Madras High Court
O.726 Prakasapuram Co-Operaive ... vs The Inspector Of Labour on 31 October, 2022
W.P(MD)Nos.22888 and 23466 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.10.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)Nos.22888 and 23466 of 2019
W.P.(MD)No.22888 of 2019:-
O.726 Prakasapuram Co-Operaive Urban Bank Ltd.,
Rep.By its Managing Director,
26, Main Road, Prakasapuram -628 616,
Thoothukudi District. ... Petitioner
Vs.
1.The Inspector of Labour,
Authority Under the Tamilnadu Industrial
Establishment (Conferment of Permanent
Status to Workmen ) Act 1981,
Tuticorin.
2.Thanasingan ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, calling for the records relating
to the impugned order in Na.Ka.No.E/813/2019 dated 09/07/2019 passed by the
1st respondent and quash the same as illegal.
For Petitioner : Mr.M.Jerin Mathew
For Mr.M.E.Ilango.
For Respondents : Mr.M.Senthil Ayyanar,
Govt. Advocate for R1.
Mr.K.Anand for R2.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.22888 and 23466 of 2019
W.P.(MD)No.23466 of 2019:-
P.Thanasingan ... Petitioner
Vs.
1.The Registrar of Co-Operative Societies,
No.170, E.V.R.Periyar High Road,
Kilpauk, Chennai- 600 010.
2.The Joint Registrar of Co-Operative Societies,
No.39, BDR Naidu Street, (First Floor),
Thoothukudi District.
3.The Inspector of Labour/ Authority Under Tamil Nadu
Industrial Establishment (Conferment of
Permanent Status of Workmen) Act 1981,
Korapallam, Thoothukudi District.
4.The Managing Director,
Prakasapuram Urban Co-Operative Bank,
Prakasapuram, Thoothukudi District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, Directing the 4th respondent /
Prakasapuram Urban Co-Operative Bank, Prakasapuram, Thoothukudi District
to implement the speaking order passed by the Labour Inspector/Authority
Under Tamil Nadu Industrial Establishment (Conferment of Permanent Status
of Workman) Act, 1981, Thoothukudi District vide No.E/813 on 09.07.2019
who has also reconfirmed the earlier order passed by him vide No.1413/2013
on 29.08.2013 regularizing the petitioner's service as permanent status of
employment with effect from 02.06.2005 as the petitioner was employed by the
4th respondent Bank as worker and engaged on clerical work predominately,
regularly, this Court may also kindly grant all his legitimate back benefits.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.22888 and 23466 of 2019
For Petitioner : Mr.K.Anand
For Respondents : Mr.M.Senthil Ayyanar,
Govt. Advocate for R1 to R3.
Mr.M.Jerin Mathew
For Mr.M.E.Ilango for R4.
COMMON ORDER
Heard the learned counsel on either side.
2.The question that arises for consideration is whether P.Thanasingam,
who was appointed as Deposit Collection Agent in O.726 Prakasapuram
Co-Operaive Urban Bank Limited was rightly conferred the status of permanent
employee by the competent authority.
3.It is not in dispute that P.Thanasingam was appointed as Deposit
Collection Agent by the Special Officer of the Society on 26.10.2010 and he
continues to be in the said post even as on date. He filed a petition before the
Inspector of Labour, Tuticorin, who is also an authority under Tamil Nadu
Industrial Establishment (Conferment of Permanent Status of Workmen) Act
1981 in the year 2013. An award was passed in favour of P.Thanasingam on
29.08.2013. Questioning the same, the Management filed W.P.(MD)No.7455 of
2014. Vide order dated 20.12.2018, the award passed by the competent
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.22888 and 23466 of 2019
authority was set aside and the matter was remanded to his file to pass an order
afresh on merits and in accordance with law. The operative portion of the order
is as follows:-
“49. Therefore, to meet the ends of justice, the case is remanded
back to the second respondent to pass speaking order on merits within a
period of six weeks from date of communication of this order. Needless
to state, order shall be passed only after hearing the 1st respondent after
following the principles of natural justice. If the petitioner had been
indeed employed the first respondent as a workman, he shall be
conferred with the status of permanent employment. On the other hand,
if the first respondent merely acted an as agent he shall not be conferred
with the permanent status.”
4.Following remand, the competent authority once again passed an award
dated 09.07.2019 conferring the status of permanent workman of
P.Thanasingam. Seeking enforcement of the said award, P.Thanasingam filed
W.P.(MD)No.23466 of 2019. Questioning the award, the Management field
W.P.(MD)No.22888 of 2019.
5.The learned counsel for the workman relied on a catena of decisions
namely, (2001) 3 SCC 36 (Indian Banks Association Vs. Workmen of
Syndicate Bank and Others), the order of the Hon'ble Division Bench in
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W.P(MD)Nos.22888 and 23466 of 2019
W.A.(MD)No.1163 and 1164 of 2016, the order dated 19.02.2021 in
W.P.Nos.21440 of 2015 etc batch and the decision reported in 2018-I-LLJ-117
(Management, Salem District Central Co-Operative Bank Ltd. and Others Vs.
Inspector of Labour Authority and Others).
6.The learned counsel for the workman submitted that the impugned
award deserves to be enforced since P.Thanasingam has put in more than 480
days in twenty-four months. He also pointed out that apart from the job of
Deposit Collection Agent, P.Thanasingam is performing the role of Cashier and
Assistant after 04.00 pm. He submitted that the writ petition filed by the
Management deserves to be dismissed.
