IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WP(C).No. 10636 of 2009(Y) --------------------------------------- PETITIONER: ------------------- ALANGAD ST.JOSEPH'S SADHUJANA SANGHAM, REG.NO.ER.6, ALANGAD-683 511, REPRESENTED BY ITS SECRETARY. BY ADV. MR.ASOK M.CHERIAN. RESPONDENTS: ------------------------ 1. THE COMMISSIONER FOR WORKMEN'S COMPENSATION, (DEPUTY LABOUR COMMISSIONER), ERNAKULAM. 2. A.K.SASI, S/O. KUMARAN, ASHARIPARAMBIL, ALANGAD-683 511. R1 BY SR. GOVT. PLEADER MR. K.S. MUHAMMED HASHIM, R2 BY ADVS. MR.K.S.MADHUSOODANAN, MR.T.V.JAYAKUMAR NAMBOODIRI, MR.THUSHAR NIRMAL SARATHY, MR.M.M.VINOD KUMAR, SMT.K.M.RAMYA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10636/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SHOW CAUSE NOTICE DTD. 09/11/1993 SERVED BY THE PETITIONER ON THE R.2. EXT.P.2: COPY OF THE EXPLANATIONS SUBMITTED BY THE R.2. DTD. 12/11/1993. EXT.P.3: COPY OF THE LETTER DTD. 19/12/1993 OF THE PETITIONER SOCIETY ADDRESSED TO THE R.2. EXT.P.4: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE R.1. DTD. 28/07/1995 UNDER SECTION 4 OF THE KERALA PAYMENT OF SUBSISTENCE ALLOWANCE ACT 1972. EXT.P.5: COPY OF THE ORDER OF THE R.1. IN S.A.C. NO. 20/1995 DTD. 29/05/2000. EXT.P.6: COPY OF THE ORDER OF THE R.1. DTD. 26/09/2008 IN S.A.C. NO. 3/2008 AND S.A.C. NO.4/2008. EXT.P.7: COPY OF THE SHOW CAUSE NOTICE DTD. 19/02/2009 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. K.SURENDRA MOHAN, J ........................................... WP(C).NO. 10636 OF 2009 ............................................ DATED THIS THE 24TH DAY OF MARCH, 2010 JUDGMENT The petitioner, a Society registered under the travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, has approached this court challenging Exts.P6 and P7 proceedings issued by the first respondent. As per Ext.P6, the petitioner has been directed to pay an amount of Rs.81,600/- to the second respondent as subsistence allowance due and payable to him. 2. The second respondent was engaged as a Collection Agent of the Society to collect daily contributions from its members towards their mini savings account. The petitioner came to know that the second respondent was not entering all the collections made from the members of the Society in their individual accounts. Thereby, it was found that the second respondent had misappropriated amounts. Therefore, explanations were called for from him and disciplinary action was initiated. The second respondent was placed under suspension. The second respondent was under suspension from Wpc 10636/2009 2 19.12.1993. The proceedings continued and finally in the year 2009, the second respondent is stated to have been dismissed from service. Alleging that the subsistence allowance due to the second respondent had not been paid, he submitted a petition before the first respondent under Section 4 of the Kerala Payment of Subsistence Allowance Act, 1972. The petition was considered by the first respondent and Ext.P6 order has been passed directing the petitioner to pay an amount of Rs.81,600/- by way of subsistence allowance. Since the amount was not paid, a show cause notice, Ext.P7 has also been issued against the petitioner. 3. According to the petitioner, the amount in Ext.P6 has been arrived at by computing the D.A also along with the basic wages paid to the second respondent. The petitioner contends that the DA is not liable to be taken into account while computing the subsistence allowance. This writ petition was admitted on 1.4.2009. As a condition for passing an interim order, this court had directed the petitioner to deposit an amount of Rs.50,000/- in compliance with Ext.P7. Accordingly, the amount has been deposited and it has also been Wpc 10636/2009 3 withdrawn by the petitioner. 4. The counsel for the petitioner has drawn my attention to Ext.P5 proceedings of the Deputy Labour Commissioner, Ernakulam in SAC 20/95 where the second respondent was the applicant. There is a finding in Ext.P5 to the effect that there is no evidence in the case to show that the second respondent was being paid any DA as claimed by him. In view of the above finding, the claim of the second respondent for payment of DA has been disallowed by Ext.P5. It is submitted that Ext.P5 is binding on the second respondent. Therefore, his claim for arrears of amounts that represent DA cannot be allowed. 5. I notice from Ext.P5 that the contention of the counsel for the petitioner is correct and that the claim of second respondent for DA has been disallowed by the said authority. The findings in Ext.P5 are binding on the second respondent. Therefore, the claim of the second respondent will have to be limited to an amount of Rs.51,600/-. Ext.P6, to the extent it allows the second respondent to recover DA on his basic pay, is liable to be set aside. Since the amount of Rs.50,000/- has already been paid by the petitioner to the second respondent, the Wpc 10636/2009 4 second respondent is entitled to the balance amount of Rs.1600/- also, which the counsel for the petitioner offers shall be paid within two weeks. This undertaking is recorded. The writ petition is allowed to the above extent. No costs. K.SURENDRA MOHAN, JUDGE lgk