Madras High Court
M.Visuwasam Samuelraj vs The Joint Registrar Of Co-Operative ... on 25 January, 2022
Author: Anita Sumanth
Bench: Anita Sumanth
W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:25.01.2022
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018
and
W.M.P.(MD).Nos.8824 to 8829 and 10531 to 10533 of 2018
M.Visuwasam Samuelraj ... Petitioner in W.P.(MD).No.11571 of 2018
S.Shanthakumar Rajasingh ... Petitioner in W.P.(MD).No.11572 of 2018
P.T.Alwan ... Petitioner in W.P.(MD).No.11573 of 2018
vs.
1.The Joint Registrar of Co-operative Societies,
Thoothukudi District.
2.The Deputy Registrar of Co-operative Societies,
Thiruchendur,
Thoothukudi District.
3.0.212 The Nazareth Urban Co-operative Bank Limited
represented by Managing Director,
Nazareth 628 617,
Thoothukudi District. ... Respondents
in W.P.(MD).Nos.11571 to 11573 of 2018
PRAYER: Writ Petitions are filed under Article 226 of the Constitution
of India, praying this Court to issue a Writ of Mandamus, forbearing the
second and third respondents from interfering with the petitioners'
functioning as Assistants in the third respondent Bank in pursuant to the
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W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018
petitioners' appointment order dated 27.03.2018 either by preventing the
petitioners from signing the Attendant Register or from carrying out their
duties as Assistant and further directing the third respondent to pay the
salary of the petitioners in the post of Assistants with effect from
28.03.2018.
For Petitioners : Mr.K.Vinoharan
for M/s. I.Robert Chandrakumar
For R1 & R2 : Mr.A.K.Manikkam
Special Government Pleader
For R3 : Mr.D.Shanmugaraja Sethupathi
O.212, the Nazareth Urban Co-operative Bank Limited
represented by its Managing Director,
Nazareth,
Thoothukudi District. ... Petitioner in all three W.Ps.
vs.
1.The Assistant Commissioner of Labour (In-charge),
Authority under the Tamil Nadu Industrial Establishment
(Confirment of Permanent Status to Workmen) Act, 1981,
Thoothukudi.
2.S.Santhakumar Raajasingh
3.The Deputy Registrar,
Co-operative Society,
Tiruchendur.
R3 is suo motu impleaded vide Court
order dated 26.04.2018 in W.P.(MD).
No.9572 of 2018. ... Respondents in W.P.(MD).No.9572 of 2018
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W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018
1.The Assistant Commissioner of Labour (In-charge),
Authority under the Tamil Nadu Industrial Establishment
(Confirment of Permanent Status to Workmen) Act, 1981,
Thoothukudi.
2.M.Visuvasam Samuelraj
3.The Deputy Registrar,
Co-operative Society,
Tiruchendur.
R3 is suo motu impleaded vide Court
order dated 26.04.2018 in W.P.(MD).
No.9573 of 2018. ... Respondents in W.P.(MD).No.9573 of 2018
1.The Assistant Commissioner of Labour (In-charge),
Authority under the Tamil Nadu Industrial Establishment
(Confirment of Permanent Status to Workmen) Act, 1981,
Thoothukudi.
2.P.T.Alwan
3.The Deputy Registrar,
Co-operative Society,
Tiruchendur.
R3 is suo motu impleaded vide Court
order dated 26.04.2018 in W.P.(MD).
No.9574 of 2018. ... Respondents in W.P.(MD).No.9574 of 2018
PRAYER: Writ Petitions are filed under Article 226 of the Constitution
of India, praying this Court to issue a Writ of Certiorari to call for the
records relating to the impugned order passed by the first respondent
vide Nos.Na.Ka.E/969/2018, Na.Ka.E/970/2018 and Na.Ka.E/971/2018,
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W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018
dated 22.03.2018 and quash the same.
For Petitioner : Mr.D.Shanmugaraja Sethupathi
For R2 : Mr.K.Vinoharan
for M/s. G.Prabhu Rajadurai
For R3 : Mr.A.K.Manikkam
Special Government Pleader
COMMON ORDER
This batch of six writ petitions involves three filed by the O.212 the Nazareth Urban Co-operative Bank Limited (hereinafter referred to as 'Bank') and three filed by commission agents/collection agents, who have been engaged to procure business by way of deposits for the Bank.
2. The Bank challenges an order dated 22.03.2018 passed by the Assistant Commissioner of Labour in terms of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (hereinafter referred to as CoPS Act) dated 22.03.2018.
