IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WA.No. 1139 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.26909/2008 Dated 27/01/2009 .................... APPELLANT/ 2ND RESPONDENT ---------------------------- PUNUKKANNOOR DESHABIVARDHINI SERVICE CO-OPERATIVE BANK LTD. NO. 2745, PERUMPUZHA.P.O, REPRESENTED BY ITS PRESIDENT, PUNUKKANNOOR, PERUMPUZHA.P.O, KOLLAM. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENTS/ PETITIONERS AND IST RESPONDENT ----------------------- 1. INDRASENAN, SECRETARY, (UNDER DISMISSAL), PUNUKKANNOOR DESABHIVARDHINI SERVICE CO-OPERATIVE BANK LTD. NO. 2745, VAROOR NAVANEETHAM, PERUMPUZHA.P.O, KOLLAM. 2. K.G. RAMADEVI, CELRK-CUM-CASHIER (UNDER DISMISSAL), PUNUKKANNOR DESABHIVARDHINI SERVICE CO-OPERATIVE BANK LTD., NO. 2745, GANGA, KARICODU T.K.M.C. P.O, KOLLAM. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM. SPL.GOVT.PLEADER, SMT.A.G.ANEETHA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.1139 OF 2009 ------------------------------- Dated this the 3rd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The 2nd respondent in the writ petition is the appellant. Respondents 1 and 2 were the writ petitioners. They approached this Court, seeking the following reliefs: “(1) declare the petitioners suspension after the popular committee came into office since no order of suspension is issued and no prior sanction is obtained from the Registrar as provided in Rule 198 (b) is illegal. (2) to declare that the petitioners are entitled to full wages and other perquisites attached to their posts since the continued suspension after the popular committee came into office is illegal and irregular and direct the authorities to disburse the amount due to them within a time frame. (3) To direct the 1st respondent to take further action as contemplated under section 68 of the Co-operative Societies Act basing on the report submitted under section 65 of the Co-operative Societies Act against those persons who are found to be responsible for the loss sustained by the bank.” W.A.No.1139/2009 2 2. The learned Single Judge, who heard the writ petition, did not grant any of the reliefs. But, issued the following directions: “12. Hence, this writ petition is ordered directing that subsistence allowance due to the petitioners in accordance with Rule 198 (6) of the Act or Section 3 of the Subsistence Allowance Act, as the case may be, from the date of their placement under suspension, shall be released to them, after giving due credit to all amounts already released. Let this be done within a period of two months from the date of receipt of a copy of this judgment.” 3. The above quoted paragraph of the judgment would show that the learned Single Judge has only directed to pay the subsistence allowance due to the writ petitioners after giving credit to the amounts already paid to them. Even in the absence of any direction from this Court, the appellant Society is bound to pay the amount. But, challenging the said direction, this writ appeal is filed by the Society. 4. The learned counsel for the appellant submitted that by the commissions and omissions of respondents 1 and 2/writ petitioners, the Society has suffered substantial loss. Therefore, W.A.No.1139/2009 3 the Society is entitled to adjust the subsistence allowance payable to them towards the aforementioned liability. In support of the submission, the learned counsel for the appellant relied on Rule 55 of Part 1 of the Kerala Service Rules. The said provision will not apply to the 2nd respondent, who is an employee governed by the provisions of the Kerala Payment of Subsistence Allowance Act, 1972. But, the Secretary of a Co-operative Society, who is not covered by the provisions of the said Act, is entitled to subsistence allowance as provided at the rate admissible to State Government employees as provided under the Kerala Service Rules. The above stipulation is contained in the proviso to Rule 198(6) of the Kerala Co-operative Societies Rules. The said proviso reads as follows: “198. Disciplinary Action:- (1) ......................... (6) An authority to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months W.A.No.1139/2009 4 at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973) Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules]” 3. Going by the above proviso, it is open to doubt whether all the provisions contained in the K.S.R concerning payment of subsistence allowance to a suspended employee are applicable to the employees of the Co-operative Societies not covered by the Kerala Payment of Subsistence Allowance Act. But, according to the appellant, Rule 55 is applicable to the 1st respondent in this case. The relevant portion of Rule 55 of Part I of the K.S.R reads as follows: W.A.No.1139/2009 5 “55. An Officer under suspension or deemed to have been placed under suspension by an order of the Appointing Authority is entitled to the following payments: * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Note 2. (a) Deductions shall be made from the Subsistence Allowance on account of the following: (i) Income Tax and Super Tax (provided the employee's annual income calculated with reference to the Subsistence Allowance is taxable). (ii) House rent and allied charges i.e., electricity, water, furniture etc. (iii) Repayment of loans and advances taken from Government at such rates as the Head of the Department deems appropriate. (iv) Amounts due to Co-operative Stores and Co-operative Credit Societies. (G.O.(P) 141/72/Fin. dated 12th May, 1972] (v) Subscription to the Family Benefit Scheme, if the officer is a subscriber to the scheme. (vi) Subscription to the Group Insurance Scheme, if the officer is a subscriber to the scheme. W.A.No.1139/2009 6 (b) Deduction on account of the following shall be optional:- (i) Premia due to Postal Life Assurance Policies and State Life Insurance Policies - (Official Branch) (ii) Refund of advances taken from General Provident Fund. The written consent of the officer should be obtained in the case of these optional deductions. (c) Deductions of the following nature should not be made from the Subsistence Allowance:- (i) Subscription to a General Provident Fund. (ii) Amount due to Court attachments. (iii) Recovery of loss to Government for which an officer is responsible.” The learned counsel for the appellant relied on sub- clause (iv) of clause (a) of Note 2 in support of his submission. But, we notice that in view of sub-clause (iii) of clause (c) of Note 2, recovery of loss caused to the Society is not permissible. The W.A.No.1139/2009 7 above sub-clause expressly prohibits deduction from subsistence allowance, the loss caused to the Government for which the delinquent is responsible. When the said rule is applied mutatis mutandis to the Co-operative Societies, recovery of the loss caused to the Co-operative Society from the 1st appellant is also not permissible. So, even assuming that Rule 55 is applicable, the same will not enable the Society to recover any loss caused to the Society by the 1st respondent, from his subsistence allowance. In the case of the 2nd respondent undisputedly adjustment of subsistence allowance towards the loss sustained is impermissible. So, we find nothing illegal with the direction issued by the learned Single Judge. In the result, the writ appeal is devoid of any merit and it is accordingly dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps