Heard both sides.
2. The petitioner is the Management of Tirunelveli District Central Co-operative Bank. They have come forward to file the present writ petition seeking to challenge the order of the first respondent, Appellate Authority under the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (for short P.S.Act) dated 20.06.2001.
3. By the aforesaid order, the Appellate Authority allowed the claim of the second respondent, who claimed subsistence allowance on behalf of her husband Late Soloman. By the impugned order, a sum of Rs.23,598/- was directed to be paid as subsistence allowance for the period from 01.08.1986 to 14.04.1988.
4. The writ petition was admitted on 28.06.2002. Pending the writ petition, this Court directed the said amount to be deposited and the second respondent was given liberty to withdraw half of the amount in deposit.
5. The ground raised by the petitioner Co-operative Bank was that the Late Soloman was not a workman within the meaning of Section 2(a) of the P.S.Act, as he was employed as a Supervisor drawing more than Rs.500/- as salary. Certain charges were laid against the said workman. Pending the enquiry, he was kept under suspension from 01.08.1986 to 14.04.1988. The said period was treated as substantive punishment as per the Special bye-laws and thereafter, he was restored to duty.
6. Late Soloman after his reinstatement had filed a claim petition before the Labour Court in C.P.No.298 of 1989 for payment of subsistence allowance which was computed by the Labour Court. However, the petitioner filed a writ petition before this Court being W.P.No.2449 of 1993. The order of the Labour Court was set aside by this Court vide order dated 21.01.2000 with liberty to the workman to work out his rights as per the provisions of the P.S.Act.
7. In the meanwhile, the said Soloman died and therefore, the second respondent filed an application being P.S.A.No.4 of 2000. The Management contended that the said Soloman was not covered by the Act as he was not a workman under Section 2(a). The Controlling Authority, i.e., the Assistant Commissioner of Labour accepted the said contentions and dismissed her claim. Thereafter, the second respondent filed an appeal under Rule 5A of the Tamil Nadu Payment of Subsistence Allowance Rules. The said appeal was taken on file as P.S.Appeal No.7 of 2000.
8. It is seen from the impugned order, the question whether the Late Soloman was a workman or not was not argued before the first respondent. In any event, mere nomenclature that the said Soloman was a Supervisor will not make him a non-workman and there should have been a finding based on materials to that effect as it is a question of fact. It is seen from records the only contention raised before the authority was as per the Special bye-laws, the Management had imposed the punishment and the period of suspension was treated as a substantive punishment. Therefore, no further claim can be made under the provisions of the Act. The authority rejected the said contention by stating that the Act provides a right in favour of the workman and also provides the rate of subsistence allowance. The term subsistence allowance itself is defined under Section 2(g). When once a contingency arises, then as per Section 3 of the P.S.Act, the subsistence allowance will have to be paid. By virtue of Section 4, the authority is empowered to compute the subsistence allowance due under the provisions of the Act. Section 5 only saves a higher benefits and therefore, there cannot be any estoppel or contracting out of that statute. The Act provides a right for the workman and also a forum for claiming the amount. The fact that the management had imposed a punishment cannot deprive the subsistence allowance being paid. The right to get subsistence allowance accrues on the date when the suspension is ordered and it does not depend upon the outcome of an enquiry or the punishment awarded.
9. Mr.R.Parthiban, the learned counsel for the petitioner pressed into service the judgment of the Supreme Court in Umesh Chandra Misra v. Union of India and others reported in 1993 Supp(2) SCC 210. In paragraph 5, it was observed as follows:-
"5.It was then contended on his behalf that in any case the order itself directs the period from May 10, 1974 to October 3, 1974 to be treated as a period of suspension and hence the appellant is entitled at least to the subsistence allowance. This argument is also misconceived because the period is directed to be treated as suspension as and by way of punishment. It is not suspension pending disciplinary inquiry which alone can entitle an employee for subsistence allowance. Suspension is also one of the punishments and the suspension imposed on the appellant was by way of punishment. Hence the appellant is not entitled to any subsistence allowance during the said period."
The judgment relied on by the learned counsel for the petitioner turns out on the facts of the case.
10. This is not a case where an employee approached the Payment of Wages authority claiming allowance when the period of suspension itself was treated as a punishment. As already stated, in the present case, the Act creates a right in favour of the workman and there cannot be any contracting out of the statute. Any subsequent punishment treating the period as punishment can only result in non-payment of the balance amount beyond the subsistence allowance to be paid or paid already.
11. In the light of the above, the writ petition stands dismissed. No costs. The second respondent is at liberty to withdraw the remaining amount lying in the deposit with the first respondent.
19.12.2009 Index : Yes/No Internet:Yes/No svki K.CHANDRU,J.
Svki To The Deputy Commissioner of Labour (Appellate Authority under the Tamil Nadu Payment of Subsistence Allowance Act) Tirunvelvi.
Pre-Delivery Order in W.P.No.22415 of 2002 19.12.2009