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1998 DIGILAW 1625 (MAD)

D. Selvaraj v. The Presiding Officer & Others

1998-11-26

N.V.BALASUBRAMANIAN, SHIVARAJ PATIL

body1998
Judgment :- N.V. Balasubramanian, J. This writ appeal is against the order of the learned Single Judge in W.P.No.17974 of 1995 dated 111. 1997. 2. The appellant before us is the writ petitioner and he filled the writ petition challenging the order of the Labour court Vellore in I.D.No.305 of 1993 dated 6. 1995. .3. The facts leading to the filling of the writ petition are that the appellant was employed as a casual labourer under the second respondent from the year 1983, and he was paid initially a daily wages of Rs.5/-, which was subsequently raised to Rs.15/-. The appellant registered his name in the Employment Exchange, Vellore and he was periodically renewing his registration. The second respondent terminated the services of the appellant in July, 1987 without issue of any prior notice or payment of compensation. The appellant thereupon approached the Labour Court by filling a petition under section 2(A)(2) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as ‘the Industrial Disputes Act’) claiming that his termination of service was nor valid and justifiable in law and the grounds on which his services were terminated, namely, that his appointment was irregular and his name was not sponsored by the Employment Exchange were also not valid in law. He pleaded that it is not necessary that for as appointment to be made in a Co-operative Society, the candidate’s name should be sponsored by the Employment Exchange and he pleaded that his termination without following the procedure stipulated under the provisions of section 25-F of the Industrial Disputes Act was illegal. 4. The second respondent filed a counter statement stating that the second respondent Society is governed by the provisions of the Co-operative Societies Act, 1983 (hereinafter to be referred to as ‘Co-operative Societies Act’). According to the second respondent, casual workers are employees who work only for few hours in a day and they are not employed in any regular capacity. According to the second respondent, the petitioner was employed only on daily wages basis and he was employed till July, 1987. According to the second respondent, casual workers are employees who work only for few hours in a day and they are not employed in any regular capacity. According to the second respondent, the petitioner was employed only on daily wages basis and he was employed till July, 1987. According to the second respondent, as per the directions of the Registrar of the Cooperative Societies, the persons sponsored by the Employment Exchange alone would be eligible for recruitment and since the name of the appellant was not sponsored by the Employment Exchange, his appointment was irregular and his termination from service did not amount to retrenchment within the meaning of the Industrial Disputes Act. .5. The Labour Court considered the matter. On behalf of the appellant he has examined himself as a witness and three documents were marked on his behalf. The second respondent management did not choose to examine any witness nor did it file any document before the Labour Court and the Labour Court on the basis of the evidence came to the conclusion that the appointment of the appellant was irregular and was opposed to guidelines issued by the Registrar of the Co-operative Societies which were issued in pursuance of the powers conferred on him under the rules framed under the Tamil Nadu Co-operative Societies Act. The Labour Court therefore held that the termination was in accordance with the rules and the petitioner was not entitled to any relief. Hence, an award was passed dismissing the claim made by the petitioner. 6. The appellant challenged the award of the Labour Court by filling the writ petition and in the affidavit filed in support of the writ petition, the appellant has stated that there were three other cases in I.D.Nos.299/93, 300/93 and 301/93 wherein the same Presiding Officer of the Labour Court, on similar set of facts, directed reinstatement of those employees with backwages and continuity of service and the three employees were also reinstated in service and they were paid backwages also, and the awards in the three I.D.cases aforementioned have become final. He therefore stated that the termination of the petitioner from service was against the principle of natural justice and it was in violation of the procedure prescribed in section 25F of the Industrial Disputes Act. He therefore stated that the termination of the petitioner from service was against the principle of natural justice and it was in violation of the procedure prescribed in section 25F of the Industrial Disputes Act. Learned Judge, before whom the writ petition came up for hearing considered the matter and following the decision of Gujarat High Court in Bhartiben Nanubhai v. State of Gujarath (1989 II LLN 371) and the decision of the Kerala High Court in the case of Koodaranji Service Co-op. Bank Ltd .v. M.N. Lissy (1993 II LLN 800), the learned Judge held that the appointment of the appellant was in contravention of the rules framed under the Co-operative Societies Act and the appointment was not proper and the termination was legal and correct. In this view of the matter, learned Judge dismissed the writ petition and it is against the said judgment, the present writ appeal has been preferred. 