Madras High Court
Railway Employees Co-Operative ... vs Government Of India on 16 September, 2019
Author: S. Manikumar
Bench: S.Manikumar
W.P.No.30412 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.09.2019
C O R A M:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.Nos.30412 and 31572 of 2012 and
W.P.Nos.16161, 17658, 18315 and 18407 of 2013
W.P. Nos.30412, 31572 of 2012
and 17658, 18315 & 18407 of 2013
Railway Employees Co-operative Society Staff Union
Rep. by its General Secretary
R.C.Cyril Thiagaraj
Regn. No.3432/CNI
2/30, Lettangs Road
Vepery, Chennai - 600 007 ... Petitioner in W.P. Nos.17658 of 2013
and W.P.Nos.30412 & 31572 of 2012
P.Nivas ... Petitioner in W.P. No.18315 of 2013
S.Shanmugam ... Petitioner in W.P. No.18407 of 2013
vs.
1.Government of India,
Rep by its Secretary,
Ministry of Labour,
Sharm Mantralaya,
New Delhi - 110 001
2.The Assistant Labour Commissioner (Central)
Office of the Deputy Labour Commissioner (Central),
26,Haddows Road, Shastri Bhavan,
Chennai - 600 006.
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W.P.No.30412 of 2012
3.Management
The Railway Employees Co-operative Credit
Society Limited, Ashok Vihar Complex,
Old Zoo Road (Near Central Railway Station)
Chennai - 600 003. ... Respondents
Prayer in W.P. No.30412 of 2012: Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of Declaration,
declaring the action of the 3rd respondent in transferring the members of
the petitioner union whose names and details of transfer are given in the
annexure to this affidavit without getting permission under Section 33 of
the Industrial disputes Act, 1947, in the industrial dispute raised by the
petitioner union which are pending conciliation before the 2nd
respondent as Dispute No.M8/38 of 2012-PDY regarding charter of
demand, dispute regarding declaration of protected workman and
dispute questioning the alteration of service rules altering the service
condition without a notice under Section 9A of the Industrial Disputes
Act, 1947 as illegal, arbitrary, void ab initio and contrary to law and
direct the 1st respondent to conciliate the disputes and effect
settlement and if no settlement is forthcoming to submit failure report
under Section 12(4) of the I.D. Act, 1947 to the 1st respondent and in
turn the 1st respondent to refer the dispute for adjudication before the
competent industrial adjudicator.
Prayer in W.P. No.31572 of 2012: Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of mandamus,
directing the 3rd respondent not to transfer any of the member of the
petitioner union whose names are given in the list of members of the
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W.P.No.30412 of 2012
union in the typed set of papers without getting prior permission under
Section 33 of the Industrial Disputes Act, 1947, in the industrial dispute
raised by the petitioner union which are pending conciliation before the
2nd respondent as Dispute No.M8/38 of 2012-PDY regarding charter of
demands and transfer policy, dispute regarding declaration of protected
workmen and dispute No.8/62/2012 PDY questioning the alteration of
service rules altering the service condition without a notice under
Section 9A of the Industrial Disputes Act, 1947.
Prayer in W.P. No.17658 of 2012: Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of mandamus,
directing the 3rd respondent from continuing to give effect to the order
of transfer dated 20.6.2013 bearing Ref. No.06/20/13/17 issued to
G.Viswanathan and the order of transfer dated 20.6.2013 bearing Ref.
No.06/20/13/19 to R.Devarajan without getting prior permission under
Section 33 of the Industrial Disputes Act, 1947, in the industrial dispute
raised by the petitioner Union which is pending conciliation before the
2nd respondent as Dispute No.M8/38 of 2012-PDY regarding charter of
demands and transfer policy, dispute regarding declaration of protected
workmen and dispute No.8/62/2012 PDY questioning the alteration of
service rules altering the service condition without a notice under
Section 9A of the Industrial Disputes Act, 1947.
Prayer in W.P. No.18315 of 2013: Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of Declaration,
declaring the action of the 3rd respondent in issuing the order of transfer
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W.P.No.30412 of 2012
dated 21.6.2013 bearing Ref. No.06/20/13/18 transferring the petitioner
to a non-existing branch at Tuni, Andhra Pradesh is contrary to Section
9A of the Industrial Disputes Act, 1947 and consequently direct the 3rd
respondent to continue to retain the petitioner in Chennai.
Prayer in W.P. No.18407 of 2013: Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of Mandamus, direct
the 3rd respondent from continuing to give effect to the order of transfer
dated 8.5.2013 bearing Ref. No.Major Penalty/Suspension/1/1/2013
without getting prior permission under Section 33 of the Industrial
Disputes Act, 1947, in the industrial dispute raised by the Railway
Employees Co-operative Societies Staff Union, in which the petitioner is a
member and which is pending conciliation before the 2nd respondent as
Dispute No.M9/38 of 2012-PDY regarding charter of demands, dispute
regarding declaration of protected workmen and dispute questioning the
alteration of service rules altering the service condition without a notice
under Section 9A of the Industrial Disputes Act, 1947.
