Palghat Dist Co Op Printing Press Ltd v. State — 1992 DIGILAW 14 (KER)

JUDGMENT K.P. Balanarayana Marar, J. 1. The question that arises in this original petition is whether a works manager of a press run by a Cooperative Society is an employee as defined under the Kerala Payment of Subsistence Allowance Act 1972. 2. Petitioner is the Palghat District Cooperative Printing Press Ltd., a Cooperative Society registered under the Kerala Cooperative Societies Act 1969, represented by its Secretary. The third respondent was employed as a works manager under the Society. He was placed under suspension pending enquiry with effect from 22-7-1985. The misconduct alleged against him is that a parallel printing press of his own was conducted in front of his petitioner's establishment. At the time of suspension the third respondent was drawing a monthly salary of Rs. 1,186/-. 3. Third respondent made a claim before the authority under Kerala Payment of Subsistence Allowance Act (Act for short) for recovery of an amount of Rs. 2,935.35 being the subsistence allowance during the period from 22-7-1985 to 30-11-1985. That application was forwarded to the conciliation officer (District Labour Officer, Palghat). Petitioner resisted the claim and questioned the maintainability of the application on the ground that third respondent was a person employed mainly in a managerial or administrative capacity holding the post of a works manager and as such he is not an employee as defined in the Act. It was also contended that third respondent was gainfully employed during the relevant period by conducting a parallel printing press. The second respondent allowed that petition as per order Ext. P4. Petitioner challenge that order in this original petition. 4. The main ground of attack is that the third respondent was employed mainly in a managerial or administrative capacity holding the post of a works manager at the time of his suspension and he is thus not an employee as defined under S.2(a) of the Act in order to entitle him to claim subsistence allowance. 5. S.3 of the Act entitles an employee placed under suspension to be paid subsistence allowance for the period during which he is under suspension. Only an employee as defined in the Act is eligible to get such allowance. 5. S.3 of the Act entitles an employee placed under suspension to be paid subsistence allowance for the period during which he is under suspension. Only an employee as defined in the Act is eligible to get such allowance. The expression 'employee' as defined in the Act reads: "Employee" means any person employed in or in connection with the work of any establishment to do skilled, semi skilled or unskilled manual, supervisory, technical, clerical or any other kind of work for hire or reward, whether the terms of employment be express or implied, but does not include any such person who is employed mainly in a managerial or an administrative capacity or as an out worker, that is to say, a person to whom any articles or materials are given but by or on behalf of the employer to be cleaned, washed, altered, ornamented or repaired by such out worker in any place not under the control and management of the employer". 6. A person who is employed mainly in a managerial or an administrative capacity is excluded from the definition. In this connection it is apposite to refer to the definition of workman contained in the Industrial Disputes Act. 6. A person who is employed mainly in a managerial or an administrative capacity is excluded from the definition. In this connection it is apposite to refer to the definition of workman contained in the Industrial Disputes Act. S.2(s) of that Act defines workman as: "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 an 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 supervisory capacity draw wages exceeding one thousand six hundred 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." The Amendment Act of 1956 has introduced the word 'supervisor' in the definition of workman contained in the Industrial Disputes Act. An employee as defined in the Subsistence Allowance Act includes a person doing supervisory work whereas all such persons are not included in the definition of workman contained in the I. D. Act. Though a person employed to do supervisory work is also included within the main part of the definition of workman, certain categories of persons employed in supervisory capacity are excluded. They are: (i) Persons drawing wages exceeding one thousand six hundred rupees per mensem, and (ii) persons who exercise either by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature. They are: (i) Persons drawing wages exceeding one thousand six hundred rupees per mensem, and (ii) persons who exercise either by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature. There is thus a marked difference between the definition of the workman contained in the Industrial Disputes Act and employee contained in the Act as regards persons employed to do supervisory work. Though certain categories of supervisors are excluded from the definition of workman in the I. D Act all persons employed to do supervisory work come within the definition of employee in the Subsistence Allowance Act. Only persons who are employed mainly in a managerial or administrative capacity are excluded from that definition a part from an out worker as mentioned therein with which we are not concerned in this petition. A person who satisfies the expression "employed to do supervisory work" is thus included in the definition of employee, whatever may be his emoluments and whatever may be his nature of work. But even if he be employed to do supervisory work he is taken out of the definition if he is employed mainly in a managerial or an