{"id":108115,"date":"2003-10-31T00:00:00","date_gmt":"2003-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-tamil-nadu-co-op-milk-vs-the-managing-director-on-31-october-2003"},"modified":"2015-10-03T16:42:38","modified_gmt":"2015-10-03T11:12:38","slug":"the-tamil-nadu-co-op-milk-vs-the-managing-director-on-31-october-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-tamil-nadu-co-op-milk-vs-the-managing-director-on-31-october-2003","title":{"rendered":"The Tamil Nadu Co.Op. Milk … vs The Managing Director on 31 October, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
The Tamil Nadu Co.Op. Milk … vs The Managing Director on 31 October, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n In the High Court of Judicature at Madras\n\nDated: 31\/10\/2003 \n\nCoram \n\nThe Hon'ble Mr. Justice P. SATHASIVAM   \n\nWrit Petition No.11631 of 2003\nand \nWPMP.No.14645 & WVMP.No.1233 of 2003       \n\n\nThe Tamil Nadu Co.op. Milk Producers' \nFederation Ltd., Staff Association\nrep. by its General Secretary\nS. Deivanayagam.                                        .. Petitioner\n\n-Vs-\n\nThe Managing Director \nThe Tamil Nadu Co.op. Milk \nProducers' Federation Ltd.,\n\"Aavin Illam\"\nChennai 600 051.                                        .. Respondents\n\n                Petition filed under Article 226 of the Constitution of  India\npraying for issuance of writ of certiorari as stated therein.\n\nFor petitioner :  Mr.  K.S.  Viswanathan\n\nFor respondent :  Mr.  N.R.  Chandran\n                Advocate General\n                for Mr.  P.  Narayanamoorthy\n\n:ORDER  \n<\/pre>\n
                By  consent  of both parties, writ petition itself is taken up
\nfor disposal.\n<\/p>\n
                2.  Aggrieved by the order of the respondent dated 05.04.2003,
\nrevising Five days week  schedule  as  Six  days  week  schedule  with  Second
\nSaturday and all Sundays in the month as holidays and with daily working hours
\nfrom 9.45 a.m.   to 5.00 p.m.  with half-an-hour lunch break in respect of the
\nemployees  working  in  all  the  Administrative  offices,  the   Tamil   Nadu
\nCo.operative  Milk  Producers’ Federation Limited Staff Association, has filed
\nthe above writ petition to quash the same on various grounds.\n<\/p>\n
                3.  The case of the petitioner Association is  briefly  stated
\nhereunder:\n<\/p>\n
                The   petitioner  Association  is  a  registered  Association,
\nbearing Registration No.779\/CPT\/85, registered under the Trade Union Act.  The
\nrespondent – Federation was originally known as “Tamil Nadu Dairy  Development
\nCorporation”  and  thereafter,  reconstituted as “Tamil Nadu Co.operative Milk
\nProducers’ Federation” with effect from 01.02.1981 and  it  is  registered  as
\nCo.operative  Society formed for the purpose of procurement and supply of milk
\nand milk products through out  the  State  of  Tamil  Nadu.    The  petitioner
\nAssociation  consists of various members, including Ministerial staff from the
\ncadre of Office Assistants upto the level  of  Deputy  Managers.    Since  its
\nformation  in the year 19 81, the Federation has been following the foot steps
\nof the State Government as regards pay structure, working  hours  etc.,  while
\nintroducing  Five  days  a week system in 1985, the petitioner Association and
\nother staff Unions were consulted.  In respect  of  marketing  Zonal  offices,
\nControl  Room and Customer service, Six days working system has been followed.
\nThis system has been in vogue for the last 18 years.    While  so,  all  of  a
\nsudden,  by the impugned order dated 05.04.2003, the respondent has introduced
\nSix days a week schedule, without any notice whatsoever to  the  employees  of
\nthe Federation.   The respondent also announced by the said order that it will
\ncome into force with effect from  07.04.2003.    By  the  present  order,  the
\nworking  hours per week have been increased from 38 hours and 45 minutes to 43
\nhours and 3 0 minutes in a week, thus increasing 4 hours and 45 minutes  in  a
\nweek, and  second Saturday of every month has been declared as a holiday.  All
\nother Saturdays have been made as working days.  However, casual leave has not
\nbeen increased  correspondingly.    The   additional   implication   regarding
\nconsumption of water, electricity and fuel and other operations costs have not
\nbeen taken  into  account while passing the impugned order.  The present order
\nis violative of Section 9-A of the Industrial Disputes Act (in short “the I.D.
