Madras High Court
The Management, T.P. Spl. 67 ... vs The Assistant Commissioner Of Labour, ... on 30 April, 2002
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER V. Kanagaraj, J.
1. Petition praying to issue a writ of certiorari calling for the entire records of the order passed by the first respondent herein in Payment of Subsistence Allowance Case Nos.4 of 1998 and 13 of 1998 dated 29.6.1998 and quash the same.
2. In the affidavit filed in support of the writ petition, the petitioner Bank would submit that it is a Society registered under the Tamil Nadu Cooperative Societies Act, 1983 functioning as per the Tamil Nadu Cooperative Societies Act, 1983 and Rules 1988 and also its own bylaw; that there is a special bylaw relating to the service conditions of the employees; that the second respondent was employed as the Secretary in the petitioner Bank from 1.4.1973 to the date of his suspension on 27.6.1996, on a monthly salary of Rs.4,746/-; that the second respondent acted against the interest of the Bank and also lapses, misconduct and so many irregularities have been committed on his part, which resulted in suspending him from service on 27.6.1996 and after proper enquiry as contemplated under the Act and Rules, he was terminated from service on 1.12.1997; that the work performed by the second respondent was purely managerial in nature.
3. The petitioner would further submit that the second respondent is entitled to get only 25% of his salary as subsistence allowance during the period of suspension; that however, he had claimed payment of subsistence allowance as per the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (Act 43/81) and filed an application before the first respondent, who, on an erroneous appreciation of law and facts, passed an order directing the petitioner to pay a sum of Rs.51,771/=; that aggrieved, the petitioner has come forward to file the above application for the relief extracted supra.
4. No counter has been filed on the part of the respondents. However, the learned Government Advocate appearing on behalf of the first respondent and the learned counsel appearing on behalf of the second respondent would argue on instructions. The learned counsel for the petitioner would cite the definition Section 2(19) of the Tamil Nadu Co-operative Societies Act, 1983 which reads, "Officer" includes a president, vice-president, managing director, secretary, assistant secretary, member of board and any other person empowered under the rules or the by-laws to give directions in regard to the business of the registered society.
5. On the contrary, the learned counsel appearing on behalf of the second respondent would stick to the judgment delivered in C. Selvaraj Vs. Deputy Commr. Of Labour reported in 1989-1-L.L.N. 689 to the effect that the Tamil Nadu Payment of Subsistence Allowance Act, 1989 is applicable to him wherein it is held in the definition Section 2(a) - "employee" means, Supervisors of co-operative bank deputed to work as secretaries in various societies, such secretaries have no power to appoint, fix salary of any employee, sanction leave or take disciplinary action by themselves against the employees, their duties are not mainly managerial or administrative or supervisory and that they are employees under the Act and therefore entitled to subsistence allowance as per Tamil Nadu Act during the period of their suspension pending disciplinary proceedings against them.
6. Relying on this judgment, the first respondent simply stating that as per the definition Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, the second respondent is an employee and that even those who have supervisory or technical control, signing the loan amount applications or loan deposit applications or do their routine work in an establishment, and unless they are wielding powers such as effecting appointments, determining the salary or dismissing the servants, they would not come under the ambit of "employees" and since he is not able to arrive at such a conclusion that the second respondent did not appear to have withheld such powers of effecting appointments, determining the salary and dismissing the servants and further since the petitioner Co-operative Bank itself has given subsistence allowance to the tune of Rs.19,221/=, the said authority, on such grounds, has arrived at the conclusion to allow the application filed on the part of the second respondent thereby permitting him to get the full subsistence allowance.
7. The points for consideration as per the first respondent is (i) whether the second respondent is an employee or not as per the definition Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 and (ii) what shall be the amount that the second respondent is entitled to?
