The Management, Minjur Cooperative Agricultural Bank vs The Collector and P. Subramanian

Dharmarao Elipe, J.—This writ appeal is preferred against the order of the learned single Judge dated 02.12.2003 made in W.P. No.

34952 of 2003.

The petitioner, who joined in the second respondent Management in the year 1972, was working in the capacity of Secretary from 25.4.1988

and he was kept under suspension from 25.6.1993 to 31.5.1994 and from 01.6.1994 to 30.11.1994. The petitions filed by him before the

Assistant Commissioner of Labour, Chennai, for non-payment of subsistence allowance for the period of his suspension were allowed directing the

Management to pay a sum of Rs. 28,258.25 and Rs. 18,666/- respectively. Subsequent to the suspension, he was issued with a charge sheet

dated 10.3.1995 and after conducting enquiry, he was dismissed from service by an order dated 28.02.1996. In the appeal filed by him u/s 41 of

the Tamil Nadu Shops and Establishment Act before the Deputy Commissioner of Labour, the order of dismissal was set aside as against which,

the Management filed W.P. No. 11271 of 2003 and the same is pending. The I Additional Labour Court, Chennai, on consideration of the facts

and circumstances of the Claim Petition, being C.P. No. 5 of 2001, filed by the petitioner u/s 33(C)(2) of the Industrial Disputes Act, 1947 [for

short, ''I.D. Act''], allowed the same vide order dated 26.11.2002 directing the respondents to pay a sum of Rs. 46,665/-, which was determined

as the amount payable to him and the said order has become final. Pursuant to the petition filed by him u/s 33(C)(1) of the I.D. Act towards non-

computation of the amount, the Government issued G.O. (D) No. 608 dated 17.6.2003, Labour and Employment (A2) Department and issued

revenue recovery certificate authorising the first respondent to collect the above said amount of Rs. 46,665/- due as arrears of land revenue, from

the second respondent Management. Since there was no action on the part of the first respondent towards recovery of the amount and since no

action for the representation dated 17.11.2003 made by the petitioner, he has come forward with the writ petition seeking for a direction to the

first respondent to recover Rs. 46,665/- as arrears of land revenue from the second respondent in accordance with G.O. (D) No. 608 dated

17.6.2003 Labour and Employment (A2) Department and to pay the same to him.

The learned Judge, after going into the facts and circumstances of the case, held that the writ petitioner is entitled for subsistence allowance

during the period of suspension as a matter of fundamental right. The learned Judge further directed the first respondent to take steps to recover

the money due under the order dated 26.11.2002 in C.P. No. 5 of 2001 on the file of the I Additional Labour Court, Chennai based on G.O.(D).

No. 608 dated 17.6.2003, if he is not otherwise legally disable, from the second respondent and to pay the same to the writ petitioner. Aggrieved

at the same, the present writ appeal is filed by the Management.

We have heard the learned Counsel appearing for the parties and have perused the records.

The learned Counsel appearing for the appellant / Management contended that the writ petitioner was removed from service by order dated

28.02.1996 only after conducting enquiry and that during the period of suspension, he worked with some other organisation and, therefore, they

are not liable to pay the subsistence allowance to him as ordered by the Labour Court in C.P. No. 5 of 2001. In support of his contention, the

learned Counsel produced a copy of the order dated 31.3.1999 passed by the Deputy Commissioner of Labour in Ku.Pa.Voo.Sa.108 of 1998

wherein it is stated that when an inspection was conducted in Vetrivel Murugan Theatre, second respondent therein, on 02.9.1998 for non-

payment of minimum wages to its employees, wherein the statement of the writ petitioner was recorded. He further submitted that the order passed

by the Deputy Commissioner of Labour would establish that the writ petitioner has worked and was paid salaries during the period of suspension

and, therefore, he is not entitled to receive subsistence allowance.

On the other hand, the learned Counsel for the second respondent / writ petitioner submitted that it is indicated in the statement filed by the

appellant that the amount payable for five months was from the date of conduct of inspection, i.e., on 02.9.1998, which is after the termination of

the services of the petitioner by the appellant.

It is seen that since the writ petitioner was not paid subsistence allowance for the period of suspension followed by the order of termination, he

approached the Labour Court. The Labour Court, on consideration of the facts and circumstances of the case, allowed the petition directing the

Management to pay the amount determined based on which a G.O. was also issued in G.O. (D) No. 608 dated 17.6.2003. Since the same was

not implemented, the petitioner has approached this Court. The learned Judge also rightly allowed the writ petition. Further, it is clear from the

statement filed by the appellant that the writ petitioner had worked in some other organisation, viz., Vetrivel Murugan Theatre only after his

termination by the appellant / Management and, therefore, it is not a ground to deny the subsistence allowance to which he is entitled. The

contention raised by the appellant Management that since the writ petitioner had worked in some other organisation, he is not entitled for

subsistence allowance cannot be accepted and it is liable to be rejected. Accordingly, the same is rejected.

In the decision reported in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , the Supreme Court has held in paragraph 30 as

follows:

If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would

be frustrated. The act of non-payment of subsistence allowance can be likened to slow-poisoning as the employee, if not permitted to sustain

himself on account of non-payment of subsistence allowance, would gradually starve himself to death.

In the light of the above, the writ appeal fails and the same is dismissed confirming the order passed by the learned single Judge dated

02.12.2003 made in W.P. No. 34952 of 2003. Since the appellant Management made a statement that the writ petitioner worked in some other

organisation because of which he was denied payment of subsistence allowance all these days, the appellant is directed to pay a sum of Rs.

10,000/- (Rupees Ten Thousand only) to the writ petitioner as cost. The appellant is further directed to arrange for the above payment to the writ

petitioner within a period of eight weeks from the date of receipt of a copy of this judgment as ordered by the Government in G.O.(D) No. 608

Labour and Employment (A2) Department dated 17.6.2003.