Punjab State Co-operative Supply and Marketing Federation Ltd. vs Shri B.S. Aulak and Others

This Judgment has been overruled by : Punjab State Co-operative Supply and Marketing Federation Ltd. Vs. B.S. Aulakh and others, AIR 1997 SC 2001 : (1997) 4 JT 597 : (1997) 3 SCALE 515 : (1997) 4 SCC 756 : (1997) 3 SCR 747 : (1997) AIRSCW 1787 : (1997) 4 Supreme 7 : (1997) 4 Supreme 702

N.K. Kapoor, J.—Punjab State Co-operative Supply and Marketing Federation Ltd. (for short "the Markfed") has filed this appeal challenging the judgment and decree of the Additional District Judge whereby the appeal filed by the plaintiff has been accepted resulting in decreeing his suit as prayed for, on the ground that the impugned judgment and decree is illegal and hence unsustainable.

Plaintiff filed a suit for declaration to the effect that the resolution dated 20.12.1977 passed by the Board of Directors of Sugarfed-defendant No. 1 vide which post of Plant Protection Officer which the plaintiff was holding was abolished is illegal .null and void and not binding upon the plaintiff with a further prayer that the plaintiff continues to be an employee of Markfed and so entitled to all consequential benefits of pay, allowance etc. The plaintiff also sought permanent injunction restraining defendant No. 1 from filling the post of Chief Cane Development Officer.

Briefly put the case of the plaintiff is that he was appointed as a Plant Protection Expert vide appointment letter dated 7.12.1972 by the Markfed (the present appellant) pursuance to which he joined on 13:12.1972. On 12.6.1973 a termination order was passed by the Establishment Officer. Aggrieved by this order, the plaintiff filed appeal and it is during the pendency of this appeal that by some mutual agreement between Markfed and Sugarfed the services of the plaintiff were lent to Sugarfed. As per this arrangement, the petitioner was to be posted as Plant Protection Officer in Sugarfed and the salary to be paid to the plaintiff was to be shared 50-50% by the Markfed and Sugarfed. It is pursuance to this arrangement that plaintiff joined Sugarfed on 9.11.1973 and served the organisation without any blemish. It is on 19/20-12-1977 when the plaintiff was on earned leave that the impugned notice dated 20.12.1977 was passed by the Board of Directors of the Sugarfed abolishing post of the plaintiff which resolution is being impugned in the present suit on the ground (i) that the plaintiff was on deputation with Sugarfed and so continues to be an employees of the Markfed. Thus it was not within the competence of the Board of Directors of Sugarfed to pass such a resolution; (ii) that the meeting of the Board of Directors dated 20.12.1977 cannot be said to be legally constituted meeting of the Board of Directors as neither the Registrar, Co-operative Societies nor Labour Commissioner were personally present; (iii) that neither the order passed in the meeting dated 20.12.1977 were conveyed to the plaintiff nor an opportunity of hearing was afforded to him before passing such order which is clearly violative of principles of natural justice; and (iv) that he came to know of the same vide letter PSE/PBO/694 dated 14.4.1980 when payment was sent by the Sugarfed including one month salary in lieu of notice period. At no stage the plaintiff relinquished his charge and thus continues to be in the employment of the defendant. Lastly, the Sugarfed is not the appointing authority of the plaintiff and thus was not competent to relieve him.

Sugarfed - defendant No.1 - filed written statement and took some preliminary objections. Firstly, the suit is not maintainable; secondly, the suit is barred by limitation as the plaintiff is challenging the resolution dated 20.12.1977. Thirdly, the suit in the present form is barred as per provisions of the Punjab Cooperative Societies Act, 1961. Fourthly, since the plaintiff claims himself to be an employee of the Markfed, no decree can be passed against defendant No. 1. On merits, it was averred that the plaintiff was appointed vide order dated 8.11.1973 who joined the organisation on 9.11.1973 and continued to hold the post upto 20.12.1977. It was, however, averred that the plaintiff is not concerned as regards (he internal arrangement between defendant No. 1 and 2. It was further stated that the post of Plant Protection Officer was abolished vide resolution dated 20.12.1977. It was denied that the plaintiff was on earned leave.

