Madras High Court
K.Anbazhagan … vs The Joint Registrar Of Co-Operative ... on 22 November, 2023
W.P.No.27257 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2023
CORAM
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
W.P.No.27257 of 2010
M.P.No.1 of 2010
K.Anbazhagan … Petitioner
Vs
1.The Joint Registrar of Co-operative Societies
and Regional Authority,
Thiruvannamalai Region,
Thiruvannamalai District.
2.The Special Officer,
V.L.Spl.149, Thiruvathipuram PACB,
Cheyyar Taluk,
Thiruvannamalai District. … Respondents
PRAYER:- Writ Petition filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorarified Mandamus to call for the
records relating to the order passed by the Joint Registrar of
Co-operative Societies and Revisional Authority, Thiruvannamalai in
rejecting the revision petition filed under Section 153 of the Tamil
Nadu Co-operative Societies Act, 1983 by the petitioner against the
termination in Na.Ka.No.12858/2009, sa pa dated 18.09.2010 in
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W.P.No.27257 of 2010
R.P.No.17/2009/SaPa, quash the same and direct the first respondent to
reinstate the petitioner as Clerk in the second respondent office on in
any one of the existing vacancy under the control of the first
respondent with continuity of service and consequently direct the
respondent to confirm and regularise the service of the petitioner with
effect from the initial appointment viz., 04.11.1996, disburse
backwages with consequential service and attendant benefits attached
to the post, within short date that may be fixed by this Court.
For Petitioner : Ms.G.Sridevi
For Respondents : Mr.S.Ravichandran AGP for R1
Mr.P.M.Muthukumar for R2
ORDER
The Writ Petition had been filed challenging the order of the first
respondent in affirming the order of the second respondent in
terminating the services of the petitioner and seeking a consequential
direction to regularize the services of the petitioner with effect from the
date of initial appointment on 04.11.1996 and to reinstate the
petitioner, and further direct the respondents to disburse back wages
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with all attendant and consequential benefits.
2.Heard Ms.G.Sridevi, learned counsel appearing for the
petitioner, Mr.S.Ravichandran, learned Additional Government Pleader
appearing for the first respondent and Mr.P.M.Muthukumar, learned
counsel appearing for the second respondent.
3. The learned counsel for the petitioner would submit that, the
petitioner was appointed as a Clerk in the second respondent Society on
04.11.1996. The second respondent by a Communication dated
23.09.2002, had terminated the services of the petitioner on the ground
that his appointment was irregular, as he was not appointed through the
Employment Exchange. She would rely upon the Government Order in
G.O.Ms.No.86, Cooperation Food and Consumer Protection (C2)
Department dated 12.03.2001, wherein the services of the person
whose appointment was found to be irregular as not being sponsored by
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the Employment Exchange, on and from 08.07.1980 to be regularized
from the date of issue of the said Government Order subject to
condition that they had completed their work for 480 days in two
succeeding calendar years. She would further submit that, based on the
Government Order in G.O.Ms.No.86, the Employees Union
Association, had filed a Writ Petition in W.P.No.21087 of 2001,
seeking to implement the aforesaid G.O. Ms.No.86 dated 12.03.2001.
This Court by an order dated 09.10.2001, had directed the petitioner to
make appropriate application before the concerned authority and in
meantime the services of the similarly placed persons shall not be
terminated.
4. She would further submit that, the petitioner made an
application on 05.12.2001, and he was called for an oral enquiry on
10.08.2002, in the meanwhile by an order dated 17.07.2002, the second
respondent terminated the petitioner from service. Thereafter, the
petitioner and others filed W.P.Nos.29387 to 29389 of 2002, before
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this Court and this Court by an order dated 08.08.2002, had quashed
the order of termination. After which the second respondent had
conducted a detailed enquiry and had again passed the order of
termination, stating that the name of the petitioner was not sponsored
by the Employment Exchange with effect from 23.09.2002. She would
contend that, challenging the order of termination dated 23.09.2002,
the petitioner and two others filed W.P.Nos.39113 to 39115 of 2002
before a Division Bench of this Court and the Division Bench by order
dated 29.10.2002 had passed a final order fixing certain guidelines.
5. She would further submit that, based on the order of Division
Bench, the petitioner had preferred an Revision before the first
respondent and the same was rejected on 17.12.2007. Aggrieved over
the said order of rejection, the petitioner has filed a Writ Petition in
W.P.No.11564 of 2008 before this Court and this Court by an order
dated 31.07.2009, directed the first respondent to consider the Revision
Petition and pass appropriate orders on merits and in accordance with
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law. Thereafter, on 18.09.2010, the first respondent had confirmed the
order of termination passed by the second respondent. Therefore, the
petitioner had filed this Writ Petition to quash the order of termination
as confirmed by the first respondent and direct the respondents to
regularize the services of the petitioner w.e.f., 04.11.1996 and to
reinstate the petitioner and to pay him the back wages with all attendant
and consequential benefits.
