Common Order:

I have heard the arguments of Mr. S. Venkataraman, learned counsel appearing for the petitioner and Mr. V.R. Thangavelu, learned Government Advocate, taking notice for the respondents and have perused the records.

2. In the first writ petition being W.P.No.40249 of 2006, the petitioner prays that the first respondent Co-operative Society should be directed to pay the subsistence allowance to him in terms of G.O. Ms.No.55 Cooperation, Food and Consumer Protection Department dated 23. 2000 with effect from 04. 2003 and continue to pay the same till the completion of the disciplinary proceedings initiated subsequent to the charge memo dated 25. 2000. In the second writ petition (W.P.No.42041 of 2006), the petitioner has challenged the show cause notice dated 29. 2006 asking the petitioner to submit his explanation on the findings of the enquiry officer dated 24. 2006 was sought for.

3. Mr. S. Venkataraman, learned counsel appearing for the petitioner contended that he has not been paid any subsistence allowance for more than last three years and, therefore, non-payment of subsistence allowance will vitiate the disciplinary proceedings.

4. In respect of non-payment of subsistence allowance, the petitioner has already filed a writ petition being W.P.No.40249 of 2006 which was admitted as early as 110. 2006. Therefore, the contention as to the eligibility of the payment of subsistence allowance can be gone into in that writ petition. Therefore, the petitioner cannot invalidate the show cause notice arising out of the enquiry proceedings, which has now culminated into a show cause notice and is pending in its final stage.

5. If the petitioner has any grievance with reference to the conduct of the enquiry or the findings, he can always submit his explanation and wait for the outcome of the enquiry proceedings. Therefore, this Court is not inclined to interfere with the show cause notice where no prejudice is caused to the petitioner and hence, the W.P.No.42041 of 2006 is dismissed and the petitioner is directed to submit his explanation within a period of two weeks from the date of receipt of a copy of this order.

.6. With reference to W.P. No.40249 of 2006, the argument of the learned counsel for the petitioner is that the post belongs to common cadre service and the service conditions are governed by G.O.Ms.No.55 Co-operation, Food and Consumer Protection Department dated 23. 2000 and that as per the said regulation, the petitioner is entitled for subsistence allowance and regulation No.29 sub-clause (d) reads as follows:

."(i) A cadre employee under suspension shall be entitled to a subsistence allowance as per the payment of Subsistence Allowance Act 1981."

7. Normally, this writ petition should have been dismissed on the basis of the decision of the larger Bench of this Court reported in 2006 (4) CTC 689 [K. Marappan vs. Deputy Registrar of Co-operative Societies, Nammkkal]. However, in paragraph 21, the Bench itself carved out certain exceptions in which a writ petition can be maintained even against the Co-operative Society. Paragraphs 21(3) and 21(4) sets out that when there is a statutory duty upon a society and if any violation of such duty is made, a writ would be issued for compliance of the same.

.8. In the present case, G.O.Ms.No.55 Cooperation, Food and Consumer Protection Department dated 23. 2000 has been framed in terms of Section 75 of the Cooperative Societies Act, 1983 on their statutory regulations. Further, Regulation 29(d) only incorporates the rate of subsistence allowance provided under the PSA Act even though the provisions of the said Act are not applicable to the Secretaries of the Cooperative Societies, who are in full control of the Society. The Courts have also held non-payment of Subsistence allowance amounts to deprivation of liberty provided under Article 21 of the Constitution of India and an employee cannot defend himself effectively in a domestic enquiry when he is