IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.9.2008 CORAM; THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.NOs.11874 OF 2008 and 14628 of 2008, M.P.No.1 of 2008 in W.P.No.14628 of 2008 and M.P.No.2 of 2008 in W.P.No.11874 of 2008 W.P.No.11874 of 2008 The Tamil Nadu All District Aavin Employees & Labourers Federation (Regd.N.1153/SLM/05). rep by its General Secretary Thalavaipatti Post Salem 636 302 ..Petitioner vs 1.The Commissioner for Milk Production and Dairy Development Madhavam Milk Colony Madhavaram, Chennai 600 051 2.Tamil Nadu Co-operative Milk Producers Federation Ltd., rep by its Managing Director Madhavaram Milk Colony Madhavaram, Chennai 600 051 3.The Deputy Registrar(Dairying) Thiruvallur ..Respondents W.P.No.14628 of 2008 The Tamil Nadu Co-op. Milk Producers' Fedn.Ltd., Staff Association rep. by its President V.S.Ramanujam Madhavaram Milk Colony Chennai 600 051 Regn.No.779/CPT.85 ..Petitioner vs. https://hcservices.ecourts.gov.in/hcservices/ 1.The Government of Tamil Nadu rep. by its Secretary to Government Animal Husbandry, Dairying and Fisheries Department Fort St.George Chennai 600 009 2.The Managing Director The Tamil Nadu Co-op.Milk Producers' Federation Ltd., "Aavin Illam" Madhavaram Milk Colony Madhavaram, Chennai 600 051 3.The Deputy Registrar(Dairying) Thiruvallur ..Respondents Writ Petition No.11874/2008 is filed under Article 226 of the Constitution of India for the issue of writ of Certiorari calling for the entire records relating to the impugned Special Bye-law relating to the service conditions of employees of Tamil Nadu Co-operative Milk Producers Federation Limited registered by the 3rd respondent in his Proceedings ENDT.RC.36/08/E dated 11.01.2008 under Section 11 of the Tamil Nadu Co-operative Societies Act 30 of 1983 and quash the same as null and void. Writ Petition No.14628/2008 is filed under Article 226 of the Constitution of India for the issue of writ of Declaration declaring the Enbloc amendment made to the Special bye-laws relating to service conditions of the employees of the Tamil Nadu Co-operative Milk Producers' Federation Ltd., as approved and registered at the Office of the 3rd respondent in Endt.Rc.30/08/E, dated 11.01.2008 in so far as they relate to the service conditions of the members of the petitioner as null and void. for petitioner in W.P.No.11874/2008 : Mr.K.Premkumar for petitioner in W.P.No.14628/2008 : Mr.K.S.Viswanathan for respondents No.1 and 3 in W.P.No.11874/2008 and for respondents No.1 and 3 in W.P.No.14628/2008 : Mr.P.Muthukumar Government Advocate https://hcservices.ecourts.gov.in/hcservices/ for respondent No.2 in W.P.No.11874/2008 : Mr.C.R.Dasarathan for respondent No.2 in W.P.No.14628/2008 : Mr.K.Tamilvendan ORDER These Writ Petitions are filed by the Tamil Nadu All Diastrict Aavin Employees and Labourers Federation and the staff Association of the Tamil Nadu Co-operative Milk producers' Federation which are the trade unions. 2. The relief sought for in these Writ Petitions are questioning the validity of the Special Bye-laws relating to the service conditions of employees of Tamil Nadu Co-operative Milk Producers Federation Limited which were duly registered by the third respondent on 11.1.2008 under Section 11 of the Tamil Nadu Co- operative Societies Act 30 of 1983 insofar as it relates to the service conditions of the employees of the Association. The second respondent is a registered Co-operative Society. It deals with the procurement and supply of milk throughout the State of Tamil Nadu being the essential service. Before the formation of the second respondent, the procurement and supply of milk was carried out by the Tamil Nadu Dairy Development Corporation. At that time in respect of the employees of the Tamil Nadu Dairy Development Corporation there was a statewide common seniority. After the second respondent was constituted as a society under the Co-operative Societies Act, autonomous status has been given to the District Unions. In respect of the District Unions the second respondent Society would have powers only in relation to the staff who are under the common cadre as per G.O.Ms.No.249, Animal Husbandry and Fisheries Department, dated 10.11.1997. Therefore, the second respondent has no power in respect of District Unions except in cases where the staff are at the level of Assistant General Manager which are under the common cadre service. After 20 years, the second respondent has framed new bye- laws to amend the existing service conditions. It is seen that a High Level Committee was constituted by the Government in G.O.