Madras High Court
The Special Officer vs The Presiding Officer on 25 January, 2021
W.P(MD)No.11212 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P(MD)No.11212 of 2010
and
M.P.(MD)No.1 of 2010
The Special Officer,
TC 70, TAC Employees Co-operative Thrift and
Credit Society Ltd.,
TAC Nagar, Thoothukudi-628 005,
Through its Special Officer. ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court, Tirunelveli.
2.K.Kanagaraj ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India, to
issue a writ of Certiorari to call for the records relating to the
proceedings in Claim Petition No.09/01, dated 25.02.2010, on the file of
the first respondent and quash the same.
1/13
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
For Petitioner : Mr.A.Robert Chandrakumar
for Mr.G.Prabhu Rajadurai
For Respondents : Mr.A.Jayaramachandran
for R.2
*****
ORDER
This Writ Petition is filed seeking for issuance of a Writ of
Certiorari to call for the records relating to the proceedings in Claim
Petition No.09/01, dated 25.02.2010, on the file of the first respondent
and quash the same.
2. The case of the petitioner is that the second respondent filed
a claim petition in O.P.No.9 of 2001 against the petitioner Society before
the first respondent claiming a sum of Rs.2,07,117.54/- by stating that he
was working as a Secretary of the petitioner Society since 01.11.85 and
that he resigned on 12.08.2000 and that he was not paid the salary for a
period from 01.08.2000 to 11.08.2000, the Provident Fund, gratuity, earn
leave and bonus for the period from 1997-2000 and the second
respondent claimed that his last drawn salary was Rs.7,937/-.
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
3. The petitioner Society filed an objection by stating that the
second respondent has no right to invoke the jurisdiction of the first
respondent as he was an officer under the Tamil Nadu Co-operative
Societies Act. It is further averred that the second respondent did not
hand over the charge on his registration and the proceedings under
Section 81 of the said Act was initiated for the irregularities committed
by him and pending enquiry, the second respondent raised an industrial
dispute and filed a claim petition under Section 33(c)(2) of the Industrial
Dispute Act 1947 and the Labour Court, without considering the settled
issue that the Secretary who has to be considered as Management and not
as a workman under the Industrial Disputes Act and the petitioner is an
Officer under the Tamil Nadu Co-operative Societies Act. However, the
Labour Court passed the award in favour of the second respondent.
Challenging the same, the present writ petition is filed by the petitioner
Society.
4. Learned Counsel appearing for the petitioner would submit
that the issue involved in the present case is no more res integra and this
Court has already held that the Secretary of the Society cannot be defined
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
as a workman within the meaning of Section 2(s) of the Industrial
Disputes Act.
5. In support of his contentions, the learned Counsel appearing
for the petitioner relied upon the decision of this Court in The
Management, T.P.Spl.67, Goundanpalayam Primary Agricultural Co-
operative Bank Ltd., by its President Vs. The Assistant Commissiioner
of Labour, Salem-7 and another reported in 2002(4) CTC 339, wherein
this Court held as follows:
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
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
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
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
"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.
6. Further the learned Counsel appearing for the petitioner
would rely upon the order of this Court in K.Pazhani Vs. the Presiding
Officer, Labour Court, Cuddalore and another [W.P.No.21014 of 2007,
dated 05.01.2012], wherein this Court held as follows:
7. The question whether a secretary of a
Cooperative Society is a workman within the
meaning of Section 2(s) of the Industrial Disputes
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
Act and also Section 2(a) of the Tamil Nadu
Payment of Subsistence Allowance Act, 1981
came up for consideration in several judgments
of this Court, where it was held that the definition
of 'employee' is similar to that of a workman
under Section 2(s) of the Industrial Disputes Act.
8. In this context, it is necessary to refer to the
judgment of this Court in the case of The
Management, T.P.Spl.67 Goundanpalayam,
Primary Agricultural Cooperative Society
Limited V. The Assistant Commissioner of Labour
and another reported in 2003 Writ Law Reporter
371, wherein a similar claim was negatived by
this Court. Under the said circumstances, there is
no infirmity in the award passed by the first
respondent Labour Court.
9. Accordingly, the Writ Petition stands
dismissed. However, the dismissal of the Writ
Petition will not disentitle the petitioner from
availing the statutory revisional remedy under
Section 153 of the Tamil Nadu Cooperative
Societies Act, 1983 to the revisional authority. If
any such revision is filed within a period of three
weeks from the date of receipt of a copy of the
order, the competent Revisional Authority shall
entertain the same without reference to limitation
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
prescribed under Section 153 of the Tamil Nadu
Cooperative Societies Act and deal with the same
on merits. No costs.
