C.Meenakshi Sundaram v. Tamil Nadu Civil Supplies CorporationLimited

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10.11. 2009CORAM:- Hon'ble Mr. Justice R. SUDHAKARWrit Petition No. 23753 of 20041. C.Meenakshi Sundaram2. P.Ravichandran3. U.Maniraj4. L.Shivakumar5. A.Palanivel6.K.Vadivel .. PetitionersVs.Tamil Nadu Civil Supplies CorporationLimited rep. By its Chairmanand Managing Director,No.42, Thambusamy Road,Kilpauk,Chennai.10 . . . Respondent. . . Prayer: Writ petition filed under Article 226 of the Constitutionof India praying for the issuance of of a writ of Certiorari tocall for the records of proceedings of the respondent inNo.E3/85296/2004 dated 03.08.2004, and quash the same.For Petitioners : Mr.L.Kaleeswaran for Mr.ChandrasekaranFor respondent : Mr. V.Selvanayagam . . .O R D E RSix employees of the respondent-Corporation have jointlyfiled the present writ petition challenging the impugnedproceedings of the respondent in No.E3/85296/2004 dated03.08.2004, and to quash the same.2. The respondent-Corporation is an undertaking of theGovernment of Tamil Nadu engaged in the task of purchase of paddystock during harvest seasons from ryots through direct purchasecentres at the price fixed by the Government. The stock sopurchased/procured are moved to the storage points, hulled and https://hcservices.ecourts.gov.in/hcservices/ thereafter sent to various regions for distributions to thepublic under the Public Distribution System and other welfarescheme of the Government. The Respondent-Corporation has severalregions in the State and they are controlled by the Chairman andManaging Director. Since the procurement of foodgrains isseasonal, the respondent-Corporation adopted various methods toutilise the man-power and seasonal posts are sanctioned forprocurement and such posts are temporary in nature made duringseasons. Regular staff of the respondent-Corporation are alsogiven postings in the seasonal posts i.e. from the post of BillClerks to Deputy Manager to utilise their services by transfer orredeployment. As and when the procurement is completed, theregular staff will be reverted back to their original position.On one such occasion, the Respondent-Corporation in order to setright the administrative machinery and to utilise the surplusstaff in other regions, issued impugned order effecting transferof junior most persons from among the surplus staff from oneregion to another invoking the provisions of Rule 17 (b)(i) ofChapter II of Tamil Nadu Civil Supplies Corporation EmployeesService Regulation 1989. The said order was passed by the Chairmanand Managing Director of the respondent Corporatiion. The sixpetitioners were transferred from Madurai region to Kanyakumariregion on administrative grounds and the said order of transferis under challenge in the present writ petition. 3.The contention of the petitioners is that theRespondent/Corporation is an 'Industry' within the meaning ofSection 2(j) of Industrial Disputes Act and each District is aseparate unit for the purpose of seniority and promotion upto thepost of Assistants. Before issuing the orders of transfer, whichis in violation of service conditions and contrary to theprovisions of the Industrial Disputes Act, a notice under Section9-A is mandatory. According to the petitioners, the number ofposts of Bill Clerks in Madurai region cannot be treated assurplus and transferred to Kanyakumari Region without issuing anotice under Section 9-A of the Industrial Disputes Act. Theorders treating the petitioners as surplus and transferring themto Kanyakumari region amounts to alteration of the conditions ofservice, resulting in reduction of strength of Bill Clerks inMadurai Region, which is void ab initio for the failure to complywith the mandatory requirement of issuing notice under Section 9-A of the Industrial Disputes Act. By virtue of an interim orderpassed by this Court, the petitioners continue to work at Maduraiitself. 4. A detailed counter affidavit has been filed by therespondents stating that the service condition of the petitionersis governed by the Tamil Nadu Civil Supplies CorporationEmployees' Service Regulations 1989. It has been clearly stated https://hcservices.ecourts.gov.in/hcservices/ in the counter affidavit that sanctioned strength of Bill Clerksin Madurai regional is 54 and since 68 persons were employed asBill Clerks, the junior most Bill Clerks were transferred todeficit regions which needs hands and the allegation that there isalteration of condition of service in contravention of theprovisions of Section 9-A of the Industrial Disputes Act istotally misconceived.5. In paragraph 14 of the counter affidavit, which isrelevant is as follows:" I respectfully submit that with regrd to theaverments made in para 6,7, 8 and 9 of theaffidavit, this respondent submit that section 9 Aof Industrial Disputes Act, read with Schedule IV-Serial item No.10 reads as follows:"Rationalisation, standardisation or improvement ofbranch or technique which is likely to led toretrenchment of workmen. The respondent submits thatrationalisation, standardisation or improvement ofbranch or technique by itself would not fll underItem No.10 of Schedule IV unless it is likely tolead to retrenchment of workmen". This respondentsubmits that the Retrenchment is stated under SerialNo.10 of Schedule Iv. Mere suspicious cannot bejustified as an interference or likelihood ofretrenchment. Notice is necessary under Section 9Aread with Schedule IV if it is likely to led toretrenchment or likely to affect prejudicially oradversely.As the entire transactions of the Corporation arebased on policy decision taken by the governmentfrom time to time, the Management has every right todel with the situation by utilising the manpowerdepending upon the need in the interest ofadministration. The respondent submits that the question of issuingnotice does not arise since the transfer