Madras High Court · 2025

W.P.No.13653 of 2021Prayer in W.P. To issue a writ in the nature of a writ of Certiorari calling for the records of the first respondent culminating in the order dated 24.09.2018 made in A.P.S.A. No.1 of 2018 and quash the same and pass such further of other orders in the interest of others. Prayer in W.M.P. To stay the operation of the order dated 24.9.2018 made in A.P.S.A.No.1 of 2018 on the file of the first respondent herein pending disposal of the present writ petition. Appearance of Parties: For Petitioner : Mrs.G.Thilakavathi, Senior Counsel For M/s. R.Gophinath, A.Shahana Fathima & M.Oviya Nila, Advocates For Respondents 1 & 2 : Mr.R.Kumaravel, AGP For Respondent 3 : No appearance J U D G M E NT Heard. 2.The present writ petition has been filed by the Co-operative Sugar Mill 2/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021challenging the order dated 24.09.2018 passed by the first respondent—Appellate Authority under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (hereinafter referred to as the “Subsistence Allowance Act”)—in A.P.S.A. No. 1 of 2018. By the said order, the Appellate Authority confirmed the order of the second respondent dated 09.11.2017 passed in P.S.A. No. 1 of 2017, wherein it was held that the third respondent was entitled to receive subsistence allowance amounting to Rs.1,48,384/-. After accounting for a sum of Rs.15,022/- already paid, the balance amount payable was determined as Rs. 1,33,362/-.3.The writ petition was admitted on 02.07.2021, and an interim stay was granted, initially until 26.08.2021. The stay was subsequently extended on 27.08.2021 up to 17.09.2021, and again on 16.11.2021, it was extended until further orders. Although the third respondent was duly served, he did not appear either in person or through counsel. Nevertheless, by order dated 07.11.2024, this Court referred the matter to the Mediation Centre. The first session was scheduled for 12.11.2024. However, it is seen from the records that the third respondent failed to appear on 12.11.2024, as well as on the subsequent scheduled dates—22.11.2024 and 02.12.2024. In view of the non-3/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021participation, the matter was returned to this Court for final adjudication.4.It is significant to note that while the petitioner sugar mill has challenged the appellate order dated 24.09.2018 passed by the first respondent—confirming the order of the second respondent—it has not chosen to challenge the original order dated 09.11.2017 passed by the second respondent in P.S.A. No. 1 of 2017. As a result, even if the appellate order were to be set aside, the order of the second respondent would continue to remain in force. On this short ground alone, the writ petition is liable to be dismissed.5.The records reveal that the third respondent was employed as a Centrifugal Operator in the petitioner mill. He was placed under suspension by order dated 18.09.2010 issued by the Special Officer, on the ground that he had been arrested in connection with the murder of a temple priest. Relying on the byelaws of the society, particularly Byelaw No. 48, the suspension was made effective from 26.08.2010. The third respondent, by letter dated 25.03.2011, sought revocation of the suspension and asserted that he had no involvement in the offence alleged against him.4/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 20216.Subsequently, the third respondent filed W.P. No. 24444 of 2011 seeking a direction to the petitioner mill to consider his representation. The writ petition was disposed of by an order dated 21.10.2011, directing the petitioner mill to consider the said representation. However, instead of reviewing the order of suspension, the petitioner mill issued a show cause memo dated 09.11.2011, calling upon the third respondent to explain why disciplinary action should not be initiated against him. In response, the third respondent submitted an undated letter requesting payment of subsistence allowance. In the meantime, by order dated 28.11.2016, the third respondent was dismissed from service with retrospective effect from 26.08.2010, on the ground that he had failed to submit any explanation to the show cause notice until he reached the age of superannuation on 31.12.2011.7.The third respondent, who was arrayed as Accused No. 3 in Sessions Case No. 4 of 2012, was ultimately acquitted by the learned Sessions Judge by judgment dated 30.07.2021.8.The third respondent subsequently approached the second respondent 5/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021by filing an application under Section 4 of the Tamil Nadu Payment of Subsistence Allowance Act, seeking subsistence allowance for the period from 26.08.2010 to 31.12.2011. The said application, dated ‘Nil’ July 2016, claimed a total amount of Rs. 1,45,737/- as subsistence allowance. Owing to the delay in filing the application, the third respondent also filed an application for condonation of delay in P.S.I.A. No. 3 of 2016 before the second respondent. The petitioner mill objected to the condonation of delay.9.The second respondent condoned the delay and took up the application for