High Court Kerala High Court

The Vayitri Plantations Ltd vs Mr.M.P.Ramankutty on 6 November, 2008

Kerala High Court
The Vayitri Plantations Ltd vs Mr.M.P.Ramankutty on 6 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1307 of 2006()


1. THE VAYITRI PLANTATIONS LTD.,
                      ...  Petitioner

                        Vs



1. MR.M.P.RAMANKUTTY, ESTATE WORKER,
                       ...       Respondent

2. THE COURT OF AUTHORITY UNDER SEC. 4 OF

                For Petitioner  :SMT.T.D.RAJALAKSHMI

                For Respondent  :SRI.P.K.RAMKUMAR

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER

 Dated :06/11/2008

 O R D E R

H.L. DATTU, C.J. & A.K. BASHEER, J.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

W.A.No. 1307 of 2006
&
O.P.No. 13853 of 2002

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Dated this the 6th day of November, 2008

Judgment
H.L. Dattu, C. J:

Appellant before us is the petitioner in O.P.No.1876 of 1999.

2. The appellant is the employer. Respondent before us in the writ appeal

is the workman.

3. In O.P.No. 13853 of 2002, petitioner is the employer. Contesting

respondent is the workman.

4. In O.P.No.1876 of 1999, the employer had called in question Exts.P5

and P6 orders passed by the Deputy Labour Commissioner, Kannur, who is the

competent authority under the provisions of the Kerala Payment of Subsistence

Allowance Act, 1972 (the Act, for short).

5. The contesting respondent was an estate worker. He was kept under

suspension in contemplation of the departmental enquiry on 25/4/1987.

6. The employer had appointed an Enquiry Officer to enquire into certain

allegations made against the workman. It is the stand of the workman that no

orders were passed by the disciplinary authority on the report of the Enquiry

Officer. However it is contended by the appellant’s learned counsel that after

accepting the report of the Enquiry Officer an order of dismissal was passed and

the same is served on the workman.

WA.1307/08
& OP.3853/2002 2

7. The employer had also lodged a criminal complaint against the

respondent workman, inter alia, alleging an offence of theft of the articles

belonging to the employer. At the time of hearing of this writ appeal and the

Original Petition, we were informed by the learned counsel appearing for the

parties that the jurisdictional Magistrate Court has given a clean chit to respondent

No.1/workman.

8. In the claim statement filed before the Deputy Labour Commissioner,

the respondent-workman has stated that he had entrusted the matter to one Union

for making an application for payment of subsistence allowance, as provided

under the Act and since that Union had not taken effective steps, he had to change

his membership and it is only the other Union that had taken effective steps to

present an application for payment of the subsistence allowance under the Act.

Along with the claim statement, the Union also had filed an application for

condonation of delay in filing the application for payment of subsistence

allowance.

9. After registering the claim statement, the Deputy Labour Commissioner

had issued notice to the employee. The stand taken by the workman before the

Deputy Labour commissioner was that the application filed by the petitioner is

barred by limitation and the second contention was that after accepting the report

of the Enquiry Officer, the disciplinary authority had passed an order

dismissing the workman from service of the employer. Strangely, before the

Deputy Labour Commissioner, the employer had not produced a copy of the

WA.1307/08
& OP.3853/2002 3

order of the dismissal said to have been passed by them.

10. The Deputy Labour Commissioner, after condoning the delay in filing

the application for payment of subsistence allowance, has directed the employer to

pay subsistence allowance from 25/4/1987 to 28/2/1991 in a sum of Rs.21777.55

and for the period from 1/3/1991 to 31/7/1993 in a sum of Rs.14355/- in

O.P.No.13853/2002. By yet another order the Deputy Labour Commissioner has

directed the employer to pay the subsistence allowance for the period from

1/8/1993 to 30/9/1998 in a sum of Rs.77152/- and the order so passed is the

subject matter in O.P.No.13853 of 2002.

11. Aggrieved by the orders so passed by the Deputy Labour

Commissioner, the employer was before this Court in O.P.NO.1876/1999. The

learned single Judge has rejected the writ petition and while doing so he was of the

opinion that the Deputy Labour Commissioner has not committed any error

whatsoever while passing the impugned orders. Aggrieved by the orders passed

by the learned single Judge in O.P.No.1876/1999, the employer is before us in

W.A.No.1307/2006.

