IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.17827 of 2011 and M.P.Nos.1 and 2 of 2011 Tamil Nadu Civil Supplies Corporation Paniyalargal Sangam, Regd. No.1830/Chennai 40,Rameswaram Road, Chennai-17 rep by its General SEcretary .. Petitioner Vs. 1.The Tamil Nadu Civil Supplies Corporation, rep by the Manager Director, 42,Thambuswamy Road, Chennai-10. 2.The Tamil Nadu Civil Supplies Corporation Employees Union Regd. No.325/CPT, rep by its General Secretary, 42,Thambuswamy Road, Chennai-10. 3.The Special Joint Commissioner of Labour, Teynampet, Chennai-18. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the third respondent from proceeding further with the conciliation proceedings initiated into the claim petition dated 20.12.2010 of the second respondent insofar as claim No.1 is concerned. For Petitioner : Mr.S.Venkataraman For Respondents : Mr.V.Subiah, Spl.G.P. ORDER The writ petition is filed by the trade union seeking to forbear the third respondent Special Joint Commissioner of Labour, Teynampet, Chennai-6 from proceeding further with the conciliation proceedings initiated by the second respondent trade union insofar as it relates to claim No.1 is concerned and to pass such other order as it may deem fit in the circumstances of the case. https://hcservices.ecourts.gov.in/hcservices/ 2.It is the case of the petitioner union that they are the registered trade union. The employees working in the first respondent Tamil Nadu Civil Supplies Corporation are its members. It exposes the cause of the employees who are having Master Degree in the feeder category as well as those who are seasonal employees in the Direct Purchase Centers (for short DPC). The persons who are employed in the DPC are having P.G. Degrees and that due to poverty, they are working in the procurement centres. They were called as seasonal employees. A settlement under Section 12(3) dated 19.9.1991 was signed between the first respondent TNCSC and the trade union. In paragraph 3 of the settlement, it was agreed as follows: "3.As regards the demand of the workmen for giving preference to the qualified seasonal employees in the D.P.C while filling the regular vacancies, it is agreed that whenever the T.N.C.S.C. has to go to the employment exchange for direct recruitment of any class III or class IV services after exhausting the eligible candidates among the existing regular employees in the feeder categories, the qualified seasonal employees who were initially recruited through employment exchange will be given preference relaxing only the age qualification but not relaxing any other qualification, subject to the policy of reservation. In the event of absorbing the seasonal employees in the vacancies that arise in any region throughout the state of Tamil Nadu, the qualified hands will be selected by drawing the centralised seniority list in the Head Office level according to total of broken periods of service and they might be allotted to the needy regions wherever vacancies arise, on their requisition. Where age relaxation becomes necessary the Management will get appropriate concurrence of Government." 3.That settlement was also later ratified by the State Government by G.O.MsNo.389, Cooperative Food and Consumer Protection Department, dated 20.08.1992. Suddenly, the TNCSC had issued an instruction note dated 10.3.2010 to the Regional Head Offices stating that a specific percentage of vacancies in the cadre of Assistant was to be filled up by direct recruitment and hence the Regional Heads were directed to declare those vacancies and call for eligible candidates from the employment exchange and also invite applications from the existing staff so as to require them to sit for a common test in the Regions and also to hold an interview subsequently. 4.It was claimed by the petitioner union that the post of the Assistant belonged to Class III Category-I post and it requires a qualification of M.A. Degree. Aggrieved by the instructions, some employees had moved the Madurai Bench of this Court with W.P.(MD) No.4026 of 2010. Though initially the writ petition was admitted and an interim order was granted, subsequently the matter was transferred to this court. The respondents had produced the https://hcservices.ecourts.gov.in/hcservices/ resolution of the Board of Directors dated 11.6.2010 accepting the recruitment of eligible Master Degree holders from the regular feeder category. Therefore, the eligible Master Degree holders from seasonal employees will be taken by having centralized seniority list subject to rule of reservation. That writ petition was dismissed as withdrawn with liberty to agitate their case in future. Inspite of the Board decision, no steps were taken to implement the Board's resolution. The petitioner's union had also sent a legal notice on 22.1.2010 drawing an attention. Aggrieved by the non implementation of the Board's decision, the petitioner union had filed W.P.No.142 of 2011 seeking for a