Madras High Court
K.Kannan vs The Secretary To Government Of Tamil ... on 11 October, 2017
Bench: M.Venugopal, Abdul Quddhose
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.10.2017
Judgment Reserved On : 04.10.2017
Judgment Pronounced On: 11.10.2017
CORAM
THE HON'BLE MR.JUSTICE M.VENUGOPAL
and
THE HON'BLE MR.JUSTICE ABDUL QUDDHOSE
W.A.(MD) No.348 of 2012
in
W.P.(MD)No.5935 of 2007
K.Kannan .. Appellant / Petitioner
vs.
1.The Secretary to Government of Tamil Nadu,
Agriculture (AEII) Department,
Secretariat, Chennai - 600 009.
2.The Registrar, Agro Engineering
Service Co-operative Soecieties/
Commissioner of Agriculture,
Ezhilagam, Chepauk, Chennai - 600 005.
3.The Special Officer,
Agro Engineering and
Service Co-operative Federation,
No.55, Thiru.Vi.Ka.Industrial Estate,
Ekkattuthangal, Chennai - 600 032.
4.The Special Officer,
Thirumangalam Agro Engineering and
Service Co-operative Society Ltd.,
10, Main Road, Thirumangalm, Madurai.
... Respondents /Respondents
Prayer: Writ Appeal filed under Clause 15 of the letters patent against the
order dated 09.07.2007 made in W.P.(MD)No.5935 of 2007.
!For Appellant : Mr.S.Seenivasagam
^For Respondents : Mr.V.R.Shanmuganathan
Special Government Pleader
:JUDGMENT
[Judgment of the Court was delivered by M.VENUGOPAL, J.] Preface:
The Appellant has preferred the instant Writ Appeal as against the order, dated 09.07.2007 in W.P.(MD)No.5935 of 2007 passed by this Court.
2.Earlier, the Learned Single Judge while passing the impugned order, dated 09.07.2007 in W.P.(MD)No.5935 of 2007 (filed by the Appellant as Petitioner), at paragraph no.3, had observed the following:-
"In any event, the arguments based upon the Industrial Disputes Act, the said V-B will not apply to this Petitioner, as he is not a "workman"
within the meaning of Section 2 (s) of the Industrial Disputes Act. Even otherwise, whether the federation is covered by the provisions of Section 25(o) will have to be seen in the context of Section 25-L(1) of the Act, wherein only a 'factory' is covered by V-B. Even whether it is a factory employing more than 100 workers will have to be decided on facts. If there are any other Government Orders granting re-employment then it is for the Petitioner to work out his remedy in terms of those orders. Hence, petition is dismissed. Consequently, connected Miscellaneous Petition is also closed." and consequently, dismissed the writ petition.
3.Challenging the validity, correctness and legality of the order passed by the Learned Single Judge in dismissing the W.P.(MD)No.5935 of 2007 on 09.07.2007, the Learned counsel for the Appellant/Petitioner submits that the impugned order of the Learned Single Judge in dismissing the writ petition is contrary to Law and facts, besides an erroneous one. Appellant's Submissions:
4.The Learned counsel for the Appellant takes a plea that the Closure Order of the third Respondent, dated 28.10.2004 and the impugned order terminating the service of the Appellant in Rc/4641/Admn-3/2002, dated 30.11.2004, without prior permission of the Government as required under Section 25 (o) of the Industrial Disputes Act, 1947 is a non-est one, in the eye of Law.
5.Advancing his arguments, the Learned counsel for the Appellant takes an emphatic stand that after allowing the Appellant/Petitioner to continue the fourth Respondent/Society as the Block Manager, as per proceedings dated 05.03.2003 of the Managing Director of Tamil Nadu Agro Engineering Services Co-operative Federation, Chennai, he ceased to be an employee of 'AGROFED' and hence, the order of termination was passed without authority.
6.The Learned counsel for the Appellant proceeds to point out that non- deployment of the Appellant to other Departments on closure of 'AGROFED', as adopted during the closure of 'TANCOF', as per G.O.Ms.No.142, Agriculture (O.S.) Department, dated 04.06.2002 was discriminatory and in violation of Articles 14 and 16 of the Constitution of India.
