Madhya Pradesh High Court
Laxminarayan vs Indore Sahakari Dugdha Sangh Mary. on 3 January, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 3rd OF JANUARY, 2024
WRIT PETITION No. 1484 of 2010
BETWEEN:-
KANHAIYALAL HANDEL S/O BHERULAL HANDEL, AGE: 56 YEARS,
OCCUPATION: UNEMPLOYED, R/O: 64/5, PARDESHIPURA (NEW RANIPURA),
INDORE (MADHYA PRADESH)
DECEASED THROUGH LEGAL REPRESENTATIVES: -
1. SMT. RUKHMANI BAI W/O LATE SHRI KANHAIYALAL HANDEL, AGE: 61
YEARS, OCCUPATION: NONE, R/O: 64/5, PARDESHIPURA (NEW RANIPURA),
INDORE (MADHYA PRADESH)
2. JYOTI HANDEL D/O LATE SHRI KANHAIYALAL HANDEL, AGE: 39 YEARS,
OCCUPATION: NONE, R/O: 64/5, PARDESHIPURA (NEW RANIPURA), INDORE
(MADHYA PRADESH)
3. NEETU HANDEL D/O LATE SHRI KANHAIYALAL HANDEL, AGE: 37 YEARS,
OCCUPATION: NONE, R/O: 64/5, PARDESHIPURA (NEW RANIPURA), INDORE
(MADHYA PRADESH)
4. AARTI HANDEL D/O LATE SHRI KANHAIYALAL HANDEL, AGE: 34 YEARS,
OCCUPATION: NONE, R/O: 64/5, PARDESHIPURA (NEW RANIPURA), INDORE
(MADHYA PRADESH)
5. CHITRANSH HANDEL S/O LATE SHRI KANHAIYALAL HANDEL, AGE: 31
YEARS, OCCUPATION: PRIVATE JOB, R/O: 64/5, PARDESHIPURA (NEW
RANIPURA), INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAJENDRA TIWARI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MARYADIT, THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
2
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 3542 of 2007
BETWEEN:-
LAXMINARAYAN S/O RAMCHANDRA JI DUBEY, AGE: 55 YEARS, OCCUPATION:
NIL, R/O: 24, JAGDISHPURI, DHAR ROAD, NEAR CHANDAN NAGAR, POLICE
STATION, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MARYADIT, CHANDA TALAVALI, MANGLIA,
INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR -ADVOCATE.)
WRIT PETITION No. 1418 of 2010
BETWEEN:-
SURESH KUMAR VYAS S/O LATE SHRI GHANSHYAM DAS VYAS, AGE: 59 YEARS,
OCCUPATION: UNEMPLOYED, R/O: 78/1, LODHIPURA, DISTRICT INDORE (MADHYA
PRADESH)
DECEASED THROUGH LEGAL REPRESENTATIVE:
SMT. BHANWAR KUMARI VYAS W/O LATE SHRI SURESH KUMAR VYAS, AGE: 65
YEARS, OCCUPATION: HOUSEWIFE, R/O: 78/1, LODHIPURA, DISTRICT INDORE
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MARYADIT, THROUGH CHIEF EXECUTIVE
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
3
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1419 of 2010
BETWEEN:-
KRISHANLAL GOYAL S/O BADRIPRASAD, AGE: 51 YEARS, OCCUPATION:
UNEMPLOYED, R/O: DARGAHWALI GALI, PANVADI MOHALLA, RAIDAS MARG,
BARWANI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT, THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1420 of 2010
BETWEEN:-
SMT. INDIRA RUIWALE W/O LATE SHRI RAVINDRA KUMAR RUIWALE, AGED
ABOUT 53 YEARS, OCCUPATION: UNEMPLOYED LIG-180,DEWAS HANUMAN
CHOWK, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
4
WRIT PETITION No. 1422 of 2010
BETWEEN:-
SMT. SHAKUNTALA VERMA W/O LATE SHRI GAJADHAR VERMA, AGE: 52
YEARS, OCCUPATION: UNEMPLOYED, R/O: GRAM KANADIA, POST TALWADA,
DISTRICT DHAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1424 of 2010
BETWEEN:-
SITARAM VAISHNAV S/O BADRIPRASAD VAISHNAV, AGE: 52 YEARS,
