IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.08.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.15896 OF 2011 T.R.Murugan ... Petitioner VS. 1.The Special Officer 5558, Vadukapatti Primary Agricultural Co-operative Credit Society Vadugapatti, Harur Taluk, Dharmapuri District. 2.The Joint Registrar of Co-operative Societies Dharmapuri District. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, directing the respondents to pay the subsistence allowance from 05.08.2009 to 17.01.2011 and salary from 18.01.2011 to till date to the petitioner. For Petitioner : Mr.A.E.Kalaiselvan For Respondents : Mr.L.P.Shanmugasundaram Additional Government Pleader O R D E R The petitioner was employed as a Secretary in the first respondent Society. He was placed under suspension by the first respondent vide order dated 05.08.2009 pending disciplinary action. The first respondent issued a charge memo dated 17.08.2009. An Enquiry Officer was appointed to enquire into the charges. The Enquiry Officer completed the enquiry and filed a report on 19.04.2010 holding that the charges levelled against the petitioner were proved. 2.This Court is not concerned with the charges levelled against the petitioner. Though the findings of the Enquiry Officer was accepted by the first respondent, the first respondent passed an order dated 19.01.2011 reinstating the petitioner in service, based https://hcservices.ecourts.gov.in/hcservices/ on the proceedings dated 18.01.2011. It is stated in the order dated 19.01.2011 that the suspension period from 05.08.2009 up to the passing of the order could be regularised. 3.The grievance of the petitioner is that he was not paid subsistence allowance from 05.08.2009 to 17.01.2011 and also salary from 18.01.2011 onwards. 4.However, during the hearing of the writ petition, the learned counsel for the petitioner states that the petitioner was paid salary from 18.01.2011. Therefore, the only grievance is relating to non-payment of subsistence allowance from 05.08.2009 to 17.01.2011. 5.The learned Additional Government Pleader does not dispute that the petitioner has to be paid subsistence allowance from 05.08.2009 to 17.01.2011. 6.The case of the first respondent is that the writ petition is not maintainable as against the Co-operative Society, in view of the Larger Bench judgment of this Court in K.MARAPPAN VS. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETY, NAMAKKAL reported in 2006 (4) CTC 689. The first respondent has also relied on the judgment dated 25.01.2010 passed by this Court in W.P.No.26552 of 2009 preferred by the petitioner herein, wherein this Court dismissed the said writ petition on the ground that the writ petition is not maintainable as against the Co-operative Society. 7.I have considered the submissions made on either side. 8.The issue that arises for consideration is as to whether the writ petition seeking direction to the first respondent Co- operative Society to pay subsistence allowance to its employees is maintainable. 9.It is not in dispute that the subsistence allowance for the period from 05.08.2009 to 17.01.2011 is not paid. But the case of the first respondent is that the writ petition is not maintainable and the remedy available to the petitioner is only before the authority under the Tamil Nadu Payment of Subsistence Allowance Act, 1981. In my view, the submissions made by the learned Additional Government Pleader has no merit, since the non-payment of subsistence allowance would infringe Article 21 of the Constitution of India. Whenever there is violation of fundamental right, this Court could invoke its extraordinary jurisdiction under Article 226 of the Constitution of India. While a Larger Bench of this Court in K.Marappan's case (cited supra) has held that writ petition is not maintainable against the Co-operative Society, it culled out certain exceptions and one of the exceptions is that when there is violation https://hcservices.ecourts.gov.in/hcservices/ of fundamental right, the writ petition is maintainable. 10.The Larger Bench judgment of this Court in K.Marappan's case (cited supra) was considered by a learned single Judge of this Court in S.SUKUMAR VS. CE.17 DHARAPURAM PUBLIC SERVANTS' CO-OPERATIVE THRIFT AND CREDIT SOCIETY LTD. reported in 2007 (2) MLJ 1100 wherein it has been held that writ petition seeking subsistence allowance is maintainable against a Co-operative Society, as non payment of subsistence allowance infringes Article 21 of the Constitution of India. In this regard, 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." https://hcservices.ecourts.gov.in/hcservices/ 11.The other submission made by the learned Additional Government Pleader is that this Court rejected the writ petition filed by the writ petitioner herein on 25.01.2010 in W.P.No.26552 of 2009 and hence, he could not file this writ petition. In the said writ petition, the petitioner has sought for disposal of his representation and in that context, this Court rejected the writ petition vide order dated 25.01.2010, which reads as follows: "The petitioner is a Secretary of the second respondent society. He has come forward to file the present writ petition to dispose of his representation dated 10.11.2009 and for disbursement of his arrears of salary from June 2008 to July 2009. 2.Learned Government Advocate took notice for the respondent Society. First of all such a writ petition is not maintainable in the light of the judgment of this Court in the case of MARAPPAN,K. VS. DEPUTY REGISTRAR OF CO.OPERATIVE SOCIETIES, NAMAKKAL CIRCLE, NAMAKKAL reported in (2006)4 CTC 689. The instructions from the second respondent Society have been circulated in which it is stated that the petitioner has been kept under suspension from 5.8.2009 on serious irregularities for having caused loss to the Society to the extent of Rs.93,877.85ps, the Society do not have any money to pay the existing staff. Though the petitioner was eligible to get his salary of a sum of Rs.1,56,520/-, the amount due and payable from the petitioner was Rs.1,39,451//-. If the petitioner pays the amount it may help the Society to pay the other workers. In any event, in the light of the judgment of MARAPPAN, K. VS. DEPUTY REGISTRAR OF CO.OPERATIVE SOCIETIES, NAMAKKAL CIRCLE, NAMAKKAL – (2006) 4 CTC 689, this Court is not inclined to entertain the writ petition. However, this Court will not prevent the petitioner from availing any remedies open to him under law. With this observation, the writ petition stands dismissed. No costs. Connected miscellaneous petition stands closed." 12.Had the petitioner sought for direction to pay subsistence allowance in the said writ petition viz., W.P.No.26552 of 2009, this Court could have granted the same, since the learned single Judge, who passed the order in S.SUKUMAR VS. CE.17 DHARAPURAM PUBLIC SERVANTS' CO-OPERATIVE THRIFT AND CREDIT SOCIETY LTD. reported in 2007 (2) MLJ 1100, has also passed the order in the said writ petition viz., W.P.No.26552 of 2009. Hence, the submission made by https://hcservices.ecourts.gov.in/hcservices/ the learned Additional Government Pleader has no substance. 13.In these circumstances, the writ petition is disposed of with a direction to the respondents to pay subsistence allowance to the petitioner for the period from 05.08.2009 to 17.01.2011 within a period of six weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar TK To 1.The Special Officer 5558, Vadukapatti Primary Agricultural Co-operative Credit Society Vadugapatti, Harur Taluk, Dharmapuri District. 2.The Joint Registrar of Co-operative Societies Dharmapuri District. 1 cc to Mr.A.E.Kalaiselvan , Advocate, Sr.No.49524 1 cc To Government Pleader, SR.No.49839 1 cc to Mr.L.P.Shanmugasundaram, Advocate, Sr.No.49461 W.P.NO.15896 OF 2011 ug(co) pmk.7.10.2011 https://hcservices.ecourts.gov.in/hcservices/