Allowed

Shaik Shariff v. the State of Andhra Pradesh

Andhra Pradesh HC21 Sept 2022WP/16695/2022

Case brief

AI extract

What is this about?

In a common order dismissing multiple writ petitions, the Court held that employees of Government-controlled Co-operative Sugar Factories are entitled to retire at age 62 under the Government Order dated 31.01.2022, applying Rule 28(6) of AP Co-operative Societies Rules.

What did the court decide?

Writ petitions allowed; petitioners entitled to retire at age 62; notices to retire at 60 quashed.

Shaik Shariff Vs the State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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THE HON’BLE DR. JUSTICE K. MANMADHA RAO

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WRIT PETITION Nos. 9311, 8190, 18530, 23023, 27696, 16694, 16695, 18209, 18528, 23402 and 27644 of 2022

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COMMON ORDER :

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These Writ Petitions are filed under Article 226 of the Constitution of India, to issue a Writ of mandamus by declaring that the petitioners are entitled to retire on their attaining the age of 62 years and further to direct the respondents to continue them in to service till they attains the age of 62 years in G.O.Ms.No.15 Finance (HR.IV.FR & LR) Department, dated 31.01.2022 and pass such other orders.

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Since the issue involved in all these writ petitions is one and the same, the same are heard and are being disposed of by this common order.

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Heard learned counsel for the petitioners and learned Government Pleader for Services-I; Learned Government Pleader for Cooperation; Mr. V.V.N.Narayana Rao and Mr. T. Balaji, learned Standing Counsel appearing for the respondents.

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The brief facts of the case are that the petitioners are working in Co-operative Sugar Factory on daily wages and drawing monthly salary. The said Sugar Factory is controlled by the Government of Andhra Pradesh and also respondents 2 to 4. The

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service of the petitioners stands classified as Last Grade Service and as per Bye-law framed by the Co-operative Sugar Factory, the workmen shall retire on attaining the age of 60 years. The Cooperative Sugar Factory has been following the same in accordance with the amendments incorporated by the State Government and as per latest amendment brought by the State to Section 3 thereof vide G.O.Ms.No.15, dated 31.01.2022, the age of superannuation in the State Government Employees is fixed at 62 years. The 1^st respondent issued Memo No. 8976/Estt/A1/17, dated 23.07.2018, directed the 2^nd respondent i.e Director of Sugars and Cane Commissioner to enhance the age of Superannuation of the employees of the Co-operative Sugar Factory from 58 to 60 corresponding to the enhancement of the age of superannuation of the State Government Employees from 58 to 60 years and the same is effected to all employees working in the Co-operative Sugar Factory vide proceedings dated 20.04.2016 and extended to 60 years and in fact the said employees include the categories of NMR/ Daily wage employees like petitioners.

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While the matter stood thus, the Co-operative Sugar Factory, which is a statutory creature of A.P.Co-operative Societies Act issued the notice to the petitioners informing them to retire from service i.e 60 years, which is illegal and arbitrary. Though the

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Government issued G.O.Ms.No.15, dated 31.01.2022 extended the age from 60 to 62 years, it applies all employees working under the control of Government of Andhra Pradesh. Therefore the Cooperative Sugar Factory employees and workers union made representation to the Director of Sugar and Cane Commissioner of the Co-operative Sugar Factory requesting to extend the benefit of superannuation of the age of 62 years, but in vain. Hence the present writ petitions came to be filed.

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Per contra, the respondents 1 and 2 filed counter-affidavit in W.P.No. 8190 of 2022 denying all material averments made in the writ petition and mainly contended that the G.O.Ms.No.15, dated 31.01.2022 is applicable only to the Andhra Pradesh State Government Employees, since the Co-Operative Sugars Limited is registered under A.P. Co-operative Societies Act, 1964 and the staff/ workers including NMRs of the Sugar Factory are not the Government Employees. The petitioners are entitled for P.F as per P.F Rules and Gratuity as per payment of Gratuity Act.

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It is further contended that G.O.Ms.No.147, dated 30.06.2014 issued orders enhancement of age of Superannuation from 58 to 60 years only to the Government Employees covered in A.P. Public Employment (Regulation of Age of Superannuation)

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(Amendment) Act, 2014. Subsequently G.O.Ms.No.102, dated 27.06.2017 has extended the benefit of enhancement of age of superannuation from 58 to 60 years to the employees working in the institutions included in the IX and X Schedules of A.P.Reorgnization Act, 2014 i.e the State Government undertakings, Corporations and Societies etc., with the following conditions:

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“i) The specific decision to enhance the superannuation age from 58 to 60 years to their employees shall be taken by the Board of Directors/ Managing Committees of these legal entites.

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ii) While doing so, these Institutions shall take into consideration their financial position and genuineness of their need to enhance the age of superannuation”.