declaration to implement the said resolution. At that time, on behalf of the TNCSC, it was stated that the recognised trade union, i.e., the second respondent had raised an industrial dispute with regard to the implementation of the resolution, dated 11.6.2010 and that since the matter is pending conciliation by the Joint Commissioner of Labour, Chennai, it was not possible to implement the resolution. But this court had directed the respondent TNCSC to consider the legal notice dated 22.11.2010 sent by the petitioner union. It is pursuant to the said direction, the respondent TNCSC by an order dated 4.3.2011 had informed the petitioner union as follows: "In the light of Section 33 of Industrial Disputes Act 1947 and in view of conciliation pending before the Special Joint Commissioner of Labour, Chennai, who has pointed out that there is an ambiguity in TNCSC Employees' Service Regulations regarding the qualification for promotion as Assistant from Junior Assistant, the demand for considering the Master Degree holders from seasonal employees can be considered as per 12(3) Settlement dt.30.01.97, only after considering the Master Degree holders of the existing regular feeder category employees as per Regulation 4 (g) in Chapter I of TNCSC Employees Service Regulations 1989, if there are no eligible feeder category employees for promotion in the cadre of Junior Assistant, for which necessary reply has been furnished to the Special Joint Commissioner of Labour, Chennai. As such, the request for appointing Master Degree holders from the seasonal employees could be considered on the outcome of the conciliation pending before the Special Joint Commissioner of Labour, Chennai." 5.Since the respondents had stated that they cannot implement the board's resolution in view of the pendency of the industrial dispute before the third respondent Conciliation Officer, the petitioner had come to this court seeking for a direction. If the petitioner's prayer is accepted, it would amount to interfere with the conciliation process which is pending before the third respondent. It must be noted that the conciliation officer is appointed under Section 4 of the Industrial Disputes https://hcservices.ecourts.gov.in/hcservices/ Act, 1947. The power of the conciliation officer as per Section 12 (2) is that he should without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If parties to conciliation had agreed for compromise, then a settlement under Section 12(3) can be arrived at and if no settlement was possible, he has to record the failure of settlement under Section 12(4) and sent the report to the State Government accordingly. It was thereafter, the State Government can refer the dispute for adjudication by an appropriate Industrial Tribunal under Section 10(1) of the Industrial Disputes Act. 6.During the pendency of the dispute before the conciliation officer, under section 33 of the I.D. Act the service conditions of the workmen cannot be altered except prior permission of the said conciliation officer and that violation of Section 33 is a penal offence. The Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited -vs- Ram Gopal Sharma reported in (2002) 2 SCC 244 has held that the provisions of Section 33 is mandatory and that for violation thereof, the resultant action is void ab initio. Therefore, the first respondent has right to state that they can consider the petitioner union's request only after the disposal of the conciliation as it may contravene Section 33 of the ID Act. The petitioner cannot derail such a legal procedure by filing the present writ petition and seeking for a direction from this court to set at naught the legal protection granted under Section 33 to the workers. 7.The writ in the nature of mandamus can lie only to enforce the legal right or to forbid the person from acting illegally. But the present prayer is to seek for a direction to commit the illegality by the first respondent, who had correctly taken note of the protection provided under Section 33 of the I.D. Act. Such a writ petition is clearly not valid. The prayer made by the petitioner union cannot be countenanced by this court. If the petitioner felt aggrieved by the pendency of the conciliation, it is for them to move the authority and bring it to the notice about the so-called conciliation they have achieved from the first respondent Corporation. Under these circumstances, there is no case made out. Accordingly, the writ petition will stand dismissed. However there will be no order as to costs. Consequently connected miscellaneous petitions stand closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Manager Director, The Tamil Nadu Civil Supplies Corporation, 42,Thambuswamy Road, Chennai-10. 2.The Special Joint Commissioner of Labour, Teynampet, Chennai-18. + 1 cc to Mr. S. Venkataraman, SR.46920 + 1 cc to Government Plader SR.46973 W.P.NO.17827 of 2011 SSK(CO) EU 9.8.11 https://hcservices.ecourts.gov.in/hcservices/