For Petitioners in all W.Ps. : Mr.Balan Haridas
For 3rd Respondent in all W.Ps.: Mr.A.Jeenasenan
W.P. No.16161 of 2013
N.Dhanapal ... Petitioner
vs.
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W.P.No.30412 of 2012
1.Government of India,
Rep. by its Secretary
Ministry of Agriculture and Co-operation Department
Krishi Bhavan
New Delhi - 110 001
2.Central Registrar of Co-operative Society
Ministry of Agriculture
Department of Agriculture and Co-operation
Krishi Bhavan
New Delhi - 110 001
3.The Additional Registrar of Co-Operative Societies
No.91, St. Marys Road
Abhiramapuram, Chennai - 600 018
4.Management
The Railway Employees Co-operative Credit
Society Limited
Ashok Vihar Complex
Old Zoo Road (Near Central Railway Station)
Chennai - 600 003
5.N.Kanniah,
Chairman, The Railway Employees
Co-operative Credit Society Limited,
Ashok Vihar Complex, Old Zoo Road
(Near Central Railway Station)
Chennai - 600 003 ... Respondents
Prayer in W.P. No.16161 of 2013: Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of Declaration, to
declare that the continuance of 5th respondent as the Chairman of the
4th Respondent Society is in violation of Section 44(2) of the Multi State
Co-operative Societies Act and consequently direct the 1st and 2nd
respondent to remove the 5th respondent from his office.
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W.P.No.30412 of 2012
For Petitioner : Mr.Balan Haridas
For 4th Respondent : Mr.A.Jeenasenan
-----
COMMON ORDER
As all the writ petitions and the reliefs arise out of similar nature, they are taken up together and disposed of, by a common order.
2. The Railway Employees Co-operative Staff Union was formed to espouse the cause of the employees working in the Management, Railways Employees Co-operative Credit Society Ltd., Chennai. Out of 1400 employees, 719 employees are members of the said Union. In respect of long pending demands, relating to charter of demand and transfer policy, change of service condition, without notice under Section 9A of the I.D. Act, 1947, to declare protected workman etc., disputes have been raised and they are stated to be pending conciliation before the Assistant Labour Commissioner (Central), Office of the Deputy Labour Commissioner (Central), Chennai.
3. Pending disputes, the Management, Railways Employees Co- operative Credit Society Ltd., Chennai, was trying to alter the service http://www.judis.nic.in 6/37 W.P.No.30412 of 2012 conditions of the members of the Staff Union and in this regard, W.P.No.16797 of 2012 was filed, which came to be disposed of, by recording the undertaking given by the either side. Thereafter, 20 employees were transferred to far off places, without obtaining permission from the Assistant Labour Commissioner (Central), Office of the Deputy Labour Commissioner (Central), Chennai.
4. Aggrieved by the same, the Railway Employees Co-operative Staff Union has filed W.P.No.30412 of 2012 and obtained an order of injunction from giving effect to the order of transfer, on 09.11.2012. Consequently, the 13 employees concerned in that writ petition rejoined duty at Chennai. However the Management, Railways Employees Co- operative Credit Society Ltd., Chennai, transferred further employees and therefore W.P.No.31572 of 2012 was filed to protect the interest of the employees. Thereafter, M.P.No.2 of 2012 in W.P.No.30412 of 2012, has been filed to vacate the injunction granted on 09.11.2012. This Court, vide order, dated 21.12.2012, has vacated the interim injunction, as follows:
“W.P.No.30412 of 2012 has been filed for a Declaration, declaring the action of the third http://www.judis.nic.in 7/37 W.P.No.30412 of 2012 respondent in transferring the members of the petitioner union without getting permission under Section 33 of the Industrial Disputes Act, 1947 in the Industrial Dispute raised by the petitioner Union which are pending conciliation before the second respondent as Dispute No.M8/38 of 2012-PDY regarding charter of demand, dispute regarding declaration of protected workmen and dispute questioning the alteration of service rules altering the service condition without a notice under Section 9A of the Industrial Dispute Act 1947 as illegal, arbitrary, void ab initio and contrary to law and direct the respondent to conciliate the disputes and effect settlement and if no settlement is forthcoming to submit failure report under Section 12(4) of the Industrial Disputes Act, 1947 to the first respondent and in turn the first respondent to refer the dispute for adjudication before the competent Industrial Adjudicator.