administrative capacity. That a workman is employed in a supervisory capacity is therefore no bar in invoking the aid of S.3 of the Act provided he is not employed mainly in a managerial or an administrative capacity. In short what the tribunal has to see is whether the person is employed mainly in a managerial or an administrative capacity in order to disentitle the employee from claiming subsistence allowance under the Act. 7. The factors to be looked into to ascertain whether a particular person is an employee in a managerial capacity or not were laid down by the Supreme Court in Prem Sagar v. S. V. Oil Company ( AIR 1965 SC 111 ) After observing that it is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question the Supreme Court held that several considerations would naturally be relevant in dealing with this problem. They are: "It may be enquired whether the person had a power to operate on the bank account or could he make payments to third parties and enter into agreements with them on behalf of the employer, when he was entitled to represent the employer to the world at large in regard to the dealings of the employer with strangers, did he have authority to supervise the work of the clerks employed in the establishment, did he have control and charge of the correspondence, could he make commitments on behalf of the employer, could he grant leave to the members of the staff and hold disciplinary proceedings against them, has he power to appoint members of the staff or punish them". 8. The Supreme Court observed that these and similar other tests may be usefully applied in determining the question about the status of an employee in relation to the requirements of S.4(1)(a) of the Madras Shops and Establishments Act. The Supreme Court was interpreting the expression "in a position of management" within the meaning of that sub clause to ascertain whether he is a person employed coming under that Act. 9. The Supreme Court in R B. Employees' Association v. Reserve Bank ( AIR 1966 SC 305 ) held that the definition of workman in S.2(s) of the Industrial Disputes Act as amended in 1956 includes inter alia an employee employed as a supervisor. The Supreme Court observed that the word 'supervise' and its derivatives are not of precise import. The word must often be construed in the light of the context. It is held that the question whether a particular workman is a supervisor within or without the definition of workman is ultimately one of fact, at best one of mixed fact and law. It is observed that the question will really depend upon the nature of the industry, the type of work in which he is engaged in the organisational set up of the particular unit of industry and like factors. The Supreme Court was considering whether a particular class of officers of the Reserve Bank were supervisory staff. The Supreme Court observed that mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision. The Supreme Court held, that the work done in the audit department of a bank is not supervision. 10. The Supreme Court observed that mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision. The Supreme Court held, that the work done in the audit department of a bank is not supervision. 10. In Syndicate Bank v. Its Workmen (1966 (2) LLJ 194) the C Supreme Court held that the mere designation by which a person is designated is not conclusive of his status as an officer and that the industrial Court has to look to the nature of the duties assigned to the person concerned to decide whether he is a workman or not. If the nature of the duties is only clerical or manual the person has to be held to be a workman. But if such work is only a small part of the duties of the person concerned and Incidental to the main work which is not manual or clerical he cannot be considered as a workman. 11. In case a person is employed to do work of more than one of the kinds mentioned in the definition of workmen contained in the I. D. Act or employee in the Subsistence Allowance Act it has to be ascertained as to what is the main or substantial work which he is employed to do. he Supreme Court in Burmah Shell Co. v. Burmah Shell Management Staff Association ( 1970 (2) LLJ 590 ) held that if the main or substantial work is supervisory work it must be held that he is employed to do 'supervisory work though he may also be doing some technical, clerical or manual work. If on the other hand, the supervisory work be incidental to the main or substantial work of any other type, viz. clerical, manual or technical, the employment would not be in a supervisory capacity. It is observed that if he is merely supervising the work of others, the fact that for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work. But a person with technical qualification could on that, account be employed in supervisory capacity and in such a case he would be held to do supervisory work. The work of giving advice and guidance cannot be held to be an employment to do technical work. But a person with technical qualification could on that, account be employed in supervisory capacity and in such a case he would be held to do supervisory work. Applying the above tests the Supreme Court held that the Transport Engineer whose principal duties are to see that the work is properly done by the skilled and unskilled workmen, working under him must be held to have been employed to do supervisory work and not technical work. Since he was drawing salary of more than Rs. 500/- per month he was held to be a person not covered by the definition of workman in S.2(s) of the Industrial Disputes Act. 12. The Supreme Court in S. K. Verma v. Mahesh Chandra ( AIR 1984 SC 1462 ) observed that parliament could never be credited with the intention of keeping out of the purview of the