Madras High Court
V. Jayakumar, N. Maruthappan And J. ... vs The Joint Registrar Of Cooperative ... on 20 August, 2002
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER V. Kanagaraj, J.
1. All the above writ petitions have been filed praying to issue Writs of Certiorarified Mandamus to call for the records of the first respondent in Reference No.Lr.Rc.4821/2002/C3, dated 18.7.2002 and the consequential order passed by the second respondent in Reference RC.No.420/2000 dated 24.7.2002 and quash the same and consequently direct the respondents to reinstate the petitioner in W.P.No.32457 of 2002 as the Assistant Secretary and the petitioners in W.P.Nos.32458 and 32459 of 2002 as the Ledger Clerks in The Government Telecommunication Employees cooperative Society Limited with backwages, all consequential and monetary benefits.
2. For the sake of convenience and easy reference, all the above writ petitions are respectively referred to as the first, second and third writ petitions and the petitioners therein as the first, second and third petitioners respectively in the order given above.
3. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that all the petitioners were appointed in the second respondent Cooperative Society respectively as Assistant Secretary and Ledger Clerks in the vacant places and they were all confirmed in their respective posts in accordance with Bye-law 65(6)(1) of the second respondent Society; that the first respondent addressed a letter to the second respondent in reference Lr.Rc.No.4821/2002/C3, dated 18.7.2002 thereby stating that certain irregularities have been noticed in the recruitment of the staff during 1997-2000 and required the second respondent to remove the petitioners along with three others from their services.
4. It further comes to be known that regarding the first petitioner, the irregularity pointed out by the first respondent is that he produced a Service Certificate of the year 1995 while applying for the post of Assistant Secretary with the application dated 25.12.1997 and that he obtained his B.A.(History)degree through Annamalai Open University in the year 1992 and M.A.(History) through Annamalai University (Correspondence Course) in May, 1996 and that the degrees obtained from Annamalai Open University were not recognised upto 26.8.1997 and that he did not produce the relieving order from his previous employer i.e. The Simpson & Group of Companies Employees' Cooperative Society; that regarding the second petitioner the irregularity pointed out is that he crossed the age of 30 years at the time of his appointment in the Government Telecommunication Employees Cooperative Society and regarding the third petitioner it is stated that he produced the Post Graduate Diploma in Cooperative Management issued by the Annamalai University (through Correspondence) in May, 1996 and the degrees obtained from Annamalai Open University were recognised only with effects from 26.8.1997 in G.O.Ms.No.216, Personnel and Administrative Reforms (R) Department, dated 26.8.1997.
5. It further comes to be known that consequent to the said communication by the first respondent, the second respondent, by his proceedings in reference Rc.No.420/2000, dated 24.7.2002 removed the petitioners along with three other employees from their respective services with effects from 24.7.2002 and hence all the petitioners have come forward to file the above writ petitions on certain grounds as brought forth in the grounds of writ petitions.
6. Regarding the irregularities pointed out by the first respondent in his communication dated 18.7.2002, the first petitioner would submit that he completed his B.A.(History) and M.A.(History) courses from Annamalai University in the years 1992 and 1996 respectively through Correspondence Course but not through Open University and that the form of the Degree Certificates is similar for degrees obtained through Open University System and Correspondence Course, but the respondents have removed the petitioner from the services treating him as having obtained his degree through Open University; that as a matter of fact, at the time the petitioner underwent correspondence course in the year 1988, the Open University Course was not introduced in Annamalai University; that he submitted an Experience Certificate dated 26.2.1998 from the Simpson & Group Companies Employees' Cooperative Society Limited on 28.2.1998, on which date he attended the interview for the post of Assistant Secretary, but the impugned order proceeds on the basis that the latest service certificate was not produced.
7. Regarding the irregularity pointed out by the first respondent in his communication dated 18.7.2002, the second petitioner would submit that his date of birth as per the service records is 6.7.1965 and his age is shown as 6.12.1966 in the Birth Certificate issued by the Births and Deaths Registration Office and the first respondent failed to note that he joined the Madras Journalists Cooperative Housing Society before he attained the age of 30 years and even if the date of birth is taken as 6.7.1965, as per Clause 65(5) of the Bye-laws, he is not disqualified for the appointment in the second respondent Society.
8. Regarding the irregularity pointed out by the first respondent in his communication dated 18.7.2002, the third petitioner would submit that the Directorate of Correspondence Courses and Continuing Education, now known as the Directorate of Distance Education, was established in the year 1979 and it offers 60 different courses under the Open University System; that he pursued his Post Graduate Diploma courses though Correspondence course under the Regular stream; that the persons doing the course under the Open University scheme need not have the basic minimum educational qualification to the degree course; that by G.O.Ms.No.216 dated 26.8.1997, it was stated that the degrees and diplomas obtained through Open University is equivalent to the degrees and diplomas obtained through regular stream and since he obtained his diploma in the regular stream through the Correspondence course, the said G.O. is not applicable to him.
