Madras High Court
The Joint Registrar/Managing ... vs The Appellate Authority/ on 2 August, 2023
2023:MHC:3922
WA.Nos.295, 299 and 303 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 02.08.2023
Coram:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.A.Nos.295, 299 and 303 of 2023
and C.M.P.Nos.3078, 3031 and 2995 of 2023
The Joint Registrar/Managing Director,
Dharmapuri District
Central Co-operative Bank,
Dharmapuri
... Petitioner in the above W.As
Vs.
1.The Appellate Authority/
Deputy Commissioner of Labour,
(Payment of Subsistence Allowance Act),
Collectorate Building, Salem – 1.
2.Assistant Commissioner of Labour,
Tamilnadu Payment of Subsistence Allowance Act,
Collectorate Building, Salem – 1.
.... Respondents in the above W.As
3. K.Dhandapani
.... Respondent in W.A.No.295 of 2023
3. G.Venkataraman
of 2023
Common Prayer: Appeals filed under Clause 15 of the Letters Patent against
orders, all dated 23.09.2019 made in W.P.Nos.27498, 27497 of 2013 and
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WA.Nos.295, 299 and 303 of 2023
24201 of 2012 on the file of this Court.
For Appellant in all Writ Appeals : Mr.M.S.Palanisamy
For Respondents in all Writ Appeals: Ms.V.Yamunadevi
Special Govt. Pleader – R1 and R2
Mr.R.M.D.Nazurullah
for M/s.K.V.Shanmuganathan
- R3
COMMON JUDGMENT
(Judgment of the Court was delivered by S.VAIDYANATHAN,J.)
The present appeals have been preferred by the Central Co-operative
Bank challenging one portion of the order of the learned single Judge
directing the appellant/Management to pay subsistence allowance of 50% of
the salary within a period of eight (8) weeks from the date of receipt of a copy
of that order.
2. The case of the Management is that due to the grave misconduct
committed by R3 which resulted in the loss to the bank, they were placed
under suspension. Charges have been framed and enquiry officers were
appointed. On the ground of non-payment of subsistence allowance, the
employees concerned have approached the Assistant Commissioner of
Labour, Authority under the Tamil Nadu Payment of Subsistence Allowance
Act, 1981 (in short 'PSA PSA 1981 Act') contending that they are entitled to
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WA.Nos.295, 299 and 303 of 2023
subsistence allowance initially at the rate of 50% for 90 days, thereafter 75%
upto 180 days and thereafter full wages after a period of 6 months.
3. As far as Dhandapani/ R3 in W.A.No.295 of 2023 is concerned, the
Assistant Commissioner of Labour/Original Authority held that he was a
workman and entitled to subsistence allowance as prayed for. Aggrieved
against the same, the Management has preferred an appeal.
4. The Deputy Commissioner of Labour/Appellate Authority has
confirmed the order of the Original Authority and directed payment of
subsistence allowance.
5. As far as Venkataraman/R3 in W.P.Nos.299 and 303 of 2023 is
concerned, two applications have been made claiming subsistence allowance
for two different periods, viz., 03.03.2005 to 01.08.2006 and 02.08.2006 to
02.04.2009. The original authority, for the period 03.03.2005 to 01.08.2006
held that he was a workman and directed payment of subsistence allowance.
As against this order, the Management has deposited the amount and
preferred an appeal to the Appellate Authority, who confirmed the order of
the original authority.
6. For the subsequent period, viz.,02.08.2006 to 02.04.2009, the
contention of the Management that Venkataraman is not a workman and he
was a Manager was accepted by the original authority and that there is no
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WA.Nos.295, 299 and 303 of 2023
need for deposit of any amount, as the employee suffered an adverse order.
However, in the appeal, the appellate authority set aside the order of the
Original Authority and held that he is a workman and is entitled to the benefit
of subsistence allowance.
