P.O. Joy Assistant I, Gujarat Co-operative Milk Marketing Federation Ltd. v. The Managing Director, Gujarat Co-operative Milk Marketing Federation Ltd.; The General Manager, Gujarat Co-operative Milk Marketing Federation Ltd.; The Depot-in-Charge, Kozhikode Depot, GCMMF

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** ## **WP(C).No. 17856 of 2014** ## **PETITIONER/S:** **P.O.JOY ASSISTANT I, GUJARAT CO-OPERATIVE MILK MERKETING FEDERATION LTD., POTHYIL,NEAR VAZHAKULAM,ALUVA,ERNAKULAM DISTRICT.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT/S:** **1 THE MANAGING DIRECTOR, GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LTD, AMUL DAIRY ROAD,ANAND, GUJARAT-388001. 2 THE GENERAL MANAGER GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LTD,104 GN,CHETTY ROAD,III FLOOR T.NAGAR, CHENNAI-600017. 3 THE DEPOT-IN-CHARGE GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LTD.KOZHIKODE DEPOT,KOZHIKODE – 673001.** **BY ADVS. SRI.T.S.HARIKUMAR SRI.K.JAGADEESH SRI.P.B.SAHASRANAMAN SRI.RAAJESH S.SUBRAHMANIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 17856 of 2014** **2** ## **JUDGMENT** **Ext.P6 order of the 1[st] respondentGujarat Co-operative Milk Marketing Federation Limited, is under challenge in this writ petition.** **2. The petitioner, who was working as a Senior Stenographer in the Gujarat Co-operative Milk Marketing Federation Limited, was appointed as Junior Executive (Trainee) as per Ext.P1 order on 14.11.2006. He was posted at Chennai Depot Office and was directed to report to the Zonal Accounts in-charge at Chennai. The appointment was in the pay scale of Rs.7000-25010750. It was stated that he would be a trainee for a period of 6 months from 01.12.2006. As per clause 1.4, it was stipulated that during the training period if he was not able to attain the required performance standards in the new position, the Management reserves its right to terminate his services by giving 24 hours notice** **WP(C).No. 17856 of 2014** **3** **and revert him to original position and he will continue to receive his salary and benefits as per old grade. Clause 1.8 provided that the Federation may terminate his services at any time during his training period by giving one month's notice in writing or by paying one month's salary in lieu thereof. Clause 1.9 provided that on successful completion of training period, he will be on probation in the Jr. Executive Cadre for a period of one year; Federation reserves its right to extend the training period, if found necessary. On the basis of Ext.P1 order of appointment, petitioner was transferred to Chennai as per Ext.P2 order dated 14.11.2006.** **3. Producing Ext.P3 Performance Appraisal Report, petitioner points out that he was rated** **as 'Good' for the period during which he underwent training. In Ext.P3 Performance Appraisal Report for the period ending on 28.02.2007, the designation of petitioner is** **WP(C).No. 17856 of 2014** **4** **shown as J.E(ACTS); date of appointment as 01.12.2006; the date of joining as 23.04.1997; probation/training expires on: 30.11.2007; the total probation/training period : 12 months. In the report, the date of writing the report was : 14.02.2007; the date on which appraising officer signed it is : 14.02.2007 and that of the Countersigning Officer on 26.02.2007. The overall rating was 18. As per the instructions given in the Appraisal Report, the rating scale with 17 to 24 is 'Good' and 9 to 16 is 'Fair'. So under various factors provided under item 1 to 11, petitioner was rated as Superior in one factor i.e., relations with others. 'Good' in 5 factors and 'Fair' in 5 factors. As against the areas in which the advancement was not possible was stated as “not at present”. As against the period when he is likely to be ready for higher responsibilities was stated to be “under training – to be reviewed at a later date”. The next portion of Ext.P3 report was for the half** **WP(C).No. 17856 of 2014** **5** **yearly period ending on 31.05.2007. In this period of probation/training was stated to be expiring in 12 months and the total probation/ training period was stated as 30.11.2007. Overall rating in this report was 'Good' with 20 marks. The petitioner has rated as 'Fair' in 3 factors, 'Superior' in one factor and 'Good' in 7 factors. Regarding the areas of advancement possible, it was stated “nothing at present” and the period when he would be ready for higher responsibilities was stated as “under training. Will be considered later”. The next portion of the report is stated to be for final yearly period ending on 29.06.2007. In this, the period of training was stated to be expiring on 31.05.2007 after six months. The date of writing the report was 29.06.2007. The overall rating was 22 and there were 2 'Superior' against 'relation with others' and 'integrity'; 7 'Good' and 2 'Fair'. As against 'Higher responsibility', it was stated “not at present”.