2. W.P.No.31572 of 2012 has been filed for a mandamus directing the third respondent not to transfer any of the member of the petitioner Union without getting prior permission under section 33 of the Industrial Disputes Act, 1947 in the Industrial Dispute raised by the petitioner union which are pending conciliation before the second respondent as http://www.judis.nic.in 8/37 W.P.No.30412 of 2012 Dispute No.M8/38 of 2012-PDY regarding charter of demand, dispute regarding declaration of protected workmen and dispute questioning the alteration of service rules altering the service condition without a notice under section 9A of the Industrial Disputes Act, 1947.
3. The grievance of the petitioner as could be seen from the affidavits in support of the writ petitions and as well as from the submissions made by the learned counsel appearing for the petitioners are that --
(i) the third respondent society is transferring the members of the petitioner union without getting permission under Section 33 of the Industrial Disputes Act, 1947 from the second respondent, before whom the conciliation proceedings are pending.
(ii) the service conditions of the members of the petitioner union is sought to be altered without notice under Section 9A of the Industrial Disputes Act, 1947.
4. In W.P.No.30412 of 2012, an application in M.P.No.1 of 2012 has been filed to grant an order of interim injunction restraining the third respondent or any one claiming through it from giving effect to the order of transfer issued to the members of the http://www.judis.nic.in 9/37 W.P.No.30412 of 2012 petitioner union.
5. In W.P.No.31572 of 2012, an application in M.P.No.1 of 2012 has been filed to grant interim injunction restraining the respondent to continue to give effect to the transfer orders issued to the employees by retaining them in the place of work before transfer and by not effecting any other transfer in respect of the members of the petitioner union.
6. This Court, by an order dated 9.11.2012 in M.P.No.1 of 2012 in W.P.No.30412 of 2012, has granted an order of interim injunction as prayed. Now, an application in M.P.No.2 of 2012 in the said writ petition has been filed by the third respondent society, to vacate the said interim order.
7. Though an elaborate counter affidavit was filed on behalf of the third respondent, the sum and substance of the said counter affidavit are —
(i) The writ petitions filed by the petitioner are not maintainable.
(ii) The Board of Directors are empowered to frame regulations governing the Conduct, Discipline and Appeal Rules, General Service Conditions, Allowances and Advances, which are applicable to the employees and officers of the Society and the service conditions already prevailing even before http://www.judis.nic.in 10/37 W.P.No.30412 of 2012 2004.
(iii) In terms of Section 119 of the Multi-State Cooperative Societies Act, 2002, the society is empowered to open branches anywhere in the area of operation of the society. After due deliberations with the recognized union, the only union which was in existence at that time, branches were opened in the year 1998 and the policy and regulations were framed in that regard. The transfer of the third respondent employees was also given effect to after due deliberations.
(iv) As per Section 33 of the Industrial Disputes Act, 1947, no employer shall, during the pendency of the conciliation proceedings, alter the service conditions applicable to him immediately before the commencement of such proceedings. That means, the service conditions applicable to the employer immediately before the commencement of such proceedings alone cannot be altered. In the case on hand, the service conditions of the employees of the third respondent society are governed by the service conditions which were prevalence even prior to 2004.
Therefore, it cannot be said that the third respondent is trying to alter the service condition in contravention of Section 33 of the Industrial Disputes Act, 1947.
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(v) Even assuming that section 33 of the Industrial Disputes Act, 1947 was controverted by the third respondent society, the petitioner is not left with no remedy and the petitioner can invoke the remedy available under section 33A of the Industrial Disputes Act, 1947.
8. Though the learned counsel appearing for the petitioner and the learned Senior Counsels appearing for the third respondent society have argued the matter at length, I am of the considered view that for the limited purpose of disposing of the applications for interim injunction, only the following aspects have to be seen:-
9. Admittedly, conciliation proceedings are pending before the second respondent in respect of a dispute raised by the petitioner association. In such circumstances, it has to be seen as to whether the third respondent society can transfer the members of the petitioner union, thereby altering the service conditions of the employees of the third respondent society, who are the members of the petitioner union.
10. It is contended on behalf of the petitioner union that there are no existing service conditions in the third respondent society to regulate the conditions of service pertaining to the employees of http://www.judis.nic.in 12/37 W.P.No.30412 of 2012 the third respondent. On the other hand, it is contended on behalf of the third respondent society by the learned Senior Counsels that service conditions were in existence even prior to 2004 and hence, there is no question of altering the service conditions thereby the third respondent is trying to transfer the employees of its society.
11. It is not as if the said plea was taken by the third respondent society for the first time before this Court in these writ petitions. The said plea was already taken in the contempt petition in Cont.P.No.1302 of 2012. The said contempt petition came to be filed alleging violation of the orders passed by this Court in W.P.No.16797 of 2012 dated 23.7.2012. The said writ petition was filed for a mandamus forbearing the third respondent from altering the service conditions of the members of the Petitioner Union whose names are given in the annexure to the affidavit filed in support of the Writ Petition in any manner including discontinuance of service or engaging new hands or failing to provide employment without getting permission under Section 33 of the Industrial Disputes Act 1947 in the Industrial Dispute raised by the Petitioner Union which are pending conciliation before the 2nd Respondent as Dispute No.M8/38 of 2012-PDY http://www.judis.nic.in 13/37 W.P.No.30412 of 2012 regarding charter of demand.
