@JUDGMENTTAG-ORDER
C.S. Karnan, J@mdashThe petitioner submits that on 16.12.1991, the first respondent was engaged as a Clerk on daily wages basis at the rate of Rs. 25/- per day. The appointment of the first respondent was made by the then Special Officer. The first respondent appointment was made against Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988. His date of birth was 26.02.1958 and hence, on the date of appointment, he was over aged as he has crossed 30 years which was the cut of age for BC candidates and he was also not sponsored through Employment Exchange. The petitioner further submits that since 01.10.1996, the first respondent has been receiving a consolidated pay of Rs. 850/- per month. The petitioner further submits that on 03.09.2001, the first respondent approached the second respondent for the purpose of getting permanent status of Workmen under Act 46 of 1981. By receipt of a letter dated 06.09.2001, the second respondent directed the petitioner to submit explanation regarding Conferment of Permanent Status as Workmen to the first respondent. On 10.10.2001, the petitioner society submitted explanation denying alleged entitlement of the first respondent under Act 46/1981. On 26.11.2001, the first respondent submitted a reply containing false and untenable allegations. On 19.12.2001, the petitioner-Society submitted the Rejoinder containing the following objections:--
"(a) The first respondent who alleged have been as an employee of erstwhile Co-operative Society at Virudhachalam the Tacal Units Employees Coop. Thrift and Credit Society Ltd., No. F.K. 28, Virudhachalam and his termination of service from that Society has nothing to do with the appointment in petitioner''s society. Moreover, after the closure of the said Society and after the expiry of several years, the first respondent approached the petitioner''s society as a fresh candidate and he was also engaged on daily wages basis only on humanitarian basis.
(b) The first respondent is aged 34 years as on the date of his engagement in the petitioner Society on 16.12.1991. Moreover his date of birth is 26.02.1958. As a BC Candidate, he does not possess the required 30 years of age as on the date of appointment."
2. The petitioner further submits that the first respondent was not sponsored through Employment Exchange. Hence, his engagement as a Clerk in the petitioner-Society will amount to irregular appointment and also against Rules 149 of the Tamil Nadu Co-operative Societies Act, 1988. The petitioner further submits that without admitting that the first respondent was engaged as Clerk in the petitioner Society, he cannot claim the status of regular employee for the reason that he was not appointed according to Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988. Since he was not appointed as per Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988, he cannot claim as a permanent employee or scale regularization under Act 46 of 1981. The petitioner further submits that the first respondent was engaged in the petitioner''s Society on 16.12.1991 vide G.O.Ms. No. 86, Cooperative Food and Consumer Protection Department, dated 12.03.2001. The purport of the said G.O. was to regularize irregular appointments made between the periods 09.07.1982 to 11.03.2001. The said G.O. was challenged and ultimately a Landmark judgment was given by the Hon''ble Court and the same was reported in
3. The petitioner further submits that despite the several valuable and legal contentions submitted in the light of G.O.Ms. No. 86, dated 12.03.2001 and also as per Rules 149 of Tamil Nadu Co-operative Societies Rules, 1988, the second respondent has not understood the scope and the case of the petitioner in proper perspective and thus committed grave error in conferring permanent status to the first respondent, through his order was dated 15.04.2002. The petitioner further submits that on 24.10.2002, the Hon''ble First Bench of this Court, delivered a judgment upholding the said G.O.Ms. No. 86, dated 12.03.2001 and specifically the verdict in Clause VII of the said judgment reported in
"That either in the Provisions of Tamil Nadu Industrial 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 qualification or beyond the cadre strength for the period from 09.07.1980 to 11.03.2001. This is enquiry applicable to the staff appointed to the Co-operative Societies. Otherwise then through Employment Exchange for the period from 12.03.2001 onwards."
In view of the said judgment also, the order of the second respondent dated 15.04.2002 becomes a nullity and cannot be enforceable. The petitioner further submits that after the said judgment in batch of writ petitions have approached the Government Pleaders'' Office for seeking legal opinion in the matter of regularization relating to the first respondent. By a letter dated 27.12.2002, Mr. M.S. Palanisamy, the then Additional Government Pleader of High Court gave a detailed legal opinion advising as not to implement the second respondent''s order dated 15.04.2002. This being so the first respondent who is also bound by the judgment of this Court in W.A. No. 2501 of 2001 batch extended scant respect and disobeyed the order of the Court by filing I.D. No. 181/2004, on the file of the Labour Court, Cuddalore claiming for alleged arrears of salary amount of Rs. 4,14,929/- together with interest at the rate of 15% per annum and the same is pending. The petitioner further submits that the first respondent filed I.D. No. 181/2004 on 15.04.2004 and he filed counter statement on 02.08.2004. Trial is over and at any moment, the Labour Court, Cuddalore would give its verdict. At this juncture, even though he brought this to the notice of the Labour Court about the judgment of this Court reported in
4. The highly competent counsel Mr. V. Durai Solaimalai appearing for the petitioner submits that the first respondent was engaged as a Clerk on daily wages basis at the rate of Rs. 25/- per day. The appointment of the first respondent was by the then Special Officer. The appointment of the first respondent had been made against Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988. His date of birth was 26.02.1958 and at the time of appointment, the employee had crossed 30 years in age which was the cut of age for B.C. Candidates. Besides he was also not sponsored through Employment Exchange. From 01.10.1996, the employee has been paid a consolidated pay of Rs. 850/- per month. Under the circumstances, the employee had filed an application before the second respondent, viz., Labour Inspector, Villupuram. On the said application, the petitioner had filed an explanation and opposed the permanent status of the employee. The employee also worked with the Tacal Units Employees Co-operative Thrift and Credit Society, Virudhachalam. At the time of appointment, he was working on daily wage basis and the employee''s age was about 34 years which was more than the cut of age of 30 years fixed for Backward Community and hence, his employment is not valid. The mode of Employment should be made through Employment Exchange and as such, the first respondent''s employment is irregular and not sustainable under Tamil Nadu Co-operative Societies Act, 1988. As such, the employee cannot claim the status of regular employee as per Rule 149 of the Tamil Nadu co-operative Societies Rules.
