IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.11.2008 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH Writ Appeal No.750 of 2007 I.I.558 Kuthiraichandal Primary Agricultural Co-operative Bank Limited, rep. by its Special Officer, Kuthiraichandal Post 606 202. .. Appellant/1st Respondent Vs. 1.A.Asokan 2.Villupuram District Committee of Common Cadre Services for Secretaries of Primary Agricultural Co-Operative Bank, rep. by its Chairman cum Joint Registrar of Co-Operative Societies, Villupuram. ... Respondents/Petitioner/2nd Respondent Writ Appeal under Clause 15 of Letters Patent, praying to set aside the Order dated 23.03.2007 in W.P.No.40249 of 2006 to issue a Writ of Mandamus directing the first respondent to pay the Subsistence Allowance as per G.O.Ms.No.55 Co-Operative Food and Consumer Protection Department dated 12.03.2000 from 01.04.2003 and continue to pay the same till the completion of the disciplinary proceedings into the charge memo dated 27.05.2000. For Appellants : Mr.G.Sankaran Addl. Govt. Pleader For Respondent No.1 : Mr.S.Venkataraman For Respondent No.2 : No appearance JUDGMENT D.MURUGESAN, J. The short question that arises for consideration in this writ appeal is "Whether the Secretary of Primary Agricultural Co-Operative Bank belonging to Common Cadre Service is entitled to payment of subsistence allowance in terms of G.O.Ms.No. 55 Cp.Operation Food and Consumer Protection Department, dated 12.03.2000, during the period of his suspension? https://hcservices.ecourts.gov.in/hcservices/ 2. The above issue arises under the following circumstances. The writ petitioner, while he was working as Secretary of the Primary Agricultural Co-Operative Bank Limited, Kuthiraichandal was suspended from service in contemplation of inquiry into grave charges on 19.03.2002. He was paid subsistence allowance till 31.03.2003. However, the said payment of subsistence allowance was stopped thereafter. He made several representations from 21.06.2003 and lastly on 16.09.2006, for payment of subsistence allowance. All his representations, though were acknowledged by the special Officer of the Co-Operative Bank, no subsistence allowance was paid. In the mean time he was also issued with the charge memo dated 27.05.2000 and the inquiry was kept pending. 3. As his requests for payment of subsistence allowance was not conceded by the Co-Operative Bank, he approached this Court by way of writ petition seeking for direction to the Special Officer to pay subsistence allowance as per G.O.Ms.No. 55 Co-Operation, Food and Consumer Protection Department, dated 12.03.2000 from 01.04.2003 and continue to pay the same till the date of completion of the disciplinary proceedings into the charge-memo dated 27.05.2000. By order dated 23.03.2007, the writ petition came to be allowed directing the Special Officer to pay subsistence allowance as prayed for. The writ appeal filed at the instance of the Primary Agricultural Co- Operative Bank, questions the above order. 4. Heard Mr.G.Sankaran, learned Addl. Government Pleader and Mr.S.Venkataraman,learned counsel appearing for the first respondent. 5. The request for payment of subsistence allowance is mainly resisted by the Co-Operative Bank on the ground that the first respondent is the Secretary of the Co-Operative Bank and he has got over all control of the Co-Operative Bank and therefore, he cannot be considered to be an employee as defined under Section 2(c) of Tamil Nadu Payment of Subsistence Allowance Act, 1981 (herein after referred to "the Subsistence Allowance Act"). Further, G.O.Ms.No. 55 Co- Operation Food and Consumer Protection Department, dated 12.03.2000, does not provide any specific provision for payment of subsistence allowance to the employees belonging to the common cadre service and therefore, the Secretary of the Co-Operative Bank is not entitled to payment of subsistence allowance. 6. Let us first consider the question, as to whether the provisions of Payment of Subsistence Allowance Act, would be applicable to a Secretary of the Co-Operative Bank. In terms of the Standing Orders under the Industrial Establishment Standing Orders Act, 1946, the Industrial Establishment should make a provision for payment of subsistence allowance and to get certification. When the attention of the State Government was drawn to the fact that larger number of establishments viz., out of 1675 Establishments for which Standing Orders were certified, 1631 Establishments did not amend the Standing Orders to provide for payment of subsistence allowance to the https://hcservices.ecourts.gov.in/hcservices/ employees during the period of their suspension. It was felt by the Government that there was no satisfactory progress for which the Management and the Government have been receiving frequent representations for incorporation of model standing orders in every Industrial Establishment. As the incorporation of model standing orders in every establishment is a cumbersome process, a separate legislation was considered. Only under the above back-ground the Government enacted The Tamil Nadu Payment of Subsistence Allowance Act, 1981. The statement of objects and reasons of the enactment shows the intention of the Government to have a uniform law with regard to payment of subsistence allowance to the employees employed in the industrial establishments, during the period of their suspension pending inquiry. In other words, by the enactment of the Subsistence Allowance Act, the Government contemplated payment of a unique subsistence allowance, without there being any disparity among the industrial establishments in payment of subsistence allowance to their respective employees. 