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IN THE HIGH COURT OF JUDICATURE AT MADRAS
D. HARIPARANTHAMAN, J.
S.G. Manivel – Appellant
Versus
Registrar of Co-operative Societies, Chennai & Others – Respondent
W.P. No. 12084 of 2015 & M.P. No. 1 of 2015
Decided On : 24-04-2015
Constitution of India, 1950 – Articles 14, 21 – Payment of Subsistence Allowance Act, 1981 – Section 2 – Tamil Nadu Co-operative Societies Act, 1983 – Section 153 – Suspension – Petitioner sought to question the suspension order issued by the fourth respondent Society. – Petitioner has sought to question the suspension order issued by the fourth respondent Co-operative Society. – Held, Court is of the considered view that the action of the fourth respondent in not paying the subsistence allowance is highly arbitrary and amounts to deprivation of livelihood illegally and hence, the same is violative of Article 14 and 21 of the Constitution of India – Court is not on the quantum of subsistence Allowance that could be paid – The employee facing suspension cannot be said that no subsistence allowance could be paid to him and such an action is illegal and unconstitutional. – Judgment relied on by the learned Additional Government Pleader cannot be applied to the facts of the present case. – As stated above, in that case, the appellant was a Secretary of the Co-operative Society and he approached the authority under the Act and his claim was rejected. – The Appellate Authority allowed his claim. – The order of the Appellate Authority under the Act was challenged before this Court and the learned Single Judge held that the appellant is not an employee under Section 2(a) of the Act and thus allowed the writ petition and the said order is questioned in the Writ Appeal. In the writ appeal, the order of the learned Single Judge was upheld. – Judgment relied on by the learned Additional Government Pleader cannot be applied to the facts of the present case. – As stated above, in that case, the appellant was a Secretary of the Co-operative Society and he approached the authority under the Act and his claim was rejected. – The Appellate Authority allowed his claim. – The order of the Appellate Authority under the Act was challenged before this Court and the learned Single Judge held that the appellant is not an employee under Section 2(a) of the Act and thus allowed the writ petition and the said order is questioned in the Writ Appeal. – In the writ appeal, the order of the learned Single Judge was upheld. – Writ Petition Disposed of
1. The petitioner sought to question the suspension order issued by the fourth respondent Society.
2. When the matter came up for hearing on 23.04.2015, this Court passed the following order :
“Mr.D.Venkatachalam, learned Government Advocate takes notice for the respondents.
2. The petitioner has sought to question the suspension order dated 30.03.2015 issued by the fourth respondent Co-operative Society.
3. It is well-settled that writ petition as against the Co-operative Society is not maintainable. When it was pointed out, the learned counsel for the petitioner has submitted that the petitioner will be satisfied if a direction is issued to the respondents to pay subsistence allowance.
4. At this juncture, Mr.D.Venkatachalam, learned Government Advocate appearing for the respondents has submitted that the petitioner, being a Secretary, is not entitled to subsistence allowance as per the judgment of a Division Bench of this Court. However, he is not able to produce the copy of the judgment and he seeks time to produce the same.
5. Hence, post this matter on 24.04.2015 at the end of the motion list.”
3. Today, the learned Additional Government Pleader produced the order of a Division Bench of this Court in K.Avanasiappan Vs. The Management of Thekkalur Primary Agricultural Co-operative bank, rep. by its President P.Senthilvel and Others, and based on the same, he submitted that the petitioner is not entitled to subsistence allowance.
4. The learned counsel for the petitioner contended that even assuming that as per the judgment, the Act is not applicable to the petitioner, the petitioner is entitled to be paid the subsistence allowance as per Bye-Laws of the Society. Alternatively, he submitted that even if the Bey-Laws are silent on subsistence allowance, the same cannot be deprived, while the employee is asked to face the departmental action and the denial of subsistence allowance amounts to violation of Article 14 and 21 of the Constitution of India.
5. I have considered the submissions made on either side and perused the judgment relied on by the learned Additional Government Pleader.
6. At the outset, I would like to state that the word subsistence itself denotes that the payment is for survival of the employee and his family. Solong as the Society keeps an employee under suspension, the Co-operative Society has an obligation to pay subsistence allowance.
7. It is well-settled that deprival of subsistence allowance is deprival of livelihood and therefore, it is violative of Article 21 of the Constitution.
8. Hence, I am not in agreement with the submission made by the learned Additional Government Pleader that the petitioner is not entitled to subsistence allowance relying on the judgment in K.Avanasiappan Vs. The Management of Thekkalur Primary Agricultural Co-operative bank, rep. by its President P.Senthilvel and Others,.
9.1. In the said judgment in K.Avanasiappan's case, the appellant was the Secretary of a Co-operative Bank. He was suspended for certain misconduct and was paid subsistence allowance at the rate of 25% of his wages in terms of the bye-laws.
9.2. He approached the authorities under the Payment of Subsistence Allowance Act for payment of subsistence allowance as per the Act. It was rejected by the authority/Assistant Commissioner of Labour. He questioned the same before the appellate authority/Deputy Commissioner of Labour. The appeal was allowed with a direction to pay the subsistence allowance as per the Act.
9.3. The said order of the appellate authority under the Act was questioned by way of writ petition by the Co-operative Bank. A learned Single Judge allowed the writ petition holding that he was not employee under Section 2(a) of the Act and the remedy is not available to him under the Act.
9.4. The appellant filed writ appeal questioning the order of the learned Single Judge and the writ appeal was dismissed and the order of the learned Single Judge was confirmed and the Division Bench of this Court h
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