IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 WA.No. 1307 of 2006 ------------------------------ AGAINST THE JUDGEMENT IN OP.1876/1999 Dated 16/06/2006 .................... APPELLANT/ PETITIONER: ------------------------------------- THE VAYITRI PLANTATIONS LTD., THALAMALA ESTATE, VAYITRI POST, REPRESENTED BY ITS DIRECTOR. BY ADV. SMT.T.D.RAJALAKSHMI RESPONDENT/ RESPONDENTS: ---------------------------------------------- 1. MR.M.P.RAMANKUTTY, ESTATE WORKER, THALAMALA ESTATE, VYTHRI POST. 2. THE COURT OF AUTHORITY UNDER SECTION 4 OF THE KERALA PAYMENT OF SUBSISTANCE ALLOWANCE ACT,1973 (DEPUTY LABOUR OFFICER),KANNUR. R1 - BY ADV. SRI.P.K.RAMKUMAR FOR R1 R2 - BY GOVERNMENT PLEADER (SR.) SMT.K.MEERA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/11/2008, ALONG WITH OP NO. 13853 OF 2002 , THE COURT ON THE SAME DAY DELIVERED FOLLOWING: H.L. DATTU, C.J. & A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1307 of 2006 & O.P.No. 13853 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of November, 2008 Judgment H.L. Dattu, C. J: Appellant before us is the petitioner in O.P.No.1876 of 1999. 2. The appellant is the employer. Respondent before us in the writ appeal is the workman. 3. In O.P.No. 13853 of 2002, petitioner is the employer. Contesting respondent is the workman. 4. In O.P.No.1876 of 1999, the employer had called in question Exts.P5 and P6 orders passed by the Deputy Labour Commissioner, Kannur, who is the competent authority under the provisions of the Kerala Payment of Subsistence Allowance Act, 1972 (the Act, for short). 5. The contesting respondent was an estate worker. He was kept under suspension in contemplation of the departmental enquiry on 25/4/1987. 6. The employer had appointed an Enquiry Officer to enquire into certain allegations made against the workman. It is the stand of the workman that no orders were passed by the disciplinary authority on the report of the Enquiry Officer. However it is contended by the appellant's learned counsel that after accepting the report of the Enquiry Officer an order of dismissal was passed and the same is served on the workman. WA.1307/08 & OP.3853/2002 2 7. The employer had also lodged a criminal complaint against the respondent workman, inter alia, alleging an offence of theft of the articles belonging to the employer. At the time of hearing of this writ appeal and the Original Petition, we were informed by the learned counsel appearing for the parties that the jurisdictional Magistrate Court has given a clean chit to respondent No.1/workman. 8. In the claim statement filed before the Deputy Labour Commissioner, the respondent-workman has stated that he had entrusted the matter to one Union for making an application for payment of subsistence allowance, as provided under the Act and since that Union had not taken effective steps, he had to change his membership and it is only the other Union that had taken effective steps to present an application for payment of the subsistence allowance under the Act. Along with the claim statement, the Union also had filed an application for condonation of delay in filing the application for payment of subsistence allowance. 9. After registering the claim statement, the Deputy Labour Commissioner had issued notice to the employee. The stand taken by the workman before the Deputy Labour commissioner was that the application filed by the petitioner is barred by limitation and the second contention was that after accepting the report of the Enquiry Officer, the disciplinary authority had passed an order dismissing the workman from service of the employer. Strangely, before the Deputy Labour Commissioner, the employer had not produced a copy of the WA.1307/08 & OP.3853/2002 3 order of the dismissal said to have been passed by them. 10. The Deputy Labour Commissioner, after condoning the delay in filing the application for payment of subsistence allowance, has directed the employer to pay subsistence allowance from 25/4/1987 to 28/2/1991 in a sum of Rs.21777.55 and for the period from 1/3/1991 to 31/7/1993 in a sum of Rs.14355/- in O.P.No.13853/2002. By yet another order the Deputy Labour Commissioner has directed the employer to pay the subsistence allowance for the period from 1/8/1993 to 30/9/1998 in a sum of Rs.77152/- and the order so passed is the subject matter in O.P.No.13853 of 2002. 11. Aggrieved by the orders so passed by the Deputy Labour Commissioner, the employer was before this Court in O.P.NO.1876/1999. The learned single Judge has rejected the writ petition and while doing so he was of the opinion that the Deputy Labour Commissioner has not committed any error whatsoever while passing the impugned orders. Aggrieved by the orders passed by the learned single Judge in O.P.No.1876/1999, the employer is before us in W.A.No.1307/2006. 12. Since the appeal was pending before this Court, the learned single Judge has also referred O.P.No.13853/2002 for our consideration and decision. 13. We have heard learned counsel for the appellant as well as the learned counsel for the respondents. 14. The appellant's learned counsel would submit that the Deputy Labour Commissioner was not justified in condoning the delay in filing the application WA.1307/08 & OP.3853/2002 4 for payment of subsistence allowance. Secondly, it is contended that the employer had passed an order of dismissal of the respondent/workman from service and therefore the workman is not entitled to payment of subsistence allowance as envisaged under the Act. 15. In order to answer the issues canvassed by the learned counsel for the appellant, it is appropriate for us to refer to the objects of the Act and the other relevant provisions. 16. The object of the Act is to provide the payment of subsistence allowances to the employees in certain establishments during the period of suspension. This is a social measure adopted by the State Government, the reason being that during the suspension period the employee should not suffer for want of food etc. 17. Section 4 of the Act provides for recovery of money due from an employer. The said provision is as under: “4. Recovery of money due from an employer:--Where any money is due to an employee from an employer under this Act, the employee of any other person authorised by him in this behalf, or in the case of the death of the employee, his legal representative may, without prejudice to any other mode of recovery, make an application to the Government in such manner as may be prescribed for the recovery of money due to WA.1307/08 & OP.3853/2002 5 him, and if the government, after giving the employer an opportunity of being heard in such manner as may be prescribed, is satisfied, that any money is so due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the employee from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the Governments is satisfied that the applicant had sufficient cause for not making the application within the said period.” 