9. The main ground raised by all the petitioners is that the second respondent without affording an opportunity to them, has removed them from the services, which is against Bye-law No.65(6)(i)(b) and 65(13)(a)&(c)of the Government Telecommunication Employees Cooperative Society Limited.
10. For easy reference, Bye-law No.65(6)(i)(b) is extracted hereunder:
"It shall be competent for the appointing authority to terminate the services of the employee during the subsequent six months of his probation and also during his regular service provided that the authority shall not dispense with the services of a person, except for reasonable cause and without giving such person at least one month's notice or wages in lieu of such notice provided also, however, that such notice shall not be necessary, when the services of such a person are dispensed with on a charge of misconduct and supported by satisfactory evidence recorded in an enquiry held for the purpose."
11. When the above matter came up for admission before this Court in the presence of the learned counsel for the petitioners and the learned Additional Government Pleader (Cooperatives) taking notice on behalf of the respondents, the legal point that surfaced for determination is "whether the mandatory provision of the Bye-law No.65(6)(i)(b)of the Government Telecommunication Employees Cooperative Society Limited requiring `at least one month's notice or wages in lieu of such notice' is necessary to the cases in hand and whether the same has been complied with?'
12. It is an admitted case that no such notices have been given to the petitioners by the respondents thus giving effect to the said Bye-law and therefore it has become the prime responsibility of this Court to ascertain whether, in the given facts and circumstances of the cases concerned with the orders impugned removing the petitioners from their services by such orders is justifiable ones?
13. On the part of the learned counsel for the petitioners it would be argued that no such removal could be done within the meaning of the said Bye-law and the petitioners could have explained the circumstances in a convincing manner had they been given an opportunity as contemplated by the Bye-law and therefore would exhort that the impugned orders, ex facie, are illegal and invalid and become liable to be quashed besides warranting a direction to reinstate the petitioners as prayed for in the writ petitions.
14. So far as the learned Additional Government Pleader (Cooperatives) is concerned, he would argue that it is a mere retrenchment and the petitioners are out of office already and it is upto them to raise the dispute in the Labour forum and these writ petitions could not be allowed and they are liable only to be dismissed.
15. A careful perusal of the orders impugned would reveal that the order dated 18.7.2002 made by the first respondent herein would point out certain irregularities occurred in the appointments of the petitioners and others effected in the year 1997 on the basis of the findings on inspection and report dated 10.6.2002 and would request the second respondent to take immediate steps to remove them from service immediately since the appointments of the petitioners and others were made against the provisions of the Bye-laws of the second respondent Cooperative Society.
16. Consequent to the above direction in the orders impugned first above made by the first respondent, the second respondent would issue the second order impugned in Rc.No.420/2000, dated 24.7.2002 stating thereby that the order of the first respondent required the second respondent to remove them forthwith on ground that their recruitments are irregular and thereby ordering the removal of the petitioners from the Society forthwith with effects from 24.7.2002. It is under these circumstances, the petitioners, who have been removed from service in the manner aforementioned after having put-in five years of service with regularisation, have come forward to file the above writ petitions seeking the reliefs extracted supra.
17. As argued on the part of the learned Additional Government Pleader (Cooperatives), though the statutory avenue is open for the petitioners to exhaust their regular remedy in the labour forum, still, such argument would be applicable only to legal orders passed. When the learned Additional Government Pleader is not able to resist the case of the petitioners regarding the opportunity contemplated under Bye-laws No.65(6)(i)(b) and 65(13)(a) and (c) of the Government Telecommunication Employees Cooperative Society Limited thereby contemplating `at least one month's notice or wages in lieu of such notice', needless to mention that the argument of the learned Additional Government Pleader to direct the petitioners to seek remedy in the appropriate Labour forum falls to the ground. Since under the warranting provisions of the Bye-law requiring the opportunity to be afforded having not been complied with, this Court has no hesitation to arrive at the conclusion to allow the above writ petitions as prayed for. Since the illegality has not only been committed on the part of the respondents in their orders in violation of the mandatory requirement of the Bye-law but also in violation of the principles of natural justice, undoubtedly the order passed by the first respondent dated 18.7.2002 which recommends the immediate removal of the petitioners and the consequent second order passed by the second respondent dated 24.7.2002 removing the petitioners abruptly from their services, so far as they are concerned with the petitioners, are tainted with illegality and unsustainable in law and they become only liable to be quashed.
In result,
(i)all the above writ petitions are allowed;
(ii)the order of the first respondent in Reference No.Lr.Rc.4821/2002/C3, dated 18.7.2002 and the consequential order passed by the second respondent in Reference Rc.No.420/2000, dated 24.7.2002 are quashed, in so far as the petitioners are concerned.
(iii)The respondents are directed to reinstate the petitioners in their capacities from which they were removed from out of service by the orders impugned with backwages and all consequential and monetary benefits.
(iv) However, the respondents are at liberty to initiate fresh proceedings against the petitioners in compliance of the legal provisions as contemplated by the Bye-laws and the other governing Rules and procedures.
However, in the circumstances of the cases, there shall be no order as to costs.
Consequently, W.P.M.Ps.47184 to 47192 of 2002 are closed.