\nAct”).  No notice in the  prescribed  manner  of  the  nature  of  the  change
\nproposed to be effected was served on the petitioner.  The impugned order fail
\nto consider  the  difficulties  of the employees.  The respondent – Federation
\ndoes not fall within the ambit of definition  of  Public  Utility  Service  as
\nmentioned in  Section 2 (n) of the I.D.  A ct, since it involves in commercial
\nproduction, marketing, distribution, supply of  milk  and  milk  products  and
\ncompeting with the private Dairies involved in the same business.\n<\/p>\n
                4.   The  Managing  Director  of  Tamil Nadu Co.operative Milk
\nProducers’ Federation Ltd., has filed  a  counter  affidavit,  wherein  it  is
\nstated  that  the  respondent  is not amenable to writ jurisdiction, hence the
\nwrit petition is liable to be dismissed.  The Tamil Nadu Co.   operative  Milk
\nProducers’ Federation was formed under the Tamil Nadu Co.  operative Societies
\nAct with  effect  from 01.02.1981.  Prior to the formation of the respondent –
\nFederation, the commercial activities now being carried on by  the  respondent
\nwas carried  on  by the Tamil Nadu Dairy Development Corporation.  The Service
\nRules existing then with regard to the  service  conditions  has  specifically
\nstipulated  that  the Ministerial staff’s discharging administrative functions
\nare governed by  the  Service  Rules  of  the  Tamil  Nadu  Dairy  Development
\nCorporation.   Administrative  instructions  were also issued that the service
\nconditions laid down in the Service Rules would  be  applicable  only  to  the
\nMinisterial employees of the respondent – Federation.  Clause 3 of the Service
\nRules  specifically  stipulate  that  the  Service Rules shall not apply where
\nstanding orders framed under Industrial  Employment  (  Standing  Orders)  Act
\ngovern specific  conditions  of  service of workman.  The employees working in
\nthe  administrative  sections  are  being  governed  by  the  Service   Rules.
\nTherefore,  the petitioners being Ministerial and Supervisory cadre employees,
\nthe Factories Act and the Tamil  Nadu  Shop  and  Establishment  Act  are  not
\napplicable  to  them,  in  view  of the Division Bench decision in the case of
\nJustine L vs.  The Registrar of Co.operative Societies, Chennai<\/a> 10 reported in
\n2002 (4) C.T.C.  385.  Even otherwise, remedy lies by way  of  dispute  before
\nthe Conciliation Officer.\n<\/p>\n
                5.   The members of the petitioner Association being employees
\nof the respondent  –  Federation,  are  governed  by  the  Service  Rules  and
\nadministrative instructions   issued  from  time  to  time.    Therefore,  the
\npetitioner Association is estopped from invoking Section 9-A of the I.D.  Act,
\nwhich is in-applicable in so far as the members of the petitioner  Association
\nare concerned.    On  21.06.1989,  the  working days from Five days a week was
\nimplemented and thereafter Six days a week was  effected  to  Five  days  with
\neffect from  19.03.1990,  after  necessary  resolution  of the Board.  Now, an
\nemergent need was felt in the face of stiff competition from  private  dairies
\nto  increase  the  office productivity with the purpose of increasing the over
\nall performance of the Federation.  Hence, a  resolution  was  passed  by  the
\nSpecial  Officer  to suitably implement the working days from Five days to Six
\ndays a week with the office timings of 9.45 a.m.  to 5.00 p.m.  In respect  of
\nadministrative \/ Ministerial employees.  Introduction of working days had been
\neffected after  necessary  resolution  by  the  Board  \/  Special Officer.  In
\naccordance with Rule 17 of the Federation Service Rules, the  order  has  been
\nissued to  give  effect  to  the same for providing Six days a week.  The said
\nRule does not  per-se  require  issuance  of  notice.    The  Rule  speaks  of
\nnotification alone, which has been duly complied with.\n<\/p>\n
                6.  The Federation is a Public Utility Service, engaged in the
\nprocess  of procuring, pasteurizing and distribution of milk and milk products
\nto the consuming public of towns and cities  and  primarily  in  the  City  of
\nChennai.   The  implementation  of Six days working from Five days effected in
\n19.03.1990 was only a relaxation of the conditions of service  and  the  above
\nsaid  relaxation  has  been  cancelled by the respondent – Federation by order
\ndated 05.04.2003.  This does not require precedence of a notice  much  less  a
\nnotice under  Section  9-A  of  the  I.D.    Act,  as  the  service conditions
\nstipulated in Rule 17 has not been changed.  Further, the membership has  incl
\nuded a  number  of  employees who have since retired.  Similarly, the names of
\nseveral Assistant Managers \/ Superintendents numbering 67 have been  shown  as
