Kerala High Court
Kerala State Warehousing Corporation vs Pauly John on 23 May, 2006
Equivalent citations: 2006(3)KLT27, 2007(2)SLJ271(KERALA)
Author: M. Ramachandran
Bench: M. Ramachandran, A.K. Basheer
JUDGMENT M. Ramachandran, J.
1. A Class IV employee of the Kerala State Warehousing Corporation had remained under suspension for a prolonged period pending disciplinary proceedings. Finally, he had been awarded punishment of reduction in rank and there was also a proposal for recovery of the loss sustained to the Corporation through his conduct. Proposal also was there to recover substantial part of subsistence allowance that was paid to him. The appeal filed by him was rejected and the Writ Petition had been filed challenging the orders as above.
2. A learned Judge had found that the, appellate authority had made only superficial examination of the issues and therefore had set aside the appellate orders and directed the issue to be considered on merits. Since the employee had also challenged the contemplated steps taken for recovery of the amounts paid as subsistence allowance, the leaned Judge had found that the proposal as above was irregular and had quashed that part of the order.
3. This Writ Appeal has been filed by the Warehousing Corporation. Sri. N.D. Premachandran, appearing for the appellants, had confined his arguments to that part of the judgment, whereby the proposal made by the employer for recovery of the subsistence allowance was declared as unenforceable.
4. The appellants submit that there was nothing irregular in the steps as above, especially when such action was taken after ascertaining the willingness of the employees. He is therefore estopped from putting up any contentions contrary to the stand agreed by him. Further submission was that recovery of subsistence allowance could not have been found as irregular so long as the service rules provide for that. Thus reliance had been placed on Annexure-A, which is a request made by the employee concerned. The employee had expressed his willingness to the Corporation that the period of suspension may be considered as spent on eligible leave. Accounting for his leave entitlements, the rest of the period was thereupon reckoned as time spent on leave on loss of pay.
5. The contention of the learned Counsel is that when this was the consented position, and the period was to be reckoned as on loss of pay, since no emoluments would have been payable for the period concerned, subsistence allowance paid necessarily has to be refunded by the employee.
6. We find the argument as above totally devoid of basis. Normally, the appellant being an industrial establishment, in the matter of subsistence allowance, the Payment of Subsistence Allowance Act, 1972 governed them. Payment of subsistence allowance is obligatory and Section 3(2) of the Act lays down that an employee is not to refund subsistence allowance received by him at all. Therefore, reliance on a written authorisation by the employee agreeing to a position, whereby his subsistence allowance were to be recovered from him, cannot be recognised. Such steps overreaching the statute may invite even prosecution and imprisonment, as could be gatherable from Section 8 of the Act.
7. Counsel had thereupon attempted to rely on Rule 56B of Part I of the Kerala Service Rules, which according to him authorised the employer to issue orders of recovery of subsistence allowance paid. Rule 56B of K.S.R. deals with contingencies, which are to govern Government while while dealing with the period of suspension. This is part of the regularisation procedure. Note 3 to the Rule is to the following effect:
"When a period of suspension is ordered to be converted into leave, the amount of subsistence allowance and compensatory allowances already received in excess of the leave salary and allowances admissible on such conversion, shall be refunded."
8. However, this as such, according to us, may not come handy to the present appellant. There is nothing to indicate that the provisions of the KSR are applicable to the employees of the State Warehousing Corporation, and in any case, when a special statute governs the parties, contracting out is not permissible.
9. After the disciplinary proceedings come to a conclusion, a prudent employer will have to pass orders regularising the period of suspension, which the employee had undergone. In fact, this is only to ensure that normally no break operates in respect of the period. The very principle of subsistence allowance is to ensure that a person is not kept high and dry, all of a sudden, without job and without earnings. What is paid is not salary, but only an allowance sufficient enough for the employee to tide over the difficult period. That appears to be the legislative purport.
10. As far as an industrial employee is concerned, standing orders or conditions of service governing him have to be applied for regularising his period of enforced absence, But that should not authorise an employer to contravene the provisions of the Payment of Subsistence Allowance Act, and to go on with recovery steps. As far as Government employees, the standing orders are in the form of Rules. Although the note to Rule 3 could be criticised as arbitrarily worded, in these proceedings we are not called upon to examine its validity. We only observe that the two situations are distinct and different; one is for payment facilitating subsistence and the other is regularisation of the period of suspension.
11. Possible threat of a break in service, in the present case, has now blown off by treating the period as leave on loss of pay unwittingly or otherwise, But, thereby the employer does not gain a handle to recover the allowances paid during the interregnum, on the plea that it has to be presumed that he is not eligible to draw any pay. The concepts, as we pointed out earlier, are not one and the same. The presumption is that what had been paid was not salary or wages; it was only an allowance for the employee and his dependents to tide over a contingency.
12. So viewed, we find that the judgment of the learned single Judge requires no interference. The Writ Appeal is dismissed in limine.