S.S. Satheesachandran, J.

Petitioner is a Co-operative Society. Challenge in the O.P. invoking the visitorial jurisdiction of this Court under Article 226 of the Constitution is against Ext. P3 order passed by the Labour Court, Kannur in a claim petition filed by the respondent under S. 33C(2) of the Industrial Disputes Act, hereinafter referred to as the Act. Respondent, admittedly, was a workman of the society. He was suspended from service with effect from 03.08.2008 and, later, dismissed from service after a domestic enquiry, for serious misconduct, allegedly, proved against him. His termination from service by dismissal was by order dated 16.12.2009. Claim petition under S. 33C(2) of the Act was moved by petitioner after his dismissal from service. He claimed subsistence allowance for the period from 8.8.2008 to 7.12.2009 at the rate of 50% for the first three months, at 75% for the next three months and full wages for the remaining period. He claimed a total sum of Rs. 84,075/- as amount due as subsistence allowance from his employer/petitioner Society. Claim was resisted by the Society contending that the order of suspension has merged with the order of dismissal of the employee and therefore the dispute over his entitlement of subsistence allowance is a matter to be adjudicated by a reference under S. 10 of the Act or in a proceeding before the Co-operative Arbitration Court u/s 69 of the Kerala Co-operative Societies Act. Another challenge was also raised by the Society that he is an agriculturist possessing a rubber plantation and other agricultural lands of large extent from which he obtained more than sufficient income for sustenance. He was engaged in rubber tapping and other agricultural work during the period of suspension and therefore he was not entitled to subsistence allowance was the further case of the employer to resist the claims.

2. The Labour Court found the challenges raised against the entitlement of claimant unsustainable. Accepting the case of the workman and holding that he is entitled to claim subsistence allowance during the period he was placed under suspension before his dismissal from service the claim canvassed by him was allowed under Ext. P3 order. Correctness and legality of Ext. P3 order is impeached in this petition.

3. I heard learned counsel on both sides.

4. Suspension order issued against the workman had merged with the order of his dismissal and unless the order of dismissal is set aside raising a dispute under S. 10 of the Act and its adjudication by Labour Court, a claim petition under S. 33C(2) of the Act from the dismissed workman is not entertainable is the submission of the learned counsel for the Society. Maintainability of the petition on other challenges canvassed before the Court below that the workman was possessed of sufficient agricultural lands, which was sought to be established by production of Ext. R1, was also canvassed by the learned counsel to contend the workman, was disentitled to claim any subsistence allowance from his employer during the period of his suspension. On the other hand, learned counsel appearing for the workman contended entitlement of suspended employee to claim subsistence allowance during the period of his suspension is an indefeasible statutory right under the Kerala Payment of Subsistence Allowance Act, 1972, and subsistence allowance was not paid by the employer till the workman was dismissed from service would no way assist the employer to relieve him from his liability to pay subsistence allowance due to the suspended workman. Challenge raised that the workman possessed agricultural lands and he engaged in rubber tapping work during the period of suspension, even if accepted, according to counsel, does not disentitle him to claim subsistence allowance guaranteed under the provisions of the aforesaid Act.

5. In the present case, admittedly, the workman has filed claim petition under S. 33C(2) of the Act after he was dismissed from se