The Management,0.831, Thoothukudi Agricultural Producers Cooperative Marketing Society Ltd.,Tuticorin v. The Deputy Commissioner of Labour, Tirunelveli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:29.07.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.13527 of 2004andWPMP No.15866 of 2004The Management,0.831, Thoothukudi Agricultural Producers Cooperative Marketing Society Ltd.,Tuticorin... Petitioner Vs.1.The Deputy Commissioner of Labour, Tirunelveli.2.The Assistant Commissioner of Labour, Tirunelveli.3.C.Prabakaran.. Respondents This writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarito call for the records in pursuant to the impugned order passed bythe first respondent in Case No.P.S.A.2/2003, dated 31.12.2003 and toquash the same. For Petitioner : Mr.R.Subburaj for Mr.S.M.SubramaniamFor Respondents: Mr.K.Balakrishnan, AGP for RR1 and 2 Mr.S.K.Krishnamurthy for R-3 - - - - ORDERHeard both sides. Original files from the lower authority wasdirected to be summoned and circulated for reference.2.This writ petition was filed by the management of ThoothukudiAgricultural Producers Cooperative Marketing Society Limited,challenging the order of the first respondent appellate authorityunder the Tamil Nadu Payment of Subsistence Allowance Act, 1981 dated31.12.2003 in PSA No.2 of 2003.3.The third respondent herein was working as a Salesman in theSociety, who was arrested on 12.3.1997 and a criminal case wasregistered against him by the Civil Supplies CID for irregularitiesin the ration shop run by the society. Subsequently, he was placedunder suspension with effect from 12.3.1997. His suspension order was https://hcservices.ecourts.gov.in/hcservices/ revoked on 18.6.1997. He was directed to be placed in the wine shopwith monthly salary of Rs.1800/-. Even while he was working in theplace, the local people were aggrieved by his antisocial activities.He started absconding himself. When the management sent a letter,dated 2.7.2001 asking him to report for duty, there was also noreply. When the Branch Manager of the society went to the house ofthe third respondent to pay the subsistence allowance for the periodfrom 12.3.1997 to 17.6.1997, his non employment certificate wasdemanded. But the same was not forthcoming. Therefore, he was notpaid any subsistence allowance.4.The third respondent filed an application before the secondrespondent being the authority under the Tamil Nadu Payment ofSubsistence Allowance Act, 1981 claiming subsistence allowance from12.3.1997 to 11.2.2002. Before the authority, the application wasregistered as PS Case No.2/2002. On behalf of the third respondent,he examined himself as PW.1 and on his side, 11 documents were filedand marked as Exs.P.1 to P.11. On the side of the petitionermanagement, one S.Ganapathy was examined as R.W.1 and on their side,six documents were filed and marked as Exs.R.1 to R.6. Ex.P.3 is thereceipt for having paid his wages in the Wine shop for the periodfrom 18.6.1997 to 30.6.1997. Ex.R.4 is the certificate to show thathe had worked as a Substitute Teacher in St.Thomas MatriculationHigher Secondary School. Ex.R.5 (series) are the letters sent by thepetitioner in reply to the third respondent's letters. 5.The Subsistence Allowance authority (2nd respondent) as amatter of fact found that the third respondent was under suspensiononly from 12.3.1997 to 17.6.1997. Thereafter, he was employed in theWine shop and his monthly salary was Rs.780/-, which is evident fromEx.R.3. Hence it could be said that the third respondent was undersuspension only for the period from 12.3.1997 to 17.6.1997.Calculating his monthly salary at Rs.1800/- (though he had claimedmonthly salary of Rs.1150/-), it computed his subsistence allowancetotally for a sum of Rs.3195/-. 6.Aggrieved by the order passed by the second respondent, thethird respondent preferred an appeal under Rule 5-A of the Tamil NaduPayment of Subsistence Allowance Rules. His appeal was taken on fileas PSA No.2 of 2003. The appellate authority reversed the findingsrecorded by the second respondent and held that the third respondentis entitled for payment of Subsistence Allowance from 12..3.1997 to11.2.2002 at the rate of Rs.1800/- per month and calculated it interms of Section 3 of the Payment of Subsistence Allowance Act. Thushe allowed the appeal and directed payment on the basis of revisedcalculation. It is as against this order, the present writ petitionwas filed.7.It is stated by Mr.R.Subburaj, learned counsel for thepetitioner that there was no justification for reversing the order ofthe second respondent. While considering the order passed by thesecond respondent, the appellate authority had gone beyond itsjurisdiction. The appreciation of evidence recorded is notacceptable. The appellate authority had not considered the fact that https://hcservices.ecourts.gov.in/hcservices/ the suspension of the third respondent was revoked and he had workedin the Wine shop on monthly salary. 