Madras High Court
A.Nagaraj vs M.Ekambaram on 1 June, 2023
Cont.P.No.213 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Contempt Petition No.213 of 2008
in W.P.No.10032 of 2007
A.Nagaraj ... Petitioner
Vs.
1.M.Ekambaram,
Joint Registrar of Common Cadre Authority,
Dharmapuri Region,
Dharmapuri.
2.M.Kathavarayan,
President,
Veeramalai Primary Agricultural Co.op. Bank Ltd.,
Rep. by its Special Officer,
Veeramalai, Krishnagiri District.
… Respondents
This Contempt Petition filed under Section 11 of Contempt Act, 1971,
praying to punish the respondents for willful disobedience and violation of
the order dated 11.04.2007 passed in W.P.No.10032 of 2007 on the file of
this Court.
For Petitioner : Mr.G.Ethirajulu
For Respondents : Mr.S.Silambanan,
Additional Advocate General,
Assisted by,
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Cont.P.No.213 of 2008
Mr.A.M.Ayyathurai,
Government Advocate
ORDER
This Contempt Petition has been filed under Section 11 of Contempt
Act, 1971, praying to punish the respondents for willful disobedience and
violation of the order passed by this Court in W.P.No.10032 of 2007 dated
11.04.2007. For better appreciation, the relevant paragraph of the said order
is extracted hereunder:
“Therefore, while dismissing this Writ Petition, a
direction is issued to the respondents to pay subsistence
allowance to the petitioner in accordance with
G.O.Ms.No.55, dated 24.03.200, within a period of two
weeks from the date of receipt of a copy of this order and
continue to pay the same until the suspension is revoked.
No costs. Consequently, the connected M.P.Nos.1 and 2 of
2007 are also dismissed.”
2. When the matter was taken up for hearing on 01.08.2022, this
Hon'ble Court directed the first respondent to pay a subsistence allowance of
Rs.6,05,677/-, which is due to the petitioner on or before 27.08.2022 and the
same was paid to the petitioner on 27.08.2022 at the office of the first
respondent. The above said amount of Rs.6,05,676/- was paid to the
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Cont.P.No.213 of 2008
petitioner, based on the calculation made by the second respondent. When
the matter came up for hearing on 29.08.2022, learned counsel for the
petitioner submitted a fresh memo of calculation to the respondents.
According to which, he claimed a sum of Rs.12,93,939/-, out of which, the
petitioner has received a sum of Rs.6,05,677/- and the remaining subsistence
allowance is yet to be paid to the petitioner. Hence, this Court directed the
learned counsel appearing for the respondents to verify the same with the
authorities and posted the case on 12.09.2022.
3. The first respondent has filed a memo of calculation dated
23.03.2023, in which it is stated that the petitioner has submitted a fresh
memo of calculation for a sum of Rs.12,93,939/- vide his letter dated
08.09.2022 and the same was verified with the connected records and
revealed that the petitioner calculated Dearness Allowance (DA) and House
Rent Allowance (HRA) as admissible to Government Servants working under
the Government of Tamil Nadu. It is pertinent to mention here that the
employees of co-operative society, the Dearness Allowance and House Rent
Allowance are sanctioned as per the circular instructions issued from time to
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Cont.P.No.213 of 2008
time by the Registrar of Co-operative Societies, Kilpauk, Chennai. A
criminal case was filed against the petitioner and others and the case is under
trial in C.C.No.83/2010 in JM Court, Pochampalli.
4. It is pertinent to extract Section 3(1) of the Tamil Nadu Payment of
Subsistence Allowance Act, 1981 and the same reads as follows:
“where the enquiry or criminal proceedings is
prolonged beyond the period of ninety days for reasons directly
attributable to the employee, the subsistence allowance shall,
for the period exceeding ninety days, be reduce to fifty
percentum of the wages, which the employees was drawing
immediately before his suspension”.
