IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.07.2011 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.13009 of 2003 The Management, E.2709, B.Odaiyur Primary Agricultural Co-operative Bank Ltd., Uluthoor, Thalaikulam Post, Chidambaram Taluk, Cuddalore District. ... Petitioner Vs. 1. The Presiding Officer, Labour Court, Cuddalore District. 2. Manimegalai ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorari to call for the records in pursuant to the impugned order passed by the first respondent in I.D.No.44/98, dated 16.12.2002 and quash the same. For Petitioner :Mr.S.M.Subramaniam For Respondents :Mr.S.Balasubramanian for R2 R1 - Court ORDER The petitioner-Management has filed the present writ petition challenging the award dated 16.12.2002 passed by the first respondent-Labour Court in I.D.No.44/98, in and by which, the labour Court directed the petitioner society to reinstate the second second respondent in service. 2. Learned counsel appearing for the petitioner submitted that though the second respondent was appointed on 01.03.1992 in the petitioner's Agricultural Co-operative Bank as temporary clerk on daily wages basis, he was subsequently engaged as Saleswoman in the Fair Price Shop on the same daily wages basis. When the second respondent was not employed or worked as a permanent employee of the https://hcservices.ecourts.gov.in/hcservices/ petitioner society, she cannot be absorbed as a permanent employee, for the reasons that she has not qualified to hold the said post. Secondly, it was submitted by the learned counsel for the petitioner is that the procedure of appointment in co-operative societies are properly prescribed in Rule 149 of the Tamil Nadu Co- operative Societies Rules and as per the approval of the Registrar of Co-operative Societies, every society has to adopt the Special Bylaw and that apart, the cadre strength also should be approved as per the Rule approved by the Registrar of Co-operative Societies. Therefore, the petitioner society, having seen that the second respondent was employed only on daily wages basis, dissatisfying with the performance of the second respondent, terminated her from service on 01.10.1997. Aggrieved by the said order of termination, the second respondent has approached the first respondent-Labour Court by filling a petition in I.D.No.44/98. The Labour Court, after admitting the fact that the second respondent was appointed without reference to the employment exchange, again wrongly given a direction for reinstatement of the second respondent. The said direction, according to the learned counsel for the petitioner, is against the judgment of L.Justine and another v. Registrar of Co-operative Societies, Chennai [2002 (4) C.T.C. 385]. As per the judgment of the Division Bench of this Court, the employees appointed irregularly cannot continue in the post and the only exemption granted is that waiver of sponsoring of employment exchange for the employees appointed prior to 11.03.2001 as per G.O.Ms.No.86, dated 12.03.2001. Since all the employees should possess the required educational qualification and also their appointment should be within the approved cadre strength, the petitioner society, by taking note of the fact that the petitioner was not appointed through employment exchange, terminated the service of the second respondent, on 01.10.1997. 3. When the matter was argued to find out whether the petitioner society has framed any bylaws as prescribed under Rule 149 of the Tamil Nadu Co-operative Societies Rules, though the answer was in affirmative from the learned counsel for the petitioner society, insofar as the cadre strength of the petitioner society is concerned, he was not able to ascertain, and for which, he has also brought to the notice of this Court a receipt showing the telegram sent by him to the petitioner society, but, in spite of that, there was no response from the society. 4. Be that as it may, it is no doubt true that the second respondent was appointed in the petitioner society on 01.03.1992 and thereafter, she was allowed to continue till her services were terminated on 01.10.1997, for about 5 years 6 months. Indeed, the service of the second respondent was terminated on 01.10.1997 on the ground that her performance was not upto the mark. If this being the https://hcservices.ecourts.gov.in/hcservices/ reason for dismissal, the petitioner society should have held a proper enquiry to find out whether her performances were upto the mark or below the level. But, no such enquiry was held for passing the order of termination. Therefore, the approach of the petitioner's society in dismissing the service of the second respondent was wholly unsustainable in law. 5. That apart, when the matter was taken up by the Labour Court, the Labour Court, after taking note of the fact that the second respondent has worked in the petitioner's society for more than 5 1/2 years, on finding that the second respondent though not being appointed with reference to the employment exchange, have ordered reinstatement in service, on the ground that the petitioner society had wrongly terminated the service of the second respondent without holding any enquiry. No doubt, the petitioner's society is entitled to take appropriate action, if they come to know that the second respondent has not satisfactorily discharged her duty during the course of employment in the petitioner society. But, the reasons assigned by the petitioner's society for her termination from service, are not supported by any sound reasons. 6. In that view of the matter, I am of the considered view that the award passed by the first respondent-Labour Court does not call for any interference. But, at the same time, since the second respondent was unemployed from the date of her dismissal i.e., on 01.10.1997 till today, by applying the principles of no work no pay, the petitioner society is directed to implement the award passed by the Labour Court by giving 25% of the backwages, for the reason that the petitioner society, according to the learned counsel for the petitioner, is also not doing well financially, for which, the learned counsel for the second respondent also has no objection. 7. By recording the submission made by the learned counsel for the petitioner as well as second respondent, I am of the view that the payment of 25% of the backwages will meet the ends of justice. Accordingly, the petitioner society is directed to pay 25% of the backwages to the petitioner within a period of four weeks from the date of receipt of a copy of this order. 8. With the above direction, the present writ petition stands dismissed. No Costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar rkm https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, Labour Court, Cuddalore District. 1 cc To Mr.S.M.Subramanian, Advocate, SR.44481 1 cc To Mr.S.Balasubramanian, Advocate, SR.44463 W.P.No.13009/2003 MS (CO) RH (18.8.11) https://hcservices.ecourts.gov.in/hcservices/