Writ Petition No. 6521 of 2009 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.11.2009CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUWrit Petition Nos.6521 of 2009 and 26794, 21659 and 29236 of 2008and M.P.Nos.1 and 2 of 2009 in W.P.No.6521 of 2009,M.P.No.1 of 2008 in W.P.No.26794 of 2008,M.P.No.1 of 2009 in W.P.No.21659 of 2008and M.P.No.1 of 2008 in W.P.No.29236 of 2008Dr.K.Ponsingh .. Petitioner in all the Writ PetitionsVs.

Central Registrar of Co-operative Societies, Department of Agriculture and Co-operative, Krishi Bhavan, Dr.Rajendra Prasad Road, New Delhi-110 001. .. First respondent in all the Writ Petitions 2. The Indian Medical Practitioners Co-operative Pharmacy and Stores Ltd, (X 185), rep. by the Secretary, 34-37, Kalki Krishnamoorthy Salai, Thiruvanmiyur, Chennai-600 041... Second respondent in W.P.Nos.6521 of 2009 and 26794 of 2008 2. The Secretary, The Indian Medical Practitioners Co-operative Pharmacy and Stores Ltd, X 185, 34-37, Kalki Krishnamoorthy Salai, Thiruvanmiyur, Chennai-600 041... Second respondent in W.P.Nos.21659 and 29236 of 20083. The President, The Indian Medical Practitioners Co-operative Pharmacy and Stores Ltd., X-185, 34-37, Kalki Krishnamoorthy Salai, Thiruvanmiyur, Chennai-600 041. .. Third respondent in W.P.Nos.6521 of 2009 and 26794 and 29236 of 2008 https://hcservices.ecourts.gov.in/hcservices/ Writ Petition No.6521 of 2009 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, to call for the records relating to theorder/proceedings dated 20.3.2009 in File No.E/2008-2009 passed by the second respondent and quash the same.

The petitioner has filed Writ Petition in W.P.No.21659 of2008 seeking to challenge the order dated 30.7.2008, wherein therespondent-Co-operative Society informed the petitioner that the Subsistence Allowance paid to him as per the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981, is erroneous and since the petitioner is not covered by the said Act, he is not https://hcservices.ecourts.gov.in/hcservices/ a 'workman' within the meaning of Section 2(s) of the IndustrialDisputes Act and the amount paid was sought to be recovered. It is stated that the petitioner is eligible for Subsistence Allowanceonly as per the bye-laws of the Society. The petitioner challenged the same on the ground that any reference made to the provisions of the Tamil Nadu Payment of Subsistence Allowance Act is meaningless and the said Act will not apply to the Multi-State Co-operativeSociety. Therefore, the petitioner has chosen to challenge the Standing Orders framed by the respondent-Co-operative Society, more particularly paragraph 3(XIII) Sub-Clause (3) of the StandingOrders of the respondent-Co-operative Society, wherein the Societyrestricted payment in respect of the persons involved in criminal cases.

The petitioner has also filed W.P.No.26794 of 2008 seeking to challenge the order of suspension dated 29.9.2008, wherein the petitioner was accused of committing irregularities in the matter of construction of hospital building worth about Rs.52 lakhs.

Thereafter, the petitioner has filed W.P.No.29236 of 2008seeking for declaration to declare that Sub-Clause (3) of Rule 3(xi) relating to the Service Conditions as illegal.

The petitioner also challenges finally in W.P.No.6521 of2009, wherein, he has questioned appointment of the EnquiryOfficer, vide proceedings dated 20.3.2009.

When another similar person, by name D.Swayambu Nainarfiled W.P.No.5205 of 2009, this Court by order dated 27.10.2009,disposed of the said Writ Petition holding that such Writ Petitionis not maintainable in the light of the Larger Bench decision of this Court in the case of "K.Marappan Vs. The Deputy Registrar ofCo-operative Societies, Namakkal and another" reported in 2006 (4)CTC 689.

Therefore, all the Writ Petitions are not maintainable andare liable to be dismissed.

With reference to payment of Subsistence Allowance, it requires certain clarification and the petitioner's contention need not be raised again and again. The petitioner being an AssistantSecretary of the respondent-IMPCOPS, he is not admittedly not a'workman' within the meaning of Section 2(s) of the IndustrialDisputes Act, and therefore, he is correct in stating that the Tamil Nadu Payment of Subsistence Allowance Act, will not apply to him. https://hcservices.ecourts.gov.in/hcservices/

The further contention that the Parliament has amended the provisions of the Industrial Employment (Standing Orders) Act, 1946and Section 10-A was introduced and it will apply to him, cannot be accepted, because, the very Act itself applies only to the'workman', who is also a 'workman' under the Industrial DisputesAct and this has been made clear if a reference is made to Section10-A(2) of the Industrial Employment (Standing Orders) Act, 1946.Therefore, the petitioner, if at all gets any SubsistenceAllowance, it can only be in terms of the special bye-laws relating to the service conditions applicable to the petitioner and not otherwise. The relevant bye-law, namely Bye-Law No.3(ix)(e) states that the authority competent to suspend an employee may at its discretion sanction him a Subsistence Allowance at a rate not exceeding ¼ of his substantive pay during the period of his suspension and no employee shall in any case be kept under suspension for a period exceeding three months at a time.

Similar Bye-Law came to be interpreted by a Full Bench of this Court, vide its judgment reported in AIR 1975 Madras 241(Palani Co-op. Sales Socy. Vs. Presiding Officer ), wherein the Full Bench opined that the words "at a time" will denote that it is only a temporary suspension and not a substantive punishment and therefore, there is no bar for the employer to extend such suspension. In such circumstances, if at all there is any right for the petitioner to receive Subsistence Allowance, it can be only interms of the Bye-Laws of the respondent-Society. Learned counselfor the respondent-IMPCOPS states that the Society is payingSubsistence Allowance to the petitioner in terms of the Bye-Laws.

Under the above circumstances, the Writ Petitions filed by the petitioner stand dismissed being without substance. No costs. The Miscellaneous Petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.csTo1. Central Registrar of Co-operative Societies, Department of Agriculture and Co-operative, Krishi Bhavan, Dr.Rajendra Prasad Road, New Delhi-110 001. https://hcservices.ecourts.gov.in/hcservices/

2. The Secretary Indian Medical Practitioners Co-operative Pharmacy and Stores Ltd, (X 185), 34-37, Kalki Krishnamoorthy Salai, Thiruvanmiyur, Chennai-600 041.3. The Secretary, The Indian Medical Practitioners Co-operative Pharmacy and Stores Ltd, X 185, 34-37, Kalki Krishnamoorthy Salai, Thiruvanmiyur, Chennai-600 041.4. The President, The Indian Medical Practitioners Co-operative Pharmacy and Stores Ltd., X-185, 34-37, Kalki Krishnamoorthy Salai, Thiruvanmiyur, Chennai-600 041. 4 ccs to Mr.R. Manickavel, Sr. 619154 ccs to Mr.R.Sivakumar SR. 61526, 61529, 61528, 61527W.P.Nos.6521 of 2009 and 26794, 21659and 29236 of 2008MBS (CO)kk 25/11