I N THE HI GH COURT OF PUNJAB AND HARY v. Mr GC Dhuriwala Advocat e

1 422 r I N THE HI GH COURT OF PUNJAB AND HARY AT CHANDI GARH CWP No 12820of 1999 Dat e of DecisionlOct oberl 2010 The Jullundur Dist rictCoperat iveAgricult uralService Societ ies Union RegdI 1 1 0 0 C5 Z a5 00 veA Z St at eof Punj aband ot hers Versus CORAM HONBLE MRe JUSTI CE MeMeKUMAR HONBLE MRe JUSTI CE AeNeJI NDAL e ePet it ioner Present Mr GC Dhuriwala Advocat e Mr RK Shanna Advocat e Mr MS Bedi Advocat e Mr Mr Anupam Mr SlC Dhawan Advocat e for t he I CK SinglaAdvocat e Advocat e Mr for t he Suvir SehgalAddit ional Advocat e General Punj ab 2 To be referred t o t he Report ersor not 2 Whet hert he Digest 2 should be report edin t he MeMeKUMARe Je This order shall dispose of a bunch of 8 because com m on fact s and quest ions of law are involved t herein However t he fact s arebeingreferredfrom CWP No 12820of 1999 2 The JullundurDist rict Agricult uralServic Societ ies Union Regdlfor brevit y t he Unionl has filed aforem ent ionedpet it ionunder Art icle 226 of t he Const it ut ion act ion of t he t hepaym entof salaryt o t he t he t he at 75 of t he net profit of t he Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH Sahil Soni 2016.03.21 12:27 Agricult uralService Societ ies or I attest to the accuracy and integrity of this document 7 423 3WP No 12820of 1999 and connect edpet it ions 2 1 brevit t he SociesY The Union has sought of let t ers dat ed 2241999 3121998 3999 and 1851999 37 t o P on t he groundt hat t he service condit ions grant of and ot her service benefit s of t he working in t he in t he St at e of Punj abhave been in an illegal and m ala fide m anner which 1S cont raryt o t he Punj abSt at e Service Societ ies ServiceRules 1997 or brevit yt he 1997 Rules1 Furt her a m andam ushas been sought direct ingt he t o allow t he of t he Societ y t o cont inuet o draw t he regularpayescaleand ot her benefit s as provided by t he Rules 3 Broadly t he Societ y lI l t he St at e of Punj abhave em ployedprim arilyt he following a9 Salesm enlCashierand Peonacum Chowkidar These are being paid salaries and ot her allowances by t he respect iveSociet y and t hereis no financialliabilit yon t he St at e Fert ilizers Their m ain funct ion is t o provide Pest icideset c as also t o advance loans t o t he farm ersand in t um t heyget m arginalc0m m issionlint erestI n ot her words t he com m issionand int erest t hese Societ y out of which t he is t he m ain source incom e L 0 C I C I Z m C I r5 r 7 Z Qm em ployees are paid salaries 4 Under Rule 28 of t he Punj abSt at e Societ iesRules 1963 for brevit y t he 1963 Rules t he Regist rarCooperat iveSociet ies No 2 has been t o fram e Rules regarding and condit ions of service of t he of t he Societ y I n exercise of t he said power No 2 init iallyfram ed t he Rules known as t he Punj abSt at eCooperat iveAgricult uralServiceSociet yService Rules 1979 for brevit yt he 1979 Rules2which were not i6ed on 2931979 Rule3 and 50f t he 1979 Rules dealswit h t he st rengt hof service and scales of pay Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document No 2 not ified t he Rules Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL 5 PHHC CHANDI GARH On 17111986 t he CWPNo 12820of 1999 and connect edpet it ions 424 3 e known as t hePunj abSt at e 1 ServiceSociet iesService Rules 1986for brevit y t he 1986 Rules which cam e int o force wef 18111986 Rule7 of t he 1986 Rules t he pat t ernof st affing and incent ivesin t he Societ y Annexure A t o Rule 70f t he 1 r 0 C40 I C5 I Z I 08 QO Z t l 1986 Rulesfurt her t he scales of paye 6 The No 2 const it ut eda Com m it t eeunder t he of Addit ionalRegist rar edit Societ iesPunj ab t o review t he Servic Rulesof t he em ployeesof t he Societ y On t he basis of t hereportsubm it t edbyt he said Com m it t eeand in exercise of t he power under Rule 28 of t he 1963 Roles t he