BEFORE THE
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,
No.142-1,
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,
3.Thiru.V.Jayaraj ... Respondents
PRAYER
Writ Petition is filed under Article 226 of the Constitution of
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,
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,
No.142-1,
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,
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