7. Section 2 (a) (b), (c) and (g) of the Subsistence Allowance Act, defines the employee, employer and establishment as well as the suspension. The said Section reads as under:- 2. Definitions – In this Act, unless the context otherwise requires, - (a) "employee" means any person employed in, or in connection with the work or activities of, any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical, clerical or any other kind of work or activities for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person - (i) who is employed mainly in a managerial or administrative capacity; or (ii) who being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature; (b) "employer" means the owner of an establishment and includes any person entrusted with the supervision and control of employees in such establishment; (c) "establishment" means any place where any industry, trade, business, undertaking, manufacture, occupation or service is carried on, and with respect to which the executive power of the State extends, but does not include - (i)any office or department of the Central or the State Government; or (ii) a railway administration; or (iii)a mine or oil field; or https://hcservices.ecourts.gov.in/hcservices/ (iv) a major port; or (v) a public Sector undertaking of the Central Government Explanation. - For the purpose of this clause "any public sector undertaking of the Central Government" means an establishment owned, controlled or managed by - (1) the Central Government or a department of the Central Government; (2) a Government company as defined in Section 617 of the Companies Act, 1956 (Central Act 1 of 1956) and owned or controlled by the Central Government; (3) a Corporation established by or under a Central Act, which is owned, controlled or managed by the Central Government (d) ..... (e) ..... (f) ...... (g) "suspension" means an interim decision of an employer as a result of which an employee is debarred temporarily from attending to his Office and performing his functions in the establishment on the ground that - (1) an enquiry in grave charges against him is contemplated or is pending or no final order after the completion of the enquiry has been passed; or (2) a complaint against him of any criminal offence is under investigation or trial or the complaint has not been finally disposed of; 8. A reading of the definition of "employee" shows that for the entitlement of the provisions of subsistence allowance Act, he must be a person employed in, or in connection with the work or activities of, any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical, clerical or any other kind of work or activities for hire or reward. The persons employed in the managerial or administrative capacity or any other supervisory capacity drawing wages exceeding Rs.500/- p.m. or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. Clause (c) of Section 2 of the Subsistence Allowance Act, defines, "establishment", which means any place where any industry, trade, business, undertaking, manufacture, occupation or service is carried on, and with respect to which the executive power of the State extends with specified exceptions. 9. A combined reading of Clause (a) and (c) of Section 2 of the Subsistence Allowance Act, shows that the provisions of the Act, will be applicable only in respect of employees employed in an https://hcservices.ecourts.gov.in/hcservices/ Industrial Establishment and not otherwise. An employee of Co- Operative Bank is not entitled to the benefit of the subsistence allowance Act, as he is not an employee employed in, or in connection with any work or activities of the establishment to do any skilled or semi-skilled, etc., work and the Co-Operative Bank also cannot be termed to be an establishment within the definition of Clause (c) of Section 2 of the Subsistence Allowance Act. Hence, the employee of a Co-Operative Bank is not entitled to payment of subsistence allowance as per the Subsistence Allowance Act. The term "employee" under the Subsistence Allowance Act, does not include "the Secretary" as well. Hence, the claim for payment of subsistence allowance by the Secretary of the Primary Agricultural Co-Operative Bank, on the basis of payment of Subsistence Allowance Act, cannot be conceded. 10. This takes us to the next question, as to whether the Secretary of the Primary Agricultural Co-Operative Bank is entitled to claim the payment of Subsistence Allowance, in terms of G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000. 11. Before we delve upon the issue, the concept in Industrial Jurisprudence regarding the payment of subsistence allowance requires a mention. During the suspension period, the employee is not allowed to actually work and he/she is not given full remuneration , but the permissible subsistence allowance is paid to the employee by way of remuneration for remaining period attached to the services as per the service regulations governing the employment. Payment of subsistence allowance may be regulated by way of regulations or enactment. In the absence of any such provisions, a claim cannot normally be made. When the subsistence allowance is not paid, the very object of payment of reduced salary to the employee, during his suspension period is frustrated. 12. That apart, the payment of subsistence allowance is also to be considered as a fundamental right guaranteed by Article 21 of the Constitution, as it encompasses that the employee suspended pending inquiry should survive to maintain his family and also to effectively participate in the disciplinary proceedings. Unless subsistence allowance is paid, the employee would be deprived of his valuable right to effectively defend the disciplinary inquiry. 