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2010 Supreme(Mad) 1323
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
The Superintending Engineer Madurai Electrical Madurai
Versus
M. Kumar & Others
W.P.No.23428 of 2001
Decided On :30-03-2010
For the Petitioner:M. Vaidyanathan, Advocate.
For the Respondents:R2, R3, N. Senthil Kumar, Government Advocate.
The burden of proof lies with the employer to establish the disqualification of an employee for receiving subsistence allowance under Act 43 of 1981.
Headnote:
Subsistence Allowance - Employment Dispute - Act 43 of 1981 - Order 20(2)(a), Section 3(4), Section 3(2) - The court discussed the provisions of Act 43 of 1981, including the entitlement of subsistence allowance, conditions for payment, and burden of proof on the employer to establish disqualification for receiving subsistence allowance.
Fact of the Case:
The first respondent, an employee, was suspended and claimed subsistence allowance under Act 43 of 1981. The employer denied the allowance based on alleged violations of standing orders and service regulations.
Finding of the Court:
The court dismissed the writ petition, stating that the employer failed to prove the disqualification of the employee for receiving subsistence allowance.
Issues: Dispute over entitlement to subsistence allowance, compliance with standing orders and service regulations, and burden of proof on the employer.
Ratio Decidendi: The employer must prove the disqualification of the employee for receiving subsistence allowance under Act 43 of 1981.
Final Decision: The writ petition was dismissed, and the first respondent was entitled to withdraw the amount deposited with the second respondent, or take steps to recover the amount from the Board.
The Superintending Engineer, Madurai Electrical Undertaking Acquisition Circle, Tamil Nadu Electricity Board, Madurai is the writ petitioner. The writ petition is filed against the order passed by the second respondent/Appellate Authority under the Tamil Nadu Payment of Subsistence Allowance Act (for brevity "Act 43 of 1981") dated 18.4.2000 made in P.S.A.No.2 of 1999, confirming the order of the third respondent/Authority under Act 43 of 1981, dated 28.6.1999 in P.S.A.No.40 of 1998.
2. The writ petition was admitted on 29.11.2001 and pending the writ petition, this court granted interim stay. Subsequently, the interim stay was modified on 23.9.2003, directing the petitioner/Board to deposit a sum of Rs.45,000/- to the credit of P.S.A.No.2 of 1999 on the file of the second respondent, failing which it was indicated that the stay will stand vacated automatically. The counsel for the petitioner is unable to state whether the amount has been deposited or not.
3. The facts leading to the case are as follows: The first respondent was employed as Inspector of Assessment in the office of the Assistant Engineer, Thallakulam. He was placed under suspension with effect from 14.10.1996 on certain alleged misconduct. The suspension came to be made on the basis of Certified Standing Orders applicable to the workmen. Since the first respondent was not paid subsistence allowance, he filed an application before the third respondent authority under the provisions of Act 43 of 1981 claiming subsistence allowance from 14.10.1996 till the date of the application, namely nearly for a period of 21 months, and it worked out to Rs.1,22,577/-.
4. The third respondent took up the case as P.S.A.No.40 of 1998 and ordered notice to the petitioner and the petitioner filed a counter statement dated Nil-November, 1998. In the counter statement, it was stated that the Board has got its own Standing Orders for the workers and amounts are paid only in terms of the Standing Orders. In the Service Regulation applicable to the workmen, it was stated that the person should be staying in the headquarters and if he goes out of the said headquarters, he should seek prior permission from the Executive Engineer. The first respondent went out of the headquarters without permission and therefore, he was not paid subsistence allowance.
5. Before the third respondent, the first respondent/workman examined himself as W.W.1 and marked four documents. On the side of the petitioner/Board, two witnesses – M/s.Kalyanaraman and Dharmarajan were examined as M.W.1 and M.W.2 respectively and five documents were filed.
6.1. The third respondent held that the first respondent was paid subsistence allowance from August, 1998 to November, 1998 and the suspension was made in terms of Order 20(2)(a) of the Standing Orders, which was marked as Ex.M4. For the period from 10.12.1997 to 31.12.1997, namely 21 days, also he was paid subsistence allowance.
6.2. The contention that the first respondent was not a workman was rejected on the ground that he was covered by the Certified Standing Orders and once a person is covered by the Standing Orders ipso facto, he is also covered by Act 43 of 1981.
6.3. With regard to the second contention of the Board that under Order 20(2)(u) of the Standing Orders, subsistence allowance will be paid only if the workman has not taken up employment elsewhere, it was held that there is no other condition that the worker should produce a certificate that he is not employed elsewhere and therefore, this argument was also rejected.
6.4. The third contention that the workman did not demand subsistence allowance was also rejected, because under the provisions of Section 3(4) of Act 43 of 1981, there is no requirement that the workman should seek for such subsistence allowance and it is an automatic right of the worker.
6.5. The last argument was that as per Regulation 56(2) of the Service Regulations an employee is entitled to subsistence allowance on