Servics Rules of t he t he were refram edbyt he No 2 and t he 1986 Rules Ruleswhich by t he 1997 Rules we 910997 As per Rule 70f t he 1997 deals wit h t he pat t emof st affingem olum ent sand iI ent ives m em bersof t he service are t o be paiddeam essallowance and all ot her allowancoeson t he pat t ernof t he St at e Govem m ent Rule 7 alongwit h AnnexureA of t he 1997 Rules readst husl 7 PATTERN OF STAFFI NG EMOLUMENTS AND I NCENTI VES i1 The t he societ ies on 61nct ional basis st aff approved for t hem and scales of pay of each cat egoryof shall be as per Annexure A t o t his rule The m em bers of t he servic shall be paid deam ess t he allowance and ot her allowances on t he pat t emof t he St at e Governm ent iio The t ot al on st aff should ordinarily not exceed 60 of t heannuaI grossincom e of t he Societ y The em olum ent salreadybeingdrawn by an em ployeebyway of pay and dearness allowances over and above t he scale fixed under Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH 4252WP No 12820of 1999 and connect edPet it ions 4 r P t heserules shall be for t he purpose of fixat ion of pay and anyam ount drawn over and above t he gradeshall be t reat ed as pay which shall be set offin 8Rwe increm ent s 1 0 C I C 4 Z m 0 08 m m vo Z ANNEXURE A t o Rule 70ft he 1997 Rulesl Sr Cat egoryof Societ ies No A1 Societ ies having an St aff Scale Secret aryl1 1200e30e m em bersof 4000 lakhs and above or havingaverageloan against Manager 156040 1800 againstm em bers Salesm anl 2 950m 25 and deposit collect ivelyt o t he Cashier t une of Rs 8000 lakhs and havingannualgross incom e of Rs 200 lakhs Peonum e Chowkidar B1 Societ ies having an Secret ary1 above Rs 2500 lakhs or having average m em bers collect ivelyt o t he t uneof RSe 5000 I akhs and having annual grossincom e of Rs 150 against depositSalesm anl 1200130 1500 750e201 950251 1200 3011350 9505 1200130 1500 950 1200125e 1350 Peonum e Chowkidar1 950251 7501 1200 Cl 3011350 95025 120030 1500 Secret ary1 Societ ies having an upt o RS 2500 lakhs or having average m em bers 750201 collect ivelyt o t he t uneof Rs Chowkidar 1 95025e 5000 lakhs and having annual grossincom e of Rs 100 I akhs against depositPeonum m 1200 3011350 Not e t o t he annexurel 19 The base year for t he st aff st rengt hand t he t he dearness allowance shall be preceding cooperat lveyear Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH 2 The short t erm loans convert ed int o Medium Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 426 b WP No 12820of 1999 and connect edpet it ions 6 5 Term Agri Loans due t o nat ural calam it ies in t he Coa operat iveyear shall not be included in annualaverageloans 39 Mast er scale as 111 t he case of Governm ent em ployeeswill be t o t he above m ent ioned hencefort he95 7 A perusal of Rule 70f t he 1997 RuleSwould show t hat DA and all ot her allowances are requiredt o be paid OI l t he pat t ernof t he St at e Govem m ent I t is also clarified t hat t ot al should not ordinarily exceeds 60 being drawn byan t he annual gross incom e t he Societ yThe em olum ent s em ployeebyway of pay and Deam essAllowance over and above t he pay scales fixed under t he Rules are prot ect edMast er scale which is applicablet o t he Punj abGovem m ent was t o applyt o t hem 8 On t he basis of t he recom m end at ions of t he4 PayCom m ission on 1611998 t he St at eofPunj abnot ified t he Rules known as t he Punj abCivil Services Revised PaylRules 1998 which cam eint o force wef 11 1996 By t he said Rules t he pay scales of t he Punj abGovem m entem ployeeswere revised weef 111996 On 2151998 t he pay scales m ent ionedin Annexure A t o Rule 70ft he 1997 Rules were also subst it ut edbyt he revised scales of pay byt he No 2 However t he said revision was m ade applicablewef lAl998 inst eadof 111996 and no arrears regardingfixat ion of pay were t o be paidpriort o 1A998 t o t he m em bersof