IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WA.No. 2450 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.33667/2004 Dated 24/09/2008 .................... APPELLANTS/PETITIONERS 2 TO 4 -------------- 1. `PHILO.V.K. W/O.O.T.FRANCIS, THURUTHIPPURAM PO., VIA., KODUNGALLOOR. 2. NENU FRANCIS, D/O.O.T.FRANCIS, THURUTHIPPURAM PO., VIA.KODUNGALLOOR. 3. NIDHIN FRANCIS, S/O. O.T FRANCIS THURUTHIPPURAM P.O. VIA KODUNGALLOOR BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): --------------- 1. THURUTHIPPURAM SERVICE CO.OP. BANK LTD.NO.1789, THURUTHIPPURAM P.O., VIA./KODUNGALLOOR. 2. JOINT REGISTRAR OF CO.OP.SOCIETIES, ERNAKULAM. ADV. SRI.P.N.MOHANAN FOR R1 R2 BY GOVT. PLEADER SMT. R. BINDU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A NO: 2450 OF 2008 ----------------------------------------------------------------------------------- Dated this the 14th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. The supplemental petitioners 2 to 4 in the writ petition are the appellants. The writ petitioner was the employee of the Secretary of first respondent co-operative society. He was placed under suspension as part of disciplinary proceedings. He claimed subsistence allowance for the period from 13.5.2003 to 29.4.2004. The society by Ext.P6 dated 3.8.2004 rejected his claim on the ground that he failed to produce non-employment certificate as contemplated under Note 3 to Rule 55 of Part I K.S.R. Aggrieved by it, the petitioner filed Ext.P7 representation before the Joint Registrar of Co-operative Societies. Thereafter the writ petition was filed seeking appropriate reliefs. One of the prayers was to direct the Joint Registrar to direct the society to pay subsistence allowance. Essentially it is a prayer for considering and passing orders on Ext.P7 by the Joint Registrar. 2. During the pendency of the writ petition the writ petitioner died. The writ petition was finally disposed of by the judgment W.A. 2450/2008 2 under appeal directing the additional petitioners to produce the required certificate under Note 3 to Rule 55 of Part I K.S.R before the bank so that it can take further action against the society to release the subsistence allowance. Aggrieved by the said direction the additional petitioners have preferred this writ appeal. They submit that going by Rule 198(6) of the Kerala Co-operative Societies Rules, it is unnecessary to produce any certificate as contemplated under Note 3 to Rule 55 of Part I K.S.R. Further, now it is impossible for the additional petitioners to get a non- employment certificate in relation to the original petitioner. 3. Learned counsel for the first respondent co-operative bank supported the judgment under appeal. 4. Rule 198(6) reads as follows:- “An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972.” Going by the above rule the persons who are not covered by payment of Subsistence Allowance Act 1972 are entitled to get W.A. 2450/2008 3 subsistence allowance at the rate payable under the Kerala Service Rules to suspended government employees. But the said rule does not stipulate that all the requirements under the KSR will mutatis mutandis apply to the employees of the co-operative societies also. 5. We are of the view that the said rule mentions only about the rate of subsistence allowance payable to employees who are not covered by the provisions of Payment of Subsistence Allowance Act. It is elementary that a person gainfully employed elsewhere or engaged in some other business and has a decent income is not eligible to get subsistence allowance. In this case the appellants would point out that the original petitioner did not have any income from his working as LIC agent. The first respondent/bank would submit that he was a crorepathy for the relevant year and, therefore, he has earned a substantial income during his suspension period. We think whether the suspended employee had reasonable income to sustain himself and his family and therefore, is ineligible to get subsistence allowance is a matter which should be considered by the Joint Registrar. The petitioner has already preferred Ext.P7 representation before the Joint Registrar. We direct the second respondent Joint Registrar to consider the claim W.A. 2450/2008 4 of the appellants for payment of subsistence allowance due for the period from 13.5.2003 to 29.4.2004, after affording an opportunity of being heard to them and the first respondent society. The parties may file additional statements, pleadings or materials before the second respondent in support of their respective claims. The said respondent shall take a decision in the matter as directed above within six weeks from the date of production of a copy of this judgment. The writ appeal is disposed of as above. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: