Madras High Court
The Management vs The Deputy Commissioner Of Labour on 16 December, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.No.20119 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 16.12.2020
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
W.P.No.20119 of 2004 and
W.P.M.P.No.24212 of 2004
The Management,
Arumuganeri Salt Workers Co-operative
Production and Sales Societies Ltd.,
Arumuganeri,
Tuticorin District. ... Petitioner
Vs.
1.The Deputy Commissioner of Labour,
Tirunelveli.
2.L.Venkata Krishnan ... Respondents
Prayer : Petition filed under Article 226 of Constitution of India praying for
issuance of a Writ of Certiorari to call for the records in pursuant to the
order dated 20.01.2004 in T.N.S.E.No.2/2002 passed by the 1st Respondent
and quash the same.
For Petitioner : Mr.R.Prem Narayan
For 1st Respondent : Court
For 2nd Respondent : No appearance
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https://www.mhc.tn.gov.in/judis/
W.P.No.20119 of 2004
ORDER
The prayer sought for in this writ petition is to issue a writ of certiorari to call for the records in pursuant to the order dated 20.01.2004 in T.N.S.E.No.2/2002 passed by the first respondent and quash the same.
2.The short facts which are required to be noticed for disposal of this writ petition are as follows:
(i) The second respondent employee was appointed as a lorry Driver at the petitioner Society on daily wage basis from 04.11.2000.
(ii) At the time of making such appointment, it seems that, such appointment had been made by the Managing Committee of the petitioner Society, without having reference to the names to be sponsored, in this regard, by the Employment Exchange concerned, therefore, on noticing the same that the employee has not been appointed through the Employment Exchange, as has been contemplated under Rule 149 of the Tamil Nadu Co-
operative Societies Rules made under the Tamil Nadu Co-operative Societies Act, the petitioner management decided to issue a show cause notice and accordingly, on 12.11.2001 it was issued to the employee asking 2/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 the show cause as to why the services of the employee should not be terminated on the ground that, he had been appointed illegally without following the procedure, as contemplated under Rule 149 of the Rules, referred to above.
(iii) In response to the same, the employee on 26.11.2001 has given reply justifying his continuation as a lorry Driver/employee at the petitioner's Society. However, not satisfying with the said reply, by order dated 09.01.2002, the services of the employee was terminated by the petitioner.
(iv) As against the said termination, the respondent employee approached the authority under the Tamil Nadu Shops and Establishments Act, 1947 to raise a dispute and the said dispute against the termination made against the second respondent filed it before the Shops Authority i.e., the Deputy Commissioner of Labour, the first respondent herein, was taken on file in T.N.S.E.No.2/2002 on the file of Deputy Commissioner of Labour, Tirunelveli, where, after hearing both parties, the said authority/first 3/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 respondent passed an order on 20.01.2004 directing the petitioner management to reinstate the second respondent by allowing the petition filed by the second respondent in this regard.
(v) Aggrieved over the said order passed by the Shops Authority, the present writ petition has been filed with the aforesaid prayer.
3.Heard Mr.R.Prem Narayan, learned counsel appearing for the petitioner Society, who would contend that, firstly, the very appointment or engagement made by the petitioner Society against the second respondent employee is an illegal engagement or appointment, as admittedly no procedure as contemplated under Rule 149 has been followed. Secondly, he would submit that, he had been only engaged on daily wage basis and admittedly, he had not completed 240 days within one calender year and thirdly, he would submit that, since the second respondent was engaged initially in the year 2000 only as a lorry Driver and at that time, the petitioner Society was owning a lorry for their business purpose and subsequently, there has been no necessity to engage any one as a lorry 4/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 Driver because the lorry service which was pressed into service for the business of the petitioner Society also has been dispensed with. Therefore, the second respondent, at any cost, cannot be reinstated as lorry Driver, as has been allowed by the authority under the Shops Act through the impugned order. Therefore, on these three grounds, the learned counsel for the petitioner is attacking the order impugned and in support of the said proposition, he relied upon number of judgments of Law Courts.
4.Though notice had been served on the second respondent, who has been the contesting respondent in this case and his name and address has been printed in the cause list, so far he has not appeared before this Court and no one has entered appearance on his behalf.
