IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2010 Coram The Hon'ble Mr. Justice K.CHANDRU W.P. Nos.23003 to 23006 and 23016 to 23019 of 2009 and M.P.Nos.1 of 2009 (8 Nos.), 2 of 2009 (7 Nos.), and 3 of 2009 (3 Nos.) G.V.Vijayakumar .. Petitioner in W.P.No.23003/2009 D.Jabanesan .. Petitioner in W.P.No.23004/2009 V.Kumarasamy .. Petitioner in W.P.No.23005/2009 N.Muruganantham .. Petitioner in W.P.No.23006/2009 R.Kannan .. Petitioner in W.P.No.23016/2009 C.Kumar .. Petitioner in W.P.No.23017/2009 P.Vajjravelu .. Petitioner in W.P.No.23018/2009 J.Chandrasekaran .. Petitioner in W.P.No.23019/2009 Vs. 1.The Commissioner of Sugar, 690, Anna Salai, Nandanam, Chennai. 2.The Special Officer, Vellore Co-op. Sugar Mills Ltd., Vellore District – 632 519. .. Respondents in all the W.Ps https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.23003 to 23006 of 2009: Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records relating to the orders passed by the second respondent in Na.Ka.No.878.2009.A1 dated 04.11.2009 passed by the second respondent and quash the same. W.P.Nos.23016 to 23019 of 2009: Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records relating to the orders passed by the first respondent in R.C.No.18560/sl2/2009 dated 22.10.2009 and R.C.No.878/2009/A1 dated 29.10.2009 by the second respondent and quash the same. For Petitioners .. Mr.S.Diwakaran in all the W.Ps For Respondents .. Mr.A.Arumugam, Spl. Govt. Pleader for R1 Mrs.G.Thilakavathy for R2 in all the W.Ps COMMON ORDER The petitioners are all office staff working in the second respondent co-operative sugar mills. They have come forward to challenge the impugned orders dated 04.11.2009 and 29.10.2009, wherein by which, they were informed that since they are juniormost in the clerical department, they should give their option to work on foreign service in the Ambur Cooperative Sugar Mills, Cheyyar Co- operative Sugar Mills and Salem Co-operative Sugar Mills. If options are not received, then on the basis of the seniority position and on the orders of the Commissioner of Sugars, Vellore, they will be sent on foreign service to other needy co-operative sugar mills. The petitioners have come forward to challenge the said orders. 2.The writ petitions were admitted on 10.11.2009 and pending the writ petitions in W.P.Nos.23003 to 23006 of 2009, interim stay was granted. In W.P.Nos.23016 to 23019 of 2009, an order of status quo was granted. 3.Mrs.G.Thilakavathi, learned counsel has taken notice for the second respondent. The second respondent has also filed vacate stay petitions in all these writ petitions. When these matters were listed together, they were taken up and common order is passed. 4.Learned counsel for the petitioners contended that the impugned orders are invalid. The petitioners were all employees of the second respondent sugar mills, which a separate entity and registered as a co-operative society. Therefore, they cannot be https://hcservices.ecourts.gov.in/hcservices/ transferred out of the second respondent mills. By G.O.Ms.No.834 Industries (MIC 2) Department dated 08.12.1997, common cadre system introduced was stated to be disbanded and the Government has categorically stated that each of the sugar mill is a separate entity and therefore, there need not be any common cadre system. Further reliance was also placed upon the settlement signed under Section 12(3) of the Industrial Disputes Act dated 25.11.2008 before the Government Labour Officer, Vellore. Under para 2 of the said settlement, the management has undertaken not to retrench any worker in case of surplus age and till such time they retire from service, they should be allowed to serve in some other capacity. In the same paragraph, it is stated that no company staff who are surplus will be adjusted in the vacancies for the factory staff. Notwithstanding the same, the petitioners stated that the settlement is clearly binding on the management and therefore, they cannot be transferred out. 5.Per contra, the second respondent mill has come up with the stand in their counter affidavit supported by the typed set of papers filed by them that the second respondent sugar mills has the crushing capacity of 2500 TCD per year and they have an enormous extra work force while the existing force at present comprised of 690 workers. In the comparable mills, the work force were much lower and therefore, certain rationalisation has to be required in respect of the second respondent mill. A meeting was conducted before the Commissioner of Sugars, wherein they had arrived at a staffing pattern of the second respondent mill and in the settlement made, it was directed that the staffing pattern should have only 518 employees and the surplus employees will be redeployed out of the mills