The Special officer Palani Agricultural Producers Co-operative Marketing Society Limited vs The Appellate Authority, Deputy Commissioner of Labour and C. Sivakumar

Vinod K. Sharma, J.—The Petitioner invoked the writ jurisdiction of this Court to challenge the order passed by the appellate authority

setting aside the order of termination of the second Respondent.

The Petitioner is a Special Officer of the Petitioner society. The case set up in the affidavit is that the second Respondent is the brother of the

Petitioner-Special Officer of the society. The Petitioner being the Special Officer of the Petitioner society had appointed the second Respondent as

driver of the lorry on 09.01.2004 on daily wages basis at a salary of Rs. 125/- per day in the month of July 2004. The salary of the second

Respondent was thereafter fixed at Rs. 4000/- p.m.

The service of the second Respondent was thereafter terminated without enquiry or prior notice on 12.12.2004. The second Respondent being

aggrieved by the order of termination filed a statutory appeal before the appellate authority. The appellate authority held the order of termination to

be bad in law being violation of Section 41 of the Tamil Nadu Shops and Establishments Act, 1947, which reads as under:

Notice of dismissal--

(1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a

reasonable cause and without giving such person at least one month''s notice or wages in lieu of such notice, provided however, that such notice

shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence

recorded at an enquiry held for the purpose.

(2) The person employed shall have a right to appeal to such authority and within such time as may prescribed either on the ground that there was

no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.

(3) The decision of the appellate authority shall be final and binding on both the employer and the person employed.

The Petitioner challenges the impugned order of the appellate authority by contending that in terms of Rule 49(5) of the Cooperative Societies

Rules no person who is relative as specified under Rule 60(3),of a member of the board or an officer of the society, can be appointed to any post

in the service of the society. The Rule 60(3)stipulates that a member of the board who appoints a close relation shall be disqualified to be the

members of the board. The Registrar of Co-operative Societies also issued a circular directing the elected board of management board or its

officers who had made irregular appointment, to cancel the appointments.

The learned Counsel for the Petitioner by referring to the rules referred to above and by placing reliance on the judgment in the case of A.

Umarani .v. Registrar of Cooperative Societies and other reported in 2004 (4) LLN 8 contends that the appointment which are made in violation

of the procedure laid down in the statutory rules are required to go out of service.

The contention cannot be accepted, as the rules referred to above do make but a ground to terminate the service of an employee but the

termination can only be by following due process of law i.e., following principles of natural justice and to issue notice in terms of the rules. The

observation by the Honourable Supreme Court were made in case the employees who were seeking regularisation of their service after having

rendering number of years of service. The Honourable Supreme Court held that employee not appointed by following rule of procedure cannot

claim regularization, as their appointment is by back door method.

The learned Counsel for the Petitioner also contends that the appellate authority failed to notice that the appointment was void and therefore the

Respondent No. 2 did not have any right to hold the post. The provisions of Section 41(2) of the Tamil Nadu Shops and Establishments Act,

1947 were also not be applicable to the employees of the society.

On consideration, I find no force in the contention raised by the learned Counsel for the Petitioner, even if for the sake of argument, it is taken

Section 41 of the Tamil nadu Shops and Establishments Act, 1949 is not applicable, still the principle of natural justice would be applicable.

In any case, the order of termination was in violation of Section 25(F) of the Industrial Disputes Act. It is well-settled law, that in the absence of

any provision to the contrary, the provisions of natural justice are inbuilt to protect arbitrary action. If for the sake of argument, it is also held that

the Respondent No. 2 was not entitled to the post, still for termination from service minimum requirement of show-cause notice was required

which were not issued.

The service of the second Respondent was not only terminated in violation of the statutory provisions of law, but also in violation of principles

of natural justice. Therefore, no ground is made out to interfere with the impugned order.

The Writ petition is accordingly dismissed. Consequently, connected Miscellaneous Petition is dismissed. There is no order as to costs.

However, it shall be open to employer to terminate the services of Respondent No. 2 in accordance with law.