t he Service 31 9 On 3121998 89 t he No 2 issued inst ruct ionsregardingdist ribut ion of pay upt o 7 of each m ont h t o t he em ployeesworkingin t he The said inst n1ct ions read as under 66 On t he subj ectcit ed above t he inst ruct ions are issuedt hat a Q 0 0 I C5 I Z m r I 08 ClO 7 Z Om t he pay of t he nployeesworkingin C0operat iveAgricult ural Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH ServiceSeciet iesbe paidregularlyand in t his regarda separat e Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 1 L 0 C0 I C I Z c6 CLO AW3 Z t l 427 2WP No 12820of 1999 and connect edpet it ions 6 saving bank account be m aint ained and 7590 com m ission of t he societ yshould be and t he salary should be paidt o t he by 7 of each m ont h The salary should be given from t his acm unt on half yearly basis and in case t he balanceis not sufficient in t hat acm unt t o m eet t he salaryt he am ount should be arranged from t he bank and t he acount be reconciled wit h t he bank wit hin six m ont hs aft er t he proceeds of six m ont hlycrops st art com ing I n case t his is not possible and t he Societ y1S runm ng 111 losses t he salaries of of such societ ies should not be given above 10 m ont hs t he societ yt he salary should Aft er t he be dist ribut edfrom t he 70 t he net profit of t he societ y6t hesalaryof t he em ployeesshould not exceed 70 of t he net profit of t he Societ y Theseinst ruct ions be com plied 10 t hat t he From a bare perusal of t he said inst ruct ions it is clearlyspelledout t ot al salary of t he working in t he Societ y in t he St at eof Punj abwere not t o exceed 70 t he net profit of t he Societ y and t he salaries were t o be paidon half yearly basis I n case t he Societ ylS running in losses t he t o be paidsalariesexceeding10 m ont hs This is cont raryt o t he service rules of 1997 whereit is laid down t hat60 of annual grossprofitm ay be spent on salary 11 On 17121998 t he No 2 aft er considerat ion t he m at t er regardingreviabilit yof dist ribut ion syst emof essent ial com m odit iesin t he Socieos9passedan order for opt ions of t he Salesm enworking111t he in t he St at eof Punj abas t o whet her t hey are willingt o work on basis and in case t heyare not int erest ed t o work under t he new schem e t he concm ed Societ ywas Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document act ion againstt hem P49 I n furt herancet o t he Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH com pet ent ake 128 WP No 12820of 1999 and connect edpet it ions 7 40 order dat ed 17121998 anot her let t er dat ed 2511999 was issued by t he Assist ant Regist rar Societ ies Ludhiana lnt er alia direct in gall t he Secret aries of t he Societ y 111 t he Regiont hat t he services of t hose l 1 m 0 40 I C0 I Z r I 08 120 m m Z Q Salesm enwho were unvillingt o work on basis be wit lPe51 On 2241999 t he No 2 issued yet anot her let t er t o all t he Assist ant Cooerat ive Societ iesin t he field st at ingt herein t hat t he Salesm an be appoint edon Cossionlret ainership basis and in case t heyare not int erest edt o work t he Societ ywould be at libert y t o t ake 2511999 P4 111 t his Court st epsagainstt hem 71 Let t ers dat ed 17121998 and c Pm 5Jwere I n t he said pet it iont he by way filingCWP No 3201 of 1999 No 2 filed a writ t en st at em ent st at ingt hat t he let t er dat ed 2511999 has been wit hdrawn on 451999 Accordinglyt he said writ pet it ionwas of as having been renderedinfruct uous 12 an I nnt ive On 1851999 t he for t he No 2 form ulat ed of t he Societ y I n t his regard rules known as t he Punj ab Service Societ ies Em ployees I ncent iveRules 1999 were fram edunder t he 1997 Rules As per Rule 4 t he lncent ive Rules onlyt hose Societ y who were in profitwit hout any accum ulat ed losses were eligible for t he I ncent ive Schem ee1999I t has been furt her provided in t he said rule t hat t he