IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.9.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.1861 of 2001 1. S.Seetharan 2. M.Sivakumar 3. M.Balu 4. S.R.Ramamoorthy 5. A.K.Kirubakaran 6. C.Sumitha .. Petitioners ..vs.. 1. Madurantagam Agricultural Producers Co-operative Marketing Society, rep. by its Special Officer, No.19, P.N.Chari Street, Madurantagam – 603 306. 2. K.S.Adhikesavalu 3. Register of Co-op. Societies, No.10, E.V.R. Road, Kilpauk, Chennai-600 010 4. State of Tamil Nadu, rep. by its Secretary, Co-operative Department, Fort St. George, Chennai-600 009. .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the Registrar, Madras, bearing Ref.No.208569/97, dated 13.1.1998, read with the consequential order of the first respondent bearing No.20/99(1) & 20/99(2) dated 24.6.1999, and quash the same and consequently direct the first and third respondents to pay the petitioner arrears of wages, award cost and render Justice. (Prayer amended as per the order of this Court, dated 1.3.2001, in W.M.P.No.3248 of 2001.) https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.K.Srinivasamurthy For Respondents : Mr.G.Sankaran for R1 Mr.V.Raghavachari for R2 O R D E R Heard the learned counsel appearing for the parties concerned. 2. The brief facts of the case read as follows: It has been stated that the petitioners are employed in the first respondent Society. They had entered into a settlement with the first respondent Management, on 29.12.1997, under Section 18(1) of the Industrial Disputes Act, 1947, for the revision of their wages. Pursuant to the said settlement, the petitioners had received higher emoluments for the months of January, February and March 1998. On 28.4.1998, charges were framed against the second respondent on the ground that he had revised the pay scales of the petitioners without being authorised to do so. Thereafter, he had been removed from the post of President, on 29.8.1998. On 24.6.1999, the Special Officer, who took charge of the Management of the first respondent Society, had issued the impugned order of recovery of the amounts alleged to have been paid to the petitioners, from 1.7.1997 to 31.12.1997 and had also ordered the recovery of the amounts paid to the petitioners, from 1.1.1998 to 31.3.1998. The petitioners had sent a representation, on 21.7.1999, stating that no salary was paid to the petitioners till 31.12.1997 and that the second respondent had taken the amount. 3. It has been further stated that as per Section 9-A of the Industrial Disputes Act, 1947, the first respondent Society cannot reduce the pay of the petitioners, which was in accordance with the settlement concluded, under Section 18(1) of the Industrial Disputes Act, 1947. Merely because the President of the first respondent Society had signed the settlement, allegedly, in violation of the circulars and the norms prescribed for concluding such a settlement, the recovery of the amounts paid to the petitioners cannot be ordered. If at all, it would be open to the authorities concerned to initiate necessary action against the President of the Society, who had entered into the irregular settlement. 4. It has been further stated that the monthly turn over of the first respondent Society is to the tune of Rs.80,00,000/-. The salesmen working in the first respondent Society, who had joined after the petitioners had joined in service, were being paid a time scale of pay as per G.O.Ms.No.238, dated 19.10.2003. Whereas, the petitioners, have been reverted back to consolidated pay from 1.4.1998. https://hcservices.ecourts.gov.in/hcservices/ 5. In the counter affidavit filed on behalf of the first respondent, it has been stated that the writ petition is not maintainable, either in law or on the facts of the case. The pay fixation of the petitioners can be done by the first respondent Society only as per the procedure established by law and with the prior permission from the authorities of the Co-operative Department. However, the elected board of the first respondent Society had revised the salaries payable to the petitioners, with effect from 1.7.1997, without following the necessary procedure. Therefore, the Department had proceeded against the board and the board had been superseded. The writ petition, filed by the President against the supersession of the Board of Management of the first respondent Society, had been dismissed by this Court. The revision of pay scales of the petitioners had been made without following any of the norms or procedures prescribed for the said purpose. 6. It has also been stated that there is no settlement concluded, under Section 18(1) of the Industrial Disputes Act, 1947, as claimed by the petitioners. Therefore, the excess amounts paid to the petitioners, as salary, is liable to be recovered. The writ petition filed by the petitioners has no merits and therefore, it is liable to be dismissed. 7. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available before this Court, it is seen that the petitioners had filed the present writ petition challenging the order, dated 24.6.1999, issued by the first respondent Society re-fixing the pay scales of its employees, including the petitioners. Even though the prayer in the writ petition had been subsequently amended, as per the order of this Court, dated 1.3.2001, made in W.M.P.No.3248 of 2001, to challenge the proceedings of the Registrar of Co-operative Societies, dated 13.1.1998, and the consequential proceedings of the first respondent Society, dated 24.6.1999, the writ petition would not be maintainable as it has been filed, primarily, challenging the proceedings of the first respondent Society and for a direction for the implementation of the settlement said to have been concluded, under Section 18(1) of the Industrial Disputes Act, 1947. 8. In the counter affidavit filed on behalf of the first respondent, it has been clearly stated that there is no concluded settlement entered into between the petitioners and the Management of the first respondent Society. Even if such a settlement is in existence, it would not be open to the petitioners to come before this Court, under Article 226 of the Constitution of India, praying for a direction to implement such a settlement, as it is a contract between the parties to the settlement. Further, when disputed questions of fact are involved, this Court would not be inclined to analyse the same and to establish the same and to render a finding thereon. Further, a decision of the Full Bench of this Court in https://hcservices.ecourts.gov.in/hcservices/ K.MARAPPAN Vs. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, NAMAKKAL & ANOTHER, ((2006) 4 L.W.495), makes it clear that the writ petition cannot be maintained against a Co-operative Society unless certain tests enumerated therein have been satisfied in the present case. The petitioners have not been in a position to show that the first respondent Co-operative Society is amenable to the writ jurisdiction of this Court, under Article 226 of the Constitution of India. In such circumstances, the writ petition stands dismissed. Consequently, connected W.P.M.P.No.30592 of 2005 is also dismissed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Special Officer, Madurantagam Agricultural Producers, Co-operative Marketing Society, No.19, P.N.Chari Street, Madurantagam – 603 306. 2. The Register of Co-op. Societies, No.10, E.V.R. Road, Kilpauk, Chennai-600 010. 3. The Secretary, Co-operative Department, State of Tamil Nadu, Fort St. George, Chennai-600 009. + 1 c.c. to M/s. Row & Reddy, Advocate. S.R.no.53647. + 1 c.c. to Mr.V. Raghavachari, Advocate. S.R.No.53817. + 1 c.c. to The Government Pleader. S.R.No.54090. W.P.No.1861 of 2001 NM(CO) GSK 03.11.2008. https://hcservices.ecourts.gov.in/hcservices/