High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 23..3..2007CoramThe Hon'ble Mr. Justice K.CHANDRUW.P. Nos.40249 and 42041 of 2006. . . . . A.Asokan.. Petitioner in both W.Ps.vs.1.The I I 558 KudhiraichandalPrimary Agricultural Co-op. Bank Ltd.Rep. by its Special OfficerKudhiraichandal Post.. R1 in WP 40249/062.The Villupuram District Committeeof Common Cadre Service for Secretaries of Primary Agricultural Co-operative banksrep. by its Chairman cumRegistrar of Co-op. SocietiesVillupuram.. Respondent in WP 42041/06 R2 in WP NO. 40249/06W.P.No.40249 of 2006 is filed under Article 226 of theConstitution of India seeking for issue of writ of Mandamusdirecting the first respondent to pay the subsistence allowanceas per G.O. Ms.No.55 Co.op Food and Consumer ProtectionDepartment dated 12.3.2000 from 01.4.2003 and continue to paythe same till the completion of the disciplinary proceedingsinto the charge memo dated 27.5.2000 and W.P.No.42041 of 2006 isfiled seeking for writ of Certiorari calling for the recordsrelating to the show cause notice Na ka. No.2086/2005 Agrl. S Sdated 28.9.2006 of the respondent along with the enquiry reportdated 27.4.2006 and quash the same. For Petitioner : Mr.S.VenkataramanFor Respondents: Mr.V.R.Thangavelu, GA https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E RI have heard the arguments of Mr.S.Venkataraman, learnedcounsel appearing for the petitioner and Mr.V.R.Thangavelu,learned Government Advocate, taking notice for the respondentsand have perused the records.2.In the first writ petition being W.P.No.40249 of 2006,the petitioner prays that the first respondent Co-operativeSociety should be directed to pay the subsistence allowance tohim in terms of G.O. Ms.No.55 Cooperation, Food and ConsumerProtection Department dated 24.3.2000 with effect from 01.4.2003and continue to pay the same till the completion of thedisciplinary proceedings initiated subsequent to the charge memodated 27.5.2000. In the second writ petition (W.P.No.42041 of2006), the petitioner has challenged the show cause notice dated28.9.2006 asking the petitioner to submit his explanation on thefindings of the enquiry officer dated 27.4.2006 was sought for.3.Mr.S.Venkataraman, learned counsel appearing for thepetitioner contended that he has not been paid any subsistenceallowance for more than last three years and, therefore, non-payment of subsistence allowance will vitiate the disciplinaryproceedings. 4.In respect of non-payment of subsistence allowance,the petitioner has already filed a writ petition beingW.P.No.40249 of 2006 which was admitted as early as 19.10.2006.Therefore, the contention as to the eligibility of the paymentof subsistence allowance can be gone into in that writ petition.Therefore, the petitioner cannot invalidate the show causenotice arising out of the enquiry proceedings, which has nowculminated into a show cause notice and is pending in its finalstage.5.If the petitioner has any grievance with reference tothe conduct of the enquiry or the findings, he can always submithis explanation and wait for the outcome of the enquiryproceedings. Therefore, this Court is not inclined tointerfere with the show cause notice where no prejudice iscaused to the petitioner and hence, the W.P.No.42041 of 2006 isdismissed and the petitioner is directed to submit hisexplanation within a period of two weeks from the date ofreceipt of a copy of this order.6.With reference to W.P. No.40249 of 2006, the argumentof the learned counsel for the petitioner is that the postbelongs to common cadre service and the service conditions aregoverned by G.O.Ms.No.55 Co-operation, Food and ConsumerProtection Department dated 24.3.2000 and that as per the said https://hcservices.ecourts.gov.in/hcservices/ regulation, the petitioner is entitled for subsistence allowanceand regulation No.29 sub-clause (d) reads as follows:"(i) A cadre employee under suspension shall beentitled to a subsistence allowance as per thepayment of Subsistence Allowance Act 1981."7.Normally, this writ petition should have beendismissed on the basis of the decision of the larger Bench ofthis Court reported in 2006 (4) CTC 689 [K.Marappan vs.Deputy Registrar of Co-operative Societies, Nnammkkal].However, in paragraph 21, the Bench itself carved out certainexceptions in which a writ petition can be maintained evenagainst the Co-operative Society. Paragraphs 21(3) and 21(4)sets out that when there is a statutory duty upon a society andif any violation of such duty is made, a writ would be issuedfor compliance of the same. 8.In the present case, G.O.Ms.No.55 Cooperation, Foodand Consumer Protection Department dated 24.3.2000 has beenframed in terms of Section 75 of the Co-operative Societies Act,1983 on their statutory regulations. Further, Regulation 29(d)only incorporates the rate of subsistence allowance providedunder the PSA Act even though the provisions of the said Act arenot applicable to the Secretaries of the Co-operative Societies,who are in full control of the Society. The Courts have alsoheld non-payment of Subsistence allowance amounts to deprivationof liberty provided under Article 21 of the Constitution ofIndia and an employee cannot defend himself effectively in adomestic enquiry when he is not even paid subsistence allowance.Even though the Special law provides for mechanism forrecovering Subsistence Allowance, a person like the petitioner,who belongs to the common cadre, cannot move the machinery underthe Act. Under these circumstances, the W.P.No.40249 of 2006 isbeing entertained.9.This question has already come up for consideration bythis Court vide judgment in Manupatra Law Reports (Madras) inMANU / TN / 2655 / 2006 [S.Poongavanam vs. The SpecialOfficer, HH 565 Kadaladi Primary Agricultural Co-operative BankLtd., Thiruvannamalai District and another] and this Court heldthat in respect of common cadre employees, their serviceconditions are governed by G.O.Ms.No.55 Cooperation, Food andConsumer Protection Department dated 24.3.2000 and, henceeligible to claim subsistence allowance in terms of theTamilnadu Primary Agricultural Co-operative Bank Common CadreRegulations 2000.10.But the question does not end therein. Because, theRegulation 29(d) clearly says that