IN THE HIGH COURT OF JUDICATURE AT MADRAS (SPECIAL ORIGINAL JURISDICTION) FRIDAY THE FIFTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT : THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.34314 to 34318 and 33258 of 2003 K.S.SABAPATHY .. PETITIONER IN WP 34314/2003 P.KANDASAMY .. PETITIONER IN WP 34315/2003 K.NACHIMUTHU .. PETITIONER IN WP 34316/2003 K.KUPPUSAMY .. PETITIONER IN WP 34317/2003 K.ARUMUGAM .. PETITIONER IN WP 34318/2003 C.PALANISAMY .. PETITIONER IN WP 33248/2003 Vs 1. THE DEPUTY REGISTRAR OF COOP. SOCIETIES POLLACHI CIRCLE MARKET ROAD POLLACHI-1, COIMBATORE DISTRICT. 2 THE TIRUPPUR COOPERTIVE PRIMARY AGRL AND RURAL DEVELOPMENT BANK LTD. REP. BY ITS SPECIAL OFFICER 39, NEHRU STREET TIRUPPUR, COIMBATORE DISTRICT .. Respondents 1 & 2 in WP 34314, 34315,34316, 34317, 34318 & 33258/03 Petitions under Article 226 of the Constitution of India, praying that in the circumstances stated therein, and in the affidavit filed therewith the High Court will be pleased to. Issue Writ of Certiorarified Mandamus calling for the entire records relating to the impugned order of the 2nd respondent made in Ref.A.Thi.Mu.Ka dated 20.9.2003 and quash the same and consequently direct the 2nd respondent to pay the terminal benefits of the petitioner including the Provident Fund and Gratuity with interest from the date of retirement till payment. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners :: Mr.K.Premkumar For Respondents :: Mr.P.Subramanian, AGP for R1 Mr.P.Shanmuga Sundaram for R2 O R D E R The prayer of the petitioners in these Writ Petitions is to set aside the order of the 2nd respondent Tiruppur Cooperative Primary Agricultural and Rural Development Bank represented by its Special Officer dated 20.9.2003. 2. By the impugned order, the 2nd respondent informed the petitioners that in view of the Government Order in G.O.Ms.No.186, Cooperation Department dated 16.8.2000 was still in force, any amount paid contrary to the said Government Order and pursuant to the settlement under section 18(1) of the Industrial Disputes Act what is already recovered cannot be refunded. In the normal circumstances, the petitioners being employees of the Cooperative Society, they could have filed a revision under section 153 of the Tamil Nadu Cooperative Societies Act. On the contrary, they have moved this Court with the present Writ Petitions. 3. The Writ Petitions were admitted on 28.11.2003, except W.P.No.33258 of 2003, which was admitted on 20.11.2003. In W.P.No.33258 of 2003, though it was filed by six petitioners, this Court in W.P.M.P.No.39602 of 2003 confined the case only to the 1st petitioner, namely C.Palanisamy and not for the others. Perhaps, because of that, each of the petitioners have filed a separate Writ Petitions. Pending the Writ Petitions, the petitioners filed interim applications seeking for a direction to the 2nd respondent society to deposit the entire terminal benefits due to the petitioners in a fixed deposit. 4. After notice to the society, the said interim application for interim direction was dismissed on 22.1.2004. Similarly in other Miscellaneous Petitions, similar order came to be passed. Though the applications were directed to be posted for final hearing even during July 2004, for reasons best known, they were not listed. 5. After Notice to the society, the society has filed a counter affidavit dated 29.11.2009 resisting the prayer of the affidavit. In the counter affidavit, it is stated that the the petitioners have not challenged the Government Order in G.O.Ms.No.186, dated 16.8.2000. Therefore, the Writ Petitions are not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 6. The society is bound by the said Government Order. Even pursuant to the settlement under section 18(1), the society is not bound by the terms of the settlement. The said Government Order has been issued pursuant to the power vested under Section 18(1) granting powers to issue appropriate direction. 7. A further objection was also taken about the maintainability of the Writ Petition in the light of the larger Bench judgment of this Court in K.Marappan vs. Deputy Registrar of Cooperative Society, Namakkal Circle, Namakkal reported in (2006) 4 CTC 689. 