Markfed-defendant No. 2 - filed separate written statement raising objection as to the maintainability of the suit against defendant No. 2 on the ground that the plaintiff ceased to be an employee of the Markfed. Since he had been relieved during the period of probation, he had no lien. Even otherwise, the suit is time barred. Lastly, the suit is not maintainable against defendant No. 2 nor in ''he present form. Other material averments of the plaint were denied.

On the pleadings of the parties, following issues were framed:-

1/ Whether the suit is not maintainable as alleged ? OPE).

2/ Whether the suit is within limitation ? OPP

3/ Whether the plaintiff is employee of defendant No. 1 or defendant No. 2 ? Onus on parties.

4/ Whether resolution dated 20.12.1977 passed by defendant No.1 is illegal, null and void. If so, its effect 7 OPP.

5/ Whether the plaintiff is entitled to the declaration as prayed for ? OPP.

6/ Relief.

Issue No. 1 was decided in favour of the plaintiff and against the defendants. Under issue No. 3, it was decided that the plaintiff is an employee of Sugarfed and not an employee of Markfed. Issue No. 4 and 5 were decided against the plaintiff holding that the resolution dated 20.12.1977 was validly passed by defendant No.1 and this way the plaintiff was not entitled to the declaration as prayed for. Resultantly, the suit of the plaintiff was dismissed vide judgment and decree dated 20.11.1987.

The lower appellate Court after carefully perusing the various documents relied upon by the appellant came to the conclusion that the plaintiff was an employee of the Markfed and was on deputation with Sugarfed when the post of Plant Protection Officer held by him was abolished on 20.12.1977. As regards the plea of bar of limitation taken up by the Sugarfed - defendant No. 1 - the lower appellate Court affirmed the finding of the trial Court on the ground that even if it be taken that the resolution dated 20.12.1977 came to the knowledge of the plaintiff on 14.4.1980 when a month''s salary in lieu of notice was sent to him, yet the suit having been filed on 28.10.1983, the same is barred by limitation. As regards defendant No.2 - Markfed - it was held that the same is without limitation on the ground that the order of discharge dated 12.6,1973 having been declared null and void by the Chief Minister vide his order dated 26.4.1977 (Exhibit P-8/19), there is no order of termination, removal or dismissal of the plaintiff from the Markfed. Besides this, defendant No. 2 - Markfed - even denied the receipt of notice issued u/s 79 of the Punjab Co-operative Societies Act read with section 80 of the CPC as stated in para No. 18 of the Plaint, the Court held that it is on 5.9.1983, the order of Registrar, Co-operative Societies Punjab (Exhibit P-8/29), that the Markfed for the first time denied the claim of the plaintiff. This way the suit was held to be within limitation against Markfed and finding of the trial Court was reversed to that extent. Thus, in view of the finding that the order of termination passed by defendant No. 2 was null and void, the plaintiff was held to be an employee of the Markfed and thus his claim decreed as prayed for.

