IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.11.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.19712 OF 2010 AND M.P.NO.1 OF 2010 Pondicherry Co-operative Urban Bank Employees Welfare Union Rep.by its General Secretary S.Balasoupramanian S/o.R.Sokkalingam 197, Jawaharlal Nehru Street Puducherry. .. Petitioner Versus 1.The Registrar The Co-operative Department Government of Pondicherry Pondicherry. 2.The Administrator Pondicherry Co-operative Urban Bank Ltd. 197, Jawaharlal Nehru Street Puducherry. .. Respondents PRAYER: Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of certiorari, calling for the records in his proceedings 5/1/1/1/RCS/Credit/C3/2005 and dated 25.08.2010 on the file of the first respondent and quash the same as illegal, incompetent and without jurisdiction and for. (Prayer amended as per order dated 08.10.2010 in M.P.No.2 of 2011 in W.P.No.19712 of 2010) For Petitioner : Mr.V.Raghavachari For Respondents: M/s.N.Mala for Government Pleader (Pondicherry) * * * * * https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner who is the Union representing some of the employees of the second respondent has come forward to file this writ petition, challenging the decision made by the respondents to enhance the age of retirement of the employees from 58 to 60 years. Facts in brief: 2.The first respondent being the Registrar of Co-operative Societies by taking into consideration of the decision of the Central Government issued a direction on 11.06.1999 exercising his power under Section 81(1) of the Pondicherry Co-operative Societies Act, 1972 (hereinafter referred as 'the Act') stating that all the Co-operative Societies in the Union Territory of Pondicherry are required to enhance the retirement age of the employees from 58 to 60 years. The various Co-operative Societies were asked to pass separate resolutions and send proposals to amend their subsidiary regulation governing the service conditions of the employees. 3.One of the trade Union of the Pondicherry Co-operative Urban Bank raised a demand for increasing the age of retirement. A resolution was passed by the second respondent on 17.08.2010 enhancing the age limit from 58 to 60 years. After passing of the resolution, the same was sent to the first respondent for approval. From the year 1995 onwards, the Society is under the control of the second respondent. It is to be seen that the earlier existing subsidiary regulation governing the service conditions of the employees were framed by the second respondent in the year 1998. 4.Rule 35 of the service regulation governs the employees retirement age. As per the said rule, an employee shall retire at the age of 58, except the last grade employees for whom the age of retirement is 60. After the passing of the resolution, which was sent to the first respondent for approval, the first respondent, in turn, approved the same on 25.08.2010. The petitioner filed a writ petition on 26.08.2010 seeking a writ of mandamus, forbearing the respondents from altering the service conditions of the employees of the second respondent Society. Thereafter, an application was filed for amendment in M.P.No.2 of 2010 on 29.09.2010, which was ordered by this Court on 08.10.2010. Submissions of the petitioner: 5.Mr.V.Raghavachari, learned senior counsel appearing for the petitioner strenuously contended that, after knowing the filing of the writ petition, the approval has been given by the first respondent and the entire records have been tampered with. According to the learned senior counsel, altering the age of retirement by increasing 2 years is https://hcservices.ecourts.gov.in/hcservices/ a major policy decision, which can be taken only by the Board of Directors. There is no basis for increasing the age and the second respondent being the administer cannot take the role of the elected Board of Directors. The objections of the petitioner have not been considered before passing the resolution. Having taken as a stand in the earlier proceedings to the effect that the enhancement retirement age is not required, it is not open to the respondents to enhance the same. As per the subsidiary regulations, the second respondent does not have the power or authority to modify the service conditions. The decision made by the second respondent as approved by the first respondent is liable to be set aside for not getting the approval of the general body. The approval given by the first respondent is one without jurisdiction, as he has got no power to do so. 6.The fact that a letter was issued by the second respondent in Memorandum dated 31.08.2010 in favour of one N.Purushothaman intimating his retirement on 30.09.2010 would show that the records have been tampered as the approval given by the first respondent dated 25.08.2010 has not been taken note of. In support of his contentions, the learned senior counsel has made reliance upon the following judgments: 1.RAGHAVAN NAIR vs. JOINT REGISTRAR OF CO-OP. SOCIETIES [1998 (2) KLT 1068 2.JT. REGISTRAR OF COOPERATIVE SOCIETIES, KERALA vs. T.A.KUTTAPPAN AND OTHERS [(2000) 6 SCC 127] 3.UDAYAKARAN vs. AHAMMEDKANNU [2004 (2) KLT 969] 4.K.NITHIYANANTHAM vs. STATE OF TAMIL NADU [2006 (1) CTC 1] 5.THE AD HOC COMMITTEE, AL JAMIUL AZHAR JUMMA MOSQUE, KAYALPATNAM vs. K.S.MOHAMED NAZAR [2009 (4) CTC 129] Submissions of the respondents: 7.Per contra, Ms.N.Mala, learned Additional Government Pleader (Pondicherry) appearing for the respondents submitted that, inasmuch as there is