JUDGMENT (Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, against the order of the second respondent passed in PSA.No.4 of 2010, dated 30.04.2012, as well as the order passed by the first respondent in P.S.A.A.No.1 of 2016, dated 01.04.2016 and to quash the same.) 1. This Writ Petition is filed for issuance of a Writ of Certiorari, to quash the order of the second respondent passed in PSA.No.4 of 2010, dated 30.04.2012, as well as the order passed by the first respondent in PSA.A.No.1 of 2016, dated 01.04.2016. 2. The brief facts of the case are that the 3rd respondent had worked as Secretary of the petitioner society and was drawing salary of Rs.13,257/-. The 3rd respondent and other employees have committed irregularities and misappropriation of Rs.40,79,000/- for which the 3rd respondent and others were subjected to disciplinary proceedings and upon proven misconduct held in the enquiry, the 3rd respondent was terminated from service by an order, dated 20.08.2010. The 3rd respondent as a Secretary by virtue of section 75 of Tamil Nadu Co-operative Societies Act read with G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dated 24.03.2000, comes under the “Common Cadre Service”. The concerned Regional Joint Registrar of Cooperative Societies is the “Common Cadre Authority” vested with powers to take disciplinary action against the Secretary. By an order dated 29.03.2008 of the Common Cadre Authority, the 3rd respondent was placed under suspension. The 3rd respondent during the period of suspension attained superannuation on 30.04.2008. However, by power vested under Rule 31(4) of the Registered Special By-law of the Society, the disciplinary proceedings were continued and completed. In view of the fact that the third respondent attained superannuation on 30.04.2008, on completion of 58 years as per Rule 31(4) of Special By-law, the service rights accrued to the employee shall freeze on the date of superannuation and the employee shall not be entitled for any subsistence allowance. As per the Registered By-law of Society and as per Chapter IV Rule 38, the Secretary is the Chief Executive Officer of the Society and he is the custodian of the assets of the society and he is the person to sue and be sued. 3. As per the Registered By-law of Society and as per Chapter IV Rule 38, the Secretary is the Chief Executive Officer of the Society and he is the custodian of the assets of the society and he is the person to sue and be sued. 3. As per Section 2(a)(ii) of the Tamil Nadu Payment of Subsistence Allowance Act, the person employed in a supervisory cadre (draws wages exceeding Rs.3,500/-) are excluded from the category of employees defined under Section 2 of the said Act. Therefore, the 3rd respondent had worked as a Secretary and by the nature of duties and responsibilities attached to his career, the salary drawn by him, he is excluded from the category of employees and consequently, the Tamilnadu Payment of Subsistence Allowance Act is not applicable. Since the 3rd respondent is outside the jurisdiction of the Act and the Authority under Tamil Nadu Payment of Subsistence Allowance Act has no jurisdiction to entertain the 3rd respondent petition and the present order is passed without jurisdiction. The 3rd respondent attained the age of superannuation on 30.04.2008 and the second respondent by an order in PSA 4 of 2010, dated 30.04.2012, has directed the petitioner to pay the subsistence allowance to the 3rd respondent even after the age of superannuation, i.e., from 01.05.2008 to 29.12.2009, directing the petitioner to pay Rs.2,48,569/-. The first respondent in his order in PSA Appeal No.1 of 2016, dated 01.04.2016, has confirmed the order of the second respondent. It has been held in the case reported in 2005 (2) LLN 540 that the secretaries of the Primary Agricultural Co-operative Bank, are not employees within the meaning of Section 2(s) of the Industrial Disputes Act. By virtue of the duties and responsibilities attached to the 3rd respondent, he will not fall under the definition of Section 2(a) of Tamil Nadu Cooperative Societies Act, 1981 and consequently, the first and second respondents have no jurisdiction and the order passed is legally not valid. The order of the Division Bench of this Court reported in 2008 (1) MLJ 270 has overruled the judgment of this Court reported in 2002 (4) CTC 339 has held in respect of Assistant Secretaries the status as to whether he falls within the definition of employee defined under Section 2(a) of Act, 1981. The order of the Division Bench of this Court reported in 2008 (1) MLJ 270 has overruled the judgment of this Court reported in 2002 (4) CTC 339 has held in respect of Assistant Secretaries the status as to whether he falls within the definition of employee defined under Section 2(a) of Act, 1981. Therefore, the petitioner prayed that the impugned order passed by the respondents is illegal, invalid and therefore, prayed to allow the writ petition by setting aside the impugned order. 4. The 3rd respondent has circulated written arguments stating that the 3rd respondent was placed under suspension, vide order, dated 29.03.2008, by the Common Cadre Authority. At that time, he was paid the monthly salary of Rs. 13,257/-. However, he was not paid subsistence allowance, so he filed three claims respectively, for a period from 29.03.2008 to 24.12.2008 amounting to Rs. 89,487/-, for a period from 25.12.2008 to 24.12.2009 amounting to Rs.1,59,084/- and for a period from 25.12.2009 to 20.08.2010 amounting to Rs.1,60,056/-. 