OCCUPATION: UNEMPLOYED, R/O: 1-B, VAIBHAV NAGAR EXT., KANADIA ROAD,
INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., CHIEF EXECUTIVE OFFICER,
MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1474 of 2010
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
5
BETWEEN:-
NIRMAL VIRANI S/O SAKHARAM VIRANI, AGE: 52 YEARS, OCCUPATION:
UNEMPLOYED, R/O: 36, MAHAVIR MARG, HATPIPLYA, DISTRICT DEWAS
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1476 of 2010
BETWEEN:-
DHANNALAL S/O MANNALAL, AGE: 50 YEARS, OCCUPATION: UNEMPLOYED,
R/O: 189, RISHI NAGAR, SECTOR, VIDUR NAGAR, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1478 of 2010
BETWEEN:-
GANESHLAL BIJWA S/O NANURAM BIJWA, AGE: 56 YEARS, OCCUPATION:
UNEMPLOYED, R/O: GRAM HATPILIYA, DISTRICT DEWAS (MADHYA PRADESH)
.....PETITIONER
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
6
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT, THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1479 of 2010
BETWEEN:-
PREMCHAND BAMNIA S/O LALSINGH, AGE: 52 YEARS, OCCUPATION:
UNEMPLOYED, R/O: 16-A, JABRAN COLONY, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1481 of 2010
BETWEEN:-
LAXMINARAYAN CHOUDHARY S/O GIRDHARILAL CHOUDHARY, AGE: 60
YEARS, OCCUPATION: UNEMPLOYED, R/O: GRAM SIRALIYA, TEHSIL &
DISTRICT DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT. THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
7
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1482 of 2010
BETWEEN:-
RAJKUMAR SONKAR S/O BHAGWAN SONKA, AGE: 53 YEARS, R/O: 132,
RODIPURA MAIN, BHAVANI ROAD, SANAWAD, DISTRICT KHARGONE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 1483 of 2010
BETWEEN:-
MAHENDRA KUMAR BHANDARI S/O SHRI REWARAM BHANDARI, AGE: 58
YEARS, OCCUPATION: UNEMPLOYED, R/O: POST AALRI, TEHSIL SONKACH,
DISTRICT DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
8
WRIT PETITION No. 1485 of 2010
BETWEEN:-
LAKHANLAL GUPTA S/O BABULAL GUPTA, AGE: 57 YEARS, OCCUPATION:
UNEMPLOYED, R/O: 83, MAHAVIR NAGAR, DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL SETHI - ADVOCATE.)
AND
INDORE SAHAKARI DUGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDROE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 3360 of 2010
BETWEEN:-
KAILASHCHANDRA S/O KALURAM HIRVE, AGED: 53 YEARS, OCCUPATION: NIL,
R/O: 83 GOPUR COLONY, ANNAPURNA ROAD, INDORE DISTRICT INDORE
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KARPE PRAKHAR MOHAN - ADVOCATE.)
AND
INDORE SAHAKARI DUGDHA SANGH MARYADIT, THROUGH CHIEF
EXECUTIVE OFFICER, MANGALYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
WRIT PETITION No. 6224 of 2011
BETWEEN:-
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 1/3/2024
6:08:38 PM
9
KAILASH CHANDRA CHANDORE S/O LATE SHRI BABULAL CHANDORE, AGED:
56 YEARS, MILK POINT, JHANDA CHOWK, 167, BARWANI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI KARPE PRAKHAR MOHAN - ADVOCATE.)
AND
INDORE SAHAKARI DAGDH SANGH MYDT., THROUGH CHIEF EXECUTIVE
OFFICER, MANGLIYA NAKA, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH NIMGAONKAR - ADVOCATE.)