13. The Apex Court in Capt. M.Paul Anthony v. Bharat Gold Mines Ltd., and another ( 1999 Supreme Court Cases (L & S) 810, of course while considering the payment of subsistence allowance in a case of Government Servant, had in fact, observed that an act of non payment of subsistence allowance could be linked to slow poisoning and if the employee is not permitted to sustain himself on account of non payment of subsistence allowance, he would gradually be starved to death. Further, in Jagdamba Prasad Shukla V. State of U.P. and others (2000) 7 Supreme Court Cases 90, the Apex court has held that the payment of subsistence allowance is a matter of right and not a bounty. https://hcservices.ecourts.gov.in/hcservices/ 14. The contention of the Bank is that an employee namely, the Secretary of the Co-Operative bank, is not entitled for subsistence allowance, in the absence of provision in G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000 for payment of subsistence allowance. This contention is totally on misreading the provisions of the Government Order in G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000. The provisions of the said Government Order, relating to payment of subsistence allowance, should be read in consonance with the entitlement of payment of subsistence allowance under Article 21 of the Constitution of India. Section 75 of the Tamil Nadu Co-operative Societies Act, 1983 empowers the Government, in the interest of the Co-Operative movement to constitute a common cadre of service in respect of the posts of Secretaries, Assistant Secretaries, etc. and by virtue of such power, the common cadre was formed in G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000 containing the statutory regulations. Therefore, the regulations framed under the above G.O. has statutory backing. In terms of Regulation 29(d), a cadre employee under suspension would be entitled to subsistence allowance as per the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Though there is no specific provisions for payment of subsistence allowance as per G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000, in terms of sub-clause (d) of Regulation 29, a right to receive subsistence allowance could be traced to the provisions of the Subsistence Allowance Act. The said clause reads as under:- "29 (d) A cadre employee under suspension shall be entitled to a subsistence allowance as per the payment of Subsistence Allowance Act, 1981" 15. This would again take us to a further question, as to whether the subsequent legislation incorporating the provisions of earlier legislation would enure the benefit to the employees as per the earlier enactment. The concept of interpretation cannot be static one. While construction of statute, whether the provisions/regulations are made, the principle of true reason of remedy should be applied. The Court must make such constructions as shall suppress the mischief and advance the remedy. The Court must also add force and life to cure the mischief in order to provide remedy. If the choice is between the two, the narrow interpretation which would fail to achieve the manifest purposes of the Regulation must be avoided and the Court should always avoid the construction which would reduce the Regulation to futility and should accept a reasonable construction. In the event, such construction is made, it cannot be termed to be an additional allowance given by the Court and an order for grant of subsistence allowance would be in terms of the Regulations as such. 16. Keeping the above broad principles in mind, the application of the Government Order for payment of subsistence allowance to common cadre employees shall be considered. https://hcservices.ecourts.gov.in/hcservices/ 17. Therefore, the question is, when the provisions of Subsistence Allowance Act are made available only to an employee employed in Industrial Establishment and the said provisions ipso facto do not apply to an employee of Co-Operative Bank, Whether by virtue of statutory regulations framed under the provisions of The Tamil Nadu Co-Operative Act, 1983, the provisions of Subsistence Allowance Act could be made applicable even to the secretary of the Co-Operative Bank? 18. While the Court ascertaining the purposes of the Government Order in G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000, a reasonable construction must be made which would lead to logical conclusion. Though the Government Order, does not by itself make a provision for payment of subsistence allowance, while it makes a provision for application of the Subsistence Allowance Act, it must be construed that the purposes of legislation is to extend the benefit of payment of subsistence allowance provided by a separate enactment to Common Cadre employees as well. Even in cases of any ambiguity, the construction which better serves the ends of fairness and justice must be accepted. The only limitation for the Court is to avoid construction which results in anomalies. In the wake of the provisions of Regulation 29(d) coupled with the provisions of Article 21 of the Constitution of India, for entitlement of subsistence allowance, we do not find any ambiguity in the provision while making a construction to apply the Subsistence Allowance Act to common cadre employees as well. A similar question came up for consideration in U.P.Avas Evam Vikas Parishad vs. Jainul Islam (AIR 1998 SC 1028 = (1998) 2 SCC 467) the Supreme Court has held thus: "17. A subsequent legislation often makes a reference to the earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated that is made https://hcservices.ecourts.gov.in/hcservices/ after the date of incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation." 