M.K. Alavikutty v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934** ## **WP(C).No. 24537 of 2006 (U)** **----------------------------------------** **PETITIONER(S):** **-----------------------** **M.K.ALAVIKUTTY, DEPOSIT COLLECTION AGENT, VENGARA SERVICE CO-OPERATIVE RURAL BANK LIMITED NO.F.1186 VENGARA P.O.,MALAPPURAM DISTRICT, RESIDING AT CHINAKKAL HOUSE, P.O., VALIYORE MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAMAKUMAR (SR.)** **RESPONDENT(S): -------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION (C) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM.** **2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM.** **3. THE VENGARA SERVICE CO-OPERATIVE RURAL BANK LIMITED NO.F.1186, VENGARA P.O. MALAPPURAM DISTRICT REPRESENTED BY ITS, PRESIDENT.** **R1 & R2 BY GOVT.PLEADER SMT.SANJEETHA BY ADV. SRI.M.SASINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.24537/2006** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **P1:- COPY OF THE PROCEEDINGS DTD. 11.6.1983 BY THE 3RD RESPONDENT BANK.** **P2:- COPY OF ORDER DTD. 28.6.2004 BY R3.** **P3;- COPY OF JUDGMENT IN WPC. 30596/04 DTD. 21.10.04.** **P4:- COPY OF ORDER NO.CRP(2) 4868/2004/K.DIS. DTD. 3.1.2005.** **P5:- COPY OF APPEAL DTD. 15.2.2005 BY THE PETITIONER.** **P6:- COPY OF REMINDER DTD. 26.10.2005 BY THE PETITIONER.** **P7:- COPY OF THE JUDGMENT DTD. 2.1.06 IN WPC. 36422 /2005.** **P8:- COPY OF THE ORDER NO.GO(RT) 368/06/CO-OP. DTD. 17.8.06 BY R1.** **RESPONDENT'S EXHIBITS:-** **R3(a):- COPY OF THE AUDIT REPORT FOR THE YEAR 2002-03.** **R3(b):- COPY OF THE STATEMENT OF THE NET LOSS BASED ON THE AUDIT REPORT FROM THE YEAR 1982-83 TO 2002-03 ISSUED BY THE ASSISTANT REGISTRAR (AUDIT) TIRUR.** **R3(c):- COPY OF THE SURPRISE INSPECTION REPORT DTD. 27.5.2004 OF THE UNIT INSPECTOR, VENGARA, OFFICE OF THE ASSISTANT REGISTRAR (GENERAL)** **//TRUE COPY//** ## **P.A. TO JUDGE** **tss** ## **S. SIRI JAGAN, J.** ------------------------------------------- W.P.(C) No.24537 of 2006 ---------------------------------------------Dated this the 26[th] day of March, 2012 ## **JUDGMENT** By Ext.P1, the petitioner was engaged by the 3[rd] respondent Co-operative bank as a Deposit Collector on a commission of Rs.3/- per Rs.100/- collected as deposit by the petitioner. Subsequently, by Ext.P2, the rate of commission was reduced to 2%. Against the same, the petitioner filed a petition before the Joint Registrar (General) of Co-operative Societies, Malappuram, who, pursuant to Ext.P3 judgment of this Court in W.P.(C) No.30596/2004, rejected the claim of the petitioner. The petitioner filed an appeal before the Government as directed in Ext.P7 judgment in W.P. (C) No.36422/2005. By Ext.P8 order, the Government considered the matter and dismissed the petitioner's appeal. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) To call for the records leading upto Exts.P2, P4 and P7 and quash the same by the issuance of a Writ of Certiorari or any other appropriate Writ, order or direction ii) To issue a Writ of Mandamus directing the W.P.(C)No.24537/06 2 respondents to regularise the petitioner in the service of the third respondent society after considering the service and age of the petitioner iii) To issue a Writ of Mandamus directing the respondents to grant all the benefits treating the petitioner as an employee of the third respondent bank .” According to the petitioner, in the decision of _**INDIAN BANKS**_ ## _**ASSOCIATION**_ v. _**WORKMEN OF SYNDICATE BANK AND**_ _**OTHERS**_ [2001(3) SCC 36], the Supreme Court has held that Deposit Collectors are workmen and although they are not entitled to regularisation in service, their claim as workmen has to be considered in accordance with the Industrial Disputes Act. The petitioner, therefore, submits that although the claim for regularisation raised by the petitioner, which, has also been rejected by the impugned orders, cannot be sustained, in view of that decision, the petitioner is still entitled to press for the relief of retaining the 3% commission in accordance with Ext.P1 order of engagement of the petitioner. 2. A counter affidavit has been filed by the 3[rd] respondent Society, wherein they take the stand that the commission is to be fixed on the basis of the paying capacity of the bank and presently the financial condition of the bank warrants only a commission of 2%. The 3[rd] respondent would also contend that the department has directed to even reduce 3 W.P.(C)No.24537/06 it to 1.5%. It is further submitted that from 1.9.2006 onwards it was revised to 2.5% even. 3. I have considered the rival contentions in detail. On going through the decision of the Supreme Court in **Indian Banks Association's case (supra** ), I find that, that decision was rendered on the basis of evidence adduced by the parties before the Industrial Tribunal and it was based on that evidence that the Supreme Court entered a finding that the Deposit Collectors of the Bank involved in that case were workmen as defined under the Industrial Disputes Act. The question as to whether a person is a workman as defined under the Industrial Disputes Act depends on evidence to be adduced regarding the ingredients of the definition of workman in the said Act. A Co-operative Bank does not stand on the same footing as a Nationalised Bank. The service conditions are also governed by different sets of rules. A Deposit Collector of a Nationalised Bank may not necessarily be discharging the same duties and functions of a Deposit Collector in a Nationalised Bank although the nomenclature used is the same. As such, I am of opinion that it is not safe to assume on the basis of the said Supreme Court decision W.P.(C)No.24537/06 4 that the petitioner in this case should also be considered as a workman without taking evidence in the matter. 4. The question as to whether the commission paid to the petitioner is remuneration paid to a workman would also essentially depend upon the question as to whether the petitioner is a workman as defined under the Industrial Disputes Act. Therefore I am of opinion that these are all matters which the petitioner should raise in an industrial dispute by initiating appropriate proceedings under the Industrial Disputes Act. Without prejudice to that right, this writ petition is dismissed. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.24537/06 5 W.P.(C)No.24537/06 6