Friday, November 12, 2010

TN PAYMENT OF SUBSISTENCE ALLOWANCE ACT BEING SPL ACT OVERRIDES BYE LAWS OF COOP SOCIETY-JUSTICE K.CHANDRU

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05/10/2010

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD)No.13187 of 2009

and

M.P.(MD)No.1 of 2009

The Management,

Tamil Nadu Co-operative Marketing Federation Ltd.,

Rep. by its Secretary,

No.9, St.Mary's Road,

Chennai-600 018. ... Petitioner

vs.

1.The Appellate authority,

Payment of Subsistence Allowance Act, 1981,

The Deputy Commissioner of Labour, Madurai,

No.142-1, Sundaram Theatre Road,

K.K.Nagar,

Madurai-625 020.

2.The Authority,

Under Tamil Nadu Payment of Subsistence

Allowance Act, 1981,

Office of the Assistant Commissioner of Labour,

Madurai.

3.Thiru.V.Jayaraj ... Respondents

PRAYER

Writ Petition is filed under Article 226 of the Constitution of

India praying for the issuance of a Writ of Certiorari, to call for the records

pertaining to the impugned order of the first respondent dated 30.09.2009,

passed in PSA Act No.2/2009, confirming the order of the second respondent dated

23.05.2008 on common order passed in PSA Nos.13/2007, 15/2007 and 19/2007 and

quash the same.

!For Petitioner ... Mr.Veera Kathiravan

^For Respondent Nos.1 and 2 ... Mr.R.Janakiramulu

Special Government Pleader

for Respondent No.3 ... Mr.S.Arunachalam

******

:ORDER

*******

The petitioner is a Management of Tamil Nadu Co-operative Marketing

Federation Limited [TANCOFED]. Aggrieved by the order passed by the first

respondent appellate authority under the Tamil Nadu Payment of Subsistence

Allowance Act, 1981, dated 30.09.2009, confirming the order passed by the second

respondent, Assistant Commissioner of Labour, Madurai, dated 23.05.2008, the

present Writ Petition came to be filed.

2. The third respondent was working as a Junior Assistant in the

Sivagangai Region. He was posted to work at Pammanendhal Primary Agricultural

Co-operative Bank. Due to the irregularities in the purchase of Copra, a

criminal case was registered by the Director of Vigilance and Anti-Corruption,

Ramanathapuram in No.2/AC/2003, based on which, the third respondent was placed

under suspension on the day when he was about to retire from service. Since no

subsistence allowance was paid, the third respondent moved the authority

constituted under the Tamil Nadu Payment of Subsistence Allowance Act claiming

subsistence allowance. He also stated that after suspending him, no enquiry was

conducted and criminal case was also not in progress. Therefore, as per the

provisions of the Act, he is entitled for 75% of wages as subsistence allowance

from 90 days to 180 days and, thereafter, 100% of wages as subsistence

allowance. The subsistence allowance was claimed for different periods in three

different applications, viz., P.S.A.Nos.13/2007, 15/2007 and 19/2007.

3. The stand of the petitioner Corporation was that under the bye-

law 31(5), if there is any suspension on the day of retirement, the wages will

get frozen and the society had already paid 50% for the 23 months at the rate of

Rs.5,015/- p.m.. Since the third respondent had misappropriated Rs.7,26,300/-,

there is no further payment and that too, not at the rate of 100%. The authority

rejected the stand of the petitioner TANCOFED and computed the amount and

allowed the three applications. Aggrieved by the order passed by the authority,

the petitioner preferred an appeal under Rule 5(A) of the Tamil Nadu Payment of

Subsistence Allowance Rule, 1981, to the first respondent and the petitioner's

appeal was numbered as PSAA.No.2 of 2009. The appellate authority concurred with

the findings rendered by the second respondent and rejected the appeal filed by

the petitioner. It is as against the said order, the present Writ Petition came

to be filed.

4. The learned counsel for the petitioner contended that the order

passed by the authorities are erroneous. Since the third respondent reached the

age of superannuation, he is only entitled to be paid 50% as paid by the society

and he is claiming to seek 100%, which is not maintainable. It is also submitted

that criminal case get prolonged and further, the Society should not be made to

pay 100% of the wages as subsistence allowance.

5. Mr.S.Arunachalam, learned counsel for the third respondent

submitted that even the criminal case has ended in acquittal on 07.02.2010 in

C.C.No.2 of 2006, which was tried before the learned Chief Judicial Magistrate,

Ramanathapuram. Therefore, the third respondent cannot be indefinitely kept

under suspension.

6. The said issues need not be gone into at this stage, as this

Court is only confining its review only on the orders passed by the authorities

below. The argument placed upon the bye-law 31(5) is unsustainable, as the said

bye-law only enables the society to place a person under suspension, even after

reaching the age of superannuation, with a view to continue the disciplinary

proceedings. Therefore, having availed the said provision to retain the third

respondent in service, it has to be seen whether the third respondent is

entitled to invoke the provisions of the Act.

7. The term "suspension" is defined under Section 2(g) of the Tamil

Nadu Payment of Subsistence Allowance Act, 1981, which reads as follows:-

"(g) "Suspension" means an interim decision of an employer as a

result of which an employee is debarred temporarily from attending to his office

and performing his functions in the establishment on the ground that -

(1) an enquiry into grave charges against him is contemplated or is

pending or no final order after the completion of the enquiry has been passed;

or

(2) a complaint against him of any criminal offence is under

investigation or trial or the complaint has not been finally disposed of."

Therefore, if a person is kept under suspension, whether before reaching the age

of superannuation or after, that is immaterial for the purpose of this Act.

8. The ingredients found in Section 2(g) of the Tamil Nadu Payment

of Subsistence Allowance Act, 1981 [hereinafter referred to as "the Act"], is

squarely applicable to the case of the third respondent. It is also admitted

that the petitioner society did not proceed with any disciplinary action against

the third respondent, though there is no legal bar for conducting a departmental

enquiry simultaneously even when the criminal trial is on. Therefore, no blame

can be made on the third respondent. The authority, who is constituted under

Section 4 of the Act is empowered to go into the question as to whether an

employee is entitled to get enhanced subsistence allowance initially at the rate

of 75% and, thereafter, 100%.

9. As per Section 3(1) of the Act, if any delay is attributable to

such employee either on account of delay tactics adopted during departmental

enquiry or where a criminal proceeding is prolonged beyond the period of 90 days

for reasons directly attributable to the employee as found in the third proviso

to Section 3(1) of the Act, certainly it is open to the employer to plead before

the authority that he was not eligible to get enhanced compensation. Though

delay is attributed on the third respondent, no such defence was taken before

the authorities, viz., the second respondent and the appellate authority, viz.,

the first respondent. When the authorities are empowered to calculate

subsistence allowance as per the provisions of the Act, when there is a valuable

defence open to the petitioner society and that defence was not pleaded, it is

not open to the said society to plead before this Court that their bye-laws only

provides for 50% and no more. When a special enactment has been made by the

State, exclusively dealing with the issue of subsistence allowance, no reliance

can be placed upon the bye-laws. In fact, Section 5 of the Act protects better

terms provided by the employer and if the terms are less favourable, then the

provisions of the Act override such contract, bye-laws, or any term of

settlement.

10. In the light of the above, this Court does not find any legal

ground to impeach the orders passed by the authorities below, which are impugned

in the present Writ Petition. Hence, this Writ Petition is dismissed. In view of

the dismissal of the Writ Petition, it is open to the third respondent to

withdraw the amounts lying in deposit with the second respondent. Consequently,

the connected miscellaneous petition is closed. However, there will be no order

as to costs.

SML

To

1.The Appellate authority,

Payment of Subsistence Allowance Act, 1981,

The Deputy Commissioner of Labour, Madurai,

No.142-1, Sundaram Theatre Road,

K.K.Nagar,

Madurai-625 020.

2.The Authority,

Under Tamil Nadu Payment of Subsistence

Allowance Act, 1981,

Office of the Assistant Commissioner of Labour,

Madurai.

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