2 and the same was allowed vide order dated 22.8.2016.
4. The brief facts as set out in the petition are that the petitioner No. 2 was initially appointed as a Salesman-cum-Assistant Secretary in the year 1979 and subsequently in the year 1986 he was appointed as Secretary in the petitioner No. 1 – Society.
5. The petitioner No. 2 in terms of Service Rules of the Society was to retire on the attainment of the age of 60 years on 31.5.2015, however, vide resolution No. 6, dated 17.3.2015, the Managing Committee of the petitioner No. 1-Society decided to grant him an extension for one year.
6. It is averred that the Society thereafter called its General House for rectification of the aforesaid resolution, however, for want of quorum the resolution could not be rectified. The meeting of the House was initially called on 31.3.2015 and thereafter on 22.4.2015 and on both the dates quorum was not complete. It is then averred that due to unnecessary interference by the observer of respondent No. 2, the business could not be conducted and the House was again called on 3.5.2015, wherein, once again the observer raised unwanted and unwarranted objections and the meeting was adjourned. Thereafter the department issued various notices for the General Meeting but the same could not be convened for one reason or the other.
7. The respondent No. 2 thereafter passed an order on 19.5.2016, whereby petitioner No. 2 was ordered to be superannuated as the resolution of the General Meeting of the Society had not been rectified by the General House.
8. Aggrieved by the order, petitioner No. 2 preferred a review petition, which was dismissed on 29.7.2016.
9. Both the aforesaid decisions have been assailed in this petition on the ground that the State Government itself has carried out amendment in the Service Rules whereby the retirement age of the Secretaries has now been enhanced to 62 years and therefore, the petitioner No. 2 has every right to continue till the attainment of the age of superannuation i.e. 62 years.
10. The official respondents No. 1 and 2 have filed joint reply, wherein, it is stated that petitioner No. 2 was superannuated on 31.5.2015 on completion of 60 years of age, however, he filed CWP No. 2733 of 2015 before this Court wherein a direction was sought against the Assistant Registrar, Cooperative Societies, Una to grant approval of 2 years in service in view of the decision taken by the Managing Committee in its meeting held on 17.3.2015. The petition was disposed of by this Court on 27.10.2015 as having not been pressed.
11. The Assistant Registrar Cooperative Societies, as a follow up action, on 3.12.2015 wrote a letter to the President of the petitioner No. 1 – Society, to immediately retire petitioner No. 2 from service, which letter was assailed by petitioner No. 2 by filing revision petition under Section 94 of the Cooperative Societies Act, 1968. The respondent No. 2 disposed of the revision petition vide its order dated 19.5.2016 and held that the extensio
