The court ruled that an appointment made without proper qualifications and procedures, constituting a backdoor entry, cannot confer rights to permanency under the Tamil Nadu Industrial Establishments Act.

JUDGMENT :

(Order of the Court was made by P.VELMURUGAN.,J)

The Writ Appeal is directed against the order of the learned Single Judge this Court made in W.P.No.17955 of 2016, dated 2.3.2018.

2.The second respondent gave an application before the first respondent for regularization of his service and the first respondent also considering his application, passed an order in E/4457/2015 CPS NO.12 of 2015, dated 24.3.2016. The Writ Court, after considering the case of both the Petitioner and respondent, partly allowed the Writ Petition and modified the order passed. Challenging the said order of the Writ Court, the Management has filed the present Writ Appeal.

3. The case of the appellant is that the appellant is a Cooperative institution registered under the provisions of the Tamil Nadu Co-operative Societies Act and the Rules framed thereunder. The appellant is having registered bye-laws with regard to the constitution, member, object and other affairs of the stores and also having special bye-laws relating to service conditions of the employees of the stores. If any application is made in the appellant store to obtain cadre strength of the vacant place, it should be filled up only through Employment Exchange and Committee prescribed under the provisions of the Act herein. The second respondent is a qualified diploma Engineer and he was engaged as a daily wage employee as Computer Operator on 27.1.2001. Later on, he was working on contract basis and he was receiving the salary on consolidated basis. Hence the appointment of the second respondent was illegal and came to service by back door entries as against the special bye-laws and Rule 149 of the above Rules and without any qualification of decree in Cooperative Training and there is no post of Computer Operator/Typist approved by the Management. Subsequently, the erstwhile Board of Directors period was over and a Special Officer was appointed by the department and they are looking after the day-to-day affairs and did not ratify the defects and the appointment of the second respondent was illegal and irregular without necessary qualification and without approved cadre strength of typist in the appellant store and the second respondent has no right to claim permanency in the appellant store. Though the second respondent filed petition before the first respondent and the first respondent directed to confirm and regularize his post of Computer Operator, since he was working continuously for 480 days in 24 calendar months under the provisions of the Tamil Nadu Industrial Establishments(Conferment of Permanent Status to Workmen) Act, 1981.

4. The case of the second respondent is that the Tamil Nadu Industrial Establishments(Conferment of Permanent Status to Workmen) Act, 1981 is applicable to the appellant herein. The appointment of the second respondent was not illegal and based on the resolution passed by the appellant, he was appointed. The Deputy Registrar has not disapproved his appointment and directed his permanency at any point of time. Only he was denied regularization. The appellant admitted about the exploiting of work and payment of low wages to the second respondent, which is unfair labour practice as per Section 25(T) of the Industrial Disputes Act and contrary to the provisions of Minimum Wages Act. The post of Computer Operator held by the second respondent falls under the Industrial Disputes Act. The statutory remedy was rightly invoked by the second respondent and the first respondent has rightly appreciated the oral and documentary evidence and passed an order which is impugned in the Writ Petition.

5. The learned counsel for the appellant would submit that the second respondent was appointed in an irregular manner and without proper Committee constituted under the Act and without necessary qualification. The appointment of the second respondent is not valid and he came to service by back door entry and he has completed 480 days in two years on 12.3.2001 and hence G.O.