subsistence allowance on file as P.S.A. No. 1 of 2017. In the proceedings, the third respondent examined himself as PW1 and marked seven documents on his side, which were exhibited as Exs. P1 to P7. On behalf of the petitioner mill, one V. Kuppusamy, Section Superintendent, was examined as RW1, and four documents were filed, marked as Exs. R1 to R4.10.The second respondent, after affording an opportunity of hearing to both parties and considering the evidence placed on record, concluded that the third respondent had been kept under continuous suspension until he attained the age of superannuation. It was noted that a sum of Rs. 15,022/- had been 6/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021paid to him as subsistence allowance. Applying the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, the authority held that the third respondent was entitled to subsistence allowance and accordingly computed the total payable amount as Rs. 1,48,384/-. After giving credit for the amount already paid, the balance payable was determined as Rs. 1,33,362/-.11.Instead of complying with the order, the petitioner mill deposited the amount with the second respondent under cover of a letter dated 02.02.2018, and simultaneously preferred an appeal before the first respondent in A.P.S.A. No. 1 of 2018. The Appellate Authority, as already noted, dismissed the appeal and confirmed the order passed by the second respondent.12.During cross-examination before the second respondent, the management witness (RW1) stated that the third respondent had been paid subsistence allowance for the first three months in accordance with Byelaw No. 48. In response to further questions posed during cross-examination, he deposed as follows:—7/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021“Miyapd; rpwg;g[ Jiztpjp vz;/48 (Ex.R2)d;go jw;fhypf gzpePf;fk; bra;ag;gl;l K:d;W khj fhyj;jpw;Fs; jk;kPJ Rkj;jg;gl;l Fw;wr;rhl;LfspypUe;J tpLgltpy;iy vd;why; gzpapypUe;J tpyf;fp tplyhk; vd;fpd;w Jiztpjpapd;go mog;gilapy; eltof;if vLj;J kDjhuiu gzpapypUe;J tpyf;fpdPu;fsh vd;why; ,y;iy/ kDjhuu; jw;fhypf gzpePf;f fhyj;jpw;F jkJ 16/06/2016 (08/07/2016)Mk; njjpapl;l kDtpy; (krh/M/vz;/4) gpiHg;g{jpak; tH';ff; nfhupajw;F VjhtJ gjpy; bfhLj;jPu;fsh vd;why; ,y;iy/ kDjhuu; gpiHg;g{jpak; tH';ff;nfhup ,e;j ePjpkd;wj;jpy; tHf;F bjhLj;jgpd;du; epu;thfj; jug;gpy; mspj;j fojj;jpy; ru;f;fiuJiw ,af;Fdu; mtu;fspd; mDkjpnfhup fojk; vGjpa[s;nshk;/ gjpy; fpilj;jt[ld; gpiHg;g{jpak; tH';fg;gLk; vd;W bjuptpj;Js;sPu;fs; my;yth vd;why; Mkhk;/ mjdpilapy; kDjhuu; jw;fhypf gzpePf;fj;jpy; ,Ue;j 26/08/2010 Kjy; 23/11/2010 tiua[s;s 90 ehl;fSf;F kl;Lk; gpiHg;g{jpakhf U:/15022-? kl;Lk; tH';fpa[s;sPu;fs; vd;why; Mkhk;/ kDjhuu; gpiHg;g{jpak; tH';ff;nfhup ,e;j ePjpkd;wj;jpy; tHf;F bjhLj;J ehd;F khj';fs; fHpe;j gpd;du;jhd; kDjhuiu gzpePf;fk; bra;J cj;jut[ gpwg;gpj;Js;sPu;fs; vd;why; Mkhk;/ kDjhuu; Xa;t[bgw ntz;oa njjp 31/12/2011 vd;why; rup/ kDjhuu; Xa;t[ bgw ntz;oa njjpahd 31/12/2011 md;W gzpapypUe;J Xa;t[bgw cj;jut[ gpwg;gpf;fg;gl;ljh vd;why; ,y;iy/ mg;gobad;why; kDjhuu; Xa;t[ bgwntz;oa njjpad;Wk; jw;fhypf gzpePf;fj;jpy; jhd; ,Ue;jhu; vd;why; Mkhk;/ Miyapd; rpwg;g[ Jiztpjp vz;/48(a)d;go Fw;wk; rhl;lg;gl;ltu; ePjpkd;wj;jhy; Fw;wr;rhl;oypUe;J tpLtpf;fg;gl;lhy; kPz;Lk; ntiy mspf;fg;gl ntz;Lk; vd;why; rup/ j';fs; jug;gpy; jhf;fy; bra;Js;s Ex.R4 Mtzj;jpd;go kDjhuiu jw;fhypf gzpePf;fk; bra;ag;gl;l njjpapypUe;J epue;ju gzpePf;fk; bra;Js;sPu;fs; my;yth vd;why; Mkhk;/ Miyapd; rpwg;g[ Jiz tpjpfspy; mt;thW Kd;njjpapl;L epue;ju gzpePf;fk; bra;tjw;F tHptif cs;sjh vd;why; rupay;y.”8/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 202113.The sole contention advanced by the petitioner mill is that its Special Byelaw No. 48 limits the payment of subsistence allowance to a period of three months, and thereafter, in the event of a criminal case, the employee shall be dismissed from service. However, in the present case, no such dismissal was effected, even when the third respondent reached the age of superannuation. It is pertinent to note that the Tamil Nadu Payment of Subsistence Allowance Act, 1981 is a special legislation enacted by the Tamil Nadu Legislature to govern the payment of subsistence allowance, and it received the assent of the President on 21.07.1981. Under Section 3(1) of the Act, the payment of subsistence allowance to an employee under suspension is made mandatory, and the applicable rates are prescribed therein. The provision reads as follows:-“3. Payment of subsistence allowance-(1) An employee who is placed under suspension shall, during the period of such suspension, be entitled to receive payment from the employer as subsistence allowance, an amount equal to fifty percentum of the wages which the employee was drawing immediately before suspension, for the first ninety days reckoned from the date of such suspension: Provided that where the period of suspension exceeds ninety days but does not exceed one-hundred and eighty days, the employee shall be entitled to receive, after the said period of ninety days, a subsistence allowance equal to seventy-five percentum of the wages which the employee was drawing immediately before his suspension: 9/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021Provided also that where the enquiry or criminal proceeding is prolonged beyond the period of ninety days for reasons directly attributable to the employee, the subsistence allowance shall, for the period exceeding ninety days, be reduced to fifty percentum of the wages, which the employee was drawing immediately before his suspension.” 