Tamil Nadu Civil Supplies Corporation Ltd. vs D. Gopal

N. Dhinakar, J.—The appellant, aggrieved by the impugned order of the learned single Judge in W.P. No. 519 of 1989, has chosen to

prefer the above appeal.

The appellant in this writ appeal was the respondent in the writ petition and the writ petition was filed by the respondent in this writ appeal with a

prayer to issue a writ of certiorari to call for the records relating to the proceedings of the appellant in Re No.H2/63635/84, dated September 2,

1988, and to quash the same. The learned single Judge allowed the petition and directed the appellant-Corporation to regularise the services of the

respondent in this appeal at the basic pay of the lowest grade of employees at the lowest pay-scale of the Corporation with effect from the date of

filing of the writ petition. Hence, the writ appeal.

The respondent was appointed as N.M.R in the appellant-Corporation on December 10, 1978 and he was working in the construction wing on

a daily wage of Rs. 15. He was working continuously for more than ten years. As the respondent was demanding regularisation of his service in the

Corporation, the management took a considered view and initiated necessary steps to bring the respondent under regular establishment as per

provision of the service rules governing the appellant-Corporation. Hence, the matter was placed before the Board of Directors at a meeting held

on April 28, 1984 and after deliberation, the Board finally decided to obtain necessary orders from the Government. The Government by its order,

dated September 2, 1988, issued orders of termination, terminating the respondents as well as five others and directed the appellant-Corporation

to relieve the respondent with immediate effect. Therefore the writ petition was filed by the respondent before the learned single Judge to quash the

said order of termination. The learned single Judge, taking into consideration two judgments, one by the Supreme Court reported in Bhagwati

Prasad Vs. Delhi State Mineral Development Corporation, and also an unreported judgment of this Court in M. Arumugham and 27 others v.

Tamil Nadu Civil Supplies Corporation Ltd. rendered in W.P. Nos. 16001 and 16181 of 1990, passed the impugned order directing absorption

and payment of back-wages of the respondent-employee.

The learned counsel appearing for the appellant submits that the learned single Judge was not justified in directing the Corporation to absorb and

pay back-wages to the respondent, since he did not even possess the minimum qualification prescribed which is a pass in VIII standard, to be

regularised as N.M.R. in the Corporation and therefore, the Government had to terminate the services and accordingly, terminated. She also

further submits that since the respondent was appointed as N.M.R. there is no question of absorption and in any event, he has also attained

superannuation, as he has crossed the age of 58 years and therefore, he cannot be absorbed in the Corporation.

On the above contention, we have heard Sri S. Venkataraman, learned counsel appearing for the respondent. He submits that as the respondent

was working continuously for more than 480 days and was working for more than ten years in the Corporation as N.M.R. the order of termination

has caused grave prejudice and he should have been continued at least as N.M.R in the appellant-Corporation. It is his submission that the Order

of the Government, dated September 2, 1988, does not even disclose the ground on which his termination was effected and therefore, the said

order is to be set aside and the order impugned must be confirmed.

We have carefully considered the rival contentions. The facts, which we have extracted above, are not in dispute. The respondent, admittedly,

did not possess a pass in VII standard; but was taken as N.M.R. by the Corporation on December 10, 1978, in which post, he continued till his

services were terminated by the Government by an order, dated September 2, 1988. In fact, a perusal of the counter-affidavit shows that the

Board of the Corporation wanted to absorb him and therefore, recommended his case to the Government to bring the respondent under the

regular establishment; but unfortunately, the Government, on the ground that the respondent did not possess the requisite qualification, felt that he

cannot be continued as N.M.R. and therefore, passed the order of termination on September 2, 1988. We have specifically asked the counsel for

the appellant as to the provisions under which the appellant-Corporation is required to obtain necessary permission from the Government to

regularise the respondent in the Corporation; but the counsel is not able to point out any provision or rule requiring the Corporation to address the

Government for obtaining necessary orders from the Government to regularise his services. In any event, the respondent was terminated and has

also attained superannuation and even if we dismiss this writ appeal at this stage, the respondent cannot be regularised in service as he has already

crossed the age of 58 years.

Further, we are of the view that the order of the learned single Judge setting aside the order of termination, dated September 2, 1988, has to be

confirmed since in our view the interest of justice requires that the respondent should have been continued in service at least as N.M.R. in the

appellant-Corporation till he attained the age of superannuation since he was continuously working in the said Corporation as N.M.R. for more

than ten years and it will be travesty of justice if one fine morning he is terminated from service on the ground that he has no requisite qualification.

The Corporation ought to have known the nature of qualification required for a person to be taken as N.M.R. and the Corporation having taken

the respondent as N.M.R. even though he did not possess the requisite qualification and having allowed him to continue in service for more than

ten years, was not justified in passing the order of termination. Therefore, we uphold the order of the learned single Judge setting aside the order of

termination passed by the Government on September 2, 1988. But in our view, the interest of justice required that the respondent should be at

least treated as N.M.R in the appellant-Corporation from the date of his termination till he attained the age of superannuation. It is admitted that

though he was paid Rs. 15 as daily wages, the Corporation was enhancing the daily wage of N. M. R. every year and we are told that as on

today, N.M. Rs. in Public Works Department are getting Rs. 66 per day as fixed by the State Government. We feel that we can conveniently take

that amount of. Rs. 66 as the daily wages of N.M.R. in the Corporation. However, as the respondent was not working during the relevant period,

we feel that interest of justice requires that his daily wage is to be fixed at Rs. 15 when the order of termination was served upon him. He has been

out of work for the past 14 years and in the normal course, if he had been employed, he would have obtained more than Rs. 56,000 on the basis

that on an average the respondent would have worked as N.M.R. for 25 days in a calendar month. We, therefore, feel that to meet the ends of

Justice, the order of the learned single Judge, though has to be modified to the extent that the respondent need not be absorbed, the appellant-

Corporation has to pay a sum of Rs. 50,000 (Rupees Fifty Thousand only) to the respondent, which he would have normally earned as wages for

the last 14 years even fixing at Rs. 15 per day. We, accordingly, direct the appellant-Corporation to pay a sum of Rs. 50,000 to the respondent

within four weeks from today.

With the above modification, this writ appeal is disposed of. The parties shall bear their respective costs in this appeal.