(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 24.07.2019 passed in W.P.No.27033 of 2014 on the file of this Court.)(Delivered by The Hon'ble Chief Justice)1. Heard learned counsel for the appellant Industrial Cooperative Bank and learned counsel for the first respondent employee.2. This is a writ appeal arising out of a labour Court award that came to be challenged before the learned single Judge by the appellant Bank contending that the industrial dispute could not have been raised in respect of a casual driver of the bank, as he could not establish that he was a workman as defined under the Industrial Disputes Act, 1947. Accordingly, the labour Court committed an error in proceeding to treat the dispute as an industrial dispute and deliver an award in favour of the first respondent.3. The second ground taken is that in view of the provisions of the bylaws of the Society read with Rule 149(2) of the Tamil Nadu Co-operative Societies Rules, 1988, the claim of the first respondent was not liable to be considered as he did not possess the minimum qualification of having passed Class VIII, coupled with the fact that his name had not been requisitioned from the Employment Exchange in terms of the Rules aforesaid.4. The third argument is that the first respondent had voluntarily abandoned his service and therefore, there was no occasion to have treated his claim to be in violation of Section 25F of the Industrial Disputes Act, 1947, and therefore, the labour Court committed a manifest error in treating it to be an industrial dispute and considering the said voluntary abandonment to be one of unlawful termination.5. The fourth argument is that the conclusion drawn by the labour Court that the action of the first respondent in denying employment was mala fide as if to victimise him and had an element of unfair labour practice in order to accommodate one Mr.Prabhakaran is erroneous, inasmuch as once the first respondent had voluntarily abandoned his job, the bank was fully justified in engaging another person who was qualified and eligible to hold the post of a driver, as the bank did require a driver in order to perform the duties and responsibilities of the said post.6. The fifth argument is that in the absence of any statutory protection and in the absence of any such protection of the law of precedents and the impugned judgment of the learned single Judge, who has applied decisions which were inapplicable, confirming the award is unsustainable.7. The last contention of the learned counsel for the appellant is that on the issue of backwages, the labour Court, while recording its findings, came to conclude that on the basis of the material on record, the first respondent was entitled to 50% backwages, but, in the operative part of the order, for no valid reason, and quite mechanically, full backwages has been awarded. This aspect of the matter has also been completely overlooked by the learned single Judge, who, while proceeding to uphold the said claim, did not notice this manifest anomaly, hence, the award as well as the judgment of the learned single Judge are vitiated.8. It is then contended that the judgments relied on by the learned single Judge to hold that the first respondent was entitled to the benefits arising out of Section 2(3)(e) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, read with Section 2(6) of the Tamil Nadu Shops and Establishments Act, 1947, is erroneous, inasmuch as this point was not even considered nor any finding has been recorded by the labour Court and even otherwise, the said enactments nowhere lay down that such regularisation can be granted bereft of minimum qualifications to be possessed against a particular post. It is submitted that the Industrial Disputes Act, 1947, can confer only benefits that can be statutorily sustained, particularly when it requires possession of minimum qualifications and not contrary to the same. The submission is that in the instant case, the first respondent had not passed Class VIII examinations, which stood established on record and therefore, to conclude that he was entitled to benefits of the said enactment is not correct.9. Responding to the said submissions, learned counsel for the first respondent submits that on the issue of qualification, there is a clear finding of fact recorded by the labour Court that the first respondent was possessed of the qualifications and therefore, this finding of fact cannot be disturbed in the exercise of writ jurisdiction under Article 226 of the Constitution of India. It is further submitted that the first respondent was a workman and therefore, he was entitled to the benefits of the provisions of the Industrial Disputes Act, 1947, inasmuch as neither had the first respondent abandoned the service nor was he disqualified or ineligible to hold the post and even otherwise, did not suffer from any procedural deficiency in his engagement so as to warrant his dispensation without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947.10. It is submitted that the provisions of Rule 149(2) cannot be pressed into service inasmuch as this was a case of seeking continuance in service in the absence of a valid termination before the labour Court and the question of qualification having been examined, the answering respondent was rightly extended the said benefit, which has been acknowledged by the learned single Judge by applying the 1981 Act. It is, therefore, submitted that the continuance, the engagement and the status conferred by the labour Court are not only statutorily protected, but stand established on the strength of the facts that were pleaded to demonstrate that the answering respondent had moved a representation which was filed as Document Nos.Ex.W-22, the acknowledgement whereof has been marked as Ex.W-23, immediately in July, 2011, itself, when the management is alleged to have treated the service to have been abandoned by the first respondent. It is, therefore, contended that neither the fact of abandonment was established nor there was a valid termination nor did the answering respondent suffer from any statutory or