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2020 DIGILAW 267 (UTT)

Daya Ram Verma v. State Of Uttarakhand

2020-07-06

SHARAD KUMAR SHARMA

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JUDGMENT Sharad Kumar Sharma, J. - Before start of the argument, counsel for respondent No. 2, Mr. C.S. Rawat, has raised the preliminary objection with regard to the maintainability of the Writ Petition, on the ground that respondent No. 2, which is the Cooperative Cane Development Union, under which, the Sugar Mill is operating, is not a state under Article 12 of the Constitution of India. Hence, he submits that this Writ Petition would not be maintainable. Let me answer and meet this preliminary question raised by the learned counsel for the respondent No.2, that too, after the order of this Court dated 15.10.2019, inviting counter affidavit, after hearing the counsel for the respondent, and not even that after filing counter affidavit on 18.02.2020, without raising a plea of maintainability at the threshold itself. 2. The Cooperative Societies Act, under the Old Act of 1965, as well as the Act of 2003, called as the Uttaranchal Cooperative Societies Act, 2003, as notified, in the official gazette on 21.05.2003, and as made applicable to the State of Uttarakhand, in its Section 9 provides the legal status to the Cooperatives, as to be a Body Corporate. Section 9 of the Uttarakhand Co-operative Societies Act, 2003, which is quoted hereunder :- "9. Co-operative society to be bodies corporate - The registration of a society shall render it a body corporate by the name co-operative society under which it is registered, having perpetual succession and a common seal, and with power to hold property, enter into contracts, institute and corporate defend suits and other legal proceedings and to do all things necessary for the purpose for which it was constituted." 3. By virtue of which, the Cooperatives have been made entitled to register themselves with the Registrar Cooperative Societies of the State, and have their perpetual succession, common seal and the power to hold property and to conduct its business independently, and has been vested with legal right to sue and be sued as an independent legal entity. 4. Besides this, in view of the Constitution Amendment made by insertion of Article 43-B of the Constitution of India, which was amended by way of 97th Amendment Act of 2011 w.e.f. 15th February, 2012, the State has been vested with the responsibility, to make all endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of the Cooperative Society. Thus Cooperative thus registered aims to meet and augment the constitutional objective. "[43-B. Promotion of co-operative societies. - The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies." 5. On harmonious reading of Article 43-B to be read with Section 9 of the Act of 2003, and particularly in the light of the relief sought for in the Writ Petition, i.e. with regard to the remittance of provident fund, gratuity, leave encashment, arrears of ACP and arrears of the recommendation of 6th and 7th Pay Commission, they all fall to be within a legally enforceable statutory rights created in favour of the employees, which was payable to them under the directives issued by the Government, from time to time by the various government orders, office memorandum and even the Act, and also based on the recommendation of Pay Commission, hence, too, the nature of relief sought for in the Writ Petition, would fall to be for an enforcement of an statutory right, which will fall to be within the beneficial domain of the rights of employee for even those, who are working in the Cooperative Societies, hence, the rights sought to be enforced by the Writ Petition, would fall to be an enforcement of right created under law, which will be within Article 13 of the Constitution, which defines law. "13. Laws inconsistent with or in derogation of the fundamental rights. - (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,- (a) " law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; (b) "laws in force" includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. [(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.]" 6. Apart from it, what has been reflected from the arguments of the counsel for the parties, it is that there had been earlier litigations also in relation to the same society and that too, for the remittance of the gratuity, leave encashment, arrears of salary and benefits of the recommendations of 6th and 7th Pay Commission, for example that of the judgment dated 12th March, 2019, as rendered by the Coordinate Bench of this Court in three connected Writ Petitions, with leading Writ Petition, being Writ Petition No. 1476 of 2018, but, no such plea of maintainability of the Writ Petition has been raised therein or pressed by respondent No.2, and the judgment has been rendered by the Court on 17.09.2019, which has attained finality, and benefits has determined, therein has been paid to the petitioner, therein the Writ Petition. 7. The bunch of Writ Petition, which too related to the retired employees of Cooperative Cane Development Societies Ltd. of District Udham Singh Nagar, and the Writ Petitions were filed for enforcement of identical relief as pressed in the present Writ Petition. The bunch of Writ Petitions were disposed of by the judgment dated 19.07.2019, with leading Writ Petition No. 1382 of 2019, Mohd. Irfan Vs. State of Uttarakhand and others. The bunch of Writ Petitions were disposed of by the judgment dated 19.07.2019, with leading Writ Petition No. 1382 of 2019, Mohd. Irfan Vs. State of Uttarakhand and others. The respondent No.2, herein, in the present Writ Petition, was a party in the aforesaid bunch of Writ Petitions, but yet again no such plea regarding maintainability of Writ Petition was taken, nor was pressed, rather to the contrary the respondent No.2, has accepted the propriety of the said judgment, hence, in fact, principally the respondent No.2 has submitted to the jurisdiction of Writ Courts, and has accepted the decisions rendered therein. [See , L. Hirday Narain Vs. Income Tax Officer Bareilly, (1971) AIR SC 33 , Dr. Bal Krishna Agarwal Vs. State of U.P. and others, (1996) 2 UPLBEC 1055 ]. 8. In response, Mr. C.S. Rawat, Advocate, submits that in these Writ Petitions decided earlier, some other counsel represented respondent No.2, this Court is of the firm view that with the change of Counsel for the same respondent, in subsequent Writ Petition, will not grant them liberty to raise a plea, contrary to the earlier stand taken by them. Even otherwise, the plea of maintainability, should normally be taken at the sage of inception of the proceedings and not at a later stage after exchange of pleadings, when parties have ventured to address the Court on merits of their case by filing their respective pleadings. Even that too when such a plea of maintainability of the Writ Petition, has not been agitated in their counter affidavit. Hence, at this belated stage, respondent No.2, for the reasons given above cannot raise a belated plea of maintainability of the Writ Petition. 