7.On the other hand, the learned counsel for the Management as well as
the learned Government Advocate for the Cooperative Department submitted
that the award passed by the competent authority deserves to be set aside.
8.I carefully considered the rival contentions and went through the
materials on record. Let me consider the decisions relied on by the learned
counsel appearing for P.Thanasingam. The Hon'ble Apex Court in the decision
reported in (2001) 3 SCC 36 (Indian Banks Association Vs. Workmen of
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W.P(MD)Nos.22888 and 23466 of 2019
Syndicate Bank and Others) had only held that a person working as
Commission Agents/Deposit Collector of banks has to be considered as
workman. The Hon'ble Apex Court in paragraph No.28 had held that there was
no question of absorption and there was also no question of the Deposit
Collectors being paid the same pay scales, allowances and other service
conditions of the regular employees of the banks. This decision in my view
does not help the workman. Likewise, the order dated 19.02.2021 in
W.P.Nos.21440 of 2015 etc batch also is against the workman. In paragraph
No.35, the learned Judge had held that the question of regularizing an
appointment would depend on the candidate possessing necessary qualification
and falling within the sanctioned strength. Once these aspects are in favour of
the employee, the procedural infirmities can always be cured. Thus, the learned
Judge had also emphasized that the post should fall within the cadre strength.
Of course, the decision of the Hon'ble Division Bench made in
W.A.(MD)Nos.1163 and 1164 of 2016 appears to apparently favour the
workman. But the said decision is applicable only in the cases of statutory
Corporations and Governments. In the case on hand, we are not concerned with
the persons working for statutory corporation or a government department. On
the other hand, we are concerned with a case of an employee who is serving a
Co-operative Society. Therefore, the primary question that would arise is
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W.P(MD)Nos.22888 and 23466 of 2019
whether the position held by the person concerned would fall within the
sanctioned strength. The learned counsel for the petitioner relied on the
decision made in W.P.(MD)Nos.11571 to 11573 to 2018 etc rendered on
25.01.2022. The said case also pertains to a claim of Deposit Agent for
permanent status. Arguments now advanced by the workman were advanced in
the said case also. After an elaborate consideration, the learned Judge held that
the Mandamus sought for by the Agents cannot be granted. Paragraphs Nos.19,
20, 21 and 22 of the said order read as follows:-
“19. I am thus of the categoric view that the agents do not
have attributes of 'employees' and are not 'workman' for the
purpose of the CoPS Act. The question of their regularisation
thus, does not arise.
20. In light of my conclusion as aforesaid, I need make no
reference to the submissions of learned counsel relating to the
scourge of back door entrants, turning upon the judgments in
A.Uma Rani vs. Registrar of Co-operative Societies (2004(7)
SCC 112), L.Justin and another vs. the Registrar of Co-
operative Societies (2002(4) CTC 385) and R.Radhakrishnan vs.
Deputy Registrar of Co-operative Societies (2007(6) MLJ 455).
21. In light of the discussion as aforesaid, and having
arrived at the conclusion that the petitioners are deposit agents,
who receive only a percentage of the deposits as commission
and who enjoy no master-servant relationship inter se the Bank,
the question of regularisation of their services does not arise.
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W.P(MD)Nos.22888 and 23466 of 2019
The conclusion of R1 to the effect that they constitute workman
for the purposes of the Conferment of Permanent Status Act is,
in my view, contrary to the facts and legal position and is hence,
set aside.
22. The Mandamus as sought for by the agents forbearing
the Bank from interfering with their services rendered as
Assistants cannot be granted and impugned order dated
22.03.2018 is set aside.”
9.The learned counsel for the Management had filed additional typed set
of papers indicating that the sanctioned strength of the society is follows:-
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W.P(MD)Nos.22888 and 23466 of 2019
10.The learned Government Advocate also confirms that the post of
Deposit Collection Agent is not one of the approved posts. It does not fall
within the sanctioned strength. Respectfully applying the ratio laid down in the
aforesaid decisions, I have to necessarily hold that the impugned award passed
by the competent authority has to be set aside. The reason for setting aside the
award is that the competent authority has merely focused attention on the
number of days for which P.Thanasingam had worked and the duties and
responsibilities purportedly discharged by him. He has not taken note of the
sanctioned strength of the said society.
11.In this view of the matter, the impugned award is set aside.
W.P.(MD)No.22888 of 2019 is dismissed and W.P.(MD)No.23466 of 2019 is
allowed. No costs. Consequently, connected miscellaneous petitions are
closed.
31.10.2022
Index : Yes / No
Internet : Yes/ No
ias
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.22888 and 23466 of 2019
G.R.SWAMINATHAN, J.
ias
To:
1.The Registrar of Co-Operative Societies,
No.170, E.V.R.Periyar High Road,
Kilpauk, Chennai- 600 010.
2.The Joint Registrar of Co-Operative Societies,
No.39, BDR Naidu Street, (First Floor),
Thoothukudi District.
3.The Inspector of Labour/ Authority Under Tamil Nadu
Industrial Establishment (Conferment of
Permanent Status of Workmen) Act 1981,
Korapallam, Thoothukudi District.
W.P(MD)Nos.22888 and 23466 of 2019
31.10.2022
https://www.mhc.tn.gov.in/judis
