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Salem vs The Registrar Of Cooperative on 1 July, 2010

Madras High Court
Salem vs The Registrar Of Cooperative on 1 July, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.07.2010

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.NOs.24495, 25666 and 27069 of 2009 and 7071 of 2010
in
M.P.NOs.1 and 2 OF 2009, 1 of 2010, 1 to 3 of 2009 
and 1 to 3 of 2010

W.P.NO.24495 OF 2009:

Salem, Namakkal & Erode District Taluk
 Cooperative Housing Societies
 Employees Union,
Regn. No.NKL 16 affiliated with
Labour Progressive Front
rep. By its General Secretary
D.Venkat Raman					..  Petitioner


	Vs.

The Registrar of Cooperative
 Societies (Housing),
Chennai-600 020.					..  Respondent

W.P.No.25666 of 2009:


1.A.Munusamy
2.M.Rajaram
3.R.Chidambaram
4.V.Arumugam
5.A.Elumalai					..  Petitioners

	Vs.

1.The Registrar of Coop. Societies (Housing),
   O/o.Managing Director,
   Tamil Nadu Housing Board,
   Anna Salai, Nandanam,
   Chennai.
2.The Deputy Registrar of Coop. Societies (Housing)
   No.26/4, South Kavarai Street,
   Manjakuppam, Cuddalore-1.
3.The Special Officer,
   S.A.H.H.G.49, Gingee Taluk Coop. Housing Society Ltd.,
   No.6/4, Rajendra Nagar,
   Gingee,
   Villupuram District.					..  Respondents 

W.P.No.27069 of 2009:

1.D.Dhandapani
2.K.Daiveegan
3.J.Elumalai					..  Petitioners

	Vs.

1.Government of Tamilnadu,
   rep. By its Secretary,
   Department of Housing and Urban Development,
   Fort St. George,
   Chennai-600 009.
2.Registrar of Cooperative Societies (Housing),
   Office of the Managing Director,
   Tamilnadu Housing Board,
   Anna Salai,
   Nandanam,
   Chennai.
3.The Deputy Registrar of Cooperative Societies (Housing),
   No.26/4, South Kavarai Street,
   Manjakuppam, Cuddalore District.
4.The Special Officer,
   Tamil Nadu Cooperative Housing Federation Ltd.,
   No.40, Rithreden Road,
   Vepperi, Chennai-7.
5.The Special Officer,
   Sankarapuram Taluk Cooperative Housing Society Ltd.,
   Kallakurichi Main Road,
   Panchayat Union office opposite,
   Sankarapuram,
   Villupuram District-606 401.				..  Respondents 

W.P.No.7071 of 2010:

1.N.Ravichandran
2.V.Narayanasamy
3.M.Ganapathy
4.K.Anandan
5.S.Ramakrishnan
6.M.Dhanasekaran
7.A.Jayakumar
8.V.Nagarajan					..  Petitioners

	Vs.

1.Government of Tamilnadu,
   rep. By its Secretary,
   Department of Housing and Urban Development,
   Fort St. George,
   Chennai-600 009.
2.Registrar of Cooperative Societies (Housing),
   Office of the Managing Director,
   Tamilnadu Housing Board,
   Anna Salai,
   Nandanam,
   Chennai.
3.The Deputy Registrar of Cooperative Societies (Housing),
   No.26/4, South Kavarai Street,
   Manjakuppam, Cuddalore District.
4.The Special Officer,
   Tamil Nadu Cooperative Housing Federation Ltd.,
   No.40, Rithreden Road,
   Vepperi, Chennai-7.
5.Vridhachalam Taluk Cooperative Housing
     Society Ltd.,
   No.SAHSG-56,
   rep. By its Special Officer,
   Kattu Gudalur Road,
   No.15, Thiru Vi Ka Nagar,
   Vridhachalam,
   Cuddalore-606 001.				..  Respondents 



W.P.No.24495 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that clauses No.5, 6(1)A and 6(VIII) in RC No.4304/2003 SF2 dated 15.06.2009 passed by the respondent are illegal, unconstitutional and void.