9. Similarly, there had been other Petitions also and a Bunch of Writ Petitions with the leading being Writ Petition No. 1382 of 2019, wherein, yet again, another Coordinate Bench has rendered a judgment on 19.07.2019, dealing with the issue in relation to the same Society of respondent No. 2, which too decided the same issue. Even another Writ Petition No. 2121 of 2019, was also decided based on earlier judgment dated 19.07.2019, rendered in Writ Petition No. 1382 of 2019, Mohd. Irfan Vs. State of Uttarakhand and others and other analogues matters. 10. Even another Writ Petition No. 2121 of 2019, was also decided based on earlier judgment dated 19.07.2019, rendered in Writ Petition No. 1382 of 2019, Mohd. Irfan Vs. State of Uttarakhand and others and other analogues matters. 10. In view of the fact that the said plea was never raised or pressed at that point of time, though this Court being conscious of the fact that there cannot be a vesting of a jurisdiction on account of non raising of a plea of maintainability in a proceeding, but owing to the reasons already assigned above, I hereby, hold that since Writ Petition is for an enforcement of the statutory right of the determination of retiral dues of gratuity, payable under the Central Legislation, leave encashment and the arrears of the 6th and 7th Pay Commission, they will fall to be within the ambit of Article 21 of the Constitution of India and, hence, owing to the provisions of Section 9 of the Act to be read with Article 43-B of the Constitution of India, the Writ Petition would be maintainable, for the nature of relief claimed and on account of earlier judgments. 11. The petitioners, herein, admittedly had been working with the respondents and they attained their respective age of superannuation as described in para 3 of the Writ Petition, i.e. 31st May, 2016, 13th December, 2016 and 31st March, 2019 and 31st August, 2015, respectively. The prayer in the Writ Petition, which the petitioners modulated is to the following effect, which is quoted hereunder :- "I. To issue a writ order or direction in the nature of mandamus directing the respondents to pay the amount of provident fund, gratuity, leave encashment, arrears of ACP and the arrears of 6th and 7th pay commission to the petitioners. II. Any other relief which this Hon'ble Court may deem fit and proper, may kindly be awarded in favour of the petitioners and against the respondents. III. Award the cost of the petition in favour of the petitioners and against the respondents." 12. Payment of retiral dues, gratuity and the leave encasement is as of right because they fall to be within the ambit of the retiral dues payable under law. Even otherwise also, the respondent No. 2, who had filed the counter affidavit under the affidavit of Mrs. Payment of retiral dues, gratuity and the leave encasement is as of right because they fall to be within the ambit of the retiral dues payable under law. Even otherwise also, the respondent No. 2, who had filed the counter affidavit under the affidavit of Mrs. Sandhya Pal, as a Secretary, Cooperative Cane Society, Sitarganj, District Udham Singh Nagar, in para 4 of the counter affidavit has raised the following plea, which is quoted hereunder :- "4. That the contents of the paragraph no. 2 of the writ petition are only the prayer of the petitioners and for disbursing the said amount the answering deponent made endeavour from her end and without having any sufficient budget/payment the answering deponent not is a position to disburse the dues payment of the all petitioners, the Sugar Mill did not release the entire dues amount towards the commission of the society did not released as yet, due to the reason the present controversy arises after receiving the said entire dues amount from the sugar mill, the entire dues amount of the petitioner will be disbursed." 13. The defence taken therein by respondent No.2, is though, that she admits their liability and of the entitlement of the petitioner for the aforesaid benefits prayed for retiral dues, but the inability has been expressed by respondent No.2, on account of lack of contribution being paid to them by the Sugar Mill. The remittance of contribution to be paid to the society by the Sugar Mill, is not falling within the domain / competence or control of the petitioners, who are retired employees. The liability of remittance of retiral dues prayed for, admittedly, vests with respondent No. 2. Hence, it falls to be within the domain of their administrative decisions making process, to ensure the remittance of contribution by the Sugar Mills in order to enable the respondent No. 2, to remit the retiral dues prayed for by the petitioner. The respondent No.2, is liable to have made efforts for ensuring deposit of contribution of Sugar Mills, inaction on their part in getting contribution deposited by Sugar Mils, petitioners who are retired employees cannot be made to suffer, for by non remittance of legal admitted dues. 14. The respondent No.2, is liable to have made efforts for ensuring deposit of contribution of Sugar Mills, inaction on their part in getting contribution deposited by Sugar Mils, petitioners who are retired employees cannot be made to suffer, for by non remittance of legal admitted dues. 14. The amount sought to be released by virtue of the reliefs sought in the Writ Petition are the admitted, statutory entitlement of a retired employee, which he or she is bound to be remitted by the employer on the closure or eve of his appointment, on account of retirement, which under no circumstances, even for that matter the financial dearth with the employer, can never constitute to be a valid reason to withhold the amount, more particularly in the present case when respondent in their pleading admits their liability to pay and petitioners legal entitlement to receive. Hence, it can under no circumstances be curtailed by respondents and too without there being any logical rationale behind the curtailment of a statutory right of a retired employee. 15. In that view of the matter, this Writ Petition is being disposed of in the light of the judgments as referred above and the respondent No.2, is hereby directed to remit the retiral dues payable to petitioner Nos.1 to 3 (petitioner No.4 has already been paid his retiral dues, as prayed in the Writ Petition, hence Writ Petition is not pressed on his behalf) in accordance with law within a period of six weeks from the date of presentation of the certified copy of the judgment. 16. The Writ Petition accordingly stands allowed, subject to above directions, which is issued by way of a writ of mandamus. 17. However, there would be no order as to cost.