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1996 DIGILAW 873 (MAD)

D. Sundaresan v. Management of Triplicane, Urban Co-Operative Society Limited and Another

1996-08-26

S.M.ABDUL WAHAB

body1996
Judgment :- This writ petition is for quashing the award of the second respondent in I.D. No. 84 of 1984 dated March 19, 1986. 2. The case of the petitioner is that he was employed in the first respondent-company as an Accountant. Originally under the Bye-laws, the superannuation age was 55 years. He had to retire on June 23, 1982. But on July 23, 1979 the Registrar of Co-operative Societies issued a direction to increase the age of superannuation from 53 to 58. The petitioner was not given the benefit of extension. He was superannuated on June 23, 1982. Hence he raised an industrial dispute. The Labour Court has dismissed the claim of the petitioner. The petitioner has stated that there was an original proposal to extend the age with reference to 7 persons. The other persons were given extension, but the petitioner was not. Hence, there was discrimination. This aspect has not been properly considered by the Labour Court. Therefore, he has filed this writ petition for the above relief. 3. No counter affidavit has been filed. 4. The only contention raised by the learned counsel for the petitioner is that there was discrimination as regards the petitioner, since originally there was a proposal to extend the benefit of superannuation to the age of 58 years with respect to 7 persons. This is evidenced from the proposal Ex. M. 2. After filing the claim petition before the Labour Court, the petitioner filed I.A. No. 824 of 1984 for production of documents including the re-employment orders with respect to the four persons concerned in Ex. M. 2. But the said documents were not produced. Therefore there is discrimination. 5. Learned counsel further contended that the petitioner has been chosen for hostile treatment in view of the fact that he questioned the respondent about the direction to mulct him with the responsibility of sharing the value of shortages in stock. 6. As regards the contention of discrimination we have to see whether any discrimination has been actually meted out in the case of the petitioner. After the proposal, the petitioner had to undergo cataract operation. Therefore, he was sent for obtaining medical certificate. As per M-4 Medical Certificate, there is a clear direction that he has to obtain the certificate from the medical referee, E.S.I. Corporation. But instead he has produced certificate from a different doctor. After the proposal, the petitioner had to undergo cataract operation. Therefore, he was sent for obtaining medical certificate. As per M-4 Medical Certificate, there is a clear direction that he has to obtain the certificate from the medical referee, E.S.I. Corporation. But instead he has produced certificate from a different doctor. Therefore, the certificate produced by the petitioner under M-6 was not the certificate required. Another fact is that in the certificate produced by the petitioner, he has been advised to do light work. Pursuant to the said certificate produced by the petitioner, he gave his consent for extension. He has requested the respondent to provide him with work in the head office. In Exhibit M. 3 he has stated that since the work at Alandur Branch Office affected his health, he should be posted to the Head Office. Only under these circumstances, the order dated June 23, 1982 retiring the petitioner from service. In the case of other persons mentioned for extension, in M. 2 they were not required to produce any medical certificate, as there was no necessity for the same. In these circumstances, it cannot be said that the petitioner alone has been chosen for hostile treatment. Since the petitioner has been found to be medically unfit for regular work, his case has been considered in a different manner. Learned counsel for the petitioner cited certain decisions, which are not helpful to him. However, it is worthwhile to consider them also. First he cited a decision in S. Antony Dass v. The Government of Tamilnadu & Others (W.P. No. 5947 of 1989 dated July 2, 1996). The facts of the said case are entirely different. In the said case, a person not possessing sufficient qualification for his promotion was given promotion, based on a saving clause. Therefore, when the petitioner in another case claimed exemption, he was not granted. Hence the Court found that there was discrimination. 7. In Sengaras Singh & Others v. State of Punjab & others (1984-I-LLJ-161) the Supreme Court has clearly found that there was not an iota of evidence, which would distinguish the case of the appellants from those who were beneficiaries under the orders of the committee. But in our case, there is a difference between the petitioner and the other persons, who were given extension. Therefore, the said case is not helpful. 8. But in our case, there is a difference between the petitioner and the other persons, who were given extension. Therefore, the said case is not helpful. 8. In State of Andhra Pradesh v. S. K. Mohinuddin 1994 Supreme Court 1474, the Supreme Court also found discrimination between those who moved the court and the other persons who did not do so. The persons who did not move the court were given benefits, while the others who moved the court were not given the benefits. The learned counsel for the petitioner cited decision Union of India v. Tulsiram Patel (1985-II-LLJ-206) where the general principles of Articles 14 and 16 are set out. It is no doubt true that if discrimination is shown to any employee, in any service he is entitled to move the Court under Article 226 read with 14 and 16 of the Constitution of India. But the condition precedent is that his case must be identical on all fours. But if there is a difference between him and the other persons and the difference by itself differentiate him from others, the court will not be able to help such persons. Therefore, in my view there is no question of discrimination in this case. 9. The next contention urged by the learned counsel for the petitioner is that the petitioner has been victimised since he questioned the order directing him to bear the loss. A reading of the order of the respondent Exhibit M. 7 dated June 23, 1982 shows that it is not based upon any such protest. But it is based upon simple fact that the petitioner has not produced the certificate as required by the office. 10. The Labour Court has dealt with the contentions and has given proper reasons for rejecting the same. In these circumstances, I do not feel that there is any justification for interference. Hence, there is no substance in this writ petition and the writ petition is liable to be dismissed. Accordingly, this writ petition is dismissed. However, there will be no order as to costs.