HEARD AND RESERVED ON: 18.12.2023
ORDER PASSED ON: 03.01.2024
This petition along with other connected petitions coming on for orders this
day, the court passed the following:
ORDER
About the identicalness in the controversy involved in the present cases, with the joint request of the parties, these writ petitions are finally heard and being decided by this common order.
The facts are being taken from Writ Petition No.1484 of 2010.
The petitioner has filed the present petition under Article 227 of Constitution of India challenging order dated 10.12.2009 passed by the Madhya Pradesh State Cooperative Tribunal, Bhopal (herein after referred to as the Cooperative Tribunal) in First Appeal No.234 of 2009, whereby the order of reinstatement with 50% back Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 10 wages passed by the Joint Director, Cooperative Societies dated 15.07.2009 has been set aside.
2. In short, the facts of the case are, as under: -
2.1 The petitioner was initially appointed on the post of Dairy Cooperative Society Extension Organizer on probation for a period of one year on 06.11.1982.
Thereafter, he was regularized on the said post vide order dated 03.10.1983.
According to the petitioner, his entire record was satisfactory and he has not suffered any punishment.
2.2 Vide order dated 12.04.2003, the respondent had compulsorily retired him in exercise of powers under Rule 30 (1) of the Service Rules by handing over him a cheque of Rs.23,994/- (rupees twenty three thousand nine hundred ninety four) in lieu of three months' salary.
3. Being aggrieved by the aforesaid order, the petitioner raised a dispute under Section 55 (2) of the Madhya Pradesh Cooperative Societies Act, 1960 (herein after referred to as the Act) before the Joint Registrar, Cooperative Societies. The respondent / Federation - Indore Sahakari Dugdha Sangh Maryadit filed a reply and vide order dated 27.08.2008, learned Joint Registrar set aside the order of compulsory retirement and directed for his reinstatement without back wages.
Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 114. Being aggrieved by the aforesaid order, the petitioner as well as respondent Dugdha Sangh, both, preferred first appeals. Vide order dated 04.11.2008, the Cooperative Tribunal set aside both the orders and remanded the matter back to the Joint Registrar for deciding it afresh.
5. After the remand, the Joint Registrar, Cooperative Societies vide order dated 15.07.2009 again set aside the order of compulsory retirement and directed for reinstatement of the petitioner with 50% of back wages.
6. Being aggrieved by the aforesaid order, the respondent - Dugdha Sangh again approached the Cooperative Tribunal under Section 78 (1) of the Act. Vide impugned order dated 10.12.2009, the Cooperative Tribunal has set aside the order of Joint Registrar. Hence, the present petition before this Court.
7. That apart from the present petitioner, as many as thirteen other employees, who were compulsorily retired by way of impugned action, approached the Joint Registrar and the M.P. State Cooperative Tribunal. All the cases were decided by a common order, therefore, they all have also preferred a writ petition before this Court.
8. Shri Rajendra Tiwari, Shri Rahul Sethi and Shri Prakhar Mohar Karpe, learned counsel appearing for the petitioners submit that not only Indore Sahakari Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 12 Dugdha Sangh as well as other Dugdha Sanghs in the State of Madhya Pradesh working under the Madhya Pradesh State Dairy Federation took a similar action and compulsorily retired a number of employees. They approached the High Court by way of writ petitions. The Writ Court allowed some of the writ petitions and dismissed some of them. Against which, writ appeals were filed and all the writ appeals were allowed by a Division Bench directing reinstatement with 50% of back wages all the employees and officers. Thereafter, the Federation filed a Special Leave Petition before the Apex Court and the Apex Court has upheld the order of the High Court i.e. reinstatement with 50% back wages in the case of Madhya Pradesh State Cooperative Dairy Federation Limited & another v.
Rajnesh Kumar Zamindar & others reported in (2009) 15 SCC 221.
