AI Structured Summary
Not yet generated for this judgment
Judgment
T. Meenakumari, J.—W.P. No. 5874 of 1990 is a petition to issue a Writ of Certiorari for quashing the order No. 156357/ICNI/89 dated 31.3.1990 of the second Respondent and the consequential order dated 21.4.1990 of the first Respondent.
W.P. No. 5901 of 1990 is a petition to issue a Writ of Certiorari for quashing the order No. 156357/ICNI/89 dated 31.3.1990 of the second Respondent.
In W.P. No. 5874 of 1990 the case of the Petitioner is that he was appointed as a Manager at the Erula Snake Catchers Industrial Co-operative Society. The above Society has been formed with an objective of catching snakes and extracting venom from the snakes. The Petitioner has joined the services of the Society on 1.9.1983 as a part-time accountant. Then, he acquired experience in catching snakes and extraction of venom. On 7.2.1984, he was appointed as the Manager and by the order of the first Respondent dated 21.4.1990, the services of the Petitioner has been terminated on the ground that his appointment was against the Rules and Regulations.
In the other W.P. No. 5901 of 1990, the Petitioner has been appointed as the Assistant in the same Society on 2.5.1985. The first Respondent has chosen to terminate her services by the impugned order dated 21.4.1990 stating that her appointment was against the Rules and Regulations, that is, she has not been appointed through the Employment Exchange. As the facts are similar, I have decided to decide the matter by common order.
It has been contended by the learned Counsel for the Petitioners that both the Petitioners have been working in the Society since many years irrespective of the fact that the services of the Petitioners in the Society involve risk to their life as they have to work with different types of snakes and to extract the venom which is used to prepare the anti snake bite serum. They were working in the Society since the date of their appointment without any complaint. While the things stood thus, the Senior Counsel advanced his arguments basing on the letter of Assistant Director to Industries and Commerce (Indl, CooPs) Chengalpattu, Guindy, Madras-32 in Rc. No. 1181/A/85 dt. 26.7.1985 addressed to the President of the Respondent Society wherein the Assistant Director has directed the Respondent Society to submit the necessary proposals for regularising the appointment of staff, not appointed through Employment Exchange supported by reasons for retaining them in view of risky nature of the work in the society. In reply to the above letter, the President of the Society has addressed to the Assistant Director, Department of Industries and Commerce, Madras-32 dt. 19.7.1985 stating the reason that they have to work with the dangerous snakes all around to extract venom. The Senior Counsel has relied upon the letter of the General Manager, District Industries Centre, Madras-32 in RC No. 1181/85/ICB dated 22.2.1985 wherein it has been stated that the removal of the employees from the service will affect the normal functioning of the Society as they have already habituated to the hazards of this peculiar nature of profession like extraction of venom from snakes and handlings of snakes for the above purpose. The General Manager has also stated that the Registrar is empowered to sanction such exemption under bylaw No. 37(3) of the Society and he has recommended granting of exemption subject to the condition that the individuals should undergo co-operative training in a trained institute within two years. Then reminders were being sent by the General Manager to Director of Industries and Commerce for regularisation of the staff in the Society. On 24.1.1990 also the General Manager again has addressed to the Director of Industries. In the above letter he has categorically stated that the catching of snakes and extraction of venom is not a regular trade which could be carried on by all. This could be attended to only by certain specified persons who have acquired sufficient skills, knowledge and practical experience. Even if the employment exchange was consulted to send a list of candidates possessing the above qualifications, in all probability the Society would not have obtained suitable candidates possessing the above qualifications. He has requested to ratify the appointments as a special case. On 73.1990 again he wrote a letter. The Director of Industries and Commerce by his proceedings No. 156357/ICN1/89/31.3.1990 addressed a letter to the General Manager, directing him to remove the incumbents from the office as the above appointments are against the Rules and Regulations. In view of the above the Society has passed the impugned order on 21.4.1990 terminating the services of the Petitioners as their appointments were against the Rules and Regulations. The Respondent''s counsel has stated even though he has sent a telegram to the Respondent Society he did not receive any instructions.
In this case I have gone through the entire correspondence between the Assistant Director and the Government Department. The first Respondent in his letter RC. No. 1181/A/85 dt. 26.7.1985 has requested the Society to send for proposals for regularisation stating the reason for retaining them in view of risky nature of the work in the Society. The President has sent the reply on 19.7.1985. The General Manager also addressed number of letters to the Industries Commissioner and Director of Industries & Commerce to ratify their appointment, in view of the fact that the functioning of the individuals involves the risky nature of extracting venom from the snakes and the Registrar is empowered to sanctiqn exemption under bylaw No. 37(3). The correspondence shows that there was no response from the Director of Industries till 31.3.1990 nearly after a period of one year and by the letter R.C. No. 156357/ICN1/89/dated 31.3.1990 directed to remove the Petitioners from the services as they are not employed through Employment Exchange. Based on the above the Society has removed the services of the Petitioners. The above order of the Director of Industries as well as the orders of the Society shows that they have passed mechanically without applying the provisions of the bye-laws and without following the principles of natural justice. The order of the Director of Industries shows that he has not taken into consideration the recommendation by the General Manager of District Industries Centre in his letter dated 22.2.1989 where, he has recommended for the sanction of exemption under bylaw 37(3) of the Society subject to the condition that the individuals should undergo cooperative training in a recognised co-operative training institute within 2 years. It can be stated that the Director of Industries has failed to take into consideration the letter of the Assistant-Director, Industries and Commerce Department dated 26.7.1985 wherein the Assistant Director has addressed a letter to the Society to send proposal for retaining them in view of the risk of the work in the Society. It is also to be noted that the authorities have failed to observe the principles of natural justice before passing the impugned order as they have not been issued any notice before passing the final orders.
The learned Counsel for the Petitioner has relied upon the judgment reported in Union of India (UOI) and Others Vs. N. Hargopal and Others, to substantiate his contention that the employer is not bound by the provisions of Employment Exchange. In the above judgment the Supreme Court has observed that there is no provision in the Act which obliges an employer to make appointments through the agency of the Employment Exchanges. It is also made clear that the employer is under no obligation to recruit any person through the Employment Exchanges to fill in a vacancy merely because that vacancy has been notified u/s 4(1) or Section 4(2). It cannot be said that the Act imposes any obligation on the employers apart from notifying the vacancies to the Employment Exchanges.
In this case it can be stated that the services rendered by the employers in the Society is of a very risky nature, that is catching of snakes and extracting venom and it can be attended to only by certain specified persons who have acquired sufficient skill for the same and experience. The letter of the General Manager dt. 24.1.1990 addressed to the Director of Industries also supports that even if the employment exchange was addressed there are no proper candidates who are willing to work in the above Society because of the risk. The authorities have also failed to follow the principles of natural justice.
In view of the above the impugned orders are set aside and the Writ Petitions are allowed.
It is also further observed that the letter of the Assistant Director in R.C No. 1181/A/85 dated 26.7.1985 is binding on the Respondents and the Respondents are bound to act upon their own letter. In view of the above the Respondents are directed to ratify the action of the Society in appointing the above Petitioners within a period of eight weeks from the date of receipt of copy the order.
Accordingly the W.P. Nos. 5874 of 1990 and 5901 of 1990 are allowed.