The President,Melur Primary AgriculturalCo-operative Bank I.I.622,Melur and Post,Kallakurichi Taluk v. Rajendran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.2.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.5693 of 2000The President,Melur Primary AgriculturalCo-operative Bank I.I.622,Melur and Post,Kallakurichi Taluk. .. Petitioner-vs-1.Rajendran 2.The Deputy Commissioner of Labour Court (II Deputy Commissioner), Chennai-6. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari to call forthe records relating to P.S.A.No.62 of 1998 dated 07.10.1999 on thefile of the second respondent herein and quash the same. For petitioner: Mr.T.Dhanyakumar *****O R D E R The petitioner is a Primary Agricultural Co-operative Bank,Melur at Kallakurichi Taluk. Aggrieved by the order dated 07.10.1999in P.S.A.No.62 of 1998 passed by the second respondent, the presentwrit petition has been filed.2. The first respondent was employed as an Assistant Secretary inthe petitioner society and he was placed under suspension from28.4.1998. He was not paid subsistence allowance for the period from28.4.1998 to 31.10.1998 despite demanding the same. Therefore, hemoved the second respondent authority seeking subsistence allowancefrom the petitioner society. His application was taken on file asP.S.A.No.62 of 1998 and notice was issued to the management. Themanagement took up the stand that the Subsistence Allowance Act wasmeant to provide subsistence allowance and not to make unjustenrichment from the management. The first respondent was guilty ofserious misconduct of misappropriation and, therefore, he should not https://hcservices.ecourts.gov.in/hcservices/ be paid any subsistence allowance. Further, he was also not a''workman'' within the meaning of the Act. Since the petitioner wasworking elsewhere he is not eligible for any allowance and in termsof Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988 thepetitioner is eligible for only 50% of his wages. The workman filed arejoinder denying the fact that he was employed in a supervisorycapacity. The authority came to the conclusion that the Act appliesto the petitioner and in so far as he is kept under suspensionpending enquiry he is eligible for subsistence allowance. In thatview of the matter, he calculated the subsistence allowance as perthe Act.3. Even though as against the order of the second respondent, thepetitioner has a right of appeal under Rule 5A of the Tamil NaduPayment of Subsistence Allowance Rules, 1981 to the DeputyCommissioner of Labour, the petitioner has not chosen to prefer anyappeal and has straightaway filed the present writ petition. But inthe description of parties, the petitioner has wrongly described thatthe impugned order, as if it has been passed by the DeputyCommissioner of Labour. But it has been passed only by the AssistantCommissioner of Labour, who is the original authority. 4. In any event, the writ petition was admitted on 06.1.2003 andpending the writ petition this Court rejected the stay applicationfiled by the petitioner society. A perusal of the impugned orderclearly shows that the original authority had applied his mind indeciding that the first respondent was a workman covered by the Actand that the provisions of the Tamil Nadu Act 43 of 1981 will applyto the case of the petitioner. But the question whether the Rule 149of the Tamil Nadu Co-operative Societies Rules will prevail over theprovisions of the Tamil Nadu Act 43 of 1981 came up for considerationbefore a Division Bench of this Court presided by F.M.IbrahimKalifulla, J. in M.Kanagasabapathy -vs- The Special Officer, PothanurPrimary Agricultural Co-operative Bank Limited and others reported in2007 (5) CTC 392. In paragraph Nos.60 and 61 it has been observed asfollows:-Para 60. In fact, under Section 75 of the Act, though thereis a provision providing for suspension of anemployee, there is no specific provision as regardsthe manner in which an employee placed undersuspension pending enquiry is to be dealt with. To bemore specific, there is no provision in the Actproviding for the manner in which payment ofsubsistence allowance has to be made during theperiod of suspension pending enquiry. Whereas underAct 43 of 1981 what is left out in the Act 30 of 1983has been specifically taken care of, namely, thepayment of subsistence allowance in respect of an''industrial establishment" which term takes withinits fold even a registered Co-operative Society https://hcservices.ecourts.gov.in/hcservices/ governed by the provisions of Act 30 of 1983.Therefore, when it comes to the question of paymentof subsistence allowance, it can be safely held thatAct 43 of 1981 being a special legislation on thesubject would alone govern and in that respect Act 30of 1983 would become a general enactment, havingregard to the applicability of the maxim 'generaliaspecialibus non derogant'. When