7. Aggrieved by the orders of the appellate authority, the Management
has preferred Writ Petitions, which were allowed by this Court, however
directed the Management to pay subsistence allowance of 50% of the salary
to the employees concerned. Aggrieved by the said direction, the
Management is before this Court.
8. Learned counsel for the appellant would submit that the learned
single Judge while holding that the employees have to approach the authority
under the Tamil Nadu Cooperative Societies Act, 1983 (in short '1983 Act')
ought not to have directed payment of subsistence allowance. Furthermore,
R3 in W.A.Nos.299 and 303 of 2023 is not workman and his cadre is of
managerial nature. Hence, the Tamil Nadu Payment of Subsistence
Allowance Act is not applicable to him.
9. Per contra, learned counsel for the third respondents would submit
that if two enactments provide for remedial measures, the one which is
favourable to the employee can be chosen by him. Hence, the employees are
entitled to get subsistence allowance as per the provisions of the PSA 1981
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WA.Nos.295, 299 and 303 of 2023
Act and the Authorities under the said Act has jurisdiction to entertain their
applications. Furthermore, the Appellate Authority has categorically held that
the Management has not established the fact that R3 Venkataraman was
holding the post in the cadre of managerial nature.
10. Heard the learned counsel on both sides and perused the materials
placed before us.
11. The original authority, being a fact finding authority, has rendered
a finding that Dhandapani is a workman under the appellant Management. As
far as Venkataraman is concerned, the original authority has held in favour of
the Management for the period 03.03.2005 to 01.08.2006 and against the
Management for the period 02.08.2006 to 02.04.2009.
12. The appellate authority confirmed the findings of the original
authority in the case of Dhanadapani and Venkataraman for the first set of
period, however reversed the findings of the original authority for the
subsequent period in the case of Venkataraman.
13. As regards the contention of the Management that Venkataraman
was a Manager and not entitled to subsistence allowance for the subsequent
period, the appellate authority has categorically rendered a finding that the
employer has not established that Venkataraman was discharging work
mainly of managerial nature and hence the employee would be entitled to
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WA.Nos.295, 299 and 303 of 2023
subsistence allowance and set aside the order of the original authority dated
08.08.2011 in PSA No.1 of 2010 for the period between 02.08.2006 to
02.04.2009. For the earlier period, viz., 03.03.2005 and 01.08.2006, the
employee had the benefit of the order of both the original as well as the
appellate authority.
14. Aggrieved by the orders of the appellate authority in confirming the
order of the original authority in two cases, viz., P.S.A.Nos.6 of 2010 and 16
of 2008 (W.A.Nos.295 and 303 of 2023) and reversing the order in the case
of PSA No.1 of 2010 (W.A.No.299 of 2023) Writ Petitions have been filed
before this Court.
15. Learned single Judge while dealing with the contention of the
Management that application filed under Tamil Nadu Payment of Subsistence
Allowance Act, 1981 ought not to have been entertained by the original
authority as the Management comes under the provisions of the Tamil Nadu
Cooperative Societies Act, 1983 held that the Tamil Nadu Payment of
Subsistence Allowance Act, 1981 will not apply to the employees and that in
view of the special enactment, viz., Tamil Nadu Cooperative Societies Act,
1983 (in short '1983 Act'), the employees will have to seek redressal only
under the 1983 Act and the Rules thereunder.
16. Having held so, the learned single Judge directed the Management
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WA.Nos.295, 299 and 303 of 2023
to pay subsistence allowance of 50% of salary within a period of eight (8)
weeks from date of receipt of a copy of that order. Aggrieved by such
direction, the Management is before this Court in these appeals.
17. For the sake of convenience, the definition 'employee' as defined
under Section 2(a) the PSA 1981 Act reads as follows:
2. Definitions. In this Act, unless the context otherwise
requires, -
(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, electrical 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;'
18. A perusal of different provisions contained in the PSA 1981 Act
and Rules reveals that the said Act exclusively deals with payment of
subsistence allowance and whoever falls within the definition of 'employer',
'establishment' and 'industry' as defined under Section 2(b), (c) and (e)
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WA.Nos.295, 299 and 303 of 2023
respectively would be governed by the provisions of the said Act. Similarly,
whoever falls within the definition of 'employee' as defined under Section
2(a) would be entitled to receive the subsistence allowance for the period of
suspension pending disciplinary proceedings.
