High Court · 2024

W.P.No.8358 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.04.2024CORAM:THE HONOURABLE DR. JUSTICE D.NAGARJUNW.P.No.8358 of 2024andW.M.P.Nos.9312 and 9313 of 2024The Regional Manager,Tamil Nadu Civil Supplies Corporation,Chennai South Region,No.9 Conron Smith Road,Gopalapuram,Chennai - 600 086. ...Petitioner Vs1.The Joint Commissioner of Labour/The Appellate Authority,under the payment of Subsistence Allowance Act 1981,O/o The Joint Commissioner of Labour,D.M.S. Campus, Teynampet,Chennai - 600 006.2.The Deputy Commissioner of Labour,Authority under the payment of Subsistence Allowance Act 1981,The Assistant Commissioner of Labour - I,D.M.S.Campus, Teynampet,Chennai - 600 006.3.C.Lucas (P.S.A.No.10/2019)4.D.Godhandapani (P.S.A.No.11/2019)5.Ramaye6.Sivapriya7.Gokul8.Vijayan (R5 to R8 legal heirs of deceased C.Mannangatty) ...Respondents1/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari, to call for the records of the second respondent and quash the order dated 21.06.2022 in P.S.A. case No.10/2019 ,11/2019 and 12/2019 and confirmed by the respondent in P.S.A. (Appeal) No.01/2023 dated 05.10.2023.For petitioner : Mr.C.SelvarajFor respondents : Mr.K.TamilvendanGovernment AdvocateORDERThis writ petition has been filed seeking to set aside the order 21.06.2022 in P.S.A. case No.10/2019 ,11/2019 and 12/2019 and confirmed by the respondent in P.S.A. (Appeal) No.01/2023 dated 05.10.2023 by way of issuance of certiorari.2.The learned counsel for petitioner is present and learned counsel for the respondents one and two are also present.3.The third and fourth respondents, namely C.Lucus, D.Godhandapani and deceased C.Mannagatty (for short "the delinquents") were doing the job of loading and unloading essential commodities during the 2/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024year 2019. The nature of work of loading and unloading is intermittent and not perennial in nature, as the work depends on the arrival or movement of stocks from the godown. Hence, there was no guarantee of uniform wages and the delinquents worked on the principle of "no work no wages" and also no fixed pay scale for the delinquents.4.While so, the said the delinquents were arrested by the civil supply CID Police in crime No.391 of 2018 alleging that they were involved in clandestine movement of 130 bags of rice weighing 6500 kgs from Virugambakkam godown and sold the same to two private persons namely Kartick and Pandian, for their personal gains. Subsequent to the arrest 12500 kgs of ration rice and two four wheel vehicles and a motor cycle and also a sum of Rs.30,000/- were recovered from them.5.Subsequent to their arrest, the delinquents were placed under suspension on 22.01.2019 in the interest of the public. Charges were framed against them in R.C.No.A20/0311/2019 dated 01.03.2019 for the clandestine movement of 130 bags of rice weighting 6500 kgs from Virugambakkam godown and sold them to a private trader in a open market. The enquiry officer was appointed on 04.09.2019 and after conclusion of the enquiry the 3/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024delinquents were found guilty of the charges levelled against them and enquiry report was filed on 20.02.2020. Basing on the said enquiry report the delinquents were terminated from service on 16.07.2020. The suspension period was treated as "no work no wages" and the delinquents did not challenge their termination orders, therefore, the orders of termination dated 16.07.2020 have become final.6.The delinquents have filed applications in P.S.A.case No.10 of 2019, 11 of 2019 and 12 of 2019 respectively and as the delinquent C.Mannagatty died, his legal representatives were brought on record as respondents five to eight and all the applications were allowed directing the petitioners to pay subsistence allowances during the period of suspension. Aggrieved by the impugned orders passed in P.S.A. cases referred supra, the petitioner preferred an appeal in P.S.A. appeal No.01 of 2023 and ultimately the said appeal was dismissed on 05.10.2023 and thereby, confirming the impugned order passed dated 21.06.2022.7.Now the learned counsel for the petitioner has strenuously submitted that the third and the fourth respondents were not getting regular employment and that they were working as loading and unloading employees 4/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024as and when required and whenever there was no work "no work no wages" policy was followed. He has further submitted that both the authorities have committed error in directing the petitioner to pay the subsistence allowances based on the erroneous conclusion that they were working as regular employees and they have to be paid salary. It is submitted further by the learned counsel for the petitioner that the delinquents were not paid any subsistence allowance and if no work was there, they were not paid any amount. Thereby, calculating salary and directing the petitioner to pay subsistence allowances is erroneous. 