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Kerala High Court · body

1983 DIGILAW 229 (KER)

CHELLAPPAN v. DIRECTOR OF HANDLOOMS

1983-09-14

K.BHASKARAN NAMBIAR

body1983
Judgment :- 1. The petitioners in the two writ petitions are Paid Secretaries of two Handloom Weavers Co-operative Societies, aged respectively 60 years and 58 years in, July, 1983. The complaint of the petitioners is that they were sought to be relieved from service on the ground that they attained the age of superannuation of 58 years. The Director of Handlooms who is also invested with the powers of the Registrar of Co-operative Societies, informed the General Manager, District Industries Centre, Trivandrum, as per Ext. P1 produced in the two writ petitions, that the age of retirement of the employees of Handloom Weavers Co-operative Societies including Paid Secretaries is fixed as 58 under R.183(2) of the Co-operative Societies Rules and that this retirement age should be strictly followed. Ext. P1 is challenged in these writ petitions. 2. It is admitted that the societies in which the petitioners were employed are governed by the Kerala Co-operative Societies Act and the Rules made thereunder. But these societies are under the administrative control of the Director of Industries and Commerce and not under the Co-operative Department. The rule relating to retirement of employees of Co operative Societies is contained in R.183(2) in Chapter XV of the Co-operative Societies Rules which reads thus: "No employee shall be eligible to continue in the service of a society after he attains the age of 58 years". Chapter XV of the Rules relating to "Establishment" was inserted by an amendment dated 27/9/1973. 3. If R.183(2) applies there should be no doubt that the petitioners have to retire on attaining the age of 58 years. The contention is that R.183(2) does not apply. 4. Shri K. S. Rajamony, learned counsel for the petitioners, contends that the provisions in Chapter XV of the Co-operative Societies Rules in which R.183 occurs, do not apply to the Co-operative Societies under the Administrative Control of the Industries Department. This contention can be tested with reference to the relevant provisions of the Act and the Rules. S.80 of the Co-operative Societies Act reads thus: "80. Officers, etc, of Co-operative Societies. (1) The Government shall classify the societies in the State according to their type and financial position. (2) The Government shall, in consultation with the State Co-operative Union, fix or alter the number and designation of the officers and servants of the different classes of societies specified in sub-section (1). Officers, etc, of Co-operative Societies. (1) The Government shall classify the societies in the State according to their type and financial position. (2) The Government shall, in consultation with the State Co-operative Union, fix or alter the number and designation of the officers and servants of the different classes of societies specified in sub-section (1). (3) The Government shall, in consultation with the State Co-operative Union, make rules regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in subsection (1)." Thus the Government can classify the societies in the State according to their type and financial position. They can also prescribe rules regulating the conditions of service of the officers and servants of the different classes of these societies. 5. Pursuant to the power conferred under S.80 of the Act the Government made a classification of the societies under Appendix III of the Rules. They have not made any classification of the societies under the administrative control of the Industries Department for, the residuary clause in Appendix III refers only to all other societies coming under the administrative control of the Co-operative Department, the other entries in the Appendix not being referable to any society under the administrative control of the industries Department. The argument, therefore, is that the rules in Chapter XV apply only to those societies which are classified in Appendix III under S.80 of the Co-operative Societies Act. This contention is sought to be reinforced by the provisions of R.182 also in Chapter XV which reads thus: "182. Classification under S.80(1).- For the purpose of sub-s. (1) of S.80, the societies in the State shall be classified as shown in Appendix III: Provided that the Government may on their own motion or otherwise, after consolation with the Registrar, revise such classification once in every three years." The one basic flaw in the argument of the counsel is that Chapter XV is not made exclusively applicable to the societies classified under S.80 and under, Appendix III of the Rules. The classification may apply only to the societies mentioned in Appendix III. But the other conditions of service relating to appointments, promotion, qualification, probation etc., cannot be confined to the classified societies in Appendix III. The classification may apply only to the societies mentioned in Appendix III. But the other conditions of service relating to appointments, promotion, qualification, probation etc., cannot be confined to the classified societies in Appendix III. It is not denied that the Handloom Weavers Co-operative Society is a society bound by the provisions of the Kerala Co-operative Societies Act and the Rules. If so, one fails to understand how the provision relating to appointment and retirement of employees should not apply to the officers and servants of the Handloom Weavers Co-operative Societies. 