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2011 Supreme(Mad) 3604
High Court of Judicature at Madras
D. HARIPARANTHAMAN
T.R. Murugan
Versus
The Special Officer, Vadukapatti Primary Agricultural Co-operative Credit Society & Another
W.P.No.15896 of 2011
Decided on : 11-08-2011
For the Petitioner:A.E. Kalaiselvan, Advocate.
For the Respondents: L.P. Shanmugasundaram, Additional Government Pleader.
Non-payment of subsistence allowance infringing Article 21 of the Constitution of India makes the writ petition seeking subsistence allowance maintainable against the Co-operative Society.
Headnote:
Subsistence Allowance - Employment Dispute - Tamil Nadu Payment of Subsistence Allowance Act, 1981 - Article 21 of the Constitution of India - K.Marappan's case (cited supra) - S.Sukumar vs. CE.17 Dharapuram Public Servants' Co-operative Thrift and Credit Society Ltd. reported in 2007 (2) MLJ 1100
Fact of the Case:
The petitioner, an employee of a Co-operative Society, was suspended pending disciplinary action. The petitioner was reinstated but not paid subsistence allowance for a specific period.
Finding of the Court:
The court found that the non-payment of subsistence allowance infringed Article 21 of the Constitution of India and held that the writ petition seeking subsistence allowance was maintainable against the Co-operative Society.
Issues: The main issue was whether the writ petition seeking direction to the Co-operative Society to pay subsistence allowance to its employees was maintainable.
Ratio Decidendi: The court held that the non-payment of subsistence allowance would infringe Article 21 of the Constitution of India, and therefore, the writ petition seeking subsistence allowance was maintainable against the Co-operative Society.
Final Decision: The court disposed of the writ petition with a direction to the respondents to pay subsistence allowance to the petitioner for the specific period.
1. The petitioner was employed as a Secretary in the first respondent Society. He was placed under suspension by the first respondent vide order dated 05.08.2009 pending disciplinary action. The first respondent issued a charge memo dated 17.08.2009. An Enquiry Officer was appointed to enquire into the charges. The Enquiry Officer completed the enquiry and filed a report on 19.04.2010 holding that the charges levelled against the petitioner were proved.
2. This Court is not concerned with the charges levelled against the petitioner. Though the findings of the Enquiry Officer was accepted by the first respondent, the first respondent passed an order dated 19.01.2011 reinstating the petitioner in service, based on the proceedings dated 18.01.2011. It is stated in the order dated 19.01.2011 that the suspension period from 05.08.2009 up to the passing of the order could be regularised.
3. The grievance of the petitioner is that he was not paid subsistence allowance from 05.08.2009 to 17.01.2011 and also salary from 18.01.2011 onwards.
4. However, during the hearing of the writ petition, the learned counsel for the petitioner states that the petitioner was paid salary from 18.01.2011. Therefore, the only grievance is relating to non-payment of subsistence allowance from 05.08.2009 to 17.01.2011.
5. The learned Additional Government Pleader does not dispute that the petitioner has to be paid subsistence allowance from 05.08.2009 to 17.01.2011.
6. The case of the first respondent is that the writ petition is not maintainable as against the Co-operative Society, in view of the Larger Bench judgment of this Court in K.MARAPPAN VS. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETY, NAMAKKAL reported in 2006 (4) CTC 689. The first respondent has also relied on the judgment dated 25.01.2010 passed by this Court in W.P.No.26552 of 2009 preferred by the petitioner herein, wherein this Court dismissed the said writ petition on the ground that the writ petition is not maintainable as against the Co-operative Society.
7. I have considered the submissions made on either side.
8. The issue that arises for consideration is as to whether the writ petition seeking direction to the first respondent Co-operative Society to pay subsistence allowance to its employees is maintainable.
9. It is not in dispute that the subsistence allowance for the period from 05.08.2009 to 17.01.2011 is not paid. But the case of the first respondent is that the writ petition is not maintainable and the remedy available to the petitioner is only before the authority under the Tamil Nadu Payment of Subsistence Allowance Act, 1981. In my view, the submissions made by the learned Additional Government Pleader has no merit, since the non-payment of subsistence allowance would infringe Article 21 of the Constitution of India. Whenever there is violation of fundamental right, this Court could invoke its extraordinary jurisdiction under Article 226 of the Constitution of India. While a Larger Bench of this Court in K.Marappan'scase (cited supra) has held that writ petition is not maintainable against the Co-operative Society, it culled out certain exceptions and one of the exceptions is that when there is violation of fundamental right, the writ petition is maintainable.
10. The Larger Bench judgment of this Court in K.Marappan'scase (cited supra) was considered by a learned single Judge of this Court in S.SUKUMAR VS. CE.17 DHARAPURAM PUBLIC SERVANTS' CO-OPERATIVE THRIFT AND CREDIT SOCIETY LTD. reported in 2007 (2) MLJ 1100 wherein it has been held that writ petition seeking subsistence allowance is maintainable against a Co-operative Society, as non payment of subsistence allowance infringes Article 21 of the Constitution of India. In this regard, paras 4 to 6 of the said judgment are extracted hereunder:
"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
