ORDER
E. Padmanabhan, J.
1. The writ petitioner, a co-operative society, has prayed for the issue of a writ of certiorari to call for and quash the proceedings of the first respondent, Deputy Commissioner of Labour and appellate authority under The Tamil Nadu Shops and Establishments Act in TSE No. 21/99 dated 9.11.99 and quash the same.
2. Heard Mr. K. Srinivasamurthy, learned counsel appearing for M/s. Row and Reddy for the petitioner, Ms. V. Velumani, learned Additional Government Pleader for the first respondent and Mr. Vinodkumar, learned counsel appearing for the 2nd respondent.
3. The petitioner, is a co-operative society registered under the Tamil Nadu Co-operative Societies Act. According to the petitioner, the petitioner society appointed the 2nd respondent as Junior Clerk and the said appointment was made by the erstwhile Board in violation of Rule 149 of The Tamil Nadu Co-operative Societies Act, 1983 and in disregard of the rules. The procedure prescribed under by-law 6(1) of the Society was not followed. The appointment of the 2nd respondent was made in violation of circular dated 29.12.1995 and without permission from the Registrar of Co-operative Societies. The Board, which appointed the 2nd respondent was superseded and one of the charges being that the said Board appointed the 2nd respondent illegally as it is an irregularity and violative of the Bye laws and Rules. The Board was superseded under Section 88 of The Tamil Nadu Cooperative Societies Act. It is stated that the Board has appointed the 2nd respondent without taking into account the financial condition, the interest of the society and the requirement of staff strength, without consulting the employment exchange and without securing the prior permission of the Registrar. It is further stated that appointment made being in violation of G.O. Ms. No. 212, Co-operation and Consumer Protection Department dated 4.7.95. As the appointment of the 2nd respondent was illegal, the petitioner society terminated his services. The 2nd respondent moved W.P. No. 16083/98 challenging the said termination. The writ petition came to be allowed, the 2nd respondent was ordered to be reinstated, while giving liberty to the writ petitioner to initiate fresh action. Thereafter, the petitioner issued a show cause notice stating that the appointment of the 2nd respondent is in violation of the Rules, by-laws and without prior permission and, therefore, it is illegal and the 2nd respondent was called upon to show cause as to why his services should not be terminated.
4. According to the petitioner, the 2nd respondent kept silent and he has not submitted objections. The petitioner society terminated the services of the 2nd respondent on 6.4.99. Being aggrieved, the 2nd respondent moved the first respondent in TSE No. 21/99 under Section 41(2) of The Tamil Nadu Shops and Establishments Act. The said proceeding was resisted by the petitioner contending that it is a termination simplicitor of the 2nd respondent, who has not been appointed validly, that the 2nd respondent had failed to avail the opportunity and that no appeal is maintainable and there are no merits. It was also contended that the appeal before the first respondent is not maintainable in terms of Section 75(7) of The Tamil Nadu Co-operative Societies Act, 1983 and it is without jurisdiction. The first respondent by the impugned proceedings dated 9.11.99 allowed the appeal and directed reinstatement of the 2nd respondent. Being aggrieved, the present writ petition has been filed by the petitioner society.
5. The learned counsel for the petitioner contends that the order of the first respondent is illegal, without jurisdiction, arbitrary and that no appeal is maintainable before the first respondent under Sections 41(1), (2). It is also contended that Section 74(1) is a bar to invoke the jurisdiction of the firs respondent. It is not a termination of an employee, who has been appointed validly, but it is a cancellation of the very appointment, which is in violation of the statutory rule and by-law and without sanction of the appropriate authority. It is contended that the 2nd respondent has been appointed illegally, which appointment will not confer any right on the 2nd respondent.
6. The first respondent by the impugned proceedings allowed the appeal and directed reinstatement. The first respondent has incidentally recorded a finding that the 2nd respondent has not been afforded an opportunity and the objection submitted by the 2nd respondent to the show cause notice has not even been referred to and the petitioner did not wait for 30 days after having issued a show cause notice calling upon the 2nd respondent to file his objections giving 30 days, if any. According to the first respondent, the order impugned is violative of principles of natural justice and, therefore, the first respondent has rightly set aside the order of dismissal.
7. It is the contention of the learned counsel for the petitioner in this writ petition that the 2nd respondent cannot invoke the jurisdiction of the first respondent under Section 41 and the remedy of appeal, if any, is available only under The Tamil Nadu Co-operative Societies Act. It is also contended that the 2nd respondent has not been appointed validly, but his appointment being illegal, termination is necessitated. According to the writ petitioner, the 2nd respondent has been appointed by the then Board of Directors without reference to employment exchange and in violation of Rule 149 as well as the guidelines issued by the State Government and sanction. In other words, it is contended that the very appointment of the 2nd respondent is nonest in law as it is illegal and the order of appointment has been passed in violation of by-laws of the society as well as The Tamil Nadu Co-operative Societies Rules.