(D). No.18, Animal Husbandry, Dairying and Fisheries (M.P.II), dated 31.1.2007 and the said Committee has submitted its report on 26.09.2007 to the Government in respect of the bye-laws for the employees of the second respondent. It is seen that the petitioners have made representations to claim that they should also participate https://hcservices.ecourts.gov.in/hcservices/ before the High Level Committee since common amendment which may be effected to the bye-laws would affect the service conditions of the members of the Federation. That apart, the amended bye-laws are questioned also on the ground that they violate Section 9A of the Industrial Disputes Act since no prior notice has been given before altering the conditions. It is also questioned on the ground that the general body of the second respondent has not been called for as required under section 11 of the Tamil Nadu Co-operative Societies Act 30 of 1983 Act, apart from questioning on the basis of legitimate expectation and absence of consultative process. It is the further case of the petitioners that the amended bye-laws also are violative in the sense that they have not fixed the cadre strength, proper age for recruitment as well as retirement was not fixed, leave benefits have been taken away and there is possibility for stagnation since promotion opportunities were affected by the new amendment apart from the introduction of 1:1 for promotion from the employees and appointment by direct recruitment and the provisions relating to voluntary recruitment is not clear. 3. The second respondent has filed its counter affidavit. While admitting that the Government has appointed a High Level Committee in order to have uniform service conditions for the employees of the second respondent, it states that after the second respondent came into existence, there are three tier system in respect of administration. The first one is under the Village level Primary Co-operative Societies, the second one is District level Co- operative Milk Producers' Union and the third one is State level Federation. In respect of District level if they are above the common cadre, the second respondent has jurisdiction and the common cadre is above the post of District Manager. It is stated that the High Level Committee has submitted its report on 26.9.2007 and the second respondent has approved the draft bye-laws by the resolution No.572 dated 19.12.2007. It is the case of the second respondent that when the second respondent has exercised its statutory authority as per the resolution dated 19.12.2007, without challenging the same, the petitioners cannot be permitted to approach this Court questioning the validity of the bye-laws. It is thereafter, the Government has approved the Special bye-laws in G.O.(Ms.)No.6, Animal Husbandry, Dairying and Fisheries (M.P.II) Department, dated 10.1.2008 and the Government has also exempted from the purview of Rule 9(1) of the Tamilnadu Co-operative Societies Rules, 1988 by exercising its power under Section 170(a) of the Tamil Nadu Co- operative Societies Act, 1983. It is also specifically stated that the High Level Committee in fact considered the representations of various persons and it was only after considering those representations, the bye-laws came to be passed and ultimately, registered with the third respondent on 11.01.2008. It is the https://hcservices.ecourts.gov.in/hcservices/ further case of the second respondent that the writ petitions as such are not maintainable. It is also stated that when once the said bye- laws have been approved by the 3rd respondent on 11.1.2008, as it has come into effect, there is no question of challenging the same. It is not as if the petitioners have no right of appeal. They can file appeal under Section 152 of the Tamil Nadu Co-operative Societies Act or they can raise a dispute under the Industrial Dispute Act, 1947. The various allegations about the infirmities of the new bye-laws have been answered by the second respondent stating that in fact the bye-laws have fixed the cadre strength and the age of regularisation as well as retirement has been fixed adopting the rule applicable to the Government employees to the employees of the Co-operative Societies also and the new policy of 1:1 introduced for the purpose of giving promotion, recruitment, to reduce stagnation and give employment opportunities and to bring new blood into the second respondent which deals with the supply of essential commodities. It is also stated that the retirement age has been increased to 60 years and the bye-laws have been implemented from 11.1.2008. 