IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.21443 of 2009 and M.P.No.1 of 2009 The Management Irudhukottai Primary Agricultural Co-operative Credit Society Ltd., Rep. By its Special Officer, Irudhukottai, Thenkanikottai, Krishnagiri District. ...Petitioner Vs. 1.The Presiding Officer, Labour Court, Salem. 2.G.Vijayakumar ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the first respondent relating to the Award passed in C.P.No.100 of 2008 dated 08.07.2009 quash the same. For Petitioner : Mr.M.S.Palaniswamy For Respondent : Mr.R.Md.Nazrullah for for M/s.K.V.Shanmuganathan for R2 O R D E R The petitioner is the Management of Irudhukottai Primary Agricultural Cooperative Credit Society, represented by its Special officer. They have come forward to challenge an order passed by the first respondent, Labour Court, Salem in C.P.No.100 of 2008 dated 08.07.2009. By the impugned order, the Labour Court computed a sum of Rs.2,83,039/- as due and payable to the second respondent. 2. The writ petition was admitted on 22.10.2009. Pending the writ petition, this Court granted an interim stay on condition that the petitioner Management deposits 50% of the amount as ordered by the Labour Court to the credit of the first respondent within a period of eight weeks. It is stated that the petitioner had deposited a sum of Rs.1,41,520/- vide Demand Draft dated 26.11.2009 with the Labour court. https://hcservices.ecourts.gov.in/hcservices/ 3. Though it was claimed by the learned counsel for the second respondent that they had filed a vacate stay application, it was informed by the Registry that the said application is still in defective SR stage and was returned to the second respondent for compliance. 4. The second respondent was appointed as an Attender in the petitioner Society with effect from 08.11.1990. He was placed under suspension by an order dated 11.06.2003. The suspension was not revoked. Therefore, he filed a writ petition challenging the order of suspension in W.P.No.11628 of 2004. But it was stated that due to the threat handed out by the Management, he withdrew the writ petition on 20.11.2006. Thereafter, he claimed subsistence allowance from 11.06.2003 to 30.06.2008 as per the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. The second respondent claimed subsistence allowance viz., 50% of the wages for the first 90 days, 75% of the wages from 90 to 180 days and thereafter, 100% of wages was claimed for the balance period, all together he claimed Rs.3,29,750/-. The said application was taken on file as C.P.No.100 of 2008 and notice was issued to the petitioner Society. 5. The petitioner Society had filed a counter statement dated Nil (September 2008). The contention raised by the petitioner Management was that the second respondent was placed under suspension with effect from 11.06.2003 due to arrest in a criminal case. The said case related to misappropriation and after arrest, he was remanded to custody. Subsequently, a charge sheet was filed and the same ended in conviction. However, he was let out under the Probation of Offenders Act. The subsistence allowance was claimed on the basis of revised salary but such a subsistence allowance on the basis of revision is not permissible and it can be claimed only based on his last drawn salary viz., Rs.4,216/-. 6. Before the Labour court, the second respondent examined himself as P.W.1 and on his side, 3 documents were filed and marked as Exs.P.1 to P.3. On the side of the Petitioner Management, one C.Govindaraj was examined as R.W.1 and on their side, 2 documents were filed and marked as Exs.R.1 and R.2. 7. The Labour Court held that the second respondent was eligible for subsistence allowance from 11.06.2003 to 30.06.2008 namely the date on which he filed the application. The Labour Court held that Ex.R2 Accounts Register relating to the month of May 2003 would show that the total pay for the petitioner for the month of 2003 was Rs.4824/- and after deducting a sum of Rs.508/- towards Provident Fund Contribution, the balance amount payable by the Management was Rs.4316/-. However, the Labour Court held that for https://hcservices.ecourts.gov.in/hcservices/ the purpose of payment of Subsistence Allowance, the total salary has to be taken into consideration and computed a sum of Rs.2,83,039/- by the impugned order dated 08.07.2009. 8. The first contention raised by the petitioner Management was that the payment of subsistence allowance can be claimed only before the authorities constituted under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 and the Labour Court did not have jurisdiction to entertain a petition under Section 33-C(2) of the I.D.Act. The second contention of the petitioner was that the second respondent had not fulfilled the condition laid down under the Subsistence Allowance Act to be eligible for getting subsistence allowance viz., that he was not gainfully employed elsewhere and about his place of residence was also not indicated during the said period. 