overall includingincent ive pay and ot her would not increasebeyond70 of t he net pro6t 13 On 361999 P99 t he No 2 issued anot her let t er am endingRule 196 of t he 1997 Rules which readst husl 46 I n t he Rule 19b1of t he Punj abSt at e Agricult uralService Societ ies Service Rules 1997 t he following am endm entis beingm ade Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH 19b9 An em ployeeshall be ent it led t o deat hacum Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 429m2WP No 12820of 1999 and connect edDet it ions 8 J ret irem entgrat uit yon acm unt of deat h while in t he 1 C 0 C I C5 I Z m Q I 08 m 7 Z t l servics of t he Societ yor on ret irem ent as adm issible t o Govt subj ectt o t he Rider t hat all t he benefit sext endedt o t he includingGrat uit y m aynot exceed70 of profit of t he Societ y Not e Delet ede Thisissueswit h t he concurrence ofRCS 14 I t is claim edby t he Union t hat t he aforem ent ioned am endm entis illegalarbit raryand m ala fide because if a em ployee who hasret iredaft er renderingm ore t han 25 years of servic and in t he year of ret irem entif t here is no profiteam ed by t he concerned Societ yt hen such an would not get any grat uit yet c even t houghin t he long service t enure hem ighthave worked hard and t he Societ ym ighthave eam edgoodprofit On t he cont raryt here is t hat in t he case of anot her em ployeewho ret iredfrom servicr in t he year when t he societ yearns m ore profit t hensuch an em ployeewould getgrat uit yand all ot her benefit st houghhe m ay behavingsm aller period of servicet han t heem ployeewho ret ired in t he earlier year in which t here was no profitin t he Societ y 150 I n pursuance of let t er dat ed 3 121998 Pa81t he Assist ant Cooperat iveSociet ies Nakodar issueda let t erdat ed731999 t o t he Presidentand all Com m it t eeMem bers of SahreeCooerat ive Servic Societ yLim it ed Sarhee direct ingt hem t o effect recovery on account of payingexcss saI aryt o t he over and above 70 net profit of t he Societ y Theywere also upon for placingt he Salesm en Essent ial basis ot herwise act ion under Sect ion220 of t he Punj ab Societ iesAct 1961 6forbrevit yt he Act was t o be t aken againstt hem elll Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH were also issuedbyt he Assist ant I t is allegedt hat sim ilar let t ers t o various Societ ies Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 430 3WP No 12820of 1999 and connect edpet it ions 0C 9 16 I n t he backdrop of t he above fact ual m at nx t he inst antpet it ionas well as ot her connect edpet it ions have been filed allegingt hat t he act ion of t he Regist rar Societ ies No 2 am ount s t o change of servic condit ions of t he em ployeesworkingin vanous Societ y in t he St at e of Punj abwit hout act ually t he st at ut ory1997 Rules which govem st heir condit ions of service 17 I n t he writ t enst at em ent filed on behalf oft he at t he out set a prelim inaryobj ect ionhas been raised t hat t he pet it ionerUnion has not exhaust ed t he rem edyof revision provided under Sect ion 69 of t he Act t hereforet he writ pet it ionis not m aint ainable Just ifyingt he issued by t he Noe let t ers 2 it has been assert edt hat under Rule 28 of t he 1963 Rules t he Regist rarof Societ ies Punj ab1S em poweredt o fram erules t he condit ions of service of t he t he Societ ysl Accordingt o t he t he Regist raris also com pet entt o am endt he rules by various based on t he wholesom eprinciplet hat t he diligent and hard workingst aff is not exploit edand suit ably rewarded for t he servics rendered whereas t he and lazyst aff is curbed I f a societ yis suffering losses it cannot run for a longt im e and allowing it t o run for a longt im e would also not be profit able and possibleI t has been subm it t edt hat t he 1997 Rules init iallyprovidedt hat t he t ot al Oll st aff should ordinarily not exceed 60 