IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2009 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.14121 of 1998 The Special Officer, Palayamkottai Urban Co-operative Bank Limited, Palayamkottai, Tirunelveli 2 Rep by its Managing Director Kamalam ... Petitioner Vs 1.The Presiding Officer, Labour Court,Tirunelveli -2. 2.N.Subbiah ... Respondents PRAYER :- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records of the first respondent Labour Court, Tirunelveli, relating to its order and award made in I.D.No.123/1996 dated 25.03.1998, which is published in the Tamilnadu Government Gazette Notification, Labour and Employment and quash the same. For petitioner : Mr.P.Senthurpandian For Respondents : Mr.V.Gangadharan for R2 O R D E R
Heard both sides.
2. The petitioner is the management of a Co-operative Society. Aggrieved by the award made by the first respondent Labour Court in I.D.No.123 of 1996 dated 25.03.1998, the present writ petition has been filed. By the impugned award, the Labour Court has directed the reinstatement of the second respondent with full backwages, service continuity and other attendant benefits together with costs of Rs.400/-.
3. The writ petition was admitted on 11.09.1998. Pending the writ petition, this Court granted an interim stay. On the second respondent workman filing an application for vacating the interim stay, this Court by an order dated 12.09.2000 directed the petitioner bank to deposit a sum of Rs.35,000/- with the Labour Court. On such deposit, the Labour Court was directed to invest the same in a nationalised bank with the permission to the second respondent to withdraw quarterly interest. The petitioner bank was also directed to pay a sum of Rs.25,000/- towards backwages to the second respondent. Further a direction was granted to pay Rs.1050/- commencing from September 2000 towards monthly payment under Section 17-B of the Industrial Disputes Act, 1947 (for short I.D. Act) pending disposal of the writ petition. It is stated that the petitioner bank had complied with those conditions.
4. It is the case of the second respondent that he was appointed as a last grade servant by the petitioner bank with effect from 13.03.1989 on daily wages. Initially, the daily wages was Rs.22/- and subsequently, it was increased to Rs.35/-. However, all of a sudden, he was removed from service on 21.10.1995 without any orders. He also claimed that he has worked for a period of six years, seven months and eight days continuously. He has also submitted that another employee by name Sivaraman who was appointed on 05.03.1991 (subsequent to the appointment of the second respondent) was allowed to continue. Therefore, the petitioner bank had contravened Section 25F and 25G of the I.D.Act.
5. As against his non-employment, he raised an industrial dispute before the Government Labour Officer. On a failure report being submitted, he filed a claim statement before the first respondent Labour Court. The Labour Court took up the dispute as I.D.No.123 of 1996 and issued notice to the petitioner bank. The petitioner Bank filed a counter statement.
6. In the counter statement, the petitioner bank submitted that the second respondent was appointed on daily wages on the basis of the approval given by the then Board of Directors, which was not according to the special bye laws applicable to the service conditions of the employees of the bank. His appointment was not through employment exchange and he was not a regular workman. Since his appointment was an irregular appointment his services were dispensed with by the Special Officer. The allegation that a junior was continuing in service was also denied.
7. Before the Labour Court, on behalf of he petitioner bank, four documents were filed and they were marked as Exs.M1 to M4. There was neither any oral evidence let in nor any documents were filed by the second respondent. On the side of the petitioner bank, one Parameswaran was examined as M.W.1.
8. The Labour Court on an analysis of the evidence placed before it came to the conclusion that the petitioner having worked more than 240 days is eligible for protection under Section 25F of the I.D.Act. With reference to the audit objection, it found that the second respondent’s name was not specifically mentioned in the audit report. Since the petitioner management has not specifically denied the averment made by the workman that he had joined service on 30.02.1989, the said fact is deemed to have been admitted. With reference to the appointment of Sivaraman, though it was stated that his name was sponsored by the District Employment Exchange, and he was appointed as a Binder from 01.01.1993 to 30.06.1993, but as the said Sivaraman had been appointed even as early as on 05.03.1991 which was two years subsequent to the second respondent’s appointment he was admittedly a junior. The fact that the said Sivaraman was confirmed in service as early as 01.09.1994 was not proved by producing documents before the Labour Court. The audit objection raised in the year 1994 was not filed before the Court. It is in that view of the matter, the Labour Court held that the petitioner’s non-employment would amount to a retrenchment within the meaning of Section 2(oo) of the I.D. Act and since the condition precedent found in Section 25F was not followed, is eligible for reinstatement with backwages. The Labour Court also held that the fact that he was not sponsored through the employment exchange would not make his employment as irregular.