7.The main plea of the Appellant is that while the reqularisation of M/s.C.Ganesan and S.Ramasamy of 'AGROFED', to the redeployment was considered as per G.O.(2D) No.78, Animal Husbandry and Fisheries Department, dated 11.11.2003 and absorbed as Junior Engineers in Animal Husbandry even while closure of 'AGROFED' was on process, the act of non extending of similar treatment to the Appellant is a highly discretionary one.
8.The Learned counsel for the Appellant brings it to the notice of this Court that the termination order was not passed by the fourth Respondent and inasmuch as the writ petition was not directed against the Co-operative Society in a direct manner, the larger Bench decision in MARAPPAN v. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, NAMAKKAL reported in 2006 (4) CTC 689 has no application to the present case whatsoever.
9.The Learned counsel for the Appellant strenuously submits that the Appellant/Petitioner worked as a 'Block Manager' and therefore, he was not a 'workman' under the Industrial Disputes Act, 1947. Therefore, he cannot obtain a relief either of redeployment or his termination order being set aside under the Industrial Disputes Act, 1947. Moreover, it is reported on behalf of the Appellant that the Appellant cannot obtain a relief under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983, since he was not a 'common' cadre employee.
10.Lastly, it is the contention of the Learned counsel for the Appellant that the Learned Single Judge should have held that 'AGROFED' after allowing the Appellant to be a permanent employee of the fourth Respondent by exercising his option to be so, that too with the consent of the fourth Respondent, he ceased to be an employee of the 'AGROFED' and also that the 'AGROFED' he ceased to be an employer had no right to terminate the service of the Appellant with the fourth Respondent.
Glimpse of Previous Orders:
11.The Learned counsel for the Appellant relies on the order dated 08.12.2014 in W.P.(MD)No.11394 of 2010 between R.ULAGANATHAN v. THE GOVERNMENT OF TAMIL NADU and three others, whereby and where under at paragraph Nos.3 and 4, it is observed as under:-
"3.The orders of this Court favouring re-employment of retrenchedemployees are, (a) W.P.(MD).No.38009 of 2005, dated 11.11.2009 (S.Palani Vs.The Secretary of State of Tamil Nadu and others); (b) W.P.Nos.8379 of 2007, 11763 to 11765 of 2007 and 12662 of 2007, dated 29.09.2011 (B.Shanmugam and Others Vs.The Director of Social Defence, Chennai-10 and Others) and (c) W.P.Nos.4204, 9520, 13888 and 21547 of 2003, dated 28.08.2009.
4.I have also passed a similar order in a batch of writ petitions in W.P.(MD).Nos.7241 of 2011 etc. (R.Rathakrishnan and others vs. State of Tamil Nadu, Rep. By its Principal Secretary to Government, Labour and Employment Department and others) wherein, having found that similarly placed retrenched employees have already been absorbed in various Departments through the Government Orders above referred to, based on the strength of the orders of this Court, I have ordered absorption of 52 employees as Junior Training Officers, subject to the same conditions imposed for re-employment of other retrenched employees i.e., the appointment shall be fresh appointment without any claim for past seniority. As the Petitioner is also a similarly placed retrenched employee, his claim for absorption or re- employment is covered by the Judgments referred to above including that of the latest, dated 27.11.2014, made in W.P(MD).Nos.7241 of 2011 etc. batch. As already one post of Junior Training Officer is kept vacant, vide order dated 18.08.2011, made in M.P(MD).No.1 of 2010 in this writ petition, for the benefit of the Petitioner, the Petitioner may be directed to be absorbed in the post, which is being kept vacant.
5.In the result, the writ petition is allowed. The respondents 1 and 2 are directed to absorb the petitioner as Junior Training Officer in the post being kept as vacant, pursuant to the order dated 18.08.2011, made in M.P(MD).No.1 of 2010 as fresh appointment and without any claim for past seniority. The above exercise shall be completed within twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed."
and ultimately, the writ petition came to be allowed by directing the Respondents 1 and 2 therein to absorb the Petitioner as Junior Training Officer in the post being kept as vacant, pursuant to the order dated 18.08.2011, made in M.P.(MD)No.1 of 2010 as fresh appointment and without any claim for past seniority.