12. The third respondent society put forth a plea in the said writ petition that there was no proposal to alter the existing service conditions of the members of the petitioner union pending conciliation proceedings. Taking into account the said undertaking given as such, the said writ petition was disposed of. Alleging that the said order was violated, as stated already, Cont.P.No.1302 of 2012 was filed. The allegation was that pending conciliation proceedings, 20 members from the petitioner union were transferred and it is said to be a violation of the undertaking given by the third respondent in the said writ petition. This Court, while dismissing the contempt petition, in paras 6 and 7, has held as follows:-
"6. The undertaking given before this Court by the respondent while disposing of the writ petition was recorded, which reads as follows:
"The respondent do not propose to alter the existing service conditions, pending conciliation.
The existing service condition, which is in force from 1.9.2004, viz., Clause 111(28) reads as follows:
"Clause III (28) Transfer is an essential part of service. Transfer is not a punishment. All http://www.judis.nic.in 14/37 W.P.No.30412 of 2012 employees/officers irrespective of grade or cadre or gender are liable for transfer to any of the Branch/place within the area of operation of the Society. As far as possible women employees shall not be transferred beyond the radius of 500 Kms from their residence. The Society reserves the right to transfer any employee/officer either on a temporary or permanent basis and assign such other duties as may be deemed fit in the interest of the Society. Normally, outstation postings shall not exceed beyond the period of five years. The suitability or the non-suitability of an individual at a particular place or post shall be the basis for deciding for an employee/officer for his/her transfer. Chief Executive is the competent authority to transfer all employees/officer from any place/post to any other place/post. "
The said service regulation was not assured to be kept in abeyance, pending conciliation proceedings, by the respondent. Hence there is no willful disobedience of the order of this Court, much less violation of the undertaking and assurance given before this Court, which are recorded in the order dated 23.7.2012 in of 2012.
7. No case is made out to initiate contempt proceedings against the respondent. Consequently http://www.judis.nic.in 15/37 W.P.No.30412 of 2012 the contempt petition is dismissed. If the members of the petitioner Union are aggrieved over the transfer orders issued to them, it is open to them to challenge the same in appropriate proceedings, if they are having any point to challenge those transfer orders. No costs. Connected sub-application is also dismissed."
Thus, in the contempt petition, this Court has taken a view that the existing service conditions are in force from 1.9.2004, which is referred to above. It is not known whether the petitioner has filed any appeal against the said order.
13. When this Court has taken such a view, it cannot be contended on the side of the petitioner that no service regulations have been framed by the third respondent society. Even assuming for argument sake that the finding rendered by this Court in the said contempt petition can only be for the purpose of finding out whether the third respondent has violated the orders of this Court made in W.P.No.16797 of 2012, I am of the considered view that whether the service conditions are in existence prior to 2004 or there is no service condition available at all, cannot be gone into in detail while deciding the application for interim injunction. Prima facie, it has been established by http://www.judis.nic.in 16/37 W.P.No.30412 of 2012 the third respondent that there were service conditions even in the year 2004 and the decision taken in the contempt petition referred to above, prima facie, proves that service conditions were prevalence even in the year 2004. When the matter is taken up for final hearing, this aspect can be gone into in depth.
14. When it is being established that the service conditions were prevalence even in the year 2004, it cannot be heard to say that the third respondent society is trying to alter the service conditions without the permission of the second respondent before whom conciliation proceedings are pending.
15. That apart, regulations relating to transfer could be seen in the minutes of the meeting held on 29.5.1990 with the staff union which was filed in the typed set of papers of the third respondent. The said minutes dated 29.5.1998 would show that there was due deliberations on the question of transfer. Reliance of the same by the third respondent, prima facie, shows that there were some negotiations with the staff union in the matter of opening branches elsewhere and transfer of the staff therein. Even this prima facie finding has to be considered at depth when the matter is taken up for final hearing. http://www.judis.nic.in 17/37 W.P.No.30412 of 2012 For the purpose of deciding the present applications, the said materials are sufficient to hold that a decision was taken on the question of transfer of the employees of the third respondent society.
16. Though the learned counsel appearing for the petitioner and the learned Senior Counsels appearing for the third respondent society have made their submissions on the maintainability of the writ petitions and relied on several decisions, I am of the considered view that the said issue could be delegated to be decided at the time of final disposal of the writ petitions. Now, it is suffice to consider whether the petitioner is entitled for an order of interim injunction as prayed for.