3. The arguments of Mr.A.K.Manikkam, learned Special Government Pleader, and Mr.D.Shanmugaraja Sethupathi, learned 4/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 counsel appearing for the Bank both of who defend the impugned order may be briefly summarised as follows:
(i) The agents have been appointed purely on temporary basis for scouting and canvassing deposits.
(ii) They are paid on commission basis as a percentage ie., 2.5% of the total collection of the deposits collected by them.
(iii). No Rules or Regulations have been either prescribed or followed by the Bank in appointing the agents as compared with a specific process that is followed, as prescribed in terms of Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988 (hereinafter referred to as Rules) in the case of regular employees of the Bank.
(iv). Though the remuneration paid to them may fall within the ambit of 'wages', there is no fixed salary that is paid and the amount paid fluctuates depending upon the collections made by them.
(v)(a). Though the agents are housed within the premises of Bank, they have no direct duties relatable to the activities of the Bank, except canvassing for deposits.
(b). Learned counsel for the agents, at this juncture would state that they have also been assigned certain other works in the Bank, however, this is unsupported by orders or other documents to establish 5/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 such engagements.
(vi). They are entitled to provident fund benefits in terms of the Employees Provident Fund Act, 1952 (hereinafter referred to as EPF Act) and a matching contribution is made by the Bank. However, this by itself, would not stand in the way of a determination that they are only commission agents and not regular employees.
(vii). There are no fixed working hours that apply to them as compared with regular employees.
(viii). No disciplinary control is exercised by the Bank over either them, or their activities and the extent of services rendered by them fall solely within the realm of deposit collection.
(ix) There are no minimum or maximum restrictions imposed in regard to the age of the agents.
(x) The Bank does not have any authority to direct their services per se, including the right of transfer.
4. Mr.D.Shanmugaraja Sethupathi, learned counsel would rely on the following decisions of the Hon'ble Supreme Court and Division Benches as well as single Judge of this Court to butress his submission that the collection/deposit agents constitute independent service 6/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 providers, and have no relation of master and servant with the Bank. There is thus no question of granting them the status of permanent employee and R1 has grossly erred in doing so.
(i) Canara Bank and others v. Appellate Authority and others (1981(2) LLJ 189);
(ii) Puri Urban Co-operative Bank v. Madhusudan Sahu and another (1992 (3) SC 323);
(iii) Indian Overseas Bank v. Workmen (2006 (3) SCC 729);
(iv) L.Justine and another v. The Registrar of Co- operative Societies (2002 (4) CTC 385);
(v) A.Umarani v. Registrar of Co-operative Societies (2004 (7) SCC 112);
(vi) R.Radhakrishnan v. Deputy Registrar of Co- operative Societies (2007 (6) MLJ 455);
(vii) Special Officer, Palayankottai Urban Co-
operative Bank Limited vs. Presiding Officer, Labour Court, Tirunelveli (2009 (4) MLJ 186);
(vii) The Registrar of Co-operative Societies v. M.Panneer Losini and others (2016 (3) LLJ 19);
5. Per contra, Mr.K.Vinoharan, learned counsel appearing for the employees would urge that the services of the employees spanning two decades must be seen in context. He would reiterate that they have been rendering services in other capacities such as cashier and jewel custodian as and when asked to by the Bank, however, conceding to the position that there is no document to evidence this submission. 7/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018
6. He would draw attention to the fact that subsequent to the passing of the impugned order, the agents have been appointed as Assistants and orders of appointments have been issued in all cases based upon a resolution passed by the elected body of the Bank.
7. It is on account of a dispute between the elected body and the Managing Director, the petitioner in these writ petitions that the present litigation has been preferred, the latter being of the view that the order of R1 confering permanent status was incorrect.
8. In conclusion he would plead that their services either be considered for regularisation or they be offered posts in existing vacancies.
9. I have heard learned counsel and carefully applied my mind to the issues that arise. Rule 146 of the Tamil Nadu Co-operative Societies Rules deals with the powers and functions of the Managing Director or the Chief Executive Officer and provides that the MD/CEO shall be the Chief Executive of the Society and shall carry and effect, resolutions passed by the Board that are in accordance with the Act, by-laws and 8/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 applicable Rules and Regulations.
10. Those Board resolutions that are, in his view, against the interests of the Society shall not be carried into effect. The locus of the petitioner, the Managing Director, to have questioned the resolution passed by the elected body of the Bank proposing to implement the impugned orders of R1 is thus unassailable.
11. Coming to the merits of the challenge itself, Section 3 of the CoPS reads as follows:
“3.Conferment of permanent status to workmen.
