IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.23428 of 2001 The Superintending Engineer Madurai Electrical Undertaking Acquisition Circle Tamil Nadu Electricity Board Madurai. .. Petitioner Vs. 1. M.Kumar 2. The Deputy Commissioner of Labour (Appellate Authority under Tamil Nadu Payment of Subsistence Allowance Act) Madurai. 3. The Assistant Commissioner of Labour (Authority under Tamil Nadu Payment of Subsistence Allowance Act), Madurai. .. Respondents Prayer: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the second respondent relating to his order dated 18.4.2000 passed in Case No.PSA 2/99, confirming the order of the third respondent dated 28.6.1999 and passed in Case No.PSA 40/98 and quash the same as illegal and without jurisdiction. For Petitioner : Mr.M.Vaidyanathan For Respondents: Mr.N.Senthil Kumar Government Advocate for respondents 2 and 3 ORDER The Superintending Engineer, Madurai Electrical Undertaking Acquisition Circle, Tamil Nadu Electricity Board, Madurai is the writ petitioner. The writ petition is filed against the order passed by the second respondent/Appellate Authority under the Tamil Nadu Payment of Subsistence Allowance Act (for brevity "Act 43 of 1981") dated 18.4.2000 made in P.S.A.No.2 of 1999, confirming the order of the third respondent/Authority under Act 43 of 1981, dated 28.6.1999 in P.S.A.No.40 of 1998. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petition was admitted on 29.11.2001 and pending the writ petition, this court granted interim stay. Subsequently, the interim stay was modified on 23.9.2003, directing the petitioner/Board to deposit a sum of Rs.45,000/- to the credit of P.S.A.No.2 of 1999 on the file of the second respondent, failing which it was indicated that the stay will stand vacated automatically. The counsel for the petitioner is unable to state whether the amount has been deposited or not. 3. The facts leading to the case are as follows: The first respondent was employed as Inspector of Assessment in the office of the Assistant Engineer, Thallakulam. He was placed under suspension with effect from 14.10.1996 on certain alleged misconduct. The suspension came to be made on the basis of Certified Standing Orders applicable to the workmen. Since the first respondent was not paid subsistence allowance, he filed an application before the third respondent authority under the provisions of Act 43 of 1981 claiming subsistence allowance from 14.10.1996 till the date of the application, namely nearly for a period of 21 months, and it worked out to Rs.1,22,577/-. 4. The third respondent took up the case as P.S.A.No.40 of 1998 and ordered notice to the petitioner and the petitioner filed a counter statement dated Nil-November, 1998. In the counter statement, it was stated that the Board has got its own Standing Orders for the workers and amounts are paid only in terms of the Standing Orders. In the Service Regulation applicable to the workmen, it was stated that the person should be staying in the headquarters and if he goes out of the said headquarters, he should seek prior permission from the Executive Engineer. The first respondent went out of the headquarters without permission and therefore, he was not paid subsistence allowance. 5. Before the third respondent, the first respondent/workman examined himself as W.W.1 and marked four documents. On the side of the petitioner/Board, two witnesses – M/s.Kalyanaraman and Dharmarajan were examined as M.W.1 and M.W.2 respectively and five documents were filed. 6.1. The third respondent held that the first respondent was paid subsistence allowance from August, 1998 to November, 1998 and the suspension was made in terms of Order 20(2)(a) of the Standing Orders, which was marked as Ex.M4. For the period from 10.12.1997 to 31.12.1997, namely 21 days, also he was paid subsistence allowance. 6.2. The contention that the first respondent was not a workman was rejected on the ground that he was covered by the Certified Standing Orders and once a person is covered by the Standing Orders ipso facto, he is also covered by Act 43 of 1981. 6.3. With regard to the second contention of the Board that under Order 20(2)(u) of the Standing Orders, subsistence allowance https://hcservices.ecourts.gov.in/hcservices/ will be paid only if the workman has not taken up employment elsewhere, it was held that there is no other condition that the worker should produce a certificate that he is not employed elsewhere and therefore, this argument was also rejected. 6.4. The third contention that the workman did not demand subsistence allowance was also rejected, because under the provisions of Section 3(4) of Act 43 of 1981, there is no requirement that the workman should seek for such subsistence allowance and it is an automatic right of the worker. 6.5. The last argument was that as per Regulation 56(2) of the Service Regulations an employee is entitled to subsistence allowance only if he furnishes a certificate that he was not engaged in any other employment, business, profession or vocation. With reference to the objection raised in this regard as well as the requirement under Regulation 56(4) of the Service Regulations regarding condition of residing within the headquarters, the third respondent held that when a contention of this nature is raised, it is for the Board to prove that the workman was employed elsewhere and in the absence of the Board raising such a contention and proving to the satisfaction of the authority, the question of disqualification does not arise. Thereafter, the authority, finding that the quantum of subsistence allowance was not disputed, computed the amount as Rs.95,032/- by the order dated 28.6.1999. 