Writ Appeal No.67 of 2006 against the order dated 1.8.2002 passed by single Judge in Writ Petition No.12504 of 1995 on the file of this Court.
Writ Appeal No.68 of 2006 against the order dated 1.8.2002 passed by single Judge in Writ Petition No.12503 of 1995 on the file of this Court.
Writ Appeal No.69 of 2006 against the order dated 1.8.2002 passed by single Judge in Writ Petition No.12505 of 1995 on the file of this Court.
For appellant : Mr.N.Balasubramanian For respondents: Mrs.A.V.Barathi for R-1 Mr.D.Sreenivasan, Addl.G.P.
for RR-2 & 3 COMMON JUDGMENT THE HON'BLE THE ACTING CHIEF JUSTICE As all these appeals have been preferred by Ambur Co-operative Sugar Mills Limited against the common order dated 1.8.2002 passed by the learned single Judge in W.P.Nos.12503 to 12505 of 1995, they were heard together and disposed of by this common judgment.
2. The third respondent-Commissioner of Sugar, by his order dated 10.5.1995, directed the Co-operative and Public Sector Sugar Mills to withdraw with immediate effect, the scheme regarding encashment of unavailed casual leave by the workers of Co-operative and Public Sector Sugar Mills. The same was challenged by Ambur Co-operative Sugar Mills National Workers Union, and the Writ Petitions having been decided in their favour, all these appeals have been preferred by Ambur Co-operative Sugar Mills Ltd.
3. Learned single Judge having noticed that the appellant- Ambur Co-operative Sugar Mills provided the benefit of encashment of casual leave to its workers, by circular dated 3.4.1967, and was paid to them uninterruptedly for 28 years till the impugned Circular was issued in 1995, and taking into consideration the decisions, including the Supreme Court judgment in the case of "Workmen of Kettlewell Bullen and Co. Ltd. vs. Kettlewell Bullen and Co. Ltd.," reported in AIR 1994 SC 1550, held that the said judgment of the Supreme Court is applicable to the facts of the present case and the customary right of encashment of leave cannot be taken away in the manner that has been done in the present case.
4. Learned counsel appearing on behalf of the appellants-Ambur Co-operative Sugar Mills Ltd., submitted that the Writ Petitions were not maintainable against a Co-operative Sugar Mills, which a Society registered under the Tamil Nadu Co-operative Societies Act. The encashment of unavailed casual leave granted by a Co-operative Sugar Mills to its employees is not a statutory right which could be withdrawn at the will of the employer and will not amount to a condition of service at all. Therefore, issuance of a notice under
Section 9-A of the Industrial Disputes Act, does not arise. In any case, without raising an industrial dispute under
Section 10-A of the Industrial Disputes Act, the Writ Petitions should not have been entertained.
5. The aforesaid submissions were refuted by the learned counsel for the first respondent-Workers Union, who relied on different instructions issued from time to time and the judgment of the Supreme Court as referred to by the learned Judge in the impugned order.
6. We have heard the learned counsel appearing for the parties and noticed the rival contentions.
7. It appears that appellant-Ambur Co-operative Sugar Mills, by circular dated 3.4.1967, decided to allow encashment of casual leave to its workers including seasonal workers and the said rule came into force from 1966-1967 session, translated version of which is quoted herein:
"It is a fact that every year the permanent workers are entitled for encashment of 12 days of Casual Leave and 6 days encashment for seasonal workers. In order to increase the productivity in our mill and to reduce availing of casual leave, the remaining days of Casual Leave of every year will be calculated according to ratio and will be disbursed to the seasonal workers at the end of the first month in the next year. The above rule will not apply for those who are going on leave in loss of pay.
The above rule comes into force from 66-67 for seasonal workers and from January 1967 for the permanent workers."