5.Despite the absence of the second respondent, this Court, since heard the learned counsel appearing for the petitioner on merits, wanted to dispose of this writ petition on merits.
6.Insofar as the first ground raised by the petitioner counsel that, the 5/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 procedure contemplated under Rule 149 of the Rules have not been followed at the time of appointment of the second respondent is concerned, the law is well settled in this regard that, such non following alone ipso facto would not entitle the employer to terminate the service of the employee, who had been appointed or engaged directly without seeking any names being sponsored by the Employment Exchange, abruptly or suddenly without any other reason. In support of the aforesaid proposition, there has been number of decisions and there is no quarrel on that even by the learned counsel for the petitioner. Insofar as the second ground raised by the petitioner counsel that, he has not completed 240 days in one full year is concerned, since the second respondent was engaged or appointed only on 04.11.2000 and before he completes the one year successful service, since a show cause notice had been given and during the relevant point of time, there had been a disengagement on the part of the petitioner Society against the second respondent and ultimately, by order dated 12.11.2001, a termination was also issued against the second respondent, this Court feels that, the said ground that he had not completed 240 days in one full year for the purpose of seeking conferment or the benefit of absorption, cannot be 6/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 accepted and therefore, on that ground, the petitioner cannot make out any acceptable ground to assail the impugned order.
7.The third ground, the petitioner counsel submits before this Court is that, there is no heavy vehicle like lorry pressed into service by the petitioner Society, therefore, if at all the second respondent is taken back, he cannot be put in Driver job in heavy vehicle, like lorry and on that ground, his reinstatement is impossible in this regard, this Court feels that, if at all the second respondent is still having any service, as he has not so far seems to have reached the superannuation age, certainly, he may be pressed into service in any other equal job and therefore, the said reason that, there is no vehicle available with the petitioner Society, cannot also be put against the second respondent to assail the impugned order successfully.
8.Insofar as the initial appointment made in respect of the second respondent is concerned, the grounds urged by the petitioner side is that, he was not sponsored by the Employment Exchange and he did not have the full five years experience as a heavy vehicle Driver.
9.In this context, the law has been well settled that, insofar as any 7/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 public appointment if it is made illegally, whatever be the period pursuant to such illegal appointment/employment, the employee continues in the governmental organisation or in any public sector undertaking, they would not confer any right to seek permanency in employment, as the initial appointment if it is to be treated as illegal appointment, the same cannot be rectified at any point of time. Therefore, the door would be shown to such appointee, who has entered into service by way of illegal appointment.
10.However, the Courts give exemption that, in case of any irregular appointments which are made and pursuant to which, the appointee also continued for sometime in the employment and ultimately even for such irregularity, if the employer come forward to terminate the service abruptly as a termination simplicitor, even then, the employee can seek permanency on the ground that, if the initial irregularity anything committed or any appointment is made irregularly, the same, if it is allowable, can be rectified and in this regard, a number of decisions have already been made by the Law Courts and in support of these proposition also there could be no quarrel.
8/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004
11.In the present case, if at all any longer experience on the part of the second respondent being a heavy vehicle driver to drive the lorry was required, such experience since could have been even gained by the second respondent subsequent to the appointment in the petitioner Society, even that experience definitely would have been fulfilled.
12.Insofar as the issue that name being not sponsored by the Employment Exchange within the meaning of Rule 149 of the Rules as referred to above, there are number of decisions by the Law Courts, where, such an irregular appointment can be accepted, considering the length of service which are put in or left for such an employee to serve.
13.In view of the aforesaid, this Court feels that, none of the grounds raised or reasons stated by the learned counsel appearing for the petitioner to challenge the impugned order, in the considered opinion of this Court, are sustainable or acceptable and therefore, on those grounds, the impugned order cannot be interfered with.
14.Moreover, the authority concerned in the impugned order has 9/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 considered all these aspects and passed the following order, which is impugned herein.
