IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.4.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.24146 and 24394 of 2009 N.Renganathan ..Petitioner in WP:24146/2009 K.Manoharan ..Petitioner in WP:24394/2009 Vs. The District Manager Tamil Nadu State Marketing Corporation Ltd. Nagapattinam District, Thirubhuvanam Near Industrial Estate, Nagapattinam District. ..Respondent in both WPs. Prayer: Petitions under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records from the respondent relating to the order bearing Na.Ka.No.594/2008/C.V.2, dated 7.8.2008, quash the said order dated 7.8.2008 and consequently direct the respondent to provide work to the petitioners with wages for the period from 1.8.2008 to 31.10.2009 and award costs. For Petitioners : Mr.S.Ayyathurai For Respondent : Mr.J.Ravindran ORDER Both the writ petitions challenge the order dated 7.8.2008 passed by the respondent/District Manager, TASMAC. By the impugned order, the petitioner in W.P.No.24146 of 2009, who was working as a Salesman and the petitioner in W.P.No.24394 of 2009, who was working as a Supervisor of the Shop No.5620, Mayiladuthurai were informed that since they have committed grievous misconduct and during the inspection by the Superintendent of Police, Myladuthurai, it was found that they have attempted to mix water in liquor and were selling the same in the retail shop and as they were arrested and produced before the Jurisdictional Magistrate and were remanded to custody and a criminal case was also filed against the petitioners, only after the conclusion of the criminal case further action will be https://hcservices.ecourts.gov.in/hcservices/ initiated and therefore, their request on the ground that it was a false case registered against them cannot be considered by the District Manager, TASMAC. 2. Notice of motion was ordered in these writ petitions and private notice was also permitted. On receipt of the notice, Mr.J.Ravindran, learned standing counsel for the respondent appears. He also produced the written instruction received from the respondent dated 26.12.2009. 3. It is seen from the records that the petitioners were given show cause notices on 19.5.2009, proposing to terminate them from service on ground of misconduct. The said show cause notices were challenged by both the petitioners before this Court in W.P.Nos.10586 and 10562 of 2009 respectively. Both the writ petitions were allowed by separate orders dated 16.6.2009. This Court while setting aside the show cause notices dated 19.5.2009 on the ground that the relevant rules were not quoted by the respondent and no enquiry was conducted for arriving at the conclusion that the petitioners have committed contravention of rules of TASMAC, gave liberty to the respondent to take action in accordance with law and in the event of holding an enquiry, the respondent/TASMAC was directed to provide subsistence allowance in accordance with law. The petitioners have, therefore, now come forward to state that the impugned order refusing to grant work was illegal and they should be paid wages from 1.8.2008 to 31.10.2009. 4. In the written instructions, the respondent has stated that since this Court has granted liberty to the respondent/TASMAC to conduct fresh enquiry, the question of payment of subsistence allowance will arise only in the event of holding an enquiry, but in the case of the petitioners since they were paid only consolidated wages and are not regular employees on time scale and since they are engaged on temporary basis and in the absence of any rules for the appointment of TASMAC Supervisor and Salesman, no subsistence will be paid to them. In paragraph [5], a definite stand was taken which is as follows: "It is submitted that the TASMAC Salesman is being paid only consolidated pay and they not regular employees on time scales. The services of TASMAC Supervisor, and Sales man are purely temporary. There is no provision in the existing rules pertaining to the appointment of TASMAC Supervisors and Salesman, for the payment of subsistence allowance to the suspended employee. It is also submitted that the criminal case against the petitioner is still pending finalization before the Judicial Magistrate Court." https://hcservices.ecourts.gov.in/hcservices/ 5. With reference to their continuation in service, in the same page it was stated as follows: ".... it is submitted that the ad interim suspension of the petitioner is according to law in view of the criminal breach of trust and pendency of criminal case before the Judicial Magistrate Court. His continuance in the TASMAC shop will be detrimental to the public interest. His request for the reposting will be considered only if he is exonerated from the criminal charge pending trial before the Judicial Magistrate Court." 6. While the respondent may be justified in not restoring the petitioners to service pending disposal of the criminal case, with reference to non payment of subsistence allowance, already this Court has directed payment of subsistence allowance in accordance with law. Therefore, the respondent/TASMAC is attempting to take a stand that there are no rules in the Corporation which provide for subsistence allowance to workmen like the petitioners. The stand taken by the respondent only shows the utter ignorance of the various legal provisions made in law. 7. The Tamil Nadu Legislature has passed the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (Act 43 of 1981) providing for subsistence allowance in case of any workman who is suspended. Under Section 3 of Act 43 of 1981, it is stated that an employee who is placed under suspension shall, during the period of such suspension, be entitled to receive payment from the employer as subsistence allowance. The said section has delineated the rate of subsistence allowance payable to an employee. 