9. Some of the Class-III and Class-IV employees availed the remedy available under the Act and their matter remains pending for years together before the Joint Registrar. Thereafter, they approached the Madhya Pradesh High Court by way of writ petition claiming the similar benefit, as has been granted by the Apex Court in case of Madhya Pradesh State Cooperative Dairy Federation Limited v.
Rajnesh Kumar Zamindar (supra) and their writ petitions have been allowed by directing reinstatement with 50% back wages and the said order has been complied with. Therefore, the order of the Tribunal dated 10.12.2009 is also liable to be set Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 13 aside, in view of the law laid down by the Apex Court in the case of Madhya Pradesh State Cooperative Dairy Federation Limited v. Rajnesh Kumar Zamindar (supra).
10. Shri Aushotosh Nimgaonkar, learned counsel appearing for respondent has vehemently opposed the aforesaid prayer by submitting that in the present case, the Scrutiny Committee considered the entire record of the petitioners and rightly found that they are entitled to be retired compulsorily, after completion of twenty years' of service. The Cooperative Tribunal has again examined the entire record of the Scrutiny Committee and upheld the same. The learned Cooperate Tribunal has held that the Scrutiny Committee has taken into account the circular of General Administration Department, State of Madhya Pradesh issued on 20.03.2003 and the circular issued by Dairy Federation on 03.04.2000 as well as 04.04.2003. The Scrutiny Committee has also taken into account the entire service record and found that the compulsory retirement of the employees is justified in the interest of Union. Hence, such order is not liable to be interfered with.
11. The aforesaid contention of Shri Aushotash Nimgaonkar, learned counsel for the respondent is unacceptable. The Joint Registrar on both the occasions, while considering the first appeal, duly examined the proceedings of the Scrutiny Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 14 Committee and categorially held that the Scrutiny Committee had only considered five years' of A.C.R. and took a decision to compulsorily retire a number of employees, which is not permissible, in view of the judgment passed by the Apex Court in the case of Madhya Pradesh State Sahakari Dugdha Maha Sangh (supra).
It is important to note that the Scrutiny Committee did not doubt on the integrity of any employee or did not record findings that they are physically incapable in performing the duty. The Joint Registrar has duly considered the judgment passed by the Apex Court in the case of Madhya Pradesh State Cooperative Dairy Federation Limited v. Rajnesh Kumar Zamindar (supra) and set aside the order of compulsory retirement. The learned Cooperative Tribunal, while setting aside the order of the Joint Registrar, did not even refer to the judgment passed by the Apex Court passed in case of counter part of these petitioners working in other Dugdha Sangh.
12. The Hon'ble the Supreme Court of India in case of Madhya Pradesh State Cooperative Dairy Federation Limited v. Rajnesh Kumar Zamindar (supra) considered the action of the respondents the policy and circulars of the State of M.P. related to compulsory retirement and deprecated the action of Dugdh Sangh.
The relevant paras are reproduced below:-
Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 15"33. The learned Single Judge called for the records. It was found that the Regulations were amended in conformity with the government circulars and, thus, the said amendment was valid. It was noticed that at least in cases of 16 employees, the average grading being "Good", their services could not have been dispensed with.
34. The Division Bench of the High Court, furthermore, noticed that although in many cases, the ACRs were not available but an attempt had been made to grant "Average" on the basis of the year. It was furthermore found that although the Scrutiny Committee was required to lay emphasis on the grading of last five years, there was no justification why the last two years' grading had not been taken into consideration. It was furthermore held that the process of weeding out does not satisfy the test of rationalisation, stating:
"(a) There has been no rationalisation of marking system when conversion has taken place from grading to award of marks by the Screening Committee.
(b) The principle of average that has been applied by the Screening Committee is not an acceptable one as the best average principle should have ordinarily been applied in the absence of non-availability of the ACR, for the ACRs are maintained and kept by the employer.
(c) There was no justification to fix a cut-off date when the Screening Committee met at a later stage.
(d) Though the circular postulates that last five years' ACRs have to be taken into consideration for the purpose of finding out whether there has been declining of progress in the performance of the employee the last two years' ACRs were not considered.
