Judgment · High Court · 2012

No.15/2000 dismissing the suit of the appellant/plaintiff.

#02. t/plaintiff and Mr. D Nath, learned counsel for the respondents/defendants. I have heard Ms. P Bhattaharya, learned counsel for the appellan

#03. The pleaded case of the appellant/plaintiff, in short, is that a resolution having been taken by the Executive Committee of the Assam State Co-O perative Union, Guwahati (for short hereafter referred to as the Union) on 27.12 .1989 raising the superannuation age of it employees from 58 to 60 years, the Pr esident thereof, by a circular under Memo No. EP-15/90/7400-56, dated 01.03.1990 notified the same for the information of all concerned. As this decision notwit hstanding, the Chief Executive Officer, Assam State Co-Operative Union, by his l etter No. EP-28/93/2458, dated 18.01.1993 apprised the appellant/plaintiff of hi s date of retirement to be 01.02.1993 computed on his age of 58 years, he instit uted TS No. 3/1993 in the court of the learned Civil Judge (Jr.Divn) No. 1, pray ing for a decree, inter alia for a declaration that he had right to continue in service till completion of 60 years expiring on 01.02.1995 and to adjudge the le tter dated 18.01.1993 to be illegal null and void. A decree for declaration of h is entitlement to salary and other administrative emoluments for the services to be rendered till 01.02.1995 was also sought for.

#04. The defendant Nos. 1 & 2 in their written statement, in essence, iterated that the superannuation age of the employees of the Union was 58 years and that the resolution of the Executive Committee taken under Clause 12 (d) (v iii) of the Bye Laws purportedly enhancing the said age was of no legal effect i n absence of the approval thereof by the Registrar of Co-Operative Societies, As sam. That any alteration in the terms and conditions of the service of the emplo yees of the Union by a resolution of the Executive Committee dehors the amendmen t of the Bye Laws in the meeting of the general assembly was bereft of any legal significance was also asserted. The answering defendants, therefore, endorsed t he validity of the letter dated 18.01.1993 intimating the appellant/plaintiff of his date of retirement to be 01.02.1993. Reference was also made, amongst other s to the Memo No.EP-15-92/11/411/468, dated 09.01.1992 of the Chief Executive Of ficer of the Union notifying the age of superannuation to be at 58 years. On the basis of the pleadings of the parties, the following issu

#05. es were framed: - (cid:28)1) Whether this suit is maintainable? 2) Whether this suit is barred by Assam Co-Operative Societies Act? 3) Whether there is cause of action for the suit? 4) Whether any decision to raise the superannuation age from 58 to 60 years ther e as claimed by the plaintiff and if so whether the circular to this effect is v alid and operative? 5) Whether the two employees -vs- Manik Phukan was retired at the age of 60 year s and Sri RK barman is continuing in his service after completion 58 years of ag e as claimed by the plaintiff? 6) Whether the plaintiff is entitled to get a decree as prayed? 7) To what relives the parties are entitled to? (cid:29) Both sides, thereafter adduced evidence. The learned trial court on a considerat ion of the pleadings of the parties and the evidence on record decreed the suit. This verdict of the learned trial court having been reversed in appeal, the app ellant/plaintiff seeks redress under section 100 of the Code of Civil Procedure (for short hereafter referred to as the Code). Ms. Bhattacharya with particular reference to the resolution dat 06. ed 27.12.1989 of the Executive Committee of the Union as well as Clause 12 (d) ( viii) of the Bye Laws of the Union has urged that the learned Lower Appellate Co urt had fallen in gross error in dismissing the suit on the ground that in terms of Rule 12 of the Assam Co-Operative Societies Rules, 1953 (for short hereafter referred to as the Rules), approval of the Registrar of Co-Operative Societies, Assam of the resolution of enhancement of superannuation age was a necessary pr e-requisite for the validity and legality thereof. According to her, having rega rd to the nature of the power conferred on the Executive Committee by Clause 12 of the Bye Laws no such approval was warranted. That the resolution of the Execu tive Committee was final and binding is apparent from the notice dated 01.03.199 0 issued by the President of the Union, Ext. 5, she urged.

#07. Per contra, Mr. Nath has, with reference to the resolution dated 27.12.1989 of the Executive Committee and the letter dated 07.03.1990 of the Ad dl. Registrar of Co-Operative Societies (Admn), Assam (Ext. gha) has asserted th at in absence of the approval thereof under Rule 13 of the Rules, the same (reso lution) was non est and, thus the learned Lower Appellate Court was fully justif ied in dismissing the suit of the appellant/plaintiff. Mr. Nath also drew the at tention of this Court to the notice dated 09.01.1992 of the Chief Executive Offi cer of the Union to the effect that pending approval of the resolution of the Ex ecutive Committee enhancing the superannuation age by the concerned departmental authority, the same (superannuation age) would continue to be 58 years. Adverti ng to Rule 13, the learned counsel has reiterated that sans the approval of the Registrar of Co-Operative Societies, Assam, the resolution of the Executive Comm ittee was no avail to the appellant/plaintiff. Mr. Nath, however, on instruction s has apprised this Court that as a matter of fact, that the appellant/plaintiff had been superannuated at the age of 60 years as he continued to be in service on the strength of interim orders of the learned court below. To this, Ms. Bhattacharya pleaded that even if that is so, the appellant/plainti ff has not been paid his salary beyond the age of 58 years.

#08. I have duly considered the pleadings of the parties and the evid ence on record. Though, prima facie the Bye Laws cannot be equated with the Rule s as contemplated in Rule 13 of the Assam Co-Operative Societies Rule, 1953 and the same (Bye Laws), per se do not enjoin approval of any resolution taken by th e Executive Committee as empowered by it, having regard to the sequence of event s and more particularly the fact that the appellant/plaintiff was allowed to con tinue in service up the age of 60 years, this issue, in the attendant facts and circumstances, has been reduced to one of only academic relevance. Be that as it may, the fact that the Addl. Registrar of Co-Operative Societies (Admn) Assam, by his letter dated 07.03.1990 (Ext. gha) has emphasised upon the requirement of approval as contemplated by Rule 13 of the Assam Co-Operative Societies Rules, 1953 and that eventually, the Chief Executive Officer of the Union by the notice dated 09.01.1992 had, pending approval of the said authority of the relevant re solution of the Executive Committee, notified the age of retirement to be 58 yea rs cannot be lightly overlooked.

#09. Be that as it may, having regard to the factual backdrop and the event of the appellant/plaintiff’s retirement at the age of 60 years, even if d ue to judicial intervention, I am of the view that any decision on merit on the rival claims of the parties is uncalled for. This notwithstanding, as admittedly , the plaintiff/appellant had served the Union up to the age of 60 years, in abs ence of any material on record against the quality of his service, I am of the o pinion that he ought to be released his pay and other emoluments to which he wou ld have been otherwise entitled on the basis of the terms and conditions of serv ice governing him. This appeal is, thus disposed of with a direction to the respondents/defendants to release to the appellant/plaintiff his salary as permissible in law for the s ervices rendered by him till the age of 60 years, if not already paid. His retir ement benefits would, however, be computed by considering his superannuation age to be 58 years. As the appellant/plaintiff stands retired from service w.e.f. 0 1.02.1995, the respondents/defendants would complete the exercise as indicated h ereinabove, if not already done, within a period of 3 (three) months herefrom an d ensure that his monetory entitlements are released to him within the abovement ioned time frame. No costs.