HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 354 of 2009 (S/S) Radhy Shyam Srivastava …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 355 of 2009 (S/S) Devendra Pratap Singh Chauhan …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 382 of 2009 (S/S) Ganeshi …. Petitioner Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 400 of 2009 (S/S) Man Singh …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 443 of 2009 (S/S) Hoshiyar Singh & others …. Petitioners .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 445 of 2009 (S/S) Shambhu Dutt Pandey …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents 2 Writ Petition No. 539 of 2009 (S/S) Shyam Lal …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 540 of 2009 (S/S) Sudhir Swarup Sethi …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 541 of 2009 (S/S) Pramod Kumar Sharma …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 542 of 2009 (S/S) Shanti Prasad …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Writ Petition No. 543 of 2009 (S/S) Harsh Mani Telwal …. Petitioner .. Versus The U.P. State Co-operative Federation & others … Respondents Mr. J.C. Belwal, Advocate for the petitioners. Mr. Paresh Tripathi, Advocate for respondent nos. 1 and 2. Mr. Subhash Upadhyay, Advocate for respondent no. 4. 3 12th November, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Sri J.C. Belwal, Advocate for the petitioner, Sri Paresh Tripathi, Advocate for respondent nos. 1 and 2 as well as Sri Subhash Upadhyay, Advocate for respondent no. 4. In this bunch of writ petition, the petitioners have claimed certain post retiral benefits. The question is as to which of the respondents is liable to pay this post retiral benefits to the petitioners. Admittedly, the petitioners were earlier employees of U.P. State Co-operative Federation (from hereinafter referred to as the “UPSCF”), who were subsequently absorbed/transferred to the Uttaranchal State Marketing Federation (from hereinafter referred to as the “USMF”) consequent to the formation of the new State of Uttarakhand and have now since retired from service. It is these employees who are the present petitioners before this Court, who are claiming the post retirement benefit. However, liability to pay the same is being shifted by the UPSCF to the USMF and vice versa. The fact of the matter is that similar controversy had already been raised before this Court by similarly situated persons in Writ Petition No. 1176 of 2005 (S/S) which was decided by the learned Single Judge of this Court by his order dated 20.11.2006. The learned Single Judge while interpreting the Memorandum of Understanding (from hereinafter referred to as “MOU”) signed between UPSCF and USMF and by making an interpretation of the relevant clause of this MOU, had come to the conclusion that prior to 31.12.2004 the liability to pay the gratuity, leave encashment, arrears of pay will be of UPSCF and thereafter it will be of the USMF. This 4 order and judgment of the learned Single Judge was challenged by the UPSCF before the Division Bench of this Court and the Division Bench had dismissed the special appeal of the appellant and upheld the order and judgment of the learned Single Judge fixing the liability to pay gratuity, leave encashment as well as arrears of pay for the period served by the petitioners prior to 31.12.2004 on UPSCF. Consequently, the UPSCF had also filed an S.L.P. before the Hon’ble Apex Court which has also been dismissed. Statement has been made at the bar that certain new facts had come to the knowledge of the UPSCF and consequently they have filed a Review Petition being no. 685 of 2009 before the Division Bench of this Court which is still pending. On the strength of the said statement which was made earlier, this Court had adjourned the matter twice. The order passed by this Court on 12.10.2009 reads as follows : “Heard Mr. J.C. Belwal, Advocate for the petitioner, Mr. Paresh Tripathi, Advocate for respondent no. 1 and 2 and Mr. Subhash Upadhyay, learned counsel for respondent no. 4. Counter affidavit has already been filed in this case by the State. Learned counsel for the petitioner seeks two weeks’ time to file rejoinder affidavit. This matter is covered by the decision of the learned Single Judge dated 20.11.2006 passed in Writ Petition No. 1176 of 2005 (SS), by which the responsibility to pay the pension has been fixed on the U.P. State Cooperative Federation. Against the order of the learned Single Judge the U.P. State Cooperative Federation had filed a Special Appeal bearing Special Appeal No. 176 of 2006 U.P. State Cooperative Federation Limited Vs. Anand Swaroop and others, which was also 5 dismissed on 15.6.2007 and thereafter, Special Leave Petition was filed by the U.P. State Cooperative Federation before the Hon’ble Apex Court, was also