of t he annual gross incom eof t he Societ yHowever t he said rule was am ended by t he No 2 vide circular No Credit I CAe 51368dat ed 751998 and t he cap of 60 in respect of t he on t he st aff of t he Societ y was raised t o 75070of t he annualincom eof t he Societ y Re19 I t has also been point edout t hat t he am endm entin t he service rules 111 a 0 C I C5 I Z m 1 I 08 OO m m o Z Om respect of grat uit yet c issued vide let t er dat ed 36999 Singh Gagan Preet on a 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH of t he Union of t he Em ployeesof t he 6P9 has been m ade Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document in t he St at e 1 t Z 0 0 I C9 I Z I 08 00 7 Z 431 CWP No 12820of 1999 and connect edpet it ions 11 of Punj ab The pet it ionersare m em bersof t he said Em ployeesUnion t hus t heycannot obj ectt o t he dem and m ade byt he Union I n para 23 of t he reply on m erit it has been st at ed t hat t he servics condit ions of t he oft he Societ yslin t he St at eof Punj abare not governedbyany st at ut oryrules but are governedbyt he rules fram edbyt he No 2 under Rule 28 t he 1963 Rules These rules are 111t he nat ure of execut ive inst ruct ions issued by t he and it is wit hin his com pet encet o m odillam endt he servlce rules of t he em ployeesThereforenot hingwrong has been com m it t ed by him e 18 We have heard leam ed counsel at a considerablelengt hand have perusedt he record wit h t heir assist ance 19 t he On t he basis of t he argum ent sand recrordwe find t hat following quest ions of law would arise for det erm inat ionof t his Court l Whet her t he let t ers t he pay scales or relat ingt he pay of t he t o t he profit of t he Societ yas 2 3 in accordanc wit h t he pay scale against fix rules is pennissiblebyissuanceof let t ersbyt he Regist rar2 Whet her t he act ion of in t he t he is punit ive nat ure and t herefore in law2 Whet her convert ingt he t enure of servic of a Salesm anret iring him at t he age of 60 in accordancewit h Rule 19 of t he 1997 Rules t o t hat of unsalaried em ployeebypaylngcom m ission on t he sale t ransact ioneffect edbyhim is RE OUESTI ON NOS 1 AND 2 20 We havealreadynot iced in t he paras Rule 70f t he 1997 Rules and Annexure A appendedt o t hat Rule The post s of Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH shown t o carryspecifiedscalesof pay On t he enforcem entof t he RevisedPay Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document Salesm anlCashierand Peonm cunChowkidarhave been 432 CWP No 12820of 1999 and connect edpet it ions 11 d Rules in t he year 1998 wel 111996 t he aforesaid pay scales were also j 0 0 I C5 I Z e2 t r I 08 00 7 2 revised no arrears aft er fixat ion of pay were t o be paid in respect of t he priort o lA1998 However t he No 2 issueda of let t erscont ainingt heinst ruct ionsbylinkingt he pay of t he oft he t he profitearnedby t hem For exam pleon 3121998 t he addresseda let t er t o t he Joint Regist rarsDeput y of all t he Societ ies The cont ent s of t he aforesaid let t er lI l ext ensohave been not iced in para 8 above and a of t he sam e shows t hat of every Societ yare t o be paidt heir salaryby7 of each m ont h However in case t he Societ yis running 111losses t hen t he em ployeesaret o be paidsalarynot over and above t en m ont hsand t hesalaryis t o be dist ribut edt o t heext ent of 70 by t he Societ y Obviouslyit has result edin reduct ionof of t he net profit t he salary which is linked wit h t he scale of pay as det erm inedbyt he expertbodylike t he PayCom m ission which analysevanous fact orsbefore t he revlS1011 Theanalysisof t he PayCom m issionis ordinarilybasedon consum er The consum er pric index is an est im at ionof percent age of increase t hepres so as t o correlat et hevalue of m oney in t erm s of cunency The prices have hardly ever com e down but have always a risingt rend Therefore reduct ion of