6. The Co-operative Societies rules therefore apply to all societies governed by the Act whether they are under the administrative control of the Co-operative Department or the Industries Department or any other department unless there are express or implied restrictions confining their application to particular classes of societies. Chapter XV of the rules relates to "establishment" of all societies and provisions therein are of general application. The staff pattern and scale of pay etc. prescribed in Appendix III can apply only to those classified societies. They are, thus of limited application though there is nothing in the Act and the Rules preventing the extension of those principles to other societies as well. 7. The learned counsel attempted to support his reasoning by adverting to the Explanatory note to the amendment made. When Chapter XV was inserted, the explanatory note reads thus: "(This does not form part of the original rules or these amendments but intended to indicate the genera! purport). S. 80 of the Kerala Co-operative Societies Act stipulates that Government shall classify the societies in the State according to their type and financial position. The provision also lays down that Government shall in consultation with the State Co-operative Union fix or alter the number and designation of the Officers and servants and make rules regulating the qualification, remuneration, allowances and other conditions of service of the Officers and servants of the different classes of Societies specified above. The amendment are intended for achieving the above purpose." The argument is that the relevant rules in Chapter XV have been made by virtue of the powers conferred under S.80 of the Act and therefore these rules can apply only to those societies classified in Appendix III. It is, however, pertinent to note that these rules were made under S.109 of the Act. S.109 reads thus: "109. It is, however, pertinent to note that these rules were made under S.109 of the Act. S.109 reads thus: "109. Power to make rule (1) The Government may, for the whole or any part of the State and for any class of societies, after previous publication, by notification in the Gazette, make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: XXX XXX (xv) the qualifications of employees of societies; XXX XXX." S.109 of the Act enables the authorities to make rules to carry out the "purposes of the Act." The object of the Act is to provide for an orderly development of the Co-operative movement in the State of Kerala in accordance with the relevant directive principles of State Policy enunciated in the Constitution of India and to consolidate, amend and unify the law relating to Co-operative Societies in the State. A dispute touching the business, constitution, establishments, management etc, of a society is referable to the decision of the Registrar under S.69 of the Act. Provisions relating to the conditions of service of the employees of a co-operative society are thus meant to carry out the objects of the Act and the source of power to make rules can thus be found in S.109(1) itself. The contention that S.80 alone gives authority to frame rules prescribing conditions of service cannot therefore be accepted. 8. Even apart from S.109(1), S.109(2) expressly authorises the rule making authority to prescribe "qualifications of employees of the society". It is contended that the retirement age prescribed in R.183(2) does not relate to the qualifications of an employee of the society and thus it is beyond the rule making powers under S.109(2). I cannot agree. 'Qualification' is defined in Black's Law Dictionary thus: "The possession by an individual of the qualities properties, or circumstances, natural or adventitious, which are inherently or legally necessary to render him eligible to fill an office or to perform a duty or function." A provision which prescribes the conditions for continuance in office relates to qualifications to perform one's duties and functions and R.183(2) fixing the superannuation age as 58 is a rule made under S.109(2) relating to "qualifications of employees of the Society". The section is not restricted to "qualifications for appointment", but extends to "qualifications of employees". This is of wider import appertaining to the entire tenure in office without confining to initial recruitment but extending to later incidents of promotion, probation, retirement etc. The 1st respondent, Director was competent to issue Ext. P1 alerting the Co-operative Societies under its administrative control that retirement age of the employees of the society is as fixed under R.183(2). 9. The acceptance of the contentions of the petitioners is likely to result in unjust discrimination, the employees of the societies under the Cooperative department being compelled to retire on attaining the age of 58 years, while those employed in societies under the administrative control of other departments have no retirement age. There cannot be any reasonable basis for any such arbitrary distinction and a conclusion which can avoid such an unfair and unjust consequence can alone be conceived. 10. Counsel for the first respondent, Shri George Tharakan, also referred to R.174 of the Co-operative Societies Rules, a rule which was in existence even prior to the coming into force of Chapter XV. 11. R.174 reads thus: "The Registrar shall with the approval of Government, fix the strength of the Establishment, scale of pay, qualifications, mode of recruitment and service conditions of employees." 12. The Director of Handlooms has been invested with the powers of the Registrar. He discharges the duties assigned to the Registrar under the Act. He has therefore jurisdiction to fix the conditions of service including the age of retirement. He can do so with the approval of the Government. It has not been shown that Ext. P1 does not have the approval of the Government. Even apart from R.174, there is the specific statutory provision, R.183 (2) which prescribes the age of retirement. Ext. P1 therefore does not suffer from any legal infirmity as alleged by the petitioners. The petitioners have crossed the age of superannuation. It has not been shown that they are entitled to continue in service after attaining the age of 58 years under the bye-laws of the Societies or under any other statutory provision. It cannot be that the Secretaries of the Handloom Weavers Co-operative Societies are appointed for life. They have to retire and they retire on attaining the age of 58 years. The petitioners cannot therefore continue beyond 58 years. It cannot be that the Secretaries of the Handloom Weavers Co-operative Societies are appointed for life. They have to retire and they retire on attaining the age of 58 years. The petitioners cannot therefore continue beyond 58 years. There are no merits in the Original Petitions and they are therefore dismissed with costs.