Telangana High Court
K.Ratnakar Reddy vs The State Of Telangana on 30 April, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.Nos. 16691 & 11778 of 2023
COMMON ORDER:
In both these writ petitions, the petitioners are seeking a writ of mandamus declaring:
(i) the impugned action of the Respondents No.4 & 3, dt.25.03.2023 & dt.21.04.2023 respectively in forcing the petitioners to retire on attaining the age of 58 years on 30.06.2023 & 31.05.2023 respectively without any notices as illegal and arbitrary; and
(ii) amendment to bye-laws No.32.4 and 32.5 of the Respondent No.4 organization vide impugned proceedings Rc.No.3747/2022-MACS/AMND, dated 25.03.2023; and
(iii) the impugned amendment certificate i.e., the service condition of petitioners and similarly placed workmen converted from earlier Union Governed by Co-operative Societies Act, 1964 and a Settlement under Section 18(1) of Industrial Disputes Act, 1947 reducing the age of retirement to 58 years as against 61 years under G.O.Ms.No.34, dated 21.10.2021, as in violation of Section 9-A of the Industrial Disputes Act, 1947 and contrary to directions of the Respondent No.2 dated 14.12.2022 and also as 2 TMD,J W.P.Nos.16691 & 11778 of 2023 illegal, without jurisdiction and violative of Article 14 & 21 of the Constitution of India; and
(iv) consequently to set aside the same by further directing the respondents to continue the petitioners in service till they attain the age of 61 years in terms of un-amended Bye-
law No.32.4 of the respondent Nos.4 & 3 read with G.O.Ms.No.34 dated 21.10.2021 with all consequential benefits and reliefs and to pass such other order or orders in the interest of justice.
2. The petitioner in W.P.No.11778 of 2023 was appointed on contract basis as worker in the Mother Dairy (The Nalgonda Ranga Reddy Co-operative Milk Producers Union Limited) in the year 1993 and thereafter, the petitioner was granted time scale applicable to the post from February, 2000. The service conditions as are applicable to the petitioner in W.P.No.16691 of 2023 were also applicable to the petitioner. After conversion of the Mother Dairy into respondent No.4 society, the petitioner's services have also been converted into respondent No.4 subject to the condition that his service conditions would be protected and according to his service conditions prior to conversion, the service Rules of Government 3 TMD,J W.P.Nos.16691 & 11778 of 2023 employees were applicable to him as well. Vide G.O.Ms.No.34 dated 21.10.2021, the Government had extended the age of retirement to 61 years and hence the petitioner herein also was eligible to be continued in service till 61 but when the respondents sought to retire him from service on attaining the age of 58 years, he filed W.P.No.11778 of 2023. Since the facts and circumstances in both the cases are similar, this matter is heard with W.P.No.16691 of 2023.
3. Brief facts leading to the filing of the present writ petitions are that the petitioner in W.P.No.16691 of 2023 was initially appointed on contract basis as worker in the Mother Dairy (The Nalgonda Ranga Reddy Co-operative Milk Producers Union Limited) in 1993 and subsequently, under the directions of the High Court in WPMP No.26647/1999 in W.P.No.21233/1999, dated 15.10.1999 and further directions in Contempt proceedings in C.C.No.1748/1999, dated 17.01.2000, the petitioner was granted time scale applicable o the post from February, 2000. It is submitted that on 20.02.2023, a note was also issued informing that the Nalgonda Ranga Reddy Co-operative Milk Producers Union Limited has been converted into MACS Act, 1995 i.e., into respondent No.4 4 TMD,J W.P.Nos.16691 & 11778 of 2023 Mutually Aided Co-operative Union Limited and a settlement under Section 18(1) of the Industrial Disputes Act, 1947 has been reached between the Management of M/s.NARMAC and the workmen including the petitioner and similarly placed workmen on 30.06.2005 which has been reduced into writing as Memorandum of Understanding dated 30.06.2005. It is submitted that one of the condition of MOU was that 'the workmen will accept the Service Rules and Regulations of the Union and subsequent amendments from time to time'.
