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MCA/2296/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR ORDERS No. 2296 of 2011
=========================================================
GUJARAT
COOPERATIVE MILK MARKETING FEDERATION LTD & 5 - Applicant(s)
Versus
B.M.
VYAS & 1 - Opponent(s)
=========================================================
Appearance
:
NANAVATI
ASSOCIATES for
Applicant(s) : 1 - 6.
MRS MAUNA M BHATT for Opponent(s) : 1,
MS
SACHI MATHUR, AGP for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 09/09/2011
ORAL
ORDER
1. Heard
learned Senior Advocate Mr. K. S. Nanavati for learned advocate Mr.
Chudgar appearing for applicants, learned Senior Advocate Mr. Manish
Bhatt for opponent no.1 and learned AGP Ms. Sachi Mathur appearing
for respondent state authority.
2. This
application is preferred by applicants with a prayers made in
para-4(A) to 4(E) of present application. The said prayers are
quoted as under:
“(A) Your
Lordships may be pleased to admit and allow the present application;
(B) Your
Lordships may be pleased to review and recall the order dated 30th
August, 2011 passed in SCA No.12779 of 2011 at Annexure-I hereto;
(C) Pending
the hearing and final disposal of the present application, Your
Lordships may be pleased to suspend the operation and implementation
of the order dated 30th August, 2011 passed in SCA
No.12779 of 2011 at Annexure-I hereto;
(D) An
ex-parte ad interim relief in terms of prayer (C) above may kindly be
granted.
(E) Such
other and further reliefs may kindly be granted as may be deemed fit
in the facts and circumstances of the present case.”
3. Learned
Senior Advocate Mr. Nanavati raised contention before this Court
that present applicant is not state within the meaning of Article-12
of Constitution of India or not other authority as specified under
Article-12 of Constitution of India. Therefore, writ petition is not
maintainable at all against present applicant. He also raised
contention before this Court that order which has been passed by this
Court in Special Civil Application No.12779 of 2011 dated 30/8/2011
is without giving opportunity of hearing to present applicants. He
also raised contention that date of retirement which has been
mentioned in order dated 11/6/2010 is found to be incorrect because
he has not retired from service but he has tendered resignation. He
also raised contention that according to applicants opponent no.1 is
reaching age of superannuation on 4/5/2008 thereafter extension was
given and he was remained continued in service and thereafter
tendered resignation on 11/6/2010. On these grounds a prayer is made
in present application to review or recall the order passed by this
Court on 30/8/2011 in Special Civil Application No.12779 of 2011.
The said order is quoted as under:
“1.0 Heard
Mrs. Mauna Bhatt, learned advocate appearing for the petitioner and
Mr. Anand Sharma, learned AGP appearing for the respondent No.1-State
authorities.
2.0 In
the present petition, the petitioner has prayed for following
reliefs:
“(A)
This Hon’ble Court may be pleased to issue a writ, order or direction
in the nature of mandamus, directing the respondent No.1- Registrar,
Cooperative Societies to initiate appropriate action against the
respondent No.2 and its concerned office bearers for non-payment of
the petitioner’s legitimate retiral/terminal dues as also to initiate
suitable action against the respondent No.2 and its office bearers
for their arbitrary, harsh and highhanded action;
(B)
That this Hon’ble Court may be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction, directing the
respondent No.2 to forthwith make payment of the retiral/terminal
dues of the petitioner considering terminal date correctly as
11.06.2010;
(C)
Pending hearing and final disposal of this petition, this Hon’ble
Court may be pleased to direct the respondent No.1- Registrar to
initiate appropriate inquiry into the malafide and arbitrary action
on the part of the respondent No.3 and other concerned office bearers
of the Federation;
(D)
Pending hearing and final disposal of this petition, this Hon’ble
Court may be pleased to direct the Respondents No.2, 3, 4 and 6 to
refrain from indulging in illogical, unlawful and arbitrary behavior
against the Petitioner.