otherwise disqualification and therefore, the first respondent was entitled for reinstatement.11. On the issue of backwages, learned counsel for the first respondent contended that the conduct of the appellant in driving away the first respondent from his employment without any basis and then, compelling him to contest a litigation before the labour Court, which ultimately resulted in an award in favour of the answering respondent and confirmed by the learned single Judge is sufficient to justify an entitlement to full back wages in favour of the answering respondent. It is, therefore, submitted that the incongruity being established, treating it otherwise is of no avail, inasmuch as on the facts of the present case, the answering respondent is entitled to full backwages.12. We have considered the submissions raised. There is no dispute on the fact that the first respondent came to be engaged by the appellant bank and he was continuing admittedly from 20.04.2006 till 30.06.2011. The management claims that he allegedly abandoned his service with effect from 01.07.2011. We find from the facts pleaded on record as also the findings recorded by the labour Court on this issue that the first respondent had immediately thereafter on 21.07.2011 moved a representation before the bank to regularise him and to continue him in service. The said fact has not been successfully dislodged by any evidence to the contrary. This very circumstance of the first respondent having approached the bank within a span of three weeks with a representation, therefore, clearly establishes that the first respondent had neither intended to nor had voluntarily abandoned his service. Learned counsel for the appellant urged that he did not turn up for a couple of weeks even thereafter, and therefore, the bank could not afford to suffer on account of his absence. What we find is that the labour Court has recorded that one Prabhakaran came to be immediately engaged on 04.07.2011. This additional circumstance, therefore, also indicates that the bank does not appear to have allowed the first respondent to function, as it had already engaged one Mr.Prabhakaran with effect from 04.07.2011. The conclusion, on facts, therefore, drawn by the labour Court on this issue appears to be correct and does not suffer from any such perversity so as to warrant interference and to that extent we uphold the said finding as also the conclusion drawn by the learned single Judge. There was, therefore, no abandonment established by the appellant bank.13. The next question is about the stand of the appellant bank about the qualifications of the first respondent. It is not in dispute that the minimum qualification required under the bylaws of the Society for appointment to the post of driver is the possession of a Class VIII pass certificate and a valid driving licence. There is no dispute that the first respondent was possessed of a valid driving licence. However, the management has seriously disputed the qualifications possessed by the first respondent and it is the specific case of the bank that he had not passed VIII standard. The labour Court, while proceeding to examine this issue in paragraph 14 of the award has noted the said argument of the bank, but in paragraph 15 has recorded the following finding:-“15. It is not in dispute that the petitioner had studied upto 8th standard and possessed light vehicle driving license and had worked in the respondent bank for a period of 5 years continuously. If the petitioner did not possess the above said qualification he may not be considered and engaged in the respondent bank as driver as per table 2 of the bylaws of the respondent bank which was marked as Ex.M.7. Therefore the allegation of the management that the petitioner did not possess the qualification fixed under the bylaw is liable to be rejected. The petitioner proved that the possessed sufficient qualification to work as driver in the respondent bank as per the by law.”14. We find the framing of the order in paragraph 15 to be an exercise of converting the qualification possessed by the first respondent into a sufficient qualification. The opening sentence of paragraph 15 very conveniently states that it is not in dispute that the first respondent had studied upto VIII standard. But, it very inappropriately fails to record as to whether the first respondent had passed the Class VIII examinations or not. No material was adduced by the first respondent either before the labour Court or before this Court to establish that he had passed Class VIII standard. In the absence of any such proof, the onus whereof lay on the first respondent, it can be presumed that the first respondent is not possessed of an essential qualification. The further finding recorded in paragraph 15 that had the first respondent not possessed the above qualification, he would not have been engaged is a mere speculation and the further finding of a sufficient qualification being possessed is based on surmises being purely conjectural in nature. This clearly amounts to perversity inasmuch as the labour Court took into consideration irrelevant material in the absence of relevant proof with regard to the educational qualification of the first respondent and thus, recorded a finding which is clearly perverse and vitiates the impugned award to that extent. We are, therefore, of the clear opinion that neither the labour Court nor the learned single Judge while affirming the impugned award, were justified in treating the first respondent to be eligible, qualified and possessed of the minimum qualification to be appointed as a driver on regular basis. In this view of the matter, bereft of minimum qualifications, the first respondent could not have claimed regular appointment as he was not possessed of the qualifications as recorded by the labour Court and as affirmed by the learned single Judge. As a matter of fact, the learned single Judge has nowhere adverted to this inherently wrong and perverse finding recorded by the labour Court and has rather affirmed it without considering the aforesaid aspects.15. The next issue is with regard