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2009 jk fu 260 2009 RN 260
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S.B. Sinha and Ashok Kumar Ganguly, JJ.
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M.P. State Co-operative Dairy Federation Ltd. and another v.
Rajnesh Kumar Jamindar and others
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Civil Appeal No. 2442 of 2009 etc. : against order of M.P. High Court,
Jabalpur Bench, passed in Writ Appeal No. 1339 of 2006
(reported in 2008 RN 298); Decided on 15.4.2009.
(1) Cooperative Societies Act, 1960 (M.P.) -- Ss. 9, 2 (k) and 2 (a-i) -- Bye-laws No.3, 3.2.1 to 3.2.26 -- Constitution of India -- Art. 12 -appellant Federation -- is State within Art. 12 of the Constitution. 1993 JLJ 512 (FB) overruled in 2007 (3) JLJ 125 (SB), (1981) 1 see 722, (1979) 3 see 489, (1991) 4 see 578 and AIR 1992 SC 76 distinguished. (2002) 5 see 111, (1984) 2 see 141, (2002) 2 see 167 and (2005) 1 see 149, (2006) 1 see 667 and (20D6) 11 see 634 relied on. 2008 RN 298 affirmed. [Paras 2, 28 & 29
(2) Constitution of India -- Art. 12 -- Board of Control of Cricket in India -- not stated within this article. (2005) 4 see 649 relied on. [Para 25
(3) Cooperative Societies Act, 1960 (M.P.) -- S. 55 -- M.P State Cooperative Dairy Federation Ltd. Employees Recruitment, Classification and Conditions of Service Regulations, 1985 -- Reg. 13 (as amended on 24.12.2001) -- order of compulsory retirement -- not penal in natural-when may be made to subject to judicial review.
The law relating to compulsory retirement in public interest is no longer res integra. The provisions had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subject to judicial review inter alia:
(i) When it is based on no material;
(ii) When it is arbitrary;
(iii) When it is without application of mind; and
(iv) When there is no evidence in support of the case.
(2001) 3 see 314, (2005) 9 see 748, 359 us, 535, (2008) 7 see 639, AIR 1979 SC 429, AIR 1979 SC 49, (2007) 9 SCC 497, (1985) 2 SCC 727, (1986) 2 SCC 338, AIR 1967 SC 1260, (1996) 4 SCC 504, (1992) 2 SCC 299 and (2008) 4 SCC 458 relied on. 2008 RN 298 affirmed. [Para 32
(4) State Cooperative Dairy Federation Ltd. Employees Recruitment, Classification and Conditions of Service Regulations, 1985 (M.P.) -- Regs. 49 (2) and 13 -- compulsory retirement not by way of punishment set aside -- equal payment of salary to all employees should be made. 2008 RN 298 modified. [Paras 47 to 49
(5) Constitution of India -- Art. 136 -- point not raised before High Court in writ petitions or in writ appeal -- cannot be raised before supreme Court. (2003) 4 SCC 524 distinguished. [Para 52
Sinha, J. -- 1. Leave granted.
2. Whether Madhya Pradesh State Co-operative Dairy Federation Limited (for short 'the Federation') is a 'State' within the meaning of Article 12 of the Constitution of India is the question involved in these appeals.
3. Before us, there are 52 matters. Out of 52 concerned employees, 16 Writ Petitions were allowed by a learned Single Judge. Writ appeals filed there against by the Federation were dismissed but only 50% back wages had been granted to the employees. Respondents have not questioned the correctness of the said judgment. Remaining 36 writ petitions were dismissed by a learned Single Judge. However, writ appeals filed there against have been allowed directing reinstatement of the concerned respondents with only 20% back wages.
4. Federation is a society registered and incorporated under the provisions of the Madhya Pradesh Cooperative Societies Act, 1960 (for short 'the Act'). It is an apex society classified as a Central Society. It is registered under section 9 of the Act. The Government of Madhya Pradesh through its Veterinary Department had been carrying out in certain areas of the State activities of supply of milk through its offices established for the said purpose. A company known as Madhya Pradesh State Dairy Development Corporation Limited was incorporated on or about 22.03.1975 for carrying out the business of sale of milk and its products. It was registered under the Indian Companies Act, 1956. Its object was development and procurement of milk and for bringing out a 'white revolution'.
5. Federation was constituted to promote sale of milk and its products inter alia with a view to providing employment to agriculturists, milk suppliers so as to enable it to implement a World Bank scheme effectively.
The said company underwent voluntary winding up. Its assets both movable and immovable were transferred to the Federation as part of share holdings of the State Government.
6. Federation is a federal society within the meaning of section 2(k) of the Act. It is also an apex society within the meaning of section 2 (a-1) of the Act. It has its own bye-laws. Bye-law No.3 provides for betterment of the economic conditions of agriculturists and milk producers by monitoring the activities as also different programmes relating to production, collection, Processing, distribution and marketing of milk and milk products. From time to time, it helps and provides technical assistance to the primary societies, independent bodies which are engaged in the production of milk and its proper distribution in urban areas. It also issues guidelines. Its functions are enumerated in Bye-law Nos. 3.2.1 to 3.2.26.
7. In terms of section 55 of the Act, the Registrar framed regulations known as the M.P. State Cooperative Dairy Federation Ltd. Employees Recruitment, Classification and Conditions of Service Regulations, 1985 (for short "the Regulations"). Indisputably, terms and conditions of employment of the employees of the Federation are governed by the said Regulations; Regulation 13 whereof provides for compulsory retirement of an employee on attaining the age of 55 years or on completion of 25 years of service. Regulation 13 was amended with effect from 24.12.2001 providing for compulsory retirement of an employee of the Federation on attaining the age of 50 years or completion of 20 years of service. It reads as under:
"13. Compulsory Retirement
(1) The appointing officer has the powers that he can without giving any reason compulsory retire any employee on completion of twenty years of his service and on this ground any claim for special compensation would not be rejected, however, this power would be exercised in those circumstances when the appointing officer is of the view that it is in the interest of the Federation and it can be done by giving 3 months prior intimation otherwise not.
(2) Any employee who has completed 20 years of service at any time would be able to retire from t
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