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Further, contended that the Co-operative Sugar Factories in the State do not come under IX and X Scheduled Organizations, the benefit of enhancement of age of Superannuation from 58 to 60 years has been extended through Government Memo dated 23.07.2018, Industries and Commerce Department, being these Co-operative Sugar Factories were Societies registered under A.P. Cooperative Societies Act, 1964, subject to approval of the respective Board of Directors/ Persons-in-Charge at the Sugar Factory duly taking into consideration of their financial position

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and genuineness of their need to enhance the age of Superannuation.

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Learned Standing Counsel for the respondents/ Sugar Factories would contend that most of the Sugar Factories are being run with huge loss and incurred financial loss. Therefore they are not in a position to pay the salaries/ wages to the employees. Even the Sugar Factory authorities are paying full wages during functioning period i.e (approximately six months in a year) and paying half pay during non-functioning period to the employees. Further the respective Board has to take decision, whether the existing employees to continue up to 62 years as per G.Os, such act does not taken by the Board of Sugar Factory. Therefore the petitioners are liable to retire from service after attaining the age of 60 years, but not 62 years. There is no provision or statutory resolution to continue the petitioners up to 62 years. Therefore the petitioners are not entitled to claim relief as prayed in the writ petition and same is liable to be dismissed.

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During hearing learned counsel for the petitioners Mr.G.V.S.Kishore Kumar, placed the bye-laws of The Chodavaram Cooperative Sugars Ltd., Govada, Visakha District, bearing

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Registration No.B1109, Govada, 531023. The relevant bye-laws are extracted as hereunder :

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Byelaw No. 19. Composition of Board of Directors:

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Subject to such resolutions as the General Body may from time to time pass the executive management of the affairs of the Society shall vest in a Board which shall consist of 23 Directors as follows:

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i) 2 Directors from Scheduled Castes.

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ii) One Director from Scheduled Tribe. iii) 2 Directors from Backward Classes.

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iv) 9 Directors open to all. Out of the nine seats kept open to all two sheets shall be reserved, one for election of a small farmer and the other for the election of a non-supply member in respect of constituencies having the largest number of small farmers and non-supply members respectively.

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v) One Director from Non-seasonal worker.

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vi) 3 Directors to be nominated by the Government.

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vii) 5 Directors to be nominated by the Financing Institutions.

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Provided, however, that as and when the nominees of Government or Industrial Finance Corporation or any other financing institutions are withdrawn, the vacancies so caused shall be filled by "supply members".

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(Provided, however, that where a situation arises, when the society already working without any Government's financial involvement decided to borrow funds from Government guarantee, three more directors nominated by Government shall be added to the existing strength of the Board.)

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Byelaw No. 21. (1) Duties and Power of the Board

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xv] to frame rules and regulations for the proper conduct of business of the society. Such rules and regulations shall be recoded in the minute book.

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xix] to prescribe from time to time subject to budget provision the scale of establishment including technical personnel, salaries, etc. and to adopt suitable by-laws relating to the service conditions of employees in conformity with the standing orders approved by the Appropriate Authority and with the approval of Registrar.

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Byelaw No. 24 - B of the 4^th respondent discloses the Powers of Managing Director and upon understanding of the above-law, the Board has not given any such absolute power, where the respondent no.4 can supersede the Board or veto a G.O. issued by the Government in its rule making power as provided under Section 15 of Industrial Employment (Standing Orders) Act, 1946. This court clearly visualises that there is no such absolute decision making power to the respondent no.4, without the approval of the Board and the competent authority, and also in view of the services conditions of an employee working with the respondent no.4 are vested with Board as shown at Bye-law No.21 (1) (xix) as such respondent no.4 cannot issue the impugned proceedings under challenge in the batch writ petitions, contrary to its own bye-laws and G.O.Ms.No.15 dt.31.01.2022.

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Further learned counsel for the petitioners in the batch writ petitions draws the attentions of this Court with regard to Section 4 of The AP Public Employment (Regulation of Age of Superannuation) Act, 1984 (Act No.23 of 1984), which reads as:

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Section 4 :

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“ The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law, for the time being in force”.

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It is evident that the 1^st respondent has altered the service conditions from 58 to 55 or 58 to 60 or G.O.Ms.No.15, which stipulates the superannuation age from 60 to 62 years. It is not the case of the 4^th respondent/ Sugar Factory that the said respondent has not changed the service conditions of its employees. It is also evident from para - 5 of the counter-affidavit filed by the 1^st respondent/ State, where the Government extended the age of superannuation to Cooperative Sugar Factories through Govt.Memo.No.8976/Estt/ A1/2017, dated: 23.07.2018, though Cooperative Sugar Factories do not come under the IX and X scheduled organizations, and the same is implemented by the 4^th respondent in terms of the circular, in terms of the earlier G.O., extending the age of superannuation from 58 to 60 years.

