Madras High Court
The Special Officer vs The Presiding Officer on 6 November, 2019
Author: S.S.Sundar
Bench: S.S.Sundar
W.P.(MD)No.9852 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.11.2019
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.9852 of 2010
The Special Officer,
Vellamadam Primary Agricultural Co-Operative
Bank Limited, Y.337,
Vellamadam Post – 629 305,
Kanyakumari District. ... Petitioner
vs.
1.The Presiding Officer,
The Labour Court,
Tirunelveli, Tirunelveli District.
2.The Special Officer,
Nanthankadu Primary Agricultural
Co-Operative Bank,
Marthandam Post,
Kanyakumari District – 629 165.
3.A.Aseref ...Respondents
Prayer: Writ Petition filed under Article 226 of the
Constitution of India praying for issuance of a Writ of
Certiorari, to call for the records in the impugned Award,
dated 19.05.2009, passed in I.D.No.510 of 1992 on the file of
the Labour Court, Tirunelveli and quash the same.
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W.P.(MD)No.9852 of 2010
For Petitioner :Mrs.Anbarasi Dhanaseelan
For R2 :Mr.G.Manivannan
For R3 :Mr.R.Krishnan
****
ORDER
This Writ Petition is filed for issuing a Writ of Certiorai, to quash the order of Labour Court, Tirunelvelin in I.D.No.510 of 1992.
2.The brief facts that are necessary for the disposal of this Writ Petition are as follows:
2.1.The third respondent in this Writ Petition was originally appointed as Messenger in the petitioner Cooperative Bank. It is stated that the third respondent was promoted to the post of Clerk and working as such till 15.08.1990. While the third respondent was in the service in the petitioner Society as Clerk, it appears that he opted to become the Secretary of another Cooperative Bank, the second respondent herein, probably on invitation by second respondent.
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http://www.judis.nic.in W.P.(MD)No.9852 of 2010 2.2.The third respondent submitted a representation to the petitioner Society to give No Objection to the third respondent for being appointed as Secretary in the second respondent Cooperative Bank by transfer. In response to the representation of the third respondent, the petitioner Society, by its communication, dated 07.08.1990, categorically stated that the third respondent may join the second respondent Society after submitting his resignation to the petitioner society. It is also stated that the petitioner Society will have no objection for the third respondent to join in the second respondent Society subject to the following conditions:
“epge;jidfs;:
1.,th; ,t;tq;fpapy; gzpGhpAk; Ntiyia uh[pdhkh nra;a Ntz;Lk;.
2.uh[pdhkh fbjk; nfhLj;J ,t;tq;fp xg;Gf;nfhz;l gpwF ve;j fhuzk; nfhz;L jpUk;g Ntiy juNtz;Lk; vd Nfhukhl;Nld; vd;W xg;Gf;nfhs;s Ntz;Lk;.
3.,th; rhh;ghf gpuhtplz;l; gz;by; Copah; kw;Wk;
tq;fp nrYj;jpa njhifAk; kw;Wk; tl;bapy; rhp ghjpia tq;fpf;F jpUk;gf; nfhLf;f xg;Gf;nfhs;s Ntz;Lk;.
4.,th; tq;fpapy; gzpGhpe;j fhyj;jpw;Fhpa tpLg;Gf;fis (vh;d;L yPt] ; ;) gzkhf;fpj;ju Nfhukhl;Nld; vd xg;Gf;nfhs;s Ntz;Lk;.
5.,th; gzpahw;wpa fhyj;jpw;Fhpa fpuh[{Al;bia tq;fpapy; Nfhu khl;Nld; vd xg;Gf;nfhs;s Ntz;Lk;.
6.jzpf;if kw;Wk; ,th; Nghpy; ,Ue;J tuNtz;ba njhiffis ,tUf;F njhptpj;jJk; tq;fpapy; fl;b 3/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 Kbg;gjhf xg;Gf;nfhs;s Ntz;Lk;.
7.,th; gzpahw;wpa fhyj;jpy; ,tUf;F
nfhLf;fg;gl;l Ntiyfis vOjp Kbj;J
ifnaOj;jpLtjhf xg;Gf;nfhs;s Ntz;Lk;.” 2.3.Thereafter, the third respondent, by letter, dated 08.08.1990 gave an undertaking that on relieving him from the petitioner Bank, he will not demand employment in the petitioner Bank in future for any reason. Again on 11.08.1990, the third respondent obtained a letter from the second respondent requesting a letter of No Objection Certificate for appointing him as Secretary of the second respondent Bank. It was, thereafter, by communication, dated 13.08.1990, the petitioner Society issued a No Objection Certificate as required by the third respondent.
