Employees in managerial positions are excluded from claiming subsistence allowance under the Kerala Payment of Subsistence Allowance Act, 1972.

JUDGMENT

Petitioner is a Company registered under the Companies Act.

Respondent No.2 was employed as Assistant Branch Head at Kanchipuram, Tamil Nadu. While in duty, was suspended on 26.07.2019. Without disclosing the nature of duties as managerial and administrative, preferred an application under Section 4 of the Kerala Payment of Subsistence Allowance Act, 1972 before the 1st respondent vide Ext.P1. The said petition was objected to by the petitioner Company in Ext.P2 along with the statement of payment of the salary and increment. However, the Controlling Authority without considering the provisions of the Act, allowed the petition and ordered the petitioner to pay a sum of Rs.33,616/- i.e., containing the element of salary for suspension period as subsistence allowance with effect from 30.7.2019 to 24.11.2019 (90 days subsistence allowance at the rate of 50%) and 28.10.2019 to 24.11.2019 (28 days of subsistence allowance at the rate of 75%).

2. Learned counsel appearing for the petitioner submitted that the Controlling Authority failed to advert to the objections filed by the petitioner much less the provisions of Section 2 (a) of 1972 Act as the 2nd respondent did not fall within the definition of ‘employee’, for the aforementioned provisions of the Act only applies to skilled, semi skilled, unskilled manual, supervisory, technical, clerical or any other kind of work for hire or reward, but, not with regard to the employees in managerial and administrative capacity or as an out worker. The aforementioned provisions of the Act has been promulgated to provide subsistence allowance to the employees falling in the definition aforementioned to invoke the remedy of the Controlling Authority in the absence of payment of subsistence allowance by the employer. This Court noticing the contention vide order dated 17.08.2022 stayed the implementation of Ext.P3 order. Service has already been effected way back on respondent No.2, but there is no representation. The matter was again adjourned to 02.12.2022. Today also there is no appearance.

3. Accordingly, I proceed to decide the case on merits. The definition of the employee defined under Section 2 (a) of the Kerala Payment of Subsistence Allowance Act, 1972 reads as under :

“(a) "employee" means any person employed in or in connection with the work of any establishment to do skilled, semi-skilled or unskilled manual, supervisory, technical, clerical or any other kind of work for hire or reward, whether the terms of employment be express or implied, but does not include any such person who is employed mainly in a managerial or an administrative capacity or as an out-worker, that is to say, a person to whom any articles or materials are given out by or on behalf of the employer to be cleaned, washed, altered, ornamented or repaired by such out-worker in any place not under the control and management of the employer;”

On perusal of the same, it is evident that the persons employed in the managerial and administrative capacity or as an outworker will not be an employee entitled to subsistence allowance or invoke the provisions of the aforementioned Act by availing the remedy provided therein. The objections, filed by the petitioner and the documents enclosed reads thus :

“Before the Deputy Labour Commissioner (Controlling Authority, Kerala Payment of Subsistence Allowance Act, 1972 )

Statement filed on behalf of respondent :

Except those that are expressly admitted herein, this respondent denies the various averments filed by the petitioner before this Authority. At the outset, it is submitted that the application/petition filed by the petitioner is not sustainable either in law or in facts. The applicant herein does not come under the purview of the term “Employee” of Section 2 (a) of KPSA Act, 1972. The applicant herein, Mr.Siva.J. was the Assistant Branch Head, at the time of suspension on 30.7.2019, and was performing his duties, both in Managerial Administrative capacity. His designa