a cadre employee shall bepaid subsistence allowance as per the Payment of SubsistenceAllowance Act, 1981 [for short, 'PSA Act']. But, however,Secretary of a Society is not eligible for subsistence allowance https://hcservices.ecourts.gov.in/hcservices/ in terms of the PSA Act as he is not an employee within themeaning of the said Act. The said decision is reported in2002 (4) CTC 339 [The Management, T.P.Spl. 67 GoundanpalayamPrimary Agricultural Cooperative Bank Ltd. vs. AssistantCommissioner of Labour], wherein a learned Judge has held thatthe Tamil Nadu Co-operative Society Act is a special law and,therefore, a person designated as a Secretary, who is in overallcontrol of the Society, is not entitled to claim subsistenceallowance as per the Act.11.But when the Regulation states that as per theprovisions of the PSA Act, a cadre employee is entitled forsubsistence allowance, can it be extended by saying that evenpersons, who are not covered by the provisions of the PSA Actwill be entitled to payment of subsistence allowance as per theAct? Is it a case of a subsequent legislation borrowing orincorporating certain provisions of earlier legislation? Thesetwo questions still looms large. 12.When an earlier Act or certain of its provisions areincorporated become part and parcel of the later Act as if theyhad been bodily transposed into it. The incorporation of anearlier Act into a later Act is a legislative device adopted forthe sake of convenience in order to avoid verbatim reproductionof the provisions of the earlier Act into the later. But thismust be distinguished from a referential legislation whichmerely contains a reference or the citation of the provisions ofan earlier statute. In a case where a statute is incorporated,by reference, into a second statute, the repeal of the firststatute by a third does not affect the second. The later Actalong with the incorporated provisions of the earlier Actconstitute an independent legislation which is not modified orrepealed by a modification or repeal of the earlier Act.However, where in later Act there is a mere reference to anearlier Act, the modification, repeal or amendment of thestatute that is referred, will also have an effect on thestatute in which it is referred. It is equally well settled thatthe question whether a former statute is merely referred to orcited in a later statute, or whether it is wholly or partiallyincorporated therein, is a question of construction. 13. In U.P. Avas Evam Vikas Parishad Vs. Jainul Islam (AIR1998 SC 1028) the Supreme Court has observed as follows:- “A subsequent legislation often marks areference to the earlier legislation so as tomake the provisions of the earlier legislationapplicable to matters covered by the laterlegislation. Such a legislation may either be (i)a referential legislation which merely contains areference to or the citation of the provisions ofthe earlier statute; or (ii) a legislation byincorporation whereunder the provisions of the https://hcservices.ecourts.gov.in/hcservices/ earlier legislation to which reference is madeare incorporated into the later legislation byreference. If it is a referential legislation theprovisions of the earlier legislation to whichreference is made in the subsequent legislationwould be applicable as it stands on the date ofapplication of such earlier legislation tomatters referred to in the subsequentlegislation. In other words, any amendment madein the earlier legislation after the date ofenactment of the subsequent legislation wouldalso be applicable. But if it is a legislation byincorporation the rule of construction is thatrepeal of the earlier stature which isincorporated does not affect operation of thesubsequent statute in which it has beenincorporated. So also any amendment in thestatute which has been so incorporated that ismade after the date of incorporation of suchstatute does not affect the subsequent statute inwhich it is incorporated and the provisions ofthe statute which have been incorporated wouldremain the same as they were at the time ofincorporation and the subsequent amendments arenot be read in the subsequent legislation.” 14.It is seen that G.O.Ms.No.55, Cooperation, Food andConsumer Protection Department dated 24.3.2000 only creates acommon cadre service for all the Secretaries of the PrimaryAgricultural Co-operative Banks. Automatically, such a cadreis not provided under the PSA Act because such a person does notcome within the definition of the word 'employee' within themeaning of Section 2(a) of the said Act. Therefore, when theGovernment frames a statutory regulation in terms of Section 75of the Tamil Nadu Co-operative Societies Act, it must be awareof the provisions of the PSA Act. Therefore, the reference tothe PSA Act under Regulation 29(d) is with a consciousunderstanding that though the said Act does not apply to thecadre of Secretaries, still the Government wanted to adopt therates provided under the said Act. Therefore, it is a case ofan incorporation of an earlier legislation. 15.In the light of the above finding, it must be statedthat the respondent Society will have to work out the rate ofsubsistence allowance to be paid to the petitioner as per theprovisions of the PSA Act.16.Accordingly, W.P.No.40249 of 2006 shall stand allowedand the first respondent Society is hereby directed to pay thewrit petitioner the subsistence allowance for the period from01.4.2003 till the completion of the enquiry instituted againsthim for payment of subsistence allowance in terms of the rates https://hcservices.ecourts.gov.in/hcservices/ provided under the T.N. Payment of Subsistence Allowance Act,within a period of four weeks from the date of receipt of a copyof this order. However, there will be no order as to costs.Connected Miscellaneous Petitions will stand closed.GriSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Special OfficerI I 558 KudhiraichandalPrimary Agricultural Co-op. Bank Ltd.Kudhiraichandal Post2.The Chairman cumRegistrar of Co-op.SocietiesVillupuram District Committeeof Common Cadre Service for Secretaries of Primary Agricultural Co-operative banksVillupuram+ one cc to Mr. S. Venkataraman, Advocate sr no. 18165KSJ(CO)NM(29.03.07) W.P. Nos.40249 and 42041 of 2006