JUDGMENT : A.D. MARIA CLETE, J. Heard. 2. The petitioner, Dharmapuri District Central Co-operative Bank Employees Thrift & Credit Society Ltd. (hereinafter referred to as "the Management"), has filed the present writ petition challenging the order dated 16.02.2021 passed by the 1st Respondent in PSA No. 19/2019. By the said order, the 1st Respondent directed the Management to pay a sum of Rs. 13,14,480/- as subsistence allowance within 30 days. The writ petition was admitted on 26.03.2021, and an interim stay was granted on the same day. Upon notice from this Court, the 2 nd Respondent entered an appearance through her counsel and filed a counter affidavit dated 23.06.2022. It is indeed unfortunate that a matter concerning the subsistence allowance of an employee has remained pending for the past four years. 3. The Tamil Nadu Payment of Subsistence Allowance Act, 1981 (T.N. Act 43 of 1981) was enacted to ensure the provision of subsistence allowance to employees during their period of suspension. The Statement of Objects and Reasons appended to the Bill reads as follows: “It has been reported to Government that out of the 1,675 establishments for which Standing Orders under the Industrial Establishment (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 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.” 4. The Statement of Objects and Reasons highlighted the difficulty in framing standing orders for each establishment under the Industrial Employment (Standing Orders) Act, 1946. To address this issue, a special law was enacted in the State of Tamil Nadu for various establishments. The Statement of Objects and Reasons highlighted the difficulty in framing standing orders for each establishment under the Industrial Employment (Standing Orders) Act, 1946. To address this issue, a special law was enacted in the State of Tamil Nadu for various establishments. However, Parliament subsequently amended the Industrial Employment (Standing Orders) Act by introducing Section 10A through the Central Act 18 of 1982, which came into effect on 17.05.1982. Section 10A of the IESO Act reads as follows: “10A. Payment of subsistence allowance.- 1) Where any workmen is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance-- (a) at the rate of fifty per cent. of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and (b) at the rate of seventy-five per cent. of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman. (2) If any dispute arises regarding the subsistence allowance payable to a workman under sub- section (1) the workman or the employer concerned may refer the dispute to the Labour Court, constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situate and the Labour Court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties. (3) Notwithstanding anything contained in the foregoing provisions of this section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State.” 5. Thus, the legislative trend, both at the Parliamentary and State levels, has been geared towards ensuring the payment of subsistence allowance to employees facing departmental proceedings and placed under suspension pending inquiry. Thus, the legislative trend, both at the Parliamentary and State levels, has been geared towards ensuring the payment of subsistence allowance to employees facing departmental proceedings and placed under suspension pending inquiry. However, the primary contention of the petitioner's counsel is that the 2 nd Respondent, being the Secretary of the Society, does not fall within the definition of an "employee" under Section 2(a)(i) of the Tamil Nadu Payment of Subsistence Allowance Act, as she holds a managerial or administrative position. A reference was also made to Section 219 of the Tamil Nadu Co-operative Societies Act, 1983, which classifies the Secretary of a society as an officer rather than an employee. 6. In this regard, the learned counsel for the Petitioner relied on the following five judgments: “1. The Management of Thekkalur Primary Co-operative Bank (K.2019) Vs. The Assistance Commissioner of Labour, Coimbatore reported in 2006 (1) CTC 784 2. Kuthiraichandal Primary Co-operative Bank Limited Vs. A.Asokan reported in 2009 (1) MLJ 18 3. K.Avanasiappan Vs. The Management of Thekkalur Primary Agricultural Co-operative Bank reported in MANU/TN/4901/2011 4. The Registrar, The Co-operative Society, N.V.Natarajan Maligai, Periyar EVK High Road, Kilpauk, Chennai -10 & ors. Vs.M.Elango, W.A.No.1352 of 2019 dt.10.2.20205. 5. The Joint Registrar/Managing Director, Dharmapuri District Central Co-operative Bank, Dharmapuri Vs. The Appellate Authority, Deputy Commissioner of Labour (Payment of Subsistence Allowance Act), Salem & Ors., W.A.Nos. 295,299 and 303 of 2023 dt. 2.8.2023.” 7. Before the 1 st Respondent authority, the Management, in its counter statement, raised an objection that the 2 nd Respondent was not an employee covered under the provisions of the Act. However, the 1 st Respondent rejected this contention, relying on the judgment of the Madras High Court in W.P. (MD) No. 14346 of 2010, which referred to an earlier Division Bench judgment reported in 2009 (1) MLJ 18 . Based on these precedents, the authority held that the 2 nd Respondent was entitled to subsistence allowance and proceeded to compute the amount on a graded scale as per the Act. 8. During the proceedings, the 2 nd Respondent deposed as PW1, while on behalf of the Petitioner Society, the Secretary, M. Elavarasan, appeared as RW1. RW1 admitted that there are no specific by-laws defining the duties and responsibilities of the Secretary. During the cross-examination on 21.12.2020, he provided the following responses: 9. 8. During the proceedings, the 2 nd Respondent deposed as PW1, while on behalf of the Petitioner Society, the Secretary, M. Elavarasan, appeared as RW1. RW1 admitted that there are no specific by-laws defining the duties and responsibilities of the Secretary. During the cross-examination on 21.12.2020, he provided the following responses: 9. There is no dispute regarding the legal principles established in the decisions cited by the learned counsel for the Petitioner. However, it is important to note that these judgments do not lay down a general proposition that all Secretaries of Co-operative Societies, regardless of the nature of their duties, are automatically excluded from the purview of the Act. Although the Petitioner raised this issue in their counter statement before the 1 st Respondent authority, they merely made a legal assertion without presenting any substantive evidence to establish that the 2 nd Respondent falls outside the scope of the Tamil Nadu Payment of Subsistence Allowance Act. On the contrary, the admissions made by RW1 before the authority, as extracted above, clearly indicate that no specific duties were assigned to the 2 nd Respondent that would justify her exclusion from the application of the Act. 10. It is important to note that mere designation does not determine whether a person falls outside the definition of a "workman" under labour legislation. The Supreme Court, in T. Prem Sagar v. The Standard Vacuum Oil Company, Madras, reported in AIR 1965 SC 111 , has held as follows: "…….That takes us to the question as to whether the appellant is an employee whose case falls under the category of exempted cases provided for by s. 4(1)(a). Section 4(1)(a) refers to persons employed in any establishment in a position of management, and so, the question is when can a person be said to have been employed by the respondent in a position of management. It is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question. Several considerations would naturally be relevant in dealing with this problem. It is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question. Several considerations would naturally be relevant in dealing with this problem. It may be inquired whether the person had a power to operate on the bank account or could he make payments to third parties and enter into agreements with them on behalf of the employer, was he entitled to represent the employer to the world at large in regard to the dealings of the employer with strangers, did he have authority to supervise the work of the clerks employed in the establishment, did he have control and charge of the correspondence, could he make commitments on behalf of the employer, could he grant leave to the members of the staff and hold disciplinary proceedings against them, has he power to appoint members of the staff or punish them-, these and similar other tests may be usefully applied in determining the question about the status of an employee in relation to the requirements of s. 4(1)(a). The salary drawn by the employee may have no significance and may not be material though it may be treated theoretically as a relevant factor, vide Chandra (T.P.) v. Commissioner for Workmen's Compensation, Madras & Anr(1). and The Salem Sri Ramaswami Bank Ltd Salem v. The Additional Commissioner for Workmen's Compensation, Chepauk, Madras & Anr” 11. Although the above judgment was rendered in the context of the Tamil Nadu Shops and Establishments Act, 1947, which excludes its application to individuals engaged in a managerial capacity, the principles laid down therein are equally applicable to the present case. Moreover, the Management faces an additional hurdle in sustaining the writ petition. In paragraph 9 of the affidavit filed in support of the petition, it has been asserted that there is no other efficacious remedy available, necessitating their approach to this Court under Article 226 of the Constitution. 12. This assertion, to the Petitioner's knowledge, is contrary to the provisions of the Act. Under Rule 5 read with Form 4 of the Tamil Nadu Payment of Subsistence Allowance Rules, 1981, the authority competent to entertain applications for payment of subsistence allowance is the Assistant Commissioner of Labour of the respective jurisdiction. However, the rules were amended in 1985, introducing Rule 5A. Rule 5A(1) states as follows: 5A. Under Rule 5 read with Form 4 of the Tamil Nadu Payment of Subsistence Allowance Rules, 1981, the authority competent to entertain applications for payment of subsistence allowance is the Assistant Commissioner of Labour of the respective jurisdiction. However, the rules were amended in 1985, introducing Rule 5A. Rule 5A(1) states as follows: 5A. Appeal – (1) Any person aggrieved by the orders passed by an authority authorised under sub-section (1) of section 7 of the said Act may, within 60 days from the date of receipt of such orders, appeal to the Deputy Commissioner of Labour within the local limits assigned to him under sub-section (1) of section 15 of the Payment of Wages Act, 1936 (Central Act IV of 1936) in the form of memorandum of appeal. Provided that no appeal shall be admitted unless at the time of preferring the appeal, the appellant produced a certificate from the authority against whose orders the appeal has been made to the effect that the appellant had deposited with him the amount determined by him as payable to the employee under rule 5: Provided further that where an employer makes an appeal under rule 5-A, the authority may and if so directed by the Deputy Commissioner of Labour, pending decision of the appeal, withhold payment of any sum in deposit with him.” 13. The management had conveniently omitted in filing an appeal before the appellate authority prescribed under the Act. Perhaps they may have wanted to avoid the condition of pre-deposit incorporated in the rule. In any event an appeal is a statutory creation and if a person wants to avail such a remedy, they will have to comply with all the conditions that are required under the statute. Therefore, the Petitioner was wrong in stating in the affidavit that there was no alternative remedy available. The writ petition is liable to be rejected on this short ground also. 14. In any case, the management has failed to establish before the authority that the 2 nd Respondent was not an employee covered under the TNPSA Act. Furthermore, the authority did not commit any error in entertaining the application for subsistence allowance. Given these circumstances, the impugned order dated 16.02.2021 in PSA No.19/2019 does not suffer from any legal infirmity. Accordingly, W.P. No. 8072 of 2021 is dismissed. However, there shall be no order as to costs. Furthermore, the authority did not commit any error in entertaining the application for subsistence allowance. Given these circumstances, the impugned order dated 16.02.2021 in PSA No.19/2019 does not suffer from any legal infirmity. Accordingly, W.P. No. 8072 of 2021 is dismissed. However, there shall be no order as to costs. Consequently, W.M.P. No. 8617 of 2021 is also dismissed.