Kerala High Court · 2007

W.P.(C).22954/2004-2- 13. LAL BAHADOOR, S/O. SRI.DHAN BAHADUR, WATCHMAN, L.C.M.F.LTD., BEYPORE, CALICUT-15. 14. UDAY SINGH, S/O. SRI.KARAN SINGH BOHRA, WATCHMAN, L.C.M.F.LTD., BEYPORE, CALICUT-15. 15. A.K.NIMMATHULLA, S/O. SRI.ABDUL KHADER, JUNIOR CLERK, L.C.M.F.LTD., BEYPORE, CALICUT-15. 16. K.FATHIMABI, D/O. SRI.B.KOYA, P.A.TO MANAGING DIRECTOR, L.C.M.F.LTD., BEYPORE, CALICUT-15. 17. ABDUL VAHAB, S/O. LATE SRI.IMBICHI KOYA, PACKER, L.C.M.F.LTD., BEYPORE, CALICUT-15. 18. T.A.KARUNAN, S/O. SRI.K.V.ACHUTHAN, POCKER, L.C.M.F.LTD., MANGALORE-1. 19. U.RAMACHANDRAN NAIR, S/O. LATE SRI.MADHAVAN NAIR, PACKER GR.I. L.C.M.F.LTD., BEYPORE, CALICUT-15. BY ADV. SRI.M.M.ABDUL AZIZ (SR.) SRI.M.A.ABDUL HAKHIM RESPONDENTS: ------------- 1. THE LAKSHADWEEP CO-OPERATIVE MARKETING FEDERATION LTD. NO.LMA.11, BEYPORE, CALICUT-15 REP.BY ITS MANAGING DIRECTOR. 2. BOARD OF DIRECTORS, LAKSHADWEEP CO-OPERATIVE MARKETING FEDERATION LTD. NO.L.M.A.II, BEYPORE, CALICUT-15, REP.BY ITS PRESIDENT. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES UNION TERRITORY OF LAKSHADWEEP, DEPARTMENT OF CO-OPERATION AND CIVIL SUPPLIES, KAVARATTY-682 555. 4. THE ADMINISTRATOR, U.T.OF LAKSHADWEEP, KAVARATTY-682 555. BY ADV. SRI.PR.RAMACHANDRA MENON,SC,LAKSHADWEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).22954/2004APPENDIXPETITIONER'S EXHIBITSEXT.P1-A TRUE COPY OF CLAUSE(1) OF SUCH BYLAWS.EXT.P2-A PHOTOSTAT COPY OF THE ORDER DATED 31.3.1988EXT.P3-A TRUE COPY OF RESOLUTION NO.12 DATED 10.1.1998 OF THE2ND RESPONDENT TO PAY THECENTRAL SCALE OF PAY ON THE BASIS OF VTH PAY COMMISSION TO THE EMPLOYEES OF THE 1ST RESPONDENT.EXT.P4-A TRUE COPY OF RESOLUTION NO.5 DATED 7.1.1999 OF THE 2ND RESPONDENT REGARDING THE FIXATION OF PAY +DA+IRof the EMPLOYEES OF THE 1ST RESPONDENT EXT.P5-A TRUE COPY OF RESOLUTION NO.7 DATED 7.1.1999 OF THE 2ND RESPONDENT TO FRAME PENSION SCHEME FOR THE EMPLOYEES OF 1ST RESPONDENT EXT.P6-A TRUE COPY OF RESOLUTION NO.4 DATED 26.11.1999 OF THE 2ND RESPONDENT INCREASING THE TA AND DA OF THE EMPLOYEES OF THE 1ST RESPONDENT EXT.P7-A TRUE COPY OF THE RESOLUTION NO.8 DATED 26.11.99 OF THE 2ND RESPONDENT FOR TAKING STEPS TO AVOID DELAY TO GIVE CENTRAL SCALE OF PAY ON THE BASIS OF VTH PAY COMMISSION REPORT TO THE EMPLOYEES OF THE 1ST RESPONDENT EXT.P8-A TRUE COPY OF THE RESOLUTION NO.8 DTED 22.3.00 OF THE 2ND RESPONDENT EXT.P9-A PHOTOSTAT COPY OF THE SID RESOLUTION IS MARKED ANDPRODUCED HEREWITH AS THE 2ND RESPONDENT PASSED RESOLUTION NO.5 DTED 26.11.99 TO RAISE THE AGE OF RETIREMENT OF THE EMPLOYEES OF THE 1ST RESPONDENT ON SUPERANNUATION FROM 55 TO 58 YEARS AS IN THE CASE OF THE EMPLOYEES OF THE PRIMARY SOCIETIES OF THE 1ST RESPONDENT EXT.P10-A TRUE COPY OF THE ORDER DATED 26.5.00EXT.P11-A TRUE COPY OF THE ORDER DATED 30.4.01EXT.P12-A TRUE COPY OF RESOLUTION NO.1 DATED 14.2.92EXT.P13-A PHOTOSTAT COPY OF THE RELEVANT PROTION OF THE REVISED SCALES OF PAY UNDER VTH PAY COMMISSION REPORT WITH EFFECT FROM 1.1.1996EXT.P14-A TRUE COPY OF THE JUDGMENT IN O.P.24710/2001 DATED 17.12.03 W.P.(C).22954/2004-2-EXT.P15-A PHOTOSTAT COPY OF THE JUDGMENT IN O.P.10288/2002 DATED 17.12.2003EXT.P16-A PHOTOSTAT COPY OF TH ORDER DATED 15.6.2004EXT.P17-A PHOTOSTAT COPY OF THE RESOLUTION NO.3(B) DTD18.1.01 TO CONTINUE THE 19TH PETITIONER IN SERVICE FOR ONE YEAR FROM 1.3.01EXT.P18-A PHOTOSTAT COPY OF THE MESSAGE DATED 22.1.2001EXT.P19-A PHOTOSTAT COPY OF THE APPLICATION DATED 11.10.2004EXT.P20-A PHOTOSTAT COPY OF O.M.F.NO.7/4/95-COPY(2) DATED.21.5.96EXT.P21-A PHOTOSTAT COPY OF O.M.F.NO.7/13/92-CO-OP DATED 28.5.1996RESPONDENT'S EXHIBITSEXT.R3(a)-TRUE COPY OF THE AMENDED CLAUSE NO.1 OF THE BYLAWS OF THE 1ST RESPONDENT FEDERATIONEXT.R3(b)-TRUE COPY OF THE PROFIT AND LOSS ACOUNT OF THE 1S RESPONDENT FEDERATION FOR THE YEAR 98-99EXT.R3(c)-TRUE COPY OF THE ORDER F.NO.7/18/2001/CO-OP (3) DATED 15.10.2001EXT.R3(d)-TRUE COPY OF THE LETTER DATED 3.6.04 SENT BY THE 1ST PETITIONER EXT.R3(e)-TRUE COPY OF THE SEC.4 (a) OF THE SPECIAL BYLAWS OF THE1ST RESPONDENT FEDERATION(TRUE COPY)P.A TO JUDGE J.M.JAMES, J.