7. Learned counsel for the appellant submitted that the appellant was continuously engaged by the second respondent from August, 1983 and the fact that the Employment Exchange has not sponsored his name is a ground for termination of his service. It was also pleaded that three other employees who were terminated on the same ground have filed claim petitions in I.D.Nos.299/93, 300/93 and 301/93 on the filed claim presiding Officer, Labour Court. Vellore and they were granted the relief of reinstatement with continuity of service, but the petitioner was denied the relief. Learned counsel for the appellant relied upon the following decisions(1) Nayagarh Co-op, Central Bank v. Narayan (AIR 1977 Supreme Court 112), (2) S.Thangappan and Others v. the Government of Tamil Nadu, Rep, by the Commissioner & Secretary, Rural Development, etc. (1986 TLNJ 153) (3) Punjab L.D.& Ltd, etc. etc. v. P.O. Lab Court, etc, etc, (1990 (2) LLJ SC (FB) 70), (4) D.K. Yadav v. J.M.A. Industries Ltd. (1993) 3 SCC 259 ), (5) The Pre. SRI. Ran, Co-op.U.B.Ltd. v. The P.O.L.C. madurai, K. Nagarajan (1996(1) LLJ 216), (6) The Maduramangallam Co-operative Agricultural BankLtd. Etc. v. K.S. Selvarani and Others (1996 Writ L.R.676) and (7) Excise Supdt. Malkapatnam v. K.B.N. Visweshwara Rao (1996)6 SCC 216 ) and submitted that his termination was not valid. SRI. Ran, Co-op.U.B.Ltd. v. The P.O.L.C. madurai, K. Nagarajan (1996(1) LLJ 216), (6) The Maduramangallam Co-operative Agricultural BankLtd. Etc. v. K.S. Selvarani and Others (1996 Writ L.R.676) and (7) Excise Supdt. Malkapatnam v. K.B.N. Visweshwara Rao (1996)6 SCC 216 ) and submitted that his termination was not valid. Learned counsel for the appellant also relied upon the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and submitted that the work done by the petitioner would fall within the scope of ‘unskilled office work’ within the meaning of section 2(i) of the said Act, and therefore, it is not necessary that the name of the petitioner should be sponsored by the Employment Exchange. 8. Learned counsel for the second respondent on the other hand, submitted that the appointment of the appellant was not in accordance with the Tamil Nadu Co-operative Societies Rules, 1988. He referred to rule 149(3) of the Tamil Nadu Co-operative Societies Rules, 1988 and submitted that no direct appointment to any post in the Cooperative society can be made except by calling for a list of eligible candidates from the Employment Exchange and submitted that the appellant was appointed in contravention of rules framed under the Co-operative Societies Act, and therefore the appointment of the petitioner was irregular. Learned Counsel also referred to the typed papers filled before us by the appellant and submitted that the documents show that the appellant was employed only as a casual labourer and he was paid emoluments for the number of days he worked and he therefore submitted that the appellant was an employee on daily wages basis and he has no right to the post and the concept of retrenchment would not extend to the termination of such employees. Learned counsel relied upon the following decisions: (1) Himanshu Kumar Vidyarthi v. State of Bihar (AIR 1997 Supreme Court 3657), (2) Workmen of English Electric Co. v. Indl. Tribunal (1990 (Vol., 76) FJR 373), (3) Rajasthan Adult Education Assocn, v. Ashoka Bhatacharya (AIR 1998 Supreme Court 336). (4) Anil Bapuraokanase v. Krishna Sahakari Sakhar Karkhana Ltd. (AIR 1997 Supreme Court 2698), (5) Arun Kumar Rout v. State of Bihar (AIR, 1998 Supreme Court 1477) (6) Chagan Lal Sethi v. State of Rajasthan (1996 (1) LLN 222), (7) Koodaranji Service Co.op. Bank Ltd. v. M.M. Lissy (1993 II LLN 800). (4) Anil Bapuraokanase v. Krishna Sahakari Sakhar Karkhana Ltd. (AIR 1997 Supreme Court 2698), (5) Arun Kumar Rout v. State of Bihar (AIR, 1998 Supreme Court 1477) (6) Chagan Lal Sethi v. State of Rajasthan (1996 (1) LLN 222), (7) Koodaranji Service Co.op. Bank Ltd. v. M.M. Lissy (1993 II LLN 800). (8) B.N. Balsara v. State of Gujarat (1989 II LLN 371), and (9) Metal Power Co. Ltd, & Anr. v. State of Tamil Nadu & Anr. (1985 II LLJ 376). 9. We have carefully considered the rival submissions made by the learned counsel for the parties. We are of the view that it is not necessary to decide the question whether the termination of the petitioner would amount to retrenchment within the meaning of section 2(00) of the Industrial Disputes Act. The second respondent has not let in any evidence either oral or documentary before the Labour Court to prove the terms of contract of employment between the second respondent and the appellant and it has also not proved whether the contract of employment contained any term to provide the termination of service on the expiry of the period of the contract. Secondly, the appellant has raised a specific plea in the affidavit filed in support of the writ petition that there are other three cases wherein also three other employees whose names were not sponsored by the Employment Exchange and whose services were terminated on the ground that their names were not sponsored by the Employment Exchange were considered by the Labour Court in I.D.Nos.299, 300 and 301 of 1993 and the Labour Court held in those cases that the termination of services was illegal and the workers