SOUTH INDIAN BANK LTD Vs. P T ANTONY

JUDGEMENT

(1.) This appeal is by the South Indian Bank Ltd. a non nationalised bank against the judgment of a learned Judge who dismissed the appellant's writ petition to quash Ext. P3 order of the Appellate Authority, under the Kerala Shops and Commercial Establishments Act, allowing the 1st Respondent's appeal against the order of termination passed by the Bank against him. This writ appeal was posted and heard along with W. A. No. 298 of 1977 and O. P. 1419 of 1978. But as the other cases related to Nationalised Banks and involved certain other fundamental questions, it was felt unnecessary to club this appeal along with those cases. This appeal is accordingly disposed of separately.

(2.) The Respondent was a canvasser for deposits engaged by the Bank on terms of a contract evidenced by Ext. P1, dated 14th June 1972. According to the terms of Ext. P1 the Bank was to allow the 1st Respondent to canvass deposits for it, for a term of five years. The Bank was to pay the canvasser a commission of Rs. 2 for every Rs. 100 collected by the canvasser from depositors and accounted to the Bank. The Commission payable for remittance made during the calendar month was to be paid on the last working day of that month. We are not going into the other terms and conditions of Ext. P1 in view of the course that we propose to adopt. The agreement was followed by Ext. P2 letter dated 14th June 1972 written by the 1st Respondent to the appellant Bank, in which the 1st Respondent declared that he had executed Ext. P1 agreement fully understanding the implications of the terms and conditions contained therein, and stated that:

(3.) The learned Judge noticed that the Tribunal's Award was unsatisfactory. The only ground on which the Tribunal rested its award was that the immunity conferred by S.3(b) having been withdrawn under S.4, the 1st Respondent must be regarded as an employee. But this was quite unsatisfactory reasoning. The withdrawal of an immunity alone will not constitute the 1st Respondent an employee, unless he satisfies the requirements of the definition of the term under S.2 sub-s.(6) of the Act. About this, there was no independent consideration or discussion or finding by the Tribunal. This the learned Judge sought to make good in proceedings under Art.226, by discussing the evidence in regard to the terms and conditions of employment and the nature of the business on which the 1st Respondent was engaged, and came to the conclusion that the Ist Respondent was as employee liable to be dealt with under the Shops and Commercial Establishments Act and competent to prefer an appeal thereunder.