17. In view of the discussions made above, I am of the considered view that the order of interim injunction that has been granted by this Court on 09.11.2012 in M.P.No.1 of 2012 in W.P.No.30412 of 2012 can no longer stand.
18. In fine, M.P.No.2 of 2012 in W.P.No.30412 of 2012 which is filed for vacating the order of interim injunction, stands ordered and the applications in M.P.Nos.1 and 1 of 2012 in W.P.Nos.30412 and 35172 of 2012 stand dismissed.” Against which, Writ Appeal Nos.347 and 348 of 2013 filed by the Union http://www.judis.nic.in 18/37 W.P.No.30412 of 2012 were also dismissed.
5. According to the petitioner in W.P.No.18407 of 2013, in order to victimize the members of the Society, the Management, Railways Employees Co-operative Credit Society Ltd., Chennai, placed him under suspension, by an order, dated 26.02.2013, making false allegations. However, while revoking the order of suspension, transferred him to Hyderabad, without any administrative exigency and without taking prior permission. All this is being done, at the instance of Mr.N.Kanniah, Chairman of the Society, 5th respondent in W.P.No.16161 of 2013. Questioning the various irregularities, the present writ petitions are filed, for the reliefs, stated supra.
6. On the other hand, the Management, Railways Employees Co-operative Credit Society Ltd., Chennai, has stated that the said society is a Multi State Co-operative Society, deemed to have been registered under the Multi State Co-operative Societies Act, 2002 (MSCS Act, 2002). The Petitioner-Union comprises of members, serving / former railway men, from the states of Tamil Nadu, Andhra Pradesh, Telungana, Karnataka, Maharashtra and Goa. Among 58,700 members of the Society, nearly, 60% of the members are from other than Tamil Nadu area. http://www.judis.nic.in 19/37 W.P.No.30412 of 2012
7. In terms of Section 49 (2) (e) of the MSCS Act, 2002 [earlier 42(2)(e) of the MSCS Act, 1984] and Bye-law No.60, (earlier Bye-law No.59) the Board of Directors are empowered to frame regulations governing the various service conditions of the employees and officers of the society. Accordingly, various regulations governing Conduct Rules, Discipline and Appeal Rules, General Service Conditions and Advances and Allowances were framed by the Board of Directors and are in existence, with duly notified amendments, made from time to time. The recognized Union, which is in existence from 1968, was the only union functioning in the respondent society, till December 2011. Many agreements covering various issues such as pay scales, allowances, medical facility, transfer and other related issues were discussed with them and decisions were arrived at and implemented.
8. Pursuant to the agreement reached with the recognized union, all the staff who were transferred to branches are paid same House Rent Allowance as that of Headquarters i.e. 30%, be it at Chennai or at Rajahmundry etc., Also, same amount of CCA / Transport Allowance is paid to the Staff at Headquarters and also in branches. A http://www.judis.nic.in 20/37 W.P.No.30412 of 2012 splinter group from the above said recognized union, which is the petitioner union in three of the writ petitions (W.P.No.30412 of 2012, 31572 of 2012, 17658 of 2013) was formed on 23.11.2011 and it was registered only on 02.02.2012. Within a short span of 45 days, the said petitioner union conducted three illegal strikes, comprising one day strike, one and half day strike and 23 days strike, violating the provision of their own constitution and also the provisions of ID Act. Two of the strikes (one day and one and half day strike) were done even before their union was registered.
9. In order to maintain the existing branches and also to operationalize the new branches, some employees were transferred in the months of September 2012, November 2012 & June 2013 and also subsequently. While majority of the employees reported for duty at the transferred place, some of them did not join and some of them could not be relieved, since their reliever had not joined the place. The said transfers were challenged in a batch of Writ Petitions (W.P.No.30412 of 2012, W.P.No.31572 of 2012, W.P.No.17658 of 2013, W.P.No. 18407 of 2013 & W.P.No.18315 of 2013), out of which three writ petitions were filed by the petitioner union and two writ petitions were filed by the http://www.judis.nic.in 21/37 W.P.No.30412 of 2012 three employees, contending that Issue) & M8/62 of 2012 (Alleged 9A violation) are pending before the 2nd respondent, the transfer orders issued were in contravention of Section 33 of the I.D. Act. It was further contended that it amounts to alteration of the service condition when a dispute was pending before the ALC.
10. The 3rd respondent-society being a non-public utility service, the 2nd respondent initiated only joint discussions with the petitioner union and the 3rd respondent society. Totally, 34 such joint discussions, spanning from April 2012 to February 2014 were held by the ALC (Central). At the end, disagreement was recorded in both the proceedings and the 2nd respondent (ALC Central) sent two FOC reports on 29-01-2014 and 29-04-2014 respectively to the first respondent, namely the Central Government.