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Mr.G.V.S.Kishore Kumar, learned counsel rightly contended that the policy decisions of the State are dynamic and are not static. State has power to alter, modify or amend any existing policy, within the constitutional framework and the instrumentalities of the State as enshrined under Article 12 of the Constitution of India are under an obligation to follow the same,

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though strict parity cannot be equated to employees of 4^th respondent/ Sugar Factory or similarly placed employees in any State Corporations with Government employees but the precedents followed by these Corporations have a binding effect in implementing the G.O.’s issued by the State and Sugar Factory has no such exclusive power to act in defiance to the G.O.Ms.No.15 issued by the State, without the issue being placed before the Board of the Sugar Factory. On a parallel reading of Section of Section 4 of The A.P Public Employment (Regulation of Age of Superannuation) Act, 1984 (Act No.23 of 1984) and Section 15 of Industrial Employment (Standing Orders) Act, 1946, (Act 23 of 1984) is extracted as hereunder :

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15. Power to make rules.

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(1) The appropriate Government may after previous publication, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

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(2) In particular and without prejudice to the generality of the foregoing power, such rules may-

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(a) prescribe additional matters to be included in the Schedule, and the procedure to be followed in modifying standing orders certified under this Act in accordance with any such addition;

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(b) set out model standing orders for the purposes of this Act;

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(c) prescribe the procedure of Certifying Officers and appellate authorities;

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(d) Prescribe the fee which may be charged for copies of standing orders entered in the register of standing orders;

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(e) provide for any other matter which is to be or may be prescribed; Provided that before any rules are made under clause (a) representatives of both employers and workmen shall be consulted by the appropriate Government.

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The learned counsel for the petitioners in the batch writ petitions, placed before this court The Standing Orders of the

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Chodavaram Cooperative Sugars Ltd., No.B, 1109, Govada and

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relevant Standing Orders, which extracted hereunder:

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1. In these standing orders, unless there is anything repugnant in the subject or context:-

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a) "the Establishment" means the Chodavaram Cooperative Sugars Limited, Chodavaram, Vizag District.

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b) "Manager" means the person for the time being managing the Establishment.

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c) "Ticket" includes a card pass or token..

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2. (1) Workmen may be classified as:-

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a) Permanent workmen (seasonal or non-seasonal)

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b) Probationers.

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c) Seasonal Workmen.

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d) Temporary workmen (Seasonal or non-seasonal)

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e) Casual workmen and

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f) Apprentices.

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(a) “Permanent workmen" means a workman appointed in a permanent vacancy and whose appointment has been confirmed in writing by the employer and includes a workmen who has completed a probation of 6 months in the aggregate in the same or another occupation in Establishment including breaks due to sickness, accident, leave, lock-out, strike, (not being an illegal strike) or involuntary closure of the establishment.

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Mr. G.V.S.Kishore Kumar, learned counsel for the petitioners, the same were adopted by other counsels in the above batch writ petitions would contend that the employees, working in the Co-operative Sugar Factory are public servants within the meaning of A.P.Public Employment (Regulation of age of Superannuation), Act, 1984 and placed reliance on a decision of High Court of Judicature at Madras in the case of “The Joint Registrar/ Administrator, M/s Tiruthani Co-operative Sugar Mills Ltd., Thiruvalangadu, Tiruthani Taluk Vs. P. Siva

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Kumar and Others”¹ wherein the Hon’ble Division Bench, while allowing the appeal have discussed the Prevention of Corruption Act, 1988 with regard to public servant and the Lokpal and Lokayuktas Act, 2013 (1 of 2014), further amendments have been made therein……

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“24. Thus, it is evident that corrupt practices indulged by “public servant” is alarming and the Courts are bound to widen the scope of interpretation of the words “public servant”. The Sugar Mills are performing public duty and the first respondent while working as Cane Officer of Tiruttani Co-opearative Sugar Mills, which was created and registered under the Tamil Nadu Co-Operative Societies Act, 1983, is a ‘public servant’ within the meaning of Section 2(c) of the Act. In the light of the above findings, we are not persuaded to accept the findings given by the learned single Judge”.

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1 W.P.No. 1801 of 2013, dated 18.11.2014

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Further, he placed on record the interim direction of High Court of Judicature for the State of Telangana and Andhra Pradesh in W.P.No.20653 of 2015, dated 18.07.2015, wherein the learned Single Judge passed the following order:

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“Rule 28(6) of the Andhra Pradesh Co-operative Societies Rules, 1964 makes a distinction between the age of superannuation of the Last Grade Servants and the other employees of the Societies. According to the provisions, while the age of superannuation of the other grade employees is 58 years, the provision specifically laid down that the age of superannuation of the Last Grade Servants is 60 years. In view of the said provision, this Court is of the view that the balance of convenience is in favour of the petitioner. Therefore, the petitioner shall continue in service until further orders”.

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In earlier occasions, the Government of Andhra Pradesh issued a Memo No. 8976/Estt./A1/2017, dated 23.07.2018 permitting the Director of Sugar and Cane Commissioner to issue instructions to the Managing Committees of Co-operative Sugar Factories in the State to place proposals for enhancement of age of superannuation from 58 years to 60 years to their staff and workers before the respective Board of Directors/ PICs for taking decision duly taking into consideration of their financial position and genuineness of their need to enhance the age of superannuation.

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The Director of Sugar and Cane Commissioner, A.P, Hyderabad issued a Circular dated 20.04.2016 instructed the Managing Directors for strict compliance viz.,

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“4 (i) All the Managing Directors shall follow the instructions of Government/ Director of Sugar on age of superannuation issued from time to time, keeping in view of the bye-laws of respective Coop.Sugar Factories.

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(ii) The Managing Directors shall take steps to retire all CSF employees, except Last Grade Employees on attaining the age of 58 years.

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(iii) The Managing Directors shall not retire the NMRs/ Daily Wage Employees on attaining the age of 58 years with a plea that they are being allowed officiating allowance in the higher posts i.e Supervisory/ Clerical/ Skilled/ Semi skilled.

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(iv) All the NMRs/ Daily Wage Employees shall be retired from service on attaining the age of 60 years, even though they are allowed to draw Officiating Allowance for attending vacant higher posts i.e Supervisory/ Clerical/ Skilled/ Semi Skilled, by treating them as Last Grade Service.

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(v) The Managing Directors shall take-up necessary amendments/ modifications to their Society’s Bye-Laws and Standing Orders duly incorporating the retirement age of NMRs/ Daily Wage Employees on attaining the age of 60 years, treating them as Last Grade Service, irrespective of drawal of Officiating Allowance in higher posts i.e Supervisory/ Clerical/ Skilled/ Semi Skilled”.

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Accordingly, the said circular instructions complied with and same was in force till recent amendment with regard to age

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enhancement from 60 to 62 years. Therefore learned counsel for the petitioners would contend that in similar circumstances the G.Os and Memos cited supra would squarely applies to the similarly situated employees working in the Sugar Factories as stated supra and are entitled to get same benefit in this case also and shall treating the petitioners as Last Grade Service.

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The Rule 28(6) of the Andhra Pradesh Co-operative Societies Rules, 1964 which makes a distinction between the age of superannuation of the Last Grade Servants and the other employees of the Societies and according to the provisions, while the age of superannuation of the other grade employees is 58 years, the provision specifically laid down that the age of superannuation of the Last Grade Servants is 60 years as held by the High Court of Judicature for the State of Telangana and Andhra Pradesh in W.P.No.20653 of 2015, dated 18.07.2015, the same has to be applied in this case also.

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This Court finds that earlier this Court taken into consideration of the fact with regard to enhancement of age from 58 to 60 as per existing G.Os by then for the employees working in the Sugar Factories in the State, the same principle would directly applies in this matters also, under the circumstances as stated

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supra. Therefore the contention of the learned counsel for the respondents that the Sugar Factories registered under Co-operative Societies Act, therefore the petitioners are not employees in the State Government and that they are not entitled to get benefit to extend the age from 60 to 62 years cannot be sustained. Though in similar circumstances the same Sugar Factories adopted the G.Os and extended the age from 58 to 60. At this juncture, the same principle would be attracted in these matters also.

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Having regard to the facts and circumstances of the case, upon perusal of the material on record and considering the submissions of learned counsel, this Court is of the opinion that the balance of convenience is in favour of the petitioner, therefore the petitioners case has to be considered in view of Rule 28(6) of the Andhra Pradesh Co-operative Societies Rules, 1964, which makes a distinction between the age of superannuation of the Last Grade Servants and the other employees of the Societies. In accordance with the said provision, while the age of superannuation of the other grade employees is 60 years, the provision specifically laid down that the age of superannuation of the Last Grade Servants is 62 years as per G.O.Ms.No.15, dated 31.01.2022, which the petitioners are entitled to.

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Accordingly the Writ Petitions are allowed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.

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___________________________ DR.K. MANMADHA RAO, J

Date: 21.09.2022

THE HON’BLE DR. JUSTICE K. MANMADHA RAO

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WRIT PETITION Nos. 9311, 8190, 18530, 23023, 27696, 16694, 16695, 18209, 18528, 23402 and 27644 of 2022

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Date: 21.09.2022