we approach thisissue from the other angle as to whether there is anyspecific provision in the Act 30 of 1983 by way ofnon-obstante Clause, it will have to be held thatthere is no such specific provision which wouldexclude the applicability of the Act 43 of 1981 toany Co-operative Society. In this context, when weapply the decision of the Hon'ble Supreme Courtreported in Major E.G.Barsay -vs- State of Bombay,AIR 1961 SC 1762, having regard to the fact thatthere is no non-obstante Clause in the Act 30 of1983 and by virtue of the fact that the Act 43 of1981 being special enactment earlier in point of timeAct 43 of 1981 alone would prevail.Para 61. One other aspect, which is also to be examined isthat there are provisions in the bye-laws of the Co-operative Society which provides for payment ofsubsistence allowance. As far as the applicability ofthe bye-laws are concerned, having regard to thecategoric decision of the Hon'ble Supreme Courtreported in Co-operative Central Bank Ltd. Andothers, etc. -vs- Additional Industrial Tribunal,Andhra Pradesh, Hyderabad and others etc. AIR 1970 SC245, that bye-laws of a Co-operative Society framedin pursuance of the provisions of the Act cannot beheld to have the force of law, it will have to beheld that the same would not in any way impinge uponthe specific provision contained under the Act 43 of1981 providing for payment of subsistence allowance.In fact the Hon'ble Supreme Court in the saiddecision, apart from stating that the same has nostatutory force also held that such bye-laws of thesociety are similar in nature to the Article ofAssociation of a Company incorporated under theCompanies Act and therefore, it has no force of law.Similarly, comparison was also made with the StandingOrders under the Industrial Employment StandingOrders Act, where again, it was held that though suchStanding Orders are binding on the employer andemployee of an industry, they do not have the forceof law. Therefore, when it is well settled that bye-laws of the Co-operative Society have no force oflaw, the same cannot stand the scrutiny when it comes https://hcservices.ecourts.gov.in/hcservices/ to the question of applicability of Act 43 of 1981.We are therefore, of the firm view that Act 43 of1981 being a special enactment specifically enactedto deal with the payment of subsistence allowanceduring the period of suspension pending enquiry,which act being earlier in point of time as comparedto the Act 30 of 1983 which should be construed as ageneral enactment in the present context, Act 43 of1981 alone would prevail."5. However, in a recent decision of another Division Benchpresided by D.Murugesan, J. in I.I.558 Kuthiraichandal Primary Co-operative Bank Limited rep.by its Special Officer, KuthiraichandalPost -vs- A.Asokan and another (W.A.No.750 of 2007 dated 12.11.2008)in paragraph No.9 it was held as follows:-''9. A combined reading of Clause (a) and (c) of Section 2of the Subsistence Allowance Act, shows that the provisionsof the Act, will be applicable only in respect of employeesemployed in an Industrial Establishment and not otherwise.An employee of Co-operative Bank is not entitled to thebenefit of the subsistence allowance Act, as he is not anemployee employed in, or in connection with any work oractivities of the establishment to do any skilled or semi-skilled, etc. work and the Co-operative Bank also cannot betermed to be an establishment within the definition ofClause (c) of Section 2 of the Subsistence Allowance Act.Hence, the employee of a Co-operative Bank is not entitledto payment of subsistence allowance as per the SubsistenceAllowance Act. The term ''employee'' under the SubsistenceAllowance Act, does not include ''the Secretary" as well.Hence, the claim for payment of subsistence allowance by theSecretary of the Primary Agricultural Co-operative Bank, onthe basis of payment of Subsistence Allowance Act, cannot beconceded".6. The two Division Benches while dealing with the issue ofapplication of the Tamil Nadu Payment of Subsistence Allowance Act,1981 in relation to the Co-operative Societies have takendiametrically opposite views. This will have to be resolved by alarger bench of this Court in a future occasion. 7. In the present case, the only contention raised by thepetitioner management was the non-application of the T.N.Act 43 of1981 and it is covered by the judgment in Kanagasabapathy's case(cited supra). Therefore, since that is the point that has beenraised, this Court is not inclined to refer the matter to the Hon'bleChief Justice for referring the issue to a larger bench. https://hcservices.ecourts.gov.in/hcservices/

8. In view of the above, the writ petition stands dismissed.However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjsToThe Deputy Commissioner of Labour Court (II Deputy Commissioner), Chennai-6. W.P.No.5693 of 2000 SA(CO)SRA(7/03/2009)