IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.07.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.13527 of 2004 and WPMP No.15866 of 2004 The Management, 0.831, Thoothukudi Agricultural Producers Cooperative Marketing Society Ltd., Tuticorin. .. Petitioner Vs. 1.The Deputy Commissioner of Labour, Tirunelveli. 2.The Assistant Commissioner of Labour, Tirunelveli. 3.C.Prabakaran .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in pursuant to the impugned order passed by the first respondent in Case No.P.S.A.2/2003, dated 31.12.2003 and to quash the same. For Petitioner : Mr.R.Subburaj for Mr.S.M.Subramaniam For Respondents : Mr.K.Balakrishnan, AGP for RR1 and 2 Mr.S.K.Krishnamurthy for R-3 - - - - ORDER Heard both sides. Original files from the lower authority was directed to be summoned and circulated for reference. 2.This writ petition was filed by the management of Thoothukudi Agricultural Producers Cooperative Marketing Society Limited, challenging the order of the first respondent appellate authority under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 dated 31.12.2003 in PSA No.2 of 2003. 3.The third respondent herein was working as a Salesman in the Society, who was arrested on 12.3.1997 and a criminal case was registered against him by the Civil Supplies CID for irregularities in the ration shop run by the society. Subsequently, he was placed under suspension with effect from 12.3.1997. His suspension order was https://hcservices.ecourts.gov.in/hcservices/ revoked on 18.6.1997. He was directed to be placed in the wine shop with monthly salary of Rs.1800/-. Even while he was working in the place, the local people were aggrieved by his antisocial activities. He started absconding himself. When the management sent a letter, dated 2.7.2001 asking him to report for duty, there was also no reply. When the Branch Manager of the society went to the house of the third respondent to pay the subsistence allowance for the period from 12.3.1997 to 17.6.1997, his non employment certificate was demanded. But the same was not forthcoming. Therefore, he was not paid any subsistence allowance. 4.The third respondent filed an application before the second respondent being the authority under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 claiming subsistence allowance from 12.3.1997 to 11.2.2002. Before the authority, the application was registered as PS Case No.2/2002. On behalf of the third respondent, he examined himself as PW.1 and on his side, 11 documents were filed and marked as Exs.P.1 to P.11. On the side of the petitioner management, one S.Ganapathy was examined as R.W.1 and on their side, six documents were filed and marked as Exs.R.1 to R.6. Ex.P.3 is the receipt for having paid his wages in the Wine shop for the period from 18.6.1997 to 30.6.1997. Ex.R.4 is the certificate to show that he had worked as a Substitute Teacher in St.Thomas Matriculation Higher Secondary School. Ex.R.5 (series) are the letters sent by the petitioner in reply to the third respondent's letters. 5.The Subsistence Allowance authority (2nd respondent) as a matter of fact found that the third respondent was under suspension only from 12.3.1997 to 17.6.1997. Thereafter, he was employed in the Wine shop and his monthly salary was Rs.780/-, which is evident from Ex.R.3. Hence it could be said that the third respondent was under suspension only for the period from 12.3.1997 to 17.6.1997. Calculating his monthly salary at Rs.1800/- (though he had claimed monthly salary of Rs.1150/-), it computed his subsistence allowance totally for a sum of Rs.3195/-. 6.Aggrieved by the order passed by the second respondent, the third respondent preferred an appeal under Rule 5-A of the Tamil Nadu Payment of Subsistence Allowance Rules. His appeal was taken on file as PSA No.2 of 2003. The appellate authority reversed the findings recorded by the second respondent and held that the third respondent is entitled for payment of Subsistence Allowance from 12..3.1997 to 11.2.2002 at the rate of Rs.1800/- per month and calculated it in terms of Section 3 of the Payment of Subsistence Allowance Act. Thus he allowed the appeal and directed payment on the basis of revised calculation. It is as against this order, the present writ petition was filed. 7.It is stated by Mr.R.Subburaj, learned counsel for the petitioner that there was no justification for reversing the order of the second respondent. While considering the order passed by the second respondent, the appellate authority had gone beyond its jurisdiction. The appreciation of evidence recorded is not acceptable. The appellate authority had not considered the fact that https://hcservices.ecourts.gov.in/hcservices/ the suspension of the third respondent was revoked and he had worked in the Wine shop on monthly salary. 