8.The Tamil Nadu Payment of Subsistence Allowances, 1981, fairly applies to the case. As per Section 3 of the Act,employees who are placed under suspension shall, during the period of suspension, be entitled to receive payment from the employer as subsistence allowance, an amount equal to 50 percentum of the wages which the employee was drawing immediately before suspension, for the first ninety days reckoned from the date of such suspension. Both the respondent authorities taking into consideration the last pay drawn by the delinquents have directed the petitioner Corporation to pay 50% of pay as subsistence allowances. 5/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 20249.The learned counsel for the petitioner failed to convince under which law or provision or which authority the delinquents can be denied subsistence allowances. If at all the petitioner Corporation was of the opinion that they were not at all regular employees and that they were not given work regularly, then the petitioner Corporation should not have placed the delinquents under suspension. The petitioner Corporation not only placed them under suspension but disciplinary proceedings were also initiated by the petitioner Corporation. It is to be noted that the petitioner Corporation will initiate disciplinary proceedings only in respect of the regular employees and thereby, if the third respondent are not the regular employees there was no necessity to initiate disciplinary proceedings. Thereby, the submission of the petitioner Corporation that they are not regular employment will not be considered. 10.Therefore, as per the scheme of subsistence allowances under Tamil Nadu Subsistence allowance Act, the employees shall be paid 50 % and if the enquiry prolongs for some more time, then the subsistence allowance will be enhanced to 75%.11.In view of the above, the orders passed by both the authorities 6/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024are not perverse and not erroneous thereby, the impugned orders cannot be intervened. Accordingly, this writ petition is dismissed. Connected W.M.Ps are closed. Costs made easy. 01.04.2024vcaIndex:Yes/NoInternet:Yes/NoCitiation:Yes/No7/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024Dr.D.NAGARJUN.J,vca To1.The Joint Commissioner of Labour/The Appellate Authority,under the payment of Subsistence Allowance Act 1981,O/o The Joint Commissioner of Labour,D.M.S. Campus, Teynampet,Chennai - 600 006.2.The Deputy Commissioner of Labour,Authority under the payment of Subsistence Allowance Act 1981,The Assistant Commissioner of Labour - I,D.M.S.Campus, Teynampet,Chennai - 600 006. W.P.No.8358 of 2024andW.M.P.Nos.9312 and 9313 of 2024 01.04.20248/8

W.P.No.8358 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.04.2024CORAM:THE HONOURABLE DR. JUSTICE D.NAGARJUNW.P.No.8358 of 2024andW.M.P.Nos.9312 and 9313 of 2024The Regional Manager,Tamil Nadu Civil Supplies Corporation,Chennai South Region,No.9 Conron Smith Road,Gopalapuram,Chennai - 600 086. ...Petitioner Vs1.The Joint Commissioner of Labour/The Appellate Authority,under the payment of Subsistence Allowance Act 1981,O/o The Joint Commissioner of Labour,D.M.S. Campus, Teynampet,Chennai - 600 006.2.The Deputy Commissioner of Labour,Authority under the payment of Subsistence Allowance Act 1981,The Assistant Commissioner of Labour - I,D.M.S.Campus, Teynampet,Chennai - 600 006.3.C.Lucas (P.S.A.No.10/2019)4.D.Godhandapani (P.S.A.No.11/2019)5.Ramaye6.Sivapriya7.Gokul8.Vijayan (R5 to R8 legal heirs of deceased C.Mannangatty) ...Respondents1/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari, to call for the records of the second respondent and quash the order dated 21.06.2022 in P.S.A. case No.10/2019 ,11/2019 and 12/2019 and confirmed by the respondent in P.S.A. (Appeal) No.01/2023 dated 05.10.2023.For petitioner : Mr.C.SelvarajFor respondents : Mr.K.TamilvendanGovernment AdvocateORDERThis writ petition has been filed seeking to set aside the order 21.06.2022 in P.S.A. case No.10/2019 ,11/2019 and 12/2019 and confirmed by the respondent in P.S.A. (Appeal) No.01/2023 dated 05.10.2023 by way of issuance of certiorari.2.The learned counsel for petitioner is present and learned counsel for the respondents one and two are also present.3.The third and fourth respondents, namely C.Lucus, D.Godhandapani and deceased C.Mannagatty (for short "the delinquents") were doing the job of loading and unloading essential commodities during the 2/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024year 2019. The nature of work of loading and unloading is intermittent and not perennial in nature, as the work depends on the arrival or movement of stocks from the godown. Hence, there was no guarantee of uniform wages and the delinquents worked on the principle of "no work no wages" and also no fixed pay scale for the delinquents.4.While so, the said the delinquents were arrested by the civil supply CID Police in crime No.391 of 2018 alleging that they were involved in clandestine movement of 130 bags of rice weighing 6500 kgs from Virugambakkam godown and sold the same to two private persons namely Kartick and Pandian, for their personal gains. Subsequent to the arrest 12500 kgs of ration rice and two four wheel vehicles and a motor