legislation small bands of employees who though not on the managerial side of the establishment are yet to be denied the ordinary rights of the forces of labour for no apparent reason at all. The Supreme Court was considering whether a development officer in Life Insurance Corporation of India is a workman. After referring to the nature of their duties the Supreme Court held that the development officer cannot by any stretch of imagination be said to be engaged in any administrative or managerial work. The Supreme Court observed that it is necessary to interpret the definitions of 'industry, 'workman', 'industrial dispute' etc. so as not to whittle down but to advance the object of the Act. The disputes between the forces of labour and management are not to be excluded from the operation of the Act by giving narrow and restricted meanings to expressions in the Act. The Supreme Court stated that the broad intention is to take in the entire 'labour force' and exclude 'the managerial force.' 13. In order to decide whether an employee is a workman or not the court should find out the primary and basic duties of the person. The Supreme Court stated that the broad intention is to take in the entire 'labour force' and exclude 'the managerial force.' 13. In order to decide whether an employee is a workman or not the court should find out the primary and basic duties of the person. In the decision in Arkal Govind Raj Rao v. Ciba Geigy of India Ltd. ( 1985 (2) LLJ 401 ) the Supreme Court held that when an employee has multifarious duties and a question is raised whether is a workman or not, the Court must find out what are the primary and basic duties of the persons concerned. If he is asked to do some additional work those additional duties cannot change the character and status of the person concerned. The Supreme Court observed that the dominant purpose of employment must be first taken into consideration and the gloss of such additional duties must be rejected while determining the status and character of the person. It is also observed that incidental performance of supervisory duties would not make a person employed in supervisory capacity. Distribution of work among persons working the same group by a leader of the group to ensure that all the members of the group performed the duties efficiently to complete the task would not change the clerical character of the work. The Supreme Court stated that words like managerial or supervisory may have to be understood in their proper connotation and their mere use should not detract from the truth. 14. Before applying the principles laid down by the Supreme Court in the aforesaid decisions to the facts of the case it is only proper to refer to the decisions of this court cited by learned counsel for petitioner. The earliest decision rendered under the Act is one reported in I.L.R. 1982 (2) Kerala 131 - Pallasana Service Cooperative Bank Ltd. v. The Deputy Labour Commissioner, Kozhikode. Interpreting the Definition of employee contained in S.2(a) of the Act this Court held that the Act and the rules framed thereunder are not applicable to the Secretary of Pallasana Service Cooperative Bank. The workman was therefore found not entitled to invoke the provisions of the Act or claim benefits thereunder. It was observed that the Secretary of the Society is a person employed mainly in a managerial or administrative capacity. The workman was therefore found not entitled to invoke the provisions of the Act or claim benefits thereunder. It was observed that the Secretary of the Society is a person employed mainly in a managerial or administrative capacity. Para.9 of the judgment refers to the provisions of the Cooperative Societies Act and Rules as well as the bye laws of the Society. It was after a consideration of the provisions of the Act, rules and the bye laws that this Court held that the powers and duties of the Secretary referred to in the bye laws pertain mainly to managerial and administrative character. 15. The question whether the Secretary of a Cooperative Society is a workman as defined in the Industrial Disputes Act had come up for consideration before this Court in President, Tirurangadi Service Cooperative Bank v. N. K. Venkitachalam ( 1971 KLT 813 ). In order to understand the nature and duties of the Secretary this court perused the bye laws of the society and observed that the duties assigned to the secretary which had been enumerated in that judgment indicated that his work is mostly clerical and to some extent supervisory. He was found to be a workman coming within the category mentioned in the main part of the definition. The question whether the Secretary has to be excluded by reason of belonging to one of the categories specifically excluded under the definition was then considered by this Court. Taking note of the fact, that the duties assigned to the Secretary are mostly of routine nature and his work is mainly clerical and since the Secretary has to function within the direct control of the managing board and had no initiative in action it was held that he does not hold a position in a managerial or administrative capacity. This decision was cited before the learned Judge who decided" Pallasana Service Cooperative Bank's case (Supra). After referring to one passage contained in the judgment the decision was attempted to be distinguished by the following observation. This decision was cited before the learned Judge who decided" Pallasana Service Cooperative Bank's case (Supra). After referring to one passage contained in the judgment the decision was attempted to be distinguished by the following observation. "The factual situation in the present case is entirely different as is revealed from the discussions above." The learned Judge had observed that if a proper perspective of the progressive change in the manner of conducting business is had, it will be clear enough that judged by the gradation of the staff pattern, the distribution of powers and the delegation of authority as also the substantive character or the duties performed by the Secretary, he is a person employed mainly In a managerial or administrative capacity. 