4. It is submitted that under G.O.Ms.No.34, the respondent No.1 has enhanced the age of retirement of the employees in all Co-operative societies from 58/60 to 61 years as per amendment of Telangana Public Employment/Regulation of Age of Superannuation Act, 1984 (vide Act No.3 of 2021) and the same has been made applicable to all the employees in Telangana State Dairy Development Co-operative Federation Limited (TSDDCF) vide Proceedings No. 25/Per.I/Estb/2021, dated 30.08.2021. According the petitioner, the same was also applicable to the converted employees such as petitioners herein whose service conditions were governed by the same regulations prior to conversion to the respondent No.4 Mutually Aided Co- 5
TMD,J W.P.Nos.16691 & 11778 of 2023 operative Society. Since the service conditions which are applicable to the Government employees were also applicable to the employees of the respondent No.4 Mutually Aided Co- operative Society, the petitioner and others have made representations to the respondent No.2 on 31.10.2022, requesting the Commissioner to implement the Regulation 32.4 & 32.5 in the respondent No.4 bye-laws i.e., extension of revised pay scales and enhancement of age of superannuation from 58/60 to 61 years. It is submitted that the respondent No.2 vide Proceedings Rc.No.3220/2020-PE, dated 14.12.2002, has addressed a letter to the respondent No.5 to take necessary action by carrying out necessary amendment to bye-laws for enhancing age of superannuation. However, vide orders dated 21.04.2023, the respondent No.5 has issued impugned notice of retirement to similarly placed employee i.e., K.Ratnakar Reddy i.e., the petitioner in W.P.No.11778 of 2023, retiring him at the age of 58 years instead of 61 years. Apprehending that the said similar action would be taken against the petitioner herein and that she may not be continued upto the age of 61 years and alleging that the amendment to the bye-law as relied upon by the respondent No.5 is contrary to Section 9-A of the Industrial Disputes Act r/w Section 2(p) of the Telangana Co-operative 6 TMD,J W.P.Nos.16691 & 11778 of 2023 Societies Act, 1964 r/w Rule 28(6) of the Telangana Co- operative Societies Rules, 1964, as illegal and arbitrary, the present writ petition have been filed.
5. Vide orders dated 25.04.2023 this Court had suspended the impugned proceedings dated 21.04.2023 issued by the respondent No.3 and directed that the petitioners be continued in service pending further orders.
6. The respondents have filed stay vacate petitions in the writ petition and therefore, the writ petitions have been taken up for hearing.
7. Learned counsel for the petitioners, while reiterating the submissions made in the writ affidavit, submitted that the services of the petitioners herein were converted into respondent No.4 society only on the condition of protection of conditions of service of the employees will be on par with the Government employees and all G.Os., issued from time to time as were existing prior to conversion will be applicable. It is submitted that any decision of the respondents No.4 & 5 to amend the condition of service incorporated in bye-law No.32.4 of the bye-laws without any notice to the petitioners and 7 TMD,J W.P.Nos.16691 & 11778 of 2023 without following due procedure as contemplated under law is not enforceable and therefore, petitioners have the right to continue in service upto the age of 61 years as per the unamended bye-laws and as per G.O.Ms.No.34, dated 21.10.2021. He therefore, sought setting aside of the impugned orders and a consequential direction to the respondents to continue the petitioners in service till the age of 61 years. In support of his contentions that the petitioners are eligible to be continued upto the age of 61 years, the learned counsel for the petitioners has placed reliance upon the following judgment:
Paradeep Phosphates Limited Vs. State of Orissa and Others 1;
8. The learned counsel for the respondents relied upon the averments made in the counter affidavit filed along with stay vacate petition and submitted that the respondent No.4 Union was converted from TCS Act of 1964 to a society registered under TS MACS Act of 1995 and that on 14.01.2023, the Managing Director of the respondent No.4 Union, have submitted the amendments to the bye-laws proposing amendment of bye-law No.32.4 & 32.5. It is submitted that the 1 (2018) 6 SCC 195 8 TMD,J W.P.Nos.16691 & 11778 of 2023 General Body has issued 20 days notice prior to amendment and a resolution thereafter was submitted to the respondent No.3 herein for registration and accordingly, the said resolution has been registered. It is submitted that the Assistant Registrar/Field, Ibrahimpatnam, O/o.District Cooperative Officer, Ranga Reddy, has submitted a feasibility report stating that the proposals are in order according to the provisions of Section 10 of TS MACS Act of 1995 and hence recommended to register the amendment of bye-law Nos.32.4 & 32.5 of respondent No.4. It is submitted that since the General Body having resolved to pass the amendment, the petitioners are also governed by the same and therefore, they are liable to be retired at the age of 58 years and not at the age of 61 years. It is submitted that G.O.Ms.No.34, dated 20.10.2021 enhancing the age of paid servants of the Cooperative Societies from 58 years to 61 years are applicable to the societies registered under Telangana Cooperatives Societies Act, 1964 only and not to the employees of the societies registered under Mutually Aided Cooperative Societies Act, 1995. He therefore, submitted that continuation of the petitioners herein till the age of 61 years is placing a lot of financial burden on the respondent society and therefore, this Court may be pleased to vacate the interim 9 TMD,J W.P.Nos.16691 & 11778 of 2023 orders and dismiss the writ petition. In support of his contentions, the counsel for the respondents place reliance upon the following judgments:
(1) Central Council For Research in Ayurvedic Sciences and Another Vs. Bikartan Das & Others 2;
(2) Sri Konaseema Co-operative Central Bank Limted, Amalapuram and Another Vs. N.Seetharama Raju 3.