12. Since the appeal was pending before this Court, the learned single

Judge has also referred O.P.No.13853/2002 for our consideration and decision.

13. We have heard learned counsel for the appellant as well as the learned

counsel for the respondents.

14. The appellant’s learned counsel would submit that the Deputy Labour

Commissioner was not justified in condoning the delay in filing the application

WA.1307/08
& OP.3853/2002 4

for payment of subsistence allowance. Secondly, it is contended that the employer

had passed an order of dismissal of the respondent/workman from service and

therefore the workman is not entitled to payment of subsistence allowance as

envisaged under the Act.

15. In order to answer the issues canvassed by the learned counsel for the

appellant, it is appropriate for us to refer to the objects of the Act and the other

relevant provisions.

16. The object of the Act is to provide the payment of subsistence

allowances to the employees in certain establishments during the period of

suspension. This is a social measure adopted by the State Government, the

reason being that during the suspension period the employee should not suffer for

want of food etc.

17. Section 4 of the Act provides for recovery of money due from an

employer. The said provision is as under:

“4. Recovery of money due from an

employer:–Where any money is due to an

employee from an employer under this Act, the

employee of any other person authorised by

him in this behalf, or in the case of the death of

the employee, his legal representative may,

without prejudice to any other mode of

recovery, make an application to the

Government in such manner as may be

prescribed for the recovery of money due to

WA.1307/08
& OP.3853/2002 5

him, and if the government, after giving the

employer an opportunity of being heard in such

manner as may be prescribed, is satisfied, that

any money is so due, it shall issue a certificate

for that amount to the collector who shall

proceed to recover the same in the same

manner as an arrear of land revenue:

Provided that every such application

shall be made within one year from the date on

which the money became due to the employee

from the employer:

Provided further that any such

application may be entertained after the expiry

of the said period of one year, if the

Governments is satisfied that the applicant had

sufficient cause for not making the application

within the said period.”

18. Section 4 of the Act authorises a workman or any other person

authorised by him, or in the case of death of an employee his legal

representatives for making an application before the State Government as

provided under the Act for recovery of the amounts due from the employer. The

section also states that if such an application is filed by the workman or his

authorised representative or the legal representatives of the deceased workman,

the State Governments shall afford an opportunity of hearing to all the parties

and proceed to pass an appropriate order and then issue a certificate for that

WA.1307/08
& OP.3853/2002 6

amount to the Collector who will proceed to recover the amounts due as arrears of

the land revenue.

19. The first proviso appended to the Section stipulates that every

application shall be made by the workman or his authorised representative or the

legal representative of the deceased employee within one year from the date on

which the money became due to the employee from the employer.

20. The second proviso gives the discretion to the State

Government/Deputy Labour Commissioner to entertain the application, if it/he is

satisfied that the applicant had sufficient cause for not preferring the application

within the period stipulated under the first proviso to Section 4 of the Act.

21. The first contention of the learned counsel for the appellant is that there

was inordinate delay in filing the application for payment of subsistence

allowance as envisaged under the Act and therefore the Deputy Labour

Commissioner was not justified in allowing the application.

22. As stated already, the Kerala Payment of Subsistence Allowance Act

is a social welfare measure given to an employee/workman for payment of

subsistence allowance during the period of suspension in contemplation of the

departmental enquiry proceedings . Therefore the period of limitation prescribed

under the Act requires to be liberally construed. Therefore the Legislature itself

has incorporated proviso to Section 4 of the Act, giving discretion to the State

Government/Deputy Labour Commissioner to condone the delay, if any, in

WA.1307/08
& OP.3853/2002 7

making the application, if it/he is satisfied that the applicant had sufficient cause

in not preferring the application within the time prescribed under the first proviso

to Section 4 of the Act.

23. In the instant case, the applicant has stated before the Deputy Labour

Commissioner that he was a member of one Union and he had requested that

Union to make an appropriate application before the Deputy Labour Commissioner

for payment of subsistence allowance and in spite of his repeated requests, the said

Union had not taken any steps to make any application before the Deputy Labour

Commissioner and therefore he had changed his membership from that Union to

another Union and that Union had filed an application for payment of subsistence

allowance as envisaged under the Act. Therefore it is stated that there was some

delay in filing the application and the same requires to be condoned.