16. The question whether the Secretary of a Cooperative Society is an employee or not again came up for consideration before a Division Bench of this Court in Shertallai Taluk Cooperative Land Mortgage Bank Ltd. v. Deputy Labour Commissioner ( 1990 (2) KLT 175 ). The Division Bench proceeded to consider whether the Secretary of the Society can be regarded as a person employed in a managerial capacity in the light of the guidance available in the decision of the Supreme Court in Premsagar's case (supra). The Society in that case had relied upon the rules and bye laws apart from the statement put in by the respective parties. It was contended that the authorities are bound to look into the rules as also the bye laws and the evidence produced before them for recording a finding on the crucial issue regarding jurisdiction. The Division Bench then proceeded to consider the relevant rules under the Cooperative Societies Act as well as the bye laws of the Society. On a consideration of the rules and bye laws it was observed that most of the tests enumerated by the Supreme Court are satisfied in that case justifying an inference that the respondent therein is employed in a managerial capacity. The same question was considered by another Division Bench in 1991 (2) KLT 736. In that case the question was whether a Branch Manager of a Cooperative Bank is an employee as defined in the Act. The same question was considered by another Division Bench in 1991 (2) KLT 736. In that case the question was whether a Branch Manager of a Cooperative Bank is an employee as defined in the Act. The Division Bench after referring to the decision in Premsagar's case (supra) and the decision in Shertallai Taluk Cooperative Land Mortgage Bank's case (supra) held that the Branch Manager was exercising functions of a managerial or administrative character and was not an employee as defined in the Act. The duties and responsibilities of the Branch Manager were laid down in the subsidiary rules for the branch deal with matters as to the location of the branch, the business to be transacted therein, the duties and responsibilities of the officers etc. Those duties and responsibilities are extracted in Para.4 of the judgment. It was on a consideration of those duties and responsibilities that the Division Bench held that the Branch Manager occupies the highest position among all the employees in the Branch and is in complete charge of the affairs of that Branch. It is observed that the entire responsibility of running the branch properly and efficiently rests on his shoulders. He has got a number of personnel working under him and it is his duty to oversee their work It is also observed that the working of the branch and that of the staff therein are ail subject to his supervision and control. The role of the Branch Manager can hardly be called clerical and manual. His duties were found to be mainly managerial subject of course to supervision and control by the head office. It is stated that such control by the head office has no bearing on the question whether the Branch Manager is employed in a managerial or administrative capacity. The Division Bench is therefore of the view that the duties and responsibilities assigned to the Branch Manager were mainly those of managerial or administrative nature and he was not an employee as defined in S.2(a) of the Act. 17. The decision in W. A. 969/87 was also brought to the notice of the court in that case. The Division Bench held that a Branch Manager was not an employee as defined in the Industrial Disputes Act. A different note was struck in the decision in W. A. 590/91. 17. The decision in W. A. 969/87 was also brought to the notice of the court in that case. The Division Bench held that a Branch Manager was not an employee as defined in the Industrial Disputes Act. A different note was struck in the decision in W. A. 590/91. The employee in question, the Secretary of a Cooperative Society was held to be an employee not exercising any managerial or administrative functions. The Division Bench in Chittur Service Cooperative Bank v. State (1991 (2) KLT 736) observed that the decision turned on the peculiar facts of that case and has to be confined as such. 18. From the principles laid down by the Supreme Court and the decisions of this Court aforementioned the position that emerges is that any person employed in or in connection with the work of any establishment is an employee under the Subsistence Allowance Act. Only persons who are employed mainly in managerial or administrative capacity or as an out worker are excluded from that definition. A person employed in a supervisory capacity is an employee, whatever be his emoluments and whatever be his nature of duties. He can be taken out of the definition only if he discharges the functions mainly in a managerial or administrative capacity. Mere designation by which a person is designated is not conclusive of his status as an officer. The Industrial Court or the authority competent to determine the subsistence allowance under the Act have to look to the nature of the duties assigned to the person concerned in order to decide whether he is a workman or not, When an employee has multifarious duties the court has to find out what are the primary and basic duties of the person concerned. The dominant purpose of the. employment has to be taken into