** **WP(C).No. 17856 of 2014** **6** **In the remarks after tabular column, it was stated “employees on tour to Kozhikode Depot expected to return by 2[nd] week of July, 2007 (for training on Depot Accounting)”. The appraisal for the period ending on 30.11.2007 was written on 07.12.2007. The Appraising Officer signed it on 07.12.2007; the counter signing Officer signed it on 12.12.2007. In this, the endorsement was, “recommending extension of probation by six months”. In this, the date of 'reappointment' was stated to be 01.12.2006. “Probation expires” : 12 months expiring on 31.11.2007 and total probation/ training period was stated to be 12 months. The overall rating was 21 marks which is 'Good'. As against 3 factors, the rating was 'Fair' where as, there were two factors- relation with others and integrity with 3 marks each.** **4. As per Ext.P4 order dated 24.08.2007, petitioner was transferred to Kozhikode Depot as Deputy Accounts in-charge with effect from** **WP(C).No. 17856 of 2014** **7** **01.10.2007 with direction to report there on 01.10.2007 and report to Depot in-charge (Retailing) in Kozhikode Depot. Petitioner points out that he has made certain complaints while working at Kozhikode with respect to the delay in submitting the instruments in Bank. It was stated that the internal verification was not being made and required Commercial/Financial statements were not being furnished to the Auditors in time. It was followed by Ext.P6 order issued on 23.06.2008 reverting him to the original post of Assistant Grade in Rs.6400-25012650 with effect from 01.06.2008. It was stated that his performance would be reviewed again and further increment would be released in that grade. According to the petitioner, the reason for his reversion is Ext.P5 complaint submitted by him on 10.06.2008.** **5. Petitioner challenged Ext.P6 order filing W.P.(C) No.24267/2008, which was disposed of as per Ext.P7 judgment dated 12.08.2008** **WP(C).No. 17856 of 2014** **8** **relegating him for remedies under the Industrial Disputes Act. The matter was considered by the Labour Court in ID No.4/09 and as per Ext.P8 order the Labour Court, Kozhikode found that petitioner's reversion was not justifiable. The transfer of petitioner from Kozhikode to Port Blair was found to be unjust and it was directed that petitioner should be posted as Junior Executive at Kozhikode.** **6. The Award was under challenge in W.P.(C) No.31452/2001. The Management had taken up the matter before the Division Bench in Writ Appeal No.3/2012. The learned counsel for the petitioner points out that before the Division Bench, respondents argued that in fact no actual training as such was given, in the post to which the petitioner was reappointed; the contention of the Management was that petitioner belong to Managerial Cadre and therefore Industrial Dispute was not at all maintainable in the case of a person, who is not a workman. Seeing that** **WP(C).No. 17856 of 2014** **9** **the contention raised regarding the status of the petitioner was not raised before the Labour Court, the Division Bench allowed the management to raise those contentions before the Labour Court. In the meanwhile, petitioner was transferred to Port Blair. However it was submitted before this Court that the said transfer order will not be effected. After adducing evidence Labour Court found that petitioner was not a workman and the Labour Court did not have any jurisdiction to adjudicate the issue. This writ petition is filed thereafter.** **7. The learned counsel for the petitioner pointed out that petitioner does not have any other remedy since there is no Tribunal for resolving disputes of the employees of Cooperative Societies under the Rural Co-operative Societies Act of Gujarat. As petitioner was found to be a workman and the Labour Court has rejected his claim, the learned counsel for the** **WP(C).No. 17856 of 2014** **10** **petitioner argued that the Co-operative Society is performing public duties and since the reversion was effected in violation of the service rules, it is a matter where a writ petition is maintainable under the Article 226 of the Constitution of India, in the light of the Larger Bench decision of this Court in** _**Association of Milma Officers and another v. State of Kerala and others**_ **: ILR 2015 (1) Kerala 861.** **8. According to petitioner the Co-operative Society is governed by the Gujarat Co-operative Societies Act,1961 and Section 74 of the Gujarat Co-operative Societies Act provides that the Societies shall frame rules governing the service conditions of the employees. The Officers' Service Rules are framed by the respondent Federation which deals with the disciplinary proceedings against the employees. Rule 29 provides for penalties. Reduction in rank to a lower post is one of the major penalties in Rule** **WP(C).No. 17856 of 2014** **11** **29. Rule 32 provides for the procedure for imposing major penalties. According to the petitioner, the reversion was ordered even without a notice. Therefore the petitioner is challenging the reversion on the ground of procedural violation and therefore a writ petition under Article 226 will lie as against such proceedings.