District Co-operative Agriculture Rural Development Bank Ltd. vs Joint Registrar and Another

K.K. Lahoti, J.

Petitioner feeling aggrieved by the order Annexure P-6 dt. 20th September 2002, by Joint Registrar, Cooperative Societies Rewa Camp, Bhopal in Case No. 80-170/2002 (Prabhakar Singh Vs. District Cooperative Agricultural/Rural Development Bank, Sidhi) has filed present petition. The Joint Registrar by allowing the revision filed by respondent Prabhakar Singh, set aside the order of petitioner dt. 26.7.2002 retiring him compulsorily.

Short facts of the case are that respondent Prabhakar Singh was working in the Bank since 1974. He was given various promotions. Last promotion was given to him in the year 1998 as Senior Branch Manager. Thereafter vide impugned order dt. 26.7.2002 as per decision of Staff Sub-committee, he was retired compulsorily. Against the order dt. 26.7.2002, respondent filed revision u/s 80-A of M.P. Cooperative Societies Act, 1960. The Joint Registrar, Cooperative Societies considering the merit of the case, set aside the order on following grounds :-

A. That the confidential report of entire period of respondent/Prabhakar Singh were not considered.

B. The criteria for compulsory retirement was not formed.

C. The various charges against the respondent Prabhakar Singh were considered.

D. Before arriving at a decision by the Sub-committee, last five years A.C.R. of respondent/Prabhakar Singh were not taken into consideration.

E. The respondent/Prabhakar Singh was promoted in the year 1998, which pre-supposes that he was given promotion on the basis of Good confidential report.

F. Under Service Rule 71 (1) before deciding compulsory retirement of petitioner, it was necessary for the Staff Sub-committee to invite Members of employees Union or the employee should be given opportunity to know in this regard.

Considering the aforesaid the Joint Registrar found that the order retiring compulsorily respondent no. 2 is bad in law and it was set aside.

Aggrieved by the aforesaid order present petition has been filed.

Learned counsel for petitioner contends that the aforesaid order is bad in law. He contends that before deciding the compulsory retirement of respondent no. 2 the Staff Sub-committee has considered personal file of respondent no. 2, including various allegations against the respondent no. 2, like illegal appointments by him, various promotion orders issued by respondent no. 2. The last four years record of respondent no. 2 was also considered by Staff Sub-committee. The service book of petitioner was also placed before the Staff Sub-committee, which fact finds place in para 5 of the order of Staff Sub-committee. Contending aforesaid, learned counsel for petitioner contends that the Joint Registrar has not considered the settled law for compulsory retirement by Apex Court. He placed reliance to the Apex Court judgment in cases:

(a) Union of India Vs. P.S. Dhillon, in which the Judicial Member of income tax Appellate Tribunal was prematurely retired, because of various complaint against him, by his colleagues, members of bar and also by his wife.

(b) Posts and Telegraphs Board and others Vs. C.S.N. Murthy, /, wherein the Apex Court held that subjective satisfaction of the reviewing authority is not open to the Court''s interference, in absence of any mala fide. While retiring compulsorily, even though earlier record may be, of throughout good, but two adverse remarks in the last two years constitute sufficient material for arriving at the subjective satisfaction of the committee. In absence of any material showing perversity, arbitrariness or unreasonableness, the order of compulsory retirement cannot be set aside.

(c) Madan Mohan Choudhary Vs. The State of Bihar, , wherein the Apex Court held that in passing order of compulsory retirement, if un-communicated adverse remarks in confidential report is considered, will not vitiate order of compulsory retirement, if such a remark is recorded in normal course.

(d) State of Gujarat Vs. Umedbhai M. Patel, , wherein the Apex Court held that the order of compulsory retirement is not to be treated as a punishment.

(e) State of U.P. and others Vs. Vijay Kumar Jain/ (2002) 3 SCC 641/ wherein the Apex Court held that relevant period for considering service record is entire service record, character roll or confidential report, which may be taken into consideration while retiring compulsorily an employee. In the case of compulsory retirement judicial review is not permissible except on the ground of arbitrariness or the order is not in public interest.

Relying on the aforesaid, learned counsel for petitioner contends that the order passed by Joint Registrar deserves to be set aside.