19. Even though no appeal has been filed by the workmen, they
defended these appeals stating that when there are two enactments applicable
to the employee, it is open to them to choose one, which is beneficial, and it is
not necessary that they have to approach the authority under the 1983 Act.
The remedy may be available in case the authority has held that R3 are not
workmen, but when they held to be workmen, they are entitled to seek relief
either under the PSA 1981 Act or under 1983 Act.
20. When there are two enactments, the employee may choose the one
which gives relief and protects their benefits. In the case of Sant Ram v
Rajinderlal reported in AIR 1978 S.C. 1601, the Hon'ble Supreme Court said
that welfare legislation must be interpreted in a third World perspective
favouring the weaker and poor class. It has also been held that interpretation
of labour legislations should be done by the Courts with more concern with
the colour, the context and the content of the Statute rather than its literal
import.
21. In the case of Nirchiliya and others V. Management of Saffire
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Theatre, Madras and another, reported in 1991 (1) L.L.J. 111 while dealing
with the issue as to whether the proceedings initiated under two enactments
can go on, the Hon'ble Supreme Court held that as long as there is no finality
to one particular proceeding, both proceedings shall go on and in case of
attainment of finality in one proceeding, then the other proceeding shall
automatically cease to exist.
22. In the present case, it has been vehemently contended by the
Management that the applicants ought not to have bypassed the remedy under
the 1983 Act and approached the Authority under PSA 1981 Act. We
disagree in view of the aforesaid decisions.
23. The PSA 1981 Act is not required to be pressed into service,
inasmuch as the payment of subsistence allowance cannot be presumed to be
excluded for an employee of a co-operative society following the principles
of Article 21 of the Constitution of India. Hence, non-payment of subsistence
allowance is violative of Article 21 of the Constitution of India.
24. In the case of I.I.558, Kuthiraichandal Primary Co-operative
Bank Ltd. v. A.Asokan and another, reported in (2009) 1 MLJ 18 I.I.558,
the Hon'ble Supreme Court while holding that payment of subsistence
allowance is protected under Article 21 of the Constitution of India, in
paragraphs 12 and 13 of the judgment, state as follows:
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“12. That apart, the payment of subsistence allowance is also
to be considered as a fundamental right guaranteed by Article
21 of the Constitution, as it encompasses that the employee
suspended pending inquiry should survive to maintain his
family and also to effectively participate in the disciplinary
proceedings. Unless subsistence allowance is paid, the
employee would be deprived of his valuable right to effectively
defend the disciplinary inquiry.
13. The Apex Court in Capt. M.Paul Anthony v. Bharat Gold
Mines Ltd., and another (1999) 3 SCC 679, of course while
considering the payment of subsistence allowance in a case of
Government Servant, had in fact, observed that an act of non
payment of subsistence allowance could be linked to slow
poisoning and if the employee is not permitted to sustain
himself on account of non payment of subsistence allowance,
he would gradually be starved to death. Further, in Jagdamba
Prasad Shukla V. State of U.P. and others (2000) 7 SCC 90,
the Apex court has held that the payment of subsistence
allowance is a matter of right and not a bounty.”
25. The underlying principle for making payment of subsistence
allowance is to allow an individual to sustain himself. In the present context
of the suspension of an employee, one has to keep in mind that services of an
employee have not been snapped and the employer-employee relationship
during suspension continues to subsist.
26. The aforesaid view has been fortified by the First Bench of this
Court in the case of The Registrar V. M.Elango (W.A.No.1352 of 2019 dated
10.02.2020).
