Dr. K. Ponsingh v. Central Registrar of Co-operative Societies, New Delhi & Others
2009-11-17
K.CHANDRU
body2009
DigiLaw.ai
Judgment :- (Prayer: Writ Petition No.6521 of 2009 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, to call for the records relating to the order/proceedings dated 20.3.2009 in File No.E/2008-2009 passed by the second respondent and quash the same. Writ Petition No.26794 of 2008 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, to call for the records relating to the order/proceedings dated 29. 2008 in File No.E/2008-2009 passed by the second respondent and quash the same. Writ Petition No.21659 of 2008 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the order/proceedings dated 30.7.2008 in File No.E/2008-2009, passed by the second respondent and quash the same and also direct payment of Subsistence Allowance to the petitioner in accordance with Clause 3(XIII) Sub-Clause (3) of the Standing Orders of the second respondent-Co-operative Society. Writ Petition No.29236 of 2008 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Declaration, to declare Sub-Clause (3) of Rule 3(xi) relating to the service conditions of the employee in the Standing Orders of the second respondent-Society as illegal and therefore null and void.) Four Writ Petitions have been filed by one and the same person. The petitioner is an Assistant Secretary of Indian Medical Practitioners Co-operative Pharmacy and Stores Limited (for short, IMPCOPS) at Thiruvanmiyur, Chennai, which is registered as a Multi-State Co-operative Society. 2. The petitioner has filed Writ Petition in W.P.No.21659 of 2008 seeking to challenge the order dated 30.7.2008, wherein the respondent-Co-operative Society informed the petitioner that the Subsistence Allowance paid to him as per the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, is erroneous and since the petitioner is not covered by the said Act, he is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act and the amount paid was sought to be recovered. It is stated that the petitioner is eligible for Subsistence Allowance only as per the bye-laws of the Society. The petitioner challenged the same on the ground that any reference made to the provisions of the Tamil Nadu Payment of Subsistence Allowance Act is meaningless and the said Act will not apply to the Multi-State Cooperative Society.
It is stated that the petitioner is eligible for Subsistence Allowance only as per the bye-laws of the Society. The petitioner challenged the same on the ground that any reference made to the provisions of the Tamil Nadu Payment of Subsistence Allowance Act is meaningless and the said Act will not apply to the Multi-State Cooperative Society. Therefore, the petitioner has chosen to challenge the Standing Orders framed by the respondent-Co-operative Society, more particularly paragraph 3 (XIII) Sub-Clause (3) of the Standing Orders of the respondent-Co-operative Society, wherein the Society restricted payment in respect of the persons involved in criminal cases. 3. The petitioner has also filed W.P.No.26794 of 2008 seeking to challenge the order of suspension dated 29. 2008, wherein the petitioner was accused of committing irregularities in the matter of construction of hospital building worth about Rs.52 lakhs. 4. Thereafter, the petitioner has filed W.P.No.29236 of 2008 seeking for declaration to declare that Sub-Clause (3) of Rule 3(xi) relating to the Service Conditions as illegal. 5. The petitioner also challenges finally in W.P.No.6521 of 2009, wherein, he has questioned appointment of the Enquiry Officer, vide proceedings dated 20.3.2009. 6. When another similar person, by name D. Swayambu Nainar filed W.P.No.5205 of 2009, this Court by order dated 210. 2009, disposed of the said Writ Petition holding that such Writ Petition is not maintainable in the light of the Larger Bench decision of this Court in the case of "K. Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal and Another" reported in 2006 (4) CTC 689 . 7. Therefore, all the Writ Petitions are not maintainable and are liable to be dismissed. 8. With reference to payment of Subsistence Allowance, it requires certain clarification and the petitioners contention need not be raised again and again. The petitioner being an Assistant Secretary of the respondent-IMPCOPS, he is not admittedly not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, and therefore, he is correct in stating that the Tamil Nadu Payment of Subsistence Allowance Act, will not apply to him. 9.
The petitioner being an Assistant Secretary of the respondent-IMPCOPS, he is not admittedly not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, and therefore, he is correct in stating that the Tamil Nadu Payment of Subsistence Allowance Act, will not apply to him. 9. The further contention that the Parliament has amended the provisions of the Industrial Employment (Standing Orders) Act, 1946 and Section 10-A was introduced and it will apply to him, cannot be accepted, because, the very Act itself applies only to the workman, who is also a workman under the Industrial Disputes Act and this has been made clear if a reference is made to Section 10-A(2) of the Industrial Employment (Standing Orders) Act, 1946. Therefore, the petitioner, if at all gets any Subsistence Allowance, it can only be in terms of the special bye-laws relating to the service conditions applicable to the petitioner and not otherwise. The relevant bye-law, namely Bye-Law No.3(ix)(e) states that the authority competent to suspend an employee may at its discretion sanction him a Subsistence Allowance at a rate not exceeding ¼ of his substantive pay during the period of his suspension and no employee shall in any case be kept under suspension for a period exceeding three months at a time. 10. Similar Bye-Law came to be interpreted by a Full Bench of this Court, vide its judgment reported in AIR 1975 Madras 241 (Palani Co-op. Sales Socy. Vs. Presiding Officer), wherein the Full Bench opined that the words "at a time" will denote that it is only a temporary suspension and not a substantive punishment and therefore, there is no bar for the employer to extend such suspension. In such circumstances, if at all there is any right for the petitioner to receive Subsistence Allowance, it can be only in terms of the Bye-Laws of the respondent-Society. Learned counsel for the respondent-IMPCOPS states that the Society is paying Subsistence Allowance to the petitioner in terms of the Bye-Laws. 11. Under the above circumstances, the Writ Petitions filed by the petitioner stand dismissed being without substance. No costs. The Miscellaneous Petitions are closed.