(e) In certain cases benefit of promotion conferred by the said facet has not been taken into consideration at all which reflects non-application of mind."
It was, however, opined that back wages to the employees should be confined to 20%.
35. 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.
36. In Baikuntha Nath Das v. Chief District Medical Officer [(1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649] this Court held: (SCC pp. 315-16, para 34) "34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 16
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or
(c) that it is arbitrary--in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter--of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
37. In State of Gujarat v. Umedbhai M. Patel [(2001) 3 SCC 314 : 2001 SCC (L&S) 576] this Court held: (SCC p. 320, para 11) "11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 17
38. In Pritam Singh v. Union of India [(2005) 9 SCC 748 : 2005 SCC (L&S) 728] this Court held: (SCC p. 753, paras 13 & 16) "13. In our opinion, the High Court has committed an error in not interfering with the punishment of compulsory retirement even though the appellant submitted that the misconduct alleged against him was not at all an offence or even a serious mistake. The act of misconduct alleged against him was that he supplied a list of absentee details to one of the employees, who was fighting a case before the Tribunal against the Railways. This list contained the ticket numbers of the workers of a shop, who were absent on that date. This was neither a confidential document nor a privileged document. It contained details to which the employee concerned had a right of information. The appellant being a Superintendent Grade II and in charge of the information acted bona fide in good faith while supplying the information. In our opinion, this kind of an act was neither a misconduct nor a serious mistake. When the charges were found proved against the appellant, the appellant admitted that he had supplied the absentee details.
***
16. This Court in Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] while examining the scope of judicial review held that 'reasonableness', 'rationality' and 'proportionality' are the grounds on the basis of which judicial review of the administrative order can be undertaken. Considering the facts extracted hereinbefore, we find that the exercise of power by the respondent falls in the category of arbitrary exercise of power."
39. Before us, like before the learned Single Judge and the Division Bench of the High Court, various discrepancies in the report of the Scrutiny Committee as approved by the Review Committee were pointed out. The examples placed before us clearly demonstrate that neither the Scrutiny Committee nor the Review Committee took into consideration the relevant factors germane for the purpose of passing such an order and in fact had taken into consideration irrelevant factors which were not germane therefor. Some of the employees, for a number of years, had been shown to be good officers; ACRs of some of whom in some of the years have been "Very Good".
40. As has been noticed hereinbefore, the Scrutiny Committee as also the Review Committee proceeded to determine each individual case keeping in view the ACRs of the employees concerned from 1980, since when the Federation had started functioning, to the year 2000, when the decision had been taken to compulsorily retire the employees, by amending the Regulations.
41. We have noticed hereinbefore that although criteria adopted by the State were required to be considered for the purpose of determining the suitability or otherwise of the employees to continue in service, the necessity to give special consideration to the performance of the employees for the last five years before the order was passed had been given a complete go-by. The learned Single Judge as also the Division Bench, as noticed hereinbefore, clearly held that for the purpose of weeding out the dead wood, it was absolutely necessary to take into consideration the performance of each of the employees at least for the last two years. Each case, thus, was required to be considered on its own merit.
42. The broad criteria, which are not only applicable generally for the aforementioned purpose, were required to be followed but there cannot be any doubt or dispute that the criteria laid down by the State was imperative in character. Thus, the Federation adopted the rules and circulars Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 18 made or issued by the State Government. The Federation itself having formulated the criteria required to be applied for passing orders of compulsory retirement was, thus, bound thereby.
43. It is now a well-settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature. This rule was enunciated by Frankfurter, J. in Vitarelli v. Seaton [3 L Ed 2d 1012 : 359 US 535 (1958)] wherein the learned Judge said: (US pp. 546-47) "An executive agency must be rigorously held to the standards by which it professes its action to be judged. ... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. ... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."
(See also H.V. Nirmala v. Karnataka State Financial Corpn. [(2008) 7 SCC 639 : (2008) 2 SCC (L&S) 442] , at SCC p. 645, para 14.)
