Dismissed

Barna Coop. Credit and Service Society L v. Satish Kumar and Ors.

Punjab & Haryana HC14 Oct 2009CR/6424/2006

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana allowed a revision petition filed by a cooperative society challenging an executing court's order. The society argued the prior decree was unexecutable due to lack of government permission for pay scales. The Court held the relief was based on Haryana Govt rules and the objection regarding alternative rules was rejected as those rules applied later.

What did the court decide?

Revision petition dismissed with no order as to costs.

Barna Coop. Credit and Service… — Pension and Retirement Benefits | Punjab & Haryana HC (2009)

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CR No.6424 of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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CR No.6424 of 2006 Date of Decision: 14.10.2009

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The Barna Cooperative Credit and Service Society Ltd. Barna, Tehsil Thanesar,Distt. Kurukshetra

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.....Petitioner

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Vs.

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Satish Kumar and others ....Respondents

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CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA

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Present : Mr. Deepak Sonak, Advocate for the petitioner. Mr. Subhash Ahuja, Advocate for respondent no.1.

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RAJIVE BHALLA, J (Oral)

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CM No.20619-CII of 2009

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Allowed as prayed for.

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CM No.20620-CII of 2009

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C.M. is allowed. Documents Annexures R-A to R-B are taken

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on record.

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C.R. No.642 of 2006

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The petitioner society challenges an order dated 10.4.2006, passed by the Civil Judge (Junior Division), Kurukshetra, dismissing its objections, filed in proceedings for execution of a judgement and decree

CR No.6424 of 2006

dated 31.1.1997.

Respondent no.1 was appointed as a Clerk on 8.7.1979. He filed a suit praying for a declaration that as he is a regular and confirmed employee of the petitioner society, he is entitled to salary, allowances and arrears etc. as given to Haryana Government employees. Vide judgement and decree dated 31.1.1997, the Civil Judge (Junior Division), Kurukshetra, decreed the suit by holding that the respondent is a regular, confirmed employee, entitled to all consequential benefits and arrears of pay etc. from the date of his initial appointment, within a period of three months, failing which interest would be paid @ 12% p.a.

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In execution proceedings, the petitioner society filed objections, inter alia, pleading that the judgement and decree dated 31.1.1997 is inexecutable as it does not set out the date of regularisation, the post on which respondent no.1 has been regularised and does not specify the pay scale to be granted. It was further pleaded that the resolution dated 1.6.1992, passed by the petitioner, for adopting Haryana Government pay scales was rejected by the Government and, therefore, respondent no.1 cannot be granted the pay scale granted to Haryana Government employees.

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In response, respondent no.1 pointed out that these objections have been considered and rejected by the trial court, while passing the decree under execution. Vide order dated 10.4.2006, the executing court rejected the objections and held that as the points raised by the petitioner society have already been rejected in the judgement that have attained finality upto the High Court, the objections are devoid of any merit.

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Counsel for the petitioner society submits that the decree is unexecutable, as the respondent's claim for salary as per Hayana

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CR No.6424 of 2006

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Government pay scales, is based upon a resolution dated 1.6.1992, which has been rejected by the government. It is further contended that as the decree does not set out any pay scale, the respondent is at best entitled to the pay scale admissible to a clerk under the Primary Cooperative Credit and Services Societies Staff Services Rules, 1992.

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Counsel for respondent no.1, however, submits that these objections were raised, considered and rejected by the trial court, while decreeing the suit. It is further submitted that there is no ambiguity in the decree and in case of a perceived ambiguity,the judgement can always be appraised so as to determine the real intent and scope of a decree.

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I have heard learned counsel for the parties, considered the arguments addressed and perused the impugned order. The only question is whether salary is to be paid at par with the salary drawn by a clerk working under the State of Haryana or is to be paid in accordance with the Primary Cooperative Credit and Services Societies Staff Services Rules, 1992.

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A brief factual narrative of the case would be appropriate. Satish Kumar respondent no.1 filed a suit praying that as he is a regular employee, he is entitled to salary, allowances and arrears etc. as per Haryana Government Rules. It was further pleaded that as the petitioner-society has passed a resolution regularising his service and granting regular pay scale in accordance with the pay scale being drawn by a clerk working with the State of Haryana, respondent no.1's pay scale should be fixed accordingly. The prayer clause, which has been reproduced in the decree under execution reads as follows :-

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“ It is, therefore, prayed that a decree for declaration to the effect that the plaintiff is regular and confirmed

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CR No.6424 of 2006

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employee of the defendants and that of the plaintiff is legally entitled for arrears, differences of pay, bonus, allowances, increments, seniority and all other legal benefits with 18% per annum interest from the defendants from the date of his appointment as per Haryana Govt. rules with consequential relief of mandatory injunction directing the defendants to regularise the services of plaintiff and consider the plaintiff as regular and confirm employee under the defendants and pay the plaintiff all arrears, differences of pay, bonus, allowances, increments, seniority and all other legal benefits with 18% per annum interest from the date of his appointment i.e. 6.7.1979, may kindly be passed in favour of plaintiff and against the defendants with costs.