** **9. The respondents filed a counter affidavit stating that a writ petition will not lie against the respondent Society and that the reversion does not involve any element of public duty. It is stated that petitioner's appointment as Junior Executive Trainee was on the conditions specified in Ext.P1 order. Since the duties attached to the new post were different from the duties of Stenographer in which the petitioner was continuing before his appointment as Junior Executive Trainee, it was possible for the Management to revert him in case he did not attain the required performance. Clause 1.4 of** **WP(C).No. 17856 of 2014** **12** **the order of appointment Ext.P1 reserved the right of Management to revert the petitioner to the original position. Petitioner was reappointed as Junior Executive (Accounts). Petitioner became an Officer and his services are governed by GCMMF Officers' Service Rules. He was sent for training under experienced persons in the Zonal office at Chennai. In paragraph 8, it is stated that during probation period at Chennai, his work was evaluated by Quarterly, Half yearly and Final Performance Appraisal and his performance was found not satisfactory. Therefore in order to give him more chance to improve his performance, the zonal in-charge has made counselling on 23.06.2007 along with the 2[nd] respondent. His probation was extended by another 6 months from 01.07.2007 to 30.11.2007. Thereafter he was transferred to Kozhikode Depot with effect from 01.10.2007 as Depot Account In-charge. It is stated that petitioner did not improve thereafter and his training/probation was extended till** **WP(C).No. 17856 of 2014** **13** **31.05.2008 as per Ext.R1(c) letter. Thereafter petitioner was called to the Chennai Office and he was asked to undergo further training. The respondents further stated that he was transferred to Kozhikode based on his request. According to the respondents, a person who is appointed on probation to another grade or post is liable to be reverted to his previous grade during or at the end of the period of probation in accordance with the terms of his appointment, as provided in sub clause (iii) of the explanation of Clause 29 of the Gujarat Cooperative Milk Marketing Federation Limited Officers (Conduct, Discipline and Appeal) Regulations, 1996. Therefore according to them not even a notice is necessary for reverting the petitioner going by the rules and regulations. The respondents have also produced Ext.R1(b) letter dated 14.11.2006, by which the training period of the petitioner was stated to be for a period of six months from 01.12.2006; Ext.R1(c)** **WP(C).No. 17856 of 2014** **14** **order dated 17.12.2007 by which the training period was extended by another six months up to 31.05.2008; Ext.R1(d) letter dated 29.01.2008 says that the committee of counselling had advised the petitioner to spend more time on invoicing, gaining accounts and commercial knowledge etc.** **10. The contention of the petitioner is that petitioner was posted as a Junior Executive and he was not under training when he was posted at Kozhikode. It is also pointed out that when the respondents had in the Performance Appraisal found that petitioner was not in a position to take up more responsibilities, they posted him at Kozhikode as Depot Account-in-charge, with more responsibilities. Having heard the contentions on both sides the question to be examined even assuming that writ petition is maintainable, is whether the reversion ordered is by way of punishment.** **11. In order to examine the contention of** **WP(C).No. 17856 of 2014** **15** **the learned counsel for the petitioner that petitioner could not have been reverted since his posting was on re-appointment and that no probation was necessary on re-appointment and that reversion could not have been made except by way of punishment, it is necessary to have a look at Ext.P1 order of appointment and the service rules.** **12. Clause 1.4 of Ext.P1 order of appointment provides that if the incumbent is unable to attain the required performance standards in the new position, the Management would be free to terminate the services by giving 24 hours notice. At the same time, Clause 1.5 therein provides for reversion to the old grade even without any notice. Clause 1.9 provides for putting the employee on probation on successful completion of the training period which also reserves the rights of the Federation to extend the training period in necessary circumstances.