wherever it is possible and when such a redeployment is not possible, they can be redeployed to needy sugar mills. If both the conditions are not possible, then they could be offered with Voluntary Retirement Scheme. Pursuant to the decision taken, the staffing pattern in the second respondent mill was arrived at and since the petitioners happened to be juniormost in the clerical department, they were offered to be sent on deputation to Cheyyar, Ambur and Salem Co-operative Sugar Mills which are only within 40km distance from the present mills. The petitioners did not opt to go on deputation basis to those mills and notwithstanding the fact they have been relieved. They have not joined the new mills and they have also absented themselves. In support of the said contention, an extract from the attendance register is also enclosed. Therefore, the learned counsel for the second respondent submits that the writ petitions themselves are not maintainable in the light of the Larger Bench judgment of this Court in K.Marappan Vs. The Deputy Registrar of Cooperative Societies, Namakkal Circle, Namakkal and another (2006 (4) CTC 689). https://hcservices.ecourts.gov.in/hcservices/ 6.Without prejudice to the maintainability of the writ petitions, alternatively, the learned counsel submits that if the petitioners do not agree to get deputed to work in some other needy mills, then the only other option is to retrench them. The settlement under section 12(3) states that the workers not to be retrenched but at the same time, there is no scope for employing them in the present mill. It is certainly open to the Commissioner of Sugars to direct the mills to redeploy them in the needy mils. The following issues arise for consideration: 1.whether the writ petitions are maintainable? 2.Whether the petitioners are justified in stating that there is no provision under which they can be sent to any other mills against their consent? 7.Insofar as the maintainability of the writ petitions, Mrs.G.Thilakavathi, learned counsel for the second respondent contends that the writ petitions are not maintainable merits acceptance since the Larger Bench of this Court has held that such a writ petition is not maintainable and on this short ground, the writ petitions are liable to be dismissed. In any event, since the petitioners have raised the contention that they cannot be sent out against their consent to some other mill, which is another employer cannot also be acceptable. Rule 149(2-A) of the Tamil Nadu Co- operative Societies Rules reads as follows: "A society may transfer an employee to another society for a period of not less than one year on deputation basis and the other society may avail the services of that employee on the terms and conditions agreed to by both the societies; Provided that no such transfer shall be made for a period exceeding three years." 8.Therefore, after the State amendment has been introduced by the S.R.O.A.53/07, there is a power vested on the society to transfer any employee to another society on a deputation basis and such a deputation cannot exceed three years. In the present case, in the order given to the petitioners, it is stated that the petitioners are deputed to work as Accountant Clerks and Cane Assistants in the other mills until further orders on the usual terms and conditions. Therefore, the petitioners cannot contend that there is no power vested on the authorities for passing the impugned orders. The other contention that the settlement under Section 12(3) of the Industrial Disputes Act covers the issue also does not merit acceptance. A careful reading of para 2 of the said settlement clearly shows that there will not be any retrenchment on the ground of rationalising the staffing pattern but there is no condition that the petitioners will be retained only in the same mill. https://hcservices.ecourts.gov.in/hcservices/ Notwithstanding the fact that there is no work for them in the said mill, para 2 itself shows that the office staff cannot be accommodated against the factory vacancies. Therefore, the impugned orders came to be passed only under the circumstances but there is no scheme for continuing the employment of the petitioners. In the light of the same, there is no case made out. Accordingly, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are dismissed. mmi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Commissioner of Sugar, 690, Anna Salai, Nandanam, Chennai. 2.The Special Officer, Vellore Co-op. Sugar Mills Ltd., Vellore District – 632 519. + 1 cc to Mr. D.Geetha, Advocate SR No.1310 + 1 cc to Mr. G. Thilakavathi, Advocate SR No.1284 + 1 cc to Government Pleader, SR No.1495 RL(CO) SR/25.1.2010 W.P. Nos.23003 to 23006 and 23016 to 23019 of 2009 https://hcservices.ecourts.gov.in/hcservices/