27. In the case of B.D. Shetty And Others vs M/S. Ceat Ltd. And
Another, reported in 2002 (2) Bom.C.R.(S.C.) 601, the Hon'ble Supreme
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Court while dealing with the question whether the `delay in completion of
disciplinary proceedings directly attributable to the conduct of a workman
under Section 10-A(1)(b) of Industrial Employment (Standing Orders) Act,
1946 held that where a workman is suspended by the employer, pending
investigation or inquiry, such a workman has a statutory right to get
subsistence allowance and a statutory obligation is cast upon the employer to
pay subsistence allowance at the rate mentioned. The Apex Court further
held as follows:
When a workman approaches a competent court
bonafidely to protect himself from prejudice likely to be
caused by continuing proceedings simultaneously in
domestic inquiry as also in the criminal case grounded on
the same set of facts and succeeds in getting order from a
competent judicial authority staying further proceedings in
the disciplinary proceedings till the disposal of the
criminal case, it cannot be said that delay on that account
in completion of disciplinary proceedings is directly
attributable to the conduct of such workman. It cannot be
denied that a workman is also entitled for a free and fair
trial in the criminal case. Hence, if a workman, in order to
protect himself from the prejudice that may be caused by
simultaneous proceedings, approaches a competent
judicial authority and that authority, on being satisfied,
taking into consideration the facts and circumstances of
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the case, stays further proceedings in a domestic inquiry
pending a criminal trial, delay caused on that account in
completion of domestic inquiry cannot be directly
attributable to the conduct of such workman because
granting stay of further proceedings in a domestic inquiry
does not depend on the pleasure or mere wish of a
workman himself. May be, in a given case the court may
refuse to stay disciplinary proceedings. It is open to the
employer to oppose granting order by a competent court
staying disciplinary proceedings on all the grounds
available to him. If a workman is to be denied subsistence
allowance at the rate of 75% under Section 10- A(1)(b),
even in a case where he may have a legal right and a good
case on merit to get order from a competent court staying
domestic inquiry pending criminal trial, he may be forced
to suffer in silence. During the period of suspension he has
to support his family and survive to fight or defend his
case. It appears, reference to the delay directly
attributable to the conduct of the workman in the said
provision is obviously to the one where the workman
unjustifiably, deliberately or designedly drags on or
prolongs the domestic inquiry. To put it in other way, a
workman cannot be permitted to take advantage of delay
caused by himself in the absence of any order passed by a
court. If such a delay is also to be taken as covered by
Section 10- A(1)(b) it may amount to in a way putting
restraint or clog on the exercise of legal right of a
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workman to approach a court of law out of fear of losing
subsistence allowance at the rate of 75%. It is one thing to
say that in a given case there should be no stay of
disciplinary proceedings. It is another thing to say that in
case stay is granted there will be delay in completion of
disciplinary proceedings, which is directly attributable to
the conduct of a workman. Merely because legal
proceedings will be pending in a court or before other
authority and they take sometime for disposal, may be
inevitably, that itself cannot be the ground to deny
subsistence allowance to a workman against a statutory
obligation created on the employer under Section 10-
A(1)(b). One must not lose site of the fact that the Act is a
beneficial piece of legislation and the provision of
subsistence allowance made is intended to serve a definite
purpose of sustaining the workman and his family
members during the bad time when he is under suspension
pending inquiry. This provision is enacted with a view to
ensure social welfare and security. Hence, such a
beneficial piece of legislation has to be understood and
construed in its proper and correct perspective so as to
advance the legislative intention underlying its enactment
rather than abolish it. Assuming two views are possible,
the one, which is in tune with the legislative intention and
furthers the same, should be preferred to the one which
would frustrate it.
28. In the case of Amiya Kumar Biswas vs United Bank Of India And
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WA.Nos.295, 299 and 303 of 2023
Ors. reported in 2006 (4) CHN 53, a Division Bench of the Calcutta High
Court held that it is a basic principle of the service law that where an
employee is put on suspension, he must get the subsistence allowance as per
rules. Following the decision in the case of Andhra Bank V.
