The main legal point established in the judgment is that while the 1981 Act excludes the applicability of subsistence allowance to a Secretary, the right to subsistence allowance is protected under Article 21 of the Constitution of India, and the court upheld the claim of the respondent for subsistence allowance.

JUDGMENT :

A.P. SAHI, J.

Prayer: Appeal under Clause 15 of the Letters Patent against the order of the learned Single Judge dated 25.10.2018 passed in W.P.No.1706 of 2018.

1. The appellants, who are authorities of the State, have come up assailing the judgment of the learned Single Judge dated 25.10.2018 in this intra-court appeal contending that the respondent/writ petitioner, Secretary of a Primary Agricultural Co-operative Credit Society, on being suspended, is not entitled to subsistence allowance.

2. The learned Single Judge had allowed the writ petition following the judgment of a Division Bench of this Court in the case of Special Officer, D.K.81, Chennasandiram Primary Agricultural Co-operative Credit Society Ltd. v. P.Periyannan and another, 2015 Supreme (Madras) 766, which refers to the judgment in the case of K.Avanasiappan v. The Management of Thekkalur Primary Agricultural Co-operative Bank and others, 2011 Supreme (Madras) 4814.

3. We had heard the matter on two occasions earlier and in order to formulate the question, we had passed the following orders on 19.12.2019 and 6.1.2020:

Order dated 19.12.2019

“Heard learned Additional Advocate General for the appellants.

2. The challenge raised in this appeal is to the order dated 25.10.2018, whereby the writ petition filed by the respondent/ petitioner has been disposed of with a direction to the appellants to consider grant of subsistence allowance during the suspension period in relation to the proceedings that had been undertaken against the respondent/petitioner after suspending him in terms of the provision of the Tamil Nadu Co-operative Societies Act, 1983 (for brevity, “the 1983 Act”).

3. An interim stay has been granted by a Division Bench of this Court in the present appeal.

4. While proceeding to hear the matter, the definition of the word “officer” under Section 2(19) of the 1983 Act was noticed by us, that is extracted herein under for ready reference:

2(19) “officer” includes a president, vice-president, managing director, secretary, assistant secretary, member of board and any other person empowered under the rules or the by-laws to give directions in regard to the business of the registered society.

5. The respondent/petitioner is admittedly a Secretary of the Society, who is facing grave charges relating to misappropriation, which appears to have arisen on account of some audit exercise having been carried out, for which an enquiry was instituted in terms of Section 81 of the 1983 Act. The proceedings are in relation to the surcharge as provided for under Section 87 of the 1983 Act. The power to suspend is therefore contained in the aforesaid statutory provision and the Rules governing the same, which are contained in Chapter XII of the Tamil Nadu Co-operative Societies Rules, 1988. Rule 149 facilitates taking of such action through a Special By-law to be adopted with prior approval of the Registrar. Rule 149 also indicates that taking appropriate steps for meeting of any such situation in a disciplinary proceedings could be undertaken provided there is a Special By-law. Rule 149 is gainfully extracted herein under:

149. Conditions of service of paid officers and servants of Societies. - (1) Every society shall, taking into account its nature of business, volume of transaction and financial position, adopt, with the prior approval of the Registrar, a Special by-law covering the service conditions of its employees. The special by-law shall, inter- alia prescribe the following:-

(i) Cadre strength and classification of various categories of posts and the qualifications required thereof for each such posts.

(ii) The method of recruitment for each such posts.

(iii) The scale of pay and allowances for each such posts.

(iv) Conditions of probation for each such posts.

(v) Duties and responsibilities for each such posts.

(vi) Leave of various kinds admissible and, the conditions thereto for each such posts.

(vii) The penalties that may be imposed upon, the procedure for taking d