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2014 DIGILAW 1879 (HP)

Satish Dadwal v. State of H. P.

2014-12-11

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. By medium of this petition, the writ petitioner has claimed the following reliefs:- “(i) The impugned resolutions dt. 10.7.2012, 28.7.2012, 11.8.2012, 28.8.2012 and 10.9.2012 and further orders dt. 10.9.2012, available in annexure P-2, may very kindly be quashed and set aside having been passed by overstepping the jurisdiction vested in respondent and further being in violation of the orders passed in CWP No. 266 of 2004 with directions to the respondents to allow the petitioner to continue in service drawing enhanced salary and taking as if there is no suspension orders and chargesheet against the petitioner. (ii) That Board of Directors of respondent No. 3 may very kindly be proceeded against as per sections 11 and 12 of Contempt of Courts Act to upkeep the majesty of law in highest esteem.” 2. The case of the petitioner as set out in the writ petition is that, she joined as Manager with the respondent No. 3, Society in the year 1992. In the year 2004 her pay was ordered to be reduced in view of the orders passed by the Deputy Registrar, Cooperative Societies, Kangra, which order was challenged by her by way of CWP No. 266 of 2004. This Court on the basis of statement made by the learned Additional Advocate General on the instructions of the Registrar Cooperative Societies held the impugned reduction in pay to be not applicable to the petitioner and therefore, petitioner was entitled to enhanced salary which she continued to draw till 31.5.2012. It is then claimed that new Director assumed office in the month of June, 2012 and for reasons best known to him began harassing the petitioner. The respondents passed various resolutions, which were in disobedience to the judgment passed in CWP No. 266 of 2004. These illegal actions of the Society were challenged before the Deputy Registrar, Cooperative Societies, but the said petition was dismissed. It is on the basis of such allegations that the petitioner has sought the reliefs as set out herein above. 3. The respondent Society filed its reply, wherein it was submitted that the services of the petitioner were initially engaged as Assistant Secretary on lump sum wages of Rs.1000/- per month. It is on the basis of such allegations that the petitioner has sought the reliefs as set out herein above. 3. The respondent Society filed its reply, wherein it was submitted that the services of the petitioner were initially engaged as Assistant Secretary on lump sum wages of Rs.1000/- per month. The petitioner misguided the then Management of the Society in the year 2002 and got her salary enhanced to Rs.3000/- and thereafter Rs.6000/-, knowing fully well that this salary is only available to the persons working in category “AA” society, while the respondent Society did not fall under the said category. It is averred that in the year 2004 on her own adopting the Rules of “AA” class Society, she again got her wages increased from Rs.6,000/- to Rs.16,000/-. Not only this, thereafter she got her wages fixed at Rs.40,000/- per month, beside Rs.2500/- PPF, whereas the income of the Society was not equivalent to the wages drawn by the petitioner. In so far as the order passed by this Court in CWP No. 266 of 2004 is concerned, it is submitted that it was on the statement of the Registrar that the order came to be passed by this Court providing therein that the recovery would not be affected from the petitioner. Lastly, it is submitted that in the Society 51% share is of the Ex-servicemen, who have not been paid even a penny for the last 40 years and the sole income of the Society is from the rent of the godown, which is about Rs.28,000/- per month and no other activity is being carried out by the Society. 4. The respondent No. 1 also contested the petition by filing reply, wherein this respondent has raised the question of jurisdiction in view of the judgment passed by Division Bench of this Court in Chandresh Kumar Malhotra Vs. H.P. State Cooperative Bank and others, (1993( 2 SLC 243, as upheld by the Full Bench of this Court in Vikram Chauhan Vs. Managing Director, Latest H.L.J 2013 (HP) 742 (FB), as well as decision of Hon’ble Supreme Court in S.S. Rana Vs. Registrar Co-operative Societies and Another, (2006) 11 SCC 634 . I have heard the learned counsel for the parties and have gone through the records of the case. 5. Managing Director, Latest H.L.J 2013 (HP) 742 (FB), as well as decision of Hon’ble Supreme Court in S.S. Rana Vs. Registrar Co-operative Societies and Another, (2006) 11 SCC 634 . I have heard the learned counsel for the parties and have gone through the records of the case. 5. Undisputedly, the entire case of the petitioner hinges around the order passed by this Court on 18.11.2006, therefore, the said order is being reproduced in extenso and reads as follows:- “18.11.2008 : Present: Mr. Ajay Sharma, Advocate for the petitioner. Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Additional A.G. for respondents No. 1 to 3. Mr. Ramakant Sharma, Advocate for respondent No. 4. It is not disputed by the parties that the Rules relating to terms of the working conditions of the Shivalik Cooperative Rosin and General Mills Limited, Gagret, Tehsil Amb, District Una have been framed during the pendency of this writ petition. It is also not disputed by the parties that the petitioner was granted higher salary on the basis of resolutions dated 26.6.2001 and 11.1.2003. The only controversy involved is whether this hike could be given to the petitioner without seeking permission of the State Government under rule 56 (3) of the Himachal Pradesh Cooperative Societies Rules, 1971. In order to mitigate the hardship of the petitioner, on the previous date of hearing, the Court observed that the learned Senior Additional Advocate General may seek instructions whether the salary which has already been enhanced on the basis of two resolutions dated 26.6.2001 and 