-------------------W.P.(C). 22954/2004 (G)--------------------Dated this the 25th day of January, 2007JUDGMENTThe writ petitioners are the employees of the firstrespondent, Federation. Their grievance is that the benefit ofthe Vth pay commission, granting the Central parity of payand allowances, are not being extended to them and also theretirement age, that is fixed as 58, in respect of members ofthe Primary Co-operative Societies, is not implemented inrespect of the writ petitioners under the first respondent,Federation. 2.Though notices are being served to respondents 1and 2, there is no representation. Sri. P.R.RamachandraMenon appears for respondents 3 and 4. Counter had beenfiled. Reply affidavit had also been filed by the petitioners.3.I heard the arguments advanced by both sides.The bye-laws of the first respondent, Federation, prior to30.4.2001, did not make it obligatory for the federation toseek the approval of the Registrar. However, after the W.P.(C).22954/20042amendment of Clause-I of the bye-laws of the firstrespondent as registered by the Registrar on 30.4.2001, thesanction of the Registrar is necessary, when the Board ofDirectors prescribed the strength of the establishment of theSociety. The scale of pay is admissible to each memberthereof and appointment of all the members of theestablishment, except the Secretary or any other staffappointed or lent by the Government. The learned Seniorcounsel for the writ petitioners submits that the Registrarhad got no authority to amend the bye-laws, unless the sameis resolved by the General Body of the first respondent,Federation.4.There is no material produced before me to showthat the first respondent had not passed the resolution,recommending the amendment of Clause-I of the bye-laws.The respondents 3 and 4 are also not able to say the same.However, Ext.P2 dated 31.3.1988, an order passed by theRegistrar of Co-operative Societies, reveal that the approvalof the implementation of the IIIrd and IVth pay commission,in respect of the employees of the first respondent, was done W.P.(C).22954/20043with the approval of the Registrar.5.The prayer of the writ petitioners is that nongranting of the benefits of the Vth pay commission to theemployees of the first respondent is arbitrary and as theBoard of Directors of the first respondent had alreadyrecommended the same, the approval of the Registrar is notnecessary. 6.I am unable to accept this argument. Approval ofthe Registrar had already been obtained, in respect of theimplementation of pay scales of IIIrd and IVth paycommissions. Therefore, the same procedure has to befollowed, in respect of the implementation of the Vth paycommission as well.7.Ext.P11 is an O.M. Dated 30.4.2001 of theRegistrar of the Co-operative Societies, issued on behalf ofthe administrator, which reveal that the first respondent,while auditing, was found running into an accumulated lossof Rs.98.12 lakhs as on 31.3.1999. The net loss for the year1998-99 is Rs.18.69 lakhs. The average loss is calculated tobe Rs.1.56 lakhs per month. W.P.