8. Attention was also drawn to the order passed by this court in other batch of Writ Petitions in W.P.Nos.36544 to 36548 of 2004 and batch of cases starting with M.S.Thirugnanam vs. Registrar of Cooperative Societies, dated 5.10.2009, wherein similar contention raised by the employees of the Cooperative Society was rejected. However, the learned counsel for the petitioners filed a written arguments dated 5.3.2010 and insisted that each one of the contention raised by him should be dealt with by this Court. Therefore, it is necessary to refer the contentions raised by the petitioners. 9. The contentions raised by the petitioners were that the earlier Division Bench of this court in Thiruchirapalli Hiruthayapuram Cooperative Bank Employees Union vs. Joint Registrar of Cooperative Societies, Thiruchirapalli reported in 1992 (1) LLJ 747 squarely applies to this case. Therefore, in the absence of settlement under section 18(1) of the Industrial Disputes Act dated 7.10.1998 being terminated in accordance with law, the petitioners are entitled to have the benefit under the said settlement. The non- payment of the scales of pay and the consequent proportionate retirement benefit will be in violation of Article 21 of the Constitution. The petitioners need not avail the remedy under section 153 of the Tamil Nadu Cooperative Societies Act as it is ineffective and there is no effective alternate remedy available to the petitioners. It is also further stated that Marappan's case (cited supra) decided by the larger Bench of this court will not apply to the case of the petitioners, as they had retired long before the judgment was pronounced. It is also stated that the question of an alternate remedy is not a bar for this Court to entertain the Writ Petition under Article 226 of the Constitution. It was further stated that the judgment pronounced by this Court in Justin case reported in (2004) 4 CTC 395 and upheld by the Supreme Court in Umarani's case reported in (2004) 7 SCC 112 related to the mode of appointment and regularisation and not related to the payment of salary and allowances made in respect of the concluded settlements. Inasmuch as the society has not adopted bye-laws in terms of Rule 149 https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu Cooperative Societies Rules, no recovery can be made on the plea that earlier payment has been done contrary to the provisions of the Tamil Nadu Cooperative Societies Act, 1983. It is also stated that the subsequent Division Bench judgment in Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Mady Sangam (rep. by its General Secretary R.Raghavendran) vs. Deputy Registrar of Cooperative Societies (Housing), Cuddalore Circle and others reported in (2008) 2 LLN 236 is per incurium and obiter dicta and has no relevance to the issue involved herein. In view of the above submissions, the petitioners wanted their Writ Petitions to be allowed. 10. The first submission that inspite of Marappan's cae decided by the larger Bench, this court has power to entertain such Writ Petitions cannot be accepted since the exceptions pointed out in Marappan's case are not projected herein. 11. A subsequent attempt by yet another Division Bench that in cases of issues like suspension, where livelihood issue is involved attracting rights under Article 21 of the Constitution, there was scope for entertainment of Writ Petitions. The matter was referred to a Full Bench. The Full Bench in Anandasayanam's case reported in (2007) 5 CTC 1 negatived that claim. Therefore, the Marappan's case and Ananthasayanam's case will clearly debar the petitioners from approaching this Court with the prayer on hand. 12. The further contention that Justin's case followed by the Umarani's case cannot cover the issue on hand is also not maintainable. The question that subsequent to the earlier Division Bench judgment in Tiruchirappali Hiruthayapuram Cooperative Bank Employees Union case (cited supra), the revocation of 18(1) settlements themselves came to be decided in a batch of Writ Petitions by P.Shanmugam, J. In that case, this Court held that Rule 149 empowers the Registrar to give appropriate directions to negative even the concluded settlements. Even the Writ Appeals against the order of P.Shanmugam,J., was heard along with the Justin's case and the connected batch. These contentions were negatived by the same Division Bench and the Supreme Court upheld the decision of the Division Bench in Umarani's case. The petitioners cannot make any distinction even within the Justin's case and the other case heard by the Division Bench. 