JUDGMENT : S.S. Satheesachandran, J. Petitioner is a Co-operative Society. Challenge in the O.P. invoking the visitorial jurisdiction of this Court under Article 226 of the Constitution is against Ext. P3 order passed by the Labour Court, Kannur in a claim petition filed by the respondent under S. 33C(2) of the Industrial Disputes Act, hereinafter referred to as the Act. Respondent, admittedly, was a workman of the society. He was suspended from service with effect from 03.08.2008 and, later, dismissed from service after a domestic enquiry, for serious misconduct, allegedly, proved against him. His termination from service by dismissal was by order dated 16.12.2009. Claim petition under S. 33C(2) of the Act was moved by petitioner after his dismissal from service. He claimed subsistence allowance for the period from 8.8.2008 to 7.12.2009 at the rate of 50% for the first three months, at 75% for the next three months and full wages for the remaining period. He claimed a total sum of Rs. 84,075/- as amount due as subsistence allowance from his employer/petitioner Society. Claim was resisted by the Society contending that the order of suspension has merged with the order of dismissal of the employee and therefore the dispute over his entitlement of subsistence allowance is a matter to be adjudicated by a reference under S. 10 of the Act or in a proceeding before the Co-operative Arbitration Court u/s 69 of the Kerala Co-operative Societies Act. Another challenge was also raised by the Society that he is an agriculturist possessing a rubber plantation and other agricultural lands of large extent from which he obtained more than sufficient income for sustenance. He was engaged in rubber tapping and other agricultural work during the period of suspension and therefore he was not entitled to subsistence allowance was the further case of the employer to resist the claims. 2. The Labour Court found the challenges raised against the entitlement of claimant unsustainable. Accepting the case of the workman and holding that he is entitled to claim subsistence allowance during the period he was placed under suspension before his dismissal from service the claim canvassed by him was allowed under Ext. P3 order. Correctness and legality of Ext. P3 order is impeached in this petition. 3. I heard learned counsel on both sides. 4. P3 order. Correctness and legality of Ext. P3 order is impeached in this petition. 3. I heard learned counsel on both sides. 4. Suspension order issued against the workman had merged with the order of his dismissal and unless the order of dismissal is set aside raising a dispute under S. 10 of the Act and its adjudication by Labour Court, a claim petition under S. 33C(2) of the Act from the dismissed workman is not entertainable is the submission of the learned counsel for the Society. Maintainability of the petition on other challenges canvassed before the Court below that the workman was possessed of sufficient agricultural lands, which was sought to be established by production of Ext. R1, was also canvassed by the learned counsel to contend the workman, was disentitled to claim any subsistence allowance from his employer during the period of his suspension. On the other hand, learned counsel appearing for the workman contended entitlement of suspended employee to claim subsistence allowance during the period of his suspension is an indefeasible statutory right under the Kerala Payment of Subsistence Allowance Act, 1972, and subsistence allowance was not paid by the employer till the workman was dismissed from service would no way assist the employer to relieve him from his liability to pay subsistence allowance due to the suspended workman. Challenge raised that the workman possessed agricultural lands and he engaged in rubber tapping work during the period of suspension, even if accepted, according to counsel, does not disentitle him to claim subsistence allowance guaranteed under the provisions of the aforesaid Act. 5. In the present case, admittedly, the workman has filed claim petition under S. 33C(2) of the Act after he was dismissed from service, conducting a disciplinary enquiry against him and on proof of his misconduct. Without challenging his termination from service by dismissal under a reference covered by S. 10 of the Act is he entitled to claim subsistence allowance during the period he continued in suspension till his dismissal filing a claim petition under S. 33C(2) of the Act is the question to be considered in the case. A claim for any benefit which could be quantified in terms of money available to a workman from the employer if denied to him can be canvassed by the workman filing such a claim petition before the Labour Court. A claim for any benefit which could be quantified in terms of money available to a workman from the employer if denied to him can be canvassed by the workman filing such a claim petition before the Labour Court. But the entitlement of the workman to seek such a claim subsists only when the employer employee relationship continued and not later. R.62(2) of the Industrial Disputes (Central) Rules prescribes that any workman or a group of workmen who is entitled to receive from the employer any money or benefit which is capable of being computed in terms of money, can apply before the specified Labour Court in Form K 3 for the determination of the amount due and for an award thereof. A Form has also been prescribed as Form K3 for moving such application. To maintain an application under S. 33C(2) of the Act the applicant must fulfil the character of a workman within the meaning of S. 2(s) of the Act. S. 2(s) of the Act reads thus: (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 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- (1).......(rest not required and hence omitted). The inclusive definition of workman which takes in dismissed, discharged or retrenched can have application only to any proceeding under the Act in relation to an industrial dispute and not otherwise. The only exception to maintain an application under S. 33C(2) of the Act otherwise than as a workman is in the case of a claim on the death of the workman by the assignee or heir of the deceased workman. That exception has been brought into effect adding a proviso to R.62(2) of the Rules. The only exception to maintain an application under S. 33C(2) of the Act otherwise than as a workman is in the case of a claim on the death of the workman by the assignee or heir of the deceased workman. That exception has been brought into effect adding a proviso to R.62(2) of the Rules. The employer employee relationship does not exist after termination and no claim for subsistence allowance resorting to S. 33C(2) of the Act from a workman after he was terminated from service by dismissal can be presented and entertained by the Labour Court under S. 33C(2) of the Act. The Apex Court in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, considering the above question has held thus: .......it is not competent to the Labour Court exercising jurisdiction under S. 33C(2) to arrogate to itself the functions of an industrial Tribunal and entertain a claim which is not based on an existing right but which may be made the subject matter of an industrial dispute in a reference under S. 10 of the Act......the workman, who has been dismissed would no longer be in the service of the employer and though it is possible that on a reference to the industria1 Tribunal under S. 10 of the Industrial Disputes Act may find, on the material placed before it, that the dismissal was unjustified yet until such an adjudication is made, the workman cannot ask the Labour Court in an application under S. 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under S. 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. 6. In view of the conclusion formed as above, other challenges canvassed by the employer society to resist the claim of the workman need not be considered. Still, it is to be stated that the challenge of the employer that the workman being an agriculturist is disentitled to claim subsistence allowance has no merit. Claim for subsistence allowance can be denied only on strict proof of the second proviso to S. 3 of the Payment of Subsistence Allowance Act, 1972 if the workman is otherwise eligible. Ext. P3 order passed by the Labour Court cannot be sustained and is liable to set aside. Setting aside of Ext. Claim for subsistence allowance can be denied only on strict proof of the second proviso to S. 3 of the Payment of Subsistence Allowance Act, 1972 if the workman is otherwise eligible. Ext. P3 order passed by the Labour Court cannot be sustained and is liable to set aside. Setting aside of Ext. P3 order, it is made clear that the dismissal of the claim raised would not cause any prejudice to the workman in challenging his termination by dismissal and seeking whatever benefits available to him raising an industrial dispute and reference of such dispute and adjudication by the competent forum. Subject to the observations made above, Original Petition is allowed. Allowed.