Madras High Court
Erode Co-Operative Intensive vs P.Nallasamy ...R1 In W.P.No.16495/2 on 22 January, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 22.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16495 and 18688 of 2000 Erode Co-operative Intensive Handloom Development Project Limited, Erode, Rep. By its Special Officer. ...Petitioner in both WPs Vs. 1.P.Nallasamy ...R1 in W.P.No.16495/2000 2.S.Nalini ...R1 in W.P.No.18688/2000 2.The Assistant Commissioner of Labour, Sankar Nagar,Salem 638 007. 3.The Deputy Commissioner of Labour, Salem 638 007. ...Respondents 2 and 3 in both WPs PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of certiorari mandamus, to call for the entire records of the second respondent pertaining to the orders dated 13.11.1997 and 27.7.1998 passed in P.S.A.Nos.40/1997 and P.S.A.No38 of 1998 and the third respondent pertaining to the order dated 31.05.2000 and 11.08.2000 in P.S.A.A.Nos.1 and 3 of 1999 respectively and quash the same. For Petitioner : Mr.S.Natanarajan For Respondents : Mr.S.Umapathy for R1 Mrs.C.K.Vishnupriya,A.G.P. For R2 and R3 C O M M O N O R D E R
Both the writ petitions are filed by the same Co-operative Society. The attack in both the writ petitions is to the orders passed by the Appellate Authority under Tamil Nadu Payment of Subsistence Allowance Act, 1981 confirming the order of the competent authority. In both the writ petitions, the contesting respondents, namely the first respondent had filed application before the authority under the Tamil Nadu Shops and Establishments Act claiming subsistence allowance in terms of the rates prescribed under the Tamil Nadu Act 43/1981.
2. The petitioner Management raised the following contentions before the authority:
i) The by-laws applicable to the Society provides subsistence allowance only at the rate of 1/3rd of the wages.
ii)If any further claim has to be made, a dispute will have to be raised before the Deputy Registrar under Section 90 of the Tamil Nadu Cooperative Societies Act.
iii)The authority under the Subsistence Allowance Act has no power under Section 4 read with Section 7(1) of the Act for grant of enhanced subsistence allowance.
iv)The contesting respondents have committed grave loss to the Society and they were placed under suspension. Therefore, the question of granting any enhanced subsistence allowance will not arise.
3. The Controlling Authority rejected all the contentions. The Controlling Authority held that the petitioner establishment comes within the definition of Section 2(c) of the Tamil Nadu Act 43/81 as it does not fall under the exception provided under the said sub-section and hence, the contesting respondents are entitled for subsistence allowance as per the Rules prescribed under Section 3 of the Act.
4. The petitioner Society filed an appeal under Rule 5A of the Tamil Nadu Payment of Subsistence Allowance Rules,1981 before the Appellate Authority. As a pre-requisite they had also deposited the amount with the authority. Before the Appellate Authority, the contention raised was that the petitioner establishment is a department of the State Government and therefore, it comes within the definition of Section 2(c)(1). However, the authority rejected the said defence stating that the purpose of the Subsistence Allowance Act is for payment of subsistence allowance pending the suspension and the Act will have overriding effect over the bylaws framed by any employer and in as much as the petitioner has not paid the subsistence allowance as stipulated under the Act, the appeal filed by them is liable to be rejected. It is against this order, the two writ petitions have been filed.
5. Pending the writ petition, this Court granted an order of interim injunction. Subsequently, when the contesting respondents want to take payment out that was rejected by this Court and the interim injunction was made absolute. However, both the matters were directed to be heard together. Even before this Court, the petitioners have raised similar contentions.
6. It is an admitted fact that the petitioner is registered as Co-operative Society and covered by its own special bylaws. Such bylaws can never override a statutory enactment made by the State Legislature. A division Bench of this Court in I.I.558, Kuthiraichandal Primary Co-operative Bank Limited V. A.Asokan and another reported in (2009) 1 MLJ 18 held that the provisions of the Act will apply to a Co-operative society. In paragrah 18 it was observed as follows:
"18. ...Though the Government Order, does not by itself make a provision for payment of subsistence allowance, while it makes a provision for application of the Subsistence Allowance Act, it must be construed that the purposes of legislation is to extend the benefit of payment of subsistence allowance provided by a separate enactment to Common Cadre employees as well. Even in cases of any ambiguity, the construction which better serves the ends of fairness and justice must be accepted. The only limitation for the Court is to avoid construction which results in anomalies. In the wake of the provisions of Regulation 29(d) coupled with the provisions of Article 21 of the Constitution of India, for entitlement of subsistence allowance, we do not find any ambiguity in the provision while making a construction to apply the Subsistence Allowance Act to common cadre employees as well."
7. The contention that the petitioner is liable to pay subsistence allowance only at the rate of 1/3rd of the wages as found in the special bylaws also cannot be accepted because Section 3 of the Act provides for a different rates of subsistence allowance depending upon the prolongation of the enquiry.
8. The further contention that a dispute will have to be raised before the Deputy Registrar under Section 90 of the Act also cannot be accepted in the light of the judgment of a Division Bench of this Court presided by P.K.Misra,J. (as he then was) in P.Eswaramoorthy vs. T.J.B.Leoraj and others reported in (2008) 5 MLJ 238 (Mad) wherein, this Court held that Section 90 will apply only in cases where there is a dispute regarding the constitution of the business or any matter touching the persons of the society and in all other respects, any employee will have to take recourse either under Section 153 of the Act or any other law applicable to an employee.
9. In the light of the above, the contentions raised by the petitioner cannot be countenanced by this Court. Hence, the writ petitions will stand dismissed. No costs. In the light of the dismissal of the two writ petitions, the contesting respondents are entitled to withdraw the amount lying in deposit with the second respondent Assistant Commissioner.
22.01.2010 Index:Yes/No Internet:Yes/No To
1.The Assistant Commissioner of Labour, Sankar Nagar,Salem 638 007.
2.The Deputy Commissioner of Labour, Salem 638 007.
K.CHANDRU,J.
svki W.P.Nos.16495 and 18688 of 2000 22.01.2010