The Radhana Co-Operative Credit and Services Society Ltd. vs Chander Bhan

Swatanter Kumar, J.—This regular second appeal is directed against the judgment and decree dated 11.9.98 passed by the learned

Additional District Judge, Jind, accepting the appeal preferred by the respondent herein

A reference to basic facts would be necessary. Chander Bhan had filed a suit for permanent injunction restraining the defendant Radhana Co-

operative Credit and Services Society Ltd., Radhana, from reverting the plaintiff from the post of Salesman-cum-Clerk to the post of Chowkidar

and from promoting Pawan Kumar in his place. The case of the plaintiff was that he is working as Salesman-cum-Clerk in the defendant Society

since 5.5.1984; he also passed course ''Co-operative Officer Holder'' in 1964 and is qualified to hold the said post and even otherwise he is

having 10 years experience of the post, it was further the case of the plaintiff that he has a vested right in the post and cannot be reverted without

the due process of law. The suit was contested by the defendant. In addition to taking various preliminary objections, the defendants also

contested the suit on merits. It was stated that the plaintiff, though was working as Salesman-cum-Clerk but he was not competent to hold the said

post, the plaintiff does not hold minimum prescribed qualification of Matric and, therefore, the defendant has a right to revert the plaintiff. An

objection with regard to territorial jurisdiction was also taken. The learned trial Court framed the following 8 issues for determination of the

controversy in the suit:-

Whether the defendant has no right to revert the plaintiff from the post of salesman to chowkidar on the grounds mentioned in the plaint, if so its

effect? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the civil court has no jurisdiction to try and decide the present suit? OPD

Whether the suit is bad for want of notice u/s 124 of Haryana Co-operative Societies Act? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Whether the suit is time barred? OPD.

Whether the defendant is entitled to special costs u/s 35-A CPC, if so, to what amount? OPD

Relief.

The learned trial Court vide its judgment and decree dated 17.10.1997 dismissed the suit of the plaintiff though the learned court answered issue

Nos. 4, 6, and 7 in favour of the plaintiff. The learned 1st Appellate Court set aside the judgment and decree of the learned trial Court and also

decided other two issues in favour of the plaintiff and decreed the suit in favour of the plaintiff, giving rise to this regular second appeal.

The learned counsel appearing for the appellant has mainly argued that the learned 1st Appellate Court has fallen in error of law and on fact, in

disturbing the findings recorded by the learned trial Court. He has made a reference to the rules to argue that the respondent herein does not

posses requisite qualification. The learned 1st Appellate Court found that the action of the respondents (Society) was violative of the principles of

natural justice and was not in consonance with law. The Court held as under:-

A perusal of Ex.D-2 shows that only five items were fixed for consideration of the members of the society on 20.6.1994 but subsequently two

more items No. 6 and 7 in Ex.D-2 have been added later on. Vide this resolution the society decided to revert the plaintiff as Chowkidar.

However, before passing this resolution no notice was given to the plaintiff and he was not given the opportunity of being heard. This resolution

was passed all of a sudden after a period of 10 years without assigning any sufficient reason. At any date, if any such resolution was to be passed,

the plaintiff-appellant must have been given the opportunity of being heard and only thereafter the resolution reverting the plaintiff should have been

passed. Similarly in resolution Ex.P-3 it is mentioned that Pawan Kumar who was working as chowkidar is posted as Salesman-cum-Clerk

because he fulfils the qualification for the post of Salesman-cum-Clerk and that the plaintiff-appellant does not fulfil the qualification. This resolution

was passed on 6.7.94. There is a written statement filed by the defendant-respondent society in the civil suit titled Pawan Kumar v. Radhan

Society and the same is Ex.P3. In this written statement Radhana Society took the plea that Pawan Kumar was not having the qualification for the

appointment of Salesman-cum-Clerk. This written statement was filed on 10.5.95 in the civil suit filed by Pawan Kumar against Radhana Society in

the court of Sub Judge 1st Class, Jind.

A bare reading of the above findings shows that the appellant is acting arbitrarily and without following the principles of natural justice. A person

who has been holding a post for a period of 10 years and has been drawing all benefits in the scale, cannot be reduced in rank or salary without

following the due process of law. It is an admitted case that no show cause notice was given to the respondent before passing the impugned

resolution. On the contrary, inconsistent stands are being taken even before the Courts of competent jurisdiction from time to time. Under the staff

service rules framed for the members of the Society in the ambit of Rule 18 reduction in emoluments is considered as a penalty and can only be

imposed for misconduct. Such penalty could be imposed by the Committee after following the due procedure. It is nobody''s case that any mis-

representation was made or that respondent had played a fraud on the society when he was appointed to the post of Salesman-cum-Clerk. The

appellants by their conduct and otherwise have acquiesced to the appointment with their eyes open and have created the interest of the respondent

in the post when he worked for more than 10 years on regular basis. Annexure-2 annexed to these rules does not talk of the post of Salesman-

cum-Clerk. It only mentions about the post of Clerk-cum-Cashier where the appointee must have atleast qualification of being a matriculate.

The learned counsel for the respondent has relied upon the case of Hussain Sasansaheb Kaladgi v. State of Maharastra, 1998(1) S.L.R. 72, to

argue that he was never appointed against the post of Chowkidar or Peon and as such he could not be reverted to that post. It is certainly not the

case of the defendant that the plaintiff was appointed as Peon or Chowkidar and was thereafter promoted as Salesman-cum-Clerk. On the

contrary, there is a definite case pleaded by the plaintiff that he was directly appointed as Salesman-cum-Clerk. As such, I find substance in the

contention raised on behalf of the respondent.

It is also a settled rule of law that reduction in rank or reduction in salary cannot be effected without following the prescribed procedure and

such punishment should be awarded against definite and proper reasons. In this regard a reference can be made to a judgment of Hon''ble

Supreme Court in the case of Parshotam Lal Dhingra Vs. Union of India (UOI), .

It is also a conceded case that no opportunity was granted to the respondent before passing the impugned resolution. Consequently, I have no

hesitation in. dismissing the present appeal which is without any merit.

Resultantly, the regular second appeal is dismissed without any order as to costs.