IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 WP(C).No. 8201 of 2005(B) --------------------- PETITIONER : --------------------- ALAGAPPA TEXTILES MVRS PENSIONERS ASSOCIATION, REPRESENTED BY ITS SECRETARY, P.V.SATHYAN, AGED 50 YEARS, S/O. VELAYUDHAN, PAYYAPPADATH HOUSE, POOKKODE P.O., VARAKKARA, THRISSUR DIST. BY ADVS. SRI.RENJITH THAMPAN SMT.P.A.ANITHA RESPONDENT(S): -------------------------- ALAGAPPA TEXTILES (COCHIN MILLS), ALAGAPPA MILLS, THRISSUR. *ADDL. R2 & R3 IMPLEADED *2. NATIONAL TEXTILE CORPORATION REPRESENTED BY MANAGING DIRECTOR, NEW DELHI. *3. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF TEXTILE, UDYOG BHAVAN, NEW DELHI *ADDITIONAL RESPONDENTS 2 & 3 IMPLEADED AS PER ORDER DATED 21/2/06 IN I.A. NO. 2418/06 BY ADVS. SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SRI.SANDEEP E. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 8201 of 2005(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ACCOUNT DETAILS REGARDING THE EXGRATIA PAYMENT DUE TO SHRI. P.V. SATHYAN. EXT.P2 : COPY OF THE STATEMENT SHOWING THE ALLEGED DUES FROM P.V. SATHYAN. EXT.P3 : COPY OF THE LETTER DATED 22.2.05 SEND BY PETITIONER ASSOCIATION TO THE RESPONDENT. EXT.P4 : COPY OF THE OFFICE MEMORANDUM DATED 11.4.05 THE GOVERNMENT OF INDIA. RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF THE STATEMENT ISSUED BY THE RESPONDENT AND RECEIPT DATED 13.12.2004 EXECUTED BY SRI. SATHYAN IN FULL AND FINAL SETTLEMENT OF ACCOUNTS. EXT.R1(b) : COPY OF THE RECOVERY PARTICULARS AND RECEIPTS EXECUTED IN FULL AND FINAL SETTLEMENT OF THE ACCOUNTS BY SRI. SUDHAKARAN T. NO. 2214 DATED 14.12.2004. EXT.R1(c) : COPY OF THE RECOVERY PARTICULARS AND RECEIPTS EXECUTED IN FULL AND FINAL SETTLEMENT OF THE ACCOUNTS BY SRI. T.L. OUSEPH T. NO. 2050 DATED 13.12.2004. EXT.R1(d) : COPY OF THE RECOVERY PARTICULARS AND RECEIPTS EXECUTED IN FULL AND FINAL SETTLEMENT OF THE ACCOUNTS BY SRI. M.R. YOHANNAN, T.NO.1741 DATED 15.12.2004. EXT.R1(e) : COPY OF THE RECOVERY PARTICULARS AND RECEIPTS EXECUTED IN FULL AND FINAL SETTLEMENT OF THE ACCOUNTS BY SMT. MOLLY ANTONY, T. NO. 1946 DATED 17.12.2004. EXT.R1(f) COPY OF THE RECOVERY PARTICULARS AND RECEIPTS EXECUTED IN FULL AND FINAL SETTLEMENT OF THE ACCOUNTS BY SMT. P.K. ANNIE, T.NO. 1939 DATED 14.12.2004. Contd... EXT.R2(a). : COPY OF THE MODIFIED VOLUNTARY RETIREMENT SCHEME (MVRS) ISSUED BY THE SECOND APPEAL. EXT.R2(b). : COPY OF THE LETTER NO. NTC/IR/26/96-BONUS DATED 24.7.2001 SENT BY THE SECOND RESPONDENT TO NTC (APKK&M) LTD., BANGALORE. EXT.R2(c). : COPY OF THE LETTER NO. NTC/GM(F)FA/02 DATED 13.9.2002 OF THE NATIONAL TEXTILE CORPORATION (APKK&M) LTD., BANGALORE TO THE GENERAL MANAGERS OF KERALA/MAHE MILLS. //TRUE COPY// P.S. TO JUDGE Mn K.SURENDRA MOHAN, J. ------------------------------------------- WPC No.8201 of 2005 ------------------------------------------- Dated this the 14th February, 2011 JUDGMENT The petitioner is an Association of workers of the first respondent Company who have opted for a modified Voluntary Retirement Scheme formulated by the Company. The petitioner has filed this writ petition challenging the recoveries of monies made by the first respondent Company from the members of the petitioner- Association and seeking directions for the return of such amounts. The amounts recovered are the advances given by the Company to the workmen as Onam Advances, Attendance incentive advances, Bonus advances etc. According to the petitioner, the amounts granted as advances on various occasions were to have been regularised after entering into an industrial settlement with the workers' union. The advances paid at the time of festivals, according to the petitioner, are not liable to be recovered. The petitioner complains that varying amounts in excess of Rs.12,000/- have been recovered from each of the workers. Therefore, they have filed this writ petition wpc No.8201/2005 2 seeking the issue of writ of mandamus commanding the respondents to disburse to them the amounts withheld in the manner stated above. 2. The counsel for the respondents contends that advances were given to the workmen at the time of festivals on the clear understanding that such advances would be recoverable at a later point of time. However, the recoveries could not be effected promptly because attempts to regularise such advances were in progress. While so, as per Ext.R2(c), the first respondent was directed by the second respondent to recover all such advances. The first respondent was also informed that the reason for the direction in Ext.R2(c) was because of the fact that the Ministry of Textiles had refused to consider the advances given to the workmen as allowances and that therefore, there was no way other than to recover the same from the individual workmen. The first respondent has been further warned that any omission to recover the said amounts would visit the person responsible with personal liability. It was in the above circumstances that the amounts were recovered. wpc No.8201/2005 3 3. The counsel for the respondents also