IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.08.2011 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.13714 OF 2011 M.P.NO.1 OF 2011 C.Thirugnanasambandam ... Petitioner Versus 1. The Joint Registrar Co-operative Societies Cuddalore. 2. Annamalai University Employees Co-operative Thrift and Credit Society Represented by its Special Officer Annamalai Nagar, Chidambaram. 3. Sri S.Manthiri ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to direct the 1st respondent to pass appropriate orders to direct the 2nd respondent to pay subsistence allowance to the petitioner from 04.02.1991 till the disciplinary proceedings are over. For Petitioner : Mr.A.Muthukumar For Respondents 1&2 : Mr.L.P.Shanmugasundaram Additional Government Pleader For Respondent 3 : Mr.G.Pugazhenthi O R D E R The petitioner was employed as a Manager in the second respondent Co-operative Society. He was placed under suspension by an order dated 20.03.1989. A charge memo dated 19.06.1989 was issued to the petitioner making certain allegations. An enquiry was conducted and based on the report of the Enquiry Officer, the petitioner was dismissed from service by an order dated 04.02.1991 of the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner preferred revision under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983, before the first respondent against the order of dismissal. The first respondent set aside the order of dismissal and allowed the revision on 30.08.1991 and remanded the matter back to the second respondent to hold an enquiry and to take a final decision, after affording an opportunity to the petitioner. 3.Against the aforesaid order dated 30.08.1991 of the first respondent, the second respondent filed a writ petition in W.P.No.7850 of 1992. During the pendency of the said writ petition, the petitioner herein was not reinstated in service and he was also not paid subsistence allowance. Ultimately, this Court set aside the order dated 30.08.1991 of the first respondent on the ground that it was a non speaking order and remanded the matter back to the first respondent by an order dated 17.11.1999 in W.P.No.7850 of 1992. 4.On remand, the first respondent set aside the order of dismissal passed by the second respondent vide order dated 06.06.2000 and remanded the matter back to the second respondent to hold disciplinary proceedings afresh and to decide the matter, after affording opportunities to the petitioner. 5.Thereafter, the petitioner has made representation dated 19.06.2000 to the second respondent to reinstate him in service, as per the order dated 06.06.2000 passed by the first respondent. But the second respondent did not choose to reinstate him in service. 6.Subsequently, the second respondent filed a writ petition in W.P.No.11502 of 2000 against the order dated 06.06.2000 passed by the first respondent. The said writ petition was disposed of on 23.02.2010 by modifying the order of the first respondent to the extent that the enquiry by the second respondent could continue from the defence stage and confirmed the order of the first respondent in all other respects. 7.Even after the order dated 23.02.2010 passed by this Court in W.P.No.11502 of 2000, the second respondent failed to reinstate the petitioner in service, in spite of his various representations dated 26.02.2010, 15.04.2011, 16.04.2011, 20.04.2011, 26.04.2011 and 03.05.2011. In all those representations, the petitioner claimed subsistence allowance, as he was not reinstated in service. 8.Since no reply is forthcoming from the second respondent, the petitioner has filed the present writ petition seeking a direction to the second respondent to pay subsistence allowance from 04.02.1991 till the disciplinary proceedings are over. https://hcservices.ecourts.gov.in/hcservices/ 9.The second respondent has filed a counter affidavit refuting the allegations made by the petitioner. 10.Heard the submissions made on either side. 11.The learned counsel for the petitioner submits that the petitioner was paid subsistence allowance up to the date of dismissal viz., 04.02.1991. Since the first respondent initially set aside the order of dismissal on 30.08.1991 and remanded the matter back to the second respondent, the petitioner should have been either reinstated in service or he should be paid subsistence allowance. Later, this Court by the order dated 17.11.1999 in W.P.No.7850 of 1992 set aside the order dated 30.08.1991 of the first respondent and remanded the matter back to the first respondent. Again, the first respondent set aside the dismissal order by another order dated 06.06.2000 and remanded the matter to the second respondent to hold fresh enquiry. Despite the same, the petitioner was not reinstated and also was not paid subsistence allowance. While so, the second respondent filed the writ petition in W.P.No.11502 of 2000 seeking to quash the order dated 06.06.2000 of the first respondent. However, the same was not quashed and it was only modified to the extent that the second respondent could proceed with the enquiry at the stage of defence. In these circumstances, the petitioner made various representations referred to above. But he was neither reinstated nor paid subsistence allowance. By denying subsistence allowance, the petitioner is made to starve. Without payment of subsistence allowance, the petitioner could not be able to sustain himself and his family and therefore, he could not be participated effectively in the enquiry proceedings. Moreover, without payment of subsistence allowance, the second respondent could not proceed with the enquiry, as it would amount to violation of Article 21 of the Constitution of India and also violation of principles of natural justice. 