Madras High Court
The President vs S.Vanitha on 19 December, 2018
Author: S. Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.12.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2828 of 2018
and
CMP No.23496 of 2018
The President,
Hosur Co-operative House Building Society,
No.S-945, Appavoo Nagar - Thally Road,
Hosur. ... Appellant
Vs.
1. S.Vanitha
2. The Registrar,
Co-operative (Housing Societies),
Tamil Nadu Housing Board Complex,
No.493, Anna Salai, Nandanam,
Chennai - 600 035.
3. The Deputy Registrar,
Regional Co-operative Housing Societies,
No.15, 1st West Main Road,
Gandhi Nagar, Vellore District.
4. Enquiry Officer,
Domestic Enquiry,
Hosur Co-operative House Building Society,
Appavoo Nagar - Thally Road, Hosur. ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the Order
dated 14.03.2018 made in W.P.No.11205 of 2010.
http://www.judis.nic.in
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For Appellant : Mr.M.Palanisamy
For Respondents : Mr.R.Ramesh (for R1)
Mr.L.P.Shanmugasundaram (for R2 to R4)
Spl.Govt. Pleader (Co-op.)
JUDGEMENT
(Order of the Court was delivered by SUBRAMONIUM PRASAD, J) The President, Hosur Co-operative House Building Society, Hosur, has preferred this Writ Appeal against the order dated 07.10.2015 passed by the learned Single Judge in W.P.No.31574 of 2015, whereby, the learned Single Judge has directed the appellant herein to consider and dispose of the representation dated 25.08.2015 sent by the writ petitioner on merits and in accordance with law and pass orders within a period of eight weeks from the date of receipt of a copy of the order made in the writ petition. The learned Single Judge also directed the appellant to consider the claim of the writ petitioner for payment of subsistence allowance with arrears in light of the communication sent by the Deputy Registrar dated 25.05.2008 in Na.Ka.No.1428/2015 E and pass orders within the stipulated time. The learned Single Judge also further ordered that till the above orders are complied with, the departmental proceedings initiated by the Housing Society should not proceed.
2. The facts in brief are that the writ petitioner / 1st respondent joined the http://www.judis.nic.in Housing Society on 22.01.1996. She later became the Secretary (in-charge) 3 of the Society from 14.10.2003. There were allegations against the 1st respondent and charges were made against her, in respect of actions, considered as indiscipline and that the same are as under.
"1. Not handing over the charge of the pose Secretary to Mr.A.Vediyappan, who was entrusted to take additional in charge of the post of the Secretary.
2. Keeping the documents of the Society under your custody inappropriately without appropriate permission.
3. Disobedience to the Order of the Court and the officers of the Department.
4. Temporary Misappropriation of the reserved funds of the Society without depositing the same in the Bank Account of the Society.
5. Allotment of plots to the Members of the Society irregularly.
6. Allowing using the plot illegally, which is, allotted to the office of the Society in the Society Min Nagar Land Plan.
7. Violation of byelaws.
8. Spending huge money on the pretext of Vehicle expenses by creating false receipts and has not subjected to auditing till date.
9. Spending voluntarily a sum of Rs.1,06,141/- as Legal Fees without any approval from the management.
10. Inappropriate spending of more than Rs.17 lakhs by allowing the arrears pending in the change of pay scale despite the instructions given by the Registrar, Housing Department, and Regional Deputy Registrar (Housing)."
3. Writ petitioner / 1st respondent was suspended on 04.11.2013. http://www.judis.nic.in Admittedly, no subsistence allowance was given. Writ petitioner / 1st 4 respondent filed W.P.No.31715 of 2013, praying for reinstatement and to quash the charges. The said writ petition was dismissed by an order dated 18.06.2014.
4. The Society filed W.P.No.34933 of 2018, against the Registrar and writ petitioner/1st respondent herein, for a direction to the Registrar, Co-operative (Housing) Societies to break open the locker kept by 3rd respondent therein/writ petitioner and to handover the entire records. This Court vide order dated 18.06.2014, directed the 1st respondent herein to hand over the available records after taking xerox copies of the same to defend her case. Contempt Petition No.316 of 2015, was filed for non-compliance of the order made in W.P.No.34933 of 2013 and vide order dated 15.06.2016, it was ordered as under:
"5. Considering the facts and circumstances of the case, if the petitioner wants to take inventory of the records, it is open to him to make a representation before the Board / Registrar and it is for the Board / Registrar to consider the same. However, as the petitioner is willing to have inventory in the presence of the Society Officers, the Board / Registrar shall consider the representation if any made by the writ petitioner and pass orders on the same within a period of fifteen days from the date of receipt of a copy of this order, if there are no legal impediments."
5. Surcharge and departmental proceedings were initiated against the http://www.judis.nic.in writ petitioner. Questioning the departmental proceedings on the ground that 5 subsistence allowance has not been given, Writ Petition No.31574 of 2015 has been filed. Learned Single judge found that Subsistence Allowance has not been paid. Hence, he directed the authorities to consider the representation and also to consider the claim of subsistence allowance. It is this order which is under challenge in the present writ appeal.
6. Section 3 of the Payment of Subsistence Allowance Act, 1988 mandates an employer to pay subsistence allowance to an employee, who is under suspension. It is well settled that when an employee is under suspension the employer - employee relationship is not extinguished. The person placed under suspension continues to be in employment. Suspension merely suspends the claim to full salary and that does not mean that the employee must be left to starve. Subsistence allowance is only to ensure than an employee is able to live and survive.
7. It is also well settled that it is unfair to accept an employee to fight with the department on one hand and at the same time, fend himself for survival. It is again well settled that non payment of Subsistence Allowance during suspension, vitiates the enquiry. As stated earlier, paying subsistence allowance during the pendency of disciplinary proceedings is recognised under Section 3 of the Payment of Subsistence Allowance Act, 1988. The judgment of the learned single Judge that representation of the petitioner for subsistence http://www.judis.nic.in 6 allowance should be considered, does not call for any interference. Hence, the instant writ appeal is dismissed. No Costs. Consequently, the connected Civil Miscellaneous Petition is closed.
[S.M.K., J.] [S.P., J.]
19.12.2018
Index : Yes
Internet : Yes
Speaking/Non-speaking order
ars
http://www.judis.nic.in
7
To
1. The Registrar,
Co-operative (Housing Societies),
Tamil Nadu Housing Board Complex,
No.493, Anna Salai, Nandanam,
Chennai - 600 035.
2. The Deputy Registrar,
Regional Co-operative Housing Societies, No.15, 1st West Main Road, Gandhi Nagar, Vellore District.
3. Enquiry Officer, Domestic Enquiry, Hosur Co-operative House Building Society, Appavoo Nagar - Thally Road, Hosur.
http://www.judis.nic.in 8 S. MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
ars W.A.No.2828 of 2018 and CMP No.23496 of 2018 19.12.2018 http://www.judis.nic.in