JUDGEMENT
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(1.)This Writ Petition is filed for issuance of a Writ of Certiorari, to quash the order of the second respondent passed in PSA.No.4 of 2010, dtd. 30/4/2012, as well as the order passed by the first respondent in PSA.A.No.1 of 2016, dtd. 1/4/2016.
(2.)The brief facts of the case are that the 3rd respondent had worked as Secretary of the petitioner society and was drawing salary of Rs.13,257.00. The 3rd respondent and other employees have committed irregularities and misappropriation of Rs.40,79,000.00 for which the 3rd respondent and others were subjected to disciplinary proceedings and upon proven misconduct held in the enquiry, the 3rd respondent was terminated from service by an order, dtd. 20/8/2010. The 3rd respondent as a Secretary by virtue of sec. 75 of Tamil Nadu Co-operative Societies Act read with G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dtd. 24/3/2000, comes under the "Common Cadre Service". The concerned Regional Joint Registrar of Cooperative Societies is the "Common Cadre Authority" vested with powers to take disciplinary action against the Secretary. By an order dtd. 29/3/2008 of the Common Cadre Authority, the 3rd respondent was placed under suspension. The 3rd respondent during the period of suspension attained superannuation on 30/4/2008. However, by power vested under Rule 31(4) of the Registered Special By-law of the Society, the disciplinary proceedings were continued and completed. In view of the fact that the third respondent attained superannuation on 30/4/2008, on completion of 58 years as per Rule 31(4) of Special By-law, the service rights accrued to the employee shall freeze on the date of superannuation and the employee shall not be entitled for any subsistence allowance. As per the Registered By-law of Society and as per Chapter IV Rule 38, the Secretary is the Chief Executive Officer of the Society and he is the custodian of the assets of the society and he is the person to sue and be sued.
(3.)As per Sec. 2(a)(ii) of the Tamil Nadu Payment of Subsistence Allowance Act, the person employed in a supervisory cadre (draws wages exceeding Rs.3,500.00) are excluded from the category of employees defined under Sec. 2 of the said Act. Therefore, the 3rd respondent had worked as a Secretary and by the nature of duties and responsibilities attached to his career, the salary drawn by him, he is excluded from the category of employees and consequently, the Tamilnadu Payment of Subsistence Allowance Act is not applicable. Since the 3rd respondent is outside the jurisdiction of the Act and the Authority under Tamil Nadu Payment of Subsistence Allowance Act has no jurisdiction to entertain the 3rd respondent petition and the present order is passed without jurisdiction. The 3rd respondent attained the age of superannuation on 30/4/2008 and the second respondent by an order in PSA 4 of 2010, dtd. 30/4/2012, has directed the petitioner to pay the subsistence allowance to the 3rd respondent even after the age of superannuation, i.e., from 1/5/2008 to 29/12/2009, directing the petitioner to pay Rs.2,48,569.00. The first respondent in his order in PSA Appeal No.1 of 2016, dtd. 1/4/2016, has confirmed the order of the second respondent. It has been held in the case reported in 2005 (2) LLN 540 that the secretaries of the Primary Agricultural Co-operative Bank, are not employees within the meaning of Sec. 2(s) of the Industrial Disputes Act. By virtue of the duties and responsibilities attached to the 3rd respondent, he will not fall under the definition of Sec. 2(a) of Tamil Nadu Cooperative Societies Act, 1981 and consequently, the first and second respondents have no jurisdiction and the order passed is legally not valid. The order of the Division Bench of this Court reported in 2008 (1) MLJ 270 has overruled the judgment of this Court reported in 2002 (4) CTC 339 has held in respect of Assistant Secretaries the status as to whether he falls within the definition of employee defined under Sec. 2(a) of Act, 1981. Therefore, the petitioner prayed that the impugned order passed by the respondents is illegal, invalid and therefore, prayed to allow the writ petition by setting aside the impugned order.
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