** **13. Ext.R1(c) shows that petitioner's** **WP(C).No. 17856 of 2014** **16** **training period was extended for a further period of six months up to 31.05.2008. However, no further extension is seen. Petitioner's appointment at Kozhikode was subsequent to this. Therefore assuming that his training period was over, then he should be on probation. A scanning of the service rules would show that probation is dealt within Rule 6 of the Service Rules. Rule 6(i) provides that every person appointed to a post as an Officer shall, on his first appointment, be on probation for a period of not less than one year from the date of his appointment and the period of probation shall continue unless he is confirmed in writing by the Appointing Authority. Rule 6(iii), provides that there shall be a condition in the appointment that during the period of probation, the Officer shall be liable to be discharged from the service without any reason being assigned by giving 24 hours or pay in lieu thereof. Rule 8 provides for probation on promotion. Sub Rule (3) provides** **WP(C).No. 17856 of 2014** **17** **that it shall be the implied condition of every promotion to a higher post that, during the period of probation in the higher post, the Officer shall be liable to be reverted to the lower post without any reason being assigned or notice being given.** **14. In the present case, even though it is not be stated that the petitioner's appointment was by way of promotion, the order of appointment Ext.P1 provides that he will be on probation for a period of one year in the event of successful completion of training. There is no order placing the petitioner on probation. But he can only be on training or on probation as stipulated in Ext.P1 order. There is no provision for automatic confirmation in the absence of an order of extension of probation. The Appraisal Reports would show in respect of petitioner that even though he was graded as 'Good' it was only for the period up to 2008.** **15. The contention of respondents is that** **WP(C).No. 17856 of 2014** **18** **for the period subsequent to 01.06.2008, petitioner was found to be 'Fair' only and therefore he had to be reverted.** **16. In view of the provisions contained in the service rules relating to probation, it is permissible to revert an employee, who was already holding a post under the respondent if the performance was found unsatisfactory. Therefore it can be seen the reversion of the petitioner was not one by way of punishment. Therefore the contention that reversion could have been ordered only after conducting an enquiry in accordance with the disciplinary rules is unsustainable.** **In the above circumstances, even assuming that the writ petition is maintainable, despite the fact that the issue relates to disciplinary action of an employee in a society, it cannot be said that Ext.P6 reversion suffered from any illegality for not following the procedure prescribed for imposing major penalty.** **WP(C).No. 17856 of 2014** **19** **Therefore Ext.P6 order does not warrant any interference. Accordingly, this writ petition is dismissed. Sd/P.V.ASHA, JUDGE.** **ww** **WP(C).No. 17856 of 2014** **20** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF RE-APPOINTMENT DATED 14.11.2006. EXHIBIT P2 TRUE COPY OF THE TRANFER ORDER DATED 14.11.2006. EXHIBIT P3 TRUE COPY OF THE RECORDS NOTE DATED 23.6.2007 ALONG WITH PERFORMANCE APPRAISAL FORUM FOR TRANINEES DATED 28.2.2007, 31.5.2007, 29.6.2007 & 30.11.2007. EXHIBIT P4 TRUE COPY OF THE TRANFER ORDER DATED 24.8.2007. EXHIBIT P5 TRUE COPY OF THE E-MAIL SENT BY THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23.6.2008. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 12.8.2008 IN W.P(C) NO.24267/2008. EXHIBIT P8 TRUE COPY OF THE AWARD IN ID NO.4/2009 DATED 18.7.2011 PASSED BY THE LABOUR COURT, KOZHIKODE. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 19.12.2011. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 20.9.2012 IN W.A.3/2012. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 11.4.2013. EXHIBIT P12 TRUE COPY OF THE SUMMONS DATED 6.11.2012. EXHIBIT P13 TRUE COPY OF THE AWARD DATED 30.11.2012. EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 5.7.2014 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.** **WP(C).No. 17856 of 2014** **21** |**EXHIBIT P15**|**TRUE COPY OF THE BYE LAWS OF THE RESPONDENT**| |---|---| ||**SOCIETY.**| |**EXHIBIT P16**|**TRUE COPY OF THE GUJARAT CO-OPERATIVE MILK**| ||**MARKETING**<br>**FEDERATION**<br>**LTD.**<br>**OFFICERS**| ||**(CONDUCT,**<br>**DISCIPLINE**<br>**AND**<br>**APPEAL)**| ||**REGULATIONS, 1996.**| |**RESPONDENT'S/S**|**EXHIBITS:**| |**EXHIBIT R1(A)**|**TRUE PHOTOSTAT COPY OF THE APPOINTMENT**| ||**LETTER ISSUED BY THE PETITIONER TO THE 2ND**| ||**RESPONDENT, DATED 16TH APRIL, 1997.**| |**EXHIBIT R1(B)**|**TRUE PHOTOSTAT COPY OF THE ORDER OF**| ||**PROMOTION/REAPPOINTMENT**<br>**OF**<br>**THE**<br>**2ND**| ||**RESPONDENT ISSUED BY THE PETITIONER, DATED**| ||**14TH NOVEMBER, 2006.**| |**EXHIBIT R1(C)**|**TRUE PHOTOSTAT COPY OF THE COMMUNICATION**| ||**SENT BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER EXTENDING THE PERIOD OF**| ||**PROBATION, DATED 17TH DECEMBER, 2007.**| |**EXHIBIT R1(D)**|**TRUE PHOTOSTAT COPY OF THE COUNSELING NOTE**| ||**CZO/PER 4388, DATED 29TH JANUARY, 2008**| ||**SIGNED BY THE PETITIONER.**| |**EXHIBIT R1(E)**|**TRUE PHOTSTAT COPY OF THE ORDER OF TRANSFER**| ||**ISSUED BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER NO.CZO/PER/5135, DATED 5TH JULY,**| ||**2008 AND 7TH AUGUST, 2008.**|