-- (1) Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty four calendar months in an industrial establishment shall be made permanent.”
12. There is no dispute that the Bank is an industrial establishment. The reference in Section 3 as above, to 'workman', connotes an employee who is on the regular rolls of an establishment.
13. A 'workman' is defined under Section 2(4) of the CoPS Act to 9/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 mean any person employed in any industrial establishment to do any skilled or unskilled, manua1, supervisory, technical or clerical work for hire or reward, whether the term of employment be express or implied, with some exclusions, such as those appointment is managerial, administrative or supervisory capacity.
14. The question that arises is whether an agent can be said to be an 'employee' of the Bank. It is in this connection that the description of services rendered by the agents and their service conditions, become relevant. A sample appointment order is extracted below setting out the terms under which the agent is employed:-
“e.f.1135/2018 et ehs;.05.04.2018 bghUs;: X212 ehrBuj; efu Tl;Lwt[ tA;fp eph;thff;FG jtwhd eph;thfk; (Mismanagement) kw;Wk; jkpH;ehL Tl;Lwt[r; rA;fA;fspd; rl;lk; kw;Wk; tpjpfSf;fF Kuzhf jpdrhp Brkpg;g[ Kfth;fis cjtpahsh;fshf epakdk; bra;J fhyKiw Cjpak; eph;zak; bra;Js;sJ bjhlh;ghf eltof;if vLj;jy;.
X.212 ehrBuj; efu Tl;Lwt[ tA;fpapy; jpdrhp Brkpg;g[ Kfth;fshf (Day Deposit Agent) fkp&d; mog;gilapy; gzpg[hpe;J te;j Kfth;fs; 1) jpU.gp.o.MH;thd;, 2) jpU.vk;.tpRthrk; rhKBty;uh$; kw;Wk; 3) jpU.v!;.rhe;jf;Fkhh; uh$rpA; MfpBahh;fis tA;fp eph;thff;FG jPhk ; hdk; vz;.1x ehs; 27.03.2018-d; go cjtpahsh;fshf gzp epue;juk; bra;J mth;fis cjtpahsh;fshf gzpg[hpa eph;thfk; jPh;khdk; epiwBtw;wp mDkjpf;fg;gl;lLs;sJ. fkp&d; mog;gilapy; gzpahw;Wk; itg;g[j; bjhif Kfth;fs; tA;fpg; gzpahsh;fs; my;y. nth;fSf;F itg;g[j; bjhif Brfhpg;g[f;F fkp&d; kl;Lk; tHA;f Btz;Lk;/ BtW ve;j gyd;fSk; tHA;f Tl;Lwt[ rA;fA;fspd; rl;l tpjpfs; kw;Wk; murhizfs; 10/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 gjpthsh; mDkjp vJt[k; <ny;iy vd;gJ eph;thff; TG cWg;gpdh;fs; kw;Wk; midtUf;Fk; bjhpa[k;. jkpH;ehL Tl;Lwt[r; rA;fA;fspd; rl;lk; kw;Wk; tpjpfs; murhizf;F tA;fp Jiz tpjpfSf;F g[wk;ghft[k; gjpthsUf;F jfty; bjhptpf;fhkYk; vt;tpj bjspt[iua[k; my;yJ mDkjp bgwhkhy; jpdrhp Brkpg;g[ Kfth;fSf;F Mjuthft[k; tA;fpapd; tpjpKiwfSf;F Kuzhft[k; tA;fp eyDf;F tpBuhjkhft[k; bray;gl;L cs;Behf;fj;JlDk; jd;dpr;irahft[k; jPhk ; hdk; epiwBtw;wg;gl;L jFjpapy;yhj gzpahsh; my;yhj egh;fSf;F gjtp epakdk; bra;J rk;gsk; tHA;f jPhk ; hdpf;fg;gl;Ls;sJ.
VdBt jkpH;ehL Tl;Lwt[r; rA;fA;fspd; rl;lj;jpw;Fk;, tpjpfSf;Fk; tA;fp Jiztpjp kw;Wk; murhizfSf;;F g[wk;ghf jpdrhp Brkpg;g[ Kfth;fis epue;juk; bra;Js;s jA;fsJ jiyikapyhd eph;thff;FG jPh;khdk; vz;.1X ehs; 27.03.2018I nuj;J bra;J mjw;fhd tpsf;fj;Jld; 7 jpdA;fSf;Fs; mwpf;if mDg;g bjhptpf;fg;gLfpwJ. Eph;zapf;fg;gl;l fhyf; bfLtpw;Fs; jA;fsplkpUe;J mwpf;if bgwg;glhtpoy; my;yJ vGj;J Kykhd Kfhe;jpuk; Vjk; bgwg;glhtpoy; jA;fsplkpUe;J mwpf;if mspf;f VJkpy;iy vdf; fUjp jA;fs; eph;thfj;jpd; kPJ chpa rl;lg;g{h;t eltof;if vLf;fg;gLk; vdj; bjhptpf;fg;gLfpwJ.”