11. The 1st respondent, Central Government, after considering the report submitted by the 2nd respondent in Dispute No.M8/38 of 2012 on the transfer issue, declined to refer the dispute for adjudication duly observing that, "Transfer of employees is prerogative of the management and it is part and parcel of service condition while issuing appointment http://www.judis.nic.in 22/37 W.P.No.30412 of 2012 orders. Hence the instant dispute does not deem fit for adjudication”. The above order of the 1st respondent was not challenged by the petitioner union, even though it was claimed by the petitioner that the said order is illegal, non-est in law etc., In as much as the order was not questioned, it had attained finality.
12. The 1st respondent, Central Government in ID No.8/62 of 2012, (alleged violation of Section 9A) referred, a limited question regarding availing of medical facilities at Railway Hospital, by society employees, to the Central Government Industrial Tribunal (CGIT). The petitioner union took three adjournments before the CGIT to file their claim petition and in the interregnum, filed another dispute before State Government Labour Officer-1, Kuralagam vide Dispute No.Ref.AA/535/14. In this dispute, they raised identical issues which were already raised before the 2nd respondent ALC (Central) in dispute No.M8/38 of 2012 and M8/62 of 2012.
13. The respondent society filed a detailed reply before the State Labour Officer-1, Kuralagam, who upon consideration of the facts placed before him, passed a detailed speaking order on 15-09-2014, http://www.judis.nic.in 23/37 W.P.No.30412 of 2012 observing that the appropriate government in respect of the industrial dispute raised by the petitioner union is only the Central Government. When these batch of Writ Petitions came before this Court, the preliminary issue that was raised was in regard to maintainability of writ petition against the 3rd respondent society, which is a Multi State Co- operative Society. The 3rd respondent society by its counters and oral arguments submitted that the present batch of Writ Petitions are not maintainable on account of,
(i) Where disputed questions of facts are involved, a writ cannot be maintained under Article 226 of the Constitution.
(ii) Where an effective alternate remedy, in this case, alleged violation of Sec. 33 of the ID Act, can be raised before the very same authority under Sec., 33 (A) of the ID Act is available, the writ is not maintainable.
(iii) A Co-operative Society is not an authority under Article 12 of the constitution and hence writ remedy cannot be sought for.
(iv) If the Industrial Dispute relates to the enforcement of a right, or an obligation, created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(v) A Representative Writ Petition filed by a Union http://www.judis.nic.in 24/37 W.P.No.30412 of 2012 regarding transfer of individual are not maintainable.
(vi) Transfers effected by private employers, do not involve public duties and involve disputed questions of fact and they should be resolved only before forums created under the ID Act.
(vii) The 3rd respondent society is a non-public utility service and in terms of Sec.20 (1) of the ID Act, 1947, the conciliation proceedings shall commence only on the date of the order referring the dispute to a Board, whereas in the instant case, there had been no reference to the Board.
(viii) Section 33 of the ID Act, does not prohibit the respondent from implementing the existing service conditions, which are admittedly in existence from 1998, when the first set of branches were opened, which were much prior to the date on which the alleged dispute was raised and also much before the petitioner union was formed.
(ix) This Hon’ble Court in its order dated 02-11-2012, in contempt petition 1302 of 2012 in W.P. No.16797 of 2012 had already observed, that the respondent society has not altered the service conditions and no case is made out to initiate contempt proceedings against the respondents. As such, the said transfer issue is res judicata.
(x) The liberty to question the orders passed in the contempt application was only in regard to the validity of transfer on merits and not on the grounds alleged by the http://www.judis.nic.in 25/37 W.P.No.30412 of 2012 petitioners in the present batch of Writ Petitions, since this issue stands concluded.
14. Heard the learned counsel for the parties and perused the material on record.
15. Perusal of the materials and submissions made by the learned counsel for the petitioners are that the third respondent society is transferring the members of the petitioner union without getting permission under Section 33 of the Industrial Disputes Act, 1947 from the second respondent, before whom the conciliation proceedings are pending and that the service conditions of the members of the petitioner union is sought to be altered without notice under Section 9A of the Industrial Disputes Act, 1947.
16. Conciliation proceedings were pending before the second respondent in respect of a dispute raised by the petitioner association. In such circumstances, it has to be seen as to whether the third respondent society can transfer the members of the petitioner union, thereby altering the service conditions of the employees of the third respondent society, who are the members of the petitioner union. http://www.judis.nic.in 26/37 W.P.No.30412 of 2012
17. With regard to the altering of the service condition, it is contended on behalf of the petitioner union that there are no existing service conditions in the third respondent society to regulate the conditions of service pertaining to the employees of the third respondent. On the other hand, it is contended on behalf of the third respondent society that service conditions were in existence even prior to 2004 and hence, there is no question of altering the service conditions thereby the third respondent is trying to transfer the employees of its society.
