Respondent discharging managerial and executive functions is not an employee.

1. This writ petition was filed for the relief of issuance of a Writ of Certiorari, calling for the records of the second respondent in APSA No.3/2000 and quash the order dated 27.11.2000.

2. Aggrieved by the order dated 27.11.2000 passed by the second respondent holding the third respondent was an “employee” of the petitioner within the meaning of Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act and, therefore, was entitled for the subsistence allowance, the petitioner has filed this writ petition.

3. Petitioner is a co-operative Bank and, according to the petitioner, the third respondent joined the services of the petitioner as “Secretary” and in such capacity, he was the chief executive of the administration of the bank and all the functions of the petitioner bank were carried out by the third respondent only. According to the petitioner, the third respondent was employed mainly in managerial and administrative capacity and as such he was not an “employee” within the meaning of Section 2(a) of the said Act.

4. While so, the third respondent, on certain alleged acts of misconduct, was suspended pending enquiry with effect from 9.1.1998 and a domestic enquiry was initiated against him. He was paid the subsistence allowance at the rate of 25% of his basic wages in terms of the by-law 12(c) of the petitioner bank.

5. The third respondent filed an application before the Assistant Commissioner of Labour, Coimbatore, first respondent herein, claiming subsistence allowance to the tune of Rs.49,622.25 for the period from 9.1.1998 to 8.8.1998, which was resisted by the petitioner on the ground that the third respondent was not an “employee”. The first respondent, on appreciation of the evidence adduced before him, by his order dated 3.12.1999 held that the third respondent was not an “employee” and therefore dismissed the application. Against the order passed by the first respondent, the third respondent preferred an appeal before the Deputy Commissioner of Labour, Coimbatore and the appellate authority, by his order dated 27.11.2000, set aside the order passed by the first respondent and held that the third respondent was an “employee” of the petitioner within the meaning of the said Act and, therefore, entitled for the subsistence allowance. Aggrieved, the petitioner has filed this writ petition.

6. Mr. Silambannan, learned counsel appearing for the petitioner submitted that the impugned order passed by the second respondent is not sustainable in law as he had taken into consideration extraneous issues and brushed aside the material evidence placed before him for holding that the third respondent was an “employee” of the petitioner. It was further contended that going by the nature of the duties performed by the third respondent and the quantum of salary drawn by him, it is evident that he was emp loyed mainly in the managerial and administrative cadre of the petitioner bank. That apart, from the documentary evidence placed before the authorities concerned and also the oral evidence given by the third respondent before the first respondent, it is clear that the third respondent was discharging the managerial and executive functions of the petitioner bank. The second respondent committed a grave illegality by brushing aside such material piece of evidence against the third respondent. It was further asserted that the third respondent was dismissed from service by order dated 29.9.1999 and he has challenged the same before the Joint Registrar, Coimbatore. By the acts of serious irregularity and dishonesty, the third respondent had caused the financial loss to the petitioner bank to the tune of Rs.5,55,252. In support of his contentions, learned counsel for the petitioner relied on the decision of this Court in The Management T.P. Spl.67 Goundanpalayam Primary Agriculture Co-operative Bank Ltd. v. The Assistant Commissioner of Labour, 2003 W.L.R. 371.

7. Onthe other hand, Mr. M. Sathiyanarayanan, learn