8. In the meeting of the Chief Executives at the Tamil Nadu Co-operative Sugar Federation, which was held on 3/4.6.1994, by Clause 3.6, it was decided that the Mills may introduce the scheme for encashment of unavailed casual leave by the employees. However, there being a scheme already existing since 1967, no separate introduction of such Scheme was required for the appellant-Ambur Co-operative Sugar Mills. However, it appears that giving reference to Chief Executives' meeting, dated 3/4.6.1994, by letter No.3953/94-BI, dated 19.8.1994, the appellant-Sugar Mills requested Commissioner of Sugar, Department of Sugar, Government of Tamil Nadu, permission to allow the clerical staff including the supervisory staff common cadre officers to encash the unavailed casual leave at their credit as on the last day of the year. The Commissioner of Sugar, Department of Sugar, Government of Tamil Nadu, Chennai, by his Rc.No.32429/C3/94, dated 24.12.1994, giving reference to the said letter dated 19.8.1994 and Chief Executives' meeting held on 3/4.6.1994, informed that the decision to grant such benefit appears to have been taken to avoid over time payment, as per the Chief Executives' meeting held on 3/4.6.1994 and as over time payment was given only to the factory workers and not to the employees working in the administrative section, and therefore, the clerical staff were not eligible for encashment benefit of casual leave. Similarly, the supervisory staff working in the factory who do not get Wage Board Scale of Pay were also not eligible (Common Cadre Officers) for encashment of C.L. Relevant portion of the said letter dated 24.12.1994 is extracted hereunder:
"In the Chief Executives meeting held on 3.6.94 and 4.6.94 it was decided to permit the employees to encash their unavailed casual leave only to avoid overtime payment. 2. In the letter cited, you have requested permission to allow the clerical staff including the supervisory staff Common Cadre Officers, to encash the unavailed C.L. at their credit as on the last day of the year. In this connection, it is informed that only to avoid overtime payment, workers have been permitted to encash their unavailed C.L. Overtime payment is given only to the factory workers and not to the employees working in the administrative section. Therefore the clerical staff are not eligible for encashment benefit of C.L. Similarly the supervisory staff working in the factory who do not get Wage Board Scale of Pay are also not eligible (Common Cadre Officers) for encashment of C.L.
3. The receipt of the letter may be acknowledged."
9. Subsequently, giving reference to the said letter dated 24.12.1994, the Joint Secretary to Government, Industries Department, Government of Tamil Nadu, vide letter dated 30.3.1995, informed the Commissioner of Sugar that the grant of benefit of encashment of unavailed casual leave, was permitted by Ambur Co-operative Sugar Mills to its factory workers, as referred to in letter dated 24.12.1994, and forwarded to all other Co-operative Sugar Mills, will encourage other Co-operative Sugar Mills to follow suit. It was further informed that surrender of unavailed casual leave is an unheard-of-concept and the Commissioner of Sugar is not competent to issue such circular without the knowledge and concurrence of the Government and that the employees of other Public Sector/Co-operative Institutions may also start demanding this concession and thereby asked the Commissioner of Sugar to withdraw the Circular dated 24.12.1994, as will be evident from the letter of the Joint Secretary to Government, dated 30.3.1995, and quoted hereunder:
"I am to invite your attention to the reference cited wherein the factory workers of Ambur Cooperative Sugar Mills have been permitted to surrender unavailed Casual Leave by your predecessor and a copy of the reference has been marked to all other Co-operative Sugar Mills. This will encourage other Co-operative Sugar Mills to follow suit.
Needless to say, surrender of unavailed Casual Leave is an unheard-of-concept and the Commissioner of Sugar is not competent to issue such a circular without the knowledge and concurrence of the Government. Employees of other Public Sector/Cooperative institutions may also start demanding this concession.
I am, by direction, to request you to withdraw the above circular and also clarify to all Cooperative Sugar Mills that no one will be eligible for surrender of unavailed Casual Leave. A copy of your circular to all Cooperative Sugar Mills may be sent to Government for favour of information."
10. It is only thereafter the Commissioner of Sugar issued the impugned order contained in Circular dated 10.5.1995 and informed all the Co-operative and Public Sector Sugar Mills that the scheme with regard to the encashment of unavailed casual leave by the workers of Co-operative and Public Sector Sugar Mills, was withdrawn with immediate effect, relevant portion of which is quoted hereunder:
"2. In the reference third cited, Government have instructed to withdraw the above scheme. In view of the above, the implementation of the scheme of encashment of unavailed casual leave by the workers of Cooperative and Public Sector Sugar Mills is hereby withdrawn with immediate effect."
11. The aforesaid Scheme framed by Ambur Co-operative Sugar Mills, the decision of the Chief Executives held in the meeting on 3/4.6.1994, the letter of the Commissioner of Sugar, dated 24.12.1994, the Government Letter issued from the Industries Department by the Joint Secretary to Government, dated 30.3.1995 and the impugned order/Circular dated 10.5.1995, relevant portion of all of which have been quoted above to show complete non-application of mind on the part of the respondents and their officials.