Learned counsel for respondent no. 2 contends that respondent no. 2 entered into the service of Bank in the year 1974. His entire career is unblemished. In his last twenty eight years of service he was granted two promotions, one in the year 1983 and second in the year 1998 to the post of Senior Branch Manager. Performance of respondent no. 2 was always exceptional. He was also Incharge General Manager for some time. In the year 1998 when respondent no. 2 was officiating as General Manager, he had lodged criminal complaint in his official capacity against the present President of the petitioner Bank Shiv Bahadur Singh, who was then, one of the Director in the Board of Directors of the Bank. The criminal complaint was also registered against some officers of the Bank. There were charges of corruption and serious irregularities. On the basis of complaint lodged by the respondent no. 2, the criminal case was registered against the present Chairman of the Bank. Respondent no. 2 has also sought explanation from the present Chairman Shiv Bahadur Singh, which is apparent from Annexure R-1 dt. 6.9.97. All this has caused annoyance to Shiv Bahadur Singh against respondent no. 2. After new managing body of the Bank was constituted, Shiv Bahadur Singh was elected as President of petitioner/Bank and respondent no. 2 was placed under suspension. The order of suspension was challenged by respondent no. 2 in a petition filed before Joint Registrar, Cooperative Societies, Bhopal. The order of suspension was found prima facie illegal and it was stayed. Departmental Enquiry was also initiated against respondent no. 2 on the basis of charge contained in Annexure R-2. The aforesaid Departmental Enquiry was also stayed by Joint Registrar as it was found prima facie against the rules. The respondent no. 2 was directed to be re-instated by the order of Joint Registrar. As the Chairman of Bank failed to weed out respondent no. 2 in his aforesaid act, consequently Chairman has compulsorily retired the respondent no. 2 by the impugned order, which is prima facie mala fide and has been issued in a revengeful attitude by Chairman because of the action taken by the respondent no. 2 in the year 1998 against him. The procedure envisaged under Rule 71 (1) of service Rules was not followed.

No member of Employees Association was invited in the Staff Subcommittee, while considering the case of respondent no. 2 for compulsory retirement. This was mandatory requirement of law and if such Members of the Union was not available, then respondent no. 2 ought to have been informed by the Bank the reasons for compulsory retirement, which is mandatory requirement under the proviso of Rule 71(1) of the Rules. The record of respondent no. 2 was not considered by Staff Sub-committee. The A.C.R.s of respondent no. 2 were not placed before the Staff Sub-committee and the order is based on extraneous reasons, which are not in existence. All this has been considered by Joint Registrar in his order Annexure P-6. In these circumstances, if the order is just and proper and justice has been done then this Court should not exercise writ jurisdiction in quashing the aforesaid order.

Learned counsel for respondent no. 2 has placed reliance on Apex Court judgment 2001 (2) AWC 1445 (SC) , wherein Apex Court held that the judicial interference is justified when the screening committee reached to a conclusion to retire the employee in public interest on certain supposed misdemeanors. Service record as well as A.C.R.s for the current year, showing the integrity of respondent to be sound, then the conclusion of committee will not be based on any material, justifying the order of compulsory retirement.

Contending the aforesaid, learned counsel for respondent no. 2 contends that present petition is devoid of any substance. The order of Joint Registrar is just and proper. The Joint Registrar was having jurisdiction to set aside the order u/s 80-A of the Act, in which no infirmity or perversity could be pointed out by the learned counsel for petitioner. In the circumstances, this petition may be dismissed.

To consider the rival contention of parties, firstly Rule 71 (1) is to be seen.

Rule 71 (1) Every employee of the Bank other than Peon, senior peon and Jamandar shall be superannuated on reaching the age of 58 years. The age of retirement of peon, senior peon and Jamadar shall be 60 years,. The committee may enhance the age of superannuation of any employee up to the period of two years if in the opinion of the committee the services of such employees are necessary and he is physically capable of performing the work. For this purpose the certificate from the Civil Surgeon shall be required, but in every such cases of extension the reasons for extension shall be described in detail and not in writing and further the approval of the Registrar shall be necessary.

Further an employee on reaching the age of 55 years or on completion of 25 years of his services whichever is earlier shall be retired from the services of the Bank without assigning any reason by giving 3 months notice or 3 months wages and allowances in lieu of such notice. But further an employee of the Bank shall be immediately retired and on such retirement the employee as such be given notice for such period but the employee as such would be entitled to pay 3 months of wages along with allowances at the same rate which he was drawing the salary and wages before his superannuation and employee shall be entitled to pay the equal amount.

