Madras School of Social Work v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-8-2009CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION Nos.11902 of 2001 & 53 of 2002Madras School of Social Work,rep.by the College Committeeby its Secretary,32, Casa Major Road,Chennai – 600008....Petitioner in both writ petitionsVs.1.The Government of Tamil Nadu,rep.by 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.... Respondents in both writ petitionsPrayer in W.P.No.11902/2001:-Writ Petition filed under Article 226of the Constitution of India praying for the issuance of a Writ ofCertiorarified mandamus calling for the records relating to theissuance of the impugned proceedings issued by the third respondentunder reference Na.Ka.No.9976/E2/99, dated 18.5.2001 and quash thesame and for a direction in the nature of mandamus directing therespondents to pay the arrears of salary to one Thangaraj asdetermined by the Labour Court in C.P.No.825 of 1994 dated 28.4.1996viz., a sum of Rs.46,956/- to the said Thangaraj and pass suitableorder.Prayer in W.P.No.53/2002:-Writ petition filed under Article 226of Constitution of India, praying this Court to issue a writ ofcertiorari calling for the records relating to the issuance of the https://hcservices.ecourts.gov.in/hcservices/ impugned order dated 31.12.2001 issued by the third respondent underreference D.Dis.10508/D2/2001 and quash the same.For Petitioner : Mr.N.C.RameshFor Respondents: Mr.K.Balakrishnan,Addl. Govt. PleaderCOMMON ORDERThe prayer in W.P.No.11902 of 2001 is to quash the order of thethird respondent dated 18.5.2001 and direct the respondents to payarrears of salary to Thangaraj as determined by the Labour Court inC.P.No.825 of 1994 dated 28.4.1996, i.e., a sum of Rs.46,956/- andthe prayer in W.P.No.53 of 2002 is to quash the order of the thirdrespondent dated 31.12.2001 recovering Rs.46,956/- from the salarygrant of the petitioner College from December, 2001.2.The case of the petitioner College as could be seen fromthe affidavit are as follows:(a)The petitioner College is a non-profit CharitableEducational Society, registered under the Societies Registration Act.It owns the Madras School of Social Work, affiliated to MadrasUniversity. The grant-in-aid is paid by the Government of Tamil Naduto teaching and non-teaching staff appointed in sanctioned posts.The petitioner College is a non-fee levying college for its studentsand only the permissible fee by the department is collected.(b)One Thangaraj was appointed as night watchman on 8.3.1983in the College in a sanctioned post. Prior to the said appointmenton 3.2.1983, the petitioner management sought for permission to fillup the post of night watchman. The third respondent by order dated3.3.1983 granted permission to fill up the said post subject to fourconditions 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 candidateshould be in a position to read and write.(c)In order to comply with the said conditions, the petitionercollege called for a list of candidates from the Employment Exchangeand the candidates sponsored by the Employment Exchange, who appearedfor the interview were not found suitable. Another list was soughtfor from the Employment Exchange or to issue a certificate of non-availability of candidates. No reply was received from theEmployment Officer. Therefore, the said Thngaraj, who was havingprevious experience as night watchman, whose name was not sponsoredthrough the Employment Exchange, though he had registered his name inthe Employment Exchange, was appointed. Salary was claimed along https://hcservices.ecourts.gov.in/hcservices/ with other staff members for the said Thangaraj also. The thirdrespondent sanctioned salary and paid the same to the said Thangarajalso for more than seven years.(d)By order dated 25.7.1990, the third respondent refused topay salary to the said Thangaraj from July 1990 on the ground thatthe third respondent has not approved the appointment as he was notappointed properly and the salary payable to the said Thangarajhaving been stopped by the third respondent the said Thangaraj wasdischarged from service.(e)On 29.10.1990, the said Thangaraj claimed reinstatementthrough the Workers Union. On 8.11.1990 a reply was given to theclaim made by the said Thangaraj. Not satisfied with the reply heraised 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 favourof the said Thangaraj and ordered reinstatement with backwages andcontinuity of service.