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1979 Supreme(Ker) 120
Judges : V.P.GOPALAN NAMBIYAR,G.BALAGANGADHARAN NAIR
SOUTH INDIAN BANK LTD. - Appellant
Versus
T.P.ANTONY AND ANOTHER - Respondent
Case No : W. A. No. 213 of 1978
Decided On : 08/03/1979
Advocates Appeared :
S. Narayanan Poti; S. Sankara Subban; For Appellant M. Ramachandran; For Respondent
The determination of 'employee' status under the Act requires a thorough consideration of the contract terms and the impact of statutory provisions.
Headnote:
Kerala Shops and Commercial Establishments Act - Employee - S.2(6), S.18(2) - The court discussed the definition of 'employee' under S.2(6) and the right to appeal under S.18(2) of the Act. The court considered the withdrawal of immunity under S.4 and the nature of the contract between the parties to determine the employee status. The court found the Tribunal's reasoning unsatisfactory and remitted the matter back for fresh disposal.
Fact of the Case:
The South Indian Bank Ltd. appealed against the judgment dismissing its writ petition to quash an order allowing the reinstatement of a canvasser under the Kerala Shops and Commercial Establishments Act.
Finding of the Court:
The court found the Tribunal's reasoning unsatisfactory and remitted the matter back for fresh disposal.
Issues: The main issue was whether the canvasser was an 'employee' under the Act and entitled to appeal against the termination of services.
Ratio Decidendi: The court emphasized the need for a fresh consideration of the employee status based on the contract terms and the withdrawal of immunity under the Act.
Final Decision: The appeal was allowed, the judgment was set aside, and the matter was remitted back to the Appellate Authority for fresh disposal.
1. This appeal is by the South Indian Bank Ltd. a non-nationalised bank against the judgment of a learned judge who dismissed the appellant's writ petition to quash Ext. P-3 order of the Appellate Authority, under the Kerala Shops and Commercial Establishments Act, allowing the 1st Respondent's appeal against the order of termination passed by the Bank against him. This writ appeal was posted and heard along with W. A. No. 298 of 1977 and O.P. 1419 of 1978. But as the other cases related to Nationalised Banks and involved certain other fundamental questions, it was felt unnecessary to club this appeal along with those cases. This appeal is accordingly disposed of separately.
2. The Respondent was a canvasser for deposits engaged by the Bank on terms of a contract evidenced by Ext. P-1, dated 14th June 1972. According to the terms of Ext. P-1 the Bank was to allow the 1st Respondent to canvass deposits for it, for a term of five years. The Bank was to pay the canvasser a commission of Rs. 2 for every Rs. 100 collected by the canvasser from depositors and accounted to the Bank. The Commission payable for remittance made during the calendar month was to be paid on the last working day of that month. We are not going into the other terms and conditions of Ext. P-1 in view of the course that we propose to adopt. The agreement was followed by Ext. P-2 letter dated 14th June 1972 written by the 1st Respondent to the appellant Bank, in which the 1st Respondent declared that he had executed Ext. P-1 agreement fully understanding the implications of the terms and conditions contained therein, and stated that:
"I am in no way in the employment under the Bank. I also declare that I will not raise now or in future any claim by virtue of the work I am doing in terms of the agreement for any right or benefit arising out of the provisions in any Act or Award that is applicable now or that will be made applicable in future."
The 1st Respondent's services were terminated; and against the order of termination he filed an appeal under the Shops and Commercial Establishments Act. Objection was taken to the jurisdiction of the Appellate Authority who heard the appeal on the ground that the canvasser was not an 'employee' as defined under the Act and that no appeal would lie to the authority. S.2 sub-section (6) of the Act defines the term "employee" thus:
"employee" means a person wholly or principally employed in, and in connection with, any establishment and includes an apprentice."
S.18 sub-section (2) provides for an appeal in these terms:
18 (2). Any employee whose services are dispensed with may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer."
It will thus be noticed that only an employee who satisfies the definition under S.2 (6) is entitled to maintain the appeal under S 18 (2) of the Act. The appellant's contention was that a canvasser is not an employee of the Bank and therefore the appeal was not maintainable. The Tribunal noticed that there was a Government notification under S.4 of the Act, making the Act applicable even to canvassers of deposits, withdrawing the immunity conferred on them by S.3(b) of the Act. In view of this, the Tribunal seems to have held that the 1st Respondent could no longer claim exemption from the operation of the Act and was an employee for the purpose of the Act. It was in that view that it allowed the appeal and directed reinstatement of the employee with backwages of Rs. 6,000 and also payment of a sum of Rs. 316 as compensation in Hew of reinstatement within thirty days. It was this award that was sought to be quashed by the appellant.
3. The learned judge noticed that the Tribunal's Award was unsatisfactory. The only ground on which the Tribunal rested its award was that the immunity conferred by S.3 (b) having