6. Countering her arguments, Mr.S.Ravichandran, learned
Additional Government Pleader would submit that, the appointment of
the petitioner was made in contravention to the Rule 149 of the
Tamilnadu Cooperative Societies Rules, 1988, and an order of
termination was issued to the petitioner only after issuing a show cause
notice and following the principles of natural justice. The termination
of the petitioner from the service was confirmed by the first respondent
in view of the Judgments passed by this Court and also by the Hon'ble
Supreme Court in Civil Appeal Nos.1413 of 2003 etc., batch dated
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28.07.2004, by considering that the appointment itself was made
against Rule 149.
7. The learned counsel for the second respondent would submit
that, there is no dispute that the petitioner was appointed as a Clerk in
the second respondent's office on 04.11.1996, and his appointment was
not made through the employment exchange and he was directly
appointed and that the appointment of the petitioner was not in
accordance with the Rules of the Cooperative Societies Act. He would
submit that, the second respondent had sent a notice to the petitioner
and had conducted enquiry as to why the petitioner should not be
terminated from service. After hearing the petitioner, the second
respondent had passed an order of termination on 23.09.2002.
8. He would further submit that, the appointment of clerks in the
second respondent office including this petitioner was done without the
approval of the Selection Committee and without obtaining
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administrative permission. He would submit that, an interim order of
stay was passed by this Court against the order of termination passed
by the second respondent on 23.10.2002, but the petitioner was
permanently terminated from service on 23.09.2002, so the order of
stay passed by this Court could not be implemented. He would submit
that, based on the order of this Court, the second respondent had not
received any regulations or directions from the Registrar of
Co-operative Societies for reinstating the petitioner back into services.
Therefore, the order of dismissal passed by the second respondent, as
confirmed by the first respondent is correct and does not require any
warrant any interference of this Court.
9. I have considered the rival submission made by the learned
counsels appearing on either side and perused the materials placed on
record.
10. It is an admitted case that the petitioner herein had been
appointed as a Clerk in the year 1996 and his appointment was not
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made through the employment exchange. The Government had issued
a Government Order in G.O.Ms.No.86, dated 12.03.2001, taking into
consideration the appointments that have been made to the various
posts in Co-operative societies, by directing the regularization of such
employees provided that they had completed 480 days of service in the
continuous period of two years. A Division Bench of this Court in a
batch of Writ Petitions, including the Writ Petition filed by the
petitioner, disposed of the claim of the petitioner in terms of a batch of
case, which was disposed of on 29.10.2010, by framing various
guidelines. For better appreciation, the said guidelines are extracted
hereunder:-
(i) that G.O.Ms.No.86, Cooperation, Food and
Consumer Protection Department, dated 12.03.2001
has got the effect of only authorising the regularization
of the employees recruited by the cooperative societies
for the period from 09.07.1980 to 11.03.2001,
exempting the intervention of employment exchange;
(ii) that G.O.Ms.No.86, Cooperation, Food and
Consumer Protection Department, dated 12.03.2001,
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shall not operate for regularization of any employee
recruited by the cooperative societies in violation of
sub-Rule (1) of Rule 149 of the Tamil Nadu
Cooperative Societies Rules an amended by
G.O.Ms.No.212, Co-operation, Food and Consumer
Protection Department, dated 04.07.1995;
(iii) in societies, where the cadre strength has
not been fixed, direct them to adopt the special bye-law
in conformity with sub-rule (I) of Rule 149 of the Tamil
Nadu Cooperative Societies Rules as amended by
G.O.Ms.No.212, Cooperation, Food and Consumer
Protection Department, dated 04.07.1995;
(iv) direct the Registrar of Cooperative Societies
to issue a circular within a week from today calling
upon all the Co-operative societies in the State of
Tamil Nadu to comply with the directions in clause (iii)
supra.
(v) direct that within two months of the approval
of the special bye-laws under sub-rule (1) of the Rule
149 of the Rules, the respective Deputy Registrars of
Co.operative Societies having jurisdiction over the
cooperative societies in their Divisions, shall enquire
by issuing notice to the entire staff recruited from
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09.07.1980 to 11.03.2001, and decide as to whether
the said recruitment is in conformity with the special
bye-laws approved by the Registrar of the Co.operative
Societies and terminate the services of such staff
members, whose appointments are in contravention of
the special bye-laws so approved by the Registrar of
the Co.operative Societies;
It is made clear that while considering the
validity or otherwise of the appointment of the staff
cooperative societies, the requirement of notifying the
vacancies to employment exchange shall not be taken
cognisance of.
