IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27 / 08 / 2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.12665 of 2010 & M.P.No.1 of 2010 The Special Officer, Villupuram Co-operative Urban Bank Limited E-34, No.149, Thiru-Vi-Ka Street, Villupuram – 605 602. ... Petitioner Versus 1. G.Bhuvaraghavan 2. The Assistant Commissioner of Labour, DMS Complex, First Floor, Chennai – 600 006. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Prohibition, prohibiting the second respondent from adjudicating the Original Petition No.3010 of 2010 filed by the first respondent before the second respondent. For Petitioner : Mrs.Nalini Chidambaram Senior Counsel for Ms.Kavitha Deenadayalan For Respondent-1 : Mr.S.Baskaran For Respondent-2 : Mrs.Lita Srinivasan O R D E R The petitioner is a Co-operative Bank, which is registered under the Tamil Nadu Co-operative Societies Act, 1983. It was established in the year 1917. It has been earning good income, by receiving deposits from the public and lending it to the members and collecting the principle and interest. 2.The first respondent was working as a Junior Assistant in the petitioner-Bank. He was placed under suspension by an order dated https://hcservices.ecourts.gov.in/hcservices/ 08.09.1995, as he committed serious misconduct. Later, a charge memo dated 04.12.1995 was issued alleging that he involved in misappropriation of funds. Based on an enquiry, he was dismissed from service by an order dated 25.10.1996. Along with the first respondent, the Manager of the petitioner - Bank was also dismissed from service. Both of them have filed Revision Petitions questioning the order of dismissal. While, the Revision Petition preferred by the Manager was allowed by the Joint Registrar of Co-operative Societies, Villupuram, the Revision Petition filed by the first respondent herein, was dismissed by an order dated 28.05.1999. 3.The first respondent herein filed a Writ Petition in W.P.No.14678 of 1999 questioning the order dated 28.05.1999 passed by the Joint Registrar of Co-operative Societies, Villupuram. This Court allowed the Writ Petition on 29.03.2004. 4.Against the order of this Court dated 29.03.2004, the petitioner-Bank filed an appeal in W.A.No.3416 of 2004. The Division Bench of this Court, disposed the Writ Appeal on 05.03.2008 directing the petitioner - Bank to furnish the copies of documents sought by the first respondent herein, within a period of 15 days from the date of receipt of a copy of the said order. Further, the first respondent was directed to submit his reply within a period of one month from the date of receipt of copies of documents. The petitioner - Bank was also directed to proceed further, in accordance with the statutory provisions. 5.The first respondent issued a legal notice dated 17.03.2008 calling upon the petitioner – Bank to reinstate him in service, pursuant to the order dated 05.03.2008 of this Court passed in W.A.No.3416 of 2004. 6.The petitioner-Bank sent a reply on 09.05.2008 stating that there was no specific direction issued by this Court in the order dated 05.03.2008 to reinstate the first respondent in service. The petitioner - Bank also sent the required documents to the first respondent on 06.06.2008 through registered post. 7.In the meantime, the first respondent sent a reply dated 28.06.2008 to the charge memo. 8.The petitioner-Bank vide letter dated 05.07.2008 informed the first respondent that one Mr.Kannan, retired Deputy Tahsildar, was appointed as Enquiry Officer. 9.Hence, the first respondent filed another writ petition in W.P.No.18062 of 2008 praying to forbear the petitioner-Bank from conducting the domestic enquiry, without following the statutory provisions and procedures established by the law. https://hcservices.ecourts.gov.in/hcservices/ 10.This Court allowed the said writ petition on 07.12.2009 directing the petitioner - Bank to reinstate the first respondent in service, within four weeks from the date of receipt of a copy of the said order and thereupon to proceed with the enquiry in accordance with law. 11.Pursuant to the order dated 07.12.2009 passed in W.P.No.18062 of 2008, the petitioner – Bank, by an order dated 08.03.2010 reinstated the first respondent in service as Junior Assistant. However, the petitioner - Bank also issued an order on the same day i.e. on 08.03.2010 stating that the suspension that was in existence prior to the dismissal, is to continue from 08.03.2010 until further orders. 12.While so, the first respondent filed an application in O.P.No.3010 of 2010 before the second respondent under Section 4 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (in short "the Act") claiming a sum of Rs.11,45,700/- as subsistence allowance for the period from 25.10.1996 to 08.03.2010. 13.The petitioner has now filed the present writ petition seeking for a writ of prohibition, prohibiting the second respondent from adjudicating the Original Petition No.3010 of 2010 filed by the first respondent before the second respondent. 14.Notice of motion was ordered 21.06.2010. The first respondent has filed counter affidavit. 15.Heard Mrs.Nalini Chidambaram, learned senior counsel for the petitioner; Mr.S.Baskaran, learned counsel for the first respondent and Mrs.Lita Srinivasan, learned Government Advocate for the second respondent. 