15. A reading of the above would show that their appointment is purely temporary, not subject to rules and regulations, for salary that fluctuates upon the deposit collections, and liable for termination at any time without notice.
16. Most importantly, their appointment is non-exclusive and they are free to offer their services to any other entity or institution as they may desire. The question of them having been employed by the Bank for 418 days thus would not arise, as they are at liberty to have been engaged by any number of entities / individual, as may have solicited their 11/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 services.
17. The aforesaid differences and distinctions, have been noted in the case of Indian Overseas Bank (supra), in the context of jewel appraisers appointed by IOB, based upon which the Court held that the appraisers were not regular employees but independent agents.
18. At paragraph 18 of the judgment, the Bench states as follows:
“18. At this juncture the distinction between jewel appraisers and the regular employees of the bank can be noted.
Regular Employees Jewel Appraisers
1. Subject to qualification and 1. No qualification/age
age prescribed
2. Recruitment through 2. Direct engagement by the
Employment exchange/Banking local Manager
Service Recruitment Board.
3. Fixed working hours 3. No fixed working hours.
4. Monthly wages 4. No guaranteed payment, only
commission paid.
5. Subject to disciplinary 5. No disciplinary control.
control
6. Control/supervision is 6. No control/supervision over
exercised not only with regard the nature of work to be
to the allocation of work, but performed.
also the way in which the work
is to be carried out.
7. Wages are paid by the Bank. 7. Charges are paid by the
borrowers.
8. Retirement age 8. No retirement age.
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W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018
9. Subject to transfer 9. No transfer
10. While in employment cannot 10. No bar to carry on any carry on any other occupation. avocation or occupation.
Therefore, the jewel appraisers are not employees of the Bank.
19. I am thus of the categoric view that the agents do not have attributes of 'employees' and are not 'workman' for the purpose of the CoPS Act. The question of their regularisation thus, does not arise.
20. In light of my conclusion as aforesaid, I need make no reference to the submissions of learned counsel relating to the scourge of back door entrants, turning upon the judgments in A.Uma Rani vs. Registrar of Co-operative Societies (2004(7) SCC 112), L.Justin and another vs. the Registrar of Co-operative Societies (2002(4) CTC 385) and R.Radhakrishnan vs. Deputy Registrar of Co-operative Societies (2007(6) MLJ 455).
21. In light of the discussion as aforesaid, and having arrived at the conclusion that the petitioners are deposit agents, who receive only a percentage of the deposits as commission and who enjoy no master- servant relationship inter se the Bank, the question of regularisation of 13/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 their services does not arise. The conclusion of R1 to the effect that they constitute workman for the purposes of the Conferment of Permanent Status Act is, in my view, contrary to the facts and legal position and is hence, set aside.
22. The Mandamus as sought for by the agents forbearing the Bank from interfering with their services rendered as Assistants cannot be granted and impugned order dated 22.03.2018 is set aside.
23. As regards the prayer of the agents that they be considered for appointments as and when vacancies arise, they are always at liberty to respond to calls for appointments by the Bank as and when such calls are made.
24. The Writ petitions of the bank are allowed and those of the agents are dismissed. No costs. Consequently, connected Miscellaneous petitions are closed.
25.01.2022 Index :Yes Internet:Yes 14/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 akv Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To
1.The Joint Registrar of Co-operative Societies, Thoothukudi District.
2.The Deputy Registrar of Co-operative Societies, Thiruchendur, Thoothukudi District.
3.0.212 The Nazareth Urban Co-operative Bank Limited represented by Managing Director, Nazareth 628 617, Thoothukudi District.
4.The Assistant Commissioner of Labour (In-charge), Authority under the Tamil Nadu Industrial Establishment (Confirment of Permanent Status to Workmen) Act, 1981, Thoothukudi.
5.The Deputy Registrar, Co-operative Society, Tiruchendur.
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akv ORDER MADE IN W.P.(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 16/17 https://www.mhc.tn.gov.in/judis W.P(MD).Nos.11571 to 11573 and 9572 to 9574 of 2018 25.01.2022 17/17 https://www.mhc.tn.gov.in/judis