IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.17458 of 2000 0.838 Ambasamudram Agriculture Produers Co-operative Marketing Society Limited, 206, Pudugramam Street, Ambasamudram 627 401 Rep. By its Special Officer. ... Petitioner Vs 1.The Assistant Commissioner of Labour, (Controlling Authority under the Payment of Subsistence Allowance Act) Tirunelveli. 2.The Deputy Commissioner of Labour, (Appellate Authority under the Payment of Subsistence Allowance) Tirunelveli. 3.P.Sankaranarayanan ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, to call for the records of the second respondent in PSA No.6/99 to 13/99 and quash its order dated 01.06.2000. For Petitioner : Mr.John for M/s.T.S.Gopalan & Co. For Respondents : Mrs.Anitha,G.A. For R1 and R2 Mrs.Sudarshana Sundar for Mr.M.V.Venkataseshan for R3 O R D E R The writ petition is filed by Agriculture Producers Co- operative Society represented by its Special Officer, challenging the order passed by the second respondent in PSA Nos.6/99 to 13/99 and seeks for setting aside the order dated 01.06.2000. 2. By the impugned order, the second respondent, who is the Appellate Authority under the Payment of Subsistence Allowance Act, 1981 (for short PSA Act) allowed the appealS preferred by the third https://hcservices.ecourts.gov.in/hcservices/ respondent in PSA Nos.6/99 to 13/99 and directed them to pay a sum of Rs.56,799/- towards the subsistence allowance. 3. The writ petition was admitted on 16.10.2000. Pending the writ petition, an order of interim stay was granted on condition that 50% of the amount ordered by the authority should be deposited within four weeks. 4. Subsequently, when the matter came up on 03.09.2003, this Court held that if the condition imposed by this Court was complied with, the stay will be made absolute and if it is not complied with, then the stay order will stand vacated. 5. On behalf of the third respondent, a counter affidavit dated 09.02.2010 was filed. Since entire documents were not enclosed in the typed set of papers filed by the petitioner Society, this Court directed the learned Government to produce the original records relating to the impugned proceedings. 6. The case of the petitioner Society was as follows:- The petitioner Society engaged the third respondent as a Clerk in their Book Depot. During March 1989, it was brought to their notice that the third respondent had committed irregularities including criminal breach of trust causing loss to the extent of Rs.1.38 lakhs. On 30.03.1989, he was suspended pending enquiry. He was also given charge memos dated 30.03.1989 and 27.07.1989. However, no enquiry was conducted till 1997 claiming that there were various circumstances which were also attributable to the third respondent and that circumstances were beyond the control of the petitioner Society to hold on enquiry. It was also claimed that during the proceedings, the third respondent did not claim subsistence allowance since he was gainfully employed during the above period by engaging himself in various commercial establishments for remuneration. Finally, an enquiry was held after nine years on 04.02.1998 and had completed on 08.09.1998. It was during that time the third respondent preferred various applications before the first respondent authority under the PSA Act claiming the subsistence allowance. They were ordered as P.S.Case Nos.29/97, 5/98, 9/98, 16/98, 19/98, 27/98, 35/98 and 39/98. It was contended by the petitioner Society that the respondent had made himself scarce and did not submit the entire record to the society. Since he did not contact the Management, the subsistence allowance was not paid. 7. The authority by an order dated 02.09.1998 directed the following amounts to be paid to the third respondent: P.S.Case No.5/98 - Rs.535/- No.9/98 - Rs.535/- No.16/98 - Rs.535/- No.19/98 - Rs.535/- https://hcservices.ecourts.gov.in/hcservices/ In these four orders, the period of subsistence allowance was covered for the period from 01.01.1998 to 30.04.1998. But in respect of the period covering from 30.03.1989 to 12.10.1997, since there was a delay in filing the application, the condone delay application was filed and subsequently, it was numbered as P.S.A.No.11/98. For the subsequent period, from 01.06.1998 to 30.06.1998, P.S.A.No.27/98 was filed. The authority after referring to the evidence on record and the counter statement and arguments found that in terms of Section 3(2) of the Act, if a worker is suspended and he was also gainfully employed, he is not eligible for any subsistence allowance. In the evidence and cross examination, the third respondent had stated as follows: "ve;j tpj bghWg;g[k; ,y;yhj mYtyf gzp ghh;j;jjhf bjhptpj;Js;shh;/" i.e. he was employed in a post not involving responsibility. Therefore, when this was pointed out in the arguments of the petitioner Society, it was held that he is not eligible for any subsistence allowance. Similar orders were made in PSA Nos.35/98, 39/98, 11/98 and 29/97. As against the orders passed by the authority, appeals were filed before the second respondent appellate authority under the PSA Act. The Appellate Authority passed a common order dated 01.06.2000 and allowed all the appeals. 