16.The learned senior counsel for the petitioner - Bank submitted that the second respondent lacks jurisdiction in entertaining the Original Petition seeking subsistence allowance under the Act, as the application was filed belatedly after one year period of limitation prescribed under the aforesaid Act. Secondly, since this Court did not direct the petitioner - Bank to pay subsistence allowance in the order dated 07.12.2009 in W.P.No.18062 of 2008 or in the other orders, the second respondent has no jurisdiction to adjudicate on the claim of subsistence allowance. 17.On the other hand, the learned counsel for the first respondent submitted that when this Court quashed the order dated 28.05.1999 of the Joint Registrar of Co-operative Societies, Villupuram, in W.P.No.14678 of 1999 vide order dated 29.03.2004, https://hcservices.ecourts.gov.in/hcservices/ confirming the order of dismissal, the petitioner - Bank is bound to reinstate the first respondent and also to pay wages for the period of non employment. The order dated 05.03.2008 of the Division Bench passed in W.A.No.3416 of 2004 permitting the petitioner - Bank to proceed with the enquiry, after furnishing the required documents to the first respondent, also did not interfere with the order of the learned Single Judge. Without the appellate order of this Court, the petitioner - Bank could not conduct the enquiry again and the petitioner - Bank has no option to proceed with the enquiry. The Division Bench permitted them to proceed with the enquiry. The effect of the order is that the first respondent has to be paid wages for the period of non-employment, besides reinstating him in service, while the petitioner – Bank proceeds with the enquiry. Since the petitioner - Bank did not do so, the first respondent was constrained to file a writ petition in W.P.No.18062 of 2008 to forbear the respondents therein from proceeding with the enquiry, without reinstating him in service. The said writ petition was allowed on 07.12.2009 and a direction was issued to reinstate the first respondent herein in service, within four weeks from the date of receipt of a copy of the said order and thereafter to proceed with the enquiry. 18.In these circumstances, the petitioner - Bank issued an order dated 08.03.2010 reinstating the first respondent in service, in compliance of the order dated 07.12.2009 passed in W.P.No.18062 of 2008. However, on the same day itself, the petitioner - Bank issued another order to the first respondent, continuing the suspension that was imposed prior to dismissal. Based on the order dated 08.03.2010 continuing the suspension that was imposed prior to dismissal, the first respondent filed a petition in O.P.No.3010 of 2010 claiming subsistence allowance under the Act. The cause of action for filing the application before the second respondent is the order dated 08.03.2010 of the petitioner – Bank continuing the suspension, which was in existence prior to the date of dismissal. Therefore, the first respondent claimed subsistence allowance from the date of dismissal and upto 08.03.2010. 19.The learned counsel for the first respondent submitted that in the facts and circumstances of the case, the first respondent could very well invoke the jurisdiction under Article 226 of the constitution claiming subsistence allowance, as his right to livelihood was deprived in violation of Article 21 of the constitution of India. But the first respondent chose to approach the authority under the Act. The authority has jurisdiction to entertain the application, since the first respondent was continued in suspension that was in existence prior to dismissal. The learned counsel also submitted that writ of prohibition could be issued only if the second respondent has no jurisdiction to entertain the application under the Act. But, the jurisdiction of the second https://hcservices.ecourts.gov.in/hcservices/ respondent is admitted. 20.The learned counsel for the first respondent also proceeded further and submitted that according to the petitioner - Bank, the first respondent filed the application in O.P.No.3010 of 2010 after the limitation period, that is prescribed under the Act. It is submitted that the contentions of the learned senior counsel for the petitioner has no merit. Firstly, the cause of action arose only when the order dated 08.03.2010 was issued. The application was filed within a year thereafter. Hence it is within time. In any event, even if an application filed by an employee claiming subsistence allowance belatedly beyond the period of limitation, that could not oust the jurisdiction of the authority, as the authority has power to condone the delay. The petitioner could raise all the points that are canvassed here before the authority. The other submission has also no force. The first respondent approached this Court by filing a writ petition in W.P.No.18062 of 2008 to forbear the petitioner-Bank from proceeding with the enquiry, pursuant to the appointment of enquiry officer in the order dated 05.07.2008, without reinstating the petitioner in service. At no point of time, the payment of subsistence allowance came for consideration. In fact, the first respondent is entitled to wages for the period of non- employment from 25.10.1996 to 08.03.2010, pursuant to the order passed in W.P.No.14678 of 1999 dated 29.03.2004 and the order dated 05.03.2008 passed in W.A.No.3416 of 2004, if the petitioner-Bank did not continue the suspension that was in existence prior to the order of dismissal. The claim for subsistence allowance is solely based on the order dated 08.03.2010 of the petitioner-Bank. 21.In this regard, the learned counsel for the first respondent relied on a judgment of this Court in MANAGEMENT OF TRACTORS AND FARMS EQUIPMENTS LTD., VS. PRESIDING OFFICER, LABOUR COURT, TRICHY reported in 2007 (6) MLJ 406. 