14.The aforesaid provision also contemplates situations where an employee is facing criminal proceedings. It is not the case of the petitioner mill that it has obtained any exemption from the operation of the Act under Section 6. In the absence of such exemption, the petitioner mill remains bound by the provisions of the Act, which, under Section 5, preserves only those rights or privileges that are more favourable than those conferred by the Act. Section 5 of the Act reads as follows:—“5. Savings of certain rights and privileges – Nothing in this Act shall affect any right or privilege to which any employee is entitled on the date of commencement of this Act under any law for the time being in force or under any contract, custom or usage which is more favourable to him than any right or privilege conferred upon him by this Act.” 15.Accordingly, the Payment of Subsistence Allowance Act, being a 10/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021special legislation, prevails in the present case—particularly in light of Section 5 of the said Act. Consequently, the reliance placed by the petitioner mill on Special Byelaw No. 48 is wholly misplaced and has no application to the facts at hand. Even otherwise, the petitioner mill is governed by the provisions of the Industrial Employment (Standing Orders) Act, 1946. To address the difficulties faced by workmen in receiving subsistence allowance, the said Act was amended by Central Act 18 of 1982, with effect from 17.05.1982, introducing Section 10A, which provides for the payment of subsistence allowance. The provision reads as follows:—“Section 10A: Payment of subsistence allowance –(1) Where any workmen is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance—(a)at the rate of fifty per cent. of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and(b)at the rate of seventy-five per cent. of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.”11/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 202116.In view of the foregoing, the petitioner mill is left with no option but to comply with its statutory obligation to pay subsistence allowance to any workman suspended pending enquiry. The reliance placed on Special Byelaw No. 48 is misplaced and cannot withstand legal scrutiny. Between the obligation to pay subsistence allowance under Section 10A of the Industrial Employment (Standing Orders) Act and the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, the latter must prevail. Since the State Act (Act 43 of 1981) has received the assent of the President, it holds the force of law in the State under Article 254(2) of the Constitution. Moreover, Section 5 of the Payment of Subsistence Allowance Act preserves only those terms that are more favourable to the workman. In the present case, the petitioner mill is bound to comply with the order passed by the second respondent—which has not been challenged before this Court—and as confirmed by the impugned order.17.It is also relevant to note that the third respondent was acquitted by the criminal court—a fact that remains undisputed by the petitioner mill. Accordingly, the writ petition stands dismissed. Consequently, the connected miscellaneous petition also stands dismissed. In view of the dismissal of the 12/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021writ petition, there shall be no impediment to the third respondent withdrawing the amount presently lying with the second respondent.18.For having instituted such a writ petition, particularly in a matter pertaining to subsistence allowance, the petitioner mill is directed to pay costs of Rs. 5,000/- to the third respondent. The said amount shall be paid by way of cheque, sent directly to the third respondent, and a compliance memo confirming such payment shall be filed before this Court.19.As the third respondent has not appeared despite due service of notice, it is presumed that factors such as his economic condition or advanced age may have constrained his ability to appear before this Court. Accordingly, the Registry is directed to dispatch a free copy of this order to the third respondent forthwith. 29.05.2025ay13/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021NCC : Yes / NoIndex : Yes / NoSpeaking Order / Non-speaking Order14/16 https://www.mhc.tn.gov.in/judis W.P.No.13653 of 2021DR. A.D. MARIA CLETE, JayTo 1.The Joint Commissioner of Labour The Appellate Authority Under the Payment of Subsistence Allowance Act Office of the Joint Commissioner of Labour Salem 2. The Deputy Commissioner of Labour The Competent Authority, Under the Payment of Subsistence Allowance Act Office of the Deputy Commissioner of Labour Salem3. A.Gowran S/o. Alraj Thirtharakali Village & Post, Palaccode Taluk, Dharmapuri District – 636 808.Pre-Delivery Judgment made inW.P.No. 13653 of 2021 and W.M.P. No. 14512 of 202115/16