7. The learned Counsel would also rely upon the order of this
Court in The Management, Velakurichi Primary Agricultural Co-
operative Credit Society, represented by its Vice President, Vs. The
Presiding Officer, Labour Court, Cuddalore and another [W.P.Nos.
18839 and 18840 of 2004, dated 17.10.2019] wherein this Court held as
follows:
10. These all are the disputed facts and such disputed
facts cannot be adjudicated in a Claim Petition
under Section 33(C)(2) of the Industrial Disputes Act.
This Court also cannot provide a finding in respect of
such disputed facts, which all are to be ascertained by
referring the original documents and by adducing
evidences. Such an exercise cannot be done in a writ
jurisdiction. As far as the claim petitions are
concerned, only in the event of establishing a pre
existing right, the same can be entertained by the
Labour Court and not otherwise.
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
11. Apart from the ground that there was no pre-
existing right, the basic and preliminary objection
raised by the writ petitioner is to be considered.
Admittedly, the 2nd respondent was holding the post
of Secretary in the writ petitioner Cooperative
Society. In the writ petitioner Cooperative society,
several other posts were sanctioned by the Registrar
of Cooperative Society. Therefore, the writ petitioner
was the Administrative head of the Cooperative
Society and under him, the persons holding the Post
of Assistant Secretary, Cashier, Clerk, Fertilizer
Salesman, Office Assistant and Night Watchman were
working. This being the factum, there is no iota of
doubt, regarding the administrative capacity of the
2nd respondent as a Secretary as he was exercising
the administration power and therefore, he cannot be
construed as a “workman” within the meaning
of Section 2(s) of the Industrial Disputes Act.
Therefore, the learned Counsel appearing for the petitioner would pray
for allowing this writ petition, by setting aside the order of the Labour
Court.
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
8. Learned Counsel appearing for the second respondent would
submit that the Labour Court, by considering all the facts and
circumstances of the case and also by considering all the relevant rules,
passed the award and hence, there is no need to interfere with the same
and accordingly, he would pray for dismissal of the writ petition.
9. Heard the learned Counsel appearing for the petitioner and
the learned Counsel appearing for the second respondent and also
perused the materials placed on record.
10. The facts relating to the present case is not in dispute.
Admittedly the second respondent was working as a Secretary in the
petitioner Society and for the commission of some irregularities,
disciplinary proceedings were initiated against the second respondent
under Section 81 of the Tamil Nadu Co-operative Socities Act and during
the pendency of the proceedings, the second respondent filed a claim
petition in O.P.No.9 of 2001 against the petitioner Society before the first
respondent claiming a sum of Rs.2,07,117.54/- by stating that he was
working as a Secretary of the petitioner Society since 01.11.85 and that
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
he resigned on 12.08.2000 and that he was not paid the salary for a
period from 01.08.2000 to 11.08.2000, the Provident Fund, gratuity, earn
leave and bonus for the period from 1997-2000 and the second
respondent claimed that his last drawn salary was Rs.7,937/-. The Labour
Court, without considering the settled issue as rendered in various
judgments of this Court that the Secretary has to be considered as
Management and not as a workman under the Industrial Disputes Act and
the petitioner is an Officer under the Tamil Nadu Co-operative Societies
Act, passed the award in favour of the second respondent, which is an
unsustainable one.
11. Further, on a perusal of the above said decisions rendered
by this Court(cited supra), it is made clear that the second respondent is
not coming under the definition of the workman and he is the officer of
the Society. Hence, the claim petition filed by the second respondent
before the Labour Court is not maintainable. Accordingly, the Writ
Petition stands allowed, by setting aside the award passed by the first
respondent in Claim Petition No.09/2001, dated 25.02.2010. No costs.
Consequently, the connected miscellaneous petition is closed.
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
12. However, this order will not stand on the way of the second
respondent from availing the statutory revisional remedy under Section
153 of the Tamil Nadu Co-operative Societies Act, 1983 before the
revisional authority. If any such revision is filed within a period of three
weeks from the date of receipt of a copy of this order, the competent
Revisional Authority shall entertain the same without reference to
limitation prescribed under Section 153 of the Tamil Nadu Cooperative
Societies Act and deal with the same on merits.
Index : Yes/No 25.01.2021
Internet : Yes/No
SSL
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
The Presiding Officer,
Labour Court, Tirunelveli.
http://www.judis.nic.in
W.P(MD)No.11212 of 2010
M.DHANDAPANI,J.
SSL
W.P(MD)No.11212 of 2010
25.01.2021
http://www.judis.nic.in
