IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 WP(C).No. 15832 of 2008(I) -------------------------- PETITIONER: ------------ THE TRIVANDRUM SARVODAYA SANGH, REP.BY ITS SECRETARY, GRAMODAYA, M.G.ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENTS: ------------- 1. THE DEPUTY LABOUR COMMISSIONER & SECRETARY, STATE ADVISORY CONTRACT LABOUR BOARD, THIRUVANANTHAPURAM. 2. B.SREEKUMAR, SREE BHAVAN, PARIKEEZHATH, PADINJATTATHIL, KANNIMEL, MARUTHADI PO., KOLLAM. BY GOVERNMENT PLEADER SRI. I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.15832 OF 2008 ---------------------------------------- Dated this the 28th day of May, 2008 JUDGMENT The petitioner is aggrieved by Ext.P5 order of the authority under the Kerala Payment of Subsistence Allowance Act, 1972 directing the petitioner-Society to pay subsistence allowance to the 2 nd respondent, who was suspended pending enquiry by the petitioner-Society. 2. The only contention raised before me is that the 1 st respondent could not have passed Ext.P5 since the 2 nd respondent was an employee employed in a managerial and administrative capacity and therefore, he is out of the purview of the Kerala Payment of Subsistence Allowance Act. This contention cannot be countenanced for more than one reason. First is that as evidenced by Ext.P4 objections filed by the petitioner before the 1 st respondent, they had not raised such a contention before the 1 st respondent at all. Without having raised such a contention before the 1 st respondent, they cannot raise for the first time that contention in a writ petition challenging the W.P.(c)No.15832/08 2 order passed by the authority before whom the petitioner filed Ext.P4 objections. Secondly, the question as to whether a person is employed in a managerial or administrative capacity depends on the duties and functions of the delinquent employee which has to be pleaded and proved. The petitioner has not taken any effort whatsoever to prove before the authority concerned by adducing appropriate evidence in that direction to show that the 2 nd respondent is employed in a managerial or administrative capacity. 3. The contention now raised is that as evidenced by Ext.P1 records of the petitioner, the 2 nd respondent was actually the Vice President of the Society. But such a contention is not taken in Ext.P4. On the other hand, in Ext.P4, the contention taken is that the 2 nd respondent was employed as an Inspector of the petitioner-Society. Nothing whatsoever is mentioned about the duties and functions of the Inspector of the Society and as to whether the same is in the nature of administrative or managerial functions. In view of the above findings, I do not find any merit in this writ petition and accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.15832/08 3