(E)
Pending hearing and final disposal of this petition, this Hon’ble
Court may be pleased to direct the respondent No.2 – Federation
to deposit an amount of Rs.164.56 lacs with this Hon’ble Court;”
3.0 The
claim of the petitioner is to direct the respondent No.1 Registrar
Cooperative Societies to initiate appropriate action against
respondent No.2 for non-payment of legitimate retiral/terminal dues
of petitioner and further to direct respondent No.2 to pay
immediately all the retiral/terminal dues to petitioner considering
terminal date as 11th June, 2010.
4.0 In
light of the aforesaid prayer and considering the submissions made by
learned advocate Mrs. Bhatt, the representation is already made by
the petitioner on 28th January, 2011 (Annexure-H,
Page-73). The aforesaid representation has been sent to Registrar
Cooperative Societies, State of Gujarat, Gandhinagar.
5.0 However,
it is open for the petitioner to make further representation claiming
aforesaid amount from respondents within a period of one month from
the date of receiving copy of writ of present order. As and when
respondents no.1 and 2 receive such representation from the
petitioner, it is directed to respondent Nos.1 and 2 to consider such
representation made by the petitioner and examine it and then to pass
appropriate reasoned order in accordance with law/rules within a
period of one month from the date of receiving such representation
from the petitioner and it is further directed to both the
respondents whatever undisputed legal dues being a terminal/retiral
dues, let that may be paid immediately to the present petitioner
considering the date of retirement dated 11th June, 2010.
6.0 In
light of the above observations and directions present petition is
disposed of by this Court without expressing any opinion on merits.
However, in case if ultimate decision is adverse to the petitioner,
it is open for the petitioner to challenge the same before the
appropriate forum in accordance with law. Direct Service is
permitted.”
4. In
original petition respondent no.1 being a state authority a Registrar
cooperative societies against whom prayer was made by original
petitioner Shri B.M. Vyas and this Court has directed to original
Respondent No.1 State Authorities and present applicant to decide
representation made by petitioner, examine it and then pass
appropriate reasoned order in accordance with law/rules within a
period of one month from date of receiving such representation from
petitioner and this Court further directed to present applicant
including State Government that whatever undisputed legal dues being
terminal/retiral dues, let that may be paid to original petitioner
considering original date of retirement i.e. 11/6/2010.
5. In
light of aforesaid observations and directions made by this Court
now, applicant is having serious objection that this Court cannot
issue such direction against present applicant because applicant is
not state or other authority as specified under Article-12 of the
Constitution of India.
6. This
Court has exercised extra ordinary powers under Article-226 of the
Constitution of India while passing aforesaid order that even include
other than state authorities within meaning of Article-12 of
Constitution of India in some occasion for giving justice to a
petitioner-employee. Therefore, this Court has not decided the
merits of the matter whether writ is maintainable or not and in
respect to question whether it was resignation or termination or
retirement. That question is also kept open by this Court and this
Court has now clarified in order dated 30/8/2011 that instead of date
of retirement let it be considered by applicants a date of
resignation but question is still remained that whatever legal dues
being undisputed amount must be paid by applicant to present opponent
no.1. Therefore, this Court has passed an order while keeping in
mind the powers which has been exercised by this Court under
Article-226 of the Constitution of India. The question which has
been raised before this Court by applicants is that whether applicant
is covered by state or other authority under Article-12 or not has
not examined by this Court at all. However, according to my opinion,
no case is made out for review or recall the order impugned and even
applicant is having any grievance about this order dated 30/8/2011
then applicant is having alternative remedy to file Letters Patent
Appeal before Division Bench of this Court, therefore, on this ground
also this Court has not entertained present application with a
clarification that it is open for applicant to consider date of
retirement 4/5/2008 or date of resignation 11/6/2010, for payment of
undisputed legal dues, if any, of present opponent no.1. However,
date of retirement and resignation as suggested by applicant is not
accepted by opponent no.1 and disputed the same.
7. In
view of above observations and directions, present application is
accordingly dismissed with aforesaid clarification.
8. This
Court has made it clear that this Court has not examined the issue
whether opponent no.1 retired or resigned from service of present
applicant.
(H.K.RATHOD,
J.)
(ila)
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