Madras High Court
Manikadan vs Paraicode Primary Agricultural on 25 February, 2025
SA(MD)No.973 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 25/02/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.973 of 2005
Manikadan : Appellant/Plaintiff
Vs.
1.Paraicode Primary Agricultural
Co-operative Bank Limited,
Rep. by its Secretary,
Paraicode,
Mulagumoodu Post,
Kanyakumari District.
2.The Secretary,
Paraicode Primary Agricultural
Co-operative Bank Ltd.,
Paraicode,
Kanyakumari District. : Respondent/
Defendant
PRAYER: Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and decree
passed in AS No.41 of 2003 on the file of the Sub Court,
Nagercoil (Camp at Padmanabhapuram), dated 12/03/2005
confirming the the judgment and decree in OS No.245 of
2001 on the file of the Principal District Munsif Court,
Padamanabhapuram, Kanyakumari District, 15/03/2003.
For Appellant : Mr.C.K.M.Appaji
For Respondent : Mr.D.S.Nedunchezian
Government Advocate
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SA(MD)No.973 of 2005
JUDGMENT
This second appeal is filed against the judgment and
decree passed in AS No.41 of 2003 by the Sub Court,
Nagercoil (Camp at Padmanabhapuram), dated 12/03/2005
confirming the the judgment and decree in OS No.245 of
2001 passed by the Principal District Munsif Court,
Padamanabhapuram, Kanyakumari District, dated 15/03/2003.
2.The plaint averments:-
The Plaintiff was appointed as Appraiser in the
first defendant’s Society on 30/06/2000. He joined duty
on 01/07/2000. He is entitled for 60% of the charges on
the valuation. He received the fees on 03/07/2001. On
12/07/2001, he was orally informed by the the second
defendant that he need not attend the duty thereafter.
Without following the procedure and rules, the above said
oral direction was issued. So, the suit is laid for
permanent injunction and costs.
3.The statement:- The suit itself is barred under
section 156 of the Tamil Nadu Cooperative Societies Act.
There was no intention on the part of the first defendant
to terminate the service of the plaintiff. Even if any
necessity arises, the first defendant can use that power.
More over, the plaintiff is only an Agent getting
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SA(MD)No.973 of 2005
commission, working on the commission basis. He is not a
permanent employee. Before him, some other person was the
Agent. Since he was not attending the duty properly, the
plaintiff was appointed in that place. One Kumaresan also
filed a suit for permanent injunction and obtained a
decree. As a counter suit, this suit is filed by the
plaintiff.
4.On the basis of the pleadings, the trial Court
formulated the following issues:-
(1).Whether the order, dated
30.6.2000 appointing the plaintiff as a
appraiser in the defendant’s bank
valid?
(2).Whether the plaintiff is
working in the defendant bank
continuously for more than the
statutory period?
(3).Whether the defendants have
the right to dismiss the plaintiff?
(4).Whether the plaintiff is
entitled for permanent injunction as
prayed for in the plaint? and
(5).To what other reliefs, the
plaintiff is entitled to?
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SA(MD)No.973 of 2005
5.The following Additional issue was framed before
the pronouncement of the judgment by the trial court:-
“Whether the suit is barred under
section 156 of the Tamil Nadu Cooperative
Societies Act?”
6.To substantiate the contention on the part of the
plaintiff, one witness was examined and marked 2
documents on his side. On the side of the defendants, no
oral or documentary evidence was adduced.
7.At the end of the trial process, the trial court
dismissed the suit without any costs. Against which, A.S
No.41of 2003 was preferred by the plaintiff before the
Sub Court, Nagercoil. The appellate Court also dismissed
the appeal.
8.Against which, this second appeal has been
preferred by the plaintiff.
9.At the time of admission, the following
substantial question of law was framed by this court:-
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SA(MD)No.973 of 2005(1)Whether the courts below are
justified in law in rejecting the claim
of the appellant since the respondents
have illegally prevented the appellant
from discharging his duties and also
without cancelling his appointment order
E.A1?
(2)Whether the courts below are
justified in law in holding that the
appellant is not entitled to the relief
of injunction since he was illegally
prevented from discharging his duties?
(3)Whether the courts below are
justified in law in rejecting the relief
of injunction since the respondents
without terminating the services of the
appellant prevented the appellant from
discharging his duties?