7. Subsequent to the order, the first respondent was dismissed form service on 13.1.2000. Thereafter, the petitioner preferred an appeal under Rule 5A of the Tamil Nadu Payment of Subsistence Allowance Rules before the second respondent. The second respondent took up the case as P.S.A. No.2 of 1999 and issued notice to the first respondent. After hearing the argument for both sides, he came to the conclusion that as per Section 3(4) of Act 43 of 1981, the employer has to pay subsistence allowance on the date or dates on which it was due to the employee and there was no requirement that the workman should seek for subsistence allowance. Since the condition precedent for filing appeal, namely the deposit was also not made, on the grounds of violation of the conditions of appeal as well as lack of merits, the appeal was dismissed. It is as against both these orders, the present writ petition has been filed as noted already. 8. The learned counsel for the petitioner contended that Regulation 56(2) of the Service Regulations is statutory, inasmuch as it was framed under Section 79(c) and (k) of the Electricity (Supply) Act, 1948 and therefore, it is applicable to all the employees of the Board. But while making such an argument, the learned counsel overlooked Regulation 112 of the Service Regulations, in which it is stated as follows: "112. In respect of matters in these Regulations for which there is provision also in the Standing Orders for the employees of the Board framed under the Industrial https://hcservices.ecourts.gov.in/hcservices/ Employment (Standing Orders) Act, 1946, the provisions in the Standing Orders shall prevail in regard to the employees governed by the Standing Orders." 9. In any event, it is well settled that for the employees covered by the Certified Standing Orders no other regulations can be read into, as held by the Supreme Court in Western India Match Company Ltd. v. Workmen, AIR 1973 SC 2650. Even otherwise, the similar contention raised by the very same petitioner came to be considered by the Division bench of this Court in Tamil Nadu Electricity Board v. Central Organization of Tamil Nadu Electricity Employees and another, 1998 (1) CLR 369 : [1997] II LLJ 1043. Therefore, the argument must fail. 10. The second argument that in the absence of the workman producing a certificate as required under the Service Regulations he is not entitled to subsistence allowance, even assuming this is accepted, that by itself will not prove that the workman was employed elsewhere and therefore, he suffers a disqualification under Section 3(2) of Act 43 of 1981. On the other hand, under Section 3(2) of Act 43 of 1981, it is provided as follows: "Section: 3. Payment of subsistence allowance: (1) .... (2) An employee shall not be entitled to receive any subsistence allowance if he accepts any other employment during the period of his suspension in any establishment other than the establishment where he had been working immediately before his suspension." Therefore, when a workman claims subsistence allowance before the authority and when the employer wants to deny subsistence allowance, he has to make appropriate pleadings and for the purpose of setting the defence as provided under Section 3(2) of Act 43 of 1981, it is for the employer to prove to the satisfaction of the authorities that the workman is employed in any other place prohibited by the Act and therefore, the question of payment of subsistence allowance will not arise. 11. Under such circumstances, the question of gainful employment and the burden of proving the said fact came to be considered by the Supreme Court in Novartis India Ltd. v. State of West Bengal and another, [2009] 3 SCC 124. After referring to Section 106 of the Indian Evidence Act, the Supreme Court observed that unless the employer makes a specific pleading about the gainful employment, the question of shifting the burden to the workman will not arise. In the case on hand, except relying upon Regulation 56(2) of the Service Regulations, which in any event does not apply to the case of the workman, the Board not not discharged its obligation in setting the defence as provided under Section 3(2) of Act 43 of 1981. In the light of the above, the writ petition is misconceived and accordingly, the same is dismissed. In view of the dismissal, the first respondent is entitled to withdraw the amount lying in deposit https://hcservices.ecourts.gov.in/hcservices/ with the second respondent pursuant to the orders of this Court, in case such deposits have been made. If no such deposit is made, the first respondent is entitled to take appropriate steps to recover the amount from the Board. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Deputy Commissioner of Labour (Appellate Authority under Tamil Nadu Payment of Subsistence Allowance Act) Madurai. 2. The Assistant Commissioner of Labour (Authority under Tamil Nadu Payment of Subsistence Allowance Act), Madurai. 1 cc To Mr.M.Vaidyanathan, Advocate, SR.21737 W.P.No.23428 of 2001 RS(CO) sra 12/04/2010 https://hcservices.ecourts.gov.in/hcservices/