(C).22954/200448.One of the employees of the first respondent cameup before this Court through O.P.No.10288/2002. As per thejudgment dated 17.12.2003, the learned single Judge of thisCourt had quashed Ext.P7, denying the benefits of the Vthpay commission to that employee, on the ground that thesaid Ext.P7 order was passed without hearing him.Therefore, the matter was sent back to the Registrar of theCo-operative Societies for re-consideration. Theenhancement of the retirement age was also directed to bere-considered.9.Ext.P14 is O.P.24710/2001, having preferred by14 persons, who are also parties to the present writ petition.The learned single Judge of this Court had disposed of thesame on 17.12.2003, directing to adopt the judgment inO.P.10288/2002.10.Ext.P16 is the order of the Registrar of Co-operative Societies dated 15.6.2004. In it he had stated thatthough the first respondent, Federation, was running intoloss, considering the phenomenal increase in the cost ofliving as well as numerous representations made by the W.P.(C).22954/20045employees, recommended by the first respondent, theRegistrar of Co-operative Societies had revised the pay scaleof the employees of the first respondent, Federation. Therelevant portion is reproduced below:- “The pay scale with effect from 1.9.2001vide order F.No.7/18/2001-Co-op. (3) dated15th October 2001 and HRA with effect from1st January, 2004 vide order even No. dated10th February, 2004 and DA with effect from1st January, 2004, SCA/CCA with effect from1st June, 2004 vide order even No. dated 2ndJune, 2004. Thus the salary and allowancesof the petitioners have already been revisedmore or less equal or similar to that of theCentral Government employee. Therefore,the request of the petitioner for the revisionof the pay scale at the rate of CentralGovernment employees does not merit W.P.(C).22954/20046consideration as it has already beenrevised.”11.Thus it is seen, despite the fact of loss beingsuffered by the first respondent, the pay scale of theemployees of the first respondent had already been revised.Hence, I find no further orders are necessary in this regard.12.The learned counsel appearing for therespondents 3 and 4 had submitted that the age of themembers of the Primary Societies had already beenenhanced to that of 58 in Ext.P16 itself. The Registrar of theCo-operative Societies held thus:- “Therefore, there is sufficient flexibilitywithin the ambit of existing provisions of bye-laws for extension of the retirement agewhich has to be exercised with discretion indeserving cases only, failing whichundesirable persons will also get extensionautomatically if general extension is given.The post in which the applicants are workingare common cadre posts which needs no W.P.(C).22954/20047special knowledge of scientific or technicalnature nor the applicants have any suchspecial qualification. However, within theambit of the existing of bye-laws theretirement age can be extended with therecommendation of the Director Board indeserving cases.”13.In the circumstances, the Registrar is directed toexamine whether the retirement age was enhanced to 58 inrespect of the employees of the Primary Co-operativeSocieties, and also the same could be extended to theemployees of the first respondent as well, as otherwise thesame would amount to discrimination. The petitioners beheard before a decision is taken on this matter. If theretirement age of the members of the Primary Co-operativeSocieties are found to be fixed as 58, the Registrar shall fixthe same age, in respect of the employees of the firstrespondent, as well.14.The learned Senior counsel contended that thefirst respondent is now paying 7.5 percent of the basic pay W.P.(C).22954/20048of the petitioners, as their HRA and CCA for B2 cities. It isprayed that the same may be enhanced to 15% of the basicpay. The Registrar shall consider this contention as well, atthe time of hearing of the petitioners along with theenhancement of the age, as directed above.The writ petition is closed as above.J.M.JAMESJUDGEmrcs