W.P.Nos.25666 and 27069 of 2009 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the entire records relating to the impugned order passed by the first respondent in W.P.No.25666 of 2009 and second respondent in W.P.No.27069 of 2009 in his proceedings R.C.No.387/2008/B3, dated 5.11.2009 and quash the same insofar as the petitioners are concerned.

W.P.No.7071 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records pertaining to the orders issued by the second respondent in RC.No.387/2008/B3 dated 05.11.2009 and in letter No.1337/2010 B3 dated 23.02.2010 and the impugned circular issued by the fourth respondent in Na.Ka.No.1206/2008 Kee.Vee.Thee dated 04.03.2010 and to quash the same insofar as the petitioners are concerned.

For Petitioners : Mr.V.Ajoy Khose
in W.P.Nos.7071/2010 and 27069 of 2009
Ms.Thenmozhi Sivaperumal
in W.P.No.24495 of 2009
Mr.C.Prakasam
in W.P.No.25666 of 2009

For Respondents : Mr.K.Balakrishnan, AGP
Mrs.D.Geetha, AGP for R2
in W.P.No.25666 of 2009
Mr.P.Muthukumar for R5
in W.P.No.27069 of 2009

– – – –

COMMON ORDER

In the first writ petition (W.P.No.24495 of 2009), the petitioner is Employees Union of various Cooperation Housing Societies functioning in Districts of Salem, Namakkal and Erode. It is claimed to be registered and also affiliated to Labour Progressive Federation (LPF). The prayer in that writ petition is for a writ of declaration declaring that clauses No.5, 6(1)A and 6(VIII) in RC No.4304/2003 SF2 dated 15.06.2009 passed by the respondent are illegal, unconstitutional and void.

2.In that writ petition, the Registrar of Cooperative Societies (Housing), the sole respondent, issued a circular, dated 15.6.2009 fixing the cadre strength, pay scale in respect of various employees working in the Cooperative Housing Society. The petitioner is aggrieved by the following clauses:

“5.Irregular Deputations:

There are large number of employees irregularly deputed from their parent Societies and working in other Societies. They are to be necessarily reverted back to their parent Societies and for them, Settlement is to be made only based on the conditions at the parent Society level. They may be regularized subject to the condition that they should fulfill all the conditions specified in TNCS Act 1983 & Rules 1988, Rule 149.

6.Guidelines for implementation:

i)Notwithstanding anything contained in the orders released hereinabove, the following or the criteria for the payment of salary and other allowances etc. in respect of the societies other than the profit making societies;

(A)The actual payment of salary and other Allowances shall be worked out based on the total earnings of the society i.e. 1% of interest margin earned.

(viii) Irregular Employees: In respect of irregular employees in order to maintain industrial peace, smooth functioning of the system and without interruption of service to the public. It is ordered that the irregular employees shall be paid a consolidated pay as detailed in the Annexure II effective from 1.1.2009. Total existing strength of this category of irregular employees also paid the higher scale of pay as per the settlements u/s 12(3) and 18(1) of the Industrial Dispute Act 1947 now drawn shall not be taken into consideration. The demand of the employees organizations’ representatives to regularise the service of the irregular employees shall be taken up and a proposal shall be sent to Govt. seeking permission for the regularization with new time scale of pay until then the consolidated pay so fixed above may be allowed to draw, subject to the orders of the Govt. in this regard with the following conditions.

(a)The employees getting consolidated pay as per this order can’t demand parity with regular employees.

(b)This will not confer regularization in the post and consequent benefits such as seniority, promotion etc.

(c)The employees getting consolidated pay now as per this order will continue to be treated as “Irregular employees” and will be governed by such rules as applicable for this category.

(d)Clauses like parity with “Junior getting more pay” will not be applicable in these cases.

