IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 WP(C).No. 32940 of 2010(N) ---------------------------------- PETITIONER(S): ------------------- A.K.RAJAN, BRANCH MANAGER LAKSHADWEEP CO-OPERATIVE MARKETING FEDERATION LTD BEYPORE, KOZHIKODE. BY ADVS. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI SRI.P.N.APPUKUTTAN SMT.P.A.RINUSA RESPONDENT(S): -------------------- 1. UNION TERRITORY OF LAKSHADWEEP DEPARTMENT OF CO-OPERATIVE AND CIVIL SUPPLIES REP BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES KAVARATTY 682 555. 2. THE LAKSHADWEEP CO-OPERATIVE MARKETING FEDERATION LTD., REP BY ITS MANAGING DIRECTOR UNION TERRITORY OF LAKSHADWEEP,KAVARATTY 682 555. 3. THE BOARD OF DIRECTORS LAKSHADWEEP CO-OPERATIVE MARKETING FEDERATION LTD, REP BY ITS PRESIDENT NO.1 M.A. II, BEYPORE, KOZHIKODE -15. R1 & 2 BY ADVS. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 32940/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PAGES OF THE REGULATION5/1960 P2: COPY OF THE RELEVANT PAGES OF BYE - LAW. P3: COPY OF THE JUDGMENT DATED 25/01/2007 IN WPC.NO.22954/2004 P4: COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 16/05/2007. P5: COPY OF THE ORDER DATED 25/10/2008 ISSUED BY THE 1ST RESPONDENT. P6: COPY OF THE RESOLUTION DATED 11/09/2008 PASSED BY THE DIRECTOR BOARD OF THE FEDERATION. P7: COPY OF THE LEAVE APPLICATION. P8: COPY OF THE REPRESENTATION DATED 01/10/2009 BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P9: COPY OF THE REMINDER LETTER DATED 12/08/2010 TO THE 1ST RESPONDENT. P10: COPY OF THE OFFICE MEMORANDUM DATED 18/12/2010 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R1(a):COPY OF OM DATED 18/12/2010 ISSUED TO LCMF. /TRUE COPY/ P.A. TO JUDGE. svs P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.32940 of 2010 ----------------------------------------- Dated this the 9th March, 2011 JUDGMENT The petitioner is a Branch Manager in the service of the second respondent Federation, a co-operative society registered under the provisions of the Laccadive, Minicoy and Amindivi Islands Co-operative Societies Regulation 1960, issued by the Central Government in exercise of the power conferred on it under Article 240 of the Constitution of India. Initially, the age of retirement of the employees of the Federation was 55 years as in the case of employees of other co-operative societies. The age of retirement of employees of co-operative societies was later enhanced from 55 years to 58 years, but that enhanced retirement age was not made applicable to employees of the second respondent Federation. Some of the employees of the second respondent Federation thereupon moved this Court by filing W.P(C)No.22954 of 2004. By Ext.P3 judgment delivered on 25.1.2007, this Court directed the Registrar of Co-operative Societies, Union Territory of Lakshadweep to examine whether the W.P(C) NO.32940/2010 -:2:- retirement age was enhanced to 58 years in respect of employees of Primary Co-operative Societies and also whether the same could be extended to employees of the second respondent Federation as well, as otherwise the same would amount to discrimination. This Court also directed that if the retirement age of employees of Primary Co-operative Societies is found to be 58, the Registrar shall fix the same age in respect of employees of the second respondent Federation. 2. Pursuant to the said direction, the Registrar of Co-operative Societies, Union Territory of Lakshadweep, passed Ext.P4 order dated 16.5.2007 raising the retirement age of employees of the second respondent Federation to 58 years with effect from 16.5.2007. Still later by Ext.P5 order dated 25.10.2008 the Registrar of Co-operative Societies, Union Territory of Lakshadweep, approved the enhancement of age of retirement of employees of co-operative societies from 58 years to 60 years. In the meanwhile, the Board of Directors of the second respondent Federation that met on 11.9.2008 passed a resolution to request the Registrar of Co-operative Societies to amend the Bye-laws by raising the age of retirement from 58 W.P(C) NO.32940/2010 -:3:- years to 60 years. At that stage the petitioner was working as Branch Manager in the Branch Office of the Federation at Mangalore. When the work assigned to him at Mangalore was completed, he applied for 20 days' earned leave. At that stage he was informed that he will have to retire from service on 31.10.2010 on attaining the age of 58 years. He thereupon filed Ext.P8 representation followed by Ext.P9 representation wherein he requested that he may be retained in service till he attains the age of 60 years. This writ petition was thereafter filed on 28.10.2010 seeking the following reliefs:- a) to issue a writ of mandamus or other appropriate writ or direction directing the 1st respondent to pass orders fixing the retirement age of the 2nd respondent Federation staff as 60 years, based on Ext.P5 order and P6 resolution without any further delay. b) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to permit the petitioner to continue in service beyond 31.10.2010 based on Ext.P6 resolution and continue to work as Branch Manager until he attains the age of 60 years. W.P(C) NO.32940/2010 -:4:- It is contended that in view of Ext.P6 resolution adopted by the managing committee of the second respondent Federation and Ext.P5 order passed by the Registrar of Co-operative Societies himself, the petitioner is entitled to continue in service till he attains the age of 60. When the writ petition came up for admission on 4.11.2010 this Court, while admitting the writ petition and issuing notice to the respondents, directed that the retirement of the petitioner will be subject to the result of the writ petition. The respondents were also directed to file their statement within three weeks. The petitioner has thus retired from service on 31.10.2010. 