KARAMBAKKUDI CO.OPERATIVE PRIMARY AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD v. THE ASSISTANT COMMISSIONER OF LABOUR KAJAMALAI COLONY MANNARPURAM THIRUCHIRAPALLI-202

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 16.12.2009Coram THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.38185 of 20031 KARAMBAKKUDI CO.OPERATIVE PRIMARY AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD REP BY ITS SPECIAL OFFICER [PETITIONER] Vs1 THE ASSISTANT COMMISSIONER OF LABOUR KAJAMALAI COLONY MANNARPURAM THIRUCHIRAPALLI-202 R.RAMADASS [RESPONDENTS]PETITION filed under Article 226 of the Constitution of India prayingfor the issuance of a Writ of Certiorari calling for the records ofthe 1st respondent on the file of P.S.A.No.32/2002 dated 16.7.2003and quash the same.For Petitioner:Mr.R.ParthibanFor Respondents:Mr.R.Neelakandan, G.A for R1 Mr.S.Vijayan for R2O R D E RThe petitioner is a Cooperative Society. They have come forwardto challenge the order passed by the 1st respondent, ControllingAuthority made in P.S.A.No.32/2002 dated 16.7.2003. By the impugnedorder, the 1st respondent controlling authority constituted underthe Tamil Nadu Payment of Subsistence Allowance Act, 1981 (Act No.43of 1981) computed the subsistence allowance payable to the 2ndrespondent for the period from 31.10.2000 to 6.12.2001, totalling asum of Rs.1,35,528.25. After adjusting the amount of Rs.15,900/-already paid, the authority came to the conclusion that thepetitioner society is liable to pay Rs.1,19,628.25. The order cameto be passed on an application taken out by the 2nd respondent undersections 3 and 4 of the Tamil Nadu Act 43 of 1981. https://hcservices.ecourts.gov.in/hcservices/

2. Under Rule 5A of the Tamil Nadu Payment of SubsistenceAllowance Rules, 1981, if any person is aggrieved by an order of thepreliminary authority, an appeal lies to the appellate authorityi.e., to the Deputy Commissioner of Labour. There is a pre-conditionto deposit the amount for filing the appeal. The petitioner societyhas not filed any appeal in order to avoid the condition of pre-deposit. 3. In any event, the contention raised by Mr.R.Parthiban,learned counsel for the petitioner was that the 2nd respondent hadreached the age of superannuation on 30.10.2000. Therefore, there isno question of suspending the 2nd respondent on reaching the age ofsuperannuation.4. But, however, it is seen from the records produced by the 2ndrespondent that the 2nd respondent was suspended by an order dated30.10.2000 by the Vice President of the Society. It was stated inthe order that the 2nd respondent being a Supervisor was guilty ofserious misconduct. Therefore, in the interest of the bank, he wassuspended. It was also stated that a separate charge memo also willhave to be given to the 2nd respondent. It is also seen thatsubsequently, an enquiry officer was appointed to enquire into thecharges. The said enquiry officer gave a report on 21.9.2001.Subsequently, the Special Officer, who has taken up the petitionersociety, has issued a show cause notice on 22.10.2001. After gettingan explanation from the 2nd respondent, final order dated 30.11.2001was passed. In the said order, it was stated that the 2nd respondentwas guilty of the misconduct including causing loss to the bank.Therefore, a sum of Rs.5,05,042/- was liable to be adjusted from theterminal benefits payable to the 2nd respondent. It was thereafterthe 2nd respondent filed an application in PSA No.32 of 2002 beforethe 1st respondent.5. On notice from the 1st respondent, the petitioner societyfiled a counter statement dated 'nil'. The only contention raised bythe petitioner before the authority was that as per the serviceconditions of the Society, the 2nd respondent was to have retiredfrom service on 31.10.2000. No order was passed by the petitionersociety to retain him in service beyond the superannuation.Therefore, the service of the 2nd respondent came to an endautomatically. It is also stated that the effect of the term'suspension' as found in Section 2(g) of the Tamil Nadu Payment ofSubsistence Allowance Act is to prevent a person from attendingoffice. The question of 2nd respondent attending the office beyond31.10.2000 may not arise, as he has already reached the age ofsuperannuation. 6. The further contention raised was that since the 2ndrespondent was a Supervisor drawing more than Rs.500/-, he is not anemployee within the meaning of Section 2(a) of the Tamil Nadu Payment https://hcservices.ecourts.gov.in/hcservices/ of Subsistence Allowance Act. Taking the preliminary objection,first this contention must be rejected because the Act had undergonea change by the Tamil Nadu Act 35 of 1999 with effect from 9.8.1999,wherein a person being employed in a supervisory capacity anddrawing wages not exceeding Rs.3,500/- is also covered by the Act.Therefore, this contention cannot be raised. Even otherwise, thispoint was not argued before the 1st respondent. 