(e)The irregular employees getting consolidated pay shall not be entitled to claim any higher salary or weightage for any reason whatsoever.

(f)Irregular employees getting consolidated pay shall not be legally entitled to claim any service benefits.

(g)In order to maintain the industrial peace the consolidated pay is granted. The consolidated pay itself is only provisional and it will not confer their status as employees of the society until the decision of the Government in this regard.

(h)The consolidated pay for irregular employees will be disbursed proportionately as prescribed in para 6(i) above.”

3.The writ petition was admitted on 5.1.2010. Pending the writ petition, an interim stay was granted. The matter was also directed to be posted along with W.P.No.25666 of 2009.

4.W.P.No.25666 of 2009 was filed by five petitioners working in Ginjee Taluk Cooperative Housing Society Limited, Ginjee, Villupuram District. The prayer in that writ petition was to challenge the order of the Registrar of Cooperative Societies (Housing), dated 5.11.2009. In that impugned order, the Registrar directed that the salary of the employees of the primary cooperative housing societies should be met out from the actual income earned by the primary societies and that for calculation of actual income of the society, in respect of collection of federation over dues, interest margin of 1% alone should be taken as income of the society and the remaining collected over dues should be accounted for towards the repayment of federation dues.

5.In that writ petition, notice was taken by the respondents. The writ petition was admitted on 11.12.2009. Pending the writ petition, an interim stay was granted initially for a short period and subsequently, it was continued. The petitioners also took out an application for disbursing the salary already paid to the petitioners.

6.Thereafter, the third writ petition (W.P.No.27069 of 2009) came to be filed by three petitioners working in the Tamil Nadu Cooperative Housing Federation Ltd., challenging the very same order, dated 5.11.2009 issued by the Registrar of Cooperative Societies (Housing). When that writ petition came up on 23.12.2009, this court ordered notice of motion and also granted an interim injunction. Though the interim injunction was granted initially for a limited period, it was further extended.

7.The fourth writ petition came to be filed by eight petitioners, who are working in Vridhachalam Taluk Cooperative Housing Society Ltd., Vridhachalam, challenging the order dated 5.11.2009 and a letter dated 23.2.2010 and a circular dated 4.3.2010. Apart from the order, dated 5.11.2009, the letter dated 23.2.2010, the Registrar of Cooperative Societies (Housing) informed the Special Officer, Tamil Nadu Cooperative Housing Federation Ltd. that 3% of margin money towards payment of salary beyond six months shall be reviewed after six months and the concession will be withdrawn after six months. In the second letter dated 4.3.2010, the Deputy Registrar (Housing), Cuddalore informed all Special Officers in his region to adhere to the earlier letter, dated 1.3.2010.

8.When that writ petition came up on 7.4.2010, this court directed the other writ petitions to be posted together. In view of the interconnectivity among all the writ petitions, they were heard together and a common order is passed.

9.All these writ petitions are assailed on the ground of maintainability in the light of the larger bench judgment of this court in K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal Circle, Namakkal-636 001 and another reported in 2006 (4) CTC 689.

10.Mr.V.Ajoy Khose, learned counsel for two writ petitions contended that Marappan’s case will apply only when the order of the Special Officer or Board of Directors of the Cooperative Society is under challenge. But, in the present case, the challenge is to the order of the Registrar of Cooperative Societies (Housing) and therefore, a writ will lie. Secondly, he contended that by the impugned communication, the societies were directed to curtail the pay scales of the employees working in the primary Cooperative Housing societies. Inasmuch as no notice under Section 9-A of the Industrial Disputes Act was issued, the impugned order can be challenged as there was a statutory violation imposed upon the society under Section 9- of the ID Act.