pay in such a fashion by t he No 2 is not 21 The No 2 also addresseda let t er dat ed 31999 Pe91I t seeks t o am endRule lt bI of t he 1997 Rules which has para 11 I t m ay be t rue t hat t he been not iced in power t o fram e and condit ions of service of t he I n fact Sect ion85 of t he Act vest s t he St at e Governm entwit h t he power t o m ake rules t o carry out t he purposes of t he Act Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH Therelevantprovisionof Sect ion85 of t heAct readst hus Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 433 2WPNo 12820of 1999and connect edpet it ions L4 85 Rules l9 The Governm entm ay for any coperat ive soclet y or class of such societ ies m ake rules t o carry out t he 1 0 0 0 I C5 I Z I 08 CQ 7 Z r purposes of t his Act 29 I n part icularand wit hout t o t he of t he power such nlles m ay provide for aH or any of t hefollowingm at t ers nam elyl 6i t o xxxviil XXX Xxx XXX xxxviii9 for m em bers of t he com m it t ee and em ployeeof a societ yor class of societ iesand t he condit ions of e servic subj ectt o which personsm ay be I n bysociet ies pursuance of t he aforesaid power t he St at e Govem m enthas fram ed t he 1963 Rules Rule 28 of t he 1963 Rules t he condit ions of service of em ployeesThe aforesaid let t ersassum e t o have been writ t en in pursuance of power vest edwit h t he Regist rarby Rule 28 of t he 1963 Rules Rule 28 oft he 1963 Rules reads as under 28 Qualificat ions and condit ions of lSect ion850cm 7iiill619The and condit ions of servlce subj ectt o which any personm ay be em ployedby a coa operat ivesociet yor a class of cooperat ivesociet iesshall be such as m ay be det erm inedbyt he Regist rarfrom t im e t o t im e 29 Where t he Regist rarlS of t he opiniont hat 1S necessary or expedientso t o do he m ay byorder for reasons t o be recorded in writ ingrelax t he provisions of t his rule wit h respectt o any cooperat ivesociet yor class of cooperat ivesociet ies t o such ext entas he m ay consider proper 23 A perusal of t he aforesaid Rule shows t hat condit ions of service of an em ployeeof t he Societ yare as m ay be det erm ined Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH by t he Regist rarThe condit ions of service have been det erm inedby t he 1997 Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 434 WP No 12820of 1999 and connect edpet it ions c1 13 11 Y4 Rules and for various cat egoriesof working in t he Societ y post s Salesm anlCashierPeolecum wChowkidaret c have been m C 0 0 I Ca I Z e a5 00 2 Z CL shown t o carry a specific pay scale As againstt he aforesaidst at ut oryRules t he Regist rarhas st art ed power by issuing let t ers I t is highly doubt hll whet her by execut ive t nst ruct ions of t his nat ure any st at ut oryrule could be alt ered Accordingt o t he st and t aken by t he in t he writ t en st at em ent let t ers are lI l t he nat ure of execut iveinst ruct ions I t is well set t ledt hat execut iveinst ruct ions cannot alt er t he rules or could be cont raryt o such rules I t is well set t led t hat st at ut oryrules cannot be execut ive inst ruct ions and run cont raryt o t he rules I n t hat regard reliance m ay be placed on t hej udgm entofHonble t he Court rendered in t he of St at eof Maharasht ra ve Jieannat h Achvut Karandikar AI R 1989 SC 1133 Thereforet he let t ersdat ed 3l21998 and 361999 6P8and Pe99are not sust ainable 24 Even if it is presum edt hat let t er dat ed31999 P8I am ount s t o exercisingt he power of am endm entand Rule 19b9of t he 1997 Rules has been am ended st ill it would not be sust ainablebecauseno rule m uld be fram edor execut ive inst ruct ions be issued reducingt he when under t he 1997 Rules it is considered pay of an em ployee as penal act ion Rule 14 of t he 1997 Rules post ulat einflict ion of llllnor and m aj or Under bot h t he heads reduct ion in em olum ent s st oppageof increm