IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.4.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.18217 of 2000 The Management of Judicial Employees Co-operative Thrift and Credit Society Ltd. No.CC.2335, District and Sessions Court Buildings, Coimbatore – 641 018 rep. by its Vice President. ... Petitioner Vs. 1. The Assistant Commissioner of Labour (Controlling Authority under the Payment of Subsistence Allowance Act) Coimbatore. 2. The Deputy Commissioner of Labour (Appellate Authority under the Payment of Subsistence Allowance Act) Coimbatore. 3. N.Manimekalai ... Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the second respondent in AP SA No.2/2000 and quash its order dated 4.9.2000 confirming the order of the first respondent dated 4.10.1999 in PSA Case No.46/1998. For Petitioner : Mr.John for M/s.T.S.Gopalan & Co. For Respondent : Mr.N.Senthil Kumar Government Advocate for respondents 1 and 2 Mr.C.Deivasigamani for 3rd respondent ORDER The petitioner is a co-operative society. They have come forward to challenge the order passed by the second respondent/Appellate Authority under the Payment of Subsistence Allowance Act, 1981 (Tamil Nadu Act 43 of 1981) dated 4.9.2000 in AP SA No.2 of 2000. By the impugned order, the second respondent/Appellate Authority confirmed the order passed by the first respondent/Controlling Authority in P.S.A.No.46 of 1998, https://hcservices.ecourts.gov.in/hcservices/ dated 4.10.1999, wherein and by which the petitioner/society was directed to pay the third respondent subsistence allowance totalling a sum of Rs.32,026.50 together with interest at the rate of 12%. 2. The writ petition was admitted on 30.10.2000. Pending the writ petition, this Court granted interim stay after taking note of the fact that the amount has already been in deposit with the authorities. 3. The facts leading to the case are as follows: The third respondent was working as a Secretary in the petitioner/society from 1.4.1994. She filed an application claiming subsistence allowance before the first respondent, which was taken on file as P.S.A.No.46 of 1998. She claimed differential subsistence allowance as per the provisions of the Act, viz., at the rate of 50% of the salary for the first 90 days, at the rate of 75% of the salary for the next 90 days and at the rate of 100% of the salary for the period beyond 1.9.1997. 4. Before the authority, the petitioner/society filed a counter statement resisting the claim and stating that the delay in conducting the enquiry is attributable to the third respondent. In paragraph [3], they took a stand that the third respondent, being the Secretary, is drawing a sum of Rs.4125/- per month and is, therefore, not covered by the provisions of the Act. An additional counter statement was also filed to which the third respondent filed a rejoinder. 5. Before the first respondent/Controlling Authority, 51 documents were filed on the side of the third respondent and they were marked as Exs.A1 to A51 and on the side of the petitioner/society, 46 documents were filed and they were marked as Exs.R1 to R46. 6. It was on the basis of these records, the authority came to the conclusion that the third respondent is covered by the provisions of the Act, since she is only a worker working under the Act and therefore, she cannot be considered to be working in Supervisory or Managerial Cadre. Once the preliminary objection was overruled, on the question of quantum of subsistence allowance, the authority found that there is no ground to disqualify her from getting enhanced subsistence allowance, as there was no role played by her for delaying the enquiry. 7. As against the said order passed by the first respondent, the petitioner/society filed an appeal under Rule 5A of the Tamil Nadu Payment of Subsistence Allowance Rules. As a condition precedent, they also deposited the amount ordered by the first respondent. Before the second respondent, similar contentions were raised, including the maintainability of the application filed by the third respondent. It was stated that apart from the application being not maintainable, the delay in conducting the enquiry was solely https://hcservices.ecourts.gov.in/hcservices/ attributable to the third respondent. 8. The third respondent filed a counter statement in which she stated that totally 67 adjournments were sought by her and it was mostly based on medical grounds and that even the petitioner/society sought adjournments on many occasions and the Enquiry Officer himself adjourned the enquiry sometimes. 9. The second respondent, who took the appeal as AP SA No.2 of 2000, rejected the contention made by the petitioner/society that the third respondent was not a workman covered by the Act and on the merits of the case, he found that while the third respondent was suspended on 28.2.1997, only on 15.3.1997 she was given a charge memo, and time was taken for perusal of documents relied on in the enquiry proceedings and therefore, the delay cannot be attributed to the third respondent. 10. When the matter came up before this Court, the learned counsel for the petitioner/society also submitted that the society is covered by the Bye-Laws and as per Bye-Law No.12(c), there is no scope for payment of subsistence allowance and if at all subsistence allowance is to be paid, it can be paid at the discretion at the rate of one-fourth of the substantive pay, and that suspension itself can be made only for a period of three months maximum. 11. The very same bye-law came to be considered by the Full Bench of this Court in The Secretary, Palani Co-operative Sales Society, Palani and another v. The Presiding Officer, AIR 1975 Madras 241, wherein the Full Bench held that the words "at a time" will indicate that it is only a suspension pending enquiry and at the end of the three months suspension period, the management is bound to extend the same by a written order. 12. However, these arguments have no significance in view of the enactment of the State Legislation – Tamil Nadu Act 43 of 1981, wherein employees have been statutorily guaranteed payment of subsistence allowance in case of suspension pending enquiry and the rights have also been specified therein. In case of dispute regarding the rate, the authority is also empowered to adjudicate the claim made by the respective parties. Therefore, this Court is not inclined to interfere with the impugned order. This writ petition is dismissed. No costs. In view of the dismissal of the writ petition, the third respondent is entitled to withdraw the amount lying in deposit with the official respondents. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Assistant Commissioner of Labour (Controlling Authority under the Payment of Subsistence Allowance Act) Coimbatore. 2. The Deputy Commissioner of Labour (Appellate Authority under the Payment of Subsistence Allowance Act) Coimbatore. +1 CC to Mr.T.s.Gopalan & Co., Advocate Sr.23301 +1 CC to Mr.C.Deiva Sigamani, Advocate Sr.23237 +1 CC to Government Pleader Sr.23184 W.P.No.18217 of 2000 AKR (CO) BMD 15/04/2010 https://hcservices.ecourts.gov.in/hcservices/