12.Also, that the Learned counsel for the Appellant cites the order dated 05.10.2015 passed by this Court in W.P.No.17330 of 2015 between S.PARAMAGURU v. THE SECRETARY TO GOVERNMENT, LABOUR AND EMPLOYMENT (P2) DEPARTMENT, GOVERNMENT OF TAMIL NADU, FORT ST. GEORGE, CHENNAI - 09 and three others, whereby and where under at paragraph Nos.5 and 6, it is observed as under:-
"5.Mr.S.Sadeeshkumar, Learned Additional Government Pleader appearing for the Respondents sought time to find out whether a similar order has been passed in the batch of Writ Petitions, pursuant to which, the said order has been followed under proceedings dated 09.09.2015. This Court is not inclined to grant any adjournment for the reason that when similarly placed persons have approached this Court by filing W.P(MD).Nos.7241, 7359 and 7105 of 2011 and 4023, 7815 of 2010, this Court, on 27.11.2014 has passed the following order:-
?16. In the result, all these writ petitions are allowed and the First Respondent is directed to absorb the Petitioners, in all these writ petitions, as junior training officers in the 52 existing vacancies kept vacant in pursuance of the order of this Court, dated 29.01.2013, subject to the same conditions imposed for the appointment of similarly placed persons as fresh appointments without counting past service and without any claim for seniority. The above exercise shall be completed within twelve weeks from the date of receipt of a copy of this Order. Consequently, connected Miscellaneous Petitions are closed. No costs.?
In reference to the said order passed by this Court, the Government by accepting the direction given, has issued G.O.Ms.No.116, Labour and Employment (P2) Department, dated 06.08.2015. The relevant portion of the said G.O. reads as follows:-
6.The Government after careful examination, have decided to accept the proposal of the Director of Employment and Training, Chennai so as to implement the High Court's orders 2nd and 3rd read above. Accordingly, the Government issue the following orders:-
(i) Tvl / Tmt.
1). N.Sadasivam, 2) S.Thirumalsubramaian 3) R.Ramalingam, 4)V.Jayapal, 5) K.Murugesan, 6) R.GopalaKrishnan, 7) S.Manian, 8) R.Baskaran, 9)R.lrulappan, 10) V.Gandhimathi, 11)P.Muralidnaran, 12)B.Muniyasekar, 13) G.Muniyandi, 14) O Ravi, 15) G.Meganathan, 16) R.Ravi, 17) A.Annadurai, 18) T.Vedavyasan, 19). P.Samuel, 20) C.N.Selvasekaran, 21)K.Baskaran, 22) C.Gopalasamy 23) I.Britto Arockiasamy, 24) K.Arjunan, 25) G.Thiruvengadam, 26). K.Kalidoss, 27).G.Selvaraj, 28) M.Shanmugasundaram, 29)P.Velayutham, 30). M.Sivalingam, 31).K.Mani, 32)R.Radhakrishnan, 33) M.Manohar, 34) K.Pakkianathan, 35)K.Kariamalaialagu, 36) T.lsaackumar,37). M.Sekarwilson, 38)G.Krishnarajan, 39). A.Subramaniam, 40). R.Pitchaimani, 41)B.Shajahan, 42).R.Premkumar, 43).S.EIangovan, 44). M.Ganesan, 45). R.Thangadurai, 46) R.Navajeevan, 47).S.Gunasekarapandi, 48). V.Rajendran, 49). T.Ravi, 50). K.Uthilakumari, 51) S.Amalraj,
52).R.UIaganathan be appointed to the post of Junior Training Officer in the time scale.
ii) In exercise of powers conferred under Part-ll, Rule 48 of General Rule for Tamil Nadu State and Subordinate Services, the Governor of Tamil Nadu hereby relaxes. Rule 10(A) (Recruitment through Employment Exchange) of General Rules for Tamil Nadu State and Subordinate Services, Rule 4 (Rule of Reservation)of the Special Rules for Tamil Nadu Employment and Training Sub-
ordinate Service and Rule 2(a) (method of appointment) of the Special Rules for Tamil Nadu Employment and Training Sub-ordinate Service in favour of the above 52 individuals for appointment of the above post so as to comply with the" orders of the Madurai Bench of Madras High Court, Madurai dated 27.11.2014 passed in W.P.Nos. 4023, 7815, of 2010 and 7105, 7241, 7359 of 2011 and 08.12.2014 in W.P.No.11394 of 2010 filed by them.
