Point of Law: By virtue of the statutory powers conferred on the respondent-KSRTC, they have adopted the provisions in the Kerala Service Rules (KSR), as far as regular employees are concerned

JUDGMENT :

Alexander Thomas, J.

The petitioner in the writ petition (Civil), W.P.(C) No.32954/2019 has filed the instant intracourt appeal under Section 5(i) of the Kerala High Court Act being aggrieved by the impugned judgment dated 08.02.2021, rendered by the learned Single Judge which has led to the dismissal of the abovesaid writ petition.

2. Heard Sri. Sabu M. Philip, learned counsel appearing for the appellant in the writ appeal/petitioner in the writ petition (civil) and Sri. Deepu Thankan, learned Standing Counsel for the Kerala State Road Transport Corporation (KSRTC) appearing for the respondents in the writ appeal/respondents in the writ petition (civil).

3. The appellant/petitioner has been appointed as reserve conductor in the service of the respondent Kerala State Road Transport Corporation with effect from 22.12.2018 and later he was ordered to be suspended from service as per the impugned Ext.P1 proceedings dated 17.04.2019, issued by the Executive Director (Vigilance) of the respondent KSRTC.

4. The main allegations raised in Ext.P1, is in relation to the effect that pursuant to the surprise inspection conducted in the bus in which he was working as reserve conductor on the day in question, it was found that one of the passengers was found to be travelling in the said bus but without a ticket.

5. It is now common ground that subsequently the respondents have reviewed the suspension order at Ext.P1 and have reinstated the appellant in service on 19.08.2019, pending disciplinary proceedings. The only grievance of the petitioner raised in this case is regarding the non-payment of subsistence allowance to him during the period of his suspension.

6. The main objection raised by the respondent KSRTC is to the effect that as the petitioner is only a reserve conductor he is not a regular employee in the respondent-KSRTC and therefore the provisions in Rule 55 of Part-I Kerala Service Rules (KSR) will not be applicable to him and therefore his claim for subsistence allowance based on Rule 55 of Part-I KSR is untenable.

7. The learned Single Judge has accepted the said contention of the respondents and has thus dismissed the writ petition.

8. There is no serious factual dispute that the petitioner was, in fact, working only as a reserve conductor in the service of the respondent Corporation and that he is not a regular employee of the respondent Corporation. If that be so, at best, the respondent Corporation can contend that the provisions in KSR will not apply to regulate his suspension aspects. But even in that contingency, there cannot be any dispute that the provisions contained in the Kerala Payment of Subsistence Allowance Act, 1972 (State Act 27 of 1973) will then be applicable.

9. The Kerala Payment of Subsistence Allowance Act, 1972 (State Act 27 of 1973) is an Act made by the State Legislature to provide for payment of subsistence allowance to the employees in certain establishments during the period of suspension. The preamble to the said Act declares that it is expedient to provide for the payment of subsistence allowance to the employees in certain establishments during the period of suspension. Section 2 of the said Act deals with definition clauses. Section 2(a) defines 'employee' 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 of any establishment to do skilled, semi-skilled or unskilled manual, supervisory, technical, clerical or any other kind of work for hire or reward, whether the terms of employment be express or implied, but does not include any such person who is employed mainly in a managerial or an administrative capacity or as an outworker, that is to say, a person to whom any articles or materials are given out by or on behalf of the employer to be cleaned, washed, altered, ornamented or repaired by such outworker in any place not under the control and management of the employer;”

Section 2(b) defin