2.4.By communication, dated 14.08.1990, the second respondent informed the Special officer of the petitioner Bank that the third respondent would be appointed as Secretary in the second respondent Bank with effect from 16.08.1990 and in the said communication, the petitioner was also requested 4/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 to relieve the third respondent from service. The third respondent again gave an undertaking to the petitioner by his letter, dated 14.08.1990 that he will not claim re-employment upon relieving him from service. On 16.08.1990, the petitioner passed an order relieving the third respondent from service on 15.08.1990 afternoon and the third respondent also handed over charge.
2.5.It is the specific case of the petitioner that the employment of the third respondent under the petitioner comes to an end once the third respondent was relieved from the petitioner society and joined in second respondent society. However, things did not go well, as it was originally planned or expected by the third respondent. Though the third respondent was appointed as Secretary in the second respondent Cooperative Society with effect from 16.08.1990, he was demoted as Senior Clerk and subsequently, the third respondent was terminated from service, because his appointment as Secretary or Senior Clerk was not after duly 5/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 following the Rules that are applicable under the Cooperative Societies Act. It is also admitted that the appointment of the third respondent in the second respondent Society was without referring to the Employment Exchange or without approval from the concerned Deputy Registrar of Cooperative Society.
2.6.It is in those circumstances, the third respondent raised an industrial dispute before the Labour Court, Tirunelveli, in I.D.No.510 of 2010. It is to be seen that the third respondent in the petition filed under Industrial Disputes Act, prayed for a direction to reinstate him in either one of the Society, ie., the petitioner or second respondent with continuity of service and other service benefits. Originally, the Labour Court directed the petitioner Society to reinstate the third respondent with 50% back wages and a further direction was also issued to the second respondent herein to pay balance of 50% back wages to the third respondent. The Award of the Labour Court in I.D.No.510 of 1992, dated 6/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 19.10.2001, was challenged before this Court by the petitioner in W.P.No.24741 of 2002, by the second respondent in W.P.No. 16888 of 2002 and by the third respondent in W.P.No.3812 of 2004. Considering the nature of dispute and three different versions on facts, this Court find that the Labour Court did not consider the matter as it was required. With a direction to frame necessary issues, the matter was remitted to the Labour Court, Tirunelveli.
2.7.Thereafter, the first respondent took up the matter and highlighted the points for consideration as directed by this Court in the common order. The issues framed for consideration are as follows “1.Whether employer and employee relationship between petitioner and second respondent Society has ceased to exist as petitioner having been relieved from the services by the second respondent on 15.8.90?
2.Whether petitioner and continued to enjoy the privilege of lien, namely continuity of service with the 2nd respondent after himself having been relieved from service on 15.8.90 by the second respondent.
3.Whether transfer of petitioner from 2nd respondent society to 1st respondent society and his appointment as Secretary in the 1st respondent society is invalid under law?
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4.Whether Special Officer of the 2nd respondent Bank had authority under law to seek the consent of the Special Officer of the 1st respondent to post him an Secretary in the 1st respondent society?
5.Whether 1st respondent having appointed petitioner as Secretary would have right to demote the petitioner to Senior Clerk from the post of the petitioner?
6.Whether petitioner could approach 2nd respondent for re-instatement in service on the strength of order passed by this Court in I.D.No.510/92?
7.Whether petitioner shall be permitting to continue in the same post of Senior Clerk in the 1st respondent Society if petitioner had no lien with the 2nd respondent Society?
8.Whether 1st respondent is liable to pay 50% of the backwages to the petitioner till such time petitioner is re- instated in the service in the 2nd respondent Society?
9.Whether petitioner is entitled to be re-instated in service either with the 1st respondent or 2nd respondent and claim backwages on par with the original post which petitioner was holding in the 2nd respondent Society or on par with the Senior Clerk which post he was holding in the 1st respondent Society?” 2.8.Though the Labour Court highlighted the points for determination as directed by this Court in the writ petitions, the Labour Court thought fit to consider the following points for determination:
“1.Whether petitioner is entitled to seek re- instatement in service on the strength of lien of service with the 2nd respondent?
2.Whether petitioner is entitled to seek re- 8/16
http://www.judis.nic.in W.P.(MD)No.9852 of 2010 instatement in service in the 1st respondent society on account of appointment made to him by the Special Officer of the 1st respondent Society as Secretary?
3.Whether then Special Office of the 2nd respondent Society had any authority to act on the letter of resignation of petitioner to get the consent of the then Special Officer of the 1st respondent society for appointing petitioner as Secretary?
4.Whether the then Special Officer of the 1st respondent Society had any authority under law to appoint petitioner as Secretary and subsequently demote him to the cadre of Senior Clerk?
5.Whether petitioner is entitled to claim backwages either from 1st respondent or from 2nd respondent as prayed for?
6.To what relief if any in petitioner entitled to?” 2.9.Before the Labour Court, the third respondent produced several documents. Similarly, on the side of the petitioner, several documents were marked. On behalf of the third respondent, he examined two witnesses. On behalf of the petitioner Society, one Thangappan was examined as RW-1. No one was examined on behalf of the second respondent society. From the petition filed by the third respondent, it is seen that the third respondent was more keen in getting relief from the petitioner.
