1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.9531 of 2011 S.Maharajan ... Petitioner Vs 1.The General Manager, Tamil Nadu State Transport Corporation Dindigul Division, By-Pass road, Dindigul. 2.The Branch Manager, TNSTC, Batlagundu, Dindigul District. 3.The Special Officer, M.D-107 Tamil nadu State Transport Corporation Employee's Co-operative Thrift & Credit Society, Dindigul ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus to direct the first respondent to dispose the petitioner's representation dated 02.08.2010 within a time to be fixed by this Court. For petitioner ...Mr.R.Suriya Narayanan For respondents ...Mr.B.Pugalendhi Spl. Government Pleader O R D E R Mr.B.Pugalendhi, Special Government Pleader, takes notice for the respondents. 2. Pleadings and material on record disclose that for realising a loan amount, availed by the petitioner, Tamil Nadu State Transport Corporation Employee's Co-operative Thrift & Credit Society, Dindigul has obtained an award and that a sum of Rs.8,558/- has been deducted from the salary of the petitioner, by the Corporation. 3. It is the case of the petitioner that he has filed an application No.841 of 2004 to set aside the ex-parte award on the grounds that the petitioner did not receive any summons or notice from the Registrar, with regard to the filing of a claim petition, https://hcservices.ecourts.gov.in/hcservices/ 2 for realising the loan amount. According to the petitioner, he was terminated on 30.08.2003, on the ground of medical disability. When he was provided not with an alternative appointment under Section 47 of Person with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act 1995, he was constrained to file W.P.(MD) No.19268 of 2004, which came to be allowed on 23.12.2009 with a direction to the respondents therein, to provide an alternative employment, with pay protection, continuity of service and 50% of backwages, from the date of discharge from 30.08.2003. As the petitioner is receiving only a meagre salary of Rs.3,388/-, after the said deduction, it is not sufficient to meet the family expenses and therefore, he has submitted a representation, dated 02.08.2010, to the General manager, Tamil Nadu State Transport Corporation, Dindigul Division, Dindigul District, the first respondent herein, to withhold the attachment of salary and also prayed for extension of time for payment of dues to the third respondent. Finding no response on the representation, he has approached this Court by filing the present writ petition, for a mandamus directing the first respondent to pass orders on the abovesaid representation. 4. Material on record shows that recovery of salary of the petitioner has been made pursuant to an award passed in a claim petition filed by the third respondent Society. Tamil Nadu Co- operative Societies Act and the Rules framed thereunder, envisage a specific procedure to be followed, when an award is sought to be executed. Attachment is one of the modes. When there are specific provisions in the statute enabling the decree holder to attach the properties in the manner as provided, there is no statutory duty cast upon the first respondent to consider any representation to withhold the attachment of the petitioner's salary and that would be contrary to the statutory provisions. If there is any irregularity or illegality in the order of attachment, remedy lies before the competent authorities under the Act and Rules framed thereunder. When a mandamus can be issued, it is useful extract few decisions and the principles governing the same. 5. In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows: 10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition.... 6. In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a https://hcservices.ecourts.gov.in/hcservices/ 3 person, who has a legal duty to perform, but has failed and/or neglected to do so. 7. In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus, 11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed https://hcservices.ecourts.gov.in/hcservices/ 4 as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. 12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152- 53) 15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any https://hcservices.ecourts.gov.in/hcservices/ 5 statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same. Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities...." 8. In the absence of any legal or statutory right to consider the representation, mandamus sought for cannot be granted. In view of the foregoing reasons and discussion, the writ petition is dismissed. No costs. Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar To 1.The General Manager, Tamil Nadu State Transport Corporation Dindigul Division, By-Pass road, Dindigul. 2.The Branch Manager, TNSTC, Batlagundu, Dindigul District. 3.The Special Officer, M.D-107 Tamil nadu State Transport Corporation Employee's Co-operative Thrift & Credit Society, Dindigul rr ssk/13.09.2011 /4c-5p/- Writ Petition No.9531 of 2011 24.08.2011 https://hcservices.ecourts.gov.in/hcservices/