18. Section 4 of the Act authorises a workman or any other person authorised by him, or in the case of death of an employee his legal representatives for making an application before the State Government as provided under the Act for recovery of the amounts due from the employer. The section also states that if such an application is filed by the workman or his authorised representative or the legal representatives of the deceased workman, the State Governments shall afford an opportunity of hearing to all the parties and proceed to pass an appropriate order and then issue a certificate for that WA.1307/08 & OP.3853/2002 6 amount to the Collector who will proceed to recover the amounts due as arrears of the land revenue. 19. The first proviso appended to the Section stipulates that every application shall be made by the workman or his authorised representative or the legal representative of the deceased employee within one year from the date on which the money became due to the employee from the employer. 20. The second proviso gives the discretion to the State Government/Deputy Labour Commissioner to entertain the application, if it/he is satisfied that the applicant had sufficient cause for not preferring the application within the period stipulated under the first proviso to Section 4 of the Act. 21. The first contention of the learned counsel for the appellant is that there was inordinate delay in filing the application for payment of subsistence allowance as envisaged under the Act and therefore the Deputy Labour Commissioner was not justified in allowing the application. 22. As stated already, the Kerala Payment of Subsistence Allowance Act is a social welfare measure given to an employee/workman for payment of subsistence allowance during the period of suspension in contemplation of the departmental enquiry proceedings . Therefore the period of limitation prescribed under the Act requires to be liberally construed. Therefore the Legislature itself has incorporated proviso to Section 4 of the Act, giving discretion to the State Government/Deputy Labour Commissioner to condone the delay, if any, in WA.1307/08 & OP.3853/2002 7 making the application, if it/he is satisfied that the applicant had sufficient cause in not preferring the application within the time prescribed under the first proviso to Section 4 of the Act. 23. In the instant case, the applicant has stated before the Deputy Labour Commissioner that he was a member of one Union and he had requested that Union to make an appropriate application before the Deputy Labour Commissioner for payment of subsistence allowance and in spite of his repeated requests, the said Union had not taken any steps to make any application before the Deputy Labour Commissioner and therefore he had changed his membership from that Union to another Union and that Union had filed an application for payment of subsistence allowance as envisaged under the Act. Therefore it is stated that there was some delay in filing the application and the same requires to be condoned. 24. Keeping in view the explanation offered by the applicant, the Deputy Labour Commissioner has condoned the delay and while doing so has assigned not only cogent but also appropriate reasons. Since the findings of the Deputy Labour Commissioner in that regard are not perverse, interference with those finding is not called for in a petition under Articles 226 and 227 of the Constitution. Keeping that aspect of the matter in view, the learned single judge has rejected the first contention canvassed by the learned counsel for the petitioner/appellant. 25. It was the stand of the learned counsel for the appellant that the WA.1307/08 & OP.3853/2002 8 respondent/workman was dismissed from service on 8/3/1988 and therefore not entitled for payment of subsistence allowance. Though the said contention was taken before the Deputy Labour Commissioner, the employer had not produced any orders passed by them. It is only before this Court that they had produced Ext.P2 order which is an order of dismissal of the respondent/workman. It is the stand of the learned counsel for the respondent that the said order was not communicated to him at any point of time. Learned single Judge is satisfied that though an order might have been passed by the employer, the said order was never communicated to the respondent workman and therefore the workman is entitled for payment of subsistence allowance. 26. In our opinion, whenever an employer initiates departmental enquiry proceedings, the employer is expected to pay subsistence allowance to the workman. This view of ours is supported by the decision of the Apex Court in the case of Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. & Anr .(`1999 (3) SCC 679. In the said decision the Apex Court had held as under: “31. On joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee. The Government by providing WA.1307/08 & OP.3853/2002 9 job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like instrumentalities of the Government or statutory or autonomous corporation etc. is regulated by the terms of contract of service or service rules made by the Central or the State Governments under the proviso to Article 309 of the Constitution or other statutory rules including certified standing orders. The fundamental rights, including the right to life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chandrabhan Tale ((1983) 3 SCC 387) struck down a service rule which provided for payment WA.1307/08 & OP.3853/2002 10 of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Das Shrivastave v. State of M.P.(1973) 1 SCC 656” 27. Keeping all these aspects of the matter in view, in our opinion, the learned single Judge has rightly rejected the Original Petition filed by the employer thereby confirming the orders passed by the Deputy Labour Commissioner. 28. Having gone through the orders passed by the Deputy Labour Commissioner and also the orders passed by the learned single Judge, we are of the firm opinion that the learned single Judge has not committed any error WA.1307/08 & OP.3853/2002 11 whatsoever. Therefore interference with the said order is not called for. Accordingly, writ appeal requires to be rejected and it is rejected. 29. In view of the rejection of WA.No.1307/2006, we have no other alternative but to reject O.P.No.13853/2002 filed by the management questioning the orders passed by the Deputy Labour Commissioner for the period from 1/8/1993 to 30/9/1998. Ordered accordingly. H.L. DATTU Chief Justice A.K. BASHEER an. Judge