The Subsistence Allowance Act prevails over the provisions of the Co-operative Societies Act, and a person employed in a managerial capacity cannot claim subsistence allowance under the Act.

Headnote:
Co-operative Societies Act - Subsistence Allowance - Rule 198(6) of Kerala Co-operative Rules - Kerala Payment of Subsistence Allowance Act 1972 - The court discussed the applicability of the Subsistence Allowance Act to employees of Co-operative Societies and ruled that the Act prevails over the provisions of the Co-operative Societies Act. The court also examined the definition of 'employee' under the Subsistence Allowance Act and concluded that a person employed in a managerial capacity cannot claim subsistence allowance under the Act.
Fact of the Case:

The petitioner, a co-operative society, suspended the third respondent, its Secretary, without providing for subsistence allowance. The third respondent applied for subsistence allowance under the Subsistence Allowance Act, which was opposed by the petitioner. The first respondent granted subsistence allowance to the third respondent, leading to the challenge in this writ petition.
Finding of the Court:

The court found that the third respondent, as the Secretary, was not an employee in a managerial capacity and therefore not entitled to claim subsistence allowance under the Subsistence Allowance Act.
Issues: The main issue was whether the third respondent, as the Secretary of the co-operative society, could claim subsistence allowance under the Subsistence Allowance Act.
Ratio Decidendi: The court applied the definition of 'employee' under the Subsistence Allowance Act and examined the duties and responsibilities of the Secretary to determine if she was employed in a managerial capacity. The court concluded that the third respondent did not qualify as an employee under the Act.
Final Decision: The writ petition was allowed, the impugned order was quashed, and the application for subsistence allowance made by the third respondent was rejected without prejudice to her right to work out her rights in accordance with the law in appropriate proceedings.

Judgment :-

Malimath, CJ.

The petitioner in this writ petition is Shertallai Taluk Co-operative Land Mortgage Bank Limited, a co-operative society registered under the Kerala Co-operative Societies Act, 1969. The third respondent Smt. C.A. Vijayamwasits paid Secretary. On the ground that she has committed certain misconduct pending disciplinary proceedings she was kept under suspension on 17-1-79. The said decision did not make any provision for grant of any subsistence allowance during the period of suspension. The third respondent made an application under S.4 of the Kerala Payment of Subsistence Allowance Act 1972 (Hereinafter referred to as the 'Subsistence Allowance Act') for grant of subsistence allowance to her in accordance with the provisions of the said Act. That application was opposed by the petitioner on various grounds, inter alia, contending that the third respondent is not an employee as defined in S, 2(a) of the Subsistence Allowance Act, she having been employed only in a managerial capacity. The first respondent made an order on the application as per Ext.P4 dated 13-1-1981 awarding subsistence allowance of Rs.8211.81. The first respondent has held that the third respondent as the Secretary cannot be regarded as a person employed in a managerial capacity and that therefore the Subsistence Allowance Act applies to the facts of the present case. It is the said decision that is challenged in this writ petition.

2. Rule 198(6) of the Kerala Co-operative Rules (hereinafter referred to as the 'Rules'), before it was amended with effect from 13-1-1981, which regulated the grant of subsistence allowance to an employee of the Co-operative Society under suspension read 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 for subsistence allowance at the rates admissible to State Government employees as prescribed under the Kerala Service Rules".

This is a specific provision dealing with grant of subsistence allowance to employees of the Co-operative Societies who are kept under suspension. They were, by the operation of this rule, required to be paid subsistence allowance at the rates admissible to State Government employees in accordance with the provisions of the Kerala Service Rules. Though this was the position so far as the rules framed under the Act are concerned, the Kerala Legislature enacted the Kerala Payment of Subsistence Allowance Act 1972 (Act 27 of 1973). The Act came into force on the 2nd of February 1974. The said Act provides for grant of subsistence allowance in accordance with the scheme prescribed therein to employees as defined in S.2(a) of the said Act. Thus there are two sets of provisions operating in the same field regarding grant of subsistence allowance so far as the employees of the societies registered under the Kerala Co-operative Societies Act are concerned. One set of provisions are contained in Rule 198(6) which say that an employee kept under suspension shall be entitled to subsistence allowance at the rates admissible to State Government employees as prescribed under the Kerala Service Rules. At the same time the Subsistence Allowance Act enables an employee as defined in S.2(a) of the said Act to secure relief of subsistence allowance in accordance with the provisions of the said Act. As there were two sets of provisions governing the same field, this court had occasion to examine as to which set of provisions govern the employees of the Co-operative Societies. This question as decided by the decision reported in 1979 KLT 392 between the Deputy Labour Commissioner and Emmanuel. That was a case in which the Secretary of a Co-o

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1990 Supreme(Ker) 187

The Subsistence Allowance Act prevails over the provisions of the Co-operative Societies Act, and a person employed in a managerial capacity cannot claim subsistence allowance under the Act.

Cases Referred (1)