\nmembers of the Association out of 386 members.  There are about 2994 employees
\nin the respondent – Federation.  Service Rule 16 enable the Board to prescribe
\nworking hours  for  office  of  administrative  staff  from time to time.  The
\nrespondent – Federation is a Public Utility Service and recommendation of  Six
\ndays  week  system  is  necessary  for increasing the over all performance and
\nproductivity in the face of stiff competition from private dairies.\n<\/p>\n
                7.  In the light of the above  pleadings,  I  have  heard  Mr.
\nK.S.  Viswanathan, learned counsel for the petitioner and Mr.  N.R.  Chandran,
\nlearned Advocate General for the respondent.\n<\/p>\n
                8.  The main ground of attack with regard to impugned order of
\nthe  respondent  dated  05.04.2003,  switching  over  to  Six  days  week with
\nmodification in the working hours, is violative of Section 9-A of the I.    D.
\nAct, since prior notice was not issued to the petitioner Association.\n<\/p>\n
                9.   I  have  already referred to the fact that the Tamil Nadu
\nCo.  operative Milk Producers’ Federation is formed and registered  under  the
\nTamil Nadu  Co.operative  Societies Act with effect from 01.02.1981.  Clause 3
\nof the Service Rules of the respondent specifically stipulate that the Service
\nRules shall not apply where Standing Orders framed under Industrial Employment
\n(Standing Orders) Act govern specific conditions of service of workman.  It is
\nthe claim of the respondent that the employees working in  the  administrative
\nsections are being governed by the Service Rules.  It is also the claim of the
\nrespondent  that the members of the petitioner Association are in the cadre of
\nSuperintendents  and  Assistant  Managers,  which  are  of   Supervisory   and
\nManagerial  in  nature  and  shown  as Junior Management and Middle Management
\ncadre under the Service Rules, the petitioner cannot invoke Section  9  -A  of
\nthe I.D.  Act in respect of those categories of employees.  In this regard, it
\nis relevant to refer the petitioner staff Association members list, which find
\nplace at  page  2  to  22 of the typed of papers filed by the petitioner.  The
\npetitioner Association consists of  Junior  Assistants,  Telephone  Operators,
\nMilk  Inspectors, Milk Recorder Grade III, Checking Assistants, Typists, Steno
\nTypists, Assistants, Superintendents, Milk Marketing Officers, Field Officers,
\nAssistant Managers, Office Assistants etc.,<\/p>\n
                10.  It is not the claim of the petitioners that all the above
\nreferred members are workmen, entitled to invoke Section 9-A of the I.D.  Act.
\nIt is also not disputed that the respondent – Federation has separate  Service
\nRules.   Rule  17 speaks about Holidays, which says that “every employee shall
\nordinarily have a weekly holiday and such other  holidays  as  prescribed  and
\nnotified  by  the  Corporation.”  By  the  administrative  instructions of the
\nerstwhile TNDDC dated 19.03.1980, it was notified to all the persons concerned
\nthat the Corporation Leave Rules in Rule 18 to 25 of the  Corporation  Service
\nRules  will  apply only to the administrative and managerial cadre of staff to
\nwhom the Corporation Services Rules will apply and it will not apply to  those
\nworkmen,  who are governed by the Factories Act, who come under the Industrial
\nEstablishment (Standing Orders)  Act,  as  they  are  governed  by  the  leave
\nprovisions  as  per  the Factories Act, Employees State Insurance Act etc., By
\nproceedings dated 12.06.1985, based on  the  holidays  \/  working  days  being
\nfollowed  by the State Government, the Board in its meeting held on 05.06.1985
\nhas passed a resolution to the effect that the change in weekly  schedule  and
\ntimings  will  be applicable only to the Head Office (Aavin Illam), Madhavaram
\nMilk Colony.  The said proceedings further shows  that  in  pursuance  of  the
\nBoard’s  resolution  dated  12.06.1985,  the  Head  Office  (Aavin Illam) will
\nfunction Five days in a week, i.e., from Monday to Friday with  Saturdays  and
\nSundays as  Holidays with half-an-hour lunch break.  It was clarified that the
\nother Unit Offices will however function as usual for Six days in a week.   By
\nCircular  dated  21.06.1989,  in  order  to bring uniform days of working, the
\nrespondent Board instructed that all the Unit Offices and Head Office  of  the
\nFederation  and  District  Unions  will  have  Six  days week as stipulated in
\nG.O.Ms.No.342 \/ P&AR (Pers-A) Department dated  15.06.1989  with  effect  from
\n01.07.1989 with  holidays  on  II  Saturdays  and  Sundays.  By Circular dated
\n13.03.1990, based on the resolution passed by the Board dated  01.03.1990,  it
\nwas  ordered,  all  Administrative Offices in TCMPF Ltd., will function with a
\nFive days week schedule with daily working hours from 9.30 a.m.  to 5.30  p.m.
