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Judgment
P. Devadass, J.—Since both these writ appeals are interconnected on facts, common arguments were heard and thus, this common Judgment is being rendered. In W.A. (MD) No. 273 of 2013, the appellant, who is the petitioner in W.P. (MD) No. 14076 of 2011 challenges dismissal of his writ petition, in which, he has sought for a direction to the respondents not to reduce his salary by 20%.
In W.A. (MD) No. 1403 of 2011, the very same petitioner challenges the order of the Writ Court in W.P. (MD) No. 526 of 2009, in which, he has sought for a direction to the respondents 1, 2 and 4 to reinstate him to his original post in Madura Sourastra Co-operative Bank Ltd., Madurai (second respondent) and direct the second respondent to pay him his past salary for the period from 1.9.2008 till his reinstatement.
The said Writ Petitions, namely, W.P. (MD) Nos. 14076 of 2011 and 526 of 2009 arose under the following circumstances:-
(i) Appellant is a permanent employee in Madura Sourashtra Cooperative Bank Ltd. (second respondent). Stating financial doldrums, the second respondent initiated some measures. The Joint Registrar of Co-operative Societies, Madurai Region (fourth respondent) passed orders deputing 25 employees of second respondent including the appellant to the Madurai District Central Co-operative Bank (third respondent), but, with 30% less of their regular salary (See Terms and conditions No. 9). Rest of the employees of second respondent were asked to receive 20% less of their regular salary.
(ii) On 17.11.2008, in W.P. (MD) Nos. 8098 and 8099 of 2008, this Court held that the said Clause No. 9 in the terms and conditions of the deputation order reducing 30% of salary is arbitrary, unreasonable and also detrimental to the interests of the writ petitioners therein, namely, the present appellant and his co-employee Athma Rao. In the meanwhile, third respondent informed the Sourashtra Bank that already it had recruited sufficient employees, it could not take the appellant. In the circumstances, the appellant in W.P. (MD) No. 529 of 2009 and his colleague Athma Rao sought for their reinstatement in their parent Bank. On 10.10.2011, their writ petition was allowed. The Madura Sourastra Co-operative Bank was directed to continue their services. However, disallowed their plea for back wages from 1.9.2008 till date of joining the Bank.
(iii) On 28.03.2009, the appellant joined Madura Sourastra Cooperative Bank. He is being paid salary 20% less of his original. Aggrieved, he had directed W.P. (MD) No. 14076 of 2011. Relying on the decision in K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, the writ court held that the writ petition against the Co-operative Societies is not maintainable. It had also held that there are factual controversy as to whether the employees have voluntarily consented for such reduction of salary and they also have effective remedy through Labour Court u/s 33C(2) of the Industrial Disputes Act, 1947. Aggrieved, the petitioner/appellant filed W.A. (MD) No. 273 of 2013. As regards not granting him back wages from 1.9.2008 till his joining, the appellant directed W.A. (MD) No. 1403 of 2011.
The learned counsel for the appellant contended that the Bank Management cannot reduce his salary, he did not consent for reduction of his salary, it is common sense that in the prevailing spiraling prices of essential commodities and high inflation, no one will consent for such reduction, the move of the Management could be presumed as arbitrary and also unfair labour practice and it is an indirect pressure to crush the employment of the appellant.
According to the learned counsel for the second respondent, the Madura Sourastra Central Co-operative Bank is in financial crisis, it is not able to pay its employees fully. Therefore, by way of economic measure, the salary reduction has been made and payment of less salary is due to its inability to pay in full.
We have anxiously considered the rival submissions, perused the entire records and the impugned orders of the Writ Court.
As and when writ petitions are filed against Co-operative Societies, the Management cannot put the decision in K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, as a shield to deny statutory violations and breach of Constitutional and Fundamental Rights of employees. Marappan (supra) is not a perennial panacea in the hands of the Management to offer as a cure for the problems of the employees. Even Marappan (supra) has exceptions. When crushing of the rights of the employees, violations of statutory provisions and of Constitutional Rights are complained of Marappan (supra) shall not be a bar for cognizance of such violations by the Writ/Prerogative Court to offer suitable redressal to the affected. The Fundamental Right guaranteed under Article 14, Constitution of India is co-extensive with that of right of wages of employees.
An unilateral decision to curtail the quantum of salary of employees is an indirect inroad into the right guaranteed to them under Article 14, Constitution of India. For complaining about such violations, the affected can approach this Court under Article 226, Constitution of India. Article 226 of Constitution of India also meant to enforce not only Fundamental Rights, but, also other legal right of persons. Marappan (supra) cannot be an answer to such grievances. Therefore, dismissal of the writ petition in W.P. (MD) No. 14076 of 2011 by the writ court relying on Marappan (supra) is unsustainable.
Already, on 17.11.2008, this Court in W.P. (MD) Nos. 8098 and 8099 of 2008, held that deputing the petitioner to another Bank reducing 30% of his salary and direct him to receive such reduced salary was held to be arbitrary, unreasonable and against his interest. Further, on 19.11.2009, in W.A. (MD) Nos. 510 & 511 of 2009, under similar circumstances, a Division Bench of this Court also took the similar view.
If by way of a wage settlement or a decision arrived at the bargaining table as between the Capital (Management) and the Labour (Workmen) to reduce the salary that would be a different matter. But, the plea of the Management that the employee agreed to receive less salary prima facie presumed to be an unfair labour practice, an indirect pressure to coerce him, it is also reducing his status. Thus, there must be clear cut materials to establish the contrary. But, in the present case, it is not so. Thus, 20% reduction of the salary of the petitioner/appellant by the Management is arbitrary, unreasonable and against law and such reduction shall not be allowed to continue.
As regards the prayer for a direction to pay him 20% of his wages withheld by the Management for the period from April 2005 till date made in W.P. (MD) No. 14076 of 2011 and as regards the prayer for payment of wages for the period from 01.09.2008 to 28.3.2009 made in W.P. (MD) No. 526 of 2009 as there are controversies as to certain factual aspects, such as his duty period etc., and the dispute as between the petitioner and the Bank as to whether unreasonably the appellant avoided deputation or whether he was denied employment are to be ascertained and such disputed factual matrix cannot be gone into in the writ petition, as rightly held by the Writ Court, those aspects have to be decided by the Registrar of Co-operative Societies or his nominee. In the result, W.A. (MD) No. 273 of 2013 is partly allowed. The second respondent, namely, Madura Sourastra Co-operative Bank, Madurai, shall pay the appellant/writ petitioner his full salary without making 20% reduction thereof. W.A. (MD) No. 1403 of 2011 is dismissed. As regards the claim for the period from April, 2005 made in W.P. (MD) No. 14076 of 2011 and as regards the claim made in W.P. (MD) No. 526 of 2009 for the period from 01.09.2008 till 28.03.2009 subject to any enquiry to be initiated as to the petitioner having not taken up the deputation, it is open to the appellant to approach the Registrar of Cooperative Societies or his nominee to decide the question of wages for the said period. No costs. Consequently, the connected Miscellaneous Petition is closed.