(iii) The appointment will be considered as a fresh appointment only.
(iv) The Petitioners should be fully qualified to hold the post of Junior Training Officer as per the statutory rules.
(v) For Junior Training Officer Appointment, except age, other conditions should be satisfied and original certificates to this effect should be produced.
(vi) The previous services will not be considered along with this Department Services.
(vii) The fixing of seniority should be ascertained at the time of appointment.
(viii) They should submit an affidavit obtained from a Notary Public that they are not holding any Government Post.
7. The Director of Employment and Training, Chennai is directed to take necessary action and send a compliance report to Government. Subsequently, separate proceedings were also issued, by issuing an order appointing Mr.M.Sivalingam as Junior Training Officer in the scale of pay of Rs.9300-34800 + GP Rs.4200/- at Government Industrial Training Institute, Nagapattinam in the existing vacancy by proceedings dated 09.09.2015 in TP2/20883/2015-30 of the Joint Director (Craftsmen Training) (i/c), Office of the Director of Employment and Training, Guindy, Chennai. Therefore, this Court has no hesitation to direct the First Respondent to consider the case of the Petitioners in the light of the orders issued by this Court in WP(MD) No. 4023 of 2010 etc., and in the light of the orders of the 1st Respondent in G.O.Ms.No.116, Labour and Employment (P2) Department dated 06.08.2015.
6. Accordingly, the First Respondent is directed to consider the case of the Petitioners in the light of the orders issued by this Court in W.P(MD).Nos.7241, 7359 and 7105 of 2011 and 4023, 7815 of 2010 and in the light of the orders of the 1st Respondent in G.O.Ms.No.116, Labour and Employment (P2) Department dated 06.08.2015, within a period of three months from the date of receipt of a copy of this order."
Respondents' Contentions:
13.Conversely, it is the submission of the Learned Special Government Pleader for the Respondents 1 to 4 that W.P.(MD)No.5935 of 2007 filed by the Appellant as Petitioner before this Court is not maintainable, in the Eye of Law, because of the reason that as per Section 153 of the Tamil Nadu Co-
operative Societies Act, 1983, the Appellant/Petitioner can prefer 'Revision' as against the order of termination, dated 30.11.2004 passed by the third Respondent/Special Officer, Tamil Nadu Agro Engineering and Service Co- operative Federation, Chennai 97.
14.The Learned Special Government Pleader for the Respondents 1 to 4 contends that the larger Bench of this Court in the decision MARAPPAN v. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, NAMAKKAL reported in 2006 (4) CTC 689, had specifically observed that 'Court will not normally exercise its power under Article 226 of the Constitution of India in the absence of special circumstances, when there is an alternative remedy'. The core stand of the Respondents is that the writ petition is not maintainable because of the fact that the Appellant/Petitioner is not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
15.The Learned Special Government Pleader for the Respondents 1 to 4 proceeds to state that during the year 2002, the Government of Tamil Nadu reviewed the performance of the 'AGROFED' and its affiliates (Block and District Level Co-operatives) and found that the 'AGROFED' was not working on a viable basis and in spite of financial assistance extended by the Government, for the past several years, it was incurring continuous loss and was not able to repay the loans availed by it and many of the affiliates were unable to meet their financial requirements (including the payment of salaries) and therefore, trading activities also decreased.
16.Furthermore, the Government after poor and inefficient activities of the 'AGROFED' and its affiliates and in the absence of any benefits provided by the 'AGROFED' to the public, issued orders in G.O.Ms.No.395, Agriculture (AE-II) Department, dated 27.11.2002 that appropriate proceedings under Section 137 of the Tamil Nadu Co-operative Societies Act, 1983, Tamil Nadu Act 30 of 1983 be initiated by the Commissioner of Agriculture/Registrar of Agro Engineering Services to windup the affairs of the 'AGROFED' after following due process prescribed under the Act.