cycle and also a sum of Rs.30,000/- were recovered from them.5.Subsequent to their arrest, the delinquents were placed under suspension on 22.01.2019 in the interest of the public. Charges were framed against them in R.C.No.A20/0311/2019 dated 01.03.2019 for the clandestine movement of 130 bags of rice weighting 6500 kgs from Virugambakkam godown and sold them to a private trader in a open market. The enquiry officer was appointed on 04.09.2019 and after conclusion of the enquiry the 3/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024delinquents were found guilty of the charges levelled against them and enquiry report was filed on 20.02.2020. Basing on the said enquiry report the delinquents were terminated from service on 16.07.2020. The suspension period was treated as "no work no wages" and the delinquents did not challenge their termination orders, therefore, the orders of termination dated 16.07.2020 have become final.6.The delinquents have filed applications in P.S.A.case No.10 of 2019, 11 of 2019 and 12 of 2019 respectively and as the delinquent C.Mannagatty died, his legal representatives were brought on record as respondents five to eight and all the applications were allowed directing the petitioners to pay subsistence allowances during the period of suspension. Aggrieved by the impugned orders passed in P.S.A. cases referred supra, the petitioner preferred an appeal in P.S.A. appeal No.01 of 2023 and ultimately the said appeal was dismissed on 05.10.2023 and thereby, confirming the impugned order passed dated 21.06.2022.7.Now the learned counsel for the petitioner has strenuously submitted that the third and the fourth respondents were not getting regular employment and that they were working as loading and unloading employees 4/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024as and when required and whenever there was no work "no work no wages" policy was followed. He has further submitted that both the authorities have committed error in directing the petitioner to pay the subsistence allowances based on the erroneous conclusion that they were working as regular employees and they have to be paid salary. It is submitted further by the learned counsel for the petitioner that the delinquents were not paid any subsistence allowance and if no work was there, they were not paid any amount. Thereby, calculating salary and directing the petitioner to pay subsistence allowances is erroneous. 8.The Tamil Nadu Payment of Subsistence Allowances, 1981, fairly applies to the case. As per Section 3 of the Act,employees who are placed under suspension shall, during the period of suspension, be entitled to receive payment from the employer as subsistence allowance, an amount equal to 50 percentum of the wages which the employee was drawing immediately before suspension, for the first ninety days reckoned from the date of such suspension. Both the respondent authorities taking into consideration the last pay drawn by the delinquents have directed the petitioner Corporation to pay 50% of pay as subsistence allowances. 5/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 20249.The learned counsel for the petitioner failed to convince under which law or provision or which authority the delinquents can be denied subsistence allowances. If at all the petitioner Corporation was of the opinion that they were not at all regular employees and that they were not given work regularly, then the petitioner Corporation should not have placed the delinquents under suspension. The petitioner Corporation not only placed them under suspension but disciplinary proceedings were also initiated by the petitioner Corporation. It is to be noted that the petitioner Corporation will initiate disciplinary proceedings only in respect of the regular employees and thereby, if the third respondent are not the regular employees there was no necessity to initiate disciplinary proceedings. Thereby, the submission of the petitioner Corporation that they are not regular employment will not be considered. 10.Therefore, as per the scheme of subsistence allowances under Tamil Nadu Subsistence allowance Act, the employees shall be paid 50 % and if the enquiry prolongs for some more time, then the subsistence allowance will be enhanced to 75%.11.In view of the above, the orders passed by both the authorities 6/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024are not perverse and not erroneous thereby, the impugned orders cannot be intervened. Accordingly, this writ petition is dismissed. Connected W.M.Ps are closed. Costs made easy. 01.04.2024vcaIndex:Yes/NoInternet:Yes/NoCitiation:Yes/No7/8 https://www.mhc.tn.gov.in/judis W.P.No.8358 of 2024Dr.D.NAGARJUN.J,vca To1.The Joint Commissioner of Labour/The Appellate Authority,under the payment of Subsistence Allowance Act 1981,O/o The Joint Commissioner of Labour,D.M.S. Campus, Teynampet,Chennai - 600 006.2.The Deputy Commissioner of Labour,Authority under the payment of Subsistence Allowance Act 1981,The Assistant Commissioner of Labour - I,D.M.S.Campus, Teynampet,Chennai - 600 006. W.P.No.8358 of 2024andW.M.P.Nos.9312 and 9313 of 2024 01.04.20248/8