13. The further submission that the judgment of the Division Bench in Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Mady Sangam (rep. by its General Secretary R.Raghavendran) vs. Deputy Registrar of Cooperative Societies https://hcservices.ecourts.gov.in/hcservices/ (Housing), Cuddalore Circle and others Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Mady Sangam (rep. by its General Secretary R.Raghavendran) vs. Deputy Registrar of Cooperative Societies (Housing), Cuddalore Circle and others reported in (2008) 2 LLN 236 is per incurium cannot be urged before this Court. On the contrary, the Division Bench was fully aware of the Tiruchirapalli Hiruthayapuram Cooperative Bank Employees Union vs. Joint Registrar of Cooperative Societies, reported in 1992 (1) LLJ 747, and it was specifically referred to in para 2 of the said order. The Division Bench referred to the Supreme Court Judgment in para 2 of the order in Ghaziabad Zilla Sahkari Bank Ltd., vs. Additional Labour Commissioner and others reported in (2007) 4 LLN 32. 14. The Division Bench also referred to the power of the Registrar under section 181 of the Tamil Nadu Cooperative Societies Act to give necessary direction as well as upheld the inter play between Section 181 and Rule 149 of the Tamil Nadu Cooperative Societies Rules as held in paragraph Nos.15, 16 and 17 as follows: "15. By no stretch of imagination, the said Rule can be said to be either conflicting with the provisions of I.D.Act or introduced with any other ulterior motive to defeat the lawful rights of the employees of any of the registered societies. The purport of the Rule is toensure that a registered society does not become defunct or unwieldly any and of the registered societies should not be allowed to be closed due to dearth of funds by mismanagement. Therefore, the constitution of the committee for formulating the common wage structure for the employees of the registered Cooperative Societies by G.O.Ms.No.289, dated 18 December 1998, and the subsequent G.O.Ms.No.166, dated 16 August 2000, were all in furtherance of the fulfilment of the above objective of the State Government. 16. In the light of the above factors, we are convinced that the orders impugned in the Writ Petitions issued by the 1st respondent directing the respective Cooperative Societies to cancel the settlements which came to be arrived in contravention of the directions issued by the Registrar of the Cooperative Societies, dated 16 October 1997, issued under section 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 Tiruchirappalli Hiruyathayapuram Cooperative Bank Employees Union vs. Joint Registrar of Cooperative Societies, Tiruchirapalli (vide supra), upon which heavey reliance was https://hcservices.ecourts.gov.in/hcservices/ 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 Cooperative Societies, 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 193 remains in force, the subsequent directions and the impugned order issued by the 1st respondent by invoking S.166 of the Act 1983 were well within the powers and jurisdiction of the 1st respondent. 17. It will have to be stated that the appellant not having challenged the directions of the Registrar, dated 16 October 1997 issued under S.181 of the Act 1993, cannot be permitted to challenge the consequential orders passed under S.166 of the Act, 1983 impugned in the Writ Petitions." 15. Therefore, the petitioners' submission that the said judgment is per incurium and obiter dicta is too sweeping an allegation that too against an order passed by a Division Bench. In any event, duty bound as I am, this Court is not inclined to make any such distinction on the aforesaid judgment so as to make it extinct from law reports. 16. In the light of the above, all the Writ Petitions will stand dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ajr To 1. THE DEPUTY REGISTRAR OF COOP. SOCIETIES POLLACHI CIRCLE MARKET ROAD POLLACHI COIMBATORE DISTRICT. https://hcservices.ecourts.gov.in/hcservices/ 2 THE SPECIAL OFFICER TIRUPPUR COOPERTIVE PRIMARY AGRL AND RURAL DEVELOPMENT BANK LTD. 39, NEHRU STREET TIRUPPUR, COIMBATORE DISTRICT + 6 cc to Mr.K.Premkumar Advocate 15150 + 1 cc to Mr.P.P.Shanmughasundaram, Advocate SR 15109 + 1 cc to the Govt., Pleader SR 15475 W.P.Nos.34314 to 34318 and 33258 of 2003 BV (CO) RH (22.3.10) https://hcservices.ecourts.gov.in/hcservices/