Madras High Court
The Administrator vs The Assistant Commissioner Of Labour on 29 August, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.7252 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON :21.08.2025
ORDER PRONOUNCED ON : 29.08.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.7252 of 2025
and WMP(MD).Nos.5478, 5479 & 5480 of 2025
The Administrator
MD.SPL.21, Gudalur Co-operative Stores Ltd.,
Gudalur 625 518
Uthamapalayam Taluk
Theni District ....Petitioner
Vs
1.The Assistant Commissioner of Labour
Authority under the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workmen) Act, 1981
Theni
2.M.Karunai Raja
3.The Deputy Registrar of Co-operative Societies
Uthamapalayam Circle
Theni District ….Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, to call for the records relating to the impugned
order passed in C.P.S.No.289/2022 dated 25.10.2022 on the file of the
Respondent No.1 and quash the same as illegal.
1/13
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W.P(MD).No.7252 of 2025
For Petitioner : Mr.M.Ajmalkhan
Additional Advocate General
Assisted by Mr.G.V.Vairam Santhosh
Additional Government Pleader
For Respondent : Mr.M.Ganesan for R2
:M/s.D.Farjana Ghoushia
Special Government Pleader for R1 & R3
ORDER
The present writ petition has been filed by the Administrator of a
Co-operative Society challenging the order passed by the first respondent
herein conferring permanent status upon the second respondent invoking the
provisions of Tamil Nadu Industrial Establishments (Conferment of
Permanent Status to Workmen) Act, 1981 ( CPS Act).
(A)Factual Background:
2.The second respondent herein was appointed as an Escort on
07.09.2019 for escorting the lorries while transporting commodities from
godown to the fair price shops. This appointment is through an out-sourcing
agency who had supplied man power. On 13.10.2021 by way of Board
Resolution, the second respondent was appointed as a Packer in a fair price
shop and brought under the direct employment of the Co-operative Society.
3.The second respondent herein had filed an application before the first
respondent herein on 02.02.2022 in C.P.S.No.289 of 2022 claiming that he
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had completed 480 days of service in the Co-operative Society in 24 calender
months and sought conferment of permanent status as a Packer.
4.A counter was filed by the third respondent herein contending that
the second respondent was an out-sourced employee and therefore, he cannot
seek conferment of permanent status. It was further contended that as per
judgment of the Hon'ble Division Bench of our High Court reported in 2002
(4) CTC 385 (L.Justine and another Vs. The Registrar of Co-operative
Societies, Chennai-10 and two others), CPS Act cannot be invoked in order
to confer permanent status upon the Co-operative employees, especially when
the appointment has not been made by the District Recruitment Bureau as
contemplated under Tamil Nadu Co-operative Societies Act.
5.The first respondent herein by the impugned order dated 25.10.2022
had allowed the application directing conferment of permanent status upon
the second respondent from 29.12.2020 as a Packer. On 31.10.2022, a Board
Resolution was passed by the Society accepting the order passed by the first
respondent and conferring permanent status upon the second respondent with
effect from 29.12.2020. These facts are not in dispute.
6.Challenging the order passed by the authority under C.P.S Act, the
present writ petition has been filed by the Administrator of the Co-operative
Society.
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(B).Submissions of the learned counsels appearing on either side:
7.The learned Additional Advocate General appearing for the Society
submitted that as per Tamil Nadu Co-operative Societies Act and Rules
thereunder, the appointment of a Packer has to be made only by the District
Recruitment Bureau. Therefore, the Society is not the appointing authority at
all. Hence, the appointment made on 13.10.2021 by the Society is illegal.
8.The learned Additional Advocate General had further submitted that
from 07.09.2019 to 13.10.2021, the employee was working under an
out-sourcing agency. He was also drawing salary only from the said agency
namely security service. Therefore, the said period ought not to have been
taken into consideration for conferring permanent status upon the employee.
He had further submitted the fact that he was an out-sourced employee was
suppressed before the first respondent and an order of permanent status has
been obtained.
