IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WP(C).No. 31999 of 2008(H) ------------------------------------- PETITIONER(S): ------------------------ P.MADHUSOODANAN, AGED 56, S/O. S.PONNAN PANICKER, OUR NEST TC.13/2152 -1, SWATHY LANE, KANNAMOOLA, THIRUVANANTHAPURAM (RTD SUB ENGINEER, ELECTRICAL SECTION,THENMALA, THIRUVANANTHAPURAM). BY ADVS. MR.K.S.MADHUSOODANAN MR.T.V.JAYAKUMAR NAMBOODIRI MR.THUSHAR NIRMAL SARATHY MR.M.M.VINOD KUMAR SMT.K.M.RAMYA RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDUTHI BHAVAN, PATTOM, THIRUVANANTHPURAM REP. BY SECRETARY. 2. CHIEF ENGINEER, (HRM), K.S.E.B. VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, (ELECTRICAL DIVISION), KAZHAKKOOTTAM, THIRUVANANTHAPURAM. R1 TO R3 ADVS. MR.K.S.ANIL, SC, KSEB MR. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31999/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE PUNISHMENT ORDER NO.GB2/DIS-PRO/2001-02 /KTRA/4536. P2:- COPY OF THE ORDER BEARING NO.PA III/I/PPO 36320 DT. 16.8.08 ISSUED BY THE 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.31999/2008-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of February, 2009 J U D G M E N T Aggrieved by the adjustment made by the respondents of an amount of Rs.1,30,746/- received by the petitioner as subsistence allowance from the D.C.R.G sanctioned to him, the petitioner has approached this Court. The main contention raised by the learned counsel for the petitioner is that in view of the provisions of the Payment of Gratuity Act, no such reduction could have been made. 2. The bare facts necessary for the disposal of the writ petition show the following:- The petitioner retired from service on 28/02/2007 from the post of Sub Engineer from Electrical Section, Thenmala. He was under suspension from March 1997 to October 1998. The petitioner was inflicted with the punishment of barring three increments with cumulative effect and he was directed to remit the amount of Rs.5,276/- in lump towards one third of the monetary loss sustained by the Board, and the suspension period was treated as eligible leave. Even though the punishment was set aside in O.P.No.28248/2003, the same was restored in W.A.No.1344/2006. W.P.(C) No.31999/2008 -:2:- 3. The respondents in the counter affidavit contended that when the petitioner was reinstated in service after sanctioning his eligible leave to his credit, rest of the period under suspension was considered as leave without allowance for which subsistence allowance has to be refunded. As the period of suspension was regularised as eligible leave, no leave salary can be claimed by him for leave without allowance as per Rule 56B (9) of Part I KSR. Relying upon Government Circular dated 26/11/1994 also it is clarified that once a period of suspension is converted into leave without allowance, recovery of subsistence allowance already paid is inescapable because the conversion of period of leave will have the effect of vacating the order of suspension and, hence, the subsistence allowance drawn amounting to Rs.1,30,746/- was adjusted from the D.C.R.G. 4. The learned counsel for the petitioner relied upon Rule 5 of Part I KSR the decision reported in K.S.R.T.C. vs.Vamadevan Nair [1996 (1) KLT 581], the decision of the Division Bench of this Court in Kerala State Warehousing Corporation v.Pauly John [2006 (3) KLT 27] as well as of another Division Bench decision of this Court in Kerala State Electricity Board vs. R.Mohan Kumar & another [2008 (3) KLT 73]. 5. Rule 5 of Part I KSR reads thus:- W.P.(C) No.31999/2008 -:3:- “Nothing in these rules or in any rule made thereunder shall operate to deprive any person of any right or privilege to which he is entitled:- a) by or under any law, or (b) by the terms of any contract or agreement subsisting between such person and Government on the date of these rules come into force.” 6. In K.S.R.T.C. v. Vamadevan Nair (1996 (1) KLT 581), the effect of the above rule was considered. The question was whether the provisions of Payment of Subsistence Allowance Act, 1972 could be applied in the matter of payment of subsistence allowance to the employees of K.S.R.T.C. While examining the said contention, it was held in para 4 as follows: “When the K.S.R. is adopted as part of settlement necessarily along with Rule 55 Part I, Rule 5 Part I also becomes its part. In that case, Rule 55 shall not operate to deprive any person the right or privilege to which he is entitled to under any law. Without any dispute, the Act comes within the purview of the law mentioned in Rule 5. Therefore, the provisions in the Act prevails by reason of application of Rule 5, over the provisions in Rule 55, governing the grant of subsistence allowance to respondents 1 to 9. On that ground K.S.R. cannot be applied for regulating subsistence allowance.” The position herein is similar. Therefore, whatever be the provisions of W.P.