19. The subsequent regulation framed by the Government in G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000 in exercise of the power under Section 75 of the Tamil Nadu Co-Operative Societies Act, 1983 including employees belonging to the common cadre also to be entitled to the payment of subsistence allowance would certainly well within the power of the Government and merely because the payment of subsistence allowance Act does not apply to the employees of Co-Operative Bank for payment of subsistence allowance, the right to receive such subsistence allowance cannot be deprived. 20. In the above circumstances, the first respondent Secretary of the Agricultural Co-Operative Bank is entitled to payment of subsistence allowance in terms of G.O.Ms.No. 55 Co-Operation, Food and Consumer Protection Department, dated 12.03.2000. Factually also, while he was put under suspension on 19.03.2002, he was paid subsistence allowance till 31.03.2003 but, the same was stopped thereafter. 21. In the light of the above discussion as to the entitlement of subsistence allowance belonging to the common cadre, the objection raised by the appellant co-operative Bank as to the maintainability of the writ petition should be considered. It is true, that a Larger Bench of this Court in K.Marappan v. The Deputy Registrar of Co- Operative Societies, Namakkal Circle, Namakkal 636 001 and another (2006 (4) CTC 689) to which one of us (D.Murugesan, J.) is a party, has held that the Bye-laws of the Co-Operative Societies did not have statutory force and are purely contract between the parties concerned and therefore, the same cannot be enforced in exercise of the writ jurisdiction. Nevertheless, certain exceptions were carved out for entertaining the writ petitions even against the Co-Operative Societies even in the very same judgement in Sub clause (iv) of para 21 which reads as under:- 21.(iv). A Society, which is not a 'State' would not normally be amenable to the Writ Jurisdiction under Article 226 of the Constitution, but in certain circumstances, a Writ may issue to such private bodies or persons as there maybe statutory provisions which need to be complied with by all concerned including societies. If they violate such statutory provisions a writ would be issued for compliance of those provisions." https://hcservices.ecourts.gov.in/hcservices/ 22. Though the Society is not a 'State' and would not normally amenable to writ jurisdiction under Article 226 of the Constitution, in certain circumstances, a Writ may issue to such Co-Operative Bank as well, if they violate the statutory provisions. We have held that provisions of Regulation 29, was made in exercise of the Power conferred under Section 75 of The Tamil Nadu Co-Operative Societies Act, 1983 and such regulations brought by way of G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000, have statutory force. Therefore, a Writ would certainly lie for enforcement of such statutory provisions. In this Context, it may also be mentioned that in M.P. State Agro Industries Development Corporation Limited and another v. Jahan Khan (2008) 1 Supreme Court Cases (L & S) 9, the Apex Court has held 12. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. 23. In the case on hand the petitioner seeks to enforce his right in terms of the Government Order in G.O.Ms.No. 55 Co.Operation, Food and Consumer Protection Department, dated 12.03.2000, which are statutory in character, as the said order was issued in exercise of the power under Section 75 of the Tamil Nadu Co-Operative Societies Act, 1983. Therefore, the argument that the writ petition is not maintainable to enforce the bye-laws of the Co-Operative Society is untenable. The issue of writ being discretionary and when the employee of the Bank approaches the Court for direction to implement the Regulation on the ground of non compliance of statutory provisions, the power of Judicial Review is not excluded and https://hcservices.ecourts.gov.in/hcservices/ consequently Writ Petition is maintainable. This view is supported by the Larger Bench in Sub clause (iv) of 21 of the Judgement in K.Marappan v. The Deputy Registrar of Co-Operative Societies, Namakkal Circle, Namakkal 636 001 and antoher (2006 (4) CTC 689). 24. For all the above reasons, we hold that the Secretary of Primary Agricultural Co-Operative Bank belonging to Common Cadre Service is entitled to payment of subsistence allowance in terms of G.O.Ms.No.55 Co-Operation, Food and Consumer Protection Department, dated 12.03.2000, during the period of his suspension and consequently, we find no infirmity in the order dated 23.03.2007 made in W.P.No.40249 of 2006. Accordingly, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Time for payment of Subsistence Allowance is 3 months from to-day. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kmk To 1. The Chairman cum Joint Registrar of Co-Operative Societies, Villupuram. Villupuram District Committee of Common Cadre Services for Secretaries of Primary Agricultural Co-Operative Bank, 2. The Special Officer, I.I.558 Kuthiraichandal Primary Agricultural Co-operative Bank Limited, Kuthiraichandal Post 606 202. 1 cc To Mr.G.Sankar, Advocate, SR.63746. 1 cc To Mr.S.Vankataraman, Advocate, SR.63104. Writ Appeal No.750 of 2007 JSV(CO) RVL 26.11.2008 https://hcservices.ecourts.gov.in/hcservices/