ent sand recovery of pecum ary I oss are som e of t he Therefore any inst ruct ion issued or rule m ade t o t he det rim ent of elnployeesand againstt heir int erest scausing loss of salary would be considered and such a act ion can be t aken only as a m easure The of m inor nat ure can be inflict ed under Rule 149 however a m aj orpunishm entcan be in Oict ed in accordance wit h t he procdureest ablishedby Rule 1439of t he 1997 Rules Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document Therefore on t hat score also t he am endm entis not in law Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH 135 OWPNo 12820of 1999 and connect edpet it ions C71 14 4V 25 Anot her reason which weigh favour of 111 t he pet it ioners is t hat t heym ightbe governedbyt he st at ut oryrules but no onerous condit ioncould be im posed upon t hemby fram ingany rule which would reduce t heir salary A cont ract of assum es t he charact erof st at us where t erm s and condit ions of serv could be by t he am endm entof t he rules But st ill it would be for a Public Societ yt o proceedln a m anner as t o violat e Art icle 14 of t he Const it ut ion which requiret hat all Public Societ ies and expect edt o act fairly I n Cent ral I nland Wat er Transport Corporat ion d0 Ve BrOiO Nat h GangulyAI R 1986Sc 1571 it has been observedt hat t he service of a perm anentem ployeewit hout giving any reason and bygivingt hree m ont hsnot ice is opposedt o publicpolicyand such a rule was held t o be ult raviresof Art icle 14 of t he Const it ut ionThe argum entt hat t here was a cont ract bet weent he of t he Pubc wit h t he has beenrepelledby holdingt hat in st andardform cont ract t he weaker part yhas no real freedom of cont ract because in every organisat ion weaker part yhas t o face t he sam e consequence of signing on t he dot t edI ine virt uallyleavingt he weaker part yno opt ionlPS At iayh Rise and Fall of Freedom of Cont ract lSuch a freedom t o cont ract has been regarded as freedom of a lam b beforea lion in j ungleTherefore lncorporat ionof Rule of t he t o we are of t he view t hat t he cannot be sust ained111t he eyes of law Acordinglysuch an am endm ent cannot m eet t he approval of Art icle 14 of t he Const it ut ionOn t hat score also m r 0 C I C Z Q I 08 m e 2 t l t he am endm entis liable t o be set aside RE OUESTI ON No 3 26 This quest ionhas ansen on acount Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH dat ed 73999 t he NO 2 Sahil Soni t he fact t hat vide let t er 2016.03.21 12:27 I attest to the accuracy and integrity of this document has placedt he Salesm an 436 2WPNo 12820of 1999 and connect edpet it ions 6 15 J Essent ial Com m odit ies on basis The provisionin t hat regard has been m ade which is based on rest rict ingt he salaryt o t he net profit sam ount ingt o 75 and t hen placingt he post of Salesm an on basis The let t er deservest o be read in ext enso which is as under 46 8ieSP lcm rdingt o let t er No dat ed C 0 C I C5 I Z C 08 ClO m 2 Z Cl t he Servic Societ ies cannot be givensalaryexceeding75 per cent of t he net profit of t he Societ yWhereas your Societ yhad duringt he year 199899 has 016 and 223 has been paidas salaryt o t he em ployeeswhich lS m ore t han 75 per cent of t he net profit Therefore t he salary which has been paidm ore t han 75 per cnt of t he net profit be recovered Apart from t he above t he Salesm an Essent ial 111 accordance wit h t he circular No 1198991265dat ed 22A999 and lI l View t he inst ruct ions issued earlier it has been asked by t he Societ iesPunj abfor placingt he Essent ial Salesm en baSI Se Regardingt his you have also been inform ed on block level t hroughI nspect orI nchargeof t he Socet ybut no act ion has been t akenby you as yet Therefore now again you are direct ed t hat t he Salesm anbe placed on com m ission basis and t he em ployeesof t he Societ ywho have beenpaidt he salarym