22.I have considered the submissions made on either side and perused the materials available on record. 23.As rightly contended by the learned counsel for the first respondent, even if there is a delay in filing an application claiming subsistence allowance under the Act, writ of prohibition could not be entertained against the authority for proceeding with its quasi judicial function and the authority has power to condone the delay. Even all the issues including the condonation of delay could be agitated before the authority and it could not warrant the petitioner – Bank to approach this Court seeking writ of prohibition to prohibit the second respondent from discharging its quasi judicial function. 24.As rightly contended by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ first respondent, in the facts circumstances of the case, as this Court passed various orders referred to above, the first respondent could very well approach this Court, claiming subsistence allowance. Particularly, when the order dated 08.03.2010 was issued by the petitioner - Bank reinstating the first respondent in service, pursuant to the order dated 07.12.2009 passed in W.P.No.18062 of 2008 and on the same day, the petitioner – Bank issued another order continuing the suspension that was in existence prior to dismissal. The first respondent could very well challenge the order dated 08.03.2010 before this Court as rightly contended by the learned counsel for the first respondent and also could seek direction for subsistence allowance. In any event, the first respondent had chosen to approach the authority under the Act, claiming subsistence allowance. The authority cannot be said to have no jurisdiction to entertain the application claiming subsistence allowance. Neither the order dated 07.12.2009 passed in W.P.No.18062 of 2008, nor the other order dated 29.03.2004 passed in W.P.No.14678 of 1999 and the order dated 05.03.2008 passed in W.A.No.3416 of 2004 deals with payment of subsistence allowance. As rightly contended by the learned counsel for the first respondent, the cause of action for subsistence allowance arose pursuant to the order dated 08.03.2010 of the petitioner – Bank continuing the suspension that was in existence prior to the dismissal. Hence, none of the orders of this Court has ousted the jurisdiction of the second respondent in deciding the claim of the first respondent, which is based on the order dated 08.03.2010 of the petitioner - Bank referred to above. The writ of prohibition could be issued only against the judicial and quasi- judicial authorities, when they exceed jurisdiction or when they entertain matters without jurisdiction. 25.Here is a case, the second respondent is the authority under the Act. Hence, he has jurisdiction to entertain the Original Petition No.3010 of 2010 preferred by the first respondent. The cause of action arose pursuant to the order dated 08.03.2010 of the petitioner - Bank continuing the suspension that was in existence prior to dismissal. 26.As rightly contended by the learned counsel for the first respondent, the issue involved in the present writ petition is squarely covered by the decision of this Court in MANAGEMENT OF TRACTORS AND FARMS EQUIPMENTS LTD., VS. PRESIDING OFFICER, LABOUR COURT, TRICHY reported in 2007 (6) MLJ 406., wherein the employer sought writ of prohibition to prohibit the proceedings before the Labour Court, on the ground that the concerned workman is not their workman. This Court rejected the plea of the employer and held as follows:- "40.Therefore, if any attempt is made to stall a properly laid claim before the Labour Court, it https://hcservices.ecourts.gov.in/hcservices/ will not only result in unjust encroachment at the powers of the Labour Court which after the T.N. State Amendment of 1998 has given plenary powers to Labour Courts in dealing with the dispute of non- employment. 41.The prayer for issuance of a Writ either in the nature of mandamus or Prohibition will not apply to an original jurisdiction. Unless a strong case is made out, the Court need not take up the task of entertaining writ petitions on the basis of affidavit jurisdiction. In fact, the Labour Courts are best suited to deal with them as the Labour Courts not only can receive documents in evidence but also can let in oral evidence and appreciate the factual matrix of the case involved. No prejudice will be caused to the mighty-management in facing the trial. Unnecessarily, the adjudication has been stalled for more than one year. Had the dispute been allowed to go for a logical end, the dispute itself would have been over by now. If the management has an excellent case, then it is for them to plead such of those defences which are available to them both under law and on facts and bring the disputes to their finality." 27.For all the aforesaid reasons, the writ petition is dismissed with cost of 10,000/- payable by the petitioner – Bank to the Tamil Nadu State Legal Services Authority. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar RNS/TK https://hcservices.ecourts.gov.in/hcservices/ To 1. The Special Officer, Villupuram Co-operative Urban Bank Limited E-34, No.149, Thiru-Vi-Ka Street, Villupuram – 605 602. 2. The Assistant Commissioner of Labour, DMS Complex, First Floor, Chennai – 600 006. 3.The Secretary, Tamil Nadu State Legal Services Authority, High Court Compound, Chennai-104. +1cc to Govt. Pleader Sr 63948 +1cc to Mr.S.Baskaran, Advocate Sr 63493 +1cc to M/s.C.Uma, Advocate Sr 63431 AKR(CO) km/6.9. W.P.NO.12665 OF 2010 https://hcservices.ecourts.gov.in/hcservices/