44. The power of judicial review of a superior court although a restricted one, has many facets. Its jurisdiction is not only limited in the cases where the administrative orders are perverse or arbitrary but also in the cases where a statutory authority has failed to perform its statutory duty in accordance with law. An order which is passed for unauthorised purpose would attract the principles of malice in law. (See Govt. Branch Press v. D.B. Belliappa [(1979) 1 SCC 477 :
1979 SCC (L&S) 39 : AIR 1979 SC 429] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49] and P. Mohanan Pillai v. State of Kerala [(2007) 9 SCC 497 : (2007) 2 SCC (L&S) 542] .)
45. It is a well-settled principle of law that an order of compulsory retirement is found to be stigmatic, inter alia, in the event the employer has lost confidence (see Chandu Lal v. Pan American World Airways Inc. [(1985) 2 SCC 727 : 1985 SCC (L&S) 535] , SCC at p. 730, para
8), or he has concealed his earlier record (see Jagdish Parsad v. Sachiv, Zila Ganna Committee [(1986) 2 SCC 338 : 1986 SCC (L&S) 267] , SCC at pp. 342-43, para 9). He can, however, be subjected to compulsory retirement inter alia if he has outlived his utility (State of U.P. v. Madan Mohan Nagar [AIR 1967 SC 1260] , AIR at p. 1262, para 6).
46. In Allahabad Bank Officers' Assn. v. Allahabad Bank [(1996) 4 SCC 504 : 1996 SCC (L&S) 1037] it was held: (SCC p. 512, para 17) "17. The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 19 intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it."
47. The question came up for consideration before a Division Bench of this Court in State of Gujarat v. Umedbhai M. Patel [(2001) 3 SCC 314 : 2001 SCC (L&S) 576] wherein Balakrishnan, J., as the learned Chief Justice then was, summarised the law thus: (SCC p. 320, para 11) "11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
48. It is also a well-settled principle of law that an authority discharging a public function must act fairly. It, for the aforementioned purpose, cannot take into consideration an irrelevant or extraneous matter which is not germane for the purpose for which the power is sought to be exercised. The Scrutiny Committee as also the Review Committee was required to pose unto themselves a correct question of law so as to enable them to find out a correct answer. It was, therefore, imperative that the criteria laid down in the circulars issued by the State of Madhya Pradesh should have been scrupulously followed. The Federation, therefore, in our opinion, having regard to the fact that there was no material to show that the respondent employees had become dead wood, inefficient or corrupt, must be held to have abused its power.
49. "Interest of the Federation" as contained in Regulation 13 of the Regulations would not mean that services of a large number of employees should be dispensed with only for the purpose of cutting administrative expenses. Such a power does not even exist in terms of the Regulations nor had any such ground been taken in the counter-affidavit before the High Court.
Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 2050. Strong reliance has been placed by Mr Sreekumar on a recent decision of this Court in Mundrika Dubey v. State of Bihar [(2008) 4 SCC 458 : (2008) 1 SCC (L&S) 1050] wherein orders of compulsory retirement by way of an economic measure had been found to be in the interest of the employer. It may be placed on record that neither there exist any such provision nor had such a stand been taken before the High Court. Furthermore, it is well settled that while a power is exercised by an authority, ordinarily, the reasons contained in the order should be supported by the materials on record.
51. Submission of Mr Sreekumar, that the High Court should not have interfered with the order of compulsory retirement keeping in view the fact that no mala fides has been alleged in the Scrutiny Committee nor any case of discrimination has been made out, cannot be accepted. It is one thing to say that a yardstick has been fixed for the purpose of taking recourse to the power of compulsory retirement but there cannot be any doubt or dispute that such yardstick must be based on relevant criteria. If the relevant criteria, as has been laid down by the State, which has been adopted by the Federation, had not been acted upon, the order must be held to have been suffering from jurisdictional error.
