Judgment:
R. Jayasimha Babu, J.
1. What is impugned is the order of the Labour Court by which the Labour Court declined to grant the relief of reinstatement to the petitioners, who had worked as call boys, which is an unskilled work in the respondent co-operative society, though it was found that they have worked for 480 days intermittently, on the ground that appointments so made, had been made contrary to the requirements of Section 119-A of the Tamil Nadu Co-operative Societies Act, 1961.
2. Counsel for the petitioners submitted that in the light of the finding that work had been performed for 480 days, the petitioners were entitled to the relief of reinstatement and continuity in service and the Labour Court award to the extent it denies that relief is contrary to law.
3. Counsel relied upon two judgmentstendered by two learned single Judges of thisCourt. In the case of M. Irudhayanathan v.State of Tamil Nadu 1997 (3) LLN 544 theCourt found that the relief that had been soughtby the petitioners was to direct the milkproducers union to regularise the workmen andsuch a direction was required to be given as theworkmen had worked for the period specifiedin the Tamil Nadu Industrial Establishment(Conferment of permanent Status to Workmen)Act, 1981. It was also observed there that theexistence of a vacancy was not relevant for thepurpose of compelling the Government to givesuch a direction. It the case reported inChairman and Managing Director Tamil NaduCivil Supplies Corporation, Ltd. v. Inspector of.Labour 2000 (1) LLN 799 the parties to theproceedings were Government Corporationand the Inspector of Labour. It was held hereinthat the workmen who had put in 480 days inpreceding 24 calendar months wereautomatically entitled to conferment ofpermanent status. The Court, however, did notissue any direction to the authority, but askedthe petitioners to approach the authorities underthe act.
4. Both these cases dealt with a situation in which initial appointments were not made contrary to law governing the body which made the appointment.
5. Counsel for the respondent referred to the decision rendered by an yet another single Judge of this Court in A. Senthil Kumar v. Registrar of Co-operative Societies 2001 (1) LLN 538 wherein it was held that the appointments made contrary to Rule 149(2) of the Tamil Nadu Co-operative Societies Rules would be illegal appointments and that no opportunity was required to be given before effecting termination of such appointees. Counsel also relied on the judgment of the Division Bench of Kerala High Court in the case of Koodaranji Service Co-operative Bank v. M.M. Lissy and Ors. wherein it was held, as set out in the head note, that appointments made contrary to the rules do not entitle such appointees to claim a right to be retained in service and that the termination of such employees cannot be regarded as retrenchment. While so holding the Court referred to and relied on the observations of the Supreme Court in Workmen of Bangalore Woolen, Cotton and Silk Mills Company, Ltd. v. Bangalore Wotten, Cotton and Silk Mills, Company 1962 I LLJ 213 wherein it was observed thus at page 216 :
'It seems to us that service cannot be said to be terminated unless it was capable of being continued.'
6. The Labour Court here has found that the respondent-bank, its executive committee and its employees all belong to the same group and that the authorities under the Co-operative Societies Act had found that the employment of the petitioners were contrary to the rules as the petitioners had not been recruited through the Employment Exchange, and that when the matter was heard by the Labour Court there were no vacancies in the respondent-society.
7. Respondent is a Co-operative Society governed by the provisions of the Tamil Nadu Co-operative Societies Act and Rules made thereunder. It has no option but to conform to the requirements of the statutory provisions or the rules. By acting contrary to those provisions it cannot create a situation where the authorities under the Act are compelled to treat what is not permissible under the Act as being permissible. Rule 149(2) of the Rules made under that Act requires that all appointments be made through the Employment Exchange. Societies cannot by making appointments, without resorting to the exchange, claim as a right that such appointees be retained as employees of the society, even when the Rules which apply to the societies require that recruitment be made through exchange.
8. Counsel for the petitioners submits that since the petitioners are only working as call boys which is an unskilled work and that employment is not one to which the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, applies. The society was not required to notify the exchange before appointing the petitioner. The question here, however is not as to whether the post was required to be notified by reason of the Employment Exchanges (Compulsory Notification of Vacancies) Act, but as to whether the recruitment made was in conformity with the Co-operative Societies Act and Rules made thereunder.
9. Even though the Employment Exchanges (Compulsory Notification of Vacancies) Act does not compel an employer to notify the vacancies in the unskilled category, nevertheless if the statutory rules require all classes of employees to be so notified and that is the rule which binds the employer it cannot ignore the rule by contending that the other enactment does not impose such a compulsion. It is not permissible for individual co-operative societies to act as they please some conforming to the Co-operative Societies Rules in the matter of recruitment and others ignoring the same on the ground that certain classes of employment are not covered by the Employment Exchange (Compulsory Notification of Vacancies) Act.
10. The Labour Court has taken these facts into consideration and has therefore, while granting the relief to the petitioners, limited that relief to the notice-pay and a direction to the management to give preference to the petitioners in case any recruitment is made subsequently, subject to the petitioners possessing requisite qualifications. The impugned award, therefore, does not call for any interference. The writ petition is dismissed.