would be entitled to be reinstated with full backwages. Though learned counsel for the second respondent sought to distinguish those cases on the ground that before the Presiding Officer. Labour Court in the other cases relevant rules were not referred to, however, there is no serious challenge that the factual situations prevalent in both the sets of cases are same and hence in our opinion when the Labour Court has held that the termination of services of three employees concerned in the aforementioned cases would amount to ‘termination’ within the meaning of section 2(00) of the Industrial Disputes Act, the appellant placed in the same factual situation should also be entitled to a similar relief. We hold that once the factual situation are same, there should not be any difference in treatment between two set of employees working in the same organization. That apart, Rule 149(3) of the Tamil Nadu Co-operative Societies Rules on which reliance was placed by the learned counsel for the second respondent came into force in the year 1988, long after the termination of the employment of the appellant and it has no application to the facts of the case. The appellant was employed in the year 1984 when the provisions of the Madras Co-operative Societies Rules, 1963 which were framed in exercise of powers conferred under section 119 of the Madras Cooperative Societies Act, 1964 were in force. It is fairly submitted by the learned counsel for the second respondent that under the provisions of the Madras Co-operative Societies Rules 1963. there is no provision to the effect that the name of the candidate should be sponsored by he Employment Exchange before an appointment to a Cooperative Society would be made. Learned counsel submitted that there were certain instructions issued by the Registrar of Co-operative Societies to the effect that the appointment to any post in the Co-operative Societies can be made only if the name of the candidate was sponsored by the Employment Exchange. He also submitted that under the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, the appointment in any establishment coming within the scope of the Act, should be made only in case the name of the person was sponsored by the Employment Exchange. In our view, it is not necessary to express any opinion on the question whether the appointment of the appellant was in contravention of the Circular issued by the Registrar of Co-operative Societies or was in contravention of the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. In our view, it is not necessary to express any opinion on the question whether the appointment of the appellant was in contravention of the Circular issued by the Registrar of Co-operative Societies or was in contravention of the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. We are of the View that the Labour Court in the case of three other employees who were placed in the same factual situation has passed an award in I.D.Nos.299,300 and 301 of 1993 and directed reinstatement of those three employees and when those three employees were also reinstated in service and the award of the Labour Court has become final, the appellant placed in the same factual situation should also be extended similar treatment and it is not possible to assume, in the absence of any evidence let in by the second respondent before the Labour Court that the appointment of the appellant was irregular and the terms of the contract of employment stipulated that his services would be terminated at the end of the contractual period of employment. It is also not possible to assume that the appellant was only a casual employee on the basis that the appellant was described as a casual employee in the pay bills prepared by the second respondent. Therefore, without deciding the larger question whether the appointment of the appellant was irregular and whether the appointment of the appellant was made in contravention of the Circular issued by the Registrar of the Co-operative Societies or it was a violation of the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, we are of the opinion, the benefit of the order of the Labour Court which was given to other three employees in the same organization should also be given to the appellant. In this view of then matter, we hold that the view of the learned Single Judge that the appointment of the appellant was irregular and the termination was justified is not correct on the facts and circumstances of the case. In the view we have taken, it is not necessary to consider the various decisions relied upon by both the counsel for the parties. In the view we have taken, it is not necessary to consider the various decisions relied upon by both the counsel for the parties. Considering the situation that the second respondent is a Co-operative Society and that the services of the appellant were terminated in July, 1987 which was challenged only in the year 1993 and award was passed in the year 1995, we are of the opinion that the appellant would be entitled to reinstatement of service without backwages, but would be eligible to the benefit of continuity of service. Hence, we set aside the order of the learned Single Judge passed in W.P.No.17974 of 1995 dated 111. 1997 and allow the writ appeal filed by the appellant to the extent indicated above. However, in the circumstances, there will be no order as to costs.