8. The Appellate Authority found that it was the petitioner Society which was responsible in not conducting the enquiry from 30.03.1989 to 06.01.1998 and thereby there was a delay of nine years. In the enquiry, the charges levelled against the against the third respondent was not proved was admitted by the witness examined by the Department. The third respondent's statement that he had not worked in any other place was also not controverted by the petitioner Society either by way of documents or oral evidence. Merely relying upon the statement that the third respondent had worked during the suspension period in a post without any responsibility the original applications were rejected. It was claimed that no employer including the petitioner Society will not engage any person without giving responsibility. Once there is a post, there will always be responsibility. This admission cannot be a proof for to hold that the third respondent was gainfully employed. Therefore, the third respondent was entitled for the subsistence allowance as prayed for by him and the amount has also been computed. 9. Attacking the impugned order of the second respondent appellate authority, the main contention raised by the petitioner society was that there was a clear admission by the third respondent about the gainful employment of the third respondent and therefore, the authority had erred in rejecting the contention of the petitioner society. 10. In the statutory form prescribed under the PSA Act, there is no column with reference to any employment during the period of suspension. Therefore, there was no occasion for the third respondent to take a stand as to whether he was gainfully employed https://hcservices.ecourts.gov.in/hcservices/ so as to be disqualified from getting his subsistence allowance. If at all if there were any defence, it should have been raised by the petitioner society in their counter statement. In their counter statement, no contention was raised that the petitioner was gainfully employed during the period of suspension. On the contrary, they had merely stated that after the suspension, the third respondent had made himself scarce and never contacted the society. It was recorded that he was in a post without responsibility. Such a statement made in Tamil can also mean that the person was employed in an honorary capacity. Therefore nothing turns out from the so called admission by the third respondent that he was employed gainfully so as to earn the disqualification provided under Section 3(2) of the PSA Act. The second respondent appellate authority had clearly stated that there should be a specific stand by the Management about the third respondent being employed. The term "poruppu" (bghWg;g[) in Tamil also means not only responsibility but also (bfsutk;) meaning status. Therefore, with an isolated statement found in cross examination, it cannot be held that the third respondent was employed gainfully for a period of nine years so as to incur the disqualification provided under the Act. On the contrary, the very same authority by his orders dated 02.09.1998 in respect four applications had directed payment of subsistence allowance in respect of four months. 11. Mr.John, learned counsel appearing for M/s.T.S.Gopalan and Co., for the petitioner Society submitted that the burden of proof that a person was not gainfully employed after his termination heavily lies on the workman. For this purpose, he placed reliance upon the judgment of the Supreme Court in Kendriya Vidyalaya Sangathan v. S.C. Sharma,(2005) 2 SCC 363. In that case, the Management raised the following contention which is recorded in paragraph 10 and it is as follows: "Whether after dismissal a person is gainfully employed is within his special knowledge and without any pleadings or evidence direction for back wages could not have been given. It was further submitted that the direction for payment should have been made conditional till the final decision in the disciplinary proceedings which the appellant intended to take." 12. The finding of the Supreme Court on this question is found in paragraph 16, which is as follows: "That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed https://hcservices.ecourts.gov.in/hcservices/ any material in that regard." 13. He also relied upon another decision of the Supreme court in Municipal Council, Sujanpur v. Surinder Kumar reported in 2006 (2) L.L.J 768. In paragraph 13, it was held as follows: "13. Equally well settled is the principle that the burden of proof, having regard to the principles analogus to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. [See Manager, Reserve Bank of India, v. S.Mani & Ors., 2005 (5) SCC 100 : 2005-II-LLJ-258]" 14. Similar view was taken by the Supreme Court in the subsequent judgment in Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar reported in (2008) 9 SCC 486. In paragraph 13, it was observed as follows: "13. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the employee concerned was in fact gainfully employed." 15. On the question of burden of proof to prove that person is not gainfully employed the burden is placed upon the Workman. It is necessary to refer to the legal provisions found in the PSA Act in this regard. The decisions relied on by the learned counsel for the Management arose out of adjudication on the question of termination and the backwages to be payable in case of relief to be granted by this Court as well as cases involving payment under Section 17B of the I.D.Act. But under the PSA Act, the term 'suspension' is defined under Section 2(g). Section 3(1) provides for entitlement to get subsistence allowance in case of such suspension. Since reliance is placed upon Section 3(2), it may be usefully extracted below: "An employee shall not be entitled to receive any subsistence allowance if he accepts any other employment during the period of his suspension in any establishment other than the establishment where he had been working immediately before his suspension". 