The Management Coimbatore District Co-operative Milk Producers Union, Coimbatore-641010 vs The Presiding Officer, Labour Court, Coimbatore and another

Aggrieved by the award of the Labour Court, Coimbatore in C.P.Nos.628 and 868 of 1996 dated 23.12.96 directing the petitioner to pay

subsistence allowance of Rs.10,050 and 5,520 respectively, the Management, District Co-operative Milk Producer''s Union has filed the above

writ petition.

The necessary facts pertaining to the writ petition is stated hereunder-According to the petitioner, the second respondent was employed under

the petitioner Union on casual basis as an attendar. While employed as such he had indulged in a misconduct, viz., attempting to cause loss to the

petitioner Institution. Hence, through order dated 17.2.94, he was not continued to be employed. Subsequent to the order dated 17.2.94, the

second respondent had made claims for subsistence allowance, on the basis he was suspended frorn duty. The Assistant Commissioner of Labour,

before whom, the claim was made, had also computed the amount payable to the 2nd respondent. Aggrieved by the order of the Assistant

Commissioner of Labour, the petitioner filed an appeal before the Appellate Authority under the Subsistence Allowance Act. However, the 2nd

respondent was directed to report for duty on 24.8.96. The 2nd respondent did not report for duty even after their specific letters dated 24.8.96

and 30.8.96. By Order dated 1.10.96. the second respondent was terminated from service of the petitioner on the ground of voluntary

abandonment. Thereafter, the 2nd respondent filed two applications, namely, C.P.Nos. 628 and 868 of 1996 u/s 33C(2) of the Industrial Disputes

Act before the Labour court, Coimbatore. It is stated that even though the said applications were resisted stating that subsistence allowance cannot

be claimed u/s 33C(2) of the Industrial Disputes Act, and a separate Forum is there under the provisions of the Tamil Nadu Subsistence

Allowance Act, by the impugned order, the Labour Court directed the petitioner and the management to pay a sum of Rs. 10,050 and Rs.5.520 to

the 2nd respondent-workman.

Heard the learned counsel for the petitioner-management and the 2nd respondent-workman.

It is clear from the particulars furnished that the second respondent-workman had filed two applications, namely, C.P.Nos.628 and 868 of

1996 u/s 33C(2) of the Industrial Disputes Act claiming subsistence allowance for the period from 1.4.95 to 29.2.96 and from 1.3.96 to 31.8.96.

The said applications were filed before, the Labour Court, Coimbatore. According to Mr. M.R. Raghavan. learned counsel for the management,

irrespective of their opposition on merits of the claim made by the workman, the claim petitions, namely C.P.Nos. 628 and 868 of 1996 u/s

33C(2)of the Industrial Disputes Act before the Labour Court, Coimbatore are not maintainable. He also stated that this objection was raised even

in the counter statement filed before the Labour court.

According to him, without considering the jurisdiction, the Labour Court erroneously passed the impugned order and directed the petitioner-

management, to pay subsistence allowance. Mr. O.Venkatachalam. learned counsel for the 2nd respondent-workman would state that even on

earlier occasion, the 2nd respondent-workman filed necessary claim petition before the Assistant Commissioner of Labour under the Subsistence

Allowance Act and secured an order in his favour. He also contended that the appeal filed by the management was also dismissed. While so, it is

not clear why the 2nd respondent-workman has filed the present petitions, namely, C.P.Nos. 628 and 868 of 1996 claiming subsistence allowance

before the Labour Court u/s 33C(2) of the said Act. Mr. O. Venkatachalam, learned counsel for the workman, by pointing out a Division Bench

decision of this Court in the case of Secretary, Multi-purpose Co-operative Society Vs. Presiding Officer, Labour Court and Others, would

contend that the petitions filed u/s 33C(2) are maintainable before the Labour Court. In that decision, after referring to Section 33C(2) of the

industrial Disputes Act. the Division Bench has held that when an employee is kept in suspension indefinitely, with no enquiry is pending, he is

entitled to invoke Section 33C(2) of the said Act and the application is maintainable. Their Lordships have further held that the Labour court, in the

circumstances, can go into the legality of the suspension itself to determine the amount payable to the employee. Mr. M.R.Raghavan, learned

counsel appearing for the petitioner-management, would state that the said judgment is not helpful to our case, since after the enactment of Tamil

Nadu Payment of subsistence Allowance Act, 1981, necessary application has to be made for payment of subsistence allowance before the

authority under the Act and not before the Labour Court. In support of his contention, he very much relied on a recent judgment of S.M. Abdul

Wahab, J. in the case of Natham Co-operative Agricultural Bank Ltd., v. Principal Labour Court, 1997 (1) L.L.N. 377. After considering the

relevant provisions from the Tamil Nadu Payment of Subsistence Allowance Act. 1981 particularly Sections 3 to 5, the learned Judge came to the

conclusion that the claim u/s 33C(2) of Industrial Disputes Act before the Labour Court is not maintainable. There is no dispute with regard to

applicability of Tamil Nadu Payment of Subsistence Allowance Act. 1981 and there is a machinery provided under the Act. As a matter of fact,

the second respondent himself had approached the Assistant Commissioner of Labour by invoking the provisions of Tamil Nadu Payment of

Subsistence Allowance Act and obtained an order in his favour. For the subsequent period, instead of resorting to the same provision, the second

respondent had approached the Labour Court u/s 33C(2) of the said Act. In the light of the specific provision, namely. Sections 3 to 5 of Tamil

Nadu Payment of Subsistence Allowance Act read with Rule 5-A of Payment of Subsistence Allowance Rules, the proper course and remedy for

the 2nd respondent-workman is to file appropriate petition before the Authority under the Tamil Nadu Payment of Subsistence Allowance Act and

the application filed u/s 33C(2) of the Industrial Disputes Act before the Labour court is not maintainable. The Division Bench decision referred to

by the learned counsel for the second respondent, namely, Secretary. Co-op., society v. Presiding Officer, Labour Court, 1979 (1) L.L.J. 29 was

decided before the passing of the Tamil Nadu Payment of Subsistence Allowance Act, 1981; hence the said Division Bench decision is not helpful

to the case as the 2nd respondent. In other words, after the enactment of the Tamil Nadu Act. it is for the aggrieved person to approach only the

authority under that Act and not before the Labour Court u/s 33C(2) of the Industrial Disputes Act. Hence. I am in agreement with the view

expressed by Abdul Wahab, J., in Natham Co-operative Agricultural Bank Ltd., v. Principal Labour Court, 1997 (1) L.L.N. 377. Further. N.K.

Jain (as he then was) had an occasion to consider similar issue in W.P.No.2711 of 1992 dated 14.7.1999 Natham Co-op. Agricultural Bank Ltd.,

v. The Presiding Officer and another, 1997 (1) L.L.N. 377. The said writ petition was filed by Natham Co-operative Agricultural Bank against the

order of Principal Labour Court. Madurai, in I.A.No. 153 of 1990 in C.P.No. 214 of 1986 dated 25.3.91. The learned Judge, after considering

the decision of this Court reported in Natham Co-operative Agricultural Bank Ltd., v. Principal Labour Court, 1997 (1) L.L.N. 377, allowed the

writ petition filed by the Bank and quashed the order passed by the Labour Court u/s 33C(2) of the Industrial Disputes Act. The said judgment

also supports the case of the petitioner/ management.

In the light of what is stated above, the impugned order of the first respondent dated 23.12.1996 is quashed and the writ petition is allowed.

However, the second respondent is free to approach the appropriate Forum for his relief. No costs. Consequently. W.M.P.No. 19150 of 97 is

closed.