consideration and the fact that the workman is engaged in some additional duties has to be rejected while considering his status. The authorities are bound to look into the duties which the workman have to perform under the rules and the bye laws. A finding on the question whether a person is an employee or not can be rendered only on the basis of such rules and bye laws and the evidence produced by the parties. The authorities are bound to look into the duties which the workman have to perform under the rules and the bye laws. A finding on the question whether a person is an employee or not can be rendered only on the basis of such rules and bye laws and the evidence produced by the parties. A Secretary of a Cooperative Society or a Branch Manager cannot be said to be employed in a managerial or administrative capacity merely by virtue of their position in the Society. This has to be decided on the basis of the provisions contained in the Cooperative Societies Act, the rules framed thereunder, the bye laws of the Society and the tests laid down by the Supreme Court in Premsagar's case and the principles enunciated in the decisions of the Supreme Court and this Court on this aspect. 19. Who is a manager? What is meant by managerial capacity? In the context of business "manage" means "to control, to guide, to administer, to conduct or direct affairs; carry on business". (Shorter Oxford Dictionary). In the case of a company the Manager has the management of the whole or substantially the whole of the affairs of the company. The expression "management of the society" used in S.96(1) of Gujarat Cooperative Societies Act (Act 10 of 1962) came up for consideration before the Supreme Court in Gujarat State Cooperative Land Development Bank Ltd. v. P. R. Mankad and others ( AIR 1979 SC 1203 ). The Supreme Court observed that one meaning of the term 'management' is "the Board of Directors" or "apex body" or executive Committee at the helm which guides, regulates, supervises, directs and controls the affairs of the Society". It is stated that the management may not include the individuals who under the overall control of that governing body or committee run the day to day business of the Society. It is observed that another meaning of the term 'management' may be ''the actor acts of managing or governing by direction, guidance, superintendence, regulation and control the affairs of a Society." It was canvassed before the Supreme Court that a still wider meaning of the term will encompass the entire staff of servants and workmen of the Society. The Supreme Court observed that the use of the term 'management' In such a wide sense in S.96(1) of the Act appears to be very doubtful. The Supreme Court observed that the use of the term 'management' In such a wide sense in S.96(1) of the Act appears to be very doubtful. The Supreme Court in that case was considering whether a dispute raised by an employee of a Cooperative Society for setting aside his removal from service is a dispute which can be resolved by the Registrar or a dispute touching the business of the Society. It was in that connection that the Supreme Court observed that it is doubtful whether the term 'management' encompass the entire staff of servants and workmen of the Society. At the same time it is observed that the management may not include the individuals who under the overall control of the governing body or committee run the day to day business or the Society. The expression used in the Subsistence Allowance Act is "employed mainly in a managerial or administrative capacity". What we have to see is therefore whether the workman was exercising the functions in managerial or administrative capacity. 20. Is the works manager of the press run by petitioner Society a workman or is he engaged in a managerial capacity? That is the precise question to be answered in this original petition. The workmen is designated as works manager but the designation by itself is not conclusive of the status as a manager or an officer. One has to look to the nature of duties assigned to the person. The workmen asserted that he is an employee of the Society and was not exercising functions in a managerial capacity. A separate post was created for the workman and appointed in that post. He denied the suggestion that orders for purchase of materials were placed by him. But at the same time he admitted the signature contained in one of the bills. He denied having any "table work in respect of any matter relating to the press. He has signed quotations but stated that he used to sign the same only in the absence of the Secretary. He used to purchase materials in the absence of the Secretary. According to him, the order for printing is accepted by the Secretary and in his absence by the office manager. He was looking after the affairs inside the printing press. He used to purchase materials in the absence of the Secretary. According to him, the order for printing is accepted by the Secretary and in his absence by the office manager. He was looking after the affairs inside the printing press. To a pointed question as to what his functions are he stated that he used to receive the orders from the office manager of the Secretary. Thereafter he will take those orders to the composing section and after getting the proof he would approve the same. He used to supervise the composing work and would also do proof reading. He admitted that he used to get explanations from the workers employed in the press. He stated that he was functioning as a supervisor. According to him, he had not recommended action to be taken against the compositor. It is he who determines the overtime allowance and the same will be forwarded to the Secretary for placing the same before the Board. 