8. In this respect, the attention of this Court is drawn to the order passed in W.P. No. 16744/98 preferred by one K. Vijayakumar against the very same writ petitioner society in respect of an identical order dispensing with his services. There is no difference between the petitioner in W.P. No. 16744/98 as well as the 2nd respondent herein. This Court by order dated 29.6.99 held thus:-
“2) The petitioner had been appointed by the Tindivanam Co-operative Housing Society without following the procedure prescribed. It is pointed out that without calling for nominations from the Employment Exchange, the petitioner and one other person have been appointed, which is illegal and which according to the respondent/society would show not only the illegal and back door entry, but also results in violation of Article 14 and 16 of The Constitution. Therefore, the impugned order has been passed on 29.9.1998 and the respondent had been paid one month pay in lieu of notice. Being aggrieved, the present writ petition has been preferred.
3) The learned counsel for the petitioner relied upon the order passed by this court in W.P. No. 16083 of 1998 wherein an identical order passed by the same second respondent/society has been quashed by this Court and direction had been issued to the second respondent to proceed afresh. It is to be pointed out that there is no factual dispute and it is not the contention of the petitioner that he had been sponsored by the Employment Exchange. Admittedly, the petitioner had not been sponsored by the Employment Exchange and he had got himself appointed by way of back door entry. When there facts are not in dispute, the question of granting an opportunity will not arise as a notice of termination has been issued and one month salary in lieu of notice has been paid to the petitioner.
4) I do not find any illegality with the order passed by the second respondent. It is also made further clear by the second respondent that in future it is open to the petitioner to apply after registering himself with the Employment Exchange. Therefore, the petitioner is not denied of his employment opportunity once and for all. In the circumstances, the writ petition is dismissed. Consequently, W.M.P. No. 25276 of 1998 is also dismissed. No costs.”
9. The above order is heavily relied upon by the learned counsel for the petitioner as the same pronouncement squarely applies on all fours to the facts of the present case. There is merit in the contention advanced by the learned counsel for the petitioner.
10. The order of appointment of the 2nd respondent being illegal and no right has accrued to the 2nd respondent by virtue of an illegal appointment and the appeal preferred by the 2nd respondent is not maintainable as it is an order dispensing with the service or termination simplicitor of the services of an employee, which is void ab initio or illegal or nonest. The 2nd respondent could invoke the jurisdiction of the first respondent only if there is a valid appointment in his favour or illegal termination of valid appointment. Appointment of the 2nd respondent without consulting the employment exchange, without getting the prior approval of the Registrar and is in contravention of Rule 149 (3) (a), (b) and (c) of The Tamil Nadu Co-operative Societies Act. The view of the first respondent that a right has accrued to the 2nd respondent cannot be sustained in law as well as on facts. The appointment of the 2nd respondent by the then office bearers of the petitioner-society is illegal, nonest as it is in violation of the by-laws as well as the rules framed under the Tamil Nadu Co-operative Societies Act and it was made without prior approval of the appropriate authority and beyond sanctioned strength is clear. Therefore, the very appointment itself being illegal, under Sections 41(1) or (2) of The Tamil Nadu Shops and Establishments Act no appeal is maintainable. The view of the first respondent in this respect cannot be sustained and the proceeding of the first respondent is liable to be quashed.
11. When the appointment itself is illegal and void, the 2nd respondent workman cannot approach the first respondent nor he could complain that the order impugned is an illegal termination nor it could be treated as punitive or illegal. The termination in this case, as already pointed out, is a termination simplicitor or dispensing with the service of a person, who has not been appointed validly and who has not acquired any right to the post. The order passed by the first respondent, Deputy Commissioner of Labour under Section 41(2) is illegal and suffers with error apparent on the face of the record and it has to be quashed. As no valid right has accrued to the 2nd respondent in respect of the post in which he was appointed temporarily and for a fixed period and even such appointment being invalid and nonest, the 2nd respondent cannot move the appellate authority complaining non employment or illegal termination.
12. The remedy of appeal could be invoked under Section 41 of The Shops and Establishments Act if there is a valid appointment. If the appointment itself is illegal or void, it will not confer any right. In respect of such illegal appointment no right accrue to the individual to the post and, therefore, no question of issuing a show cause notice or holding an enquiry or giving a reason would arise. The very appeal of the 2nd respondent under Section 41(2) is not maintainable. The 2nd respondent not being a valid appointee by the competent authority and his appointment being not in accordance with the by-laws of the society as well as The Co-operative Societies Act, it follows automatically that the appointment of the 2nd respondent being nonest and illegal, no right accrues to him and, therefore, invocation of Section 41(2) of The Shops and Establishments Act by the 2nd respondent itself is without jurisdiction.
13.In fact, a Full Bench of this Court in a recent pronouncement in Justin Vs. Registrar of Co-operative Societies reported in 2002 (4) CTC 385 had occasion to consider identical appointments so made in innumerable co-operative Societies by an incompetent authority and without permission of the Registrar and, consequently the terminations made were sustained by this Court. The said pronouncement also applies to the facts of this case. The termination being a valid and reasonable cause and not for misconduct, the second respondent has acted with illegality and in excess of jurisdiction in interfering.
14. In the circumstances, following the judgment made in W.P. No. 16744/98 and the pronouncement of the Full Bench in JUSTIN VS. THE REGISTRAR OF COOPERATIVE SOCIETIES reported in 2002 (4) CTC 385, the proceedings of the first respondent impugned in this writ petition is quashed and the writ petition is allowed.
15. In the result this writ is allowed as prayed for. Consequently, connected miscellaneous petitions are closed. The parties shall bear their respective costs.