"eph;thfk; kDjhuh; ntiytha;g;gfk; K:yk; epakdk;
bra;ag;gltpy;iy kw;Wk; oiuth; gzpf;F chpa
fy;tpj;jFjpfs; bgwtpy;iy vd;w fhuzk; fhl;o
ntiyePff
; k; bra;Js;sJ/ kDjhuh; 4/11/2000-y;
eph;thfj;jhy; oiutuhf epakdk; bra;ag;gl;Ls;shh;/
vjph;kDjhuh; jug;gpy; jhf;fy; bra;ag;gl;l cah;ePjpkd;w
jPh;gi
; g ghh;f;Fk; nghJ 8/3/80 Kjy; 11/3/2001 tiua[s;s
fhy';fspy; Tl;Lwt[ epWt';fspy; epakdk;
bra;ag;gl;lth;fis bghWj;jkl;oy;. mth;fs; ntiytha;gg ; fk;
; th;fsh? ,y;iyah? vd;gij ghh;ff
K:yk; njh;t[ bra;ag;gl;l ;
ntz;oajpy;iy vd;Wk;. nkw;go fhyfl;l';fspy;
ntiytha;g;gfk; K:yk; njh;t[ bra;ag;glhtpl;lhYk; mJ
Kiwaw;w epakdk; MfhJ vd;Wk;. mjd; gpd;dh; 12/3/2001 Kjny fl;lhak; ntiytha;g;gfk; K:yk; epakdk; bra;ag;gl ntz;Lbkd;Wk;. 12/3/2001 Kjy; ntiytha;gg ; fk; K:yk;
epakdk; bra;ag;glhj egh;fs; Kiwaw;w epakdkhf fUjg;gLthh;fs; vd;Wk; Twg;gl;Ls;sJ/ kDjhuh; 4/11/2000- y; epakdk; bra;ag;gl;Ls;sjhy;. mtuJ epakdk; Kiwaw;w epakdkhf fUjntz;oajpy;iy/ kDjhuh; oiutuhf epakdk; bra;ag;gl;lnghJ 8 tJ tFg;g[ njh;t[ bgw;Ws;shh;/ oiutp'; iybrd;!; bgw;Ws;shh; kDjhuh; epakdk; bra;ag;gl;lnghJ. vd;d fy;tpj;jFjpfs; oiutUf;F ntz;Lbkd;W Fwpg;ghf brhy;yg;gltpy;iy/ kDjhuh; - vjph;kDjhuh; eph;thfj;jpd; jPh;khdj;jpd;gona epakdk; bra;ag;gl;Ls;shh;/ kDjhuh; gzpapy; nrUk;nghJ. chpa fy;tpj;jFjpfs; bgw;wpUf;ftpy;iy vd;why; eph;thfk;
10/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 kDjhuiu gzpapy; nru jPh;khdk; nghl;L mDkjpf;f rhj;jpaTW fpilahJ/ vdnt kDjhuUila epakdk; Kiwaw;wjhf fUjpl KoahJ/ eph;thfk; kDjhuUila epakdk; Kiwaw;wJ vd;W fUj;J TWtJ jFjpaw;wJ/ vdnt eph;thfj;jpd; ntiyePf;f cj;jpuit uj;J bra;J. nky;KiwaPL kDit mDkjpj;J cj;jputpLfpnwd;/"
15.On perusal of the same, this Court feels that, there is no perversity attached with the said order and it does not shocks the conscience of this Court, therefore, this Court feels that, no interference is called for in the said order.
16.However, in view of the length of time that had passed by between the date of termination till today as nearly about 20 long years have gone, all these years since the second respondent admittedly has not been in service of the petitioner Society, this Court feels that, as he has not rendered any service to the petitioner Society, he is not entitled for any backwages.
17.In view of the above, this Court is inclined to dispose of this writ petition with the following orders.
(i) That the impugned order is sustained and therefore, it 11/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 does not require any interference from this Court.
(ii) Consequently, the second respondent is entitled to get reinstatement at the petitioner Society not necessarily to be a Driver of a lorry but in any equivalent job and it shall be given to him. However, the second respondent is not entitled to get any backwages, in view of the peculiar facts and circumstances, discussed herein above.
18.With the above observation and direction, this Writ Petition is disposed of accordingly. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
16.12.2020 Index: Yes Speaking Order : Yes Sgl 12/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 To The Deputy Commissioner of Labour, Tirunelveli.
13/14 https://www.mhc.tn.gov.in/judis/ W.P.No.20119 of 2004 R.SURESH KUMAR, J.
Sgl W.P.No.20119 of 2004 16.12.2020 14/14 https://www.mhc.tn.gov.in/judis/