\nwith half-an-hour  lunch break with Saturdays and Sundays as holidays.  It was
\nalso clarified that Five days a week system will not be  applicable  to  Zonal
\nOffices, Dairies,  Plants, A.I.  Centers, Chilling Centers etc., and they will
\nfunction as usual with the existing timings.  The said order came  into  force
\nwith effect  from  19.03.1990.  By the order impugned dated 05.04.2003, taking
\nnote of the fact that the respondent – Federation is a Public Utility  Service
\nengaged in the activities of procurement, transportation, processing, packing,
\ndistribution  and  sale  of  milk  and  milk  products  to  the public and the
\ncustomers and to increase the productivity and keeping in  mind  the  need  to
\nimprove  the  over  all  performance  of  the  Federation and also taking into
\nconsideration the quantum of holidays \/ the leave entitlement being enjoyed by
\nthe employees in a year, the  Federation  felt  it  necessary  to  change  the
\nexisting  pattern  of  working  days and working hours in respect of employees
\nworking in the Administrative Offices, in the interest of the Organisation.\n<\/p>\n
                11.  The above details show that first of all the  members  of
\nthe   petitioner   Association,   including   67  Officers  in  the  cadre  of
\nSuperintendents and Assistant Managers, who are of the Junior  Management  and
\nMiddle Management  cadre  Officers  as  mentioned  in  the  Service Rules.  As
\nrightly argued by the learned Advocate  General,  they  being  the  managerial
\ncadre, invocation of  Section  9-A  of  the  I.D.  Act does not arise.  If the
\nmembers of the petitioner Association are below the cadre of  Superintendents,
\nthey  may  be justified in alleging that nonissuance of notice is in violation
\nof Section 9-A of the I.D.  Act.  Both the petitioner Association as  well  as
\nthe respondent Federation furnished the list of members, which admittedly show
\nnot  only  the  lower  cadre  persons  like  Office Assistants, but also other
\nOfficers in the managerial cadre are  members,  hence  the  petitioner  cannot
\nraise  a  contention that the impugned order is in violation of Section 9-A of
\nthe I.  D.  Act.\n<\/p>\n
                12.  The terms and conditions of the appointment order clearly
\nshow that the appointment is governed by Service Rules and Regulations.    The
\nrespondent  – Federation has produced copy of the appointment order in respect
\nof several persons, which show that there is a specific Clause mentioning that
\n“Appointment in the Federation will be  governed  by  the  Federation  Service
\nRules and Instruction and Regulations of the Federation issued thereunder from
\ntime to  time.    ” I have already referred to Rule 17 of the Service Rules of
\nthe respondent – Federation.  In accordance with Rule 17 of  the  Federation’s
\nService  Rules,  the impugned order has been issued to give effect to the said
\nRule for providing Six days a week.  As rightly contended on the side  of  the
\nrespondent,  the  above  said Rule does not per-se require issuance of notice.
\nThe Rule speaks of notification alone, which has been duly complied with.\n<\/p>\n
                13.  The learned Advocate General appearing for the respondent
\nhas also produced a copy of the notification issued by the Government of Tamil
\nNadu, showing that the Milk and Milk Products Industry have been  declared  as
\nPublic  Utility  Service for the purpose of the Industrial Disputes Act, 1947.
