Prayer in W.P.No.11902/2001:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified mandamus calling for the records relating to the issuance of the impugned proceedings issued by the third respondent under reference Na.Ka.No.9976/E2/99, dated 18.5.2001 and quash the same and for a direction in the nature of mandamus directing the respondents to pay the arrears of salary to one Thangaraj as determined by the Labour Court in C.P.No.825 of 1994 dated 28.4.1996 viz., a sum of Rs.46,956/- to the said Thangaraj and pass suitable order.
Prayer in W.P.No.53/2002:- Writ petition filed under
Article 226 of Constitution of India, praying this Court to issue a writ of certiorari calling for the records relating to the issuance of the impugned order dated 31.12.2001 issued by the third respondent under reference D.Dis.10508/D2/2001 and quash the same.
The prayer in W.P.No.11902 of 2001 is to quash the order of the third respondent dated 18.5.2001 and direct the respondents to pay arrears of salary to Thangaraj as determined by the Labour Court in C.P.No.825 of 1994 dated 28.4.1996, i.e., a sum of Rs.46,956/- and the prayer in W.P.No.53 of 2002 is to quash the order of the third respondent dated 31.12.2001 recovering Rs.46,956/- from the salary grant of the petitioner College from December, 2001.
2. The case of the petitioner College as could be seen from the affidavit are as follows:
(a) The petitioner College is a non-profit Charitable Educational Society, registered under the Societies Registration Act. It owns the Madras School of Social Work, affiliated to Madras University. The grant-in-aid is paid by the Government of Tamil Nadu to teaching and non-teaching staff appointed in sanctioned posts. The petitioner College is a non-fee levying college for its students and only the permissible fee by the department is collected.
(b) One Thangaraj was appointed as night watchman on 8.3.1983 in the College in a sanctioned post. Prior to the said appointment on 3.2.1983, the petitioner management sought for permission to fill up the post of night watchman. The third respondent by order dated 3.3.1983 granted permission to fill up the said post subject to four conditions viz., (1) the appointment procedures should be followed; (2) the appointment should be made through employment exchange; (3) the communal rotation should be followed; and (4) the candidate should be in a position to read and write.
(c) In order to comply with the said conditions, the petitioner college called for a list of candidates from the Employment Exchange and the candidates sponsored by the Employment Exchange, who appeared for the interview were not found suitable. Another list was sought for from the Employment Exchange or to issue a certificate of non-availability of candidates. No reply was received from the Employment Officer. Therefore, the said Thngaraj, who was having previous experience as night watchman, whose name was not sponsored through the Employment Exchange, though he had registered his name in the Employment Exchange, was appointed. Salary was claimed along with other staff members for the said Thangaraj also. The third respondent sanctioned salary and paid the same to the said Thangaraj also for more than seven years.
(d) By order dated 25.7.1990, the third respondent refused to pay salary to the said Thangaraj from July 1990 on the ground that the third respondent has not approved the appointment as he was not appointed properly and the salary payable to the said Thangaraj having been stopped by the third respondent the said Thangaraj was discharged from service.
(e) On 29.10.1990, the said Thangaraj claimed reinstatement through the Workers Union. On 8.11.1990 a reply was given to the claim made by the said Thangaraj. Not satisfied with the reply he raised I.D.No.13 of 1991 before the Second Additional Labour Court, Madras, and the Labour Court passed an award on 24.7.1994 in favour of the said Thangaraj and ordered reinstatement with backwages and continuity of service.
(f) Based on the award passed by the Labour Court, the management directed the said Thangaraj to report for duty on 2.1.1995. After reinstatement, the award of the Labour Court was challenged by the petitioner management in W.P.No.1089 of 1995 and an interim stay of the award for a period of 12 weeks was obtained by order dated 24.1.1995.
(g) The said Thangaraj filed a claim petition No.825 of 1994 under
section 33(c)(2) of the Industrial Disputes Act, 1947, for computation of salary payable to him as per the Labour Court award. When the WMP was posted for hearing on 31.7.1995, this Court permitted the Labour Court to proceed with the Claim petition No.825 of 1994 and ordered that the final order to be passed in the claim petition will be implemented after getting permission from this court and the writ petition was ordered to be posted for final disposal on 21.12.1995.
(h) The Labour Court by order dated 28.4.1996 allowed the claim petition and ordered to pay a sum of Rs.46,956/- and the said amount was ordered to be paid by the respondents 1 and 2 herein. The writ petition filed by the management was dismissed by this Court on 6.11.1997. Consequently the award passed by the Labour Court for reinstatement with backwages on 27.4.1994 was confirmed.
(i) The award passed in C.P.No.825 of 1994 has not been challenged by the respondents 1 and 2. However, the third respondent passed the impugned order dated 18.5.2001 by stating that the petitioner management has to pay the said arrears of salary of Rs.46,956/-, failing which the same will be deducted from the grant payable to the management. Subsequently the said amount was ordered to be recovered from the salary grant payable for the month of December, 2001, by order dated 31.12.2001.
(j) The said order dated 18.5.2001 is challenged in W.P.No.11902 of 2001 on the ground that the claim petition No.825 of 1994 having been ordered with a direction to pay the said amount to the said Thangaraj by the respondents 1 and 2, the third respondent has no jurisdiction to give direction to the petitioner management to pay the same, and that the services of the said Thangaraj was discharged on the direction issued by the third respondent and therefore the management cannot be asked to pay the said amount as he was apointed in a sanctioned post/aided post.