52. It may be true that the superior courts in exercise of their power of judicial review ordinarily would not go into the factual findings as to which section of the employees should be brought within the parameters of Regulation 13 of the Regulations and which of them would not, but, in this case, we are concerned with a different question.
53. We, therefore, do not find any infirmity in the judgment of the High Court.
54. So far as the question of payment of back wages is concerned, we may notice Regulation 49(2) of the Regulations, which reads as under:
"49. (2) When the termination or retirement of an employee from his service has been set aside by the court and the employee is reinstated without any further departmental proceeding, then the period of absence from the period of suspension, will be treated as the period on duty for all purposes including the grant of salary and allowances. The amount of subsistence allowance to him if has been paid will be deducted from the payable amount under this sub-rule."
A bare perusal of the said Regulation would clearly show that it applies in a case where an order of dismissal and/or compulsory retirement by way of punishment is set aside. It is not a case where order of compulsory retirement had been passed by way of punishment. The respondent employees herein were not charged with any misconduct. The order of compulsory retirement was issued in terms of Regulation 13 of the Regulations only.
55. Various decisions have been placed before us with regard to grant of back wages. Even the learned Single Judge had granted 50% back wages in favour of 16 employees. The Division Bench did not interfere therewith. We, therefore, fail to understand as to why the Division Bench thought fit to grant 20% back wages in respect of other employees. The decisions placed before us show that this Court keeping in view the facts and circumstances of each case had refused to grant 75% back wages. We, therefore, are of the opinion that 50% back wages should have been granted.
Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 2156. In civil appeal arising out of SLP (C) No. 17705 of 2008, as noticed hereinbefore, an additional ground has been taken that Section 47 of the 1995 Act would be attracted in the case of the appellant. Section 47 of the 1995 Act reads as under:
"47. Non-discrimination in government employment.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
The learned counsel submits that his client suffered disability in 1991. The 1995 Act, thus, did not come into force at that point of time. His services were continued not as a disabled person within the provisions of the 1995 Act. He was treated equally and, thus, we see no reason as to why the entire back wages should be granted in his favour whereas all other employees would be given 50% of their back wages.
57. Furthermore, such a contention had not been raised before the Division Bench. It may be true that in a given case, this Court may allow the appellant to raise such a contention, as was done in Kunal Singh v. Union of India [(2003) 4 SCC 524 : 2003 SCC (L&S) 482] whereupon strong reliance has been placed, but it is not automatic. It is evident from the record that even before the learned Single Judge the said contention was not raised at the first instance. Only in the review petition, was the said contention raised. But, the said review petition was dismissed. As indicated hereinbefore, the said contention was again not raised before the Division Bench. We, therefore, are not inclined to agree with the contention that in terms of the 1995 Act, the appellant should be given 100% back wages.
58. For the reasons aforementioned, the appeals filed by the Federation are dismissed and that of the employees are allowed to the extent aforementioned with costs. Counsel's fee assessed at Rs 10,000 in each appeal."
13. Therefore, in the present case also, the impugned order is similar to the action of other Dugdh Sangh and M.P. State Federation unsustainable and accordingly set aside. The order passed by the Joint Registrar is hereby upheld.
Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM 2214. It is inform that during pendency of this petitions, most of the employees have either cross the age of superannuation or died, therefore, they cannot be reinstated hence for them the relief granted by Joint Registrar be suitably modified in the interest of justice. Those who have crossed the age of reinstatement they shall be entitled for 50% of the back wages for their remaining service with all consequential benefits including terminal / retrial benefits. Those who have expired their legal heirs will be entitled for above benefits. The order be complied with in 60 days from today.
All the Writ Petitions are allowed, the common order dated 10.12.2009 passed by the Madhya Pradesh State Cooperative Tribunal, Bhopal in all the First Appeals is quashed.
The photocopy of this order be kept in all the Writ Petitions.
Pending interlocutory application, if any, stands disposed off.
(VIVEK RUSIA) JUDGE rcp Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 1/3/2024 6:08:38 PM