According to the aforesaid Act, the subsistence allowance has been
calculated at Rs.6,06,677/- and the entire amount has been paid to the
petitioner.
5. Learned counsel for the petitioner submitted that Section 3(1) of the
Payment of Subsistence Allowance Act,1981 provides the right of
subsistence allowance payable to an employee, who is placed under
suspension and the same is extracted hereunder:
“Payment of Subsistence allowance.- (1) an employee
who is placed under suspension shall, during the period of each
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Cont.P.No.213 of 2008
suspension, be entitled to receive payment from the employer as
subsistence allowance, an amount equal to fifty percentum of the
wages which the employee was drawing immediately before
suspension, for the first ninety days reckoned from the date of
such suspension:
Provided that where the period of suspension exceeds
ninety days, but does not exceed one-hundred and eighty days,
the employee shall be entitled to receive, after the said period of
ninety days, a subsistence allowance equal to seventy-five
percentum of the wages which the employee was drawing
immediately before his suspension:
Provided further that where the period of suspension
exceeds one hundred and eight days, the employee shall be
entitled to receive wages in full which the employee was
drawing immediately before his suspension.
Provided also that where the enquiry or criminal
proceeding is prolonged beyond the period of ninety days for
reasons directly attributable to the employee, the subsistence
allowance shall, for the period exceeding ninety days, be
reduced to fifty percentum of the wages, which the employee was
drawing immediately before his suspension.”
Therefore, as far as the rate of payment of subsistence allowance is
concerned, the by-law has incorporated the provisions of the Tamil Nadu
Payment of Subsistence Allowance Act, 1981. Hence, one has to look into
the provisions of the Tamil Nadu Payment of Subsistence Allowance Act to
decide the rate of subsistence allowance payable to an employee during the
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Cont.P.No.213 of 2008
period of suspension.
6. Learned counsel for the petitioner submitted that the petitioner has
filed writ petition in W.P.No.10032 of 2007, challenging the suspension
order dated 06.07.2005 in Na.Ka.No.3128/2005 issued by the first respondent
and the same was dismissed by this Court on 11.04.2007. Aggrieved by the
said order, the first respondent preferred Writ Appeal in W.A.No.539 of 2011
and the same was dismissed by Division Bench of this Court dated
21.10.2011. For better appreciation, the relevant paragraph of the said order
is extracted hereunder:
“5. The Hon'ble Supreme Court, in the judgment
reported in the case of JAGDAMBA PRASAD SHUKLA v.
STATE OF U.P. ((2000) 7 S.C.C.90), has held that the payment
of subsistence allowance to an employee under suspension is not
a bounty, but it is fundamental right. The payment of
subsistence allowance to the employee under suspension is to
maintain his family and to attend the departmental enquiry. In
such circumstances, we see no reason to interfere with the order
passed by the learned Judge. The writ appeal fails and the same
is dismissed. Consequently, the connected M.P. is also
dismissed.”
7. Learned counsel for the petitioner further submitted that the
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Cont.P.No.213 of 2008
petitioner has filed writ petition in W.P.No.29925 of 2011 in which, this
Court by its order dated 23.12.2011 passed the following order and the same
is extracted hereunder:
“Having placed the petitioner under suspension, the
respondents are duty bound to pay Subsistence Allowance. If
Subsistence Allowance is not paid to the petitioner, the
respondents are directed to pay the same to the petitioner on or
before 07.01.2012. In the event of any failure on the part of the
respondents in paying Subsistence Allowance to the petitioner on
or before 07.01.2012, there shall be an order of interim stay of
operation of the suspension order. If Subsistence Allowance has
already been paid to the petitioner, the respondents need not pay
the same for the second time and it would suffice if Subsistence
Allowance is paid for the future period.”
8. Learned counsel for the petitioner further submitted that the
petitioner has filed another Writ Petition in W.P.No.9764 of 2008 and this
Court by its order dated 06.06.2012 has directed the respondents to pay the
Subsistence Allowance to the petitioner. Subsequently, the petitioner was
reinstated into service by the first respondent vide proceeding in
Na.Ka.No.3689/2012 dated 28.10.2013.