11.1.2003 could be regularized or not. The learned Senior Additional Advocate General on the basis of the instructions imparted to him by the Registrar, Cooperative Societies, Himachal Pradesh submits that the enhanced/hiked salary on the basis of two resolutions dated 26.6.2001 and 11.1.2003 need not be refunded by the petitioner. In other words, the petitioner has been held entitled to this enhanced salary. Accordingly, in view of the observation made hereinabove, the present writ petition has become infructuous and the same is dismissed having become infructuous. However, if the petitioner is still aggrieved, in any manner, she has absolute liberty to approach the appropriate forum for the redressal of her grievances. Accordingly, in view of the observation made hereinabove, the present writ petition has become infructuous and the same is dismissed having become infructuous. However, if the petitioner is still aggrieved, in any manner, she has absolute liberty to approach the appropriate forum for the redressal of her grievances. There will, however, be no order as to costs.” The contention of the petitioner is that once this Court had adjudicated upon the resolutions dated 26.6.2001 and 11.1.2003, the respondent-Society could not have withdrawn these resolutions and this amounts to willful disobedience of the orders passed by this Court. 6. I have perused the order and find that this Court has in no manner adjudicated upon the validity of resolutions dated 26.6.2001 and 11.1.2003. It appears that these resolutions which proposed the hike in salary had been passed without seeking the prior approval of the Registrar as contemplated under Rule 56 (3) of the Himachal Pradesh Co-operative Societies Rules, 1971, which reads as follows:- “56 (3) No Co-operative society shall employ a salaried officer or servant with total monthly emoluments exceeding rupees 'one hundred’ without the previous permission of the Registrar. The promotion of an employee to a higher post shall be deemed to be an appointment under this sub-rule.” 7. It was in order to mitigate the hardship of the petitioner at that time the Registrar had been asked as to whether the two resolutions aforesaid could be regularized or not. The Registrar had categorically stated that the enhanced/hiked salary on the basis of the aforesaid two resolutions need not be refunded by the petitioner and consequently for this period the petitioner had been held entitled to this enhanced salary. 8. This is a classical example of “fence eating the crop”. The order passed by this Court has been totally misread by the petitioner to claim enhanced salary. The petitioner knowing fully well that the total income of the Society is only Rs.28,000/-, would still claim continuity of the enhanced salary of Rs.40,000/-, that too by misinterpreting the order passed by this Court. How the society runs its affairs is best left to do the Society to decide and the Courts would loathe to interfere in such matters. The petitioner knowing fully well that the total income of the Society is only Rs.28,000/-, would still claim continuity of the enhanced salary of Rs.40,000/-, that too by misinterpreting the order passed by this Court. How the society runs its affairs is best left to do the Society to decide and the Courts would loathe to interfere in such matters. Even while passing order on 18.11.2008 (supra), the Registrar had only informed that the salary paid to the petitioner need not be refunded by her for the period she had been paid enhanced salary but nowhere had this Court upheld her claim for enhanced salary for the future. 9. That apart, the present petition would not be maintainable in view of the reliefs sought by the petitioner, which are primarily directed against the respondent No. 3-Cooperative Society, in view of the ratio laid down by the Hon’ble Supreme Court and this Court not only in the judgments referred to by respondent No. 1 in its reply, (as quoted herein above) but also in view of the subsequent judgment delivered by Division Bench of this Court in Laxmi Narain and others Vs. Kuldeep Singh and others, LPA No. 236 of 2011 and Sanjeev Kumar and others Vs. State of H.P. and others, CWP No. 6709 of 2013. Accordingly, I find no merit in this petition and the same is dismissed leaving the parties to bear their costs. COPC No. 1076 of 2013 10. By way of this petition, the petitioner has sought to initiate proceedings of contempt against the respondents on the strength of the following observations made by this Court while adjudicating CWP No. 266 of 2004, decided on 18.11.2008:- “In other words, the petitioner has been held entitled to this enhanced salary.” 11. It is claimed that the respondent No. 3 by passing the resolutions on 10.7.2012, 18.7.2012, 11.8.2012, 28.8.2012 and order dated 10.9.2012 has set at naught the order passed by this Court on 18.4.2008, thereby denied the due and admissible salary to the petitioner. 12. I have already held above that the order passed by this Court on 18.11.2008 only states that no recovery shall be made from the petitioner for the period she has worked on the enhanced salary, but the said order in no manner adjudicates upon the rights of the petitioner to claim the said salary after the passing of the order. I have already held above that the order passed by this Court on 18.11.2008 only states that no recovery shall be made from the petitioner for the period she has worked on the enhanced salary, but the said order in no manner adjudicates upon the rights of the petitioner to claim the said salary after the passing of the order. In other words, it only adjudicates upon the rights of the petitioner for the salary already received by her, which was sought to be recovered. In fact the petitioner by quoting a stray sentence has tried to mislead this Court to claim the enhanced salary. The entire order dated 18.11.2008 has already quoted in extenso (herein above) does not support the claim of the petitioner. Accordingly there is no merit in this petition also and the same is dismissed.