The statutory entitlement to subsistence allowance for a suspended employee prevails over any settlement agreement, and the entitlement continues even in the event of a temporary closure of the establishment.

K.A. Abdul Gafoor, J.

1. Management of an industrial establishment has come up with this writ petition challenging Ext.P6 order of the Authority under the Kerala Payment of Subsistence Allowance Act. The order directs payment of subsistence allowance in terms of Kerala Payment of Subsistence Allowance Act, 1972 to the 3rd respondent.

2. Admittedly by the petitioner, the 3rd respondent was placed under suspension from October 19, 1987. There is no case for the petitioner either before the statutory authority or before this Court that the 3rd respondent had at any time been paid subsistence allowance or part thereof. When suspension of an employee is admitted and there is no case for the employer that the subsistence allowance had been paid, the natural consequence from the Authority constituted under the said Act is to direct payment of subsistence allowance because that is the statutory liability of the employer concerned. Therefore, I see no reason to set aside Ext.P6.

3. The Management has a different case. With regard to suspension and disciplinary action of the 3rd respondent, the union raised a dispute as per Ext.P1 demand which was settled as per Ext.P2 settlement. As per that settlement, the Management agreed to withdraw the domestic enquiry against the 3rd respondent and to admit the 3rd respondent to duty when the factory re-opened after closure. The closure became necessary because of strike. It was also agreed in Ext.P2 settlement after working for a day the 3rd respondent will retire from the service of the petitioner. In such circumstances based on Ext.P2, the 3rd respondent has no eligibility nor the petitioner has any liability to pay subsistence allowance. Exhibit P2 settlement does not contemplate for payment of subsistence allowance. Exhibit P2 binds the parties and the 3rd respondent cannot make an application for payment of subsistence allowance, in terms of Ext.P2 settlement and under the provisions of the Industrial Disputes Act.

4. This contention of the Management has no sustainability. The subsistence allowance is the statutory entitlement for the employee placed under suspension. That statutory entitlement cannot be taken away by reason of the settlement. Moreover, the settlement does not provide anything regarding payment of subsistence allowance. It is true that the dispute had been settled in terms of Ext.P2 settlement. But, by reason of that the entitlement for subsistence allowance payable in terms of a statute cannot be denied to the employee concerned. If the settlement is contrary to any law or it cannot be implemented without violating any provision of law, then the settlement cannot be enforced at all. There is nothing in Sub-section (2) of Section 19 of the Industrial Disputes Act, 1947 to suggest that "the agreement will be valid land binding notwithstanding any law to the contrary" as held by the Supreme Court in The Patiala Central Co-operative Bank Ltd. v. The Patiala Central Co-operative Bank Employees' Union and Anr. (1997-II-LLJ-631). So, if the agreement contained any provision to deprive subsistence allowance, that cannot have any operation when the statute makes the employee entitled for such allowance. The statute will prevail. Therefore, the contention of the petitioner that in the light of Ext.P2 settlement he has no liability to pay the subsistence allowance, cannot be accepted.

5. Another contention of the petitioner is that as per Ext.P2 there was a settlement to reinstate the petitioner in service on re-opening of the industrial establishment after closure and therefore, the authority should not have by Ext.P6 directed payment of subsistence allowance till December 31, 1988, as at any rate the suspension had terminated on the date of settlement of Ext.P2, namely July 1, 1988. Exhibit P2 settlement only provided to withdraw the disciplinary action against the 3rd respondent and to admit her to duty and thereafter the 3rd respondent shall retire from service. But, there wa