8. Prior to going into the question whether the second respondent is an employee under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 so as to become entitled to file an application of that sort before the first respondent who has jurisdiction over the question of granting the payment of subsistence allowance to the second respondent herein, as per the arguments of the petitioner Co-operative Bank herein, basically the second respondent having been employed in the management of Primary Agricultural Cooperative Bank Limited, is governed by the Tamil Nadu Cooperative Societies Act, 1983 since the Bank is a segment falling under the purview of the Tamil Nadu Cooperative Societies Act, and therefore, it is only the provisions of this Act which are applicable to the case of the petitioner and as per the definition Section 2(19) of the Tamil Nadu Cooperative Societies Act, "Officer" includes a president, vice-president, managing director, secretary, assistant secretary, member of board and any other person empowered under the rules or the by-laws to give directions in regard to the business of the registered society."
9. Therefore, since the second respondent being the Secretary, is classified as an "officer" under the Tamil Nadu Cooperative Societies Act, 1983 which is applicable to him and therefore, there is no question of a second thought whether he could be again re-classified as an "employee" much less falling within the purview of the definition Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 which question will not arise at all. Therefore, basically, it has to be decided whether the second respondent is an "officer" defined under the definition Section 2(19) of the Tamil Nadu Cooperative Societies Act, 1983 or a mere "employee" as defined under Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Needless to mention that once the definition of "officer" as per the Tamil Nadu Cooperative Societies Act, 1983 is applicable to the second respondent, automatically, the other definition under Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 would not be attracted at all.
10. The second respondent, admittedly the Secretary of the petitioner Bank, squarely falls under the definition of "Officer" as defined under the definition Section 2(19) of the Tamil Nadu Cooperative Societies Act, 1983 and he is bound by the Tamil Nadu Cooperative Societies Act and Rules and would not fall under any other Act, much less the Tamil Nadu Payment of Subsistence Allowance Act, 1981 as an "employee". The one and the same authority cannot be an "Officer" and an "employee", nor could he be taken both as an "Officer" for the purpose of Cooperative Societies Act and could be taken as an "employee" for the purpose of Tamil Nadu Payment of Subsistence Allowance Act, and therefore, since the second respondent having been the Secretary of the petitioner Bank and falling under the definition Section 2(19) of the Tamil Nadu Cooperative Societies Act, 1983 as an "Officer", he cannot be classified otherwise than this for any purpose much less for the purpose of Payment of Subsistence Allowance.
11. Moreover, whether the assignment of the petitioner would fall under the definition of Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act having such powers as expressed by the learned single Judge of this Court in his judgment reported in 1989-1-L.L.N. 689 (supra) has been established which is wanting in this case, especially in view of the fact that the Secretary being an "Officer" of the particular cooperative Wing or Bank is the Chief Executive having all the powers not only appointing, determining the salary and having the powers to dismiss its employees, but also doing all such executive acts which are necessary in the functioning of the Cooperative Society or Bank. Therefore, he cannot, under any circumstance, be brought under the definition of Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 as a mere "employee", particularly when no good reasons are assigned as to how he ceases to be an "Officer" as defined under the definition Section 2(19) of the Tamil Nadu Cooperative Societies Act, 1983, which is a special legislation having overriding powers on other general Acts.
12. For all the above discussions held and the reasons assigned, the second respondent cannot be defined as an "employee" under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 since he is an "Officer" as defined under the definition section 2(19) of the Tamil Nadu Cooperative Societies Act, 1983 and as such he is not entitled to file an application before the first respondent herein so as to become entitled to get an order as passed by the said authority, which is impugned herein since the first respondent is ousted from assuming jurisdiction in such matters.
In result,
(i) the above writ petition succeeds and the same is allowed.
(ii) the order passed by the first respondent dated 29.6.1998 in Payment of Subsistence Allowance Case Nos.4 of 1998 and 13 of 1998 is quashed.
Consequently, W.P.M.P. No.24249 of 1998 is closed.
However, in the circumstances of the case, there shall be no order as to costs.