The petitioner, engaged as a Jewel Appraiser on commission basis, is not entitled to permanent absorption as a regular employee of the Bank. The appointment was irregular and does not comply with the statutory provisions and rules governing appointments in Cooperative Societies. The petitioner's engagement as a temporary employee does not entitle him to claim permanent status or observation in violation of the relevant rules and legal principles.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent pertaining to his proceedings in I.D.No.268/98 and quash the award dated 19.10.2001 and consequently direct the first and second respondents to reinstate the petitioner in service along with the backwages and all other attended benefits.)

1. The Award dated 19.10.2001 passed in I.D.No.268 of 1998 by the third respondent is sought to be quashed in the present writ petition.

2. The writ petitioner states that he was engaged as a Jewel Appraiser and was attending the 2nd respondent Bank everyday. Agricultural Jewel loans and other jewel loans are being transacted in the respondent Cooperative Bank on day-to-day basis. The petitioner states that in view of the fact that large number of agricultural jewel loans had been disbursed by the 2nd respondent Central Cooperative Bank, the post of Jewel Appraiser must be made permanent and the writ petitioner, who was engaged as a Jewel Appraiser on commission basis, must be permanently absorbed.

3. Admittedly, the Jewel Appraisers in the Central Cooperative Bank are engaged on commission basis. Based on the Jewel loan transactions, the commissions are fixed and accordingly, the same was paid to these Jewel Appraisers.

4. The learned counsel appearing on behalf of the respondents 1 and 2 states that there is no sanctioned post of Jewel Appraiser in the Central Cooperative Bank and therefore, no possibility to absorb the writ petitioner in the Post of Jewel Appraiser on permanent basis.

5. In order to substantiate the said ground, the learned counsel for the respondents 1 and 2 cited the judgment of the Hon'ble Supreme Court in the case of Indian Overseas Bank Vs. Workmen, reported in (2006) 3 SCC 729 and the relevant paragraphs are extracted hereunder:

“17. The inferences culled out from the reading of those judgments can be summed up as follows:

(a) Where the contractors were substantially responsible for the main and sole business, they would be treated as workers.

(b) One exception is that where in such cases flexibility of the contract was at variance with the normal worker's contract, the contractors would not be treated as workers.

(c) Where the contractor is in the nature of supplier of goods and services, they are to be treated as supplier contractors and not workmen.

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 age prescribed. 1. No qualification/age.

2. Recruitment through employment exchange/Banking Service Recruitment Board. 2. Direct engagement by the local Manager.

3. Fixed working hours. 3. No fixed working hours.

4. Monthly wages. 4. No guaranteed payment, only commission paid.

5. Subject to disciplinary control. 5. No disciplinary control.

6. Control/supervision is exercised not only with regard to the allocation of work, but also the way in which the work is to be carried out. 6. No control/supervision over the nature of work to be performed.

7. Wages are paid by the Bank. 7. Charges are paid by the borrowers.

8. Retirement age. 8. No retirement age.

9. Subject to transfer. 9. No transfer.

10. While in employment cannot carry on any other occupation. 10. No bar to carry on any avocation or occupation.

Therefore, the jewel appraisers are not employees of the Bank.”

6. The Hon'ble Supreme Court of India carved out certain comparisons and distinctions in respect of the regular employment of Jewel Appraiser. While considering the distinct and different nature of work, the Hon'ble Supreme Court found that the Jewel Appraisers are not employees of the Bank.

7. Adding the said principles, further ground is available in the present writ petition in view of the fact that the 1st respondent is a Central Cooperative Bank, which is a Society registered under the provisions of the Tamil Nadu