9/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 2.10.Though the Labour Court rendered a specific finding that the documents filed by the petitioner under Ex-A3, is not a resignation letter and that the third respondent has accepted all the conditions laid down in Ex-M2 and that for all practical, technical purposes and for administrative purpose, the third respondent has resigned the job in the petitioner society, the Labour Court proceeded further by applying equitable principles. The Labour Court has recorded a finding that the conduct of the third respondent is voluntary and not influenced by any extraneous consideration. However, ignoring the legal implications and the findings of this Court in the earlier Writ Petitions, the Labour Court has reached the following conclusions, which as follows:
“25.In the light of all the discussions made above the following conclusions have been arrived at by this Court:
1.Resignation letter submitted by the petitioner with an option to get appointment as Secretary in the 1st respondent society was illegal one.
2.The resignation letter which disclosed an illegal options to join as Secretary in the 1st respondent Society without any reference to rule 151 and Section 74 of 1983 Act was illegally accepted by the Special Officer of the 2nd respondent Society?
3.Petitioner was relieved in an illegal manner by nd the 2 respondent society on the basis of illegal resignation 10/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 letter submitted by the petitioner.
4.1st respondent society without adhering to rule 151 and section 74 of the act and no manner of right to appoint petitioner as Secretary and further demote him to the post of Clerk.
5.Petitioner had no lien of service as he is deemed to be in service verymuch with the 2nd respondent society.” 2.11.Thereafter, the Labour Court proceeded further to hold that the third respondent is entitled to for reinstatement in service in the original post of Senior Clerk in the petitioner society and that he is entitled to 30% of back wages from the petitioner society. Aggrieved by the same, the petitioner has filed the above Writ Petition.
3.The conclusion reached by the Labour Court is quiet contrary to the findings rendered by it on the factual issues. This Court has already referred to the correspondence in chronology, which are marked as documents before the Labour Court. The exchange of communication and the No Objection Letter as well as the order in connection with relieving the third respondent from service of petitioner 11/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 society, would reveal that the employer and employee relationship between the petitioner and the third respondent came to an end by the third respondent's resignation, which was promptly accepted by the petitioner society. Having framed the important issue whether the employee and employer relationship between the petitioner and the third respondent had ceased to exist, as the third respondent was relieved by the petitioner on 15.08.2019, the Labour Court has not answered the issue and ignored the legal implications of an important issue that is more relevant. Unfortunately, the issue that was conceived as more important by this Court, was not even focussed by the Labour Court and that resulted in serious irregularity in the decision making process.
4.This Court considered the entire evidence and the events that had taken place, just prior to the resignation and after the termination of service by the second respondent.
Though some injustice is done to the third respondent, this Court is unable to give third respondent any relief in view of 12/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 the factual findings rendered by the Labour Court and the conclusion that already reached by this Court. It appears that the third respondent was allured by somebody from the second respondent to occupy the post of Secretary in the second respondent Society unmindful of procedure and other legal requirements, which are required to be followed as per the provisions of Cooperative Societies Act and Rules before appointing the third respondent as Secretary. It is admitted before the Labour Court in the earlier round that the appointment of third respondent in the second respondent society is illegal and contrary to Rules. The third Respondent has, in fact, made an attempt to get into the second respondent society through back door and on failure, he wanted to get relief from the petitioner, which cannot be permitted in law in view of the fact that there was no employer and employee relationship between the petitioner and the third respondent after resignation and accepting employment in the second respondent society.
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5.Though the third respondent suffered a set back in view of the legal implications following the illegal appointment of third respondent in the second respondent society, this Court is also helpless in this case to mitigate the loss and mental agony that was caused to the third respondent. This Court find no reason to blame the petitioner for the third respondent leaving petitioner or making him agree for leaving the petitioner society and to prefer the second respondent. Once the contract of employment was terminated by accepting resignation, there is no scope for re- employment. The events narrated would demonstrate that the petitioner was cautious and the third respondent took inappropriate decision ignoring the rules and regulations, while joining second respondent. Since the scope of enquiry is not related to what was behind the scene, this Court find that the conclusions of the Labour Court in I.D.No.510 of 1992 are against law and therefore, the award is set aside and this Writ Petition is allowed. It is stated that the third respondent has attained the age of superannuation. Considering the 14/16 http://www.judis.nic.in W.P.(MD)No.9852 of 2010 peculiar facts in the present case, any amount which has been paid to the third respondent by the petitioner or the second respondent shall not be recovered. No costs. Consequently, connected miscellaneous petition is closed.
Index :Yes/No 06.11.2019
Internet : Yes/No
cmr
To
The Presiding Officer,
The Labour Court,
Tirunelveli, Tirunelveli District.
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W.P.(MD)No.9852 of 2010
S.S.SUNDAR, J.
cmr
W.P.(MD)No.9852 of 2010
06.11.2019
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