Madras High Court
S.Santhakumar Rajasingh vs Q.212 on 21 June, 2022
W.A.(MD)Nos.568 to 570 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A(MD)Nos.568 to 570 of 2022
and
C.M.P(MD)Nos.4924, 4926 and 4927 of 2022
S.Santhakumar Rajasingh : Appellant W.A(MD)No.568 of 2022
M.Visuvasam Samuelraj : Appellant W.A(MD)No.569 of 2022
P.T.Alwan : Appellant W.A(MD)No.570 of 2022
Vs.
1.Q.212, The Nazareth Urban Cooperative Bank Limited,
represented by its Managing Director,
Nazaret, Thoothukudi District.
2.The Assistant Commissioner of Labour (in-charge),
Authority under the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workman)
Act, 1981, Thoothukudi.
3.The Deputy Registrar,
Cooperative Society, Tiruchendur.
: Respondents in all cases
Common Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
to set aside the common order, dated 25.01.2022 made in W.P(MD)Nos.
9572 to 9574 of 2018.
For Appellants :Mr.D.Saravanan
For Respondents:Mr.J.Ashok
Additional Government Pleader
(in all cases)
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W.A.(MD)Nos.568 to 570 of 2022
COMMON JUDGMENT
(Common Judgment of the Court was delivered by S.S.SUNDAR, J.)
As against the common order passed by the learned Single
Judge in the Writ Petitions in W.P(MD)Nos.9572 to 9574 of 2018, filed by
the first respondent herein, the above Writ Appeals are filed.
2.Heard Mr.D.Saravanan, learned Counsel for the appellants
and Mr.J.Ashok, learned Additional Government Pleader, who takes notice
on behalf of respondents. By consent of both parties, these Writ Appeal
are taken for final disposal at the admission stage itself.
3.The appellants herein have been appointed as Agents in the
first respondent Cooperative Bank on temporary basis to canvass
deposits. It is admitted that the appellants are paid on commission basis
as a percentage, ie., 2.5% of the total collection of the deposits collected
by them. It is admitted that no Rules or regulations have been
prescribed or followed by the Bank in appointing the Agents, as
compared with the procedure that is being followed while recruiting the
regular employees of the Cooperative Banks.
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W.A.(MD)Nos.568 to 570 of 2022
4.Though the appellants are paid commission, no fixed
commission or amount is paid to the appellants and it is admitted that
their remuneration fluctuates depending upon the collections made by
them. Though they are entitled to provident fund benefits in terms of the
Employees Provident Fund Act, 1952, and a matching contribution is
made by the respondents, it is the case of the Cooperative Bank that will
not help the appellants to claim either permanency or regularisation, as a
regular employee of the Cooperative Bank.
5.The appellants filed batch of Writ Petitions for issuance of a
Writ of Mandamus to forbear the respondents 2 and 3 from interfering
with the appellants' functioning as Assistants in the first respondent Bank
pursuant to the appellants' appointment, dated 27.03.2018 and to direct
the Cooperative Bank to pay salary in the post of Assistant with effect
from 28.03.2018.
6.Earlier, the appellants have filed applications before the
Authority under the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workman) Act, 1981, to regularise
their service in the post of Assistant. Though the Assistant Commissioner
of Labour allowed the applications filed by the appellants, the respondent
Bank filed three Writ Petitions in W.P(MD)No.9572 to 9574 of 2018
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W.A.(MD)Nos.568 to 570 of 2022
before this Court challenging the individual orders passed in favour of
the appellants in the respective applications.
7.The learned Single Judge of this Court, while dismissing the
Writ Petitions filed by the appellants, allowed the Writ Petitions filed by
the Cooperative Bank. As regards the status of the appellants, the
learned Judge has expressed in categorical terms that the Collection
Agents do not fall under the definition of employee for the purpose of
confirmation of permanency status and that therefore, the question of
regularisation does not arise.
8.The learned Judge also relied upon a judgment of this Court in
the case of Indian Overseas Bank vs Workmen, reported in 2006 (3)
SCC 729, in the context of considering similar issue in the case of Jewel
Appraisers appointed by M/s.Indian Overseas Bank. Considering the fact
that there is no qualification or age limit prescribed for the post of Jewel
Appraiser and they are engaged by the local Manager and other factors,
such as the Jewel Appraisers are entitled only to the commission as fixed,
the Division Bench of this Court, in the case relied upon by the learned
Single Judge, held that the Jewel Appraisers engaged by the Banks are
not employees of the Bank and that therefore, they are not entitled to be
considered for regularisation in a regular time scale.
