Ty.Spl.96 Ayan Rayamapuram v. The Deputy Commissioner Of

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :11.11.2019

CORAM

THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.18729 of 2011 & W.M.P.No.2 of 2011 Ty.Spl-96, Ayan Rayamapuram Principal Agricultural Co-operative Bank, Rep by its Special Officer, Ayan Rayamapuram Post, Ariyalur Taluk and District.

...Petitioner

..Vs..

1.The Deputy Commissioner of Labour, Trichirappalli.

2.The Assistant Commissioner of Labour (Gratuity), Trichirappalli.

3.S.Subramaniyan

...Respondents

Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records in respect of the order passed by the first respondent herein dated 24.01.2010 in P.U.Me.Mu.3/2010 confirming the order passed by the second respondent herein dated 06.01.2010 in Subsistence Allowance Case No.14/2005, quash the same. For Petitioner : Mr.L.P.Shanmugha Sundaram For Respondents: Mr.J.Ramesh, AGP (for respondents 1 & 2) Mr.G.Purushathaman (for third respondent)

ORDER

The order passed by the first respondent on 24.01.2010 in P.U.Me.Mu.3/2010 confirming the order passed by the second respondent herein dated 06.01.2010 in Subsistence Allowance Case No.14/2005 is sought to be quashed in the present writ petition.

2.The petitioner is a Co-operative Bank registered under the provisions of the Tamil Nadu Co-operative Societies Act. The third respondent was employed as the Secretary In-charge of the Bank and on account of certain allegations, he was placed under suspension and departmental disciplinary proceedings were initiated. The grievances of the third respondent is that the subsistence allowance as applicable had not been paid during the period of suspension. Thus, the third respondent has filed an application before the competent authority under the provisions of Subsistence Allowance Act. The Subsistence Allowance Case No.14/2005 was allowed in favour of the third respondent against which the writ petitioner/management preferred an appeal before the first respondent, who in-turn confirmed the order passed by the second respondent, for payment of subsistence allowance. Thus, the petitioner is constrained to the move the present writ petition.

3.The learned counsel appearing on behalf of the petitioner made a submission that the third respondent was employed as Secretary In-charge and therefore he is not a workman and further the Subsistence Allowance Act is not applicable as far as the writ petitioner/society is concerned. However, the learned counsel appearing on behalf of the petitioner made a submission that the award amount had already been deposited before the second respondent during the pendency of the writ petition. The byelaw of the writ petitioner/Society was amended and accordingly the payment of subsistence allowance is contemplated in the Special byelaws. As per Clause 31(2), the authority competent of suspended employee may grant subsistence allowance to the suspended employee in accordance with the Tamil Nadu Payment of Subsistence Allowance Act, 1981. 4.

Thus, the writ petitioner/Society adopted the provisions of the Subsistence Allowance Act for payment of subsistence allowance to the employees who are all placed under suspension on account of the initiation of departmental proceedings. Under these circumstances, the writ petitioner/Society is liable to pay the subsistence allowance to the third respondent under the provisions of the Subsistence Allowance Act.

5.Thus, the byelaw stipulates that the subsistence allowance is to be paid with reference to the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Thus, the quantum of subsistence allowance and the provisions contemplated under the Tamil Nadu Payment of Subsistence Allowance Act, is to be followed for the purpose of payment of subsistence allowance. However, in respect of the dispute arising out of the payment of subsistence allowance, the employees are bound to approach the competent authority under the provisions of the Tamil Nadu Cooperative Societies Act for the purpose of redressing their

grievances.

6.Subsistence allowance is a Fundamental Right of an employee. It is the livelihood of an employee, who is under suspension, as he is not entitled to accept any other employment during the period of suspension. Thus, the payment of subsistence allowance is considered as a right to life enunciated under Article 21 of the Constitution of India. Such a right cannot be denied to an employee, who is under suspension and pending enquiry. Thus, the right of subsistence allowance cannot be denied to an employee when the employer has taken a decision to place an employee under suspension on account of any misconducts or pendency of criminal case.

7.This Court is of the opinion that the writ petitioner/ management is bound to pay subsistence allowance to the third respondent at the rate prescribed under the provisions of Tamil Nadu Payment of Subsistence Allowance Act. In view of the fact that the amount of subsistence allowance has already been deposited before the second respondent during the pendency of the writ petition, the third respondent is entitled to withdraw the said amount. Accordingly, the order passed by the first respondent dated 24.01.2010 in P.U.Me.No.3/2010 confirming the order passed by the second respondent dated 06.01.2010 in Subsistence Allowance Case No.

14/2005 are quashed mainly on the ground that the remedy available to the suspended employee under the byelaws of the writ petitioner/society is under the provisions of the Tamil Nadu Co-operative Societies Act. The petition filed before the competent authority under the payment of Subsistence Allowance Act cannot be entertained as the writ petitioner is a Co-operative Society registered under the Tamil Nadu Co-operative Societies Act and the provisions for subsistence allowance has been included in the byelaws and in the event of any violation of provisions of the byelaws of the provisions of the Co-operative Society, the aggrieved person has to approach the competent authority under Section 15 of the Tamil Nadu Co-operative Societies Act for the purpose of redressing. The Special Act will prevail over the General Law.

In this case, the Tamil Nadu Co-operative Societies Act being a Special Law would prevail over the General Law. 8.However, this Court cannot deny the right of subsistence allowance to the employee, who was placed under suspension, though the petition filed before the Authority under the Subsistence Allowance Act, cannot be entertained in view of the special enactment namely Tamil Nadu Co-operative Societies Act, the employee is entitled to get the subsistence allowance under the provisions of the byelaws approved by the Registrar as well as under the Provisions of the Tamil Nadu Co-operative Societies Act and Rules.

9.In view of the facts and circumstances, the third respondent/ employee is permitted to withdraw the entire deposited amount with accrued interest by filing an appropriate application before the second respondent. In the event of filing any such application, the second respondent is directed to settle the deposited amount with accrued interest within a period of four weeks from the date of receipt of application. 10.Accordingly, the writ petition stands partly allowed. No costs. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CCC) //True copy// Sub Assistant Registrar mrm To 1.The Deputy Commissioner of Labour, Trichirappalli.

2.The Assistant Commissioner of Labour (Gratuity), Trichirappalli.

+1cc to Mr.L.P.Shanmugha Sundaram, Advocate SR.No.93278 +1cc to Mr.G.Purushathaman, Advocate SR.No.93947 W.P.No.18729 of 2011 RSI(CO) GMY(02/01/2020)