5.The contention of the third respondent is that even though the 3rd respondent is designated as Secretary, the petitioner society has not let in any evidence to show that the 3rd respondent has worked in supervisor nature of work. The specific contention of the 3rd respondent is that the 3rd respondent was not conferred with any supervisor work. The 3rd respondent is an employee as defined under Section 2(a) of the Tamil Nadu Cooperative Societies Act, 1981 and so he is entitled to receive subsistence allowance as per the Act. The 3rd respondent has submitted that there is no proof that the 3rd respondent has done any supervisory work and so he is an employee. Against the said order, the petitioner has filed the present writ petition and in this writ petition also the Society have taken the plea that the 3rd respondent being a secretary and not an employee as defined under the Act and so not entitled subsistence allowance. But even in the affidavit, the Society have not alleged any supervisory work done by the 3rd respondent. The 3rd respondent submitted that the judgment of K. Avanasiappan Vs. The Manager of Tekkur PACB case is not applicable to the present case since it was decided based on the facts of the said case. But even in the affidavit, the Society have not alleged any supervisory work done by the 3rd respondent. The 3rd respondent submitted that the judgment of K. Avanasiappan Vs. The Manager of Tekkur PACB case is not applicable to the present case since it was decided based on the facts of the said case. In the present case, there is no plea or evidence from the management that the 3rd respondent was doing supervisory work. The contention of the 3rd respondent is that the nomenclature alone is not the deciding factor. As per section 2 (19) of Tamil Nadu Cooperative Societies Act, 1983, “Officer” includes a President, Vice President, Managing Director, Secretary, Assistant Secretary, Member of Board and any other person empowered under rules or bye-laws to give directions in regard to the business of the registered society. The petitioner society tries to carry away by the word of “Officer” and its definition, the same cannot applied in this case. In The Register of Cooperative Society and others Vs. M.Elango in W.A.No.1352 of 2019, it has been elaborately discussed about the Payment of Subsistence Allowance Act, 1981 and the Tamil Nadu Cooperative Societies Act, 1983 and the same is extracted here under: “59. Having regard to the main purport and intent of Tamil Nadu Act 43 of 1981 we can safely conclude that the said Act exclusively deals with the payment of subsistence allowance and none else. Though it can be stated that Act 30 of 1983 having regard to its purport and intent, namely, for the orderly development of the co-operative movement in different fields, it is a special enactment in that respect, when it comes to the question of comparing the said Act with Act 43 of 1981 it will have to be held that the said Act, namely, Act 43 of 1981 being a special enactment dealing only with payment of subsistence allowance, and having regard to its origin being earlier in point of time and by virtue of the application of the maxim 'Generalia Specialibus Non Derogant', the Special Act would by necessary implication will have over riding effect on the general Act, namely, Act 30 of 1983. We say so because, though a detailed reference to the various provisions of Act 30 of 1983 disclose that the said Act is mainly meant to regulate proper establishment of a cooperative society and its management and administration after such establishment, the provisions relating to regulation of service conditions of the officers and employees are purely incidental and the said Act 30 of 1983 is not primarily meant for the regulation of the service conditions of the officers and employees of the co-operative society. It also does not specifically deal with the detail procedure as regards to suspension of an employee with particular reference to the period, wages and any other condition, in the course of his employment in any co-operative society.” 6. As far as the payment of the subsistence allowance to the employees is concerned, the Tamil Nadu Payment of Subsistence Allowance Act alone will hold the field and Cooperative Act, which is a general Act, cannot have any bearing. Further, as per Section 2(19) of the Tamil Nadu Cooperative Societies Act, 1983, 'officer' includes both Secretary and Assistant Secretary. However, in regard to the business of the registered Society, the Secretary in normal cadre cannot be considered as a Secretary in regard to the business of the registered Society. The contention of the 3rd respondent is that the 3rd respondent is a cadre employee and regulation 29 reads as under: “29 (d) A cadre employee under the suspension shall be entitled to a subsistence allowance as per the payment of Subsistence Allowance Act, 1981.” Therefore, the benefit provided under this regulation can be claimed before the authority under Tamil Nadu Payment of Subsistence Allowance Act and the 3rd respondent relied on Kuthiraichandal Primary Co-operative Bank Limited Vs. A.Asokan and another, reported in 2009 (1) MLJ 18 wherein, it has been held as under: “...In the wake of the provisions of Regulation 29(d) coupled with the provisions of Article 21 of the Constitution of India, for entitlement of subsistence allowance, we do not find any ambiguity in the provision while making a construction to apply the Subsistence Allowance Act to common cadre employees as well. A similar question came up for consideration in U.P. Avas Evam Vikas Parishad Vs. Jainul Islam ( AIR 1998 SC 1028 = 1998 2 SCC 467 the Supreme Court has held thus: "17. A similar question came up for consideration in U.P. Avas Evam Vikas Parishad Vs. Jainul Islam ( AIR 1998 SC 1028 = 1998 2 SCC 467 the Supreme Court has held thus: "17. A subsequent legislation often makes a reference to the earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by the later legislation.” 