17.Continuing further, the Learned Special Government Pleader for the Respondents 1 to 4 draws the attention of this Court to the fact that the Commissioner of Agriculture/Registrar of Agro Engineering Services initiated relevant proceedings as per section 137(1) of the Tamil Nadu Co-operative Societies Act, 1983 to wind up the affairs/activities of the 'AGROFED' and orders were passed by him on 31.05.2005 to wind up the activities of 'AGROFED' by appointing Liquidator.
18.According to the Learned Special Government Pleader for the Respondents 1 to 4 even during the proceedings for winding up of the activities of 'AGROFED' were going on, the 'AGROFED' was not able to pay salaries to the employees for about 30 months from 01.04.2002 and thereafter, its business operations were closed and all its 370 employees were retrenchedfrom the service on 30.11.2004 and after serving notice under Section 25 FFF of the Industrial Disputes Act, 1947.
19.The Learned Special Government Pleader for the Respondents 1 to 4 submits that the then Section Officer of 'AGROFED', issued one month notice under Section 25 FFF of the Industrial Disputes Act, 1947 for Retrenchment of employees with effect from 30.09.2004 as per notice Rc.No.4641/ Admin3/2002, dated 31.08.2004 and the notice was withdrawn due to Administrative reason and a fresh notice to retrench the employees with effect from 30.11.2004, was issued by the third Respondent/Section Officer of 'AGROFED' by notice dated 28.10.2004, and ultimately a Retrenchment order was issued on 30.11.2004. In short, it is the categorical plea of the Respondents 1 to 4 that due to closure of operation of 'AGROFED' of the employees, (including the Appellant), were retrenched from service on 30.11.2004 and that the Appellant was paid a sum of Rs.1,64,723/- as Retrenchment compensation.
20.The Learned Special Government Pleader for the Respondents 1 to 4 contends that pursuant to the winding up of Tamil Co-operative Oil Seeds Growers Federation (TAJCOF), the employees of the extension wing of TANCOF were merged with the Department of Agriculture, as per G.O.Ms.No.142, Agriculture (OS) Department, dated 04.06.2002 and since the extension wing was implementing the State Schemes of various kinds including Centrally Sponsored Scheme and in order to implement the schemes continuously, the wing along with the staff were merged with the Directorate of Agriculture and other employees of TANCOF not required for the implementation of State Schemes, were retrenchedfrom service and apart from that, inasmuch as no schemes were implemented by the third Respondent, which was under
liquidation, the employees of 'AGROFED' cannot be equated with the employees of TANCOF and therefore, there is no discrimination or there is no violation of Constitution of India.
21.The Learned Special Government Pleader for the Respondents 1 to 4 points out that Thiru. C.Ganesan, District Manager and S.Ramasamy, Block Manager were temporarily absorbed in the Animal Husbandry and Fisheries Department, as per G.O.(2D) No.78, Animal Husbandry and Fisheries Department, dated 11.11.2003 and in fact, the said individuals moved independently and got orders before the closure of 'AGROFED' and as such, there is no violation in this regard.
22.The Learned Special Government Pleader for the Respondents 1 to 4 contends that there were twenty one categories of employees in 'AGROFED' and on interaction with various Departments, it was found that there was demand from various Departments for redeployment of staff belonging to the first 11 categories and they should be redeployed according to the vacancy position (Including the post of Office Superintendents to Record Clerk) and further that the Chief Engineer (Agriculture Engineering) had offered to take over certain staff belonging to 12 to 15 and 18 categories (including the Driver and Road Cleaner and Watchman) and the remaining three categories 19, 20 and 21, to which, the Appellant belongs, are technical in nature and the total comes around 166. In this connection, the Learned Special Government Pleader brings it to the notice of this Court that before closure of 'AGROFED', proposal was sent to Government for financial assistance and redeployment to the retrenched employees and though the Government was not liable to pay the dues to the retrenched employees, it was kind enough to sanction financial assistance, but not passed any order regarding redeployment and in fact, the Appellant cannot claim redeployment as a matter of fact.
23.The Learned Special Government Pleader for the Respondents 1 to 4, submits that the Appellant was retrenched from service by virtue of the winding up order of the Government and that they had not challenged the said order and in fact, the liquidation proceedings were initiated under Section 137 of the Tamil Nadu Co-operative Societies Act, 1983 and therefore, the decision taken in MARAPPAN's case applies to the present case.
