IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.12.2011 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A.No.1411 of 2008 K.Avanasiappan .. Appellant -Vs- 1. The Management of Thekkalur Primary Agricultural Co-operative Bank (K-2019) Thekkalur Post, Avinashi Taluk Coimbatore District rep.by its President P.Senthilvel 2. The Assistant Commissioner of Labour Coimbatore 3. The Deputy Commissioner of Labour Coimbatore .. Respondents Appeal under Clause 15 of the Letters Patent against the order dated 31.01.2006 made in W.P.No.419 of 2001. Writ Petition filed under article 226 of the constitution of India to issue writ of certiorari call for the records of the 2nd respondent in APSA No.3 of 2000 and quash his order dated 27.11.2000. For Appellant :: Mr.T.P.Prabakaran For Respondents :: Mr.S.Silambanan Senior Counsel for M/s Silambanan Associates for R1 Mr.R.Vijayakumar Addl. Government Pleader for R2 & R3 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT D.MURUGESAN, J. This writ appeal is directed against the order allowing the writ petition filed by the first respondent co-operative Bank. The question to be decided in the writ appeal is as to whether the Secretary of Thekkalur Primary Agricultural Co-operative Bank is an 'employee' within the definition of Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981? 2. The facts in brief required for consideration of the issue are as follows. The appellant was employed as the Secretary of the first respondent co-operative Bank with effect from 30.10.70. He was suspended for certain acts of misconduct like misappropriation of members money by forging their signature, forging the documents with a view to give increase in the salary to his wife, abusing and threatening the Director and staff members of the co-operative Bank with effect from 9.1.98. He was paid the subsistence allowance at the rate of 25% of his wages in terms of the bye-law 12(c) of the society. However, the appellant filed an appeal before the Assistant Commissioner of Labour, Coimbatore claiming subsistence allowance in terms of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 for the period from 9.1.98 to 8.8.98 on the ground that he is an employee within the meaning of Section 2(a) of the said Act. The appeal was dismissed by the Assistant Commissioner of Labour and the same was questioned by the appellant before the Deputy Commissioner of Labour by way of further appeal. The appellate authority held that considering the nature of work, though the appellant was functioning as the Secretary, he would be only an employee within the meaning of Section 2(a) and ultimately directed the extension of the benefit of payment of subsistence allowance in terms of the Tamil Nadu Payment of Subsistence Allowance Act. On a challenge to the said order of the appellate authority, the learned Judge found that the appellant is not an employee within the definition of Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act and consequently allowed the writ petition filed by the first respondent. The said order is questioned in this writ appeal. 3. Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 reads as under: “2.(a) “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, but does not include any such person-- (i)who is employed mainly in a managerial or administrative capacity; or (ii)who, being employed in a supervisory https://hcservices.ecourts.gov.in/hcservices/ capacity draws wages exceeding three thousand and five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested to him, functions mainly of a managerial nature;” 4. Section 2(a) provides that an 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. By virtue of the above definition, even when a person is employed in the supervisory capacity, he would be an employee within the said definition. Nevertheless, sub-clauses (i) & (ii) of clause (a) of Section 2 excludes certain categories of persons from the definition. Sub-clause (ii) of clause (a) of Section 2 excludes a person who being employed in a supervisory capacity draws wages exceeding three thousand and five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested to him, functions mainly of a managerial nature. 5. It is the specific case of the first respondent co-operative Bank that the appellant was the administrative head over the Assistant Secretary, Cashier, Accountant, Jewel Appraiser, Clerk, Salesman, Packer, Peon and Watchman and they are under his control. He is empowered to sign cheques and he is also empowered to grant leave to the subordinate employees. He is the highest paid person in the Bank with a monthly salary of Rs.10,447/-. He is also empowered to issue service certificates to the subordinate officers and employees. He is entitled to use the separate seal and letter heads. Over all, he is the supervisor of the job carried out by his subordinates. In support of the above, various exhibits have been filed. With those averments, the first respondent pointed out that in view of the duties and responsibilities of the appellant, he cannot be considered to be an employee within the definition of Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, as he is the Secretary of the Bank. In fact, during his examination, the appellant himself had admitted the above contentions of the first respondent Bank. The appellant has been receiving a salary of more than Rs.3,500/- per mensem and he is the administrative head of all the activities of his subordinates right from the Assistant Secretary to Watchman. In terms of sub-clause (ii) of clause (a) of Section 2, he is excluded from the definition of Section 2(a) of the said Act. The learned Judge, after analysing the above provisions, has held that the appellant cannot be brought within the definition of Section 2(a) and consequently held that he is not an employee. That apart, in terms of Section 2(19) of the Tamil Nadu Co-operative Societies Act, 1983, 'Officer' includes a President, Vice President, Managing Director, Secretary, Assistant Secretary, Member of Board and any other person empowered under the rules or bye-laws to give directions in regard to the business of https://hcservices.ecourts.gov.in/hcservices/ the registered society. That definition of Officer includes the Secretary of the Co-operative Bank as well. Hence, the learned Judge has correctly held that the appellant is not an employee within the meaning of Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act and he is an Officer within the meaning of Section 2(19) of the Tamil Nadu Co-operative Societies Act. Even on facts, the learned Judge has found that in terms of bye-law 12(c) of the society, the Secretary would be entitled to the payment of subsistence allowance only at the rate of 25% of the basic wages during the period of suspension and he had been paid that amount as well. 6. Having regard to the above findings and for our reasons as well, we are of the considered view that the appellant, who is the Secretary of the first respondent co-operative Bank, cannot be termed to be an employee under Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Accordingly, the challenge to the order in the writ petition must fail and the writ appeal is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ss To 1. The Assistant Commissioner of Labour Coimbatore 2. The Deputy Commissioner of Labour Coimbatore 1 cc to Mr.N.s. Sivakumar, Advocate, Sr. 77787 1 cc to Government Pleader, Sr. 77679 W.A.No.1411 of 2008 GGK (CO) kk 27/11 https://hcservices.ecourts.gov.in/hcservices/