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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. SRIMATHY, J.
The Secretary, A-2190, Jambuduraikottai Primary Agricultural, Dindigul - Appellant
Versus
The Appellate Authority under the Tamilnadu, Payment of Subsistence Allowance Act, Dingidgul & Others - Respondent
W.P.(MD).No.9789 of 2016 & W.M.P.(MD).Nos. 7749 & 7750 of 2016
Decided On : 04-08-2022
Subsistence Allowance - Tamil Nadu Cooperative Societies Act - Section 75, G.O.Ms.No.55 - Common Cadre Service - Common Cadre Authority - Registered Special By-law - Chapter IV Rule 38 - Tamil Nadu Payment of Subsistence Allowance Act - Section 2(a)(ii) - Industrial Disputes Act - Common Cadre Regulations - Fundamental Rules - Pension Rules - Section 2(a) - Section 2(19) - Regulation 29 - Kuthiraichandal Primary Co-operative Bank Limited Vs. A.Asokan - Article 21 of the Constitution of India - U.P. Avas Evam Vikas Parishad Vs. Jainul Islam - Statement of Objects and Reasons of Tamil Nadu Payment of Subsistence Allowance Act
Fact of the Case:
The Writ Petition was filed to quash the order of the second and first respondents directing the petitioner to pay subsistence allowance to the 3rd respondent, who was terminated from service after proven misconduct. The petitioner argued that the 3rd respondent, as a Secretary, was not entitled to subsistence allowance under the Tamil Nadu Payment of Subsistence Allowance Act.
Finding of the Court:
The Court found that the 3rd respondent, having attained superannuation, was not eligible for subsistence allowance beyond the date of superannuation. The Court also held that the 3rd respondent, drawing a salary exceeding the threshold specified in the Act, did not fall under the definition of 'employee' and was not entitled to subsistence allowance.
Issues: The issues revolved around the eligibility of the 3rd respondent for subsistence allowance, the applicability of the Tamil Nadu Payment of Subsistence Allowance Act, and the interpretation of relevant provisions in the context of the 3rd respondent's status as a Secretary.
Ratio Decidendi: The Court's decision was based on the 3rd respondent's attainment of superannuation, the salary threshold for eligibility under the Act, and the absence of evidence regarding supervisory work. The Court also considered the By-law of the petitioner society and the Statement of Objects and Reasons of the Tamil Nadu Payment of Subsistence Allowance Act.
Final Decision: The Court allowed the writ petition, setting aside the order to pay subsistence allowance to the 3rd respondent. The Court held that the 3rd respondent was not entitled to subsistence allowance beyond the date of superannuation and did not fall under the definition of 'employee' for the purpose of the Act.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, against the order of the second respondent passed in PSA.No.4 of 2010, dated 30.04.2012, as well as the order passed by the first respondent in P.S.A.A.No.1 of 2016, dated 01.04.2016 and to quash the same.)
1. This Writ Petition is filed for issuance of a Writ of Certiorari, to quash the order of the second respondent passed in PSA.No.4 of 2010, dated 30.04.2012, as well as the order passed by the first respondent in PSA.A.No.1 of 2016, dated 01.04.2016.
2. The brief facts of the case are that the 3rd respondent had worked as Secretary of the petitioner society and was drawing salary of Rs.13,257/-. The 3rd respondent and other employees have committed irregularities and misappropriation of Rs.40,79,000/- for which the 3rd respondent and others were subjected to disciplinary proceedings and upon proven misconduct held in the enquiry, the 3rd respondent was terminated from service by an order, dated 20.08.2010. The 3rd respondent as a Secretary by virtue of section 75 of Tamil Nadu Co-operative Societies Act read with G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dated 24.03.2000, comes under the “Common Cadre Service”. The concerned Regional Joint Registrar of Cooperative Societies is the “Common Cadre Authority” vested with powers to take disciplinary action against the Secretary. By an order dated 29.03.2008 of the Common Cadre Authority, the 3rd respondent was placed under suspension. The 3rd respondent during the period of suspension attained superannuation on 30.04.2008. However, by power vested under Rule 31(4) of the Registered Special By-law of the Society, the disciplinary proceedings were continued and completed. In view of the fact that the third respondent attained superannuation on 30.04.2008, on completion of 58 years as per Rule 31(4) of Special By-law, the service rights accrued to the employee shall freeze on the date of superannuation and the employee shall not be entitled for any subsistence allowance. As per the Registered By-law of Society and as per Chapter IV Rule 38, the Secretary is the Chief Executive Officer of the Society and he is the custodian of the assets of the society and he is the person to sue and be sued.
3. As per Section 2(a)(ii) of the Tamil Nadu Payment of Subsistence Allowance Act, the person employed in a supervisory cadre (draws wages exceeding Rs.3,500/-) are excluded from the category of employees defined under Section 2 of the said Act. Therefore, the 3rd respondent had worked as a Secretary and by the nature of duties and responsibilities attached to his career, the salary drawn by him, he is excluded from the category of employees and consequently, the Tamilnadu Payment of Subsistence Allowance Act is not applicable. Since the 3rd respondent is outside the jurisdiction of the Act and the Authority under Tamil Nadu Payment of Subsistence Allowance Act has no jurisdiction to entertain the 3rd respondent petition and the present order is passed without jurisdiction. The 3rd respondent attained the age of superannuation on 30.04.2008 and the second respondent by an order in PSA 4 of 2010, dated 30.04.2012, has directed the petitioner to pay the subsistence allowance to the 3rd respondent even after the age of superannuation, i.e., from 01.05.2008 to 29.12.2009, directing the petitioner to pay Rs.2,48,569/-. The first respondent in his order in PSA Appeal No.1 of 2016, dated 01.04.2016, has confirmed the order of the second respondent. It has been held in the case reported in 2005 (2) LLN 540 that the secretaries of the Primary Agricultural Co-operative Bank, are not employees within the meaning of Section 2(s) of the Industrial Disputes Act. By virtue of the duties and responsibilities attached to the 3rd respondent, he will not fall under the definition of Section 2(a) of Tamil Nadu Cooperative Societies Act, 1981 and consequently, the first and
The central legal point established in the judgment is the determination of eligibility for subsistence allowance under the Tamil Nadu Payment of Subsistence Allowance Act, based on the status of the....
Co-operative society by-laws cannot restrict statutory rights to subsistence allowance for suspended employees under the Payment of Subsistence Allowance Act regardless of retirement status.
An employee under suspension is entitled to subsistence allowance even if convicted, unless he accepts employment elsewhere.
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