IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.2.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.5693 of 2000 The President, Melur Primary Agricultural Co-operative Bank I.I.622, Melur and Post, Kallakurichi Taluk. .. Petitioner -vs- 1.Rajendran 2.The Deputy Commissioner of Labour Court (II Deputy Commissioner), Chennai-6. .. 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 relating to P.S.A.No.62 of 1998 dated 07.10.1999 on the file of the second respondent herein and quash the same. For petitioner : Mr.T.Dhanyakumar ***** O R D E R The petitioner is a Primary Agricultural Co-operative Bank, Melur at Kallakurichi Taluk. Aggrieved by the order dated 07.10.1999 in P.S.A.No.62 of 1998 passed by the second respondent, the present writ petition has been filed. 2. The first respondent was employed as an Assistant Secretary in the petitioner society and he was placed under suspension from 28.4.1998. He was not paid subsistence allowance for the period from 28.4.1998 to 31.10.1998 despite demanding the same. Therefore, he moved the second respondent authority seeking subsistence allowance from the petitioner society. His application was taken on file as P.S.A.No.62 of 1998 and notice was issued to the management. The management took up the stand that the Subsistence Allowance Act was meant to provide subsistence allowance and not to make unjust enrichment from the management. The first respondent was guilty of serious misconduct of misappropriation and, therefore, he should not https://hcservices.ecourts.gov.in/hcservices/ be paid any subsistence allowance. Further, he was also not a ''workman'' within the meaning of the Act. Since the petitioner was working elsewhere he is not eligible for any allowance and in terms of Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988 the petitioner is eligible for only 50% of his wages. The workman filed a rejoinder denying the fact that he was employed in a supervisory capacity. The authority came to the conclusion that the Act applies to the petitioner and in so far as he is kept under suspension pending enquiry he is eligible for subsistence allowance. In that view of the matter, he calculated the subsistence allowance as per the Act. 3. Even though as against the order of the second respondent, the petitioner has a right of appeal under Rule 5A of the Tamil Nadu Payment of Subsistence Allowance Rules, 1981 to the Deputy Commissioner of Labour, the petitioner has not chosen to prefer any appeal and has straightaway filed the present writ petition. But in the description of parties, the petitioner has wrongly described that the impugned order, as if it has been passed by the Deputy Commissioner of Labour. But it has been passed only by the Assistant Commissioner of Labour, who is the original authority. 4. In any event, the writ petition was admitted on 06.1.2003 and pending the writ petition this Court rejected the stay application filed by the petitioner society. A perusal of the impugned order clearly shows that the original authority had applied his mind in deciding that the first respondent was a workman covered by the Act and that the provisions of the Tamil Nadu Act 43 of 1981 will apply to the case of the petitioner. But the question whether the Rule 149 of the Tamil Nadu Co-operative Societies Rules will prevail over the provisions of the Tamil Nadu Act 43 of 1981 came up for consideration before a Division Bench of this Court presided by F.M.Ibrahim Kalifulla, J. in M.Kanagasabapathy -vs- The Special Officer, Pothanur Primary Agricultural Co-operative Bank Limited and others reported in 2007 (5) CTC 392. In paragraph Nos.60 and 61 it has been observed as follows:- Para 60. In fact, under Section 75 of the Act, though there is a provision providing for suspension of an employee, there is no specific provision as regards the manner in which an employee placed under suspension pending enquiry is to be dealt with. To be more specific, there is no provision in the Act providing for the manner in which payment of subsistence allowance has to be made during the period of suspension pending enquiry. Whereas under Act 43 of 1981 what is left out in the Act 30 of 1983 has been specifically taken care of, namely, the payment of subsistence allowance in respect of an ''industrial establishment" which term takes within its fold even a registered Co-operative Society https://hcservices.ecourts.gov.in/hcservices/ governed by the provisions of Act 30 of 1983. Therefore, when it comes to the question of payment of subsistence allowance, it can be safely held that Act 43 of 1981 being a special legislation on the subject would alone govern and in that respect Act 30 of 1983 would become a general enactment, having regard to the applicability of the maxim 'generalia specialibus non derogant'. When we approach this issue from the other angle as to whether there is any specific