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Any other relief to which the plaintiff is found entitled be granted to plaintiff.”

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The petitioner-society filed a written statement admitting that the services of respondent no.1 have been regularised. The society did not deny the resolution dated 1.6.1992 but asserted that sanction has not been granted by the Deputy Registrar and the Assistant Registrar, Cooperative Societies. The petitioner-society also averred that as permission has not been granted by the competent authority, arrears cannot be paid to respondent no.1.

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The Civil Judge (Junior Division), Kurukshetra, vide judgement and decree dated 31.1.1997, decreed the suit. A relevant extract

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CR No.6424 of 2006

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from the judgement reads as follows :-

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“In order to prove the issue that plaintiff is regular and confirmed employee of defendants, plaintiff has examined PW1 Ishwar Singh who brought with him summoned record including resolution dated 29.5.1992 copy of which has been placed on record as Ex.P7. Now the perusal of Ex.P7 resolution dated 29.5.1992 reveals that on 29.5.1992 it was unanimously decided by the Managing Committee of defendants Society that plaintiff and other employees are to be regularised and they also would be entitled to all allowances which are available to employees of Haryana Government since 1.6.1992 and also it was decided that plaintiff Satish Kumar as well as other employees would be paid arrears upto 31.5.1992. Also it was contended that Society Secretary would be entitled to allow the arrears and necessary permission would be received from Assistant Registrar/Sub Registrar Co.Op. Society Kurukshetra. Though it has been contended by the defendants that resolution has been sent to the Government for permission and till today no permission has been received from the Government which permission is necessary to be sought as per RCS rules of the Society but perusal of copy of service rules which have been placed on record as Ex.D4 reveals that it has been no where that any such permission is to be sought from the Government after a resolution has been

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CR No.6424 of 2006

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passed by the Managing Committee of the Society. Hence, one and only reason available to the defendants as to why plaintiff was not being regular and confirmed can be stated to be without any ground and it merely seems a tactic to duly granting of relief to the plaintiff as DW1 Ishwar Singh himself admitted that plaintiff has been regularised and he is held entitled to other consequential benefit vide resolution dated 29.5.1992.”

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On the basis of these findings, the Civil Judge, (Junior Division), Kurukshetra drew up a decree. The operative part of the decree reads as follows :-

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“This suit is coming on this day for final disposal before me (Miss Kanchan Nariala, Civil Judge Junior Division), Kurukshetra in the presence of Sh.N.R. Gupta, counsel for the plaintiff Sh.J.N. Sharma, counsel for defendant no.3 and Sh.P.C. Aggarwal, counsel for defts. no.1,2 & 4.

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It is ordered that the suit of the plaintiff is decreed with costs and a decree for declaration to the effect that plaintiff is a regular and confirmed employee under the defendants is passed in favour of the plaintiff. The defendants are directed to release the arrears of pay and other consequential benefits to the plaintiff and plaintiff be considered as regular and confirmed employee from the date of initial appointment and the arrears of pay and other consequential benefits be paid to the plaintiff within three months from today failing which the

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CR No.6424 of 2006

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defendants shall be liable to pay interest at the rate of 12% per annum from today till the date of actual payment.”

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The petitioner-society filed an appeal, which was dismissed by the District Judge, Kurukshetra. The petitioner society, thereafter, filed RSA No.1845 of 1997, which was dismissed on 8.7.1997.

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The decree, when read with the relief clause leaves no ambiguity as to its true intent and import. The executing court, therefore, did not commit any error in dismissing the objections. An executing court cannot travel beyond a decree or substitute its own opinion. Where, however, the decree is ambiguous an executing court would be justified in appraising the judgement, so as to determine the true intent and import of a decree. A reference to a relevant extract from the judgement reproduced in the earlier part of this order, leaves no doubt that the objections raised by the petitioner society relating to the lack of permission from the authorities was considered and rejected by the Civil Judge, (Junior Division), Kurukshetra and the District Judge, Kurukshetra. The appeal filed by the petitioner-society has been dismissed by the High Court. The argument that the decree does not refer to the date of regularisation is misplaced as the petitioner-society, regularised the services of respondent no.1 during the pendency of the suit. The argument that the decree does not refer to the pay scale to be granted to respondent no.1 has to be rejected as this argument is dealt with in the judgement and the pay scale admissible to respondent no.1 is set out therein. The other argument that the respondent should be granted pay scale in accordance with the Primary

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CR No.6424 of 2006

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Cooperative Credit and Services Societies Staff Services Rules, 1992 cannot be accepted, as these rules were adopted by the Society in January 1993 after the date from which service has been regularised and, therefore, do not apply to the case in hand.

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As a consequence, as the executing court has not committed any error in dismissing the objections filed by the petitioner society, the revision petition is dismissed with no order as to costs.

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14.10.2009 GS

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(RAJIVE BHALLA) JUDGE

Barna Coop. Credit and Service Society L v. Satish Kumar and Ors.

Case brief

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Barna Coop. Credit and Service Society L v. Satish Kumar and Ors.

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