21. The Secretary of the press stated that the day to day administration of the press is done by the workman. He used to purchase materials. Orders for purchase are issued by him. Quotations are invited by him. Workers do overtime work as per his directions and he determines the overtime allowance. He would say that the workman was employed as the manager of the press in a managerial capacity. While cross examined he stated that the workmen was not appointed to supervise the printing workers but to manage the entire press. That can be seen from the order of appointment issued to the workman. No such order has been produced. From one of the letters sent by the workman it would appear that he was appointed as works manager. He admitted that a separate post was created after obtaining permission from the authorities. Sanction was obtained for creating a post of works manager in order to supervise the work relating to the printing press and for such supervision the workman was paid special allowance. 22. The management has not placed before the authority under the Act the appointment order or the terms of appointment From the letters produced by the management it is seen that the workman was appointed as works manager. 22. The management has not placed before the authority under the Act the appointment order or the terms of appointment From the letters produced by the management it is seen that the workman was appointed as works manager. Such appointment was for the purpose of supervising the work of the employees in the printing press and for such work he was paid special allowance. The workman stated that he used to take the orders to the composing section and was also doing the work of proof reading. The special post was created in order to get a person having technical knowledge. The workman has technical knowledge in the matter of printing work. Though the actual composing and printing are not done by the workman he also participates in some of the functions. His main function is supervisory in nature, viz. to supervise the workers engaged in the press. While doing so he might have invited tenders and placed orders for purchase of materials, but those orders are placed only through the Secretary. The Secretary of the Society is responsible for the management of the Society. The Workman has to function under him. Here is a case where a person with technical qualification was employed in supervisory capacity for the purpose of proper supervision of the working of the printing press. He cannot therefore be said to be engaged in technical work. The work done by him is only supervisory in nature. Since the supervisor is also included within the definition of employee contained in the Act he is entitled to invoke S.3 of the Act and claim subsistence allowance during the period of suspension. The main functions of the workman are supervisory and not managerial. He cannot therefore be said to have been employed mainly in a managerial or administrative capacity so as to take him out of the definition of employee. The claim for subsistence allowance is therefore sustainable. 23. The order granting subsistence allowance is challenged on the further ground that the authority had not independently considered the merits of the claim and that ha had delegated the same to the conciliation officer. The order is stated to have been passed accepting the report of the conciliation officer in toto. The report of the conciliation officer was not made available to the petitioner and no opportunity was given to challenge that report. The order is stated to have been passed accepting the report of the conciliation officer in toto. The report of the conciliation officer was not made available to the petitioner and no opportunity was given to challenge that report. Petitioner has a further case that the workman was gainfully employed during the period for which the claim for subsistence allowance is made. R.5 of Kerala Payment of Subsistence Allowance Rules, 1974 directs that on receipt of an application for recovery of dues the Government shall send copies of the same to a conciliation officer appointed under the Industrial Disputes Act for an enquiry into the employees' claim and report. The conciliation officer has to send one of the copies of the application to the employer concerned inviting his comments on the claim After giving the parties an opportunity of being heard the conciliation officer shall submit a report to the Government. If on a consideration of such report Government is satisfied that any money is due by employer a certificate has to be issued to the Collector for recovery of that amount and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. It is in pursuance to R.5 that the Deputy Labour Commissioner forwarded the copy of the application to the District Labour officer (conciliation officer), Palghat for enquiry and report. The conciliation officer after an enquiry has recommended for grant of subsistence allowance. He rejected the objection of the management that the workman is employed in a managerial capacity. The further objection that the workman was gainfully employed during the period of suspension was also rejected. The Deputy Labour Commissioner had perused the report of the conciliation officer and the connected records. He had also made an assessment of the evidence available on record. Reasons were also given why he agrees with the views expressed by the conciliation officer. No error has been committed by the authority below in finding that the workman is an employee under the Act and in awarding subsistence allowance during the period of suspension. For the aforesaid reasons the original petition is found to be devoid of merit and is hereby dismissed but in the circumstances without costs.