Venganoor Co-Operative Rural ... vs The District Labour Officer on 10 January, 2024

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Kerala High Court

Venganoor Co-Operative Rural ... vs The District Labour Officer on 10 January, 2024

The present intra-court appeal (W.A.No.1392 of 2023) has been preferred against the interim order dated 4 th of July, 2023 rendered in W.P.(C)No.21561/2023 preferred against the order of the Labour Court deciding I.A.No.47 of 2023, accepting the claim of the 3rd respondent/ claimant for release of the subsistence allowance by ordering the employer to pay Rs.18,38,569/- (Rupees eighten lakhs thirty eight thousand five hundred and sixty nine only) in four equal installments.

2. Case of the Management before the Single Bench was that as per the provisions of the Co-operative Societies Act, for the employees working with the Co- operative Society, the provisions of the Kerala Payment of W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 2 :- Subsistence Allowance Act, 1972 would be applicable. The employee did not suffice the requirement of proviso to Section 3 of the Act as from the plain perusal of the contents of the application (Ext.P6), there is no such averment that during the period of suspension with effect from 8th of January, 2016 he was or not under the gainful employment. The Labour Court was required to call upon the parties to adjudicate the application on the basis of the affidavits and the documents submitted in support thereof. This fact was seriously taken and agitated before the Single Bench for the purpose of interim stay, but resulted into a direction of payment of Rs.5,00,000/- (Rupees Five lakhs only) to be deposited before the Labour Court and on deposit, the said amount has been ordered to be released to the 3rd respondent/claimant in accordance with law.

3. This Court, on 10th of August, 2023, while examining the afore-mentioned argument, ordered the W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 3 :- Registry to list the Writ Appeal along with the Writ Petition. Listed accordingly. In that circumstance, we propose to decide the Writ Appeal and Writ Petition together.

4. Another argument raised by the learned counsel for the appellant was that the reason for suspension was misappropriation of exponential amount as well as unauthorised absence. The employee was permitted to join the employment provided he clears the dues of the Society and vide Ext.P17 dated 14 th December, 2020, he admitted the mistake and had undertaken that the amount due to the Society should be adjusted by deducting one-third from his salary.

5. On the other hand, learned counsel appearing on behalf of the workman submitted that the workman is suffering from cancer and this fact has been proved by a medical certificate on the records of the Labour Court. It is on that account he would not be in a position to sustain the high expenditure.

W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 4 :-

6. We have heard the learned counsel appearing on both sides.

7. Section 3 of the Kerala Payment of Subsistence Allowance Act, 1972 reads as follows :-.

"3.Payment of subsistence allowance.-- (1) Whenever an employee is placed under suspension, he shall be paid by the employer for the period during which he is under suspension subsistence allowance of an amount equal to fifty per centum of the wages which the employee was drawing immediately before such suspension.

Provided that where the period of suspension exceeds ninety days, the amount of subsistence allowance shall be increased after the expiry of ninety days to seventy-five percentum of the wages which the employee was drawing immediately before such suspension.

Provided further that an employee shall not be entitled to any subsistence allowance if he accepts employment during the period of suspension in any establishment other than the establishment where he had been working immediately before his suspension.

(2) An employee shall not in any event be liable to refund or forfeit any part of the subsistence allowance admissible to him under sub-section (1), but when an employee is exonerated of the charge which caused his suspension, the subsistence allowance paid to him for any period shall be adjusted against the full wages admissible to him for the same period.

(3)Where any employee has been placed under suspension before the commencement of this Act and such suspension is in force at such commencement, he shall be deemed to have been placed under suspension on the date of such commencement. "

W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 5 :-

8. On perusal of the contents of the application (Ext.P6) attached with the writ petition, subsistence allowance of Rs.18,38,569/- was claimed without any averment regarding gainful employment and the claim has been accepted without calling the other parties and/or placing on record material, particularly the one now submitted before us as per Ext.P7. The Single Bench also did not notice the afore-mentioned fact.

9. Considering that the workman is undergoing the treatment for malignancy, we modify the orders of the Labour Court and Single Bench and order the Management to deposit a sum of Rs.2,00,000/- (Rupees Two lakhs only) within a period of one week from today directly by way of cheque or pay order to the claimant/workman. The claimant/workman shall execute a receipt in favour of the Management and furnish security within one week thereafter to the Labour Court.

10. The afore-mentioned arrangement would be a modification of the order of the Labour Court as well as of W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 6 :- the order of the Single Bench. Interim application I.A.No.47 of 2023 stands disposed off.

