Devadas v. Dy. Labour Commissioner — 1995 DIGILAW 186 (KER)

Judgment :- Pareed Pillay, C.J. In the above Original Petitions the question that is mooted for consideration is whether the Assistant Secretary of Chittur Service Co-operative Bank is entitled to subsistence allowance during his period of suspension. Contention of the Society is that he would not be entitled to any subsistence allowance as he was holding the post of an Assistant Secretary at the time of his suspension. It is contended that for that reason he is not an employee as defined under S.2(a) of the Kerala Payment of Subsistence Allowance Act, 1972. Counsel for the Society argued that the Assistant Secretary was employed mainly in a managerial or administrative capacity and so he is disentitled from claiming subsistence allowance. Counsel relied on Sherthallai Taluk Co-op. Land Mortgage Bank Ltd. v. Deputy Labour Commissioner (1990 (2) KLT 175) where a Division Bench of this Court held that Secretary of a society who is in full charge of the executive administration is a person who is employed in a managerial capacity and hence cannot be regarded as an employee as defined in S.2(a) of the Subsistence Allowance Act. He also relied on Chittur Service Co-op. Bank Ltd. v. State of Kerala, (1992 (1) KLT 168) where a Division Bench of this Court held that Branch Manager of a co-operative society is not an employee as defined in the Payment of Subsistence Allowance Act. Based on the said rulings counsel for the petitioner-Society submitted that Assistant Secretary of the Society who is holding a post above that of a Branch Manager cannot claim to be an employee under the aforesaid Act to claim subsistence allowance.. 2. Learned counsel appearing for the Assistant Secretary invited our attention to the proviso added to R.198(6) of the Kerala Co-operative Societies Rules, 1969. The proviso reads: "Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules." The proviso was introduced on 26-6-1990. On the basis of the above proviso it is contended that whatever be the position earlier, subsistence allowance can be claimed by an employee of live society who does not come within the purview of the Payment of Subsistence Allowance Act. On the basis of the above proviso it is contended that whatever be the position earlier, subsistence allowance can be claimed by an employee of live society who does not come within the purview of the Payment of Subsistence Allowance Act. To counter the said argument counsel for the Society submitted that the claim of subsistence allowance by the Assistant Secretary was for various periods prior to the introduction of the proviso and as the proviso cannot have any retrospective operation he is not entitled to claim subsistence allowance. 3. Whether the newly introduced proviso to R.198(6) of the Kerala Co-operative Societies Rules has prospective or retrospective operation is the point that arises for consideration. Counsel for the Society relied on Neeli v. Padmanabha Filial (1992 (2) KLT 807) and urged that the newly introduced proviso can have only prospective operation. In the above decision, right created by S.92-A of the Motor Vehicles Act was considered. This Court held that the right created by S.92-A belongs to substantive law and that it modifies the existing substantive law and so it cannot be treated as a provision which is procedural or as a provision which merely lays down a rule of evidence. Conclusion reached by this Court in that case is that S.92-A cannot apply to cases of accidents occurring before 1-10-1982. On the other hand, it is contended on behalf of the Assistant Secretary that the newly added proviso is clearly declaratory in nature and as the very object and motive sought to be achieved by the Legislature by the insertion of this new proviso is to clarify and explain the true scope and for removal of doubts it really has retrospective operation. 4. The newly added proviso was introduced into the Rules in exercise of the powers conferred by S.109 of the Co-operative Societies Act read with S.80(3) thereof. The Explanatory Note states that as per the provisions in the Kerala Payment of Subsistence Act, 1972 an employee in a managerial cadre or an administrative capacity is not entitled to subsistence allowance and so the proposal is to amend the rules so as to enable payment of subsistence allowance to an employee not covered by the above said Act. The Explanatory Note states that as per the provisions in the Kerala Payment of Subsistence Act, 1972 an employee in a managerial cadre or an administrative capacity is not entitled to subsistence allowance and so the proposal is to amend the rules so as to enable payment of subsistence allowance to an employee not covered by the above said Act. As the amendment has been introduced in the wake of the decisions of this Court holding that Secretary or Branch Manager of a Co-operative society will not be entitled to claim subsistence allowance as provided under the Payment of Subsistence Allowance Act, it can only be construed as retrospective as if is declaratory in nature. Presumption against retrospective operation is not applicable to declaratory statutes. As the proviso has been introduced to the Rules with a view to declare that an employee in a managerial cadre or having administrative capacity is also entitled to subsistence allowance under the Payment of Subsistence Allowance Act, 1972, its effect is certainly declaratory and so cannot be but retrospective. It cannot be doubted that the introduction of the newly added proviso was really for removal of doubts and also for a definite and positive clarification. It is settled law that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. (See Channan Singh v, Jai Kaur (AIR 1970 SC 349 para.5). As the proviso has been added to get over the difficulty encountered by an employee in a managerial cadre or administrative capacity of the society being not. entitled to subsistence allowance under the Payment of Subsistence Allowance Act and as it can be construed only as declaratory in nature, we hold that it has retrospective operation. 5. That being the position, we hold that the Assistant Secretary of the Society is entitled to subsistence allowance. 6. O.P.5685 of 1988 is allowed. Ext. P4 is quashed to the extent it is impugned. First respondent is directed to pass orders granting payment of subsistence allowance to the petitioner for the entire period claimed by him from 7-5-1984 till date. O-P. Nos! .618/85,6272/88,1593/89, 8279/89, and 2825/92 are dismissed.