(f)Based on the award passed by the Labour Court, themanagement directed the said Thangaraj to report for duty on 2.1.1995.After reinstatement, the award of the Labour Court waschallenged by the petitioner management in W.P.No.1089 of 1995 and aninterim stay of the award for a period of 12 weeks was obtained byorder dated 24.1.1995.(g)The said Thangaraj filed a claim petition No.825 of 1994under section 33(c)(2) of the Industrial Disputes Act, 1947, forcomputation of salary payable to him as per the Labour Court award.When the WMP was posted for hearing on 31.7.1995, this Courtpermitted the Labour Court to proceed with the Claim petition No.825of 1994 and ordered that the final order to be passed in the claimpetition will be implemented after getting permission from this courtand the writ petition was ordered to be posted for final disposal on21.12.1995.(h)The Labour Court by order dated 28.4.1996 allowed the claimpetition and ordered to pay a sum of Rs.46,956/- and the said amountwas ordered to be paid by the respondents 1 and 2 herein. The writpetition filed by the management was dismissed by this Court on6.11.1997. Consequently the award passed by the Labour Court forreinstatement with backwages on 27.4.1994 was confirmed.(i)The award passed in C.P.No.825 of 1994 has not beenchallenged by the respondents 1 and 2. However, the third respondentpassed the impugned order dated 18.5.2001 by stating that thepetitioner management has to pay the said arrears of salary ofRs.46,956/-, failing which the same will be deducted from the grantpayable to the management. Subsequently the said amount was ordered https://hcservices.ecourts.gov.in/hcservices/ to be recovered from the salary grant payable for the month ofDecember, 2001, by order dated 31.12.2001.(j)The said order dated 18.5.2001 is challenged inW.P.No.11902 of 2001 on the ground that the claim petition No.825 of1994 having been ordered with a direction to pay the said amount tothe said Thangaraj by the respondents 1 and 2, the third respondenthas no jurisdiction to give direction to the petitioner management topay the same, and that the services of the said Thangaraj wasdischarged on the direction issued by the third respondent andtherefore the management cannot be asked to pay the said amount as hewas apointed in a sanctioned post/aided post.3.In W.P.No.53 of 2002, the order passed by the thirdrespondent dated 31.12.2001 is challenged, wherein the amount payableto the said Thangaraj as per the award of the Labour Court viz.,Rs.46,956/- has been deducted from the salary grant payable to thepetitioner College for the month of December, 2001.4.The respondents have filed counter affidavit by statingthat the appointment of teaching and non-teaching staff in thepetitioner College has to be done as per the rules and regulationsprescribed from time to time and the College has not appointed aperson sponsored by the Employment Exchange and the same was found atthe time of auditing by the Joint Director of College Education,Chennai, and therefore salary was stopped to the said Thangaraj witheffect from October, 1990. It is also stated that the petitionermanagement having challenged the award of the Labour Court, orderingreinstatement and backwages and the same having been dismissed, thepetitioner is bound to pay the arrears of salary and therefore theimpugned order passed by the third respondent giving direction to paythe arrears of salary to the said Thangaraj is legal and valid.5.Heard the learned counsel for the petitioner as well as thelearned Additional Government Pleader for the respondents.6.The issues to be decided in these writ petitions are asfollows:(1)Whether the respondents are justified in givingdirection to the management to terminate/discharge the saidThangaraj from his service as night watchman ?(2)Whether the third respondent is justified in notimplementing the order made in C.P.No.485 of 1994, wherein adirection was given to the respondents 1 and 2 to pay thesame ? https://hcservices.ecourts.gov.in/hcservices/

