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Judgment
Y. Venkatachalam, J.—Invoking Art. 226 of the Constitution of India, the petitioner herein has filed the present writ petition, seeking for a writ of Certiorari to call for the entire records of the first respondent, The Deputy Commissioner of Labour, Madurai pertaining to the case No. T.N.S.E.A. 3/91 dated 28.4.1992 and to quash the said order of the first respondent in T.N.S.E.A. 3/91 dated 28.4.92. In support of the writ petition, the petitioner herein has filed an affidavit wherein he has narrated all the facts and circumstances that forced him to file the present writ petition and requested this court to allow the writ petition as prayed for. For contra, though no counter affidavit has been filed on behalf of the respondents, the learned counsel appearing on their behalf argued the matter and justified the order of the 1st respondent and requested that the writ petition maybe dismissed for want of merits.
Heard the arguments advanced by the learned counsel appearing for the respective parties. I have perused the contents of the affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by the learned counsel appearing for the parties during the course of their arguments. I have also considered the various decisions relied on by the parties in support of their respective cases.
In the above facts and circumstances of the case, the only point that arises for consideration in this case is, as to whether there are any valid grounds to allow this writ petition or not.
The brief facts of the case of the petitioner as seen from the affidavit are as follows: The 2nd respondent herein was engaged as a collection agent in the petitioner bank for collecting daily savings deposits collection. The petitioner institution is a banking institution established under the provisions of the Tamil Nadu Co-operative Societies Act, the Management of the petitioner bank according to the Act shall vest with the Board as per the rules and Bye-laws governing the administration of the petitioner institution. The Board''s by-law No. 16-II which is with the approval of the Registrar of Co-operative Societies enables the Board to engage collection agents. The said by-law read as follows:
The Board of Directors may appoint agents for the collection of day deposits on commission basis to be fixed by the Board from time to time after collecting sufficient cash security. Such agents shall not be deemed as employees of the Bank.
Even otherwise, the nature of work and the control, the petitioner had on the collection Agents will go to show that they may not be termed as employees of the petitioner institution. The second respondent came to be appointed by the resolution of the Board dated 12.12.85. According to the resolution, the second respondent is appointed on commission basis and that he is responsible for the amount collected. The petitioner has no control either administratively or otherwise on the second respondent agent. That being so, by a resolution dated 5.9.91, terminated the agency of the second respondent and the second respondent challenged this termination before the first respondent under the provisions of the Tamil Nadu Shops and Establishments Act, Case No. T.N.S.E.A.3/91. The claim of the second respondent, the counter and the evidences adduced in this case will amply prove that the second respondent cannot claim any right under the Act as he is not a person employed as defined u/s 2(12) of the Tamil Nadu Shops and Establishments Act. A cumulative reading of the Section 2(12) of the Act, will go to show that a person employed should be a person who is wholly or principally employed and it should be in connection with the business of the society. According to the petitioner in this case, even the admitted case of the second respondent is that he is otherwise fully employed and is not dependent upon the bank for his earnings. The first respondent without proper appreciation of the facts and on an erroneous view of the law governing the issue, vide his order dated 28th April 1992 allowed the appeal and set aside the orders of termination dated 5.9.91. Aggrieved against the said order, having left with no other effective remedy, the petitioner is approaching this court invoking its jurisdiction under Article 226 of the Constitution of India. Hence writ petition.
The above writ petition is filed challenging the order of the first respondent dated 28.4.92 allowing the appeal of the 2nd respondent setting aside the order of termination dated 5.9.91. The impugned order is challenged by the petitioner herein on the grounds that the first respondent failed to see that the second respondent is not a ''Person Employed'' and the provisions of the ''Tamil Nadu Shops and Establishments Act cannot be invoked and the first respondent has no jurisdiction to decide the issue, that even according to the second respondent, he is only a commission agent and is not principally or wholly employed in connection with the business of the petitioner, and that the categorical admission made by the second respondent with reference to the nature and course of work by itself will prove that he will not come under the definition ''Person Employed''. Further according to the petitioner, the second respondent has admitted that he was functioning as a commission agent and he was having his own business and he has agreed to and admitted that he is not entitled to statutory benefits. There is no stipulation as to the working hours and there is no question of obtaining prior permission or applying for leave etc., with the petitioner. Therefore it is contended by the petitioner that there is no control on the work of the second respondent by the petitioner, that there is no liability or duty cast upon the second respondent to apply for and obtain leave etc., and also that the commission rate is already fixed and that the second respondent is only an independent agent canvassing besides having a business of his own. Thus according to the petitioner all these things prove that the second respondent is not a person employed and the first respondent therefore exceeded his jurisdiction in allowing the appeal. They also contended that the resolution in which the second respondent is appointed as commission agent is very clear that there is no employer-employee relationship between the petitioner and the second respondent. On the contrary he is only a commission agent. The petitioner establishment is a statutory establishment governed by the provisions of the Tamil Nadu Cooperative Societies Act, which is self contained Act and has got provisions for appeal, revision against orders etc., and that therefore, the first respondent is not justified in bringing the petitioner within the provisions of Section 2(6) so as to imbibe jurisdiction in himself. It is also contended by the petitioner herein that the first respondent erred in reading Section 2(12) (iii), (iv) and (vi) together so as to bring the second respondent within the definition of ''person employed''. The said sections are mutually exclusive and distinctive and that therefore such approach of the first respondent is contrary to law. Further according to the petitioner, in evidence it is categorical that there is no administrative control over the person and no wages or remuneration paid to him and the findings by the first respondent is therefore not justified and contrary to the evidence on record. Interalia it is also contended by the petitioner that in this case, it is for the workman to prove that he is principally and wholly employed, and that in this case it is admitted by the second respondent that he has got other business and that therefore he would not come under the meaning principally and wholly employed. Further according to him, this apart there are other shortcomings of an employer employee relationship, in this case which the first respondent completely overlooked and that therefore the impugned order is liable to be set aside.
Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter claims made by the rival parties the following are the admitted facts. The 2nd respondent herein was engaged as a collection agent in the petitioner bank for collecting daily saving deposits collections. He came to be appointed by the resolution of the Board dated 12.12.85. Subsequently by a resolution dated 5.9.91 the petitioner terminated the agency of the second respondent and the second respondent challenged the termination before the first respondent under the provisions of the Tamil Nadu Shops and Establishment Act. The first respondent by order dated 28.4.92 allowed the appeal of the 2nd respondent and set aside the order of termination passed by the petitioners. The main contention of the petitioner herein is that the 2nd respondent is not a person employed as defined u/s 2(12) of the TNSE Act and the first respondent without proper appreciation of the facts set aside the order of termination dated 5.9.91. It is significant to note that in this case the management of the petitioner bank vest with the Board as per the Rules and Bye-laws governing the administration of the petitioner institution. The said Board''s By-law N0.16-H which is the approval of the Registrar of Co-operative Societies enables the Board to engage collection agents and the same reads that:
The Board of Directors may appoint agents for the collection of day deposits on commission basis to be fixed by the Board from time to time after collecting sufficient cash security. Such agents shall not be deemed as employees of the bank. Further according to the petitioner the nature of work and the control, the petitioner had on the collection agents will go to show that they may not be deemed as employees of the petitioner institution. His appointment as well as the termination were only by the resolution of the Board. Further it is clear in this case that the petitioner has no control either administratively or otherwise on the second respondent agent. Further even it is the admitted case of the 2nd respondent that he is otherwise fully employed and is not dependent upon the bank for his earnings. Further it is also made clear by the petitioner herein that the second respondent himself had admitted that he was functioning as a commission agent and he was having his own business and he has also agreed to and admitted that he is not entitled to statutory benefits. That apart in this case there is no stipulation as to the working hours and there is no question of obtaining prior permission or applying for leave etc., with the petitioner. Thus it is very clear in this case that there is no control on the work of the 2nd respondent by the petitioner, there is no liability or duty cast upon the second respondent to apply for and obtain leave etc., and further the commission rate is also already fixed, the second respondent is only an independent agent canvassing besides having a business of his own. Therefore it is contended by the petitioner herein that there is no employer-employee relationship between the petitioner and the second respondent. But however, the 1st respondent exceeded his jurisdiction in allowing the appeal of the 2nd respondent. In the above facts and circumstances of the case I see every force in the above contentions raised by the petitioner.
In support of their case, the learned counsel for the petitioner, relied on the following decision:
Avery India Limited Vs. Additional Commissioner for Workmen''s Compensation and Another, wherein it has been held thus:
It is evident the second respondent was not a "persons employed" as he was a canvasser and squarely fell under the exemption given in S. 4.
The above decision squarely applies to the facts of this case, since herein also it has been proved by the petitioner herein that there is no employer employee relationship and he is only an agent.
On the side of the respondents also the following decisions are being relied on:
M.F.S.CO.O.S. Limited v. Inspector of Labour (1996 II LLJ 319) wherein it has been held that the Fair Price Shop run by the Fanners'' Service Co-operative Society falls within the definition of "shop" under the Tamil Nadu Shops and Establishments Act.
The Management of Indian Bank Vs. The Presiding Officer, Industrial Tribunal (Central), Madras and M. Seethalakshmi Ammal, wherein it has been held that tiny deposit collectors are not independent contractors and when once a deposit collector satisfies the definition of workmen it is not open to the bank to rely on Banking Regulation Act and contend that such person is independent contractor.
That being so, the above decisions relied on by the 2nd respondent it is not helpful to him in this case, because his appointments and also termination were only by the competent Board''s resolution and it is admitted even by himself that he was functioning only as commission agent and he was having his own business and he has also agreed to and admitted that he is not entitled to statutory benefits. That being so, the above decisions are not in any way helpful to "him in this case.
Therefore for all the aforesaid reasons and in the facts and circumstances of this case and also in view of my above discussion with regard to the various aspects of this case also in view of the various decisions discussed above, I am of the clear view that the petitioner herein has clearly made out a case that as there is no employer-employee relationship between the petitioner and the 2nd respondent that therefore the 2nd respondent cannot claim any right under the T.N.S.E. Act and thus the first respondent exceeded his jurisdiction in allowing the appeal and hence the impugned order is liable to be set aside. Thus, the writ petition succeeds and the same has to be allowed as prayed for.
In the result, the writ petition is allowed as prayed for. No costs. Consequently WMP No.27473/92 is dismissed.