IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WP(C).No. 32638 of 2006(I) --------------------------------- PETITIONER(S): --------------- MYLAKKAD MILK CO-OPERATIVE SOCIETY, Q-258, MYLAKKAD, KOTTIYAM P.O., KOLLAM REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.V.RAJASEKHARAN PILLAI RESPONDENT(S): --------------- 1. THE DEPUTY LABOUR COMMISSIONER, KOLLAM. 2. S.RAJU, THAZHEVILA PUTHEN VEEDU, MYLAKKAD, THAZHUTHALACHERRY, KOLLAM. BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32638 of 2006(I) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ARBITRATION AWARD IN ARC NO.6/2001 27-4-2005 EXT.P2; COPY OF COMPROMISE PETITION IN ARC NO.6/2001 DATED 9.3.2005. EXT.P3: COPY OF APPLICATION FILED BY R2 BEFORE R1. EXT.P4: COPY OF OBJECTION FIELD BY THE PETITIONER. EXT.P5: COPY OF ORDER PASSED BY R1 DATED 8.11.2006 IN SA NO.8/2005 BEFORE THE LABOUR COMMISSIONER KOLLAM. RESPONDENTS' EXHIBITS: NIL TRUE COPY PA TO JUDGE. acd S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.32638 of 2006 ---------------------------------------------- Dated this the 20th day of September, 2011 JUDGMENT The petitioner is a Co-Operative Society. They placed the 2nd respondent, an employee of the Society, under suspension pending disciplinary proceedings. The 2nd respondent filed an application before the 1st respondent for subsistence allowance for the period from October 2004 to February 2005, during which period he was kept under suspension. The 1st respondent passed Ext.P5 order directing payment of subsistence allowance amounting to Rs.11,250/- to the 2nd respondent. That is under challenge in this writ petition. 2. The petitioner raises three grounds for challenging Ext.P5. First is that the 2nd respondent as the Secretary of the Society is not an employee as defined under the Kerala Payment of Subsistence Allowance Act, 1972. The second is that, as per an agreement between the Society and the 2nd respondent, the 2nd respondent had agreed to reimburse certain amounts W.P.(C)No.32638/06 2 misappropriated against which amount the subsistence allowance has to be adjusted. The third is that since the 2nd respondent was employed as a dealer in cements of the RAMCO Cements, the 2nd respondent is not entitled to subsistence allowance in view of the proviso to Section 3(b) of the Act. 2. I have heard both parties. As far as the first contention is concerned, the petitioner themselves in paragraph 3 of the writ petition specifically stated that the 2nd respondent was a Junior Clerk, who was put in charge of the functions of the Secretary. The being so, there is no merit in the first contention, insofar as the 2nd respondent was only a Junior Clerk. As far as the 2nd contention is concerned, no amount can be adjusted from subsistence allowance as is clear from Section 3(2) of the Act, which stipulates as follows: “3. Payment of subsistence allowance.-(1) xxx xxx xxx xxx (2) An employee shall not in any event be liable to refund or forfeit any part of the subsistence allowance admissible to him under sub-section (1), but when an employee is exonerated of the charge which caused his suspension, the subsistence allowance paid to him for any period shall be adjusted against the full wages admissible to him for the same period.” Therefore, even if the 2nd respondent has agreed to reimburse W.P.(C)No.32638/06 3 any amount allegedly misappropriated by him, the subsistence allowance cannot be either reduced or forfeited on that ground. 3. I do not think that the agency taken by the 2nd respondent for sale of RAMCO Cements would come within the proviso to Section 3(1)(b). Section 3(1) reads as follows: “3. Payment of subsistence allowance.-(1) Whenever an employee is placed under suspension, he shall be paid by the employer for the period during which he is under suspension subsistence allowance of an amount equal to fifty per centum of the wages which the employee was drawing immediately before such suspension: Provided that,- (a) Where the period of suspension exceeds ninety days, the amount of subsistence allowance shall, for the period exceeding ninety days, be seventy five per cent of the wages; and (b) Where the period of suspension exceeds one hundred and eighty days, the amount of subsistence allowance shall, for the period exceeding one hundred and eighty days, be equal to the wages which the employee was drawing immediately before such suspension: Provided further that an employee shall not be entitled to any subsistence if he accepts employment during the period of suspension in any establishment other than the establishment where he had been working immediately before his suspension.” (underlining supplied) As a dealer in cements, the 2nd respondent does not accept any employment in any establishment. Therefore, the agency does not come within the purview of the proviso to Section 3(1) of W.P.(C)No.32638/06 4 the Act. As such there is no merit in the third contention as well. In the above circumstances, there is no merit in the writ petition and accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.32638/06 5