The financial viability of a Co-operative Society and the applicability of the Minimum Wages Act to such societies were central to the judgment.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, to call for the records relating to the impugned order dated 18.09.2012 passed by the first respondent in M.W.98 of 2009 and quash the same as illegal.

Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the order made in claim petition No.29/2010 dated 12-03-2012 on the file of the second respondent and quash the same in relation to disallowing the claim made under various heads such as Deepavali, Pongal Bonus, Leave Salary, Salary for the Government declared holidays, allowance for cycle usages by the employee, employers contribution on the provident fund, payable to the employee and other benefits and consequently direct the first respondent to pay the total claim of Rs.4,05,401/- within a time frame as specified by this Honourable Court to the Petitioner forthwith.)

Order

1. This Writ Petition in W.P.(MD)No.5567 of 2013 is filed by the Management, to quash the impugned order dated 18.09.2012 passed by the first respondent in M.W.98 of 2009 and quash the same as illegal.

2. The brief facts of the case in W.P.(MD)No.5567 of 2013 are that the petitioner is a Co-operative Society governed under the Tamil Nadu Co-operative Societies Act, 1983. Earlier the Society was producing milk of its own by maintaining dairy farm and distributing the same. Thereafter, the petitioner has closed its diary activities and started distributing the milk sachets procured from Tirunelveli Aavin on commission basis. The Society has become financially weak and unviable. The respondents 2 to 5 were employed as Secretary, Cashier, Salesman and Clerk and has filed the petition alleging and claiming difference in wages for the period from 01.04.2002 to 31.07.2009 before the first respondent Society. The respondents 2 to 5 have already retired from service and alleged their salary were lesser than the wages prescribed under the Minimum Wages Act, 1948. The respondents relied on G.O.Ms.No.44 dated 13.07.2000 and G.O.Ms.No.5 dated 22.05.2005. The contention of the petitioner is that the said two Government Orders relates to Shops and Establishments coming under the Tamil Nadu Shops and Establishments Act,1947 and they do not cover the employees of the Co-operative Society. As per Section 20(2) of the Minimum Wages Act, 1948 any such claim has to be made within a period of six months and hence they are not entitled to claim any amount for the period prior to six months and in any event they cannot claim from 2002 onwards. The respondents have not filed any separate application for condoning the delay and has not filed any affidavit explaining the reason for such huge delay. The first respondent has held the petitioner Society is an establishment coming under the Tamil Nadu Shop and Establishment Act, 1947 and has allowed the claim of the respondents 2 to 5 and directed the petitioner to deposit the said amount within a period of 30 days and if the amount is not deposited so, further compensation equivalent to 100% should be deposited together with the awarded amount.

3. The contention of the petitioner is that the direction of the 1st respondent is without jurisdiction. The Co-operative Society is governed under the Tamil Nadu Co-operative Societies Act 1983, which is a self-contained special enactment. The petitioner society cannot be termed as a Shop or an Establishment falling under the Tamil Nadu Shop and Establishment Act, 1947. The petitioner will come under the exemption clause given under Section 4 of the Tamil Nadu Shop and Establishment Act, 1947. The petitioner Society is under financial crunch and it would be further saddled with financial strain, if it is directed to pay Rs.4,34,948/-. Already the petitioner Society is having a debt burden of Rs. 4,00,0