no elected Board of Directors, the power has been exercised by the second respondent under Section 33(2) of the Act. The said power has been exercised in pursuant to the directions given by the first respondent under Section 81(1) of the Act. The writ petition is misconceived as 41 of the 88 members of the petitioner belong to the last grade. The writ petition has been filed out of apprehension and misconception that the promotional avenue of the last grade employees would be affected by the extension. The order passed by the first respondent has been given effect to. The petitioner does not have the locus standi to challenge the decision made by the respondents. Therefore, the learned counsel submitted that the writ petitions will have to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ Discussions: 8.This is rather a very strange writ petition, in which, the Union has come forward to challenge the order passed by the appropriate authority extending the age of retirement from 58 to 60 years. As seen from the affidavit filed by the petitioner, from the year 1995 onwards there was no election and therefore, the Society has been under the administration of the second respondent. The existing subsidiary regulations, by which, the service conditions of the employees have been formulated has been given effect to, by following the very procedure which is under challenge from this Court in the year 1998. In other words, in pursuant to the resolution passed by the second respondent, the approval was given by the first respondent. Therefore, being the beneficiary of the existing system, it is not open to the petitioner to contend that the subsequent procedure adopted on the same line is not genuine and proper. The records produced by the learned counsel for the second respondent would disclose that the objections of the petitioner are to the effect that by the enhancement of age the promotional avenue of the employees in the last grade would be affected. This Court is afraid that such a grievance cannot be a basis for challenging the proceedings of the respondents. It is also to be seen that out of 88 employees, 41 are peons and attenders, who's retirement age is 60 as per the existing subsidiary regulations. Therefore, when their retirement age is fixed as 60, they have got no locus standi to challenge the extension of retirement made for others. There is no prejudice or apparent injury to the members of the petitioner by the enhancement of age of retirement. A writ of certiorari is an extraordinary relief which shall not be treated like a civil suit for declaration. Above all, the writ petition is also not maintainable without impleading the proposed employees who will be affected and who are working in pursuant to the impugned order which has been given effect to. 9.In order to implement the policy of the Central Government as well as the Government of Pondicherry, the first respondent in exercise of the power under Section 81 (1) of the Act, provides for power to the first respondent to give direction in the public interest. The said provision is extracted hereunder for better appreciation: "81(1) Subject to the rules made in that behalf, where the Registrar is satisfied that in the public interest or for the purposes of securing proper implementation of co-operative production and other development programmes, approved or undertaken by the Government or to secure the proper management of the business of the society generally, or for preventing the affairs of the https://hcservices.ecourts.gov.in/hcservices/ society being conducted in a manner detrimental to the interests of the members, or of the depositors or the creditors thereof, it is necessary to issue directions to any class of societies generally or to any society or societies in particular, he may issue directions to them from time to time, and all societies or the society concerned, as the case may be, shall be bound to comply with such directions: Provided that in so far as co-operative banks are concerned, the Registrar shall exercise the powers only with prior consultation with the Reserve Bank of India." 10.Therefore by taking into consideration of the request made by some of the employees and with a view to follow a uniform standard between two groups of employees, and also by taking into consideration of the stand taken by the Central Government as well as the Government of Pondicherry, the first respondent has sought for appropriate action at the hands of the second respondent. The second respondent has passed the resolution in exercise of the power under Section 33 (2) of the Act and the same is extracted hereunder: "33(2) The committee or administrator or administrators appointed under sub-section (1) shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have power to exercise all or any of the functions of the committee or any officer of the society and take all such actions as may be required in the interest of the society." 