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2015 Supreme(Mad) 784
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V.M. VELUMANI, J.
The Management, A.2823 Thirunagar Co-operative Urban Credit Society Limited, Madurai – Appellant
Versus
The Appellate Authority under the Tamil Nadu Shops and Establishments Act, (Deputy Commissioner of Labour), Madurai & Another – Respondents
W.P.(MD).No. 1006 of 2009 & M.P.(MD).No. 1 of 2009
Decided On : 10-02-2015
Advocate Appeared:
For the Petitioner:S. Seeivasagam, Advocate
For the Respondents:N.R. Venkatesan, Advocate
Irregular appointments cannot be regularised, and continuous work for six months is necessary for invoking provisions under Section 41 of the Tamil Nadu Shops and Establishments Act.
Headnote:
Tamil Nadu Co-operative Societies Act - Appointment of Second Respondent - Section 41 of the Tamil Nadu Shops and Establishments Act - Section 82, 87 of the Tamil Nadu Co-operative Societies Act - [2003 (i) LLJ 284 Madras, (2005) 1 MLJ6(SC), 2007(6) MLJ 455, 2009 (4) MLJ 186] - The court discussed the irregular appointments, continuous work period, and regularisation of services under the relevant acts and sections. It highlighted that irregular appointments cannot be regularised and cited judgments supporting this principle. The court set aside the order of the first respondent based on these legal provisions.
Fact of the Case:
The petitioner, a Co-operative Society, challenged the order of the first respondent allowing the appeal of the second respondent under Section 41 of the Tamil Nadu Shops and Establishments Act, regarding the termination of his services.
Finding of the Court:
The court found that the second respondent did not work continuously for six months and his services cannot be regularized. It set aside the order of the first respondent and allowed the Writ Petition.
Issues: The issues revolved around the appointment and termination of the second respondent, the continuous work period, and the applicability of Section 41 of the Tamil Nadu Shops and Establishments Act.
Ratio Decidendi: The court held that irregular appointments cannot be regularised, and the second respondent did not work continuously for six months, thus his services cannot be regularized.
Final Decision: The court set aside the order of the first respondent and allowed the Writ Petition.
1. This Writ Petition is filed challenging the order passed by the first respondent in T.N.S.E.No.48/2001, quash the order dated 27.06.2008 as unsustainable under law, as well as on merits of the matter.
2. The case of the petitioner is as follows:-
(a) The petitioner Society is a Co-operative institution constituted under the provisions of Tamil Nadu Co-operative Societies Act and Rules. The petitioner Society is having registered By-laws with regard to the Constitution, membership, etc., and Special By-laws with regard to service condition of its employees. The petitioner Society has to function, as per the provisions of Tamil Nadu Co-operative Societies Act and Rules, By-laws, Special By-laws and various circulars and instructions issued by the Registrar of Co-operative Societies.
(b) The petitioner can appoint its employees as per the By-laws, Provisions of Act and Rules and instructions of Registrar of Co-operative Society. The petitioner can appoint a person only after prior permission from Registrar of Co-operative Societies and within the cadre strength of the petitioner, persons sponsored by employment exchange having requisite qualification and following communal rotation.
(c) The then Board of Directors without following any of the Rules and Regulations and contrary to the instructions of Registrar of Co-operative Societies, appointed the second respondent for collection of over dues for the post of "Collection Clerk". There is no approval for the post of Collection Clerk for collection of over dues. The Board of Directors appointed the second respondent with effect from 05.04.1999, on daily rate of Rs.40/- by passing resolution to that effect. The second respondent was not sponsored by employment exchange.
(d) On inspection under Section 82 of the Tamil Nadu Co-operative Societies Act, it was found that appointments of second respondent and another person were unauthorized, against the norms and procedures. Therefore, actions was initiated against the Board of Directors under Section 87 of the Tamil Nadu Co-operative Societies Act.
(e) The Board by Resolution dated 15.12.1999, terminated the service of the second respondent and reported to Deputy Registrar of Co-operative Societies.
(f) Once again the second respondent gave an application dated 02.04.2000 to the Board of Directors seeking appointment in petitioner Society. The Board of Directors by Resolution dated 15.04.2000, appointed the second respondent as Clerk to assist the Audit and to do collection works on consolidated salary of Rs.1,500/- per month. When the Board of Directors were superseded and Special Officer appointed the second respondent did not turn up for work from 18.09.2000.
3. According to the second respondent, he was appointed as Collection Clerk with effect from 05.04.1999 by proper resolution passed by the Board of Directors. He worked continuously from 18.09.2000. The Special Officer took charge after supersession of Board of Directors and orally terminated his service. After his various request the Special Officer, promised to consider his request, but, subsequently informed the second respondent that oral order of termination is final and cannot be revoked. Therefore, the second respondent filed an appeal before the first respondent under Section 41 of the Tamil Nadu Shops and Establishments Act. According to the second respondent, he worked continuously for more than six months and his services were terminated without notice violating the provisions of Section 41 of the Act.
4. The petitioner Society has filed its objection stating that the second respondent was not an employee as defined under Section 2(12) of the Tamil Nadu Shops and Establishments Act, he did not work continuously for six months and hence, Section 41 of the Tamil Nadu Shops and Establishments Act cannot be invoked by the second respondent.
5. The petitioner Society also filed a petition under Section 51 of the Tamil Nadu Shops and Establishments Act, before the Com