18. Further a perusal of the typed set of papers would show that the plea of altering the service condition was not taken by the third respondent society for the first time before this Court in the instant writ petitions. It could be seen that the said plea was already taken in the contempt petition in Cont.P.No.1302 of 2012. The said contempt petition came to be filed alleging violation of the orders passed by this Court in W.P.No.16797 of 2012 dated 23.7.2012. The said writ petition was filed for a mandamus forbearing the third respondent from altering the service http://www.judis.nic.in 27/37 W.P.No.30412 of 2012 conditions of the members of the Petitioner Union whose names are given in the annexure to the affidavit filed in support of the said Writ Petition in any manner including discontinuance of service or engaging new hands or failing to provide employment without getting permission under Section 33 of the Industrial Disputes Act 1947 in the Industrial Dispute raised by the Petitioner Union which are stated to be pending conciliation before the 2nd Respondent as Dispute No.M8/38 of 2012-PDY regarding charter of demand.
19. Per contra, the third respondent society put forth a plea in the said writ petition that there was no proposal to alter the existing service conditions of the members of the petitioner union pending conciliation proceedings. Taking into account the said undertaking given as such, the said writ petition was disposed of. Alleging that the said order was violated, as stated already, Cont.P.No.1302 of 2012 was filed. The allegation was that pending conciliation proceedings, 20 members from the petitioner union were transferred and it is said to be a violation of the undertaking given by the third respondent in the said writ petition. This Court, while dismissing the contempt petition, at paras 6 and 7, has held as follows:-
http://www.judis.nic.in 28/37 W.P.No.30412 of 2012 "6. The undertaking given before this Court by the respondent while disposing of the writ petition was recorded, which reads as follows:
"The respondent do not propose to alter the existing service conditions, pending conciliation.
The existing service condition, which is in force from 1.9.2004, viz., Clause 111(28) reads as follows:
"Clause III (28) Transfer is an essential part of service. Transfer is not a punishment. All employees/officers irrespective of grade or cadre or gender are liable for transfer to any of the Branch/place within the area of operation of the Society. As far as possible women employees shall not be transferred beyond the radius of 500 Kms from their residence. The Society reserves the right to transfer any employee/officer either on a temporary or permanent basis and assign such other duties as may be deemed fit in the interest of the Society. Normally, outstation postings shall not exceed beyond the period of five years. The suitability or the non-suitability of an individual at a particular place or post shall be the basis for deciding for an employee/officer for his/her transfer. Chief Executive is the competent authority to transfer all employees/officer from any place/post to any other place/post. "
The said service regulation was not assured to be kept in abeyance, pending conciliation proceedings, by the http://www.judis.nic.in 29/37 W.P.No.30412 of 2012 respondent. Hence there is no willful disobedience of the order of this Court, much less violation of the undertaking and assurance given before this Court, which are recorded in the order dated 23.7.2012 in of 2012.
20. However, this Court held that no case is made out to initiate contempt proceedings against the respondent. Consequently the said contempt petition was dismissed. The Court has further held that if the members of the petitioner Union are aggrieved over the transfer orders issued to them, it is open to them to challenge the same in appropriate proceedings, if they are having any point to challenge those transfer orders. Thus, in the contempt petition, this Court has taken a view that the existing service conditions are in force from 1.9.2004, which is referred to above. It is not known whether the petitioner has filed any appeal against the said order.
21. Therefore, when this Court has taken such a view, it cannot be contended on the side of the petitioner union that no service regulations have been framed by the third respondent society. Even assuming for argument sake that the finding rendered by this Court in the said contempt petition can only be for the purpose of finding out whether the http://www.judis.nic.in 30/37 W.P.No.30412 of 2012 third respondent has violated the orders of this Court made in W.P.No.16797 of 2012, this Court is of the considered view that whether the service conditions were in existence prior to 2004 or there is no service condition available at all, it has been established by the third respondent that there were service conditions even in the year 2004 and the decision taken in the contempt petition referred to above, prima facie, proves that service conditions did exist even in the year 2004. When it is being established that the service conditions existed even in the year 2004, it cannot be heard to say that the third respondent society is trying to alter the service conditions without the permission of the second respondent before whom conciliation proceedings are pending.
22. Further, regulations relating to transfer could be seen in the minutes of the meeting held on 29.5.1990 with the staff union which was filed in the typed set of papers of the third respondent. The said minutes dated 29.5.1998 would show that there was due deliberations on the question of transfer. Reliance of the same by the third respondent, prima facie, shows that there were some negotiations with the staff union in the matter of opening branches elsewhere and transfer of the staff http://www.judis.nic.in 31/37 W.P.No.30412 of 2012 therein.