dismissed. The matter has now attained a finality and stands covered. Therefore, respondents no. 1 and 2 are liable to pay the post retirement dues to the petitioner as has been held by this Court. However, the learned counsel for the respondents no. 1 and 2 states that he has moved a review petition before the Division Bench of this Court, which is still pending. Mere pendency of a review petition will not make any difference in the present case. All the same, learned counsel for the respondents no. 1 and 2 further states that he hopes that the decision will be taken in the review petition within three weeks. List this matter on 4th November, 2009 in the daily cause list. Counsel for the petitioner shall also file his rejoinder affidavit in the meantime. Let the copy of the order be issued within 24 hours.” Consequently when the matter was listed on 4.11.2009, the matter was once again adjourned on the request of learned counsel for the UPSCF. The order passed on 4.11.2009 reads as follows : “Heard Mr. J.C. Belwal, Advocate for petitioner and Mr. Ashish Joshi, Advocate for respondent no. 1 and 2. The subject matter of the present writ petition stands covered by the decision of the learned Single Judge in the Writ Petition No. 1176 of 2005 (SS), 6 against which a Special Appeal and SLP filed by the Cooperative Federation have already been dismissed. On the last occasion, following order was passed by this Court : “Heard Mr. J.C. Belwal, Advocate for the petitioner, Mr. Paresh Tripathi, Advocate for respondent no. 1 and 2 and Mr. Subhash Upadhyay, learned counsel for respondent no. 4. Counter affidavit has already been filed in this case by the State. Learned counsel for the petitioner seeks two weeks’ time to file rejoinder affidavit. This matter is covered by the decision of the learned Single Judge dated 20.11.2006 passed in Writ Petition No. 1176 of 2005 (SS), by which the responsibility to pay the pension has been fixed on the U.P. State Cooperative Federation. Against the order of the learned Single Judge the U.P. State Cooperative Federation had filed a Special Appeal bearing Special Appeal No. 176 of 2006 U.P. State Cooperative Federation Limited Vs. Anand Swaroop and others, which was also dismissed on 15.6.2007 and thereafter, Special Leave Petition was filed by the U.P. State Cooperative Federation before the Hon’ble Apex Court, was also dismissed. The matter has now attained a finality and stands covered. Therefore, respondents no. 1 and 2 are liable to pay the post retirement dues to the petitioner as has been held by this Court. However, the learned counsel for the respondents no. 1 and 2 states that he has moved a review petition before the Division Bench of this Court, which is still pending. Mere pendency of a review petition will not make any 7 difference in the present case. All the same, learned counsel for the respondents no. 1 and 2 further states that he hopes that the decision will be taken in the review petition within three weeks. List this matter on 4th November, 2009 in the daily cause list. Counsel for the petitioner shall also file his rejoinder affidavit in the meantime. Let the copy of the order be issued within 24 hours.” However, today when the matter was being argued by the learned counsel for the petitioner, Mr. Ashish Joshi, learned counsel for the U.P. Cooperative Federation has made a prayer that the matter be adjourned for 11th November, 2009. On the request made by Mr. Ashish Joshi, learned counsel for the U.P. Cooperative Federation, list this matter on 11th November, 2009 in the daily cause list.” The matter is listed today and the same is being finally decided, as no orders have been passed as yet on the said review petition. The lis in the present case has already been decided by the learned Single Judge, which has been upheld by the Division Bench of this Court. This Court is bound by the decision of these two judgments whereby the liability to pay the gratuity, leave encashment as well as arrears of pay of the petitioners is upon the UPSCF. By orders of the learned Single Judge apart from this liability 6 per cent rate of interest has also to be paid, if the liability is paid after three months. However, in the special appeal this interest part was quantified and an amount of Rs. 10,000/- was fixed upon the authorities which is presently being adhered to. 8 The learned counsel for the UPSCF has apprised this Court about a letter of 6.11.2003 written by the Principal Secretary, Uttaranchal Government to its counterpart in Lucknow in which the value of the assets were calculated of Rs. 801.43 lakh and it was stated that the UPSCF still has remaining amount of Rs. 426.97 with the Uttaranchal Government. The learned counsel has further stated that the MOU has to be interpreted as a whole and since this liability has not