11.In this context, the learned counsel placed reliance upon two judgments of this court, i.e. V.Pandurangan and others Vs. Special Officer, Sriperumbudur Rural Cooperative Housing Society Ltd. and another reported in 1995 (I) LLN 263 and R.Varadharajan Vs. Special Officer, Kadambathur Cooperative Land Development Bank, Thiruvallur reported in 1995 (I) LLN 265.

12.He also placed reliance upon a judgment of the Supreme Court in The Nayagarh Cooperative Central Bank Ltd. and another Vs. Narayan Rath and another reported in 1977 (3) SCC 576 and referred to the following passage found in paragraph 5 of the said judgment, which is as follows:

“5.The High Court has dealt with the question whether a writ petition can be maintained against a cooperative society, but we are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decisions of this Court. We would have liked to go into the question for ourselves, but it is unnecessary to do so as respondent 1 by his writ petition, was asking for relief not really against a cooperative society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise of powers conferred on him by the Cooperative Societies Act. The writ petition was in that view maintainable.”

13.The learned counsel also placed reliance upon an another judgment of the Supreme Court in Madhya Pradesh State Cooperative Dairy Federation Limited and another Vs. Rajnesh Kumar Jamindar and others reported in 2009 (15) SCC 221.

14.Taking the last case first, i.e. Madhya Pradesh State Cooperative Dairy Federation Limited’ case (cited supra), in that case, the findings rendered by the Supreme Court was that the State Federation was the State within the meaning of Article 12 of the Constitution of India. That question does not arise as admittedly the larger bench has held even the society manned by the Special Officer is not amenable to writ jurisdiction. In the third judgment in Nayagarh Cooperative Central Bank Ltd.’s case, it was found that the Registrar was acting as a statutory authority under the Cooperative Societies Act and therefore, for any action of the Registrar, a writ is maintainable. The first two judgments may not be taken note of at this juncture as they were rendered before the five Judges Bench judgment in Marappan’s case (cited supra).

15.Ms.Thenmozhi Sivaperumal, the learned counsel for the petitioners in W.P.No.24495 of 2009 brought to the notice a judgment of the division bench of this court rendered in Tiruchirapalli Hirudayapuram Coop Bank Employees Union etc Vs. Joint Registrar of Coop. Societies, Tiruchirapalli, etc. reported in 1992 (1) LLJ 747 to contend that the concluded settlement cannot be interfered with by the Registrar.

16.However, this issue has been squarely gone into by a division bench of this court in Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Madya Sangam Vs. Deputy Registrar of Cooperative Societies (Housing), Cuddalore Circle, and others reported in 2008 (2) LLN 236. In that case, the division bench after referring to Tiruchirappalli Hiruthayapuram Cooperative Bank Employees union’s case held that may not be a good law after introduction of Rule 149 of the Tamil Nadu Cooperative Societies Rules. The division bench also referred to the judgment of the Supreme Court in Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Labour Commissioner and others reported in 2007 (4) LLN 32 and in paragraph 16 held as follows:

“16.In the light of the above factors, we are convinced that the orders impugned in the writ petitions issued by the first respondent directing the respective co-operative societies to cancel the settlements which came to be arrived in contravention of the directions issued by the Registrar of the Co-operative Societies, dated 16 October 1997, issued under S.181 of the Act 1983 by invoking S.166 of the Act 1983 are perfectly justified. We are also convinced that the Division Bench decision in Tiruchirapalli Hiruthayapuram Co-operative Bank Employees Union V. Joint Registrar of Co-operative Societies, Tiruchirapalli (vide supra), upon which heavy reliance was placed upon by the appellant does not in any way support the stand of the appellant. On the other hand, we can only state that the subsequent direction issued by the Registrar of Co-operative Societies, dated 16 October 1997, by invoking the powers vested in him under S.181 of the Act 1983 was validly made and the impugned orders, dated 12 March 1999 and 8 April 1999, passed in pursuance of the said directions of the Registrar, dated 16 October 1997, as well as by applying S.166 of the Act 1983 were all in tune with the observations made in the above referred to Division Bench decision and therefore, we do not find any scope to interfere with the impugned orders. Moreover, so long as the directions issued by the Registrar, dated 16 October 1997, under S.181 of the Act 1983 remains in force, the subsequent directions and the impugned orders issued by the first respondent by invoking S.166 of the Act 1983 were well within the powers and jurisdiction of the first respondent. ”