8.The writ petition was admitted on 31.8.2004. An interim staywas granted directing the petitioner to deposit the entire amount tothe credit of the PSA No.2 of 2003. On notice from this court, thethird respondent has filed a counter affidavit, dated 9.6.2010. It isthe case of the third respondent that though he was arrested on12.3.1997 by the Civil Supplies CID, he was placed under suspensionby an order, dated 27.3.1997. Without revoking the said suspension,he was engaged to work in the liquor shop in a leave vacancy.Paragraph 6 of the counter affidavit, it was averred as follows:"6....I approached the then President to save mylivelihood and my family members. The then Presidentwithout revoking my suspension order and without payingmy eligible subsistence allowance and engaged me to dowork in a liquor shop from 18.06.1997 to 30.06.1997 inthe leave place. Since on 30.06.1997 the permanentemployee of the liquor shop was joined in his place."9.He also contended that the order of suspension is contrary tothe provisions of Section 76(3) of the Tamil Nadu CooperativeSocieties Act. The period of suspension was not specified and hencethe order of suspension was invalid as held by this court in 2004 (5)CTC 299. 10.This argument is not available to the petitioner since thedecision referred to by him is no longer a good law in view of theFull Bench judgment of this court in A.S.Subramani Vs. The DeputyRegistrar of Cooperative Societies, Thindivanam Circle, Thindivanamand another reported in 2006 (4) CTC 444. Curiously, in the counteraffidavit, the third respondent did not mention about his employmentduring alleged suspension in the private school. The document inEx.R.3 showed that the third respondent had received salary for 13days for having worked in the wine shop. Similarly, Ex.R.4 is theletter received from the Principal of St. Thomas Matriculation andHigher Secondary School, Thoothukudi that he had worked as asubstitute teacher from 6.11.2000 to 20.12.2000 in that school. 11.While he had deposed as P.W.1, in his cross examination, hehad stated that he had worked in the wine shop as per the order givenby the President as a temporary worker. He had also accepted Ex.R.4regarding his work in the private school as a substitute teacher.These facts will indicate that he is not eligible for subsistenceallowance if he is otherwise employed in the other establishment orin the same shop or in some other branch. These facts were notconsidered by the appellate authority. On the other hand, theappellate authority without justification in the impugned order heldthat since the school authorities were not examined and anycertificate from the school authority ought to have been proved onlyby examining the authority from the school, such document cannot beaccepted as evidence. https://hcservices.ecourts.gov.in/hcservices/

12.This finding of the appellate authority is totally perversebecause in the cross examination, the third respondent categoricallyadmitted his employment in a temporary capacity in a private school.Therefore, it did not require any further proof. It is only in casewhere the third respondent denied the existence of Ex.R.4, thequestion of any formal proof will arise. Even with reference to hisemployment in the wine shop subsequent to his suspension, the firstrespondent had gone in an hyper technical basis to state thatsuspension should have been formally revoked and then only he shouldbe given an appointment order. Though the authority found that on anoral order, he had worked in the wine shop, there was no necessityfor the petitioner society to give a formal receipt on 2.7.1997.Therefore, the management's contention that he had stopped on his ownaccord from the wine shop on account of public reaction cannot beaccepted. For rendering such a finding, the second respondent did nothave any material. When the second respondent had appreciated allthese facts, it is unnecessary for the first respondent to reverseall these findings of fact and that too in an appeal without anylegal justification. 13.Under these circumstances, the impugned order passed by thefirst respondent in PSA No.2 of 2003 stands set aside and the orderpassed by the second respondent in PS No.2 of 2002 stands confirmed.In view of the said order, if already any amount are deposited by thepetitioner before the first respondent, they are entitled to withdrawthe same and pay only the amount as ordered by the second respondentdirectly to the third respondent. 14.With these observations, the writ petition will standallowed. No costs. Consequently, connected miscellaneous petitionstands closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Deputy Commissioner of Labour, Tirunelveli.2.The Assistant Commissioner of Labour, Tirunelveli.1 cc To Mr.S.K.Krishnamurthy, Advocate, SR.559561 cc To M/s.S.M.Subramanian, Advocate, SR.559551 cc To The Government Pleader, SR.55567W.P.NO.13527 of 2004AKR(CO)sra 06/08/2010