Learned counsel for the appellant has assailed the finding of the lower appellate Court on the ground that the same is on account of misreading of. relevant documents and otherwise too not legally sustainable. The learned counsel for the appellant in his usual methodical manner read the appointment letter dated 7.12.1972, order of discharge dated 12.6.1973 and the plaintiff consequently joining Sugarfed on 9.11.1973 and holding the office of Plant Protection Officer till the post was abolished on 20.12.1977. On the basis of these documents the .counsel with some amount of vehemence urged that the plaintiff was relieved during his probation period on 12.6.1973 and so had ceased to have any lien upon he post in the Markfed. This fact is otherwise also proved on ''record that the plantiff joined Sugarfed as Plant Protection Officer on 9.11.1973 and whose ser-ices were later on regularised by defendant No. 1. Criticising the approach of the lower appellate Court who laid some emphasis with regard to payment of alary to be paid to the plaintiff and to be shared by the Markfed as well as Sugarfed (SO-SO %), the counsel urged that this was an internal arrangement between the two organisations. This by itself could not deem to clothe the plaintiff with any right of a lien with defendant No.2 as held by the lower appellate Court. Further arguing the counsel urged that the plaintiff, in fact, is guilty of fabricating some documents (Exhibit P-8/12) and thus he is liable to be prosecuted u/s 466 read with section 471 of the Indian Penal Code. Since the Court is seized of this matter, the Court may in exercise of powers u/s 195 of the Code of Criminal Procedure proceed, with his prosecution as well as for having committed the contempt of Court (CM No. 2188-C of 1993 in RSA No. 2240 of 1991). Elaborating the counsel stated that the document Exhibit P-8/12 (certified copy) is at variance with the photocopy, copy of which the plaintiff has been able to procure from the records of Sugarfed. According to the counsel, as per photocopy, after the words, To elucidate, this half will include his pay and allowances, words are, ''However, Sh. Aulakh will be working as an employee of the Punjab State Federation of Co-operative Sugar Mills Ltd, whereas in Exhibit P-8/12 (certified copy issued by the Registrar, Co-operative Societies) it reads as, Shri Aulakh will be an employee of Marketing Federation but will work in Punjab State Federation of Co-operative Sugar Mills Limited till he is recalled" According to the counsel since the documents tendered in evidence were certified copies of the various orders/communications, he had no reason to doubt and so did not raise any objection either with regard to their admissibility or to the authenticity of the documents. It is only during the pendency of the present appeal that this fact has come to the notice of the appellant and so this matter be got examined by the Court afresh before relying upon the same. In addition thereto, the counsel urged that the suit of the plaintiff is per se barred as his services were terminated by the Markfed on 20.12.1977 whereas the suit has been filed on 20.12.1983. Reliance was placed upon the decision of the apex Court'' in Case reported as State of Punjab and Ors. v. Gurdev Singh, Ashok Kumar 1 AIR 1991 S.C. 2219.

Learned counsel for the contesting respondent (plaintiff) with his usual brevity made reference only to the salient facts of the present case, namely, plaintiffs appointment as Plant Protection Expert on 13.12.1972, his illegal discharge on 12.6.1973 which was challenged by the plaintiff by way of appeal under the Punjab Co-op. Societies Act. According to the counsel, it is during toe pendency of the appeal that the plaintiff for the time being was ordered to be accommodated with Sugarfed. In fact, the plaintiff was on deputation as is clear from the order of Chief Minister, Punjab, (Exhibit P-8/19) dated 26.4.1977 which when translated reads as under-

" From the facts stated by the applicant and after keeping in view of the entire factual position it is proved that the applicant is an employee of the Markfed and has been sent to Sugarfed on deputation. The order passed by the Markfed dated 12.6.1973 is null and void and is, therefore, set aside. Clearly, the applicant has been re-instated on the post of Plant Protection Expert in Markfed and on this basis be should be paid wages by the Markfed from 13.6.1973 to 8.11.1973, and from 9.11.1973 the Markfed and Sugarfed should pay wages to the applicant half and half. There is no necessity to create unnecessary complications and the action be taken a: mentioned above. Sd/-

Dt. 26.4.1977. Chief Minister, Punjab (Giani Zail Singh)"

Chief Minister Punjab was also Minister for Co-operation during the period. A bare perusal of the aforesaid order clearly reveals that the salary for the period from 13.6.1973 to 8.11.1973 (gap between the order of discharge passed by the Markfed on 12.6.1973 and his subsequent joining Sugarfed or 9.11.1973) was ordered to be paid by the Markfed. The authenticity of this document is not being doubted by the appellant. This document when read in context of the case leaves no manner of doubt that the respondent continued to be an employee of the Markfed and was, in fact, deputed to Sugarfed as mutually agreed between Sugarfed and Markfed. Taking exception to assertion of the counsel for the appellant that certified copy of Exhibit P-8/12 is not the correct copy as per record, the counsel urged that this is mere figment of his imagination.