5. The highly competent counsel appearing for the petitioner further submits that this Court had passed a judgment, wherein it was held that for irregular appointment conferment status as workmen under the Act 46/1981 will not apply. Without following G.O.Ms. No. 86, dated 12.03.2001 and also as per Rules 149 of the Tamil Nadu Co-operative Societies Rules, 1988, the impugned order dated 15.02.2002 has been passed, which is not suitable for execution. Further, the first respondent has filed an I.D. No. 181 of 2004, on the file of Labour Court, Cuddalore and claiming arrears of salary with interest on the basis of the impugned order passed by the second respondent. In support of his contention, the highly competent counsel has cited the following judgment:--
"Tamil Nadu Co-operative Societies Act, 1983 - T.N. Cooperative Societies Rules, 1988 - T.N. Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 - Industrial Dispute Act, 1947, Section 25F - Regularization of services - writ petitions against Co-operative Society maintainable in exceptional cases - As, in present case, involving interpretation of intricate questions of law, and affecting thousands of employees - Held, regularization cannot be made in cases when the initial entry was found to be totally illegal or in blatant disregard of al the established rules and regulations."
Hence, the highly competent counsel entreats the Court to allow the above writ petition.
6. The highly competent senior counsel Mr. Venkataramani appearing for the first respondent submits that he had completed pre-university course and as such, he is suitable for the clerical post. The first respondent has been appointed on 16.12.1991 with the petitioner''s Society on the basis of daily wages i.e., Rs. 25/- per day. He has been working upto 30.09.1996 in the said position. From 01.10.1996, he has been paid by consolidated amount extending for a period of 10 years. The first respondent had joined with the Tacal Units Employees Co-operative Thrift and Credit Society, Virudhachalam as a Clerk from 02.06.1983 and he had rendered service upto 30.11.1985 without any adverse remarks. The said Society viz., Tacal Units Employees Co-operative Society, Virudhachalam, incurred heavy loss. As such, the said Society has become defunct, hence, he was compulsory relieved from the job. The first respondent had disclosed this fact to the petitioner at the time of employment. The petitioner, after scrutinizing the first respondent''s testimonials including educational qualification and birth certificates, had appointed him on 16.12.1991. Thereafter, from 01.10.1996, he has been paid a sum of Rs. 850/- per month as a consolidated payment/salary.
7. The highly competent senior counsel appearing for the first respondent further submits that if the employee is working with another Society and if the said Society incurs loss and becomes defunct, then the employee can join with another Society without following any norms. In the instant case, the employee had been appointed on 02.06.1983 through the Employment Exchange. As such, the first respondent is the erstwhile employee with another Society. Therefore, question of violation of the Rules 149 of the Tamil Nadu Co-operative Societies Rules, 1988, does not arise. Further, the age limit is not applicable in the instant case since the first respondent had rendered service for more than 5 years with another Cooperative Society. Therefore, the first respondent was not a fresh candidate and he is a well experienced candidate. Therefore, the Society Rules cannot be applied in the instant case. Further, the first respondent''s job is to provide loans to the farmers and recover the same from them and as such, the employee rendered excellent service to the petitioner''s society without any fault or blemish. The employee possesses more than the required educational qualification. The employee had tendered service without a break continuously. His service with the superior Officers was rendered with entire satisfaction. In support of his contentions, the highly competent counsel has cited the following judgment:--
Civil Appeal No. 4784 of 2007, dated 27.03.2015
.... 18. In the present case, on an anxious and careful scrutiny of the words used in the order, there can be no quarrel over the fact that previous misconduct and the punishment visited to the respondent have been stated. The decision-making process of the Committee has been reflected in the order. It included the disciplinary proceedings, personal records and the reputation. The reputation here has in segregable nexus, as is seen, with his ACRs and poor performances. The use of words like "inefficiency" and "not fit" cannot be put on a pedestal to confer on them such status so that they convey the meaning of "stigmatic". It cannot be remotely so. On the contrary, the order in R.K. Panjetha (supra) was ex facie stigmatic. It is worth nothing that the learned Single Judge has drawn a parity solely on the ground that the relationship between an employer and employee is common and the employer PSEB has passed the order on two different occasions in respect of two different employees. Their status is absolutely irrelevant for the purpose of determination of the controversy in question. It is the nature of order which will judge its character, namely simpliciter or stigmatic. The learned counsel for the respondent has canvassed with immense enthusiasm that one of the punishment has been set-aside. Be that as it may, in such a case it will not make any difference. It cannot be said there is non application of mind. The entire record has been scrutinized, valid punishments have been taken into consideration and the ACRs have been critically scrutinized. The order, according to us, dwells totally in a different realm that the order passed in R.K. Panjetha''s case. The distinction is obvious and the same has been obviously missed by the High Court, which makes its order fallacious."