to the applicability of Rule 149(2), which requires that no appointment shall be made without calling for a name from the Employment Exchange. There is no evidence on record that this procedure was ever followed and to that extent, the learned counsel for the appellant is correct in relying on the Division Bench judgment of this Court in the case of Registrar of Co-operative Societies vs. M.Panneer Losini, reported in 2016 (2) L.W. 730. In the said judgment, the Division Bench of this Court adverted to Rule 149(2) of the Tamil Nadu Co-operative Societies Rules, 1988, and held that appointments by direct recruitment cannot be made except by calling for a list of eligible candidates from the Employment Exchange and even if the Employment Exchange gives a non-availability certificate, applications should be invited by issuing advertisements in daily newspapers. In addition, the Division Bench followed the judgments in A. Umarani v. Registrar, Cooperative Societies,[(2004)7 SCC 112], wherein it was held that no appointment can be made in deviation from the statutory rules, which are mandatory, and the Full Bench judgment of this Court in R. Rathakrishnan v. Deputy Registrar of Cooperative Societies 2007 (5) CTC 369, where it was held, inter alia, as follows in paragraph 19:"19. In view of the authoritative pronouncement of the Supreme Court, we hold as follows:(i) The State Government cannot exercise its jurisdiction under Article 162 of the Constitution of India or under any Act to direct regularisation of service of any employee, including employees of a co-operative society, if the appointments have been made in contravention of the statutory rule or constitutional mandate."16. Thus, for a regular engagement, the compliance of procedure as prescribed under the statutory rule cannot be omitted or violated as that would otherwise violate Article 14 and 16 of the Constitution of India, inasmuch as there would be candidates waiting in the queue having registered themselves in the Employment Exchange to receive such employment.17. The next question is as to whether the dispensation of the service of the first respondent was contrary to the provisions of Section 25 of the Industrial Disputes Act, 1947. As observed above, abandonment could not be established by the management and therefore, we agree with the finding recorded by the labour Court to the extent that the services of the first respondent could not have been dispensed with without complying with the procedure of Section 25F of the Industrial Disputes Act, 1947. There is a finding recorded by the labour Court that if the first respondent had allegedly abandoned his service, it was the duty of the management to have sent a notice to him for rejoining his service. In the instant case, even assuming that no notice was given nor any proceedings initiated, then, in that event also, when the management was proceeding to engage another person treating the services of the first respondent to have come to an end, a notice of termination otherwise also had to be undertaken by the management in order to comply with the provisions of Section 25 of the Industrial Disputes Act, 1947. This was admittedly not done and therefore, we agree with the finding of the labour Court that non-compliance of Section 25F did make out a case for an industrial dispute to be adjudicated under the Industrial Disputes Act, 1947. The relief to that extent granted by the labour Court, therefore, has to be upheld. The first respondent, therefore, was entitled to be reinstated and consequently, we uphold the reinstatement of the first respondent, but in the same capacity that he was continuing as on 01.07.2011, which is the date on which he is alleged to have abandoned his service.18. Coming to the issue of backwages, which was contested before us, we find that the labour Court in paragraph 23 has recorded as under:-“23. The petitioner is (sic) his proof affidavit specifically stated that he was not gainfully employed from the date of termination and his family is suffering but the same was not cross examined by the respondent management. The petitioner discharged is (sic) burden by deposing before this court. Then burden will shift to respondent. But, the
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y have not come forward to deny the averment of the petitioner. Therefore the petitioner had proved that he was not gainfully employed from date of termination. Therefore he is entitled to claim 50% of the Back Wages.”However, while concluding, the labour Court has awarded full backwages with continuity of service and other attendant benefits. This direction is totally incongruous and contrary to what was arrived at in paragraph 23 quoted hereinabove. Thus, once the labour Court, after having assessed the facts, proceeded to award 50% backwages, there was no occasion to have issued a direction extending the benefit of full backwages in the very next paragraph of the impugned award. This anomaly being apparent, we find that there is a perversity to this extent in the impugned award as well. We, therefore, set aside the direction given by the labour Court of full backwages restoring 50% of the backwages to the first respondent along with reinstatement.19. The impugned judgment of the learned single Judge has simply brushed aside this issue of backwages while proceeding to decide the writ petition in respect of the claim being consequential in nature by simply recording its conclusion in paragraph 24 without adverting to the said issue. We, therefore, set aside the impugned judgment to that extent and we modify the order with regard to the claim awarded to the first respondent in Claim Petition No.618 of 2014, which has proceeded on the basis of full backwages having been awarded by the labour Court. The order dated 11.05.2016, which is the consequential order computing the claim is therefore also modified in the terms herein above.The appeal, therefore, partly succeeds to the extent stated above and is, accordingly, partly allowed subject to confirming the other findings and directions given by the labour Court. No costs.