24.The Learned Special Government Pleader for the Respondents 1 to 4 contends that as per G.O.Ms.No.303, Agriculture (AE 2) Department, dated 15.11.2005, the State Government is kind enough to sanction a sum of Rs.1560.25 lakhs as loan from the Tamil Nadu State Renewal Fund towards payment of closure compensation and other terminal benefits to 385 employees of 'AGROFED' including 15 employees, who were retired/expired and this amount includes a sum of Rs.1,64,723/- received as Retrenchment compensation by the Appellant. Furthermore, a sum of Rs.1,23,635/- was adjusted to the Appellant's loan amount out of the total amount and in fact, a sum of Rs.41,087/- was paid to the Appellant. In short, the Appellant had suppressed the fact and now takes a novel turn and further that, the order of the Learned Single Judge in dismissing the W.P.(MD)No.5935 of 2007, dated 09.07.2007 is free from any flaw.
Appellant's Reply:
25.The Learned counsel for the Appellant submits that the Appellant/Petitioner lastly served as Block Manager of the fourth Respondent/Society and that the third Respondent/Federation as per G.O.Ms.No.395, Agriculture (ARII) Department, dated 27.11.2002 was to be wound up by means of initiation of appropriate proceedings, as a result of which, all the 271 staff members of the Federation were terminated from service among which, 153 were Block Managers (including the Appellant) and subsequently, the Retrenchment compensation was disbursed to all of them.
26.The Learned counsel for the Appellant brings it to the notice of this Court that even before the closure of the Federation when a proposal to close the Federation was on the anvil, the Union of Employees of the Federation made representation to the Government and that the Government had also agreed to consider a move to absorb of the staff members, which was mooted as per join meeting of few Government Departments and assures only after effecting of 'Retrenchment', that was possible for redeployment.
27.The Learned counsel for the Appellant points out that the Appellant filed W.P.(MD)No.5935 of 2007 to absorb him into service in any of the Government Department as made vide G.O.Ms.No.152, Agriculture (OS) Department, dated 04.06.2002. Also that, it is represented on behalf of the Appellant that when the Tamil Nadu Oil Seeds Growers Federation (TANCOF), a similar co-operative Federation was closed and two of the employees of TANFED (The Appellant's colleagues) were absorbed in Animal Husbandry Department, as per G.O.(2D) 78, Animal Husbandry and Fisheries Department, dated 11.11.2003.
Unfortunately, the Writ Petition(MD)No.5935 of 2007 filed by the Appellant, was dismissed by this Court on 09.07.2007 based on the reasons that (1) There was a delay of two years in filing the writ petition; (2) The writ petition is not maintainable against the Co-operative Society and (3) If there are Government Orders granting redeployment, the Appellant/Petitioner has to work out his remedy in terms of those orders.
28.The Learned counsel for the Appellant brings it to the notice of this Court that in W.P.(MD)No.11394 of 2010 filed by one R.ULAGANATHAN v. THE GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVERNMENT, CHENNAI ? 9 and three others, this Court, on 08.12.2014 at paragraph No.2, had observed as under:-
"The petitioner joined service of the third respondent, the Tamil Nadu Agro Engineering and Services Co-operative Federation Limited (hereinafter referred to as 'AGROFED') on 25.08.1986 and after having served for nearly 27 years and after having sanctioned selection grade, lost his employment consequent to abolition of AGROFED vide G.O.Ms.No.395, dated 27.11.2002. The similarly placed retrenched employees approached this Court more than once for re-employment and in all the cases, the claim of the retrenched employees for re-employment was sympathetically considered on the strength of series of Government Orders, re-deploying the similarly placed retrenched employees, not only in AGROFED, but also in other Departments. It is relevant to quote some of the Government Orders which are as follows:-
a)G.O.Ms.No.142, Agriculture (O.S.) Department, dated 04.06.2002;
b)G.O.(D)No.163, Labour and Employment (A1) Department, dated 26.02.2002;
c)G.O.Ms.No.395, Agriculture (AE-II) Department, dated 27.11.2002
d)G.O.(2Pa)No.211, Municipal Administration and Water Supply Department, dated 15.11.2007;
e)G.O.Ms.No.89, Agriculture (AM-1) Department, dated 25.05.2009 and
f)G.O.Ms.No.20, Labour and Employment (P2) Department, dated 19.12.2014."
