The main legal point established is that the rate of subsistence allowance payable to an employee during the period of suspension is determined by the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, and the by-laws of the Society.

1. The petitioner was employed as a Secretary in the second respondent Society. He was placed under suspension by the second respondent, by an order dated 12.08.2010 for a period of three months, pending disciplinary action. It is stated that on the very same issue, a criminal case is pending and we are not concerned with the same. Though the suspension order dated 12.08.2010 states that the petitioner was placed under suspension for a period of three months, it was subsequently extended and he was ultimately dismissed from service by an order dated 13.08.2012 after holding departmental enquiry. It is also stated that the petitioner has filed a revision petition under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983, before the first respondent against the order of dismissal. We are not concerned with the said revision.

2. The petitioner has filed this writ petition seeking 100% subsistence allowance from the date of suspension till he was dismissed from service.

3. With the consent of both parties, the writ petition is taken up for final disposal. The learned Special Government Pleader has made submissions based on instructions.

4. The learned counsel for the petitioner has submitted that the petitioner has made claim based on the by-laws of the society and the claim is not based on the Tamil Nadu Payment of Subsistence Allowance Act. According to him, he is entitled to 100% salary from the date of suspension as per the by-laws of the Society.

5. On the other hand, the learned Special Government Pleader has submitted that the petitioner is entitled to subsistence allowance @ 50% of pay until his dismissal, as per the by-laws of the Society.

6. In view of such a position taken by the parties, I passed the following order on 14.07.2014:

“Learned counsel for the respondent Co-operative Society has submitted that the subsistence allowance was paid to the petitioner as per the by-laws of the Society.

At this juncture, learned counsel for the petitioner has submitted that if the subsistence allowance are paid in terms of the by-laws, he will not have any quarrel over the same. Hence, he sought a copy of the by-laws, since only 50% of wages was paid for the entire period of suspension.

Hence, post this matter on 17.07.2014 for production of by-laws of the society.”

7. Today, the by-laws of the Society is produced. By-laws 31(ii) is relating to payment of subsistence allowance and the same is extracted hereunder:

“31.SUSPENSION

(1) An employee of the society may be placed under suspension from service where:-

(i) an enquiry into grave charges against him is contemplated or pending or

(ii) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest or in the interest of the society:

Provided that an employee who is detained in custody whether on a criminal charge or otherwise for a period longer than forty eight hours shall be deemed to have been suspended under this clause.

(2) The authority competent to suspend an employee may grant to the employee suspended, subsistence allowance in accordance with the provisions of the Tamil Nadu Payment of Subsistence Allowance Act 1981.

(3) The period of suspension already undergone may also be awarded as a penalty to an employee to the extent considered necessary by the authority imposing the penalty.

(4) The employee under suspension shall not be allowed to retire on attaining the age of superannuation. His suspension shall be deemed to have been extended till the disposal of the disciplinary proceedings against him. During the extended period, the service rights accrued to the employee shall freeze on the date of superannuation and the employee shall not be entitled for subsistence allowance.”

8. Therefore, as far as the rate of payment of subsistence allowance is concerned, the by-law has incorporated the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981.