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2012 DIGILAW 331 (MAD)

S. Jeyapaul v. Deputy Commissioner of Labour

2012-01-23

S.NAGAMUTHU

body2012
Judgment :- 1. The petitioner was working as Secretary in Arumugamangalam Primary Agriculture Cooperative Bank in Tuticorin District which is governed by the Tamil Nadu Cooperative Societies Act. 2. The second respondent/management placed him under suspension with effect from 10.08.2000 on certain contemplated charger. But, he was not paid with subsistence allowance. Charges were framed and enquiry was held and he was ultimately dismissed from service by an order dated 20.09.2003 with effect from 10.08.2000. 3. While he was placed under suspension before the order of dismissal was passed, he claimed subsistence allowance and the same was denied. Therefore, he filed a petition before the third respondent for a direction for payment of subsistence allowance. The third respondent issued a direction for payment of 50% of wages as subsistence allowance for 90 days and 75% for the next 90 days and thereafter 100%. Challenging the same, the Management filed an appeal before the appellate authority under the payment of Subsistence Allowance Act. By an order dated 23.01.2004, the first respondent/appellate authority in Case No.7 of 2003 set aside the order of the third respondent and remanded the matter back to the third respondent for fresh disposal in accordance with law. Aggrieved over the same, the petitioner is before this Court with this writ petition. 4. Heard the learned counsel appearing on either side and perused the records carefully. 5. A perusal of the impugned order of the first respondent would go to show that the matter has been remitted back to decide the question as to whether the petitioner is ‘workman’ and consequently whether he is entitled for payment of subsistence allowance. 6. Learned counsel for the petitioner would submit that the said question is no more res integra in view of the Judgment of a Division Bench of this Court in I.I. 558 Kuthiraichandal primary Cooperative Bank Limited rep. By its Special Officer, Kuthiraichandal Post Vs. A.Asokan and another reported in 2009 1 MLJ 18 . 7. But the learned counsel for the respondents 1 & 2 would stoutly oppose this writ petition. According to him, the petitioner is not entitled for subsistence allowance, as he is not a workman in terms of the Industrial Disputes Act. In order to substantiate his contention, he has made reliance on a Judgment of a Division Bench of this Court in The George Town Co-operative Bank Limited Vs. According to him, the petitioner is not entitled for subsistence allowance, as he is not a workman in terms of the Industrial Disputes Act. In order to substantiate his contention, he has made reliance on a Judgment of a Division Bench of this Court in The George Town Co-operative Bank Limited Vs. The Deputy Commissioner of Labour (Appellate Authority) reported in 2010 WLR 199 reiterating the contentions made in the counter. Learned counsel for the respondents therefore would pray for dismissal of this writ petition. 8. I have considered the above submissions. 9. A perusal of the Judgment of the Division Bench of this Court in Asokan’s case (cited supra) relied on by the petitioner would go to show that in that case the Division Bench has elaborately dealt with the claim of the Secretary of the Cooperative Society for subsistence allowance during the period of suspension. The argument advanced before the Division Bench was that the Secretary is not a workman and therefore he is not entitled to payment under the Tamil Nadu Payment of Subsistence Allowance Act. Having analysed the said contention in Paragraph 9 of the Judgment, the Division Bench has held that the Secretary does not fall within the definition of 2(c) of the Subsistence Allowance Act. But the Division Bench has referred to subsequent regulation issued by the Government in G.O.Ms. No.55, Cooperation, Food and Consumer Protection Department dated 12.03.2000. The said regulation is known as the Tamil Nadu Primary Agricultural Cooperative Bank Common Cadre Service Regulations 2000. As per Clause 29(d) “a cadre employee under suspension shall be entitle to a subsistence allowance as per the payment of Subsistence Allowance Act, 1981. After having considered the said provision of the regulation, the Division Bench has ultimately held that the Secretary of the Cooperative Societies who falls within the common cadre of service is entitled for subsistence allowance during the period of suspension as per the said regulation. In paragraph 23 of the said judgment, the Division Bench held as follows: “(23.) In the case on hand the petitioner seeks to enforce his right in terms of the Government Order in G.O.Ms.No.55 Co-operation, Food and Consumer Protection Department, dated 12.3.2000, which are statutory in character, as the said order was issued in exercise of the power under Section 75 of the Tamil Nadu Co-operative Societies Act, 1983. Therefore, the argument that the writ petition is not maintainable to enforce the bye-laws of the Cooperative Society is untenable. The issue of writ being discretional and when the employee of the Bank approaches the Court for direction to implement the Regulation on the ground of non compliance of statutory provisions, the power of Judicial Review is not excluded and consequently writ petition is maintainable. This view is supported by the Larger Bench in Sub Clause (iv) of 21 of the Judgment in K.Marappan Vs. Deputy Registrar of Cooperative Societies, Namakkal Circle Namakkal 636 001 and another (supra).” In view of the above, I have no hesitation to hold that the petitioner is entitled for subsistence as per the said regulation. 10. Now turning to the Judgment of the Division Bench relied on by the respondents, I hold that it has no application to the facts of the present case. That was a case where the question before the Division Bench was whether the Assistant Manager in the Cooperative Bank is entitled for subsistence allowance. It is needless to state that the Assistant Manager of a cooperative bank will not fall within the definition of Clause (c) of Section 2 of the Subsistence Allowance Act and that is the reason why the Division Bench has held that he is not entitled for subsistence allowance. G.O.Ms.No.55 under which the regulation has been issued (referred to above) has got no application to Assistant Manager, whereas it is applicable to the Secretary. Therefore, the Division Bench which decided the case of The George Town Co-operative Bank Limited (referred to above) had no occasion to consider the above stated regulation. In such view of the matter, the said judgment of the Division Bench, in my considered opinion does not go to the rescue of the respondent in any manner. 11. The learned counsel for the respondents would further submit that since the Tamil Nadu Payment of Subsistence Allowance Act is not applicable, the authority have no power to pass on order for payment of subsistence allowance. This argument deserves to be rejected The regulation itself makes the Act applicable to the Secretary of the Cooperative Societies. Therefore, this argument also is untenable. 12. This argument deserves to be rejected The regulation itself makes the Act applicable to the Secretary of the Cooperative Societies. Therefore, this argument also is untenable. 12. As repeatedly held by the Hon’ble Supreme Court as well as this by Court, the subsistence allowance is a part of fundamental right guaranteed under Article 21 of the Constitution of India. It relates to the survival of an employee, while under suspension. When there is a violation of such fundamental right under Article 21 of the Constitution of India, it will not deter this Court from exercising its power under Article 226 of the Constitution of India to issue a direction to the respondents to pay subsistence allowance for the entire period during which the employee was placed under suspension. Thus, the petitioner is entitled for payment of subsistence allowance, as directed by the third respondent. 13. In the result, the writ petition is allowed and the impugned order of the first respondent is set aside with a direction to the second respondent to comply with the order of the third respondent. No costs.