There is also no merit in the contention of the counsel for the appellant that respondent while approaching this Court by way of writ petition made mention of the document-letter date nil from the Registrar Co-operative Societies now exhibited P-8/12-which then did not contain the words "that Shri Aulakh will be an employee of the Marketing Federation but will work in the Punjab State Federation of co-operative Sugar Mills Ltd. till he is recalled." Perhaps the respondent then was not in possession of the true copy as now given by the office of the Registrar, Co-operative Societies (Exhibit P-8/12). Even otherwise, this contention when examined in the light of another document on record Exhibit P-8/4 totally belies the stand of the appellant. This letter is dated 43.1975 and the operative portion reads as under :

"This is with reference to your memo No. PSF/73/44/PPO/373 dated 5.2.1975 vide which the services of Sh. B.S. Aulakh P.P.E. has beer regularised retrospectively. The management agrees to his proposed confirmation on 7.5.1975 as P.P.E. Markfed in Sugarfed as per existing arrangement. However, he will continue in your Federation till he is recalled."

Meeting objection with regard to the limitation, the counsel urged that the services of the petitioner have not so far been terminated by the appellant. In fact, it is not even the case of the appellant. On the abolition of post in the Sugarfed, the plaintiff automatically becomes an employee of the Markfed and the Markfed for the first time denied plaintiff''s right on 5.9.1993, Exhibit P-8/29. This was a petition filed by the plaintiff u/s 55(b) read with section 27(3) and Section 70 of the Punjab Co-operative Societies Act, 1961, wherein the Registrar despite coming to the conclusion that the petitioner''s case is foolproof, yet declined the relief merely on the ground that there is a precedent that such like cases be not entertained and considered by the department. In these circumstances, the Joint Registrar exercising the powers of the Registrar directed the petitioner to approach some competent judicial Court for his grievance against the respondent (namely, Markfed and Sugarfed.) It is thus while appearing before the Registrar that the Markfed denied the plaintiff claim to be its employee, construing so, the lower appellate Court came to the conclusion that the suit of the plaintiff is within limitation.

I have heard learned counsel for the parties and perused the relevant material referred to during the course of arguments. Broad facts are not in dispute i.e. appointment of the plaintiff as Plant Protection Expert on 13.12.1972 by the Markfed the present appellant and his discharge dated 12.6.1973. It is also not in dispute that the plaintiff joined as Plant Protection Officer in Sugarfed on 9.11.1973 and served the organisation till the passing of resolution dated 20.12.1977 thereby abolishing the post held by the plaintiff. There is, however, dispute between the parties as to whether the order of discharge dated 12.6.1973 was null and void and that the plaintiff joined the Sugarfed only as a deputationist and as to the period of limitation be claimed and granted. In addition thereto, there is a serious contest with regard to the authenticity of document Exhibit P-8/12.

Admittedly, the plaintiff aggrieved by his order of discharge filed an appeal before the Registrar and it is during the pendency of this appeal that he was ordered to join Sugarfed vide appointment letter Exhibit PW7/6. This contention get support from the subsequent communication sent by the Establishment Officer, Markfed, to the Registrar, Cooperative Societies (letter Exhibit PW7/6 dated 4-2-1974 and PW7/11 dated 25.4.1974). The Registrar vide this letter communication again asked the Managing Director, Markfed, to send para wise comments so that the representation of Sh. B.S. Aulakh dated 16.1.1974 could be disposed of. Somehow, this matter remained pending and, in fact, lingered on till it was brought to the Chief Minister, Punjab, who after examining the whole matter held the order of termination/discharge dated 12.6.1973 as null and void (Exhibit P-8/19). Vide this order the plaintiff was held to be an employee of Markfed and to be on deputation with Sugarfed. The plaintiff was also paid salary for the period between 13.6.1972 to 8.11.1973 and thereafter his salary was to be shared between Markfed and Sugarfed on 50-50%. Document Exhibit P-8/12 when examined in the light of aforesaid documents and also for the reason that document Ex.P-8/14''s authenticity is not under challenge, there is no reason to doubt the certified copy issued by a responsible officer of the Registrar office. Prayer to initiate fresh inquiry on the basis of photostat copy annexed with the application under Order 41 Rule 27 read with Section 151 of the CPC is, in fact, without any merit. Exhibit P-8/14 dated 4-5-1975 specifically makes mention that Sh. B.S. Aulakh will serve Sugarfed till he is recalled which is precisely the language in Exhibit P-8/12.