4. Heard the learned counsel for the petitioners as well as learned counsel for the respondents. 5. Mr.K.Premkumar and Mr.Viswanathan, learned counsel appearing for the writ petitioners have been vehemently opposing the validity of the new bye-laws on the basis that inasmuch the second respondent has proceeded to make new bye-laws, which in fact affect the rights of the members of the petitioner union, in fairness, the second respondent should have given proper opportunity to the petitioners and the petitioners even though have given so many representations, their representations have not been taken into consideration nor the members of the Federation have been given any opportunity to appear before High Level Committee to express their difficulties. In such circumstances, it affects the principles of natural justice. It is also stated that even assuming it is a policy decision of the Government, the policy must be in confirmity to the principle of fairness. Inasmuch as it has been stated by the respondents that the High Level Committee has conducted enquiry, it is now open for this Court to interfere in order to redress the grievance which has been caused to the members of the petitioners union by the conduct of the second respondent in enacting the new bye-laws. They would rely upon the decision rendered in A.S.SANGWAN V. UNION OF INDIA (AIR 1981 SC 1545) to substantiate the contention that the bye-laws should be fair. Apart from the above judgment of the Supreme Court, they would also rely upon the decision reported in AIR 1970 SC 245( CO-OPERATIVE CENTRAL BANK LTD. AND OTHERS ETC., V. ADDITIONAL INDUSTRIAL TRIBUNAL, ANDHRA PREDESH, HYDERABAD AND OTHERS ETC.,). https://hcservices.ecourts.gov.in/hcservices/ 6. A perusal of the entire records show that as per G.O(Ms.) No.6, Animal Husbandry, Dairying and Fisheries (M.P.II) Department dated 10.1.2008, the special bye-laws relating to the condition of employees of Tamilnadu Co-operative Milk Producers' Federation Limited which were approved by the Government have came into effect from the said date onwards. The Government Order clearly states that the Government has constituted a High Level Committee to update the service rules, namely, recruitment, appointment and promotion for the employees of the Tamil Nadu Co-operative Milk Producers Federation Limited and the Commissioner of Milk Production and Dairy Development submitted the draft special bye-laws as approved by the Personnel Committee and the Board of the Tamil Nadu Co-operative Milk Producers' Federation Limited and approved by the Government. The General body of the Tamil Nadu Co-operative Milk Producers' Federation as on date consists of Chairman of 17 District Co- operative Milk Producers Union and inasmuch as the affairs of the unions have been managed by the District Collectors of the District as Special Officers of the Union and it would not be possible to convene the general body of the Tamil Nadu Co-operative Milk Producers' Federation as per Rule 9 of the Tamil Nadu Cooperative Societies Rules 1988, the Government has exempted the said requirement of convening the meeting of the General Body and thereafter, the Government has approved the special bye-laws. As far as the validity or otherwise of the bye-laws is concerned, it is not for this Court to go into the same. This Court can go into the process of making of bye-laws and not the validity of the same. So far as the process is concerned, it is seen in the counter affidavit that in fact the High Level Committee has considered the representations of various persons who have made written representations. It is after deliberations, decisions have been taken and in view of the categoric stand taken by the second respondent, it is not for this Court to hold that the special bye- laws is opposed to the principles of natural justice. Whether the process is the legitimate process or not is not in issue. Even though the proper requirement for the purpose of law making principle which includes the making of the rules or bye-laws principles of natural justice would have no application, the larger interest of the employees are to be taken into consideration. In any event if the individual employee has any grievance, he has right under the Tamil Nadu Co-operative Societies Act, 1983 and under Section 152 it is always open to him to have his grievance redressed. In this view of the matter, it is not possible for this Court, at this stage to interfere with the special bye-laws which have been constituted and given effect to and the petitioners are not entitled to any relief as claimed in these writ petitions. Therefore, the writ petitions are dismissed. https://hcservices.ecourts.gov.in/hcservices/ 7. The learned counsel for the petitioners' Federation would submit that they have made so many representations even after the bye-laws have been given effect to and therefore, direction may be given to the respondents to consider their representations. It is always open to the Government to consider the representations of the petitioners' union as well other persons who are interested and necessary action can always be taken. 