been paid, the liability to pay the post retiral benefit cannot be fixed on the UPSCF. However, the contents of clause 3 and 5 of the MOU, which has already been interpreted by the learned Single Judge as well as the Division Bench of this Court leave no room of any doubt for this Court that since the matter has crystallized in the form of a MOU, the liability of the two federations will be gauged and calculated strictly as per the terms and conditions of the MOU and not from any previous letter, Government Order or any communications. As per the MOU it is clear that before the cut of date i.e. 31.12.2004, the entire liability to pay the gratuity, leave encashment as well as the arrears of pay to the petitioners is fixed upon the UPSCF and the UPSCF, therefore, cannot escape this liability. Sri Paresh Tripathi, learned counsel for the UPSCF has further argued that clause 3 of the MOU which reads that the gratuity, leave encashment and arrears of pay are liable to be paid by UPSCF as per the “policy”. The emphasis of learned counsel is on the word “policy”. The argument is that since no policy has been framed, the liability cannot be fixed upon UPSCF. However, this interpretation of the learned counsel is against the interpretation which has already been made by the learned Single Judge which has been upheld by the Division Bench of this Court in as much as the liability has 9 already been accepted by the UPSCF where the payment of gratuity, leave encashment as well as arrears of pay has to be done as per the existing policy of the Uttar Pradesh Government. In the opinion of this Court as well this would not mean that any new policy has to be framed, it is only the existing policies i.e. the policies which are existing in the State of Uttar Pradesh on the date said MOU was signed, shall be applicable. The learned counsel for the UPSCF then stated that there was an alternative remedy under Section 70 of the Uttaranchal Cooperative Societies Act, 2003 (from hereinafter referred to as “the Act”) to approach the Registrar, which has not been availed. It has been asserted that the language of Section 70 is clear and unambiguous which says that the matter “shall” go before the Registrar. Section 70 of the Act reads as follows : “70. Disputes which may be referred to arbitration. – (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises – (a) among members, past members and persons claiming through members, past members and deceased members; or (b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its Committee of Management or any 10 officer, agent or employee of the society, including any past officer, agent or employee; or (c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased office, deceased agent or deceased employee of the society; or (d) between a co-operative society and any other co-operative society or societies : such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no court shall have jurisdiction to entertain any suit or other proceedings in respect of any such dispute : Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election. (2) For the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely – (a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party; 11 (b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or not; (c) a claim by a society for any loss caused to it by a member, officer, agent or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not; and (d) all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers. (3) If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution, management or the business of a co-operative society, the decision thereon o the Registrar shall be final and shall not be called in question in any court.”” Be that as it may, since the matter has already been decided on merits by the learned Single Judge of this Court which has been upheld by the Division Bench of this Court and has attained finality by orders of the Hon’ble Apex Court as well, the question of an alternative remedy cannot be seen by this Court. Interestingly this plea has not been raised by UPSCF in its counter affidavit. These writ petitions are, therefore, allowed. UPSCF is hereby directed to make the payment of gratuity, leave encashment, arrears of pay to the petitioners for the period they served UPSCF till 31.12.2004 within a period of three 12 months from the date a certified copy of this order is produced before UPSCF. As regarding interest, the same has been declined by the Division Bench of this Court and instead of interest of 6 % a quantified amount of interest of Rs. 10,000/- has been paid. Therefore, it is further directed that UPSCF shall pay a quantified amount of interest of Rs. 10,000/- to each of the petitioners. These writ petitions are accordingly decided. No order as to costs. 12.11.2009 Avneet (Sudhanshu Dhulia, J.)