7. The Common Cadre Regulations which is a subsequent legislation, makes a reference to earlier legislation the Tamil Nadu Payment of Subsistence Allowance Act, all provisions of the earlier act is applicable to the cadre employee as per Regulation 29. The 3rd respondent who has not done any supervisory is an employee under the Payment of Subsistence Allowance Act and so he is entitled to allowance as per the regulation 29, cadre employee also is entitled to get subsistence allowance. Therefore, the third respondent prayed to dismiss the writ petition. 8. Heard Mr.V.O.S.Kalaiselvam, learned Counsel appearing for the petitioner, M/s.D.Farjana Ghoushia, learned Special Government Pleader appearing for the first and second respondents and Mr.T.Ravichandran, learned Counsel appearing for the third respondent and perused the records placed before this court. 9. The 3rd respondent was placed under suspension on 29.03.2008 and the he attained superannuation on 30.04.2008. The Secretary post is not pensionable service. Whenever the delinquent is placed under suspension, thereafter, the delinquent on attaining superannuation, then the payment of subsistence allowance would be modified under Fundamental Rules and the Pension Rules, where a provisional pension would be disbursed. In the present case, since the Secretary post is not a pensionable service, the 3rd respondent is not eligible for subsistence allowance beyond the date of superannuation, i.e., beyond 30.04.2008. In such circumstances, this Court is of the considered opinion that the payment of subsistence allowance from 01.03.2008 to 24.12.2009 and then from 25.12.2009 to 20.08.2010 is illegal, hence the claim of the 3rd respondent to grant subsistence allowance from 25.12.2008 to 24.12.2009 amounting to Rs. 1,59,084/- and for a period from 25.12.2009 to 20.08.2010 amounting to Rs. 1,60,056/- is illegal and the 3rd respondent is not entitled to. 10. The next contention of the petitioner Society is that the 3rd respondent is a Secretary and the post is not coming under the definition of employee. Since the President and Vice President and Secretary are not considered as employee, the 3rd respondent is not entitled to the subsistence allowance. 10. The next contention of the petitioner Society is that the 3rd respondent is a Secretary and the post is not coming under the definition of employee. Since the President and Vice President and Secretary are not considered as employee, the 3rd respondent is not entitled to the subsistence allowance. Moreover, the 3rd respondent is drawing a salary more than Rs.3500/- per month and the 3rd respondent has admitted that he was drawing salary of Rs.13,257/- and if it is so, then the 3rd respondent would not come under Section 2(a)(ii) of the Tamil Nadu Subsistence Allowance Act. The relevant portion is extracted hereunder: 2. Definitions:- In this Act, unless the context otherwise requires,- (a) “employee” means any person employed in, or in connection with the work or activities of, any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical, clerical or any other kind of work or activities for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person- (i) who is employed mainly in a managerial or administrative capacity; or (ii) who, being employed in a supervisory capacity [draws wages exceeding three thousand and five hundred rupees per mensem]* or exercises, either by the nature of the duties attached to the office or by reason of the powers vested to him, functions mainly of a managerial nature; * Substituted by Act 35 of 1999 S.2 (w.e.f. 9th August 1999 * (draws wages exceeding fifteen thousand rupees per mensem) this was substituted By Act 10 of 2017, S. 2 (w.e.f. 15th May, 2017) “ The section 2(a)(ii) was substituted by Act 35 of 1999 with effect from 9th August 1999 wherein the employee in supervisory capacity drawing Rs.3500 or more will not come under the definition of employee. Thereafter it was amended by Act 10 of 2017 with effect from 15th May 2017 wherein the employee in supervisory capacity drawing wages exceeding fifteen thousand rupees per mensem will not come under the definition of employee. In the present case the petitioner had attained superannuation on 30.04.2008 and he was drawing salary of Rs.13,257/-. On perusal of the said Section, it is seen that any employee comes under the supervisory capacity, if he draws more than Rs.3500/- per month and he is excluded from the definition of the employee. In the present case the petitioner had attained superannuation on 30.04.2008 and he was drawing salary of Rs.13,257/-. On perusal of the said Section, it is seen that any employee comes under the supervisory capacity, if he draws more than Rs.3500/- per month and he is excluded from the definition of the employee. Since the 3rd respondent is drawing more than Rs.3500/-, the 3rd respondent would not come under the definition of employee. Therefore, this court is of the considered opinion that based on wages prescribed in the Subsistence Allowance Act, the 3rd respondent will not come under the definition of “employee”. 