17.Therefore, Mr.V.Ajoy Khose, learned counsel contended that denying wages which was already paid, would amount to infringement of Article 21 of the Constitution. Therefore, a writ will lie in respect of constitutional infringement. But, even that question was considered by the Full Bench of this court in T.K.Ananda Sayanan Vs. Joint Registrar, Co-operative Societies, Vellore Region, Vellore and another reported in 2007 (5) MLJ 637. In paragraph 16 of the said judgment, it was observed as follows:

“16.For every alleged or imagined invasion of his rights, an employee of a co-operative society cannot move the writ Court on the ground that his rights under Article 21 have been infringed. The effect of the Supreme Court cases cited in K.Marappan V. Deputy Registrar of Co-operative Societies, Namakkal case (supra) and the propositions set down in K.Marappan V. Deputy Registrar of Co-operative Societies, Namakkal case (supra) cannot be set at naught merely by mentioning Article 21, even if the order is illegal.”

18.In the present case, the challenge is only to the circular sent by the Registrar of Cooperative Societies (Housing) to various societies. As and when the societies take action in terms of the circular, the remedy for the union or workers is to raise an industrial dispute and to allege all infringements of settlements or their right to get a particular wage scale irrespective of whether it was within 1% or 3% of interest margin as permitted by the Registrar. Time and again, this court has held that those non statutory directions are not binding on industrial adjudicators and in a regularly raised dispute, such industrial adjudicating authorities like Labour Court/Industrial Tribunal can go into the question of validity of non statutory circulars and also determine the wage in the light of relevant industrial law, such as paying capacity of employer, region-cum-industry principle and other relevant considerations. Merely because Section 9-A is infringed that will not enable them to approach this court under Article 226 of the Constitution as cooperative societies were held to be not a State within the meaning of Article 12 of the Constitution, even if they were presided by Special Officers. At the maximum, issuance of a notice under Section 9-A of the I.D. Act will enable parties to approach the industrial adjudicating machinery as held by the Supreme Court in The Life Insurance Corporation of India Vs. D.J.Bahadur reported in AIR 1980 SC 2181.

19.In view of the such remedies available to the parties and in the light of the binding precedent in Marappan’s case (cited supra) and the division bench judgment in 2008 (2) LLN 236, all the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions will stand dismissed.

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To

1.The Registrar of Coop. Societies (Housing),
O/o.Managing Director,
Tamil Nadu Housing Board,
Anna Salai, Nandanam,
Chennai.

2.The Deputy Registrar of Coop. Societies (Housing)
No.26/4, South Kavarai Street,
Manjakuppam, Cuddalore-1.

3.The Special Officer,
S.A.H.H.G.49, Gingee Taluk Coop. Housing Society Ltd.,
No.6/4, Rajendra Nagar,
Gingee,
Villupuram District.

4.The Secretary,
Government of Tamilnadu,
Department of Housing and Urban Development,
Fort St. George,
Chennai-600 009.

5.The Special Officer,
Tamil Nadu Cooperative Housing Federation Ltd.,
No.40, Rithreden Road,
Vepperi, Chennai-7.

6.The Special Officer,
Sankarapuram Taluk Cooperative Housing Society Ltd.,
Kallakurichi Main Road,
Panchayat Union office opposite,
Sankarapuram,
Villupuram District-606 401.

7.The Special Officer,
Vridhachalam Taluk Cooperative Housing
Society Ltd.,
No.SAHSG-56,
Kattu Gudalur Road,
No.15, Thiru Vi Ka Nagar,
Vridhachalam,
Cuddalore 606 001

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