9. Having regard to the rival contentions and the material on record, this Court finds that both the petitioners herein were earlier working in the Mother Diary i.e., (The Nalgonda Ranga Reddy Co-operative Milk Producers Union Limited) on contract basis and their services were regularized and all the benefits as applicable to the regular employees in the Government, were applicable to them. It is also not in dispute that the said organization i.e., Mother Diary (The Nalgonda Ranga Reddy Co-operative Milk Producers Union Limited) was converted into Mutually Aided Co-operative Union Limited under the MACS Act, 1995. It is also not in dispute that at the time of conversion, there was a settlement under Section 18(1) of Industrial Disputes Act between the management and the 2 2023 (11) Scale 93 3 AIR 1990 AP 171 (FB) 10 TMD,J W.P.Nos.16691 & 11778 of 2023 workers Union (which includes the petitioners herein) and it was decided that the workmen will accept the service rules and regulations of the resultant union and subsequent amendment from time to time i.e., workers have given an undertaking that they will abide by the service rules and regulations of the Union and subsequent amendments from time to time. The service regulations are of the resultant union of the Nalgonda Ranga Reddy Co-operative Milk Producers Union Limited and hence the petitioners are governed by the own bye-laws approved by the Registrars of MACS Act, Ranga Reddy District. It is also not in dispute that laws 32 deals with the staff of the society and their service conditions. As seen from the proposals for amendment of bye-laws and the minutes of the 22nd General Body Meeting dated 27.09.2022, the Union has adopted the provisions of G.O.Ms.No.34, dated 21.10.2021 extending the age of retirement of its employees to 61 years. By way of an amendment, the age of retirement for the employees who have been converted from the earlier Mother Diary was sought to be restricted to 58 years and not 61 years.
10. Thus, it is clear that before the amendment of the bye-laws No.32.4 & 32.5, the age of retirement as is applicable 11 TMD,J W.P.Nos.16691 & 11778 of 2023 to the regular employees of the respondent No.4 society, was also applicable to the petitioners herein. When the society wanted to change the service conditions of its employees, even those who have been converted from the earlier Mother Dairy, it ought to have given notice to them. The contentions of the respondents that the proposal was made before the General Body and that the General Body has given a notice of 20 days before passing the resolution, cannot be considered as a notice given to the employees for amendment of bye-laws or amendment of their service conditions. As held by the Hon'ble Supreme Court in the case of Paradeep Phosphates Limited (cited supra) that Section 9(A) of the Industrial Dispute Act, makes it obligatory on the part of the employer to give advance notice to the employee if he intends to change certain things as envisaged under Section 9-A of the Act read with Fourth Schedule. The Hon'ble Supreme Court has also considered the situation where the employer is bound to give a minimum of 21 days notice to the employee if the employer intends to change any material terms of his service and the clauses of the fourth schedule says 'withdrawal of any customary concession or privilege or change in usage', and it was interpreted that the 'privilege' means a 'special right, advantage or immunity granted 12 TMD,J W.P.Nos.16691 & 11778 of 2023 or available only to a particular person or group' and such a privilege cannot be taken away without affording an opportunity of hearing.
11. The cases cited by the learned counsel for the respondents have laid down that a society cannot be characterized as 'State' within the meaning of Article 12 and even, if it is so characterized, it is bound by its bye-laws registered under the A.P.Cooperative Societies Act, are not bound by the bye-laws as they are mere contractual in nature and a contractual obligation cannot be enforced by way of a writ petition under Article 226 of the Constitution of India.
12. However, this Court finds that the said decisions are not applicable to the case on hand. When the petitioners, while conversion into the MACS Act, have clearly been given an undertaking that their service conditions would be governed by the service conditions of the Government employees, the respondents cannot take away that right by giving 20 days of notice before conducting the General Body Meeting. The General Body can only take decisions in respect of all the employees of the society and when a particular right or privilege is granted to a particular group of employees, the employees have to be given 13 TMD,J W.P.Nos.16691 & 11778 of 2023 specific notice before taking any decision altering or amending their service conditions. In this case, it is clearly not done, therefore the amendments to bye-laws No.32.4 & 32.5 are in violation of principles of natural justice and cannot be sustained.
13. In view of the same, the petitioners are eligible to be continued in service till they attain the age of superannuation i.e., 61 years as is the case of employees of other employees of the respondent No.4 Cooperative Society.
14. Accordingly, both the writ petitions are allowed. There shall be no order as to costs.
15. Miscellaneous petitions, if any, pending in these writ petitions, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 30.04.2024 bak