11. Labour Court is directed to try and decide the claim, as expeditiously as possible, preferably within a period of one year in accordance with law. In case the judgment is rendered against the claimant, on failure of the claimant to deposit the amount as per the security the Management shall be entitled to seek the recovery of the amount in accordance with law.

The writ petition and writ appeal are disposed off as above.

Sd/-

AMIT RAWAL JUDGE Sd/-

C.S. SUDHA JUDGE skj W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 7 :- APPENDIX OF WP(C) 21561/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE NO. 594/15-16 DATED 26.11.2015 ISSUED TO THE 3RD RESPONDENT.

Exhibit P2 TRUE COPY OF THE EXPLANATION DATED 07.12. 2015 SUBMITTED BY THE 3RD RESPONDENT.

Exhibit P3 TRUE COPY OF THE ORDER NO. V.1497/2015 DATED 08.01.2016 ISSUED BY THE PRESIDENT OF THE PETITIONER SOCIETY. Exhibit P4 TRUE COPY OF THE ORDER NO. V 1497/2015 DATED 12.07.2021 ISSUED BY THE CONVENER; SUBCOMMITTEE UNDER RULE 198 OF KCS RULES.

Exhibit P5 TRUE COPY OF THE ORDER DATED 29.10.2022 ALONG WITH THE COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT. Exhibit P6 TRUE COPY OF THE APPLICATION FILED AS LA NO. 47/2023 IN LD.NO.134UN22DATED 24.02.2023 BY THE 3RD RESPONDENT. Exhibit P7 TRUE COPY OF THE LEAVE APPLICATION DATED 12.08.2012 REQUESTING TO SANCTION LOSS OF PAY LEAVE FROM 13.08.2012 TO 12.02.2013.

Exhibit P8 TUE COPY OF THE LEAVE APPLICATION DATED 12.02.2013 REQUESTING TO SANCTION LEAVE FROM 13.02.2013 TO 12.08.2013.

Exhibit P9 TRUE COPY OF THE LEAVE APPLICATION DATED 12.08.2013 REQUESTING TO SANCTION LOSS OF PAY LEAVE FROM 13.08.2013 TO 12.02.2014 Exhibit P10 TRUE COPY OF THE LETTER NO.530/2014 DATED 19.02.2014 ISSUED BY THE PRESIDENT OF THE SOCIETY TO THE 3RD RESPONDENT.

Exhibit P11 TRUE COPY OF THE NOTICE NO.530/2014 DATED 24.032015 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 8 :- Exhibit P12 TRUE COPY OF THE LETTER DATED 24.03.2015 SUBMITTED BY ISSUED BY THE SPECIAL MESSENGER TO THE PETITIONER. Exhibit P13 TRUE COPY OF THE DATED-06/03/2023 OBJECTION FILED BY THE PETITIONER. Exhibit P14 TRUE COPY OF THE ORDER DATED 27/04/2023 IN IA 47/2023 IN ID 134/2022 OF THE LABOUR COURT KOLLAM Exhibit P15 TRUE COPY OF THE REPORT DATED -

25/01/2016 FILED BY THE EMPLOYEES OF THE SOCIETY .

Exhibit P16 TRUE COPY OF THE PERSONAL MEMORANDA GIVEN BY THE 3RD RESPONDENT TO THE PETITIONER SHOWING HIS PERMANENT ADDRESS.

Exhibit P17 TRUE COPY OF THE LETTER DATED 14.12.2020 ISSUED BY THE 3RD RESPONDENT.

Exhibit P18 TRUE COPY OF THE LETTER DATED 18.01.2021 ISSUED BY THE PETITIONER. Exhibit P19 TRUE COPY OF THE LETTER DATED 17.08.2021 ISSUED BY THE ASSISTANT REGISTRAR (GENERAL) ALONG WITH THE COMPLAINT TO THE PETITIONER.

Exhibit P20 TRUE COPY OF THE EXPLANATION DATED 12.10.2021 SUBMITTED BY THE PETITIONER BOFORE THE ASSISTANT REGISTRAR (GENERAL), THIRUVANANTHAPURAM. W.A.No.1392 of 2023 & W.P.(C)No.21561 of 2023 -: 9 :- APPENDIX OF WA 1392/2023 APPELLANT'S ANNEXURES Annexure-A1 TRUE COPY OF COMPLETE SET OF WP (C) NO. 21561/2023.

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