9.The learned Additional Advocate General had further submitted that in
view of judgment of the Hon'ble Division Bench of our High Court reported
in 2002 (4) CTC 385 (L.Justine's case), C.P.S Act is not applicable to the
appointment made in the Co-operative Society. This appointment is not only
illegal, but a back door entry, in violation of the provisions of the
Co-operative Societies Act. He had further submitted that the judgement of
the Hon'ble Division Bench was confirmed by the Hon'ble Supreme Court in
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a judgment reported in (2004) 7 SCC 112 (A.Umarani Vs.Registrar, Co-
operative Societies and others). However, the Society has proceeded to
appoint the petitioner in the year 2021 is clear violation of the statutory
provisions as well as the judgment of this Court and the Hon'ble Supreme
Court.
10.The learned Additional Advocate General had further submitted that
within a week from the date of passing of the order of the C.P.S authority, the
Society has passed a board resolution on 31.10.2022 complying with the
order of C.P.S authority. When initial appointment is illegal, merely because
the order of C.P.S authority was complied with by the society, that will not
prevent the Society from challenging the validity and jurisdiction of the
authority to pass an order conferring permanent status upon the second
respondent.
11.The learned Additional Advocate General relied upon Rule 150(5)
(c) of the Tamil Nadu Co-operative Societies Rules, 1988 and contended that
the post of Packer has been brought within the purview of the District
Recruitment Bureau from the year 2016 onwards. In such circumstances,
without following the recruitment procedure, by way of a board resolution,
appointed the second respondent, which is clearly illegal cannot be taken
advantage of by the employee. Hence, he prayed for allowing the writ
petition.
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12.Per contra, the learned counsel appearing for the second
respondent/employee submitted that it is true that the workman was initially
appointed through an out-sourcing agency in the year 2019. However, that
will not preclude him from relying upon the said period for claiming
permanent status. When the workman was drawing salary from the Society
through an out-sourcing agency as an unlettered man, he was not aware of the
technicalities. Hence, the order of the authority under C.P.S.Act cannot be
found fault with.
13.The learned counsel appearing for the second respondent further
submitted that C.P.S Act is a special enactment and therefore, it overrides the
provisions under Tamil Nadu Co-operative Societies Act. He had further
pointed out that the first respondent has passed the impugned order on
25.10.2022. However, the writ petition has been filed belatedly after a period
of 3 years. Hence, the writ petition has been dismissed on the ground of
laches.
14.The learned counsel for the respondent further contended that when
the order impugned in the writ petition has already been implemented by the
Society by way of resolution dated 31.10.2022, thereafter, the same Society
cannot file the present writ petition challenging the order conferring
permanent status. The Society is estopped from challenging the order after
implementing the same.
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15.The learned counsel for the respondent had relied upon a judgment
for the Hon'ble Supreme Court reported in 2024 SCC Online SC 3826
(Jaggo Vs. Union of India and others) and contended that the Government
Department cannot engage the workers on a temporary basis for an extended
period when their work is perennial in nature. Hence, he prayed for dismissal
of the writ petition.
16.Heard both sides and perused the material records.
(C). Discussion:
17.A perusal of the impugned order reveals that the first respondent has
also taken into consideration the period during which the workman was
employed as an out-sourced employee for calculating 480 days. In fact, the
workman was appointed as an employee of the Society only on 13.10.2021
and the impugned order has been passed on 25.10.2022 as if the workman has
completed 480 days within a period of 24 months.
18.That apart, the initial appointment of the workman through the
out-sourcing agency is that of an Escort to lorries. He was appointed as a
Packer only on 13.10.2021. Under the impugned order, the CPS authority has
proceeded to confer permanent status upon the workman as a Packer from
29.12.2020 onwards. Therefore, it is clear that, on the face of it, the order of
the first respondent is not sustainable in the eye of law.
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19.The Hon'ble Division Bench of our High Court in a judgement
reported in 2002 (4) CTC 285 had an occasion to consider the interplay
between the C.P.S Act and the Tamil Nadu Co-operative Societies Act and
Rules thereunder with regard to appointment of an employee in
Co-operative Society and conferment of permanent status. Paragraph No.15
of the said judgment is extracted as follows:
“15.......The provisions of either the Permanency Act of 1981
or of the Industrial Disputes Act 1947 cannot also be pressed into
service when the appointments are ipso facto illegal and
unauthorised. We cannot accede to the contention that even if the
appointment is illegal and unauthorised, merely on the passage of
time and completion of the stipulated period of 480 days under the
Permanency Act of 1981 or 240 days under the , Industrial Disputes
Act, 1947an indefeasible right accrues to an employee. Such an
argument is clearly untenable. If we accept the said argument, then
there is no need for any law and finally, the concept of rule of law
loses its significance. The conduct of personnel manning the
cooperative societies while recruiting the staff is reprehensible....”