23. Further in terms of Section 49 (2) (e) of the MSCS Act, 2002 [earlier 42(2)(e) of the MSCS Act, 1984] and Bye-law No.60, (earlier Bye- law No.59) the Board of Directors are empowered to frame regulations governing the various service conditions of the employees and officers of the society. Accordingly, various regulations governing Conduct Rules, Discipline and Appeal Rules, General Service Conditions and Advances and Allowances have been framed by the Board of Directors and in existence, with duly notified amendments made from time to time. The recognized Union, which is in existence from 1968, was the only union functioning in the respondent society, till December 2011. Many agreements covering various issues such as pay scales, allowances, medical facility, transfer and other related issues were discussed with them and decisions have been arrived at and implemented. Pursuant to the agreement reached with the recognized union, all the staff who were transferred to branches are paid same House Rent Allowance as that of Headquarters i.e. 30%, be it at Chennai or at Rajahmundry etc., Also, same amount of CCA / Transport Allowance is paid to the Staff at Headquarters and also in branches. Further, in order to maintain the existing branches and also to operationalize the new branches, some http://www.judis.nic.in 32/37 W.P.No.30412 of 2012 employees were transferred in the months of September 2012, November 2012 & June 2013 and also subsequently. The 3rd respondent-society being a non-public utility service, the 2nd respondent initiated only joint discussions with the petitioner union and the 3rd respondent society. Totally, 34 such joint discussions, spanning from April 2012 to February 2014 were held by the ALC (Central). At the end, disagreement was recorded in both the proceedings and the 2nd respondent (ALC Central) sent two FOC reports on 29-01-2014 and 29-04-2014 respectively to the first respondent, namely the Central Government. The 1st respondent, Central Government, after considering the report submitted by the 2nd respondent in Dispute No.M8/38 of 2012 on the transfer issue, declined to refer the dispute for adjudication duly observing that, "Transfer of employees is prerogative of the management and it is part and parcel of service condition while issuing appointment orders. Hence the instant dispute does not deem fit for adjudication”. The above order of the 1st respondent has not been challenged by the petitioner union, even though it was claimed by the petitioner that the said order is illegal, non-est in law etc., In as much as the order was not questioned, it has attained finality.
http://www.judis.nic.in 33/37 W.P.No.30412 of 2012
24. Further the main contentions of the respondent Society is that when disputed questions of facts are involved, a writ cannot be maintained under Article 226 of the Constitution; that where an effective alternate remedy, in this case, alleged violation of Section 33 of the ID Act, can be raised before the very same authority under Section 33 (A) of the ID Act is available, writ is not maintainable; that the Industrial Dispute relates to the enforcement of a right, or an obligation, created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act; that transfers effected by private employers, do not involve public duties and involve disputed questions of fact and they should be resolved only before forums created under the ID Act; that the 3rd respondent society is a non-public utility service and in terms of Sec.20 (1) of the ID Act, 1947, the conciliation proceedings shall commence only on the date of the order referring the dispute to a Board, whereas in the instant case, there had been no reference to the Board; that Section 33 of the ID Act, does not prohibit the respondent from implementing the existing service conditions, which are admittedly in existence from 1998, when the first set of branches were opened, which were much prior to the date on which the alleged dispute was raised and http://www.judis.nic.in 34/37 W.P.No.30412 of 2012 also much before the petitioner union was formed; that this Court in its order dated 02.11.2012, in contempt petition No.1302 of 2012 in W.P. No.16797 of 2012 had already observed, that the respondent society has not altered the service conditions and no case is made out to initiate contempt proceedings against the respondents and as such, the said transfer issue is res judicata; that the liberty to question the orders passed in the contempt application was only in regard to the validity of transfer on merits and not on the grounds alleged by the petitioners in the present batch of Writ Petitions, since this issue stands concluded.
25. This Court finds no merit in the contentions raised by the petitioner Union but convinced with the contentions put forth by the respondent society and hence this Court is of the view that all writ petitions are liable to be dismissed.
26. In the result, all the writ petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.
16.09.2019 skm http://www.judis.nic.in 35/37 W.P.No.30412 of 2012 To
1.Government of India, Rep. by its Secretary Ministry of Agriculture and Co-operation Department Krishi Bhavan New Delhi - 110 001
2.Central Registrar of Co-operative Society Ministry of Agriculture Department of Agriculture and Co-operation Krishi Bhavan New Delhi - 110 001
3.The Additional Registrar of Co-Operative Societies No.91, St. Marys Road, Abhiramapuram, Chennai - 600 018.
http://www.judis.nic.in 36/37 W.P.No.30412 of 2012 S. MANIKUMAR, J.
skm W.P.Nos.30412 and 31572 of 2012 and W.P.Nos.16161, 17658, 18315 and 18407 of 2013 16.09.2019 http://www.judis.nic.in 37/37