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W.A.(MD)Nos.568 to 570 of 2022
9.In the present case also, there is no qualification prescribed
for the Collection Agents and they are engaged by the local Manager
purely on commission basis. It is to be noted that no fixed working hours
is prescribed for the Collection Agents and no guaranteed payment or
remunaration apart from the commission agreed upon, is paid to the
Collection Agents. There is no disciplinary control applying the regular
provisions of the statutes, which are applicable to the regular employees
of the Cooperative Banks. No fixed wages are fixed or paid to the
Collection Agent.
10.Above all, there is no age limit prescribed for the Collection
Agents. Since local people are engaged, as Collection Agents, there is no
provision or Special Rules, which are applicable to the Collection Agent,
regarding transfer.
11.Above all, the Collection Agents are not full time employees
of the Co-operative Bank, as there is no bar or Rules prescribed against
them to engage in any other avocation or occupation or business.
Therefore, this Court is unable to find any irregularity in the decision of
the learned Single Judge holding that the appellants are not entitled to
get the benefit of permanency status under Section 4 of the Tamil Nadu
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W.A.(MD)Nos.568 to 570 of 2022
Industrial Establishment (Conferment of Permanent Status to Workman)
Act, 1981.
12.Above all, the Act does not confer any power on the
Authority to regularise the service of anyone. In the present case, the
appellants claiming the status, as if they are the employees of respondent
Bank, as Assistants, as if they are drawing salary applicable to the post of
Assistant. Their claim was that they should be allowed to continue as
Assistant. Though the Writ Petitions filed by the appellants for issuance
of Writ of Mandamus to protect their service as Assistant, were
dismissed, after allowing the Writ Petitions filed by the Cooperative
Banks, the appellants have allowed the order of learned Single Judge to
become final, as they have not filed any Writ Appeal challenging the said
order. Therefore, the present appeals are also barred by applying the
principles of constructive res judicata.
13.Above all, the request of the appellants in the Writ Petitions
and their case in defence to defend the order passed by the Authority
under the Act giving permanency status and regularisation of the service
of the appellants, is illegal and unreasonable, and therefore, the appeals
are liable to be dismissed.
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W.A.(MD)Nos.568 to 570 of 2022
14.The learned Counsel for the appellants relied upon a
judgment of Honourable Supreme Court in the case of Indian Banks
Association vs Workmen of Syndicate Bank and others, reported in
(2001) 3 SCC 36. The said judgment is against the proposition
submitted by the learned Counsel for the appellants and not supporting
the case of the appellants. As a matter of fact, while considering whether
the Collection Agents or Deposit Collectors employed in a specified bank
are entitled to pay scale, allowances and other service conditions
available to regular employees of those Banks, the Honourable Supreme
Court upheld the order of High Court setting aside the Industrial
Tribunal's direction regarding absorption. Paragraph 28 of the said
judgment is relevant and the same is extracted below for proper
understanding:
“28.Mr.Nageshwar Rao is right in his submission that the
concession was not binding on his clients. However, what has been
conceded has been correctly conceded. No question arose of directing
absorption of the Deposit Collectors as regular workmen. No such demand
had been made and, therefore, there could have been no such direction.
Such directions were beyond the reference. Even otherwise, the question
of absorption would be fully covered by an authority of this Court in the
case of Union of India v.K.V.Baby. In this case, it has been held that
persons who are engaged on the basis of individual contracts to work on
commission basis cannot be equated with regular employees doing similar
work. It has been held that the mode of selection and qualification are
not comparable with those of the employees, even though the employees
may be doing similar works. In the present case, not only are the modes of
selection and qualifications not comparable, but even the work is not
comparable. The work which the Deposit Collectors do is completely
dfferent from the work which the regular employees do. There was thus
no question of the Deposit Collectors being paid the same pay scales,
allowances and other service conditions of the regular employees of the
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W.A.(MD)Nos.568 to 570 of 2022
banks.”
15.In view of the judgment of the Honourable Supreme Court,
this Court is unable to consider any of the submissions of the learned
Counsel for the appellants challenging the order of the learned Single
Judge. Hence, these Writ Appeals are dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
[S.S.S.R., J.] [R.V., J.]
21.06.2022
Index : Yes / No
cmr
To
The Assistant Commissioner of Labour (in-charge),
Authority under the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workman)
Act, 1981, Thoothukudi.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.568 to 570 of 2022
S.S.SUNDAR, J.
and
R.VIJAYAKUMAR, J.
cmr
W.A(MD)Nos.568 to 570 of 2022
21.06.2022
https://www.mhc.tn.gov.in/judis