(vi) that no cooperative staff member appointed
subsequent to G.O.Ms.No.86, Cooperation, Food and
Consumer Protection Department dated 12.03.2001
otherwise than through employment exchange shall be
continued in service and their services shall be
terminated forthwith.
(vii) that either the provisions of Tamil Nadu
Industrial Establishments (Conferment of Permanent)
Status to Workmen Act, 1981 or the Industrial Disputes
Act, 1947, or the settlements entered under Sections 12
or 18 thereof, shall have no application to the staff of
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the cooperative societies appointed without adequate
qualifications or beyond the cadre strength for the
period from 09.07.1980 to 11.03.2001. This is equally
applicable to the staff appointed to the cooperative
societies otherwise than through employment exchange
for the period from 12.03.2001 onwards.
11. The petitioner's service had been terminated by the
respondent, and an order of termination had been set aside by this
Court on an earlier occasion and remitted the matter back to the
respondent to pass appropriate orders, as this Court had found that
there was an infirmity in the said order. On remand, even after the
Division Bench judgment, the petitioner was again terminated which
came to be set aside by the learned Single Judge and thereafter, the
order impugned had been passed.
12. The respondent had rejected the claim of the petitioner by
relying upon the judgment of the Hon'ble Apex Court in A.Umarani
vs. Registrar, Cooperative Societies & Ors., reported in
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MANU/SC/0571/2004 case by directing that the appointment made is
contrary to the Rule 149 of the Tamil Nadu Co-operative Societies
Rules ought not to be regularised. The judgment of the Hon'ble Apex
Court in A.Umarani's case (stated supra) was a batch of Civil Appeal
filed by the persons against the order of the Division Bench of this
Court, a batch of case including the case of the petitioner, relevant
portion of which had been extracted above. Even though the Hon'ble
Apex Court in many times have said that appointment should not be
made in violation of the Rules and Regulations available and if any
such appointment have been made, those appointees should not be
regularised. The Hon'ble Apex Court had not specifically held that
either G.O.Ms.No.86 or the direction given by the Division Bench of
this Court is bad. Infact, the Hon'ble Apex Court has affirmed the
order of the Division Bench of this Court.
13. The Division Bench of this Court had granted two months
time for approval of the Special Bye-law under Rule 149 of the Rules
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by the respective Deputy Registrars of Co-operative Societies having
jurisdiction over the cooperative society by issuing notice to the entire
staff recruited from 09.07.1980 to 11.03.2001 and decide as to whether
the said recruitment is in conformity with the Special Bye-law
approved by the Registrar of Co-operative society. There was also a
further direction to fix the cadre strength by adopting a Special
Bye-law which shall be approved by the Registrar of Co-operative
societies. Neither of the order passed by the respondents indicate that
the direction issued by the Division Bench of this Court had been
complied with by them. When such exercise has not been carried out,
the respondents cannot be heard to say that there is a violation of Rule
149, as the Division Bench itself has found that Rule 149 had not been
complied with by most of the societies. When that being so, the order
impugned in this Writ Petition is liable to be interfered with.
14. The respondents have proceeded on the basis that the
petitioner's appointment has not been made through the employment
exchange and therefore, it is in violation of Rule 149. Only to cure
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such defect, G.O.Ms.No.86, had been issued by the Government which
was further qualified by this Court by issuing various directions. The
said order came to be challenged by certain persons, who would be not
benefited by such order, had approached the Hon'ble Apex Court. The
Hon'ble Apex Court even though as stated supra in many words that the
Government ought not to have passed such an order had not set aside
the G.O.Ms.No.86, nor has it interfered with the direction issued by the
Division Bench, which was impugned before it.
15. In such view of the matter, I am of the view that the
directions issued by the Division Bench of this Court would have to be
complied with by the respondents. In the present case, I do not find
any compliance of the order passed by the Division Bench as early as in
the year 2022. In such view of the above, the order impugned in this
Writ Petition is set aside. The second respondent is directed to
reinstate the petitioner into service with continuity of service and in
respect of the backwages, since the petitioner had not been working
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from the date of his termination and considering the fact that the order
of termination is not in conformity with the order passed by the
Division Bench of this Court, there shall be a direction to the second
respondent to pay 50% of the backwages to the petitioner.
16. In fine, the Writ Petition is allowed and the impugned order
is set aside with the aforesaid direction. However, there shall be no
order as to costs. Consequently connected Miscellaneous Petition is
closed.
22.11.2023
pbn
Index : Yes/No
Speaking order : Yes/No
Neutral Citations : Yes/No
K.KUMARESH BABU,J.
Pbn
To
1.The Joint Registrar of Co-operative Societies
and Regional Authority,
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Thiruvannamalai Region,
Thiruvannamalai District.
2.The Special Officer,
V.L.Spl.149, Thiruvathipuram PACB,
Cheyyar Taluk,
Thiruvannamalai District.
22.11.2023
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