There is no merit in the plea of the appellant that the suit of the plaintiff is barred by limitation. Though not conceded but proved otherwise on record that the order of termination/discharge dated 12.6.1973 was declared to be null and void vide order of the Chief Minister, Punjab, passed u/s 69 of the Punjab Cooperative Societies Act pursuance to which even salary was paid to the plaintiff for the intervening period i.e. between 13.6.1973 to 8.11.1973, as he joined Sugarfed as per some arrangement arrived at between Sugarfed and Markfed at the behest of the Registrar. Document Exhibit P-8/12 and P-8/14 clearly bring out that the plaintiff was entitled to be recalled by the Markfed on the abolition of the post, Despite prayer made by the plaintiff in this regard as well as notice served, even the factum of these representations were denied by the Markfed which impelled the plaintiff to file the petition u/s 55(b) read with 27(3) and section 70 of the Punjab Cooperative Societies Act, 1961. It is during the pendency of appeal before the Joint Registrar exercising the power of Registrar, Cooperative Societies, that the claim of the plaintiff to be recalled was denied. The Registrar after noting the various submissions made by the respective parties came to the conclusion that the case has merit, yet declined to interfere on account of precedence. Operative part of the order of the Registrar dated 5.9.1983 reads as under:-

"The facts of the case as narrated and documents produced before me from both the sides were fully taken care of. Further, after through visualisation of merits and evidence, 1 feel there is some ambiguity on the part of respondents in understanding the actual and real facts of the case and accept its merit and decide amongst themselves but the respondents have rather emphasised that since there is a precedent, where similar case was not entertained and considered by the Department. So I have no hesitation as per the precedent to refuse to entertain this case. In this context, taking into account the points of view of both sides, it is observed that the petitioner may approach some competent judicial court for His grievances against the respondents.

Announced.

Parties be informed accordingly."

In fact, it is this order which impelled the plaintiff to knock the door of the civil Court. The plaintiff would have been granted the relief by the Registrar, as is clear from his order dated 5.9.1983 except for the objection that such like matters are not to be entertained and considered as per precedent. However, no such precedent was either cited or noticed by the Registrar.

The judgment of the apex Court in Gurdev Singh''s case (supra) cited by the counsel for the appellant has no applicability on the facts of the present case. There is no order of termination passed by the Markfed/appellant since the earlier order of termination was held to be null and void, and the revision petition lied, Exhibit P-8/19, and thus the plaintiff would be deemed to be continuing in the employment of Markfed. Since the plaintiff had not been recalled as per stipulation in Exhibit P-8/14 and P-8/12 and his right was denied before the Registrar (vide order dated 5.9.1983), the plaintiff had no other recourse but to approach the civil Court. Construed so, cause of action against the Markfed accrued to the plaintiff on 5.9.1983 when his prayer to be recalled and appointment was declined by Markfed. So the lower appellate Court rightly came to the conclusion that the suit is within limitation qua defendant No. 2 Markfed. Thus, I find no merit in any of the submissions of the learned counsel for the appellant seeking reversal of the judgment and decree passed by the Additional District Judge and accordingly dismiss the appeal.

In view of my findings, application for additional evidence, in fact has become infructuous as the documents sought to be relied upon have already been considered while evaluating the respective submissions of the counsel for the parties. As regards civil miscellaneous No. 2188-C of 1993 I find no merit in that too. Document Exhibit P-8/12 has, admittedly, been prepared by the functionary of the Registrar office as per law. There is no merit in the contention of the appellant that the plaintiff has made certain interpolation in the document Exhibit P-8/12 which is a certified copy. I do not find any ground to exercise power u/s 195 of the Code of Criminal Procedure. .This civil miscellaneous too is dismissed. No order as to costs.