The main legal point established in the judgment is the interpretation of 'managerial or administrative capacity' under the Kerala Payment of Subsistence Allowance Act. The court's decision provides guidance on applying tests to determine whether an employee is primarily engaged in a managerial or administrative capacity.

K.P. Balanarayana Marar, J.

1. The question that arises in this original petition is whether a works manager of a press run by a Cooperative Society is an employee as defined under the Kerala Payment of Subsistence Allowance Act 1972.

2. Petitioner is the Palghat District Cooperative Printing Press Ltd., a Cooperative Society registered under the Kerala Cooperative Societies Act 1969, represented by its Secretary. The third respondent was employed as a works manager under the Society. He was placed under suspension pending enquiry with effect from 22-7-1985. The misconduct alleged against him is that a parallel printing press of his own was conducted in front of his petitioner's establishment. At the time of suspension the third respondent was drawing a monthly salary of Rs. 1,186/-.

3. Third respondent made a claim before the authority under Kerala Payment of Subsistence Allowance Act (Act for short) for recovery of an amount of Rs. 2,935.35 being the subsistence allowance during the period from 22-7-1985 to 30-11-1985. That application was forwarded to the conciliation officer (District Labour Officer, Palghat). Petitioner resisted the claim and questioned the maintainability of the application on the ground that third respondent was a person employed mainly in a managerial or administrative capacity holding the post of a works manager and as such he is not an employee as defined in the Act. It was also contended that third respondent was gainfully employed during the relevant period by conducting a parallel printing press. The second respondent allowed that petition as per order Ext. P4. Petitioner challenge that order in this original petition.

4. The main ground of attack is that the third respondent was employed mainly in a managerial or administrative capacity holding the post of a works manager at the time of his suspension and he is thus not an employee as defined under S.2(a) of the Act in order to entitle him to claim subsistence allowance.

5. S.3 of the Act entitles an employee placed under suspension to be paid subsistence allowance for the period during which he is under suspension. Only an employee as defined in the Act is eligible to get such allowance. The expression 'employee' as defined in the Act reads:

"Employee" means any person employed in or in connection with the work of any establishment to do skilled, semi skilled or unskilled manual, supervisory, technical, clerical or any other kind of work for hire or reward, whether the terms of employment be express or implied, but does not include any such person who is employed mainly in a managerial or an administrative capacity or as an out worker, that is to say, a person to whom any articles or materials are given but by or on behalf of the employer to be cleaned, washed, altered, ornamented or repaired by such out worker in any place not under the control and management of the employer".

6. A person who is employed mainly in a managerial or an administrative capacity is excluded from the definition. In this connection it is apposite to refer to the definition of workman contained in the Industrial Disputes Act. S.2(s) of that Act defines workman as:

"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched, in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employ