8.The writ petition was admitted on 31.8.2004. An interim stay was granted directing the petitioner to deposit the entire amount to the credit of the PSA No.2 of 2003. On notice from this court, the third respondent has filed a counter affidavit, dated 9.6.2010. It is the case of the third respondent that though he was arrested on 12.3.1997 by the Civil Supplies CID, he was placed under suspension by an order, dated 27.3.1997. Without revoking the said suspension, he was engaged to work in the liquor shop in a leave vacancy. Paragraph 6 of the counter affidavit, it was averred as follows: "6....I approached the then President to save my livelihood and my family members. The then President without revoking my suspension order and without paying my eligible subsistence allowance and engaged me to do work in a liquor shop from 18.06.1997 to 30.06.1997 in the leave place. Since on 30.06.1997 the permanent employee of the liquor shop was joined in his place." 9.He also contended that the order of suspension is contrary to the provisions of Section 76(3) of the Tamil Nadu Cooperative Societies Act. The period of suspension was not specified and hence the order of suspension was invalid as held by this court in 2004 (5) CTC 299. 10.This argument is not available to the petitioner since the decision referred to by him is no longer a good law in view of the Full Bench judgment of this court in A.S.Subramani Vs. The Deputy Registrar of Cooperative Societies, Thindivanam Circle, Thindivanam and another reported in 2006 (4) CTC 444. Curiously, in the counter affidavit, the third respondent did not mention about his employment during alleged suspension in the private school. The document in Ex.R.3 showed that the third respondent had received salary for 13 days for having worked in the wine shop. Similarly, Ex.R.4 is the letter received from the Principal of St. Thomas Matriculation and Higher Secondary School, Thoothukudi that he had worked as a substitute teacher from 6.11.2000 to 20.12.2000 in that school. 11.While he had deposed as P.W.1, in his cross examination, he had stated that he had worked in the wine shop as per the order given by the President as a temporary worker. He had also accepted Ex.R.4 regarding his work in the private school as a substitute teacher. These facts will indicate that he is not eligible for subsistence allowance if he is otherwise employed in the other establishment or in the same shop or in some other branch. These facts were not considered by the appellate authority. On the other hand, the appellate authority without justification in the impugned order held that since the school authorities were not examined and any certificate from the school authority ought to have been proved only by examining the authority from the school, such document cannot be accepted as evidence. https://hcservices.ecourts.gov.in/hcservices/ 12.This finding of the appellate authority is totally perverse because in the cross examination, the third respondent categorically admitted his employment in a temporary capacity in a private school. Therefore, it did not require any further proof. It is only in case where the third respondent denied the existence of Ex.R.4, the question of any formal proof will arise. Even with reference to his employment in the wine shop subsequent to his suspension, the first respondent had gone in an hyper technical basis to state that suspension should have been formally revoked and then only he should be given an appointment order. Though the authority found that on an oral order, he had worked in the wine shop, there was no necessity for the petitioner society to give a formal receipt on 2.7.1997. Therefore, the management's contention that he had stopped on his own accord from the wine shop on account of public reaction cannot be accepted. For rendering such a finding, the second respondent did not have any material. When the second respondent had appreciated all these facts, it is unnecessary for the first respondent to reverse all these findings of fact and that too in an appeal without any legal justification. 13.Under these circumstances, the impugned order passed by the first respondent in PSA No.2 of 2003 stands set aside and the order passed by the second respondent in PS No.2 of 2002 stands confirmed. In view of the said order, if already any amount are deposited by the petitioner before the first respondent, they are entitled to withdraw the same and pay only the amount as ordered by the second respondent directly to the third respondent. 14.With these observations, the writ petition will stand allowed. No costs. Consequently, connected miscellaneous petition stands closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Deputy Commissioner of Labour, Tirunelveli. 2.The Assistant Commissioner of Labour, Tirunelveli. 1 cc To Mr.S.K.Krishnamurthy, Advocate, SR.55956 1 cc To M/s.S.M.Subramanian, Advocate, SR.55955 1 cc To The Government Pleader, SR.55567 W.P.NO.13527 of 2004 AKR(CO) sra 06/08/2010 https://hcservices.ecourts.gov.in/hcservices/