24. Keeping in view the explanation offered by the applicant, the Deputy

Labour Commissioner has condoned the delay and while doing so has assigned

not only cogent but also appropriate reasons. Since the findings of the Deputy

Labour Commissioner in that regard are not perverse, interference with those

finding is not called for in a petition under Articles 226 and 227 of the

Constitution. Keeping that aspect of the matter in view, the learned single judge

has rejected the first contention canvassed by the learned counsel for the

petitioner/appellant.

25. It was the stand of the learned counsel for the appellant that the

WA.1307/08
& OP.3853/2002 8

respondent/workman was dismissed from service on 8/3/1988 and therefore not

entitled for payment of subsistence allowance. Though the said contention was

taken before the Deputy Labour Commissioner, the employer had not produced

any orders passed by them. It is only before this Court that they had produced

Ext.P2 order which is an order of dismissal of the respondent/workman. It is the

stand of the learned counsel for the respondent that the said order was not

communicated to him at any point of time. Learned single Judge is satisfied that

though an order might have been passed by the employer, the said order was never

communicated to the respondent workman and therefore the workman is entitled

for payment of subsistence allowance.

26. In our opinion, whenever an employer initiates departmental enquiry

proceedings, the employer is expected to pay subsistence allowance to the

workman. This view of ours is supported by the decision of the Apex Court in the

case of Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. & Anr .(`1999 (3) SCC

679. In the said decision the Apex Court had held as under:

“31. On joining government

service, a person does not mortgage or

barter away his basic rights as a

human being, including his fundamental

rights, in favour of the Government.

The Government, only because it has

the power to appoint does not become

the master of the body and soul of the

employee. The Government by providing

WA.1307/08
& OP.3853/2002 9

job opportunities to its citizens only

fulfils its obligations under the

Constitution, including the Directive

Principles of State Policy. The

employee, on taking up an employment

only agrees to subject himself to the

regulatory measures concerning his

service. His association with the

Government or any other employer, like

instrumentalities of the Government or

statutory or autonomous corporation etc.

is regulated by the terms of contract

of service or service rules made by the

Central or the State Governments under

the proviso to Article 309 of the

Constitution or other statutory rules

including certified standing orders. The

fundamental rights, including the right

to life under Article 21 of the

Constitution or the basic human rights

are not surrendered by the employee.

              The provision      for    payment     of

              subsistence    allowance made in the

service rules only ensures non-violation

of the right to life of the employee.

That was the reason why this Court in

State of Maharashtra v. Chandrabhan

Tale ((1983) 3 SCC 387) struck down a

service rule which provided for payment

WA.1307/08
& OP.3853/2002 10

of a nominal amount of rupee one as

subsistence allowance to an employee

placed under suspension. This decision

was followed in Fakirbhai Fulabhai

Solanki v. Presiding Officer and it was

held in that case that if an employee could

not attend the departmental proceedings

on account of financial stringencies

caused by non-payment of subsistence

allowance, and thereby could not

undertake a journey away from his home

to attend the departmental proceedings,

the order of punishment, including the

whole proceedings would stand vitiated.

For this purpose, reliance was also

placed on an earlier decision in

Ghanshyam Das Shrivastave v. State of

M.P.(1973) 1 SCC 656″

27. Keeping all these aspects of the matter in view, in our opinion, the

learned single Judge has rightly rejected the Original Petition filed by the employer

thereby confirming the orders passed by the Deputy Labour Commissioner.

28. Having gone through the orders passed by the Deputy Labour

Commissioner and also the orders passed by the learned single Judge, we are of

the firm opinion that the learned single Judge has not committed any error

WA.1307/08
& OP.3853/2002 11

whatsoever. Therefore interference with the said order is not called for.

Accordingly, writ appeal requires to be rejected and it is rejected.

29. In view of the rejection of WA.No.1307/2006, we have no other

alternative but to reject O.P.No.13853/2002 filed by the management questioning

the orders passed by the Deputy Labour Commissioner for the period from

1/8/1993 to 30/9/1998.

Ordered accordingly.





                                                           H.L. DATTU
                                                           Chief Justice



                                                         A.K. BASHEER
 an.                                                              Judge