11. The contention of the 3rd respondent that the word “Secretary” cannot be taken into account to decide that the 3rd respondent is doing secretary work i.e. supervisory work, but it has to be seen from the nature of work and the petitioner society has not proved that the 3rd respondent is doing supervisory work. However, the petitioner society has submitted that the Tamil Nadu Cooperative Societies Act, 1981 states about the “Officers” includes President, Vice President, Managing Director, Secretary, Assistant Secretary, Member of Board and any other person empowered under rules or bye-laws to give directions in regard to the business of the registered society. Both the petitioner as well as the 3rd respondent have not substantiated the nature of work. The 3rd respondent claims that it is the petitioner society who has to prove that the 3rd respondent is doing supervisory work. But it is the cardinal principle of law of evidence that one who claims ought to discharge the burden of proof first and it is the 3rd respondent who claims he is not entrusted with supervisory work and the burden of proof lies on the 3rd respondent. However, the jurisdiction can be decided on one more factor by taking the factor of “quantum of wages”. Since the Act states that the person serving supervisory post whose wages are more than Rs.3500/- are not eligible to invoke the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Since the 3rd respondent was drawing wages of Rs. 13,257/-, as per the definition the 1st and 2nd respondent is not having jurisdiction. 12. Since the Act states that the person serving supervisory post whose wages are more than Rs.3500/- are not eligible to invoke the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Since the 3rd respondent was drawing wages of Rs. 13,257/-, as per the definition the 1st and 2nd respondent is not having jurisdiction. 12. On referring to the “Statement of Objects and Reasons” of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, which is extracted hereunder: “Statement of Objects and Reasons: It has been reported to Government that out of the 1,675 establishments for which Standing Orders under the Industrial Establishments (Standing Orders) Act, 1946 (Central Act XX of 1946) have been certified, 1,631 establishments have not yet amended their Standing Orders to provide for payment of subsistence allowance to employees during the period of their suspension. The progress made by the establishments in amending the Standing Orders providing for subsistence allowance has been far from satisfactory. Further Government have also been receiving representations that incorporation of the provisions relating to subsistence allowance in the Model Standing Orders in every industrial establishment is a cumbersome process, and that a separate legislation might be thought of to make it obligatory on the part of the managements to pay subsistence allowance to the employees during the period of their suspension in any enquiry. 2. Government have accordingly decided to undertake legislation to make it obligatory on the Managements to pay subsistence allowance to the employees during the period of their suspension, pending enquiry. 3. The Bill seeks to achieve the abovesaid objects.” This Act was enacted since the industries have not implement the Standing Orders to grant subsistence allowance at the time of suspension, the State Government decided to enact a common Act to implement of granting of subsistence allowance to the employees under suspension. In the present case since the petitioner Society has already enacted By-law to grant subsistence allowance, then the general Act will cannot be invoked. Based on the By-law the 3rd respondent was already granted subsistence allowance. Therefore, the claim of subsistence allowance under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 will not arise. On this point also the first and second respondents are not having any authority to decide the issue. 13. Based on the By-law the 3rd respondent was already granted subsistence allowance. Therefore, the claim of subsistence allowance under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 will not arise. On this point also the first and second respondents are not having any authority to decide the issue. 13. The next contention raised by the petitioner Society is that the 3rd respondent has filed a petition seeking the subsistence allowance from 25.11.2009 to 20.08.2010. However, the second respondent has granted subsistence allowance from 29.03.2008 to 29.12.2009 and the relief is beyond the prayer. It is seen that the 3rd respondent has filed three claims i.e., for a period from 29.03.2008 to 24.12.2008 amounting to Rs.89,487/-, for a period from 25.12.2008 to 24.12.2009 amounting to Rs.1,59,084/- and for a period from 25.12.2009 to 20.08.2010 amounting to Rs.1,60,056/-. Admittedly, the 3rd respondent attained superannuation on 30.04.2008. As per By-Law the 3rd respondent is entitled to subsistence allowance until superannuation or retirement and the subsistence was already paid from the date of suspension i.e. 29.03.2008 till superannuation i.e. 30.04.2008. Therefore, the three claims from 01.05.2008 till 20.08.2010 is beyond the provisions of the By-law of the petitioner’s society. Therefore, this Court is of the considered opinion as per By-law, the 3rd respondent is not entitled to any subsistence allowance beyond the date of superannuation i.e. 30.04.2008 and hence, the impugned order is liable to be set aside and hence the impugned order is set aside. 14. With the above observation, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.