9. Mr.P.Senthurpandian, learned counsel for the petitioner submitted that the special bye laws of the bank was filed before the Labour Court and marked as Ex.M2 and the Labour Court ought not to have held that the bye-laws were not implemented. Bye law No.27(b)4 which was in force even at the relevant time, which reads as follows:
“4. No appointment by direct recruitment to any post shall be made except through Employment Exchange by way of notifying the vacancies to the concerned Employment Exchange in the manner and form prescribed under the employment Exchange (Compulsory notification of vacancy) Rules 1960. Recruitment by inviting applications by advertisement in dailies approved for Government advertisement may be made only after obtaining a non-availability certificate from the concerned .”
10. Even otherwise the Labour Court had failed to take into account Rule 149(2) of the Tamil Nadu Co-operative Societies Rules, 1988 (which were brought into effect from 13.04.1988) mandatorily provides for recruitment through employment exchange in case of regular appointment by a Co-operative Society.
11. When a question came up whether such appointments can be regularised through a Government Order, a Division Bench of this Court vide its judgment in L.Justine v. Registrar of Co-operative Societies reported in 2002 (4) CTC 385, negatived such a contention. In Para 19(vii), it has been held as follows:
19(vii) that either the provisions of Tamil Nadu Indusrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, or the Industrial Disputes Act, 1947, or the settlements entered under Sections 12 or 18 thereof, shall have no application to the staff of the co-operative societies appointed without adequate qualifications or beyond the cadre strength for the period from 09.07.1980 to 11.03.2001. This is equally applicable to the staff appointed to the co-operative societies, otherwise than through employment exchange, for the period form 12.03.2001 onwards.”
12. When the said judgment was taken on appeal, the Supreme Court confirmed the judgment of the Division Bench vide its judgment A.Umarami v. Registrar of Co-operative societies, reported in 2004 (7) SCC 112. The supreme Court held that invalid appointments cannot be regularised.
13. Once again the said question was re-agitated before another Full Bench of this Court in R.Radhakrishnan v. The Deputy Registrar of Co-operative Societies, Dindigul reported in 2007 (6) MLJ 455. In paragraph 13, after referring to A.Umarani’s case, (cited supra), the Full Bench presided by S.J.Mukhopadhaya J. observed as follows:
“13. ……..In view of such finding of Supreme Court in A.Umarani v. Registrar of Co-operative Societies (supra), the observations, findings and directions given by Division Bench of this Court in L.Justine v. Registrar of Co-op Societies, Chennai (supra) at paragraph 19(i), last portion of paragraph 19(v) and the finding with regard to regularisation of service of employees recruited prior to 12.03.2001, stand overruled.
14. The Labour Court without any materials before it and brushing aside the non-sponsorship from the employment exchange and appointment being contrary to the bye-laws had directed the reinstatement of the second respondent with all benefits. Even with reference to the appointment of Sivaraman, alleged to be a junior to the second respondent, the Labour Court failed to take into account the effect of Ex.M3 and M4 which clearly showed that the said Sivaraman was appointed after being sponsored by the Employment Exchange.
15. In the light of the above, the award passed by the Labour Court is clearly erroneous. Accordingly, the award in I.D.123 of 1996 dated 25.03.1998 will stand set aside. In the light of the condition made under Section 17-B, the amounts paid already to the second respondent cannot be withdrawn. However, the petitioner bank is entitled to withdraw the deposit of Rs.35,000/- together with interest, if any, made pursuant to the interim order passed by this Court dated 12.09.2000. However, there is no order as to costs.
svki
To
The Presiding Officer,
Labour Court,
Tirunelveli 2