\nG.O.Rt.No.487 Labour and Employment Department dated 16.07.2003, show that the
\nMilk and Milk Products Industry continue to be a Public Utility Service on the
\ndate of the impugned order as well as as on date.\n<\/p>\n
                14.  The learned counsel for  the  petitioner  has  very  much
\nrelied  on  the  Division  Bench  decision of this Court in the case of Voltas
\nVolkart Employees Union etc., vs.   Voltas  Limited  etc.,  reported  in  2000
\nW.L.R.  569.    No  doubt,  in  that  decision, after referring the Tamil Nadu
\nIndustrial Establishments (National Festival Holidays) Act, 1956, the Division
\nBench after holding that in the absence  of  notice  or  discussion  with  the
\nemployees  concerned  prior  to  alter  the number of holidays is violation of
\nSection 9-A, 11  and  11-A  of  the  I.D.    Act.    The  said   judgment   is
\ndistinguishable  and  not to be applied to the case on hand, since in the case
\nbefore the Division Bench, the circumstances  relating  to  the  execution  of
\nMemorandum  of Understanding dated 28.12.1984 and the admitted position of the
\nprocess of declaration of the holidays prevalent for  considerable  length  of
\npast period and considered in the light of the protective clause under Section
\n11  of  the Tamil Nadu Act, are sufficient to hold that the said long practice
\nhad assumed the character of a regular condition of service.  In that  factual
\ndetails  and  of  the fact that the employees Union are represented by workmen
\nand also taking note of the fact that the Tamil Nadu Industrial Establishments
\n(National Festival Holidays) Act are applicable, arrived at a conclusion  that
\nnon-compliance of  Section  9-A  of  the  I.D.    Act  infringes the statutory
\nprovision and ultimately accepted the case of the Union.  Here, I have already
\nr eferred to the fact that even according to the  petitioner  Association,  it
\nconsists of not only the persons like Office Assistants and below the cadre of
\nSuperintendents,  but  also Officers in the cadre Junior Management and Middle
\nManagement and the staff  of  the  Federation  are  governed  by  Federation’s
\nService  Rules as well as the Milk and Milk Products Industry is declared as a
\nPublic Utility Service by the Government of Tamil Nadu by proper notification,
\nI am satisfied that the  dictum  laid  down  in  the  Division  Bench  is  not
\napplicable to the case on hand.\n<\/p>\n
                15.   Further,  in  the  counter affidavit, the respondent has
\nexplained that they merely implemented the existing Rule, i.e., Rule 17 of the
\nFederation’s  Service  Rules  and  therefore  consideration   of   the   Staff
\nAssociation is  not  mandatory.   The Six days working system has already been
\nmade applicable to about 2200 employees  working  in  the  marketing  \/  zonal
\noffices \/  control  room  \/ customer services and other areas.  The petitioner
\nAssociation is aware of the provision available  in  the  Service  Rules  with
\nregard to  the  number of working days.  Further, the Five days working system
\nfor a handful of employees, namely  around  386  members  for  the  petitioner
\nAssociation covering 12.89% of the total number of employees of the Federation
\nis purely  a  relaxation extended.  It is also relevant to note that number of
\nworking days and hours have being changed in the past years,  i.e.,  in  1985,
\n1989 and 1990, no one challenged the same.\n<\/p>\n
                16.   In  the light of what is stated above, more particularly
\nin view of the factual details, I do not find any merit in the claim  made  by
\nthe petitioner  Association.    Consequently,  the writ petition fails and the
\nsame is dismissed.  No costs.\n<\/p>\n
                In view of the dismissal of the main writ petition,  connected
\nWPMP., and WVMP., are also dismissed.\n<\/p>\n
Index:Yes
\nInternet:Yes
\nkh<\/p>\n
To<\/p>\n
The Managing Director
\nThe Tamil Nadu Co.op.  Milk
\nProducers’ Federation Ltd.,
\n“Aavin Illam”\n<\/p>\n
Chennai 600 051.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Tamil Nadu Co.Op. Milk … vs The Managing Director on 31 October, 2003 In the High Court of Judicature at Madras Dated: 31\/10\/2003 Coram The Hon’ble Mr. Justice P. SATHASIVAM Writ Petition No.11631 of 2003 and WPMP.No.14645 & WVMP.No.1233 of 2003 The Tamil Nadu Co.op. Milk Producers’ Federation Ltd., Staff Association […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-108115","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Tamil Nadu Co.Op. 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