20.This judgment was confirmed by the Hon'ble Supreme Court in a
judgment reported in (2004) 7 SCC 112 (A.Umarani Vs. Registrar,
Co-operative Societies and others). Paragraph Nos. 30, 35, 38 and 39 are
extracted as follows:
“30.The State had framed rules in exercise of its power
conferred upon it under Section 180 of the 1983 Act in the year
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1988. Rule 149 of the 1988 Rules provides for a complete code as
regard the mode and manner in which appointments were required
to be made and the process of appointments is required to be
carried out. In terms of the said Rule, requirements to possess
educational qualification and other qualifications had been laid
down. One of the essential qualifications laid down for holding
certain posts is 'undergoing cooperative training and previous
experience.
35.No appointment, therefore, can be made in deviation of or
departure from the procedures laid down in the said statutory rules.
38.Provisions of the Act and the Rules framed thereunder
reflect the legislative recruitment policy. The said provisions are,
thus, mandatory in nature.
39.Regularisation, in our considered opinion, is not and
cannot be the mode of recruitment by any "State" within the
meaning of Article 12 of the Constitution of India or any body or
authority governed by a Statutory Act or the Rules framed
thereunder. It is also now well-settled that an appointment made in
violation of the mandatory provisions of the Statute and in
particular, ignoring the minimum educational qualification and
other essential qualification would be wholly illegal. Such illegality
cannot be cured by taking recourse to regularisation. (See, State of
H.P. Vs. H.P.Suresh Kumar Verma.).”
21.In view of the judgments cited supra, it is clear that CPS Act cannot
be invoked, to violate the statutory recruitment procedure as contemplated
under Tamil Nadu Co-operative Societies Act read with the concerned Rules.
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22.Section 74 of the Tamil Nadu Co-operative Societies Act, 1983
provides for constitution of Recruitment Bureaus at the State or District level
for recruitment of various categories who paid officers and servants. Rule 150
of the Tamil Nadu Co-operative Societies Rules 1988 deals with Constitution
of Recruitment Bureau. As per Rule 150(5)(c), the salesman and packer for
employment in the fair price shops under Public Distribution System have
been brought within the purview of Recruitment Bureau for a Revenue
District. These amendments have been introduced with effect from
05.01.2016. Therefore, it is clear that after the said date, no appointments can
be made through a Board Resolution. However, in the present case, the
second respondent has been appointed as a Packer by way of Board
Resolution on 13.10.2021. It cannot be considered a mere irregular
appointment. On the other hand, it is clearly an illegal one. In such
circumstances, as rightly pointed out by the learned Additional Advocate
General, the Division Bench judgment of our High Court and the judgment of
the Hon'ble Supreme Court would be squarely applicable to the facts of the
present case.
23.The learned counsel for the respondent had contended that when the
impugned order has already been implemented by the Society by way of
resolution dated 31.10.2022, thereafter the Society is estopped from
challenging the said order by filing the present writ petition. As pointed out in
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the previous paragraphs, the appointment is in violation of the statutory
provisions. In such circumstances, the plea of estoppel cannot be raised as a
defence as against the violation of the statutory provisions in order to defend
the illegal appointments.
24.In fact, in Justine's case, it has been categorically held that the
provisions of C.P.S Act, cannot be pressed into service when the appointment
is ipso facto illegal and unauthorised. Relying upon the judgment of the
Hon'ble Supreme Court (Jaggo's case), the learned counsel for the workmen
had contended that the Government cannot be run by employing the
temporary employees. A perusal of the said judgment reveals that it relates to
sanitary workers who had put in more than 20 years of service. Further, the
appointments in that case were not in violation of any statutory provisions.
Therefore, the said judgment is not applicable to the facts of the present case.
(D).Conclusion:
25.In view of the above said deliberations, the order impugned in the
writ petition is not sustainable in the eye of law and the same is hereby set
aside. The writ petition stands allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
29.08.2025.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
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To
1.The Assistant Commissioner of Labour
Authority under the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workmen) Act, 1981
Theni
2.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).No.7252 of 2025 and
WMP(MD).Nos.5478, 5479 &
5480 of 2025
29.08.2025
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