7. Coming to the question of 2nd respondent's entitlement of thesubsistence allowance, the term suspension is defined under the Act.Section 2(g) states as follows:"(g) "suspension" means in interim decision of an employeras a result of which an employee is debarred temporarilyfrom attending to his office and performing his functions inthe establishment on the ground that-(1) an enquiry into grave charges against him iscontemplated or is pending or no final order after thecompletion of the enquiry has been passed: or(2) a complaint against him of any criminal offence isunder investigation or trial or the complaint has not beenfinally disposed of."8. In the present case, as per Ex.P.1, the suspension orderhas been filed before the authority. Pursuant to the said suspension,the enquiry was conducted. The 2nd respondent had participated in theenquiry. It also led to a final order of recovering the substantialportion of the terminal benefits. These facts are not disputed.Therefore, when the petitioner society wanted further disciplinaryaction, rightly they have passed an order not allowing the 2ndrespondent to get retired from service. But, on the other hand, theywanted to retain the service of the 2nd respondent to complete theenquiry. It also resulted in a penalty against the 2nd respondent.When there is an order of suspension, then the right under which anemployee is to be paid subsistence allowance is covered by Section 3of the Payment of Subsistence Allowance Act. The mode of recovery isprovided under section 4 of the Act. By virtue of Section 5, onlythe beneficial payment is saved. Therefore, if there is no suchpayment, the provisions of Tamil Nadu Act 43 of 1981 will come intooperation. Under the circumstances, the Writ Petition filed by thesociety challenging the order of the 1st respondent is misconceived. 9. Mr.R.Parthiban, learned counsel for the petitioner contendedthat there is no concept of suspension beyond superannuation. Eventhat issue has been determined by a Division Bench of this Court inthe Registrar of Cooperative Societies, Kilpauk, Chennai 10 vs.G.Manoharan in Writ Appeal Nos.256 and 257 of 2008 dated 21.10.2009.In paragraph 33 of the said order of the Division Bench, presided by https://hcservices.ecourts.gov.in/hcservices/ Prabaha Sridevan, J, the following propositions have been noted:"33. From the records produced in this case, the followingfacts are obvious:-a) The activities of the 1st respondent had caused a greatdeal of consternation among the authorities and they wereforced to transfer him from the place where, according tothem, he was causing a lot of damage.b) The disciplinary proceedings had been actually initiatedbefore his age of superannuation, since the first chargememo is dated 6.6.2003, whereas his age of superannuation is31.6.2003.c) He had also given a reply to the charge memo dated6.6.2003, but had not chosen to reveal the fact of theissuance of this earlier charge memo in his writ affidavit.d) No orders had been passed permitting him to retire; onthe contrary, he was suspended on the eve of his attainingthe age of superannuation.e) The Supreme Court has held that even if a person hadretired, if it is proved that he had caused loss to theestablishment, then proceedings can be initiated to recoverthe amount of loss from him.f) Even if a person has attained the age of superannuation,it is possible to dismiss him, in which event,he will not beentitled to his terminal dues vide (2007) 9 S.C.C.15(supra).g) In any event, Section 87 of the Act gives the power toproceed against even a past employee for recovery andrestoration of the financial loss caused to the Society." 10. In the light of the above, there is no illegality orimpropriety on the 2nd respondent claiming the said amount. The WritPetition stands dismissed. However, there will be no order as tocosts. The petitioner society is directed to make payment to the 2ndrespondent within four weeks from the date of receipt of a copy ofthis order.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarajr https://hcservices.ecourts.gov.in/hcservices/ To1 THE ASSISTANT COMMISSIONER OF LABOUR KAJAMALAI COLONY MANNARPURAM THIRUCHIRAPALLI-20+ 1 CC to Mr.G.Sankaran,Advocate,SR.69078+ 1 CC to Mr.R.Parthiban,Advocate,SR.69106+ 1 CC to Government Pleader,SR.69233W.P.No.38185 of 2003RJ(CO)EM/23.12.09