8. As observed by the Hon'ble Apex Court in COL.A.S.SANGWAN V. UNION OF INDIA (AIR 1981 SC 1545) it is always open to the Government in cases where some defects have been pointed out in respect of the process of making of bye-laws to rectify such defects and to pass a policy decision. It is always open to the Government to take a wise decision if the representations are having social and legal impact. In fact in the judgment in para 5 has held as under: "5. The learned Attorney-General made it clear that the Union of India is willing to abide by the above directions of this Court and quickly consider the need, if any, for a new policy, and if it considers that there is such need, to frame it quickly. Of course, now that there are contestants and rival points of view, it may not be improper for the Central Government to take into consideration any legitimate representation regarding the formulation of policy that affected persons like the petitioner and the third respondent may make. We do not mean that the Central Government should wait listlessly for representations to pour in. Either party, namely, petitioner and respondent No.3 or for that matter any other, is free to make representations to the central Government provided they do so within one week from now. The Central Government will proceed to take a quick decision but a wise decision, and thereafter make it available to the concerned circle in the Army. If it chooses to re-frame policy which necessitates a fresh selection, then it will be open to the Central Government to make such a selection in such fair manner as it decides. But we further impose a time-bound restriction upon the Central Government since rights of parties are involved. We direct the Central Government, having heard the learned Attorney-General on this point, that the new policy, if any, shall be made within one month from now. The learned Attorney-General on this point, that the new policy, if any, shall be made within one month from now. The learned Attorney-General says that this is quite feasible. We should not be misunderstood to lay down the proposition that it is not open to the Central Government to make any policy, https://hcservices.ecourts.gov.in/hcservices/ regarding any matter including the selection to the Directorate of Military Farms, at any time it likes provided it acts justly and fairly." As laid down by the Hon'ble Apex Court, while laying down the policy, it is not for this Court to give any suggestion, but it is always open to the Government while making such policy to take into consideration the legitimate grievance which are likely to be raised. 9. The writ petitions fail and the same are dismissed. However, it is open to the respondents to consider the representations which may be made by the union of the petitioners as well as any other person who are interested. In the event of the Government deciding to consider such representations, it is open to the Government to give personal hearing of the party if necessary. 10. No costs. Consequently, connected pending miscellaneous petitions are dismissed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar sal To 1.The Commissioner for Milk Production and Dairy Development Madhavam Milk Colony Madhavaram, Chennai 600 051 2.The Managing Director, Tamil Nadu Co-operative Milk Producers Federation Ltd., Madhavaram Milk Colony Madhavaram, Chennai 600 051 3.The Deputy Registrar(Dairying) Thiruvallur https://hcservices.ecourts.gov.in/hcservices/ 4.The Secretary to Government Animal Husbandry, Dairying and Fisheries Department Fort St.George Chennai 600 009 +1 cc to Mr.K.Tamilvendan, Advocate, SR.No.56056 +1 cc To The Government Pleader, SR.56679 +1 cc to Mr.K.Premkumar, Advocate, SR.No.56318 +1 cc to Mr.CR.Dhasaarathan, Advocate, SR.No.56054 W.P.NOs.11874 OF 2008 and 14628 of 2008, M.P.No.2 of 2008 in W.P.No.11874 and M.P.No.1 of 2008 in W.P.No.14628 of 2008 NM(CO) BK(23.10.2008) https://hcservices.ecourts.gov.in/hcservices/