IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.4829 and 4830 of 2009 & M.P.No.1 of 2009 in W.P.No.4829 of 2009 and M.P.No.2 of 2009 in W.P.No.4830 of 2009 The Management of M/s.K.T.Spinning Mills Private Ltd., Veeranam Main Road, Valasaiyur Post Salem 636 122 .. Petitioner in both W.Ps. Vs. 1. The Deputy Commissioner of Labour Salem (Appellate authority under the Tamil Nadu Payment of Subsistence Allowance Act) 2. The Assistant Commissioner of Labour Salem (Authority under the Payment of Subsistence Allowance Act) .. Respondents 1 & 2 in both W.Ps. 3. A.A.Kumar .. Respondent-3 in W.P.No.4829/2009 4. R.Kesavan .. Respondent-3 in W.P.No.4830/2009 Prayer in W.P.No.4829/2009 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records from the file of the second respondent herein in P.S.AA No.1/2006 and to quash its common order dated 8.6.2006 passed in P.S.AA.No.1/2006 and No.2/2006. Prayer in W.P.No.4830/2009 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records from the file of the second respondent herein in P.S.AA No.2/2006 and to quash its common order dated 8.6.2006 passed in P.S.AA.No.1/2006 and No.2/2006. For Petitioner in both W.Ps. :: Mr.S.Jayaraman For Respondents inboth W.Ps. :: Mr.V.Subbiah, Spl.G.P. For R1 & R2 No appearance for R3 COMMON ORDER The petitioner is the management of Spinning Mill at Valasaiyur, Salem District. They have come forward to challenge an order passed by the 1st respondent appellate authority under the Payment of https://hcservices.ecourts.gov.in/hcservices/ Subsistence Allowance Act, 1981 dated 8.6.2006. It is the common order passed by the 1st respondent appellate authority in P.S.AA Nos.1 and 2 of 2006 filed by the respective contesting 3rd respondent. By the impugned order, the 1st respondent allowed the appeals filed by the 3rd respondent and set aside the order passed by the 2nd respondent in P.S.A.Nos.31 and 32 of 2004 with two separate orders dated 15.12.2005. 2. The Writ Petitions were admitted on 30.3.2009. Pending the Writ Petition, this Court granted interim stay on condition that the petitioner management pays the 3rd respondent in each of the Writ Petition 50% of the amount ordered by the 2nd respondent. Despite notice to the 3rd respondent, they have not appeared either in person or through counsel. 3. Admittedly, when both the 3rd respondents were appointed as apprentices and since they are unskilled apprentices, as per the Certified Standing Orders applicable to the petitioner mill dated 28.5.1995, the unskilled apprentices can be retained for a period of three years. However, by an order dated 13.11.1999, both the 3rd respondents were suspended. Pending the disciplinary action, they have been suspended with effect from 13.11.1999. Subsequently, they were paid for the period from 1.10.1999 to 31.10.1999 a sum of Rs.540/- towards stipend. Thereafter, a show cause notice dated 10.12.1999 was issued to both the 3rd respondents alleging certain misconduct including assault and destruction of mill property and the show cause notice referred to various provisions of the Certified Standing Orders relating to the misconduct. 4. The 3rd respondent denied the charges by identical reply dated 28.12.1999. It was thereafter, the stand of the management was that since their period of training came to an end on 31.12.1999, by a communication dated 30.12.1999, the services of the two 3rd respondents were dispensed with and they were also directed to come to the Mill to receive the balance of salary including subsistence allowance, if any. It is also claimed that the said order was sent by the certificate of posting to the respective 3rd respondent. 5. The controversies in these Writ Petitions revolve around the fact that since the 3rd respondents feigned ignorance of the said letter of dispensing their service, they filed an application before the authority under Section 4 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (for short "P.S.A. Act") claiming subsistence allowance for the period from 13.11.1999 till the date of the application, namely 16.3.2004. Since, under the provisions of P.S.A. Act, limitation has been prescribed, the two 3rd respondents filed applications to condone the delay. https://hcservices.ecourts.gov.in/hcservices/ 6. The 2nd respondent by identical orders dated 11.10.2004 in P.S.A I.A.Nos.4 and 5 of 2004 condoned the delay and thereafter the petitioner mill filed a counter statement on the merits of the case. In the counter statement, there was no disclosure about the termination order sent by the petitioner mill. On the contrary, they have stated that the workmen are no longer in the employment and they are also gainfully employed elsewhere after the suspension and they have no right to claim any amount of subsistence allowance. 7. Before the authority, on behalf of the 3rd respondent, he had examined himself as P.W.1 and on the side of the petitioner mill, one S.Elangovan was examined as R.W.1. While the workmen had filed the suspension order dated 13.11.1999 as Ex.A.1, on the side of the petitioner mill, 5 documents were filed and they were marked as Ex.R.1 to R.5. Ex.R.5 is the letter dispensing about their service as an apprentice along with the certificate of posting. The management witness R.W.1 spoke about their not being in service after Ex.R.5. 8. The 2nd respondent, without deciding the dispensation of services, entered into the context as to whether the 3rd respondent was employee within the meaning of Section 2(a) of the P.S.A. Act. He held that admittedly both the 3rd respondents were apprentices and not the workmen within the meaning of Section 2(a) of the PSA Act. Therefore, the applications were not maintainable. 