Denial of subsistence allowance infringes Article 21.

I have heard Mr. K. Premkumar, learned counsel appearing for the petitioner and Mr. V.R.Thangavelu, GA, learned Government Advocate representing the respondent and have perused the records.

.2. The petitioner, who was working as a Manager in the respondent Society, was suspended from the Society vide order dated 110. 2003 and also certain charges were framed on the same day. However, by an order dated 110. 2004, the disciplinary action initiated against him was closed and he was reverted to the post of Clerk with effect from 110. 2004 as a punishment and he also joined in the reverted post on the same day. During the period of suspension of service from 110. 2003 to 38. 2004, the petitioner was paid subsistence allowance of a sum of Rs.62,731/- and no allowance was paid for the period from 09. 2004 to 110. 2004. However, when the Special Officer was appointed to the respondent Society, he ordered recovery of the entire subsistence allowance paid by an order dated 011. 2004. This was on the ground that the petitioner being a Manager, is not covered by the provisions of the Tamil Nadu Payment of Subsistence Allowance Act [for short, PSA Act]. The petitioner sent a letter stating that he is entitled to get subsistence allowance and there is already a short fall of Rs.49,377/- to be paid to him for the aforesaid period. Therefore, in the present writ petition, he challenges the order passed by the Special Officer of the respondent Society dated 011. 2004 ordering for a recovery of the sum of Rs.62,731/-to be refunded to the Society on the ground that the PSA Act will not apply to him.

3. This Court, by an order dated 38. 2005, admitted the writ petition and also granted interim stay in W.P.M.P.No.30351 of 2005. The respondent has taken out a vacate stay application being W.V.M.P.no.2708 of 2005.

4. In the vacate stay application, it is alleged that the provisions of the PSA Act will not apply to the respondent Society since the petitioner is not a workman within the definition of the said Act, as he was engaged in a Managerial capacity and was admittedly drawing the salary of Rs.11,830/-per month. It is also stated that in any event, the petitioner is not eligible for any subsistence allowance as he was holding the Managerial post and that the writ petition itself is not maintainable as the writ would not lie in terms of a Co-operative Society in the light of the decision of the Larger Bench of this court reported in 2006 (4) C.T.C. 689 [K.Marappan v. Deputy Registrar of Cooperative Society, Namakkal].

.5. With reference to the maintainability of the writ petition, even the Larger Bench of this Court has laid down certain propositions in the aforesaid decision and paragraph 21(7) reads as follows:

."(vii) In the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India when the Act provides for an alternative remedy."

6. This is a case involving recovery of the subsistence allowance already paid to the petitioner and time and again, Courts have held that without subsistence allowance, it will be difficult for the employees to make a sustenance and denial of subsistence allowance even infringes Article 21 of the Constitution of India. In the light of the above, the objection raised by the respondent is overruled.

7. With reference to the application of the PSA Act to the case of the petitioner, it will be safely said that the person like the petitioner may not be covered by the PSA Act. Though the PSA Act may apply to the respondent Society, the petitioner cannot be held to be a workman within the definition of the Act.

8. In 2002 (4) CTC 339 [The Management, T.P.Spl. 67 Goundanpalayam Primary Agricultural Cooperative Bank Ltd. vs. Assistant Commissioner of Labour], a learned Judge has held that the Tamil Nadu Co-operative Societies Act is a special law and, therefore, a person designated as a Secretary, who is in overall control of the Society