9. Mr.M.S.Palaniswamy, learned counsel relied upon a judgment of this Court in The Management Coimbatore District Co- operative Milk Producers Union v. The Presiding Officer, Labour Court, Coimbatore and another reported in 2000 (III) CTC 397 for contending that the subsistence allowance cannot be claimed in a petition under Section 33-C(2) of the I.D.Act. 10. Per contra, Mr.R.Md.Nazrullah, learned counsel appearing for Mr.K.V.Shanmuganathan, counsel for the second respondent referred to a Division Bench judgment of this Court in Binny Ltd. (Engineering Division), Madras v. Assistant Commissioner of Labour, Madras and others reported in 2000 (3) L.L.N.212 and relied upon the following passage found in Paragraph 25, which is as follows:- "25. We must, therefore, hold that the period of limitation has been specified in S.4 of the Act, as the period of one year from the date on which payment of the subsistence allowance becomes due to the employee. It becomes due on the date on which wages would have been payable to the employees had he not been suspended. The period of limitation of one year can be enlarged, if the workman is able to show sufficient cause for condoning delay beyond the period of one year. Section 4 of the Act does not exclude the remedies available under other enactments being availed of by the workman. The workman would still have the right to proceed under S.32C(2) of the Industrial Disputes Act for the recovery of the amount of the subsistence allowance, as the subsistence allowance is an allowance which is capable of being computed in terms of money, and such computation is within the jurisdiction of the Labour Court to make. The choice of the forum is that of the workman. He may resort to one or both, https://hcservices.ecourts.gov.in/hcservices/ so long as he does not make the same claim before both forums. It is open to the workman to make a claim within a period of one year from the date the amount became due, before the Government under S.4 of this Act. It is equally open to the workman to make a claim before the Labour Court for the period preceding that one year, if he so chooses. It is also open to him to seek condonation of delay in making the claim, if he has sufficient cause for doing so, before the Government under S.4 of the Act." In the light of the above, the first contention raised by the petitioner Management cannot be accepted. 11. The other contention that the second respondent was gainfully employed or that he was ineligible to get subsistence allowance was not an issue raised and argued before the Labour Court by the Management. Hence, that contention cannot be permitted to be raised for the first time before this Court. 12. But the order passed by the Labour Court that the total wages should be taken into account for the payment of subsistence allowance and the amount deducted towards PF was not considered cannot be accepted. Even if a person is under suspension, he is liable to pay PF dues. The Supreme Court vide its judgment in Regional Director, Employees' State Insurance Corporation v. M/s.Popular Automobiles reported in AIR 1997 SC 3956. in respect of the ESI Act held that the subsistence allowance is also a remuneration for the purpose of wages under Section 2(22) of the ESI Act. Applying the same principle, this Court has held that a person under suspension is also liable to pay PF dues during his suspension period. In the present case, the payment of subsistence allowance makes it obligatory to pay 100% of the wages if the suspension continues beyond 180 days and the substantial portion of the claim made by the contesting respondent was calculated on the basis of 100% wages namely for the period from 11.12.2003 till 30.06.2008. Therefore, certainly, PF will have to be deducted for the said period. 13. While dismissing the writ petition, this Court permits the petitioner Management to withhold the Provident Fund from the amount payable to the contesting respondent and to pay the balance amount as ordered by the Labour Court. The amount thus deducted will have be necessarily paid to the PF Department if the petitioner Society is covered by the PF Act. In the absence of the coverage under the PF Act, the amount shall be credited to the PF account of the petitioner if maintained by the petitioner Society. The second respondent is permitted to withdraw the amount lying in deposit with the Labour Court and claim the balance from the petitioner subject to the deduction regarding PF. https://hcservices.ecourts.gov.in/hcservices/ 14. With the above observations, the writ petition stands dismissed. However, there will be no order as to costs. Connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar svki To The Presiding Officer, Labour Court, Salem. 1 cc To M/S.Palaniswamy, Advocate, SR.488051 1 cc To Mr.K.V.Shanmuganathan, Advocate, SR.48714 ORDER IN W.P.No.21443 of 2009 VD(CO) RH (29.8.11) https://hcservices.ecourts.gov.in/hcservices/