9. Aggrieved by the order passed by the 2nd respondent dated 15.12.2005, the two 3rd respondents preferred appeals under Section 5-A of the PSA Act, 1981. Their appeals were taken on file by the 1st respondent as P.S.AA.Nos.1 and 2 of 2006 and Notice was ordered to the management. The appellate authority held that since the contesting respondents have joined duty in the year 1995 and the management not having proved that they are neither the permanent employee or trainee and also the date of their joining service and also the fact that their services having been dispensed with, have not been proved and such facts were not pleaded in the counter statement, it must be taken that the claim made by the contesting respondents are maintainable. Since the Ex.R.5 document was not referred to in the counter statement, that must be a got up document for the purpose of this case and in that view of the matter computed subsistence allowance for the period from 13.11.1999 to 29.2.2004 on a graded basis and arrived at total sum of Rs.66,679/- payable to each of the 3rd respondent vide order dated 8.6.2006. 10. Since the said order was not complied with, a show cause notice was issued by the 2nd respondent to the petitioner mill as to why the amounts should not be recovered as an arrear of land revenue. At this stage, the petitioner management moved this Court with the prayer as noted already. https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel for the petitioner contended that the two contesting respondents are not workmen within the meaning of Section 2(a) of PSA Act and therefore, there was no reason to reverse the finding rendered by the 2nd respondent. This Court is not inclined to consider the same. In the present case, the 2nd respondent recorded a finding that the two contesting respondents were apprentices and therefore they are not eligible for subsistence allowance. 12. Though in the Section 2(a) of PSA Act, there is no reference to apprentice in the definition of the term "employee", but merely nomenclature of a person by apprentice does not take away from the provisions of the Act. It has always been held that it is the nomenclature which is not decisive and the nature of duties alone is decisive. Under the Certified Standing Orders, the petitioner mill had also categorized the apprentice as also employees. Even in the show cause notices, which were given to them, they referred to the acts, which constituted misconduct as per list enumerated under the Standing Order No.15. The very same Standing Order under Clause No.16 (2) provides for payment of subsistence allowance, if a workman is suspended pending enquiry. 13. Further, this Court had also held that if a person is a workman for the purpose of a Standing Order framed under the Industrial Employment Standing Orders Act, 1946, then he will also deem to be a workman for the purposes of the Industrial Disputes Act, 1947. It is because the Industrial Employment Standing Orders Act, 1946 do not specifically define as to who is the workman. On the contrary, under Section 2(i) of the Act, the term wages and workman will have the same meaning under Section 2(rr) and 2(s) of the Industrial Disputes Act, 1947. If one looks into the definition of the term workman under Section 2(s) of the Industrial Disputes Act, then the term includes an apprentice. 14. Therefore, so long as a person, not an apprentice in terms of the contract of apprenticeship entered into as per the provisions of Apprenticeship Act, 1961, he will be a 'workman' for the purpose of Payment of Subsistence Allowance Act. Under the PSA Act 1981, (which is the State Legislation), the term "employee", uses similar language used under Section 2(s) of the Industrial Disputes Act. Even the term "industry" under Section 2(e) is to have the same meaning as per the definition of the term 2(j) of the Industrial Disputes Act. So long as under the PSA Act, an apprentice is not excluded from the definition of 2(a) and if they are suspended in terms of the Standing Orders, they are entitled to get subsistence allowance pending enquiry. In view of the above, the order passed by the 2nd respondent cannot be sustained on the first issue. https://hcservices.ecourts.gov.in/hcservices/ 15. But, nevertheless before the 2nd respondent, evidence was let in on the merits of the case. M.W.1 had produced Ex.R.5 along with a certificate of posting. The two contesting respondents had merely taken a technical stand that they have not received the said termination order. This Court is not inclined to accept the said explanation. Further, the fact that they had filed the subsistence allowance application after a period of 3½ years, throws suspicion on the part of the 3rd respondents. During the relevant period, they have also not sent any representation to the management about their prolonged suspension. Their taking a hyper technical stand that there was no order of termintion, cannot be accepted. 16. On the other hand, R.W.1 had produced Ex.R.5 along with the certificate of posting and the authority should have stopped the proceedings for the subsistence allowance, as they were terminated by an order dated 30.12.1999. It is for the 3rd respondent to contest for employment before the appropriate forum. Legality of the termination cannot be gone into by the authority under the PGA Act. 17. Under the circumstances, the 1st respondent had committed gross error in rendering a different finding and by also ordering subsistence allowance for a period of four years in respect of the two contesting respondents. The order passed by the 1st respondent cannot be sustained. 18. Hence, both the Writ Petitions stand allowed. The impugned order stands set aside. However, there will be no order as to costs. The connected Miscellaneous Petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Deputy Commissioner of Labour, Salem. 2. The Assistant Commissioner of Labour, Salem. 1 cc To Mr.S.Jayaraman, Advocate, SR.43700. W.P.Nos.4829 and 4830 of 2009 NM(CO) RVL 03.08.2011 https://hcservices.ecourts.gov.in/hcservices/