Madras High Court
P. Rakkiannan vs The Special Officer on 27 April, 2023
W.P.No.38065 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
W.P.No.38065 of 2003
P. Rakkiannan ... Petitioner
Vs.
The Special Officer
S.1565, Palace Nagar Co-operative
House Building Society Ltd.,
Salem 636 001. ... Respondent
PRAYER : Writ Petition filed under Article 226 of Constitution of
India, to issue Writ of Certiorari and to call for the records of the respondent
dated 30.08.2003 retrenching the petitioner's services and quash the same as
illegal.
For Petitioner : Mr.S.Baskaran
For Respondent : Mr.M.R.Raghavan
ORDER
This writ petition has been filed to call for the records of the
respondent dated 30.08.2003 retrenching the petitioner's services and quash the
same as illegal.
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W.P.No.38065 of 2003
2. The learned counsel appearing for the petitioner submitted that the
petitioner was appointed as construction Engineer in the respondent society on
09.09.2000 by the Special Officer of the society on a consolidated monthly pay
of Rs.2,500/-. Ever since he had been rendering sincere and unblemished
service in the said post. The petitioner was being paid salary in the scale of pay
at Rs.1640-60-2600-75-2900 with other allowances admissible to the said post
as per settlement under Section 18(1) of the I.D.Act, dated 23.04.2001.
Thereafter the respondent by impugned order dated 30.08.2003 retrenched the
services of the petitioner with effect from 01.09.2003 A.N. is in violation of
25(F) (a) (b) (c) of the I.D.Act, 1947 r/w Rule 61 of the Tamil Nadu I.D. Rules
1958 stating that the construction works in the Society has been completed in
the year 2001 itself and his services are no longer required in the Society. There
was no notice to the petitioner prior to the issue of this order as contemplated
under the above Act and Rules. The order of retrenchment dated 30.08.2003 is
illegal, unlawful and against the mandatory provision of law. While passing the
order of retrenchment by the respondent, the respondent has failed to give one
month statutory notice prescribed under Section 25(F) (a) of the I.D.Act 1947
nor the respondent paid at the time of retrenchment the one month wages/salary
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W.P.No.38065 of 2003
in lieu of such notice thereby violated the above mandatory provision which
reads as follows:-
25F. Condition precedent to retrenchment of workmen:-
No workman employed in any industry who has been in continuous
service for not less than one year under an employer shall be
retrenched by that employer until:-
(a) the workman has been given one month's notice in
writing indicating the reasons for retrenchment and the period of
notice has expired or the workman has been paid in lieu of such
notice, wages for the period of the notice.
3. The learned counsel for the petitioner further submitted that while
passing the impugned order, the respondent has failed to follow Section 25(F)
(b) of the I.D.Act, 1947 by not paying the retrenchment compensation along
with the order of retrenchment i.e., at the time of passing the retrenchment.
Section 25(F) (b) reads as follows:-
“25F. Condition precedent to retrenchment of workmen:-
No workman employed in any industry who has been in continuous
service for not less than one year under an employer shall be
retrenched by that employer until-
(a)***
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days average pay
(for every completed year of continuous service) or any part thereof in
excess of six months, and”
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W.P.No.38065 of 2003
4. The learned counsel for the petitioner further submitted that if
compensation is not paid at the time of the retrenchment the condition of the
section 25(F) (b) will attract. In the instant case as the petitioner was not paid
the compensation at the time of the retrenchment as required under the above
provision of law, the impugned order of retrenchment is liable to be set aside as
held by the judgment of the Hon'ble Apex Court as well as by this Court in
various cases. Rule 61 of the Tamil Nadu I.D.Rules is extracted as hereunder:-
“Rule 61. Notice of retrenchment: If any employer desires to
retrench any workmen employed in his industrial establishment who has
been in continuous service for not less than one year under him (hereinafter
referred to as “workmen” in this rule and in rules 62 and 63), he shall give
notice of such retrenchment [as required under clause (c) of section 25F in
Form 'R'] to the State Government”.
5. Aggrieved by the above order of retrenchment dated 30.08.2003
passed by the respondent, the petitioner has come forward with the present writ
petition.
6. The learned counsel for the respondent has filed the counter
affidavit and submitted that the petitioner started his work on the basis of the
resolution passed in page no.150 of Minute Book. Though adequate cadre
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W.P.No.38065 of 2003
strength was not there, the petitioner was taken into service and the Registrar's
approval was also not obtained for his appointment. The resolution was passed
by the Special Officer, Palace Nagar Co-operative House Building Society
Ltd., Salem, without following the rules. Such an appointment came to be made
probably because the petitioner also belongs to the same village in Omalur as
that of the then Special Officer. The petitioner was appointed for the purpose of
supervising the building which were constructed by the respondent Society.
During the Review meeting on 21.07.2003 the Registrar observed that since the
construction was over, there was no necessity to supervise any construction and
no necessity for the building supervisor. On that basis the Registrar called upon
the respondent Society to terminate the services of the petitioner. Subsequent to
the Registrar's advise a communication dated 24.07.2003 to the similar effect
was sent by the Deputy Registrar, Housing. On receipt of these
communications and to give effect to the orders passed by the superior
authority, the services of the petitioner was terminated. Since the post held by
the petitioner was abolished the services of the petitioner was terminated, there
was no scope for employing the petitioner since there was no necessity to
supervise the construction activity as the construction had come to an end.
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W.P.No.38065 of 2003
7. The learned counsel further contended that the respondent being a
Co-operative Society, the writ petition would not lie as against the respondent.
Further the relationship between the petitioner and the respondent was purely
contractual and it may not be open to the petitioner to seek relief under Article
226 of the Constitution of India for the purpose of enforcing this contract. Even
otherwise, since the Registrar has categorically stipulated that the post has
become infructuous, the Society is bound by the directions of the Registrar and
consequently, the petitioner would not be entitled to seek relief contrary to
such directions. On this basis, he submitted that the writ petition deserves to be
dismissed.
8. The learned counsel for the respondent further submitted that
Section 25(F) of the Industrial Disputes Act is not applicable to the instant
case for the reason the petitioner will not fall under the definition Workman in
order to claim rights under Section 25 (F) of the Industrial Disputes Act and
even assuming that the petitioner was retrenched from service, it is not in all
cases of retrenchment the orders of reinstatement would be automatic. In such
circumstances, the prayer for quashing the order on the basis of Section 25(F)
was contravened is in equitable and unjust. If the petitioner is a workman under
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W.P.No.38065 of 2003
the Industrial Disputes Act, the petitioner would be entitled to invoke the
provisions of the Industrial Disputes Act and seek alternative remedy before
the Labour Court and not approach this Court under Article 226 of the
Constitution of India. Hence the petitioner is not entitled for any relief and the
writ petition is liable to be dismissed. In support of his contention he relied
upon the judgment of this Court in the case of M.Mahendravarman and
others Vs The Government of Tamil Nadu rep. by its Secretary to
Government, Cooperation, Food and Consumer Protection Department, Fort
St.George, Chennai 600 009 and others reported in 2009 (5) CTC 237 and the
relevant paragraphs are extracted as below:-
“27. Thus applying all the above tests, it could be safely
concluded that the 4th respondent does not fall within the purview of
Article 12 of the Constitution of India and thus the same is not
amenable to the writ jurisdiction of this Court.
28. One of the propositions laid down in K.Marappan's
case by the Larger Bench is as follows:
“Proposition N.(vi). The bye-laws made by a co-operative
society registered under the Tamil Nadu Co-operative Societies Act,
1983 do not have the force of law. Hence, where a society cannot be
characterised as a 'State', the service conditions of its employees
governed by its bye-laws cannot be enforced through a writ petition.”
9. Heard both sides and perused the materials available on record.
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W.P.No.38065 of 2003
10. The petitioner was appointed in the respondent Society to
supervise the construction of the building, based on the resolution passed by
the Special Officer, Palace Nagar Co-operative House Building Society Ltd.,
Salem, without following the rules. During the Registrar Review meeting on
21.07.2003, the Registrar observed that since the construction was over, there
was no necessity to supervise any construction and consequently there was no
necessity for the building supervisor. On that basis, the respondent Society
decided to terminate the service of the petitioner. The above decision taken by
the respondent Society to terminate the services of the petitioner is not arbitrary
and the same was taken in view of the fact that construction of the building was
over hence the termination order passed by the respondent is valid as per law.
In regard to the contention raised by the respondent Society regarding the
maintainability of the writ petition, it is well settled in the case of
M.Mahendravarman and others Vs The Government of Tamil Nadu rep. by
its Secretary to Government, Cooperation, Food and Consumer Protection
Department, Fort St.George, Chennai 600 009 and others reported in 2009
(5) CTC 237 that writ petition will not lie against the Co-operative Society and
on this count also this writ petition has to be dismissed.
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W.P.No.38065 of 2003
11. In view of the above factum of the case this Court is not inclined
to interfere with the order passed by the respondent dated 30.08.2003 and the
same is hereby confirmed.
12. In the result this writ petition stands dismissed. No costs.
27.04.2023
dpq
Index : Yes /No
Speaking Order : Yes/No
https://www.mhc.tn.gov.in/judis
W.P.No.38065 of 2003
J. SATHYA NARAYANA PRASAD, J.
dpq
To
The Special Officer
S.1565, Palace Nagar Co-operative
House Building Society Ltd.,
Salem 636 001.
W.P.No.38065 of 2003
27.04.2023
https://www.mhc.tn.gov.in/judis