12. It will be evident that the appellant-Ambur Co-operative Sugar Mills Ltd., of their own, as back as on 3.4.1967, decided to grant the benefit of encashment of casual leave to its permanent workers and seasonal workers. Subsequently, in the meeting of the Chief Executive Officers of the Tamil Nadu Co-operative Sugar Federation, held on 3/4.6.1994, a general decision was taken that Co-operative Sugar Mills can grant the benefit of encashment of unavailed casual leave. The workmen of the appellants-Ambur Co-operative Sugar Mills Ltd., were already availing of the benefit of encashment of unavailed casual leave since 1967, but as the same was not applicable to the clerical staff or to the supervisory staff of the appellant-Ambur Co-operative Sugar Mills Ltd., the appellant-Ambur Co-operative Sugar Mills Ltd., by their letter dated 19.8.1994, wanted permission from the Commissioner of Sugar to allow the clerical staff including the supervisory staff common cadre officers, to encash the unavailed casual leave at their credit as on the last day of the year. In this connection, as per the decision of the Chief Executives' meeting held on 3/4.6.1994, the Commissioner of Sugar, by letter dated 24.12.1994, informed that it was decided to permit the employees to encash their unavailed casual leave only to avoid overtime payment and the clerical staff being not workmen of the factory, were not eligible for encashment of casual leave.
13. From the aforesaid facts, it would be evident that the Government have not framed any Scheme for encashment of casual leave. But the appellant-Ambur Co-operative Sugar Mills Ltd., was giving such benefit to the workmen since 1967. But the Joint Secretary to Government, from its Industries Department, while issuing the letter dated 30.3.1995, by referring to the letter dated 24.12.1994 of the Commissioner of Sugar, treated the said letter dated 24.12.1994 as if a scheme of the State Government granting the benefit of encashment of unavailed casual leave to the workmen and thereby, directed to withdraw the letter/circular dated 24.12.1994. Pursuant to the said letter dated 30.3.1995 of the Joint Secretary to the Government, the Commissioner of Sugar issued the impugned order/Circular, dated 10.5.1995 and simply withdrawn the benefit of encashment of unavailed casual leave granted to the workmen. Thus, it will be evident that there was no scheme of the State Government except a decision of the appellant-Ambur Co-operative Sugar Mills Ltd., of their own to grant the benefit of encashment of unavailed casual leave. The correspondence dated 24.12.1994 between the Commissioner of Sugar and the appellant-Ambur Co-operative Sugar Mills Ltd., not to grant such benefit of encashment of unavailed casual leave, to the clerical and supervisory staff, was noticed and on a wrong presumption that a scheme has been framed by the Government for encashment of casual leave, the benefit granted to the workmen of the appellant-Ambur Co-operative Sugar Mills Ltd., has also been withdrawn, and the impugned order/Circular dated 10.5.1995 was passed by the Commissioner of Sugar.
14. The learned single Judge has not referred to all the aforesaid facts and letters. Therefore, we have deliberated on them and find no merits in the appeals of their own. This apart, we uphold the impugned common order dated 1.8.2002 passed by the learned single Judge in Writ Petition Nos.12503 to 12505 of 1995, as the learned single Judge rightly applied the ratio laid down by the Supreme Court in the case of "Workmen of Kettlewell Bullen and Co. Ltd. vs. Kettlewell Bullen and Co. Ltd." reported in AIR 1994 SC 1550 (supra) and came to the conclusion that the impugned order/Circular dated 10.5.1995 passed by third respondent-Commissioner of Sugar, was bad. However, we make it clear that the order of the learned single Judge or the present judgment will not be applicable to the Sugar Co-operative Societies, including the Public Sector Sugar Mills, where there is no separate Scheme framed by such Sugar Co-operative Societies/Public Sector Sugar Mills.
15. There being no merits, all the Writ Appeals are dismissed, but there shall be no order as to costs. W.A.M.Ps. are closed.
(S.J.M., ACJ) (V.D.P.J) 20.01.2009 Index: Yes Internet: Yes cs To
1. The Government of Tamil Nadu, rep. by its Secretary, Food Cooperation and Consumer Protection, Fort St.George, Madras-9.
2. Commissioner of Sugars, 474, Anna Salai, Nandanam, Madras-35.
THE HON'BLE THE ACTING CHIEF JUSTICE AND V.DHANAPALAN,J cs Judgment in Writ Appeal Nos.67 to 69 of 2006 20.01.2009