Madras High Court
The Director Of Agricultural ... vs T.Balakrishnan on 3 July, 2023
W.A.No.1229 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.07.2023
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
AND
THE HON'BLE MR.JUSTICE K.KUMARESH BABU
W.A.No.1229 of 2012
and M.P.No.1 of 2015
1.The Director of Agricultural Marketing
Thirumangalam, Chennai- 600 040.
2.The Secretary
Periyar Market Committee, Erode. .... Appellants
Vs
T.Balakrishnan .... Respondent
Prayer : Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 26.10.2010 made in W.P.No.40359 of 2006 in O.A.No.3741 of
2000.
For Appellants : Mr.K.V.Sajeev Kumar
Additional Government Pleader – for
1st appellant
Mr.V.Jayaprakash Narayanan
-for 2nd appellant
For Respondent : No appearance
https://www.mhc.tn.gov.in/judis
W.A.No.1229 of 2012
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This writ appeal has been directed against the order passed by the writ
court dated 26.10.2010 made in W.P.No.40359 of 2006 which was
renumbered as writ petition after being transferred from O.A.No.3741 of
2000 from the Tamil Nadu Administrative Tribunal.
2. The respondent was an employee ie., Night Watchman at the
appellant Market Committee and he has been engaged as such with effect
from 16.06.1993 and he had been continuously working till 02.07.1998 of
course with intermittent artificial break by the employer after 85 days of
service every time. It is to be noted that after such artificial break, again the
employee has been re-engaged and like that it goes upto 02.07.1998. After
02.07.1998 and from 03.07.1998, the employee was denied the job.
Therefore, immediately he rushed to the Tamil Nadu Administrative Tribunal
and filed an Original Application, where a direction was given to consider his
appeal given for the absorption of the employee on permanent basis
because, he had been working for nearly about five years and more.
3. Only at that juncture, the stand taken by the appellant Market
Committee was that from 03.07.1998, the employee, on his own volition, has
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W.A.No.1229 of 2012
stopped coming or being absented for the job and therefore in his place,
another incumbent had been appointed / engaged. The said stand taken by
the appellant Market Committee was questioned and therefore O.A.No.3741
of 2000 filed by the employee has been transferred to this Court and
renumbered as W.P.No.40539 of 2006. The said writ petition was taken up
for hearing and disposed of by a learned Judge of this Court by the impugned
order dated 26.10.2010.
4. Heard the learned counsel for the appellants.
5. In the impugned order, the learned Judge has culled out the factual
aspects as averred in the counter affidavit filed by the appellant Department
in the writ petition, where the continuous engagement of the employee /
respondent from 1993 till 1998 has been found out and the relevant portion
of the order of the learned Judge reads thus,
" 4. The respondents filed reply affidavit. In the reply
affidavit, it is stated that the petitioner was appointed as Night
Watchman from 16.06.1993 upto 02.07.1998 with breaks. It is
stated that after 1981, appointments are not made through
Employment Exchange and no appointment order was given to
Night Watchmen for their appointment. The second respondent
Market Committee was formed pursuant to the bifurcation of
Coimbatore Committee in 1986. The second respondent Market
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W.A.No.1229 of 2012
Committee is functioning from 11.06.1986 with 23 regulated
sales depot in and around the Erode District, for which 21
watchmen posts were sanctioned to safeguard the agricultural
grains and the market committee buildings. These night
watchmen are not allowed to work more than 80-85 days in a
stretch. These Night Watchmen are not appointed in the time
scale of pay. They are paid wages from the Market Committee
funds. The petitioner is one among the Night Watchmen,
employed from 16.06.1993. Since he absented himself from
03.07.1998 without permission, the petitioner is not entitled for
reinstatement and regularisation.
5. I have considered the submissions made on either side.
From the counter affidavit, it is seen that the petitioner was
employed as Night Watchmen from 16.06.1993 to
02.07.1998.The Night Watchmen including the petitioner were
appointed only for a maximum period of 85 days in a spell and
thereafter a break is given and again these persons are
employed at Coimbatore Regulated Committee. The details of
the employment of the petitioner is given in Para 3 of their
counter affidavit.
From 16.06.1993 to 08.09.1993
From 15.09.1993 to 08.12.1993
From 25.07.1994 to 17.10.1994
From 01.11.1994 to 24.01.1995
From 01.02.1995 to 26.04.1995
From 01.05.1995 to 24.07.1995
From 01.12.1995 to 23.02.1996
From 01.03.1996 to 24.05.1996
From 10.06.1996 to 02.09.1996
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W.A.No.1229 of 2012
From 17.09.1996 to 10.12.1996
From 26.12.1996 to 20.03.1997
From 27.03.1997 to 19.06.1997
From 26.06.1997 to 18.09.1997
From 24.09.1997 to 17.12.1997
From 23.12.1997 to 18.03.1998
From 23.03.1998 to 15.06.1998
From 21.06.1998 to 02.07.1998
The respondents also stated in Para 4 of the Counter affidavit as
follows:
"..... While making appointment to the Market
Committee, the appointment was made through the
Employment Exchange till 16.11.1981.....