29.The Learned counsel for the Appellant projects an argument that the Appellant's colleague R.Ulaganathan filed W.P.(MD)No.11394 of 2010 (Who suffered Retrenchment/termination along with the Appellant) and this Court, on 08.12.2014, allowed the said writ petition, wherein a direction was issued to the Respondents 1 and 2 therein to absorb the Petitioner R.Ulaganathan therein as Junior Training Officer in the post being kept as vacant, pursuant to the order, dated 18.08.2011 made in W.P.(MD)No.1 of 2010 as fresh appointment and without any claim for past seniority.
30.The Learned counsel for the Appellant contends that in the proceedings of the Joint Director (Craftsmen, Training) (i/c) Office of the Director of Employment and Training, dated 09.09.2015, there is a reference to this Court's order dated 27.11.2014 in W.P.Nos.4023 and 7815 of 2010 and 7105, 7241 and 7359 of 2011 filed by R.Radhakrishnan and 50 others and that apart, there is a reference to this Court's order dated 08.12.2014, in W.P.(MD)No.11394 of 2010 filed by one R.Ulaganathan.
31.The Learned counsel for the Appellant refers to G.O.Ms.No.116, Labour and Employment (P2) Department, dated 06.08.2015, which points out various orders passed by this Court in the writ petitions afore stated and in fact, 52 colleagues of the Appellant were appointed as Junior Training Officers in the Training Wing of the Department of Employment and Training. Likewise, in the order passed by this Court on 05.10.2015 in W.P.No.17330 of 2015, this Court, passed similar orders like that of W.P.(MD)No.11394 of 2010 filed by 20 other colleagues of the Appellant. The Learned counsel for the Appellant takes an emphatic stand that the 'Retrenchment' as per Section 153 of Tamil Nadu Co-operative Societies Act, 1983, is not applicable to the Appellant because of the fact that the closure of the Federation was effected by means of Government Order and termination of service of the Appellant was passed pursuant to the Government Order and in fact, the aforesaid orders were not passed under Tamil Nadu Co-operative Societies Act, 1983.
32.The Learned counsel for the Appellant while winding up his arguments, contends that the Appellant/Petitioner cannot be discriminated, when all his colleagues were provided with the Government employment. Therefore, the appeal preferred by the Appellant is to be allowed by this Court in the interest of justice.
An Appraisal:
33.At the outset, it is to be pertinently pointed out that in the instant case, the termination order dated 30.11.2004 was passed by the Third Respondent and not passed by Fourth Respondent. As such, the Writ Petition(MD)No.5935 of 2007 was not filed directly against the Co-operative Society. That apart, in view of the present facts and special Circumstances of the Appellant's case, the Writ Petition(MD)No.5935 of 2007 filed by him cannot be thrown out over Board, in the considered opinion of this Court.
34.It is to be pointed out that Section 25 F of the Industrial Disputes Act, 1947 prohibits Retrenchment of the Workmen until conditions are satisfied, whereas, the ingredients of Section 25 FF of the Industrial Disputes Act, pertains to 'Calculation of Compensation'. As a matter of fact, Section 25 FFF of the Industrial Disputes Act, speaks of 'Compensation to Workman in case of closing down of undertaking'.
35.In Law, the employees/workmen cannot ordinarily question the motive of the closure, when closure had taken place in fact. In short, if there is closure of Establishment/undertaking, then, employers' motive relegates to the background, because of the reason that no employer can be coerced to conduct his business, if he/it choses to close down the same. In reality, for the reasons thereto, only with this in mind Section 25 FFF of the Industrial Disputes Act, 1947, was inserted by means of an amendment (vide Act 18 of 1957).
36.It is to be remembered that an individual serving in the capacity of a Manager, his duties are not in the nature of 'Clerical' one and therefore, he is not a 'Workman', as per Section 2(s) of the Industrial Disputes Act. Furthermore, a person engaged in a Supervisory capacity, is not a 'Workman'.