16. However, in Section 3(4) the obligation to make payment in case of suspension heavily lies on the employer. Section 3(4) reads as follows:- "The subsistence allowance under Sub-Section (1) https://hcservices.ecourts.gov.in/hcservices/ shall be paid by the employer to the employee on the date or dates on which the wages due to the employee, but for his suspension would have become payable." 17. Under Section 4, an aggrieved employee is entitled to complain to the authority by making an application in the manner prescribed by the Act. The Rules have been framed under Section 12 of the PSA Act. Under Rule (3) the employer is bound to pay subsistence allowance either in person or by postal money order. The employer is also bound to maintain a register in Form I with reference to the payment of subsistence allowance and the signature of the employee should be obtained in the said register. Under Rule 4, every employer has to send half yearly returns to the Deputy Commissioner of that region not later than 15 days' from the close of the half year in Form II. Under Rule 5 for recovery of any due from the employer, a suspended employee has to submit an application in duplicate in Form III by the employee directly or in Form IV if it is send by the Legal Representatives of the employee in Form III or in Form IV. There is no column which required an employee to affirm that during the period of suspension that he was not gainfully employed. There was no occasion for an employee to indicate in the absence of any declaration to that effect. Therefore, when the third respondent made an application, there was no occasion for him to either disclose about his gainful employment. 18. If at all any question with reference to disqualification under Section 3(2) regarding gainful employment, it has to be raised only in the counter pleadings/written statement by an employer so as to make it triable by the authority. In the present case, in the counter statement filed by the petitioner Management no such plea was raised so as to make the burden of proof being shifted on the third respondent to disprove that he was not employed anywhere so that he can be disqualified from receiving the subsistence allowance claimed by him. 19. As held by the Supreme Court that only in the case of such a pleading the question of burden of proof will be shifted to the employee to disprove that he was not employed anywhere. For a stray sentence in the cross examination which in Tamil was susceptible for different meaning viz., employed in the post without responsibility or employed in honorary capacity as the case may be, no advantage can be taken by the petitioner Management. The issue relating to gainful employment has to be proved with legal evidence. 20. In this very same case, in the series of orders dated 02.09.1998 the very same authority had computed subsistence allowance which are not subject matter of any appeal. Therefore, if after after April 1998, the workman had taken up any employment, necessary details should have been furnished by the Management rather than taking undue advantage of a vague sentence which can also be interpreted differently. A reading of the P.S.Act, Rules https://hcservices.ecourts.gov.in/hcservices/ as well as the Form prescribed thereunder do not indicate that there was an initial burden on the workman to state about his gainful employment. If a column to that effect was introduced in the Form and if the workman in his verification column made a false statement that would have certainly disentitled from receiving any amount. It is for the authorities to introduce such a column in the statutory form prescribed so that the initial burden can be thrust on the employee claiming subsistence allowance. The decisions relied on by the learned counsel for the petitioner Management has no application to the case on hand. Even otherwise there is no evidence to hold that the third respond was gainfully employed so as to be disqualified to receive any subsistence allowance ordered by the second respondent. 21. The order of the second respondent does not suffer from any infirmity or illegality. Hence, the writ petition stands dismissed. However, there will be no order as to costs. In view of the dismissal of the writ petition, it is open to the third respondent to withdraw the amount lying in deposit with the official respondents and also to claim the balance from the petitioner Society. The petitioner Management shall comply with the order within a period of 12 weeks from the date of receipt of a copy of this order. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar svki To 1.The Assistant Commissioner of Labour, (Controlling Authority under the Payment of Subsistence Allowance Act) Tirunelveli. 2.The Deputy Commissioner of Labour, (Appellate Authority under the Payment of Subsistence Allowance) Tirunelveli. 1 cc to Mr.M.V.Venkataseshan, Advocate, Sr.No.40281 1 cc to Mr.T.S.Gopalan & Co. Advocate, Sr.No.40393 order in W.P.No.17458 of 2000 AKR {CO} TP/17.6.2010. https://hcservices.ecourts.gov.in/hcservices/