(C) No.31999/2008 -:4:- Rule 56B (9) of Part I K.S.R., it is controlled by the provisions of Rule 5 of Part I K.S.R. In that view of the matter, K.S.R. cannot be applied for regulating the subsistence allowance, as held in the above decision. The Apex Court in Municipal Corporation of Delhi v. Dharam Prakash Sharma and another (AIR 1999 SC 293) considered the applicability of Payment of Gratuity Act, being a special law, in spite of the provisions contained in the Central Civil Services (Pension) Rules, 1972. It was held that the Payment of Gratuity Act, being a special provision for payment of gratuity unless there is any provision which excludes its applicability to an employee who is otherwise governed by the provisions of the Pension Rule, it is not possible to hold that the employee of Municipal Corporation of Delhi is not entitled to the gratuity under the Payment of Gratuity Act. A Division Bench of this court in K.S.E.B. v. Mohankumar (2008 (3) KLT 73), examined the same question. It was held that “the employees of the Corporation, by no stretch of imagination can be employees of the State Government. Section 14 of the Payment of Gratuity Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or in any instrument or contract having effect by virtue of any enactment under the Act................ Payment of Gratuity Act, 1972 being a special W.P.(C) No.31999/2008 -:5:- provision, shall have an overriding effect over any scheme that might have been adopted by the concerned employer, and even if the benefit is availed of under the concerned scheme, the employee would be entitled for payment of gratuity under the Act.” Accordingly, it was held that the provisions of Gratuity Act will prevail over Part III K.S.R. 7. Going by Section 14 of the Payment of Gratuity Act, the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act or in any instrument or contract having effect by virtue of any enactment other than the said Act. Therefore, the provisions of Payment of Gratuity Act will override the provisions of K.S.R. 8. A Division Bench of this court in Kerala State Warehousing Corporation v. Pauly John (2006 (3) KLT 27) examined the question whether in respect of an employee who is governed by the Payment of Subsistence Allowance Act, 1972 any refund of subsistence allowance could be ordered or the employer could be asked to recover the same. It was held in para 6 that “normally the appellant being an industrial establishment, in the matter of subsistence allowance, the Payment of Subsistence Allowance Act, 1972 governed them. Payment of subsistence allowance is obligatory and Section 3(2) of the Act lays down that an W.P.(C) No.31999/2008 -:6:- employee is not to refund subsistence allowance received by him at all.” While examining the contention under Rule 56B of Part I K.S.R. which authorises the employer to issue orders of recovery, it was held in para 8 that “when a special statute governs the parties, contracting out is not permissible.” 9. After referring to the various aspects covered by the said Act, it was also held that “as far as an industrial employee is concerned, standing orders or conditions of service governing him have to be applied for regularising his period of enforced absence. But that should not authorise an employer to contravene the provisions of the Payment of Subsistence Allowance Act, and to go on with recovery steps.” 10. Even though the decision of the Division Bench of this Court reported in K.S.E.B's case in [2008 (3) KLT 73] is pending in the appeal before the Apex Court, the same need not bar this Court from considering the matter in the light of the provisions of Rule 5 of Part I KSR. The learned counsel for the petitioner is right in submitting that going by Rule 5 of Part I KSR, the right of petitioner under any other law cannot be deprived by the operation of the provisions of this Rule. If that be so, the contention raised by the respondents that Rule 56 B (9) of Part I KSR will apply, cannot be accepted. Apart from the amount that is sought to be recovered, W.P.(C) No.31999/2008 -:7:- there are other items covered by Ext.P2. The same are not challenged in this writ petition and the claim is confined to the amount that is paid as subsistence allowance for the period from March 1997 to October 1998. Therefore, the action taken by the authorities to recover the subsistence allowance paid, from the D.C.R.G., is illegal. There will be a direction to the respondents to release the said amount within a period of one month from the date of receipt of the copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms