Madras High Court
Mani vs The Deputy Commissioner-Cum- ... on 15 November, 2002
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER R. Jayasimha Babu, J.
1. The question for consideration is as to whether the Secretary of a Co-operative Society is an employee for the purpose of The Tamil Nadu Payment of Subsistence Allowance Act, 1981. Section 2 (a) of the Act defines the term "employee" thus:-
"employee" means any person employed in, or in connection with the work or activities of, any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical, clerical or any other kind of work or activities for hire or reward, whether the terms of employment be expressed or implied..."
The definition excludes persons employed mainly in a managerial or administrative capacity and persons who are employed in a supervisory capacity, drawing wages exceeding five hundred rupees per mensem or exercising, either by the nature of the duties attached to the office or by reason of the powers vested to them, functions mainly of a managerial nature. The appellate authority under the Act, whose order has been challenged, has, on the basis of the evidence placed before him, held thus:-
" On perusal of the byelaws of the bank (Ex.R1) it may be seen that the Secretary of the bank is the Chief Executive of the bank vested with the powers to sanction loans to the members and powers to appoint staff committee for disposal of all matters concerning the paid staff of the bank such as selection, appointments, promotions, taking disciplinary action and punishments. In accordance with the byelaws of the bank, the Secretary in his capacity as a Chief Executive is authorised to give receipts for the fixed deposits and he is also authorised to sanction casual leave to the employees.
In accordance with the byelaws of the bank (Ex.R1), it may be seen that the respondent-petitioner as a Secretary to the bank is vested with not only the powers of a supervisor but also the powers of an administrator.
The respondent petitioner in his evidence (AW1) has not only admitted that he was the Chief Executive of the bank but also admitted that he was sanctioning jewel loan and F.D. Loan to the members. (Ex.R1 page 19 & 21). The respondent-petitioner has also admitted that in the absence of Special Officer he was sanctioning casual leave to the employees."
2. The Supreme Court in the case of T. Premsagar v. Standard Vacuum Oil Co., [1964-65] 26 FJR 1 (SC), while considering the factors which would have a bearing on deciding the question as to whether a person is employed in a managerial capacity, observed thus:-
"..It is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question. Several considerations would naturally be relevant in dealing with this problem. It may be enquired whether the person had a power to operate on the bank account or could he make payments to third parties and enter into agreements with them on behalf of the employer, was he entitled to represent the employer to the world at large in regard to the dealings of the employer with strangers, did he have authority to supervise the work of the clerks employed in the establishment, did he have control and charge of the correspondence, could he make commitments on behalf of the employer, could he grant leave to the members of the staff and hold disciplinary proceedings against them, has he power to appoint members of the staff or punish them, these and similar other tests may be usefully applied in determining the question about the status of an employee in relation to the requirements of section 4(1) (a).
That Section 4 (1) (a) is in the Madras Shops and Establishments Act, 1947, which provides that nothing contained in that Act will apply to a person employed in any establishment in a position of management.
3. In this case, the evidence clearly shows that under the byelaws, the Secretary is the Chief Executive of the bank vested with powers to sanction loans, power to appoint staff committee and in the absence of the Special Officer, has power to grant leave to staff members. The petitioner himself has admitted in his evidence that he was the Chief Executive of the Bank and that he was also sanctioning jewel loans and F.D. Loans. As Chief Executive, he would certainly have over all supervision of the activities of the staff employed in the Bank and would be the person who would also have the charge of the correspondence of the Bank. The petitioner would clearly be a person who is in the managerial or administrative capacity. There is no doubt that he was employed in administrative capacity. It is not his case at any point of time that he was employed in any capacity other than administrative capacity.
4. Counsel for respondents 1and 2 brought to my notice a decision rendered by the Kerala High Court with regard to the status of the Secretary of a Co-operative Society vis-a-vis the definition of "employee" under the Kerala Payment of Subsistence Allowance Act, 1972. The Division Bench of the Court in that case viz., Shertallai Taluk Co-operative Land Mortgage bank Ltd. v. Deputy Labour Commissioner [1991] 78 FJR 355 held that the Secretary of the Co-operative bank who had the duty to execute all the decisions of the Board of Directors and was the Chief Executive and was not an employee for the purpose of the Subsistence Allowance Act.
5. The impugned order is not vitiated by any error. The petitioner not being an employee as defined in Section 2 (a) of the Act was not entitled to make any claim under the provisions of the Act. The rejection of this petition, however, is not to be construed as denial of his right to claim subsistence allowance under any other law to the extent the petitioner is entitled to do so. The writ petition is dismissed.