IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.24116 of 2001 The Superintending Engineer Salem Electricity Distribution Circle Tamil Nadu Electricity Board K.N.Colony Post, Salem – 636 014. .. Petitioner Vs. 1. M.Palani 2. The Assistant Commissioner of Labour Sankar Nagar, Salem – 7. 3. The Deputy Commissioner of Labour Sankar Nagar, Salem – 7. .. Respondents Prayer: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the third respondent relating to PSAA 26 of 1999 and its award dated 16.4.2001 and quash the same. For Petitioner : Mr.B.Sekar For Respondents : Mr.B.T.Seshadri for 1st respondent Mr.N.Senthil Kumar Government Advocate for respondents 2 and 3 ORDER The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem is the writ petitioner. The present writ petition has been filed against the order passed by the third respondent/Appellate Authority under the Tamil Nadu Payment of Subsistence Allowance Act (for brevity, "Tamil Nadu Act 43 of 1981"). By the order passed by the third respondent/Appellate Authority, he has reversed the order passed by the second respondent/Authority constituted under the Tamil Nadu Act 43 of 1981. https://hcservices.ecourts.gov.in/hcservices/ 2. The first respondent claimed subsistence allowance before the second respondent for the period from November, 1995 to September, 1997. He was finally dismissed from service on 1.10.1997. The second respondent took up the case as P.S.A.56 of 1998. The Authority held that the subsistence allowance application is not maintainable and the first respondent cannot claim subsistence allowance on the basis of the revision of the wages that took place subsequently. 3. Aggrieved by the order passed by the second respondent, the first respondent preferred an appeal under Rule 5A of the Tamil Nadu Payment of Subsistence Allowance Rules. The Appellate Authority, namely the third respondent, took up the case as P.S.A.A.26 of 1999 and issued notice to the petitioner/Board. After hearing both the parties, the third respondent/Appellate Authority held that the increased allowance can be paid on the basis of the subsequent increase and for this purpose the authority relied upon the judgment of the Supreme Court in Umesh Chandra Misra v. Union of India, 1993 Supp [2] SCC 210. Therefore, he ordered the payment of subsistence allowance on the basis of revised rate of wages as per the settlement, since the date of superannuation of the first respondent was earlier than his date of dismissal. 4. The writ petition was admitted on 10.12.2001 and pending the writ petition, this Court granted interim stay for eight weeks. Subsequently, since the first respondent has filed a vacate stay petition, an order came to be passed to the effect that the petitioner/Board has to deposit a sum of Rs.60,000/- before the third respondent/Appellate Authority and on such deposit, the first respondent was permitted to withdraw Rs.30,000/- and the balance amount was directed to be invested in a Nationalised bank for a period of three years under a reinvestment scheme. 5. The learned counsel for the petitioner, Mr.B.Sekar stated that subsistence allowance as on the date of dismissal was paid to the first respondent and merely because there was a revision of wage subsequently, that will not count for the purpose of calculating the subsistence allowance and the authority is incompetent to compute such amount and in such cases, the question of any balance wages to be paid can be determined only after the penalty imposed on the workman is determined one way or the other. 6. The contention raised is well merited. The Supreme Court vide its judgment in Union of India v. R.K.Chopra, 2010 AIR SCW 935 in paragraph [26] has held as follows: "26. On a combined reading of Note 3 to Rule 7 of the Revised Pay Rules and FR 53(1)(ii)(a) with the clarification with Office Memorandum dated 27th August, 1958 it is clear that if the revision of pay takes https://hcservices.ecourts.gov.in/hcservices/ effect from a date prior to the date of suspension of a Government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision scale of pay takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not. In view of the clear distinction drawn by the Rule making authority between the cases in which the revised scale of pay takes effect from a date prior to the date of suspension and a date falling within the period of suspension, the plea of discrimination raised cannot be sustained especially when there is no challenge to the Rules. The benefit of pay revision and the consequent revision of subsistence allowance stand postponed till the conclusion of the departmental proceedings, if the pay revision has come into effect while the Government servant is under suspension. So far as the present case is concerned, the Revised Pay Rules came into force on 1st January, 1996 when the respondent was under suspension and later he was dismissed from service on 4.8.2005 and hence the benefit of pay revision or the revision of subsistence allowance did not accrue to him. The Tribunal as well as the High Court have committed an error in holding that the respondent is entitled to the benefit of Revised Pay Rules. We, therefore, allow the appeal and set aside those orders." It must also be noted that in the very same judgment, the Supreme Court referred to Umesh Chandra Misra v. Union of India, 1993 Supp [2] SCC 210, which was heavily relied upon by the third respondent. In the light of the binding precedent, the writ petition stands allowed and it is open to the petitioner/Board to withdraw the balance amount lying to the credit of PSAA.26 of 1999 on the file of the third respondent. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sasi https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Assistant Commissioner of Labour Sankar Nagar, Salem – 7. 2. The Deputy Commissioner of Labour Sankar Nagar, Salem – 7. 1 cc to Mr.B. Sekar, Standing counsel, Sr. 21923 W.P.No.24116 of 2001 AKR (CO) kk 8/4 https://hcservices.ecourts.gov.in/hcservices/