10.Heard both sides.
11.Only a short point arises for consideration
whether the suit itself maintainable? Because the
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SA(MD)No.973 of 2005
appellant is not a regular workman or employee as the
case may be of the respondents society. The order, dated
30/06/2000 does not even indicate that he is the
permanent employee. He was asked to join the duty on
01/07/2000 as Appraiser. He must pay Rs.5,000/- as
security deposit. The terms of the employment is not
before this court. As per the procedure, he was paid 60%
of the valuation made by him in respect of the jewels
pledged by the customers. This is not denied and disputed
by the appellant. He would say during the course of the
cross examination that only on commission basis, he was
appointed. Before him, one Kumaresan was working as
Appraiser. He was removed from service. In his place, he
was appointed. He was not issued with any notice.
Apprehending that he may be removed from the service, he
has filed the suit.
12.The suit was filed on 17/07/2001. He was examined
on 10/01/2003. Till that date, he was not terminated from
the service. So, this itself shows the apprehension of
the appellant is not well founded.
13.He would further say that he filed a writ
petition before this court and that was dismissed. In the
plaint, he has not stated anything about the dismissal of
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SA(MD)No.973 of 2005
the writ petition. Even during the course of the trial
process, he has not chosen to file those documents. What
was the order passed in the writ petition is not known.
More over, it appears that he is not a permanent
employee.
14.Now the position of the Appraiser was elaborately
considered by the Hon’ble Supreme Court in the judgment
reported in General Manager, Indian Overseas Bank Vs.
Workmen, All India Overseas Bank (AIR 2006 SUPREME COURT
1699), which was followed by this court in Indian Bank,
Represented by its General Manager, Chennai Vs. The
Presiding Officer, Central Government Industrial
Tribunal, Chennai and another (WP No.24963 of 2004, dated
18/09/2019), which is of similar in nature. It is held
that Appraiser will not be come under the definition of
workman under the provision of the Industrial Dispute Act
as defined under section 2(s) of the Act, which is
extracted hereunder:-
..(s)”workman” means any person
(including an apprentice) employed in
any industry to do any manual,
unskilled, skilled, technical,
operational, clerical or supervisory
work for hire or reward, whether the
terms of employment be express or
implied, and for the purposes of any
proceeding under this Act in relation to
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SA(MD)No.973 of 2005an industrial dispute, includes any such
person who has been dismissed,
discharged or retrenched in connection
with, or as a consequence of, that
dispute, or whose dismissal, discharge
or retrenchment has led to that dispute,
but does not include any such person-
(i)who is subject to the Air Force
Act, 1950 (45 of 1950), or the Army Act,
1950 (46 of 1950), or the Navy Act, 1957
(62 of 1957); or
(ii)who is employed in the police
service or as an officer or other
employee of a prison, or
(iii)who is employed mainly in a
managerial or administrative capacity,
or
(iv)who, being employed in a
supervisory capacity, draws wages
exceeding [ten thousand rupees] per
mensem or exercises, either by the
nature of the duties attached to the
office or by reason of the powers vested
in him, functions mainly of a managerial
nature.”
15.More-over, contract of employment cannot be
specifically enforced. In this context, section 41(e) of
the Specific Relief Act can be extracted hereunder:-
“..(e)to prevent the breach of a
contract the performance of which would
not be specifically enforced.’
16.More-over, even if we consider that the appellant
will come under the definition clause of section 2(s) of
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SA(MD)No.973 of 2005
the Industrial Dispute Act, unless any action of
termination is initiated against him, he cannot resort to
any sort of proceedings under the provisions of
17.As mentioned above, mere apprehension or fear in
his mind, the suit has been filed. As on date of his
examination, he was not terminated from service. The suit
itself is unwarranted, based upon the misconception of
facts and law.
18.On that sole ground, I find absolutely none of
the substantial question of law arise in this second
appeal. Accordingly, this second appeal fails and the
same is dismissed without costs.
25/02/2025
Index:Yes/No
Internet:Yes/No
er
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SA(MD)No.973 of 2005
To,
1.The Principal Sub Judge,
Nagercoil.
2.The Principal District Munsif,
Padmanabhapuram,
Nagercoil.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.973 of 2005
G.ILANGOVAN, J
er
SA(MD)No.973 of 2005
25/02/2025
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