....... Thereafter, the respondent Market Committee,
which was functioning under the control of
Coimbatore Regulated Market Committee from
11.06.1986. The present Periyar Market Committee
which is functioning from 11.06.1986 with 23
regulated Sales Depot, in and around the Erode
District, for which 21 watchmen posts were
sanctioned to safeguard the agricultural grains and
the market committee buildings. The respondent
committee engaged the Night Watchman from and
out of the committee funds on daily wages basis.
These Night Watchmen are not allowed to work 80-85
days. These Night Watchmen are not engaged or
appointed in the time scale of pay. These wages are
being paid from the Market Committee funds.
Accordingly, the applicant is one among the persons
engaged on daily wages basis from 16.06.1993."
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W.A.No.1229 of 2012
The aforesaid averment made in the counter affidavit,
makes it clear that though posts were sanctioned, but
appointment to these posts are made only on daily wages basis
without resorting the employment exchange and without issuing
appointment orders. Further, the appointment are made only
for 80-85 days and after a break these persons (Night
Watchmen) were appointed again. It is needless to say that
such procedure adopted by the second respondent, which is
stated under Article 12 of the Constitution of India, is highly
arbitrary and violative under Article 14 of the Constitution of
India. When the petitioner and other market buildings as
averred by the respondents and also when the posts were
sanctioned, the respondents are not justified in keeping the
Hight Watchmen on daily wages basis for years together.
6. The learned counsel for the petitioner produced the
details that was obtained in the website. The following is the
data obtained by the petitioner through the website.
"Staff Shortage
Shortage of staff is another area of concern
for the Committee. As against the 148 sanctioned
posts, only 88 are filled. From Watchmen, to office
assistants to market superintendents, many posts
are vacant."
7. The counter affidavit as well as the data from the
Website makes it very clear that the respondents did not fill up
the vacant post and they managed the affairs by appointing
them only on daily wages basis."
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W.A.No.1229 of 2012
6. Having considered the said factual matrix, the stand taken by the
appellant Market Committee who was the respondent in the writ petition that
the post has not been sanctioned, the employee was not engaged through
employment exchange, that he had been working only for 85 days and
therefore he was not entitled to get absorption or permanency, was
negatived by the learned Judge.
7. The reason for giving such a finding by the learned Judge has been
stated, where it is an admitted fact as culled out from the counter of the
appellant Market Committee in the writ Court that the employee had been
engaged continuously from 16.06.1993 to 02.07.1998. But, every time after
85 days, there has been an artificial break given. The very statement that
has been given in the counter affidavit, as extracted in Para 5 of the
impugned order, itself shows that it was only an artificial break that was
given to the employee and therefore, there is absolutely no gain saying on
the part of the appellant Market Committee that it was a temporary
engagement and he has not been working continuously.
8. If a person worked for 240 days continously in one calendar year, he
is entitled for absorption. Even otherwise, if it is a sanctioned post, where
merely because he has not been engaged through employment exchange,
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W.A.No.1229 of 2012
that will not ipso facto give rise to the reason of the employer to deny such
absorption in view of the factual matrix that he has been continuously
engaged for five years. Without a post being sanctioned, whether one could
be engaged for five years continuously and more over, it is to be noted that
after the denial of the job to the employee with effect from 02.07.1998,
immediately on the very next day another incumbent has been appointed or
engaged. That shows that the post is a permanent in nature and that has
also been taken note of by the learned Judge while passing the order.
9. Having all these aspects, we are of the view that absolutely there
has not been any error on the part of the learned Judge, who allowed the writ
petition, against which the present writ appeal has been filed. For the
aforesaid reasons, we do not find any reason to interfere with the order
passed by the learned Judge. Resultantly, this writ appeal fails and hence it
is dismissed. No costs. Consequently, connected miscellaneous petition is
also dismissed.
(R.S.K.,J.) (K.B.,J,.)
03.07.2023
KST
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
https://www.mhc.tn.gov.in/judis
W.A.No.1229 of 2012
R.SURESH KUMAR, J.
AND
K.KUMARESH BABU, J.
KST
W.A.No.1229 of 2012
03.07.2023
https://www.mhc.tn.gov.in/judis
