Point of law : Contractual appointment - If the workman is retrenched by an oral order or communication or he is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance with clauses (a) and (b) of Section 25-F of the Act

JUDGMENT :

(Prayer: Writ Appeal has been filed under Section 15 of Letter of Patent against the order dated 05.06.2012 passed in W.P.No.3144 of 2002 by the learned Single Judge of this Court.)

1. The Special Officer of the Management of Palani Agricultural Products Co-operative Marketing Society Limited, Palani, has filed this appeal challenging the order passed by the learned Single Judge in W.P.No.3144 of 2002, dated 05.06.2012, confirming the order dated 22.03.2001 passed by the first respondent/the Deputy Commissioner of Labour (Appellate Authority under the Tamil Nadu Shops and Establishment Act), Dindigul, setting aside the order of the termination dated 02.01.2001 passed against the second respondent-workman.

2. Mr.R.Parthiban, learned counsel for the appellant submitted that the second respondent-workman was employed as a salesman in the appellant society in February 1999, and he worked till December 1999, and after the break in service in December 1999, he worked from January 2000, but, his services were subsequently terminated on 02.01.2001. As he was employed on daily wage basis temporarily, he had no right to seek for absorption in service, because, he was neither permanent employee nor appointed through the employment exchange. When he approached the first respondent, it was the claim of the second respondent-workman that more than 20 employees were employed in the appellant society and therefore, the said society is covered under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and thus, on that score, he filed an appeal under Section 41(2) of the Tamil Naud Shops and Establishments Act taking a stand that he was terminated from the services without complying with the provisions of the Labour Law. Thereafter, the first respondent took up the appeal in T.N.S.E.Appeal No.5 of 2001 and thereby issued a notice to the appellant society. Immediately, a detailed counter affidavit has been filed by them taking a stand that since the appellant is a cooperative marketing society, they will have to follow the directions issued by the Registrar of Cooperative Societies, besides admitting that the second respondent-workman lastly engaged in the society from December 1999 to 31.12.2000, but, he was not recruited through the employment exchange and he was only a daily wage employee, hence, he cannot claim reinstatement as a matter of right. Secondly, before the first respondent/appellate authority, the second respondent workman himself examined as W.W.1. But, the Appellate Authority found that since the workman had worked for more than 480 days, the order of termination passed against the second respondent following the procedures contemplated under Section 41(1) of the Tamil Nadu Shops and Establishments Act and Section 25-F of the ID Act was legal, which is against the dictum laid down by the Hon’ble Apex Court in State of Karnataka Vs. Uma Devi [2006 (4) SCC 1], as he was not appointed through the employment exchange. Besides, Rule 149 of the Tamil Nadu Cooperative Society Rules, 1988, says that no appointment by direct recruitment to any post shall be made except by calling for a list of eligible candidates from the employment exchange. Therefore, the finding of the first respondent and the order passed by the learned Single Judge are incorrect.

3. Referring to the judgment of the Hon’ble Apex Court in the case of A.Umarani Vs. Registrar, Cooperative Societies and Ors. [2004 (7) SCC 112], learned counsel argued that no regularization is permissible in exercise of statutory powers conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of statutory rules.

4. Again, referring to the Constitution Bench judgment of the Hon’ble Apex Court in Uma Devi (cited supra), it was argued that there is no fundamental right for those who have been employed on daily wages or temporarily or employed on contractual basis to claim t