7.Issue No.1:The issue as to whether a person can beappointed only on sponsorship through Employment Exchange wasconsidered by the Supreme Court in the decision reported in (1996) 6SCC 216 (Excise Superintendent v. K.B.N.Visweshwara Rao). In the saiddecision it is held that sponsorship through Employment Exchange is asource and cannot be the exclusive source. It is open to theappointing authority to get list from other sources viz., issuingadvertisements through newspapers, by making Tom-tom, invitingapplications 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) consideredthe very same issue in respect of private schools are concerned.The reference to the issue was made before the Full Bench in view ofthe conflicting decisions of the Division Bench Judgment reported in1995 WLR 499 (State of Tamil Nadu v. Tamil Nadu Recognised PrivateSchools Managers' Association) and 2003 WLR 31 (Nehru MemorialCollege v. The State of Tamilnadu). The Division Bench in the schoolcase, upheld the appointment made in private aided schools withoutreference to the Employment Exchange upto 17.2.1995, and appointmentsmade thereafter were ordered not to be approved. The later DivisionBench in the College case held that the appointments made eventhrough the applications received from the candidates on other modes,such as paper publication, etc., can also be approved. The FullBench in the above referred decision, overruled the decision of theDivision Bench reported in 1995 WLR 499 (cited supra) and held thatthe restriction with regard to the approval upto 17.2.1995 as orderedby the Division Bench is invalid and appointments made through othermodes are also valid. The Division Bench decision reported in 2003WLR 31 (cited supra) was approved by the Full Bench and furtherdirected to approve the appointment of the teacher, withoutsponsorship through Employment Exchange.9.Applying the said decision of the Full Bench to the case onhand, I hold, the appointment made by the management insofar as thesaid Thangaraj is concerned is legal and valid. Further the thirdrespondent approved the appointment of the said Thangaraj and paidsalary for seven years and from October, 1990, the salary waswithheld based on the audit objection. If the third respondent wasvigilant enough at the time of sanction of salary to the saidThangaraj, he could have rejected approval at the first instance. Byvirtue of the approval granted the said Thangaraj worked for sevenyears and thereby he was prevented from seeking employment elsewhereduring that period. Therefore, even if there is any violation ofprocedure, the third respondent alone should be blamed for grantingapproval of the appointment of Thangaraj made on 3.2.1983 and forpaying salary for over seven years i.e., till October, 1990.10.Further, the said Thangaraj being a non-teaching staff, on https://hcservices.ecourts.gov.in/hcservices/ being terminated without any notice, rightly approached the LabourCourt for setting aside the order of termination and the Labour Courtalso passed award ordering reinstatement with backwages andcontinuity of service. The said order passed by the Labour Court isalso confirmed by this Court by judgment dated 6.11.1997.11.Issue No.2: The said Thangaraj was reinstated in serviceafter the award passed by the Labour Court and the claim petition wasfiled to compute the backwages payable from the date of dismissaltill the date of reinstatement. The Labour Court also passed anorder calculating the bakwages payable as Rs.46,956/-. In the Claimpetition, the Labour Court specifically ordered that the amount ofbackwages payable to the said Thangaraj shall be paid by therespondents 1 and 2, namely the Education Department. Admittedly,respondents 1 and 2 have not chosen to challenge the order passed inthe claim petition and accepted the said order. Thus, therespondents 1 and 2 herein, who are the respondents 2 and 3 in theClaim Petition No.825 of 1994 are bound to pay the salary as orderedby the second Additional Labour Court, Madras.12.In the light of the above order passed in the ClaimPetition No.825 of 1994, the third respondent is not justified ingiving direction to the management to pay salary to the saidThangaraj and the consequential order recovering the said amount fromthe salary grant payable to the petitioner college for the month ofDecember, 2001, is unsustainable.13.The impugned orders passed by the third respondent are setaside and the writ petitions are allowed. The third respondent isdirected to pay the amount as awarded by the Labour Court, to thesaid Thangaraj, if the amount is not already paid, within four weeksfrom the date of receipt of copy of this order. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Secretary, Education Department,Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/

2.The Director of Collegiate Education,College Road, Chennai – 6.3.The Joint Director of Collegiate Education,Chennai Zone, Chennai – 600 006.+2 CC to Mr. N.C. Ramesh, Advocate Sr.42629 & 42630+One CC to the Government Pleader Sr.42480)W.P.No.11902 of 2001 & 53 of 2002JRG (CO)BMD 10/09/2009