W.T.Seshachalam reported in 2005 AHC 302, the Calcutta High Court held
that even as per the general principles of service jurisprudence, the
subsistence allowance payable under the rules cannot be tinkered with.
29. In the present case, the learned single Judge has not dealt with the
issue as to whether the employees are workmen or not, however, the learned
Judge proceeded on the basis whether the matter fall under the 1983 Act or
PSA 1981 Act, which is not correct.
30. In light of the aforesaid judgments mentioned supra, the contention
of the employees that after having held that they are workmen and the said
finding has not been interfered with by the learned single Judge, directing
them to go before the Authority under 1983 Act is not correct, is well
founded.
31. The contention that the employees will have to recourse the remedy
only under the PSA 1981 Act may not be correct. Though Section 4 of the
PSA 1981 Act deals with recovery of money due from an employer, apart
from Section 4, there are penal provisions prescribed under the Act, like
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Section 9, wherein the employer will have to be prosecuted in Criminal Court
and to take appropriate action in terms of Section 11.
32. Since the payment of money due to the employee more so, the
subsistence allowance is a property within the meaning of Article 300 A of
the Constitution of India, it cannot be deprived except in accordance with
law. In the present case, the same has been deprived and the employees had
the benefit of the order of the appellate authority which has been interfered
with by the learned single Judge holding that they are entitled to 50% of the
same and directing the employees to approach the different forum.
33. The definition under Section 2(a) of the PSA 1981 Act and 2(s) of
the Industrial Disputes Act, 1947 are no way different. The Apex Court in the
case of Anand Bazar Patrika (P) Ltd. vs. The Workmen reported in (1970)
3 SCC 248 held that minor relegation of duties, which are Supervisory in
nature, cannot convert the office work of a Senior Clerk in-charge into that of
a Supervisor. It was further held that when a person executes the Supervisory
work and incidentally, for a fraction of time, looks after the Clerical Work,
then he can be called as a Supervisor and the similar is the situation for a
Clerk doing Supervisory work temporarily for a specified period, which
cannot at any stretch of imagination be said that he is not a Workman.
34. Though the aforesaid judgment is rendered in the context of
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Industrial Disputes Act, 1947, the same principle will apply to the present
case also. In the present case, when the appellate authority, who is a fact
finding authority, has rendered a finding that R3 are workmen, we do not find
any justification to interfere with the same.
35. In light of the discussion supra, we are of the view that the order of
the appellate authority needs to be confirmed. Accordingly, the impugned
orders stand set aside and these Writ Appeals are dismissed.
36. The appellant/Management is directed to remit the amount as
ordered by the appellate authority, if already withdrawn, within a period of
one month from date of receipt of a copy of this order and thereafter, R3 in
these appeals are entitled to withdraw the same. In case of non-deposit
within the time granted now, the employer shall deposit the same with interest
at the rate of 12% per annum from the date of the order of the Appellate
Authority. If the amount is lying in deposit, R3 shall withdraw the same with
accrued interest forthwith. No costs. Connected Miscellaneous Petitions are
also dismissed.
(S.V.N.,J) (K.R.S.,J)
02.08.2023
Index: Yes/No
Speaking/Non-speaking order
Neutral citation:Yes/No
sl
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WA.Nos.295, 299 and 303 of 2023
To
1.The Appellate Authority/
Deputy Commissioner of Labour,
(Payment of Subsistence Allowance Act),
Collectorate Building, Salem – 1.
2.Assistant Commissioner of Labour,
Tamilnadu Payment of Subsistence Allowance Act,
Collectorate Building, Salem – 1.
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S.VAIDYANATHAN,J.
AND
K.RAJASEKAR,J.
Sl
W.A.Nos.295, 299 and 303 of 2023
and C.M.P.Nos.3078, 3031 and 2995 of 2023
02.08.2023
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