11.A perusal of the said provision would show that under Section 33(2) of the Act, the administrator subject to the control of the Registrar has power to exercise all or any of the functions of the committee. Therefore, it cannot be said that administrator, namely, the second respondent does not have the power or authority to pass the resolution. The reliance made by the learned counsel for the petitioner on the definition of 'Board' stipulated under the subsidiary regulation cannot be accepted. The definition of 'Board' as mentioned in subsidiary regulation is extracted hereunder: "BOARD" means The Board of Directors constituted as per the provisions of the Bye-Laws of the Bank." 12.The said definition speaks only about the constitution of the 'Board'. It does not say that the powers of the 'Board' cannot be exercised by the administrator. If such a contention is accepted then the second respondent will not have any power even to take any action. In this connection, it is useful to refer Bye-law 47, which speaks https://hcservices.ecourts.gov.in/hcservices/ about the over-riding effect of the Act and Rules. The said Bye-law is extracted hereunder: "47.Over-riding effect of the Act and Rules: In all matters touching the constitution or business of the Bank, the provisions of the Pondicherry Co-operative Societies Act 1972 and the Rules framed there under shall prevail over the Bye-laws of the Bank." 13.A conjoint reading of Section 33(1) read with the definition of 'Board' under the regulation and regulation 46 which speaks about the power to amend as well as the Bye-law 47 would clearly establish the fact that the second respondent being the administrator is having absolute competency to pass a resolution by way of amending the regulation. Further, the Bye-law 47 itself is very specific that in all matters touching the constitution or business of the Bank, the provisions of the Act and Rules shall prevail over the Bye-law. Therefore, inasmuch as the regulation having been framed under the Bye- laws that too by the second respondent, there is absolutely no basis for holding that the second respondent does not have the power or authority to pass the resolution as approved by the first respondent. 14.The judgments relied upon the learned senior counsel for the petitioner are not applicable to the facts on hand, as it is a basic principle of law that a ratio of a judgment will have to be applied to the facts on hand. In the judgments reported in K.NITHIYANANTHAM vs. STATE OF TAMIL NADU [2006 (1) CTC 1] and JT. REGISTRAR OF COOPERATIVE SOCIETIES, KERALA vs. T.A.KUTTAPPAN AND OTHERS [(2000) 6 SCC 127], the issue was inclusion of membership. The Honourable Bench of this Court was dealing with the power of the Special Officer to enrol and admit new members by introduction of a new provision in the Act. The same was rightly held by this Court as unconstitutional because such a power which can be exercised only by way of following the democratic process. In fact in the said judgment, the Bench of this Court was pleased to observe that the Special Officer cannot do what has been rejected by the Board of Directors. Therefore, this Court is of the view that the said judgments are not applicable to the facts on hand. 15.The learned counsel has made reliance upon the judgment of the Kerala High Court in UDAYAKARAN vs. AHAMMEDKANNU [2004 (2) KLT 969]. The said case also deals with the reservation of constituency for woman or scheduled caste/scheduled tribe member. Therefore, this Court is of the view that even on merits, the petitioner cannot contend that the respondents do not have the power or authority to increase the age. https://hcservices.ecourts.gov.in/hcservices/ 16.The other contention of the learned senior counsel for the petitioner regarding the power of general body also cannot be countenanced. There is no rule or regulation which prescribes that before passing a resolution the approval of the general body will have to be obtained. It is also to be seen that this writ petition has not been filed by any of the members of the second respondent society but by the employees alone. 17.In so far as the arguments made by the learned senior counsel for the petitioner that the approval has been given by tampering the records by the first respondent, the same cannot be countenanced. There is nothing on record to suggest that the approval was made in order to made the writ petition infructuous. In view of the discussions made above, inasmuch as the respondents have the power and authority to increase the age, the said contention is also irrelevant. Moreover, the records produced by the second respondent would show that the order passed by the second respondent dated 31.08.2010 was cancelled by the subsequent order dated 30.09.2010 as at the time of passing the earlier order the approval given by the first respondent has not been received by the second respondent. There is no necessity in law that the members of the petitioner Union will have to be heard before enhancing the age. As the respondents have the power and authority in enhancing the age, the same cannot be questioned by the petitioner. Merely because a stand was taken by the earlier proceedings against few of the employees, the same would not non suit the second respondent to take a decision for enhancing the retirement age in accordance with law which cannot be questioned by the petitioner. 18.In fine, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst. Registrar /True Copy/ Sub Asst.Registrar sri To 1.The Registrar The Co-operative Department Government of Pondicherry Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 2.The Administrator Pondicherry Co-operative Urban Bank Ltd. 197, Jawaharlal Nehru Street Puducherry. +One C.C. to The Senior Government Pleader-cum-Senior Public Prosecutor (Pondy) SR.67394 +One C.C. to Mr.V.Raghavachari Advocate SR.67357 PRE-DELIVERY ORDER IN W.P. NO.19712 OF 2010 SGL (CO) KSA (17/11/2011) https://hcservices.ecourts.gov.in/hcservices/