does notlead to retrenchment as defined under IndustrialDisputes Act. Section 9 A read with Schedule 4 willbe applicable only if the following conditions aresatisfied:i) there must be change in conditions of service;ii) Change must be such that it adversely affectsthe workmen.iii) Change must be in respect of any matterprovided in the IV Schedule of the Act.The respondent submits that the changes effected bythe Corporation does not affect the workmen and https://hcservices.ecourts.gov.in/hcservices/ would not lead to retrenchment as defined underSection 2(oo) of the Act."6. Chapter II of the said Regulations deals withAppointment Regulations. Regulation 17 (b) (i) of Chapter II thesaid Tamil Nadu Civil Supplies Corporation Employees' ServiceRegulations 1989 relates to seniority in cases of transfers, whichruns as follows:"17.Seniority: (a) The Seniority of a person in aclass or category shall unless he has been reducedto a lower rank as a punishment, be determined bythe rank obtained by him in the list of approvedcandidates drawn up by the Appointing Authority,subject to the rule of reservation of appointmentswherever it applies.The seniority shall be maintained irrespective ofthe actual date of joining. The unit of seniorityshall be the Region (Head Office to be a separateUnit) in respect of the post for which RegionalManagers/General Manager A(Admn.) are appointingauthorities . For all other posts, the State is theunit for seniority.b. Seniority in Certain cases of Transfers: (i)where an employee for whom the Appointing Authorityis Regional Manager/General Manager (Admn.,) istransferred from one region to another onadministrative ground, he shall not forego seniorityin the region to which he is transferred, but retainit with reference to his/her regular service inthat category."(Emphasis supplied)7. Regulation 24 relates to Postings and Transfers,which reads as follows: "Postings and Transfers: All transfers and postingsshall be made by the Appointing Authority or anyauthority to whom the appointing authority isadministratively subordinate within hisjurisdiction."8. Under Annexure II, in terms of Regulation 28 of theTamil Nadu Civil Supplies Corporation Employees' ServiceRegulations 1989, the Regional Manager/General Manager (Admn,.)is the appointing authority. According to the respondent, theChairman and Managing Director is the authority under whom theappointing authority is administratively subordinate andtherefore, he has the power to issue the order of transfer from https://hcservices.ecourts.gov.in/hcservices/ one region to other. In the present case, the transfer ordershave been issued by the Senior Regional Manager based on theChairman's Communication, who is a senior officer to theappointing authority. 9. Regulation 17 of the Tamil Nadu Civil SuppliesCorporation Employees' Service Regulations 1989, specifies as tohow seniority should be maintained in case of transfers from oneregion to another. Relying upon the above said Regulation, it isstated that for the purpose of carrying out the task of publicdistribution of essential commodities entrusted to the CivilSupplies Corporation, transfer is effected on administrativegrounds by utilising the surplus staff and this was effected basedon the administrative needs and exigencies. The contention of therespondent is that there is no alteration in the conditions ofservice, seniority is not affected and the power to transfer fromone region to another is contained in Regulation is justified forthe reasons set out above. Therefore, the grievance of thepetitioners that their service conditions have been altered iswithout any basis and on a misconception of the relevantprovisions.10. The challenge to the proceedings in this writpetition, on the face of it, clearly establishes that thepetitioners have mis-construed the orders of transfer asalteration in the condition of service. In this case, thepetitioners are governed by the Tamil Nadu Civil SuppliesCorporation Employees' Service Regulations 1989. Regulation 24, ashas been stated above, provides for Transfers and Postings byappointing authority or any authority to whom the appointingauthority is administratively subordinate. In this case, theChairman and the Regional Manager have passed the impugnedtransfer orders and such order is in consonance with Rule 24. 11. As far as the plea with regard to the seniority isconcerned, the apprehension of the petitioners is not justified,in view of Regulation 17(b)(i), which clearly provides forseniority on transfer from one region to another onadministrative grounds, the transferred persons will not foregoseniority. Hence, the apprehension of the petitioners that theirseniority will be affected is misconceived.12. Reliance is placed on a decision of this Court inW.P.No.39938 of 2003. The same is not applicable to the facts ofthe present case, as the said c ase relates to reversion orretention in the service, without following the provisions ofSection 9A of the Industrial Disputes Act. Whereas that is not theissue in the present case. The orders of transfer from one region https://hcservices.ecourts.gov.in/hcservices/ to another were issued purely on administrative grounds, and theRegulation provides for the same. The provisions of theIndustrial Disputes Act does not apply to the facts of thepresent case. The impugned orders of transfer is well within thepower of the authority. The challenge to the orders of transferhas no basis and the same is liale to be dismissed. 13. In the result, the Writ Petition fails, and the sameis, accordingly, dismissed. No order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarPALToThe Chairman and Managing Director,Tamil Nadu Civil Supplies CorporationLimited No.42, Thambusamy Road,Kilpauk,Chennai.10 +1cc to Mr.P.Chandrasekaran, Advocate Sr 60524+1cc to Mr.V.Selvanayagam, Advocate Sr 60466KGK(CO)km/8.12. W.P. No. 23753 of 2004