ore t han 75 percent of t he net profitrecoverybe affect ed and t his of Sce be infonned of t he act ion t aken lI l Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH fift een days t his regardwit hin a period of Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 4 a C 0 C I 0 I Z w r I r w Z Q 437CWP No 12820of 1999 and connect edpet it ions 1 16 1 I n case it has not been done and t he inst ruct ions issued by t he Coperat iveSociet ies are not being followed t hen act ion under Sect ion 22 t he Punj abCoe operat iveSociet iesAct 1961 will be t aken againstt he Managing Com m it t eeoft he Societ y 27 As is evident from t he perusal of Rule 7 and AppendixA of t he 1997 Rules t he post of Salesm enis a cadre postwit h specific pay scaI e A num ber of Salesm enhave already served t he Societ y for long period Accordingt o let t er dat ed 771999 e11 t he Salesm enare being asked t o opt or work on com m lsslon of t he fact t hat such Salesm en are perm anentem ployeesor t heir nat ure of 1S ad hoc or part t im er I n case of perm anentSalesm en such an act ion cannot be t aken because lll t he case of Cent raI I nland Wat er Transport Corporat ionLt dsupral when a perm anent was asked t o leave on t he basis of a rule t he em ployert o givet hree m ont hs not ice t hen Honble t he Courthasdeclaredsuch a ni16illegalon t hegroundt hata condit ion of such nat ure wouI d be void as it is pat ent I yagainstt he public policy by Sect ion23 of t he Cont ractAct 1872 and it was dubbed as beingviolat iveof Art icle 14 of t he Const it ut ion Likewise in t he present case t he post of a Salesm enint o an engagem enton t he basis of com m ission or would result int o arbit rarinessand against public policybecauset hep6stof Salesm enis a cadrepostwit h specified scale of pay as 1S evident from t he perusal of AppendixA read wit h Rule 70f t he 1997 Rules Moreover t hose who are perm anentSalesm ent heywould be deprived of salary on t he basis of regular pay scale and even t heir pension and ot her benefit sm ightbe affect ed e Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH 2241999 As a sequelt o t he aforesaid discussion t he im pugnedlet t ersdat ed 3121998 361999 and 1851999 Pe7 t o Pm l Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document inst ruct ions or CWP No 12820of 1999 and connect edpet it ions 17 A even t he am endm entare herebyquashedThe t he pet it ionerssalaryln accordance wit h t he post held by t hem Those who are direct edt o pay have ret ired t heyshould be paidt heir dues 111 accordancewit h t he rules applicablet o t hem by giving t hem t he benefit of refixat ionof t heir pay 111 accordancewit h t heorevalentrules The need611shall be done wit hin a period of t hreem ont hsfrom t hedat eof recot of a copy of t hisorder 29 The writ pet it ionsst and of in t he above m anner A COPY of t his order be placed on t hefiles of connect edpet it ions 4 Olt I eWeKUA JUDGE 1 AeNeJI NDALI JUDGE Tit le Oct ober 1 2010 Pkapoor t SreNOe 1 20 3 4 5 6 7 8 L CWP No 8821of 1999 The SangrurDist rict Service Societ ies St at eof Punj aband ot hers SohanSinghand ot hersvSt at e of Pulab anct hers llt ural Union SangrurVe 1lt ural 9981 of 1999 12820of 1999 The Jullundur Dist rict of Punj aband ot hers Servic Societ ies 14532of 1999 The Punj ab St at e Coop Acult ural Uniol7egc v St at e Service Societ ies Union Regd9Ludhiana V 7766of 2000 BalrajSingh St at eof Plab and ot hers 17475of 2003 Am ar Singhan ot llersv St at eof Pulb 20556of 2006 Charan Singhand ot hers v St at e of Punj aband v St at eof Pt m j aband ot hers and anot her ot hers 17165of2008 Sukhj apSinghv Regist rar Societ ies Punj abandot hers 1 C 0 I C5 I Z Q I C45 e Z 3 Cl r MeN e KURl JUDGE 4 JUDGE Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document Singh Gagan Preet 2014.02.15 15: 48 TRUE SCANNED COPY OF ORI GI NAL PHHC CHANDI GARH Oct ober 1 2010 Pkapoor e12 1