COURT OF KERALA v. THE DISTRICT LABOUR OFFICER

SR GP SRI BIMAL K NATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, ALONG WITH WP(C).21561/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -: 2 :- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 10TH DAY OF JANUARY 2024 / 20TH POUSHA, 1945 WP(C) NO. 21561 OF 2023 PETITIONER: VENGANOOR CO-OPERATIVE RURAL DEVELOPMENT SOCIETY LTD NO. T.1497,PANANGODE, VENGANOOR.P.O., THIRUVANANTHAPURAM,PIN 695523, REPRESENTED BY ITS SECRETARY, T.RAMESH, S/O.THANKAPPAN NAIR, GOWRINANDANAM VENGANOOR.P.O.,THIRUVANANTHAPURAM. BY ADVS.S.GANESH P.SREEKUMAR D.SAJEEV AJAYA KUMAR.P.J. LIGEY ANTONY RESPONDENTS: 1 2 3 THE DISTRICT LABOUR OFFICER, THOZHIL BHAVAN, PALAYAM.P.O., THIRUVANANTHAPURAM.., PIN - 695033 THE SECRETAY LABOUR COURT, KOLLAM., PIN - 691013 SAJITH KUMAR G.S AGED 45 YEARS S/O GOPALAKRISHNAN CHETTIYAR, KARUNA, MCRA.137, CHINAKARI. MUTTAKKADU.P.O VENGANOOR, THIRUVANANTHAPURAM,, PIN - 695523 BY ADVS. J.R.PREM NAVAZ SUMEEN S. SR GP SRI BIMAL K NATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, ALONG WITH WA.1392/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMIT RAWAL & C.S. SUDHA, JJ. ================================ W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 ================================= Dated this the 10th day of January, 2024 JUDGMENT Amit Rawal , J . The present intra-court appeal (W.A.No.1392 of 2023) has been preferred against the interim order dated 4th of July, 2023 rendered in W.P.(C)No.21561/2023 preferred against the order of the Labour Court deciding I.A.No.47 of 2023, accepting the claim of the 3rd respondent/ claimant for release of the subsistence allowance by ordering the employer to pay Rs.18,38,569/- (Rupees eighten lakhs thirty eight thousand five hundred and sixty nine only) in four equal installments.

Case of the Management before the Single Bench was that as per the provisions of the Co-operative Societies Act, for the employees working with the Co- operative Society, the provisions of the Kerala Payment of W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 2 :- Subsistence Allowance Act, 1972 would be applicable. The employee did not suffice the requirement of proviso to Section 3 of the Act as from the plain perusal of the contents of the application (Ext.P6), there is no such averment that during the period of suspension with effect from 8th of January, 2016 he was or not under the gainful employment. The Labour Court was required to call upon the parties to adjudicate the application on the basis of the affidavits and the documents submitted in support thereof. This fact was seriously taken and agitated before the Single Bench for the purpose of interim stay, but resulted into a direction of payment of Rs.5,00,000/- (Rupees Five lakhs only) to be deposited before the Labour Court and on deposit, the said amount has been ordered to be released to the 3rd respondent/claimant in accordance with law.

This Court, on 10th of August, 2023, while examining the afore-mentioned argument, ordered the W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 3 :- Registry to list the Writ Appeal along with the Writ Petition. Listed accordingly. In that circumstance, we propose to decide the Writ Appeal and Writ Petition together.

Another argument raised by the learned counsel for the appellant was that the reason for suspension was misappropriation of exponential amount as well as unauthorised absence. The employee was permitted to join the employment provided he clears the dues of the Society and vide Ext.P17 dated 14th December, 2020, he admitted the mistake and had undertaken that the amount due to the Society should be adjusted by deducting one-third from his salary.

On the other hand, learned counsel appearing on behalf of the workman submitted that the workman is suffering from cancer and this fact has been proved by a medical certificate on the records of the Labour Court. It is on that account he would not be in a position to sustain the high expenditure. W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 4 :-

We have heard the learned counsel appearing on both sides.

Section 3 of the Kerala Payment of Subsistence Allowance Act, 1972 reads as follows :-.

3. Payment of subsistence allowance.— (1) Whenever an employee is placed under suspension, he shall be paid by the employer for the period during which he is under suspension subsistence allowance of an amount equal to fifty per centum of the wages which the employee was drawing immediately before such suspension. Provided that where the period of suspension exceeds ninety days, the amount of subsistence allowance shall be increased after the expiry of ninety days to seventy-five percentum of the wages which the employee was drawing immediately before such suspension. Provided further that an employee shall not be entitled to any subsistence allowance if he accepts employment during the period of suspension in any establishment other than the establishment where he had been working immediately before his suspension. (2) An employee shall not in any event be liable to refund or forfeit any part of the subsistence allowance admissible to him under sub-section (1), but when an employee is exonerated of the charge which caused his suspension, the subsistence allowance paid to him for any period shall be adjusted against the full wages admissible to him for the same period. (3)Where any employee has been placed under suspension before the commencement of this Act and such suspension is in force at such commencement, he shall be deemed to have been placed under suspension on the date of such commencement.

W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 5 :-

On perusal of the contents of the application (Ext.P6) attached with the writ petition, subsistence allowance of Rs.18,38,569/- was claimed without any averment regarding gainful employment and the claim has been accepted without calling the other parties and/or placing on record material, particularly the one now submitted before us as per Ext.P7. The Single Bench also did not notice the afore-mentioned fact.

Considering that the workman is undergoing the treatment for malignancy, we modify the orders of the Labour Court and Single Bench and order the Management to deposit a sum of Rs.2,00,000/- (Rupees Two lakhs only) within a period of one week from today directly by way of cheque or pay order to the claimant/workman. The claimant/workman shall execute a receipt in favour of the Management and furnish security within one week thereafter to the Labour Court.

The afore-mentioned arrangement would be a modification of the order of the Labour Court as well as of W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 6 :- the order of the Single Bench. Interim application I.A.No.47 of 2023 stands disposed off.