8. The term "suspension" is defined under Section 2(g) of Act 43 of 1981, which is as follows: "Section 2(g): "suspension" means an interim decision of an employer as a result of which an employee is debarred temporarily from attending to his office and performing his functions in the establishment on the ground that – (1) an enquiry into grave charges against him is contemplated or is pending or no final order after the completion of the enquiry has been passed; or (2) a complaint against him of any criminal offence is under investigation or trial or the complaint has not been finally disposed of." 9. Therefore, a comprehensive definition of the term "suspension" and when subsistence allowance has to be paid prescribes that subsistence allowance has to be paid when an enquiry is contemplated or pending, or in the event a complaint against an https://hcservices.ecourts.gov.in/hcservices/ employee of any criminal case is pending investigation or trial. Therefore, the stand of the respondent that only for suspension pending enquiry subsistence allowance should be paid and not in cases where the employee is debarred from entering the work spot on account of the pending criminal case is contrary to Section 2(g)(2) of Act 43 of 1981. 10. The other contention that the petitioners are temporarily appointed also cannot be accepted since the term "employee" has been defined under Section 2(a) of Act 43 of 1981, which is a comprehensive definition and it is necessary to refer to the said definition which is as follows: "Section 2(a): "employee" means any person employed in, or in connection with the work or activities of, any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical, clerical or any other kind of work or activities for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person – (i) who is employed mainly in a managerial or administrative capacity; or (ii) who, being employed in a supervisory capacity draws wages exceeding three thousand and five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested to him, functions mainly of a managerial nature;" Therefore, in the light of a statutory provision like the Tamil Nadu Act 43 of 1981, there is no escape for the respondent/TASMAC from paying subsistence allowance even pending criminal investigation or trial. 11. This Court has already held in respect of TASMAC that the provisions of the Industrial Employment (Standing Orders) Act, 1946 (Act 20 of 1946) will apply to the employees engaged by the TASMAC and by virtue of Section 12A of Act 20 of 1946, the Model Standing Orders will also apply to the said employees. Under the said Act, it is immaterial whether an employee is engaged temporary, casual or permanent. But in all those cases the provisions of the Model Standing Orders will have to be applied. Under Model Standing Order 17(4)(b), an employer is bound to pay subsistence allowance. Here also the Model Standing Order contemplates payment of subsistence allowance both on the ground of disciplinary proceedings pending or criminal proceedings pending against the employee and the rate of payment of subsistence allowance is also mentioned therein. 12. Apart from these legal provisions, the Parliament has introduced Section 10A under Act 20 of 1946, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "Section 10A. Payment of subsistence allowance.— (1) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance— (a) at the rate of fifty per cent, of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and (b) at the rate of seventy-five per cent of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman. (2) If any dispute arises regarding the subsistence allowance payable to a workman under sub-section (1), the workman or the employer concerned may refer the dispute to the Labour Court, constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situated and the Labour Court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties. (3) Notwithstanding anything contained in the foregoing provisions of this section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State." 13. Therefore, every employer who is covered by Act 20 of 1946 is now statutorily bound to pay subsistence allowance whether or not there is any Certified Standing Orders available in the establishment. Though in the respondent/TASMAC there are no Certified Standing Orders, the Industrial Employment (Standing Orders) Act, 1946 will apply to them and by virtue of Section 10A of Act 20 of 1946, they are bound to pay subsistence allowance. In the light of the above, while this Court is not inclined to entertain the writ petitions to quash the order dated 7.8.2008, but nevertheless, a direction will be issued to the respondent to pay subsistence allowance in accordance with law, as indicated above, to https://hcservices.ecourts.gov.in/hcservices/ the petitioners without fail. The writ petitions are disposed of accordingly. No costs. Consequently, M.P.Nos.1 and 2 of 2009 in W.P.No.24146 of 2009 and M.P.Nos.2 and 3 in W.P.No.24394 of 2009 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To The District Manager Tamil Nadu State Marketing Corporation Ltd. Nagapattinam District, Thirubhuvanam Near Industrial Estate, Nagapattinam District. + 2 c.cs. to Mr. S. Ayyathurai, Advocate. S.R.Nos.25390 & 25391. + 2 c.cs. to Mr. J. Ravindran, Advocate. S.R.Nos.25733 & 25734. W.P.Nos.24146 and 24394 of 2009 BVR (CO) GSK 23.04.2010. https://hcservices.ecourts.gov.in/hcservices/