Hence, the highly competent senior counsel appearing for the first respondent entreats the Court to dismiss the above writ petition.
8. The highly competent Additional Government Pleader Mr. P. Sanjay Gandhi appearing for the second respondent submits that the second respondent had considered the averments of both sides and on hearing the evidence of the employee and on cross-examination made by the petitioner, the order has been passed. It was observed that the employee had rendered service from the date of employment for more than 480 days continuously out of 24 calendar months. Hence, the second respondent has given findings that the first respondent is entitled for obtaining permanent status under Section 3(2) of the Tamil Nadu Industrial Establishments Conferment of Permanent Status to Workmen Act, 1981. As such, the second respondent has passed a meritorious order.
9. From the above discussion, this Court is of the view that:--
(i) The first respondent has completed pre-university course and he belongs to the Backward Community. Originally, he had joined with Tacal Units Employees Co-operative Thrift and Credit Society Ltd., Virudhachalam on 02.06.1983. As such, the first respondent had been appointed within the age limit through Employment Exchange. The entire factual position had been exposed to the petitioner and also required testimonials were submitted and the same was scrutinized by the petitioner and only then the first respondent was appointed on 16.12.1991 as a Clerk on a daily wages basis at the rate of Rs. 25/- per day. The method of appointment cannot be considered as an irregular appointment since no defect can be pointed out. Besides the employer and employee have not committed any irregularity for the said mode of appointment.
(ii) In the instant case, the employer and employee have not committed any irregular or illegality under any criminal law. Hence, the petitioner had appointed the first respondent on 16.12.1991, in a vacancy in the pursuit of better administration of the Society. The same was effectively done by the employee/first respondent and after rendering his long service, the petitioner cannot take a stand that the appointment of the first respondent is irregular, and this could only be considered as an afterthought.
(iii) The petitioner''s submission is that the first respondent had not been appointed as per Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1948. In the instant case, the employee had been appointed initially at Tacal Units Employees Co-operative Thrift and Credit Society, Virudhachalam, on 02.06.1983 and he had rendered service upto 30.11.1985 without any adverse remarks and subsequent to the closure of the said Unit, the first respondent had joined the petitioner''s Society on 16.12.1991. As such, as the initial appointment has been made through Employment Exchange and as his age was well within the limit fixed for Backward Community and as no violation of Rule 149 of the Tamil Nadu Co-operative Societies Rules has been made, the contention raised by the petitioner at this belated stage is inappropriate.
(iv) The first respondent herein has been appointed at the Cooperative Society on 16.12.1991 as a Clerk. The Appointing Authority/Employer, both have effective capability and administering the Society''s administration with success for the public as of now. Now, the employer has taken a stand that the first respondent''s appointment is being irregular. This stand is against the principles of natural justice. The employee has always rendered an appropriate service. His specific service with the Department is to advance loans to the farmers and to collect the same from them. Hence, if such an assignment has been moving smoothly and successfully, without any hitch whatsoever, it proves the efficacy of the concerned Clerk. On the other hand, if there was something adverse going on, it will be reflected in many ways and with consequent repercussions and this has not been the case so far, as such, this absolves him from any accusations.
(v) The petitioner has stated in his affidavit that the appointment of the first respondent is irregular, but the same had not been questioned by the Superior Officer of the petitioner/Employer as of now. Therefore, the petitioner''s contention runs against his own opinion and these contentions have been made in order to avoid the granting of relief to the employee, who had rendered prompt and dedicated service for the exclusive period.
10. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on all sides and on perusing the typed-set of papers and this Court''s views mentioned above as (i) to (v), and on perusing the impugned award passed by the second respondent, the above writ petition does not possess sufficient force to allow it. Hence, the above writ petition is dismissed and the impugned order passed by the second respondent in his proceedings No. A/4570/2001, dated 15.04.2002 is confirmed. This Court directs the petitioner herein to execute the second respondent''s award within a period of 30 days from the date of receipt of a copy of this order. If the petitioner is not satisfied with the findings of this Court, the petitioner is at liberty to file an appeal after executing the impugned award of the second respondent dated 15.04.2002 without prejudice.
11. In the result, the above writ petition is dismissed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