provision in the Act 30 of 1983 by way of non-obstante Clause, it will have to be held that there is no such specific provision which would exclude the applicability of the Act 43 of 1981 to any Co-operative Society. In this context, when we apply the decision of the Hon'ble Supreme Court reported in Major E.G.Barsay -vs- State of Bombay, AIR 1961 SC 1762, having regard to the fact that there is no non-obstante Clause in the Act 30 of 1983 and by virtue of the fact that the Act 43 of 1981 being special enactment earlier in point of time Act 43 of 1981 alone would prevail. Para 61. One other aspect, which is also to be examined is that there are provisions in the bye-laws of the Co- operative Society which provides for payment of subsistence allowance. As far as the applicability of the bye-laws are concerned, having regard to the categoric decision of the Hon'ble Supreme Court reported in Co-operative Central Bank Ltd. And others, etc. -vs- Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others etc. AIR 1970 SC 245, that bye-laws of a Co-operative Society framed in pursuance of the provisions of the Act cannot be held to have the force of law, it will have to be held that the same would not in any way impinge upon the specific provision contained under the Act 43 of 1981 providing for payment of subsistence allowance. In fact the Hon'ble Supreme Court in the said decision, apart from stating that the same has no statutory force also held that such bye-laws of the society are similar in nature to the Article of Association of a Company incorporated under the Companies Act and therefore, it has no force of law. Similarly, comparison was also made with the Standing Orders under the Industrial Employment Standing Orders Act, where again, it was held that though such Standing Orders are binding on the employer and employee of an industry, they do not have the force of law. Therefore, when it is well settled that bye- laws of the Co-operative Society have no force of law, the same cannot stand the scrutiny when it comes https://hcservices.ecourts.gov.in/hcservices/ to the question of applicability of Act 43 of 1981. We are therefore, of the firm view that Act 43 of 1981 being a special enactment specifically enacted to deal with the payment of subsistence allowance during the period of suspension pending enquiry, which act being earlier in point of time as compared to the Act 30 of 1983 which should be construed as a general enactment in the present context, Act 43 of 1981 alone would prevail." 5. However, in a recent decision of another Division Bench presided by D.Murugesan, J. in I.I.558 Kuthiraichandal Primary Co- operative Bank Limited rep.by its Special Officer, Kuthiraichandal Post -vs- A.Asokan and another (W.A.No.750 of 2007 dated 12.11.2008) in paragraph No.9 it was held as follows:- ''9. A combined reading of Clause (a) and (c) of Section 2 of the Subsistence Allowance Act, shows that the provisions of the Act, will be applicable only in respect of employees employed in an Industrial Establishment and not otherwise. An employee of Co-operative Bank is not entitled to the benefit of the subsistence allowance Act, as he is not an employee employed in, or in connection with any work or activities of the establishment to do any skilled or semi- skilled, etc. work and the Co-operative Bank also cannot be termed to be an establishment within the definition of Clause (c) of Section 2 of the Subsistence Allowance Act. Hence, the employee of a Co-operative Bank is not entitled to payment of subsistence allowance as per the Subsistence Allowance Act. The term ''employee'' under the Subsistence Allowance Act, does not include ''the Secretary" as well. Hence, the claim for payment of subsistence allowance by the Secretary of the Primary Agricultural Co-operative Bank, on the basis of payment of Subsistence Allowance Act, cannot be conceded". 6. The two Division Benches while dealing with the issue of application of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 in relation to the Co-operative Societies have taken diametrically opposite views. This will have to be resolved by a larger bench of this Court in a future occasion. 7. In the present case, the only contention raised by the petitioner management was the non-application of the T.N.Act 43 of 1981 and it is covered by the judgment in Kanagasabapathy's case (cited supra). Therefore, since that is the point that has been raised, this Court is not inclined to refer the matter to the Hon'ble Chief Justice for referring the issue to a larger bench. https://hcservices.ecourts.gov.in/hcservices/ 8. In view of the above, the writ petition stands dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js To The Deputy Commissioner of Labour Court (II Deputy Commissioner), Chennai-6. W.P.No.5693 of 2000 SA(CO) SRA(7/03/2009) https://hcservices.ecourts.gov.in/hcservices/