37.In this connection, it is not out of place for this Court to make a pertinent mention that acceptance of Retrenchment compensation by a workman will not mean that he has waived his right to challenge the validity of his Retrenchment as per the decision of Hon'ble Supreme Court in NAR SINGH PAL v. UNION OF INDIA reported in AIR 2000 SC 1401.
38.Admittedly, the Appellant/Petitioner is an unlucky/unfortunate person, whose W.P.(MD)No.5935 of 2007 was dismissed by this Court on 09.07.2007. Whereas his colleagues, who filed Writ Petitions later (after dismissal of W.P.(MD)No.5935 of 2007 filed by the Appellant), which ended in their favour, were provided with the employment by the State Government.
39.It is not in dispute that the Appellant's colleagues were provided with necessary employment by the Government. Although, the Appellant/Petitioner's W.P.(MD)No.5935 of 2007 was dismissed by this Court on 09.07.2007, the same cannot be against the Appellant/Petitioner because of the simple reason that the Appellant's colleagues were provided with necessary employment by the Government by means of redeployment etc., and not meeting out similar treatment to the Appellant/Petitioner is highly discriminatory one besides violative of Article 14 of the Constitution of India.
40.Be that as it may, this Court, taking note of the fact that one R.Ulaganathan, who filed W.P.(MD)No.11394 of 2010 before the Madurai Bench of this Court, had obtained orders on 18.12.2014, whereby the Respondents 1 and 2 therein were directed to absorb him as Junior Training Officer in the post being kept as vacant etc., and also this Court, considering yet another fact that in batch of writ petitions in W.P.(MD)No.7241 of 2011 etc., (R.Radhakrishnan and others v. State of Tamil Nadu, Rep. by its Secretary to Government and others), wherein the similarly placed Retrenchment employees like that of Appellant were absorbed in numerous Departments through various Government Orders etc., and also this Court, on going through the order, dated 05.10.2015 in W.P.(MD)No.17330 OF 2015, between S.PARAMAGURU AND 19 OTHERS v. THE SECRETARY TO GOVERNMENT, LABOUR AND EMPLOYMENT (P2) Department, GOVERNMENT OF TAMIL NADU, FORT ST. GEORGE, CHENNAI - 09 AND THREE OTHERS, comes to an irresistible conclusion that the Appellant's case is to be considered positively by the First Respondent, in the light of the orders passed by this Court in various writ petitions, like W.P.Nos.4023 and 7815 of 2010 etc., coupled with the orders of the First Respondent in G.O.Ms.No.116, Labour and Employment (P2) Department, dated 06.08.2015, within a period of three months from the date of receipt of a copy of this order. Therefore, this Court, interferes with the order, dated 09.07.2007 passed by the Learned Single Judge in W.P.(MD)No.5935 of 2007 and sets aside the same. Resultantly, the Writ Appeal succeeds.
Conclusion:
41.In fine, the Writ Appeal is allowed. The order of the Learned Single Judge, dated 09.07.2007 in W.P.(MD)No.5935 of 2007, is set aside by this Court for the reasons ascribed in the present Writ Appeal. Also, the termination order dated 30.11.2004 issued by the Special Officer of the Third Respondent in respect of the Appellant is set aside. It is made clear that at the time of appointing the Petitioner by means of Redeployment by the First Respondent, in any existing vacancy, in any one of the Government Departments, the First Respondent shall take into account of the Retrenchment compensation sum of Rs.1,64,723/- (Out of which, a sum of Rs.1,23,635/- was adjusted to the Appellant's loan amount and a sum of Rs.41,087/- was paid to him) and to pass appropriate orders thereto for recovering the same, in the manner known to Law and in accordance with Law. No costs.
To:
1.The Secretary to Government of Tamil Nadu, Agriculture (AEII) Department, Secretariat, Chennai - 600 009.
2.The Registrar, Agro Engineering Service Co-operative Soecieties/ Commissioner of Agriculture, Ezhilagam, Chepauk, Chennai - 600 005.
3.The Special Officer, Agro Engineering and Service Co-operative Federation, No.55, Thiru.Vi.Ka.Industrial Estate, Ekkattuthangal, Chennai - 600 032.
4.The Special Officer, Thirumangalam Agro Engineering and Service Co-operative Society Ltd., 10, Main Road, Thirumangalm, Madurai.
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