3. The first respondent has filed a counter affidavit dated 8.3.2011. In paragraph 4 thereof it is stated that the Registrar has already issued orders as per Ext.P5 dated 25.10.2008 enhancing the age of retirement of employees of co- operative societies in Laccadive, Minicoy and Amindivi Islands including the petitioner, from 58 to 60 years and that in the light of the general order no separate order has to be passed for the petitioner. However, in paragraph 7 it is stated that the amendment to the Bye-laws proposed by the managing W.P(C) NO.32940/2010 -:5:- committee of the second respondent Federation is not in order for the reason that the amendment has to be approved by the general body and not by the managing committee. Relying on Bye-law No.34 of the Bye-laws of the second respondent Federation it is contended that further amendment to the bye- laws can be made only by the decision taken at a meeting of the general body of the members of the Federation. It is further contended that the Registrar of Co-operative Societies cannot issue a direction to the second respondent Federation to implement the decision taken by the managing committee of the second respondent Federation as it is not in order and in accordance with the Bye-laws. It is however, conceded that Ext.P5 order passed on 25.10.2008 is applicable to employees of all co-operative societies including the second respondent Federation and that no separate order is required to be issued in that regard. Along with the counter affidavit the Registrar of Co- operative Societies has also produced an order dated 18.12.2010 (Ext.R1(a)) issued by him wherein he has directed the Managing Director of the second respondent Federation to take a decision to continue the petitioner in service. W.P(C) NO.32940/2010 -:6:- 4. I heard Smt.V.P.Seemanthini, learned Senior Advocate appearing for the petitioner and Sri.S.Radhakrishnan, learned standing counsel appearing for the Lakshadweep Administration. Though respondents 2 and 3 have been served they have not entered appearance or filed counter affidavit. Shorn of details, the claim made by the petitioner is for continuance in service till he attains the age of 60 years. The pleadings and the materials on record, especially Exts.P5 order and P6 resolution, establish beyond doubt that employees of co- operative societies are entitled to continue in service upto the age of 60. The Registrar of Co-operative Societies also concedes the said fact. The only reason put forward for not approving Ext.P6 resolution is that the resolution is one passed by an incompetent body, namely the managing committee. It is evident from the stand taken by the Registrar of Co-operative Societies that if the general body of the second respondent Federation passes a resolution to raise the age of retirement of the employees, he would have approved the amendment to the Byelaws. As noticed earlier, the second respondent Federation is not represented by counsel. However, it is evident from the stand taken by the W.P(C) NO.32940/2010 -:7:- Registrar of Co-operative Societies that instructions have already been issued to the second respondent Federation to continue the petitioner in service in terms of the revised age of retirement fixed in Ext.P5 order passed by the Registrar of Co-operative Societies. On an earlier occasion when the age of retirement of employees of co-operative societies was raised from 55 to 58 years, this Court had directed in Ext.P3 judgment that the age of retirement of employees should be enhanced in the case of second respondent Federation also as otherwise it will amount to discrimination. Ext.P3 judgment has attained finality. The second respondent Federation was a party to the said judgment. The petitioner attained the age of 58 years only on 31.10.2010. Only four months have passed thereafter. He has not as on today attained the age of 60 years. In such circumstances as the Registrar of Co-operative Societies has ordered enhancement of retirement age of employees of all co-operative societies from 58 to 60 and the Board of Directors of the second respondent Federation has also passed a resolution in that regard, I am of the opinion that the petitioner is entitled to succeed. I accordingly dispose of the writ petition with a W.P(C) NO.32940/2010 -:8:- direction to the first respondent to take steps to ensure that respondents 2 and 3 re-admits the petitioner to duty by posting him as Branch Manager. Necessary orders in that regard shall be issued within two weeks from today. If respondents 2 and 3 do not comply with the directions issued by the Registrar of Co- operative Societies it will be open to him to take necessary action in accordance with the Regulations. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.32940 of 2010 ---------------------------- JUDGMENT 9th March, 2011