12.On the other hand, the learned Additional Government Pleader submits that the petitioner has an effective alternative remedy under the Tamil Nadu Payment of Subsistence Allowance Act and hence, the writ petition is not maintainable.Further, the petitioner is not entitled to subsistence allowance as he has to establish that he has been in the Headquarters to claim subsistence allowance. The petitioner is now at Mayiladuthurai, while the Headquarters is at Chidambaram. Therefore, the petiitoner is not entitled to get subsistence allowance and the writ petition has to be dismissed. He further submits that the petitioner should produce the non employment certificate for getting subsistence allowance. 13.In support of his contention, the learned Additional Government Pleader relies on a Larger Bench judgment of this Court in K.MARAPPAN VS. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETY, NAMAKKAL https://hcservices.ecourts.gov.in/hcservices/ reported in 2006 (4) CTC 689, wherein it has been held that writ petition would not lie as against the Co-operative Society. 14.I have considered the submissions made on either side and perused the materials available on record. 15.Admittedly, the facts are not in dispute. The petitioner was dismissed from service by the order dated 04.02.1991. Till 04.02.1991, he was placed under suspension and was paid subsistence allowance. Once he was dismissed from service, he is not entitled to subsistence allowance or any other relief. But the order of dismissal was set aside by the first respondent by the order dated 30.08.1991 in the revision preferred under Section 153 of the Tamil Nadu Co- operative Societies Act. But the second respondent, neither chose to reinstate him in service nor paid subsistence allowance. The first respondent while setting aside the order of dismissal in the order dated 30.08.1991 remanded the matter back to the second respondent to hold an enquiry and to decide the matter afresh. The said order was challenged by the second respondent in W.P.No.7850 of 1992. This Court set aside the aforesaid order of the first respondent, by its order dated 17.11.1999 in W.P.No.7850 of 1992 and remanded the matter to the first respondent to pass orders afresh. Again the first respondent passed the order dated 06.06.2000 setting aside the order of dismissal and remanding the matter back to the second respondent to hold fresh enquiry. Even after the order dated 06.06.2000, the petitioner was neither reinstated nor paid subsistence allowance. The order dated 06.06.2000 of the first respondent was put to challenge in W.P.No.11502 of 2000 by the second respondent. In the order dated 23.02.2010 in W.P.No.11502 of 2000, this Court did not interfere with the order dated 06.06.2000 of the first respondent, except to the extent of modifying the same to the effect that the enquiry could proceed from the stage of defence. But even after the order in W.P.No.11502 of 2000, the petitioner was neither reinstated nor paid subsistence allowance. Hence the petitioner was forced to come before this Court by filing the present writ petition. 16.Furthermore, as rightly contended by the learned counsel for the petitioner, denial of subsistence allowance infringes Article 21 of the Constitution of India. Without subsistence allowance, the employee could not be able to sustain himself. Hence, the petitioner is entitled to seek subsistence allowance. 17.On the other hand, the case of the second respondent is that writ petition is not maintainable as there exists an effective alternative remedy under the Tamil Nadu Payment of Subsistence Allowance Act to claim subsistence allowance. 18.In normal circumstances, I could have driven the employee to seek statutory remedy available under the Tamil Nadu Payment of Subsistence Allowance Act. But in this case, I am not https://hcservices.ecourts.gov.in/hcservices/ inclined to do the same. The facts are dealt in detail and the dismissal order was set aside as early as on 30.08.1991 and thereafter on 06.06.2000. The petitioner was without employment from 1991 i.e. for the past 20 years. Furthermore, the second respondent was directed to hold enquiry afresh. If the second respondent intended to proceed with the enquiry at least now, he should first pay subsistence allowance, as it is a mandatory condition to proceed with the valid enquiry. Even in the interest of the second respondent, the subsistence allowance has to be paid, otherwise, the enquiry would become invalid and the order based on such enquiry would become illegal. Therefore, in the particular facts and circumstances of the case, I am not inclined to agree with the submissions made by the learned Additional Government Pleader that an effective alternative remedy is available under the Tamil Nadu Payment of Subsistence Allowance Act, 1981. 