IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 1.12.2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.3950 of 2003 The Special Officer S-390 Pothanoor Primary Agriculture Co-op Bank Pothanur Post Paramathivelur Taluk Namakkal District ... Petitioner Vs 1. The Appellate Authority under the Payment Allowance Act, (Deputy Commissioner of Labour) Salem -7 2. The Authority under the Payment Subsistence Allowance Act (Asst. Commr of Labour) Salem-7 3. M.Kanagasabapathy .. Respondents Prayer: Petition filed seeking for a writ of Certiorari to call for the records relating to the order of the first respondent, dated 29.11.2002, made in P.S.A.No.1/2002 on the file of the Deputy Commissioner of Labour, Salem-7 and quash the same. For Petitioner : Mrs.R.Thenmozhi Shivaperumal For Respondent : Ms.D.Geetha Additional Government Pleader for R1 and R2 Mr.K.Premkumar for R3 O R D E R Heard the learned counsels appearing for the parties concerned. https://hcservices.ecourts.gov.in/hcservices/ 2. This writ petition has been filed by the petitioner praying for a writ of Certiorari to call for the records relating to the order of the first respondent, dated 29.11.2002, made in P.S.A.No.1 of 2002, and to quash the same. 3. The petitioner has stated that the third respondent was appointed as an Assistant Secretary of the petitioner Bank, on 1.9.1998 and he was suspended from service, on 25.1.1999. Since the third respondent had misappropriated the funds of the petitioner Bank to the tune of Rs.3,88,220/-, along with some other persons, he was served with a charge memo, dated 18.2.1999. Based on the charge memo, the third respondent was called upon to submit his explanation and the date for the enquiry had been fixed, on 15.6.1999. However, the third respondent did not appear for the enquiry, on 15.6.1999. Therefore, it was adjourned to 29.6.1999. While so, the third respondent had filed a writ petition before this Court in W.P.No.10141 of 1999, requesting for changing the enquiry officer to conduct the enquiry. This Court had granted the order of interim stay against the enquiry and finally the writ petition had been disposed of, on 12.6.2000, with a direction to appoint any other enquiry officer and to proceed with the enquiry, expeditiously. While so, the third respondent had filed a claim petition before the second respondent claiming a sum of Rs.35,680/- as the balance subsistence allowance due to him for the period from 26.1.1999 to 30.6.1999, claiming 100% subsistence allowance. 4. The petitioner has further stated that the second respondent, by an order, dated 31.10.2000, in P.S.A.No.22 of 2000, had held that the third respondent was not entitled to the payment of 100% salary as subsistence allowance for the period from 1.7.1999 to 29.2.2000, Due to the fact that he had filed a writ petition before this Court and an interim order had been obtained, only 50% of the last drawn salary had been allowed. Therefore, the authority directed the payment of Rs.6,380/-. Aggrieved by the order of the second respondent, dated 31.10.2000, the third respondent had preferred an appeal in P.S.A.No.1 of 2002, before the first respondent. The first respondent had allowed the appeal directing the petitioner Bank to pay the third respondent, the appellant in the said appeal, a sum of Rs.35,680/- being the difference of subsistence allowance amount due to the third respondent. Challenging the said order, dated 29.11.2002, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel appearing for the petitioner Bank had submitted that the order passed by the first respondent, on 29.11.2002, made in P.S.A.No.1 of 2002, is arbitrary and illegal. The first respondent has not considered the various grounds raised on behalf of the petitioner before passing the impugned order, dated 29.11.2002, made in P.S.A.No.1 of 2002. The first respondent had not considered the issue as to whether the third respondent was an employee, as defined under Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, before passing the impugned order. 6. Per contra, the learned counsel appearing for the third respondent had placed before this Court a decision of a Division Bench of this Court in M.KANAGASABAPATHY Vs. THE SPECIAL OFFICER, AGRICULTURAL COOPEATIVE BANK LTD., AND OTHERS (2007 (5) CTC 392) arising in respect of the petitioner Bank and the third respondent, who are the parties in the present writ petition. While deciding the issues that had arisen for consideration, the Division Bench of this Court had set aside the order passed by the Subsistence Allowance Authority, as well as the appellate authority and remitted the matter back to the Subsistence Allowance Authority to decide the issues, afresh, including the issue as to the whether the third respondent falls within the definition of an employee, as defined under Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. 7. Relying upon the said decision of the Division Bench of this Court, the learned counsel appearing for the third respondent had also submitted that the matter is to be remitted back to the Subsistence Allowance Authority, namely, the second respondent herein, to decide the issues arising for consideration, including the issue as to whether the third respondent is an employee, under Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. 8. In view of the submissions made by the learned counsels appearing for the parties concerned, both the orders passed by the second respondent, dated 31.10.2000, in P.S.A.No.22 of 2000 and the first respondent, dated 29.11.2002, made in P.S.A.No.1 of 2002, are set aside and the matter is remitted back to the second respondent to decide the issues arising for consideration, including the issue as to whether the third respondent is an employee, under Section 2(a) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, within a period of twelve weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 9. With the above directions, the writ petition stands disposed of. No costs. lan Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Appellate Authority under the Payment Allowance Act, (Deputy Commissioner of Labour) Salem -7 2. The Authority under the Payment Subsistence Allowance Act (Asst. Commr of Labour) Salem-7 3. The Section Officer, VR Section, High Court, Madras. 1 cc to Mrs.R.Thenmozhi Shivaperumal, Advocate, SR.67094 1 cc to Mr.K.Premkumar, Advocate, SR.67438 sa (co) dv/23.12. W.P.No.3950 of 2003 https://hcservices.ecourts.gov.in/hcservices/