But the following restrictions shall be there

(a) the new appointment on the vacancy, arisen out of the employees as such superannuated shall not be filled up without prior permission of the Registrar.

(b) the employee terminated on the basis of aforesaid provision shall be free to file their cases u/s 55(2) of the M.P. Cooperative Societies Act, 1960.

Under the law framed by the Madhya Pradesh relating to right to information and also to maintain transparency it will be necessary that the concerned employee and the association of employees must be informed as to which employee is terminated for which reason, for this one of the representative shall be invited by the Staff Committee in its meeting in which the decision is to be taken against any employee under Rule 71 (1) is proposed if in case the representative of any association of employees does not remain present in such meeting of the staff committee in spite of receiving the information then the staff committee shall be free to take a decision against such employee, meaning thereby that absence of representative of the association of employees may not create any obstacle due to their non availability.

That, the Registrar under the M.P. Cooperative Societies Act, 1960 shall have power of review. The employee may voluntarily leave his services on reaching the age of 58 years or after completion of 20 years of services whichever is earlier by giving 3 months notice of retirement.

(Translation as supplied by petitioner)

The aforesaid Rule provides that if the employee has completed 55 years of age or 25 years of service tenure, he may be retired by 3 months notice, but the proviso provides that under the right of information and to make transparency in the Bank, it will be necessary to inform the employee and to the Union of employees, why an employee is being compulsorily retired. For this purpose one representative of Employees Union should be invited in the meeting in which any action is to be taken under the Rule 71(1). The aforesaid order may be reviewed by the Registrar u/s 80-A of the Act. Admittedly in this case no representative of Union was called.

Learned counsel for petitioner contends that in fact there is no Union working at presently. If no Union was working then it was necessary for the petitioner to inform the employee and to seek explanation before passing the order of retirement or the employee should be invited in the meeting so that, he should know the reasons on which he is proposed to be retired compulsorily, which is mandatory requirement of the Rule. But in the present case aforesaid requirement was not followed. Apart from this, it appears that previously the employee was suspended and charge sheet was issued. The suspension order of respondent was stayed by the Joint Registrar and thereafter the Departmental Enquiry was also stayed by the Joint Registrar. The matter was sub-judice before the Joint Registrar. In the meantime, petitioner retired compulsorily the respondent no. 2, by the impugned order. From the perusal of order Annexure P-2 it is apparent that the confidential report of respondent no. 2 were not considered. The allegations which were formed part of order are the same on which Departmental Enquiry was initiated against the respondent no. 2. The background of all this is apparent, the justified act of respondent no. 2 who has initiated action against Shiv Bahadur Singh the then Director of Board, who subsequently become Chairman of the Bank and at presently is holding the aforesaid office and to take revenge against respondent no. 2 has passed order Annexure P-2. The respondent no. 2 who was promoted in the year 1998 on the post of Senior Branch Manager, the petitioner ought to have explained the circumstances after 1998 justifying the action of compulsory retirement of respondent no. 2. From the perusal of impugned order Annexure P-2 it appears that order ''was passed without considering the particulars of allegation against the respondent no. 2. The adverse confidential reports were also not considered by Staff Sub-committee.

Considering the aforesaid, the Joint Registrar has rightly set aside the order passed by Staff Sub-committee. The order Annexure P-6 is based on sound reasoning in which I do not find any infirmity, perversity or lack of jurisdiction. The aforesaid order was passed after considering all the facts and circumstances of the case. The Joint Registrar has exercised his powers u/s 80-A of the Act,'' in which I do not find any infirmity. The cases relied upon by learned counsel for petitioner relates to fundamental rule 56, which is little different with the service condition No. 71 (1) of the Rules. In the circumstances, the aforesaid cases relied upon by the learned counsel for petitioner did not apply in the present case. Even from the perusal of Annexure P-2, the material placed before the Staff Sub-committee was not sufficient to arrive at a conclusion for retiring compulsorily respondent no.2. In view of aforesaid, the Joint Registrar has rightly interfered with the order of compulsory retirement and I do not find and infirmity in the said order, warranting interference in writ jurisdiction by this Court in exercise of powers under Article 226/227 of the Constitution of India.

Accordingly, this petition lacks merit and is dismissed with no order as to costs.