WPSS/1312/2016 of Smt Munni Devi Vs Registrar Co-operative Societies,government Of Uttarakhand,dehradun AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition (S/S) No.1312 of 2016

Smt. Munni Devi ………Petitioner

Versus

Registrar Cooperative Societies,

Government of Uttarakhand, Dehradun

& others ……..Respondents

Present:-Mr. Harendra Belwal, Advocate for the petitioner. Mr. Vikas Pandey, Brief Holder for the State/respondent no. 1. Mr. Paresh Tripathi, Advocate for the Uttarakhand Cooperative Fedaration.

Mr. Ashish Joshi, Advocate for respondent no. 4.

Hon’ble Sudhanshu Dhulia, J. (Oral)

The petitioner is the widow of late Narayan Singh, who was Class-IV employee of U.P. Pradeshik Cooperative Federation. After the creation of State of Uttarakhand, many of the employees of the erstwhile Federation were absorbed in Uttarakhand Cooperative Federation, which was the apex body formed in the State of Uttarakhand.

2. Under the U.P. Reorganisation Act, 2000 (from hereinafter referred to as “the Act”) for government servant there is provision which is given under Section 54 of the Act. Section 54 of the Act reads as under:-

“Section 54. Pensions.- The liability of the existing State of Uttar Pradesh in respect of pensions shall pass to, or be apportioned between, the successor States of Uttar Pradesh and Uttaranchal in accordance with the provisions contained in the Eight Schedule to this Act.”

3. In the Eighth Schedule of the Act, the apportionment of liability in respect of pensions have

been elaborated. For employees of Cooperative Federation, the liabilities in these matters would be subject to the agreement between the two federations. The liability of post retirement benefits as well as pension became subject matter of discussion between the two federations i.e. U.P. Cooperative Federation and Uttarakhand Cooperative Federation. Ultimately an agreement was reached between the two federations on 06.11.2004. method was formulated under which the liability was to be dispensed with between the two federations.

4. Presently, we are not concerned with the entire details given in the said agreement and we will limit ourselves to the facts pertaining to the present case.

5. The petitioner’s husband died while in harness on 26.03.2014 being an employee of Uttarakhand Federation and as per the agreement dated 09.08.2012, all the employees, who retired from the Uttarakhand Federation after 31.01.2012, the post retirement dues of such employees either on the date of superannuation or death will be divided between the two federations, inasmuch as the U.P. Federation will have the liability to pay the pension and dues till 31.12.2004, and thereafter it will be borne by the Uttarakhand Federation. list of these 49 employees has been annexed separately by the two federations i.e. U.P. Federation and Uttarakhand Federation.

6. The case of respondent no. 4 is that clause 4 of the agreement dated 09.08.2012 shows that it would be the exclusive liability of the Uttarakhand Federation. The liability of only first 49 employees, who either retired or passed away after 31.01.2012, would be shared i.e. till

2004 by the U.P. Federation but for the remaining employees i.e. such employees, who are not in the list of 49 employees would be borne by the Uttarakhand Federation alone.

7. Learned counsel for the Uttarakhand Federation Mr. Paresh Tripathi though contends that this list is not part of the agreement and Clause 4 of the agreement referred above, shows that the sharing liability of first 49 employees, who either retired or passed away will be shared by the two. The petitioner’s husband is not amongst the 49 employees, who either retired or passed away during this period. Admittedly, the name of the petitioner’s husband does not figure in the list of the 49 employees but this could not have been visualised that he would have pass away on 31.01.2012 and he would be definitely counted in the list of 49 employees if combined list of first such employees is prepared, who were either superannuated after 31.01.2012 or unfortunately passed away, that was the spirit of the agreement.8. Learned counsel for the Uttarakhand Federation further submits that the agreement dated 09.08.2012 was signed by the Managing Director of the Cooperative Society i.e. Mr. A.K. Kala, who was not authorized by the Management Committee and therefore no reliance can de placed on that.

9. However, considering the fact that this agreement was existing on 31.01.2012 and the interpretation, which is being given by the learned counsel for the Uttarakhand Federation makes this contract extremely vague and thereafter interpreting in that manner it would not remain contract for its

vagueness. The clause has to be read that first 49 employees, who superannuated after 31.01.2012 would also include such employees from the list of 49 employees, who unfortunately passed away. The name of the petitioner’s husband was not in the list. Therefore, he cannot be considered in the list of 49 employees. In other words, the liability of Uttarakhand Federation cannot be shared between the two and it becomes the exclusive liability of the Uttarakhand Federation.

10. Learned counsel for the petitioner, thereafter, relied upon Clause 3 and Clause 3A of Section 7 of the Payment of Gratuity Act and pleads that since the gratuity has not been paid in time, respondents are liable to pay the gratuity along with 10% interest, which is due on the late payment of gratuity. On this aspect not enough pleadings have been made. Considering that this aspect may have wider implications, this aspect is not presently being adjudicated and is being left open for the petitioner to bring it as fresh cause of action.

11. In view of the aforesaid, the writ petition hence succeeds. mandamus is hereby issued to the Uttarakhand Cooperative Federation to give all the post retiral dues to the petitioner within period of one month from the date of production of certified copy of this order.

Ankit

(Sudhanshu Dhulia, J.)

13.12.2016