3. In W.P.No.53 of 2002, the order passed by the third respondent dated 31.12.2001 is challenged, wherein the amount payable to the said Thangaraj as per the award of the Labour Court viz., Rs.46,956/- has been deducted from the salary grant payable to the petitioner College for the month of December, 2001.
4. The respondents have filed counter affidavit by stating that the appointment of teaching and non-teaching staff in the petitioner College has to be done as per the rules and regulations prescribed from time to time and the College has not appointed a person sponsored by the Employment Exchange and the same was found at the time of auditing by the Joint Director of College Education, Chennai, and therefore salary was stopped to the said Thangaraj with effect from October, 1990. It is also stated that the petitioner management having challenged the award of the Labour Court, ordering reinstatement and backwages and the same having been dismissed, the petitioner is bound to pay the arrears of salary and therefore the impugned order passed by the third respondent giving direction to pay the arrears of salary to the said Thangaraj is legal and valid.
5. Heard the learned counsel for the petitioner as well as the learned Additional Government Pleader for the respondents.
6. The issues to be decided in these writ petitions are as follows:
(1) Whether the respondents are justified in giving direction to the management to terminate/discharge the said Thangaraj from his service as night watchman ?
(2) Whether the third respondent is justified in not implementing the order made in C.P.No.485 of 1994, wherein a direction was given to the respondents 1 and 2 to pay the same ?
7. Issue No.1: The issue as to whether a person can be appointed only on sponsorship through Employment Exchange was considered by the Supreme Court in the decision reported in (1996) 6 SCC 216 (Excise Superintendent v. K.B.N.Visweshwara Rao). In the said decision it is held that sponsorship through Employment Exchange is a source and cannot be the exclusive source. It is open to the appointing authority to get list from other sources viz., issuing advertisements through newspapers, by making Tom-tom, inviting applications through notice board, etc.
8. A Full Bench of this Court in the decision reported in 2008 (2) CTC 337 (State of Tamil Nadu v. S.S.Somasundaram)(FB) considered the very same issue in respect of private schools are concerned. The reference to the issue was made before the Full Bench in view of the conflicting decisions of the Division Bench Judgment reported in 1995 WLR 499 (State of Tamil Nadu v. Tamil Nadu Recognised Private Schools Managers' Association) and 2003 WLR 31 (Nehru Memorial College v. The State of Tamilnadu). The Division Bench in the school case, upheld the appointment made in private aided schools without reference to the Employment Exchange upto 17.2.1995, and appointments made thereafter were ordered not to be approved. The later Division Bench in the College case held that the appointments made even through the applications received from the candidates on other modes, such as paper publication, etc., can also be approved. The Full Bench in the above referred decision, overruled the decision of the Division Bench reported in 1995 WLR 499 (cited supra) and held that the restriction with regard to the approval upto 17.2.1995 as ordered by the Division Bench is invalid and appointments made through other modes are also valid. The Division Bench decision reported in 2003 WLR 31 (cited supra) was approved by the Full Bench and further directed to approve the appointment of the teacher, without sponsorship through Employment Exchange.
9. Applying the said decision of the Full Bench to the case on hand, I hold, the appointment made by the management insofar as the said Thangaraj is concerned is legal and valid. Further the third respondent approved the appointment of the said Thangaraj and paid salary for seven years and from October, 1990, the salary was withheld based on the audit objection. If the third respondent was vigilant enough at the time of sanction of salary to the said Thangaraj, he could have rejected approval at the first instance. By virtue of the approval granted the said Thangaraj worked for seven years and thereby he was prevented from seeking employment elsewhere during that period. Therefore, even if there is any violation of procedure, the third respondent alone should be blamed for granting approval of the appointment of Thangaraj made on 3.2.1983 and for paying salary for over seven years i.e., till October, 1990.
10. Further, the said Thangaraj being a non-teaching staff, on being terminated without any notice, rightly approached the Labour Court for setting aside the order of termination and the Labour Court also passed award ordering reinstatement with backwages and continuity of service. The said order passed by the Labour Court is also confirmed by this Court by judgment dated 6.11.1997.
11. Issue No.2: The said Thangaraj was reinstated in service after the award passed by the Labour Court and the claim petition was filed to compute the backwages payable from the date of dismissal till the date of reinstatement. The Labour Court also passed an order calculating the bakwages payable as Rs.46,956/-. In the Claim petition, the Labour Court specifically ordered that the amount of backwages payable to the said Thangaraj shall be paid by the respondents 1 and 2, namely the Education Department. Admittedly, respondents 1 and 2 have not chosen to challenge the order passed in the claim petition and accepted the said order. Thus, the respondents 1 and 2 herein, who are the respondents 2 and 3 in the Claim Petition No.825 of 1994 are bound to pay the salary as ordered by the second Additional Labour Court, Madras.
12. In the light of the above order passed in the Claim Petition No.825 of 1994, the third respondent is not justified in giving direction to the management to pay salary to the said Thangaraj and the consequential order recovering the said amount from the salary grant payable to the petitioner college for the month of December, 2001, is unsustainable.
13. The impugned orders passed by the third respondent are set aside and the writ petitions are allowed. The third respondent is directed to pay the amount as awarded by the Labour Court, to the said Thangaraj, if the amount is not already paid, within four weeks from the date of receipt of copy of this order. No costs.
vr To
1. The Secretary, Education Department, Fort St.George, Chennai 600 009.
2. The Director of Collegiate Education, College Road, Chennai 6.
3. The Joint Director of Collegiate Education, Chennai Zone, Chennai 600 006.