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2005 DIGILAW 186 (MAD)

The President v. The Presiding Officer & Another

2005-02-03

V.KANAGARAJ

body2005
Judgment :- Writ Petition is to issue a writ of certiorari calling for the records of the first respondent in Award dated 31/1/1997 made in I.D.No.128 of 1993 on the file of the labour Court, Salem and to 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 bye-law; that there is a special bye-law relating to the service conditions of the employees; that the second respondent was appointed as a Clerk in the Unjalur Primary Cooperative Bank and thereafter, he was appointed as Paid Secretary from 9/5/1970 and he was in service till 24/11/1977; that thereafter certain charges were framed against the second respondent for misappropriation; that on 16/12/1977, the second respondent was removed from service and after proper enquiry as contemplated under the Act and Rules, he was terminated from service on 25/11/1977. 3. The petitioner would further submit that the second respondent filed an appeal before the Deputy Registrar of Cooperative Society, Periyar District and after enquiry, The Deputy Registrar of Cooperative Society, Periyar District, ordered for reinstatement with backwages; that aggrieved, the petitioner has come forward to file the above Writ petition for the relief extracted supra. 4. Today, when the above matter was taken up for consideration and upon hearing the learned counsel for the petitioner, this Court is able to assess that by this time, the petitioner should have been attained the age of superannuation and therefore, the question of his reinstatement in service does not arise. However, regarding back wages and the retrial benefits are concerned, still it could be decided by this Court, which alone could be decided in the above writ petition. 5. But, however, on the part of the learned counsel appearing on behalf of the petitioner, he would submit that the second respondent being the Secretary of the petitioner society is not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act and hence he cannot invoke the provisions of the Industrial Disputes Act and would cite a judgment reported in THE MANAGEMENT, T.P.Spl.67 GOUNDANPALAYAM PRIMARY AGRICULTURAL COOPERATIVE BANK LTD., BY ITS PRESIDENT GOUNDANPALAYAM, KANZEYAM via ERODE DISTRICT Vs. THE ASSISTANT COMMISSIONER OF LABOUR, THE AUTHORITY UNDER THE PAYMENT OF SUBSISTENCE ALLOWANCE ACT, SALEM 7 AND ANOTHER (2002 (4) CTC - 339), wherein, it is held that, "the second respondent (Secretary of the Primary Agricultural Cooperative Bank) 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 (The Assistant Commissioner of Labour) 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." 6. The learned counsel for the petitioner has taken a stand that "a person employed as Secretary in Bank to which the Tamil Nadu Cooperative Societies Act 1983, applies since being an Officer, as defined under Section 2 (19) of the said Act, he cannot be an 'employee' under the Tamil Nadu Cooperative Societies Act, 1983 and even under Tamil Nadu Payment of Subsistence Allowance Act, such Secretary cannot invoke Tamil Nadu Payment of Subsistence Allowance Act. 7. Since the second respondent is the Secretary of the petitioner Society and as such he is not a person falling under the Industrial Disputes Act as an 'employee' within the meaning of Section 2 (s) of the Industrial Disputes Act, as has been tellingly held in the above judgment, the Labour Tribunal could not have jurisdiction over such subjects concerned with the Secretaries of the Cooperative Societies or Banks under the Industrial Tribunal Act and therefore, the impugned award passed by the Industrial Tribunal cannot be approved and becomes only liable to be quashed at this score itself and hence the following order: In result, (i) the above writ petition succeeds and the same is allowed. (ii) the award dated 31/1/1997 made in I.D.No.128 of 1993 by the labour Court, Salem, is hereby quashed. (iii) No costs.