contends that the petitioner being an unregistered association, this writ petition is not maintainable. He also places reliance on the decision of a Division Bench of this Court reported in Porathissery Panchayat Tax Payer's Association v Executive Officer (1989(1) KLT 849). It is further contended that the modified Voluntary Retirement Scheme which is evidenced herein by Ext.R2(a) contains a clause which specifically stipulates that all payments due to the first respondent would be recovered from the benefits due to each workman at the time of voluntary retirement. In view of the above, it is pointed out that the recoveries were fully justified and that the challenge against such recoveries is without any basis. For the above reasons, the counsel for the respondents prays that the writ petition be dismissed. 4. I have heard the counsel on both sides and have perused the records of the case. I have also given anxious consideration to the contentions advanced. 5. It is not in dispute that the petitioner is an unregistered association of persons by name, Alagappa wpc No.8201/2005 4 Textiles modified Voluntary Retirement Scheme Pensioners' Association. The question whether a writ petition was maintainable at the instance of an unregistered association was considered by a Division Bench of this Court in Porathissery Panchayat Tax Payer's Association v Executive Officer(supra). In the said case, individual assessments to building tax on the members of an association were challenged. This Court found that such a challenge of an individual assessment was not permissible even under the liberalised rules of locus standi. At page 851 of the said decision, the Bench has concluded the issue in the following words: “The larger question whether an unincorporated association of persons can file a writ petition also arises. When a number of individuals are affected by an official act, they can, ordinarily bring a legal proceeding to challenge that only if all such persons join in the proceedings by name, except where the law confers upon them, a legal personality as a collective body such as an association which is incorporated by statute or formed under a statute. Apart from statutory exceptions, unincorporated associations cannot sue or be sued in their own name and only the members of such society jointly can bring a legal proceedings.” 6. The said decision squarely applies to the facts of wpc No.8201/2005 5 the present case. The recoveries made from each individual worker is different and is in accordance with the amounts received as advance from the first respondent. The relief that is claimed is also to direct refund of all the amounts withheld from the persons who had opted for voluntary retirement. The prayer refers to an indeterminate number of persons who are not identified. Therefore, in view of the dictum laid down by the decision referred to above, this writ petition itself is not maintainable. 7. On the merits also, the petitioners are not entitled to succeed for the reason that the recoveries that were effected are admittedly 'advances' given to them. Advances are certainly amounts that are liable to be recovered at some later point of time. Advances are different from allowances. Therefore, in the absence of specific orders directing that such advances be treated as allowances, amounts paid as advances can certainly be recovered. Ext.R2(c) contains a specific direction from the second respondent to the first respondent to recover all such advances at the peril of being fastened with wpc No.8201/2005 6 personal liability. True, efforts were made to get the advances regularised as allowances, but, as stated in Ext.R2(c) the Ministry of Textiles refused to accede to the said request. Therefore the first respondent had no alternative other than to recover the same. It is also to be noted that Ext.R2(a) which is the modified Voluntary Retirement Scheme (NVRS) also contains a provision for such recovery. Clause-5.9 reads as follows: “Payment under the scheme is subject to employee's vacating Company's accommodation or leased accommodation, returning of all of Company's properties held by him/her and payment of all outstanding dues to the Company”. 8. In view of the above clause, there can be no doubt that the members of the petitioner association also were aware of the fact that all the amounts paid as advances to them would be recovered at the time of voluntary retirement. It was with the full knowledge of the above that they had opted for voluntary retirement. As long as the advances remain as advances, they are liable to be recovered. In the absence of any formal orders directing the advances to be treated as allowances, the petitioner or their members cannot claim wpc No.8201/2005 7 any right to recover the amounts so deducted from the benefits received by them. 9. In view of the above, I do not find any grounds to interfere with the impugned action of the respondents. The writ petition fails and is accordingly dismissed. K.SURENDRA MOHAN JUDGE css/