19.In this case, it is also a fact that the petitioner was paid subsistence allowance up to 04.02.1991. Therefore, it is not known as to how the second respondent could deny subsistence allowance after 04.02.1991. The second respondent could not deny subsistence allowance on the ground that the petitioner resides at Mayiladuthurai, while the Headquarters is at Chidambaram, particularly when the second respondent never offered reinstatement or subsistence allowance. In these circumstances, it does not lie in the mouth of the second respondent to advance such a frivolous condition to deny substance allowance. Non production of non employment certificate could not be cited as a ground to dismiss the writ petition. It is not the case of the second respondent that the second respondent directed the petitioner to give a non employment certificate to disburse subsistence allowance and the petitioner did not produce the same. On the other hand, the petitioner has been agitating for the past 20 years, as stated above, and the second respondent has neither reinstated nor paid subsistence allowance, particularly when the petitioner was successful almost at all times. In these circumstances, the submissions of the learned Additional Government Pleader regarding non production of non employment certificate has no merit. The other submission of the learned Additional Government Pleader that a writ petition could not be maintainable against a Co-operative Society in view of the Larger Bench judgment of this Court in K.Marappan's case (cited supra) also has no substance and deserves to be rejected in view of the fact that non payment of subsistence allowance infringes Article 21 of the Constitution of India and K.Marappan's case (cited supra) gives an exception to invoke Article 226 of the Constitution of India in such circumstances. 20.This Court in similar circumstances in S.SUKUMAR VS. CE.17 DHARAPURAM PUBLIC SERVANTS' CO-OPERATIVE THRIFT AND CREDIT SOCIETY LTD. reported in 2007 (2) MLJ 1100 held that writ petition seeking subsistence allowance is maintainable against a Co-operative https://hcservices.ecourts.gov.in/hcservices/ Society, as non payment of subsistence allowance infringes Article 21 of the Constitution of India. Paras 4 to 6 of the said judgment are extracted hereunder: "4.In the vacate stay application, it is alleged that the provisions of the PSA Act will not apply to the respondent–Society since the petitioner is not a workman within the definition of the said Act, as he was engaged in a Managerial capacity and was admittedly drawing the salary of Rs.11,830/- per month. It is also stated that in any event, the petitioner is not eligible for any subsistence allowance as he was holding the Managerial post and that the writ petition itself is not maintainable as the writ would not lie in terms of a Co-operative Society in the light of the decision of the Larger Bench of this Court reported in K.Marappan V. Deputy Registrar of Co-operative Society, Namakkal 2006 (4) CTC 689 : (2006) 4 MLJ 641. 5.With reference to the maintainability of the writ petition, even the Larger Bench of this Court has laid down certain propositions in the aforesaid decision and paragraph 21(7) reads as follows: "(vii) In the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India when the Act provides for an alternative remedy." 6.This is a case involving recovery of the subsistence allowance already paid to the petitioner and time and again, Courts have held that without subsistence allowance, it will be difficult for the employees to make a sustenance and denial of subsistence allowance even infringes Article 21 of the Constitution of India. In the light of the above, the objection raised by the respondent is overruled." 21.For all the aforesaid reasons, the submissions made by the learned Additional Government Pleader for the respondents deserves to be rejected. The second respondent is directed to pay subsistence allowance to the petitioner, as claimed in the writ petition, with effect from 04.02.1991 within a period of eight weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 22.The writ petition is disposed of with the above observation and direction. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar TK To 1.The Joint Registrar Co-operative Societies Cuddalore. 2.The Special Officer Annamalai University Employees Co-operative Thrift and Credit Society Annamalai Nagar, Chidambaram. 1 cc To Mr.G.Pugazhenthi, Advocate, SR.47125 1 cc To Mr.L.P.Shanmuga Sundaram, Advocate, SR.47038 1 cc To Mr.A.Muthukumar, Advocate, SR.47210 W.P.NO.13714 OF 2011 VSV (CO) RH (11.8.11) https://hcservices.ecourts.gov.in/hcservices/