9. Heard the learned counsel on either side and perused the materials
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Cont.P.No.213 of 2008
available on record.
10. In this case, it is pertinent to extract Section 3(1) of the Tamil Nadu
Payment of Subsistence Allowance Act, 1981:
“Payment of Subsistence allowance.- (1) an employee
who is placed under suspension shall, during the period of each
suspension, be entitled to receive payment from the employer as
subsistence allowance, an amount equal to fifty percentum of
the wages which the employee was drawing immediately before
suspension, for the first ninety days reckoned from the date of
such suspension:
Provided that where the period of suspension exceeds
ninety days, but does not exceed one-hundred and eighty days,
the employee shall be entitled to receive, after the said period of
ninety days, a subsistence allowance equal to seventy-five
percentum of the wages which the employee was drawing
immediately before his suspension:
Provided further that where the period of suspension
exceeds one hundred and eight days, the employee shall be
entitled to receive wages in full which the employee was
drawing immediately before his suspension.
Provided also that where the enquiry or criminal
proceeding is prolonged beyond the period of ninety days for
reasons directly attributable to the employee, the subsistence
allowance shall, for the period exceeding ninety days, be
reduced to fifty percentum of the wages, which the employee
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Cont.P.No.213 of 2008
was drawing immediately before his suspension.”
11. According to the above section “when the period of suspension
exceed one-hundred and eighty days, the employee shall be entitled to
receive wages in full, which the employee was drawing immediately before
his suspension. The above said Act was amended on 15.05.2017, by which,
the above provision providing the employees entitle to receive wages in full
before his suspension was amended. Hence, according to the amended act,
the petitioner is entitled only for 75% of the wages, which the employee was
drawing immediately before his suspension.
12. In this case, the amended provision, which came into effect on
15.05.2017 is not applicable to this case for the reason that the order was
passed by this Court on 11.04.2007 and the proceeding of the respondent was
issued on 06.07.2005. The Subsistence Allowance for a sum of Rs.6,05,677/-
was paid to the petitioner vide Cheque No.002255 dated 24.08.2022 in the
office of the first respondent on 27.08.2022. Hence, according to the proviso
of 3(1) pre-amended, the petitioner is entitled for full backwages. For better
appreciation, the said provision is extracted hereunder:
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Cont.P.No.213 of 2008
“Provided further that where the period of suspension
exceeds one hundred and eight days, the employee shall be
entitled to receive wages in full which the employee was
drawing immediately before his suspension.”
The amendment to the Tamil Nadu Payment of Subsistence Allowance Act,
1981 came into effect only on 15.05.2017, whereas the proceeding of the
respondent is of the year 2005 and the order of this Court in 2007. It is
crystal clear and evident that any amendment will have only prospective
effect and will not have any retrospective effect. Moreover in this case, the
enquiry or criminal proceeding was not prolonged beyond the period of 90
days for the reasons directly attributable to the employee and on this aspect
also the petitioner is entitled for full backwages.
13. In view of the above, this Court is of the considered view that the
respondents have committed wilfull disobedience of the order passed by this
Court dated 11.04.2007, and the petitioner is entitled for remaining 50% of
Subsistence Allowance as per the proviso of Section 3(1) of the Tamil Nadu
Payment of Subsistence Allowance Act, 1981 (pre amended) and the
respondents are directed to pay/settle the remaining sum to the petitioner,
within a period of six weeks from the date of receipt of a copy of this order.
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Cont.P.No.213 of 2008
14. List the case under the caption for “Reporting Compliance” on
10.07.2023.
01.06.2023 (vm)
Index : Yes/No
Speaking Order : Yes/No
J.SATHYA NARAYANA PRASAD,J.
vm
Contempt Petition No.213 of 2008
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Cont.P.No.213 of 2008
01.06.2023
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