IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31999 of 2008(H)
1. P.MADHUSOODANAN, AGED 56,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. CHIEF ENGINEER, (HRM), K.S.E.B.
3. EXECUTIVE ENGINEER, (ELECTRICAL
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent :SRI.K.S.ANIL, SC, KSEB
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :05/02/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C). No.31999/2008-H
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Dated this the 5th day of February, 2009
J U D G M E N T
Aggrieved by the adjustment made by the respondents of an
amount of Rs.1,30,746/- received by the petitioner as subsistence allowance
from the D.C.R.G sanctioned to him, the petitioner has approached this
Court. The main contention raised by the learned counsel for the petitioner
is that in view of the provisions of the Payment of Gratuity Act, no such
reduction could have been made.
2. The bare facts necessary for the disposal of the writ petition
show the following:- The petitioner retired from service on 28/02/2007
from the post of Sub Engineer from Electrical Section, Thenmala. He was
under suspension from March 1997 to October 1998. The petitioner was
inflicted with the punishment of barring three increments with cumulative
effect and he was directed to remit the amount of Rs.5,276/- in lump
towards one third of the monetary loss sustained by the Board, and the
suspension period was treated as eligible leave. Even though the
punishment was set aside in O.P.No.28248/2003, the same was restored in
W.A.No.1344/2006.
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3. The respondents in the counter affidavit contended that when
the petitioner was reinstated in service after sanctioning his eligible leave to
his credit, rest of the period under suspension was considered as leave
without allowance for which subsistence allowance has to be refunded. As
the period of suspension was regularised as eligible leave, no leave salary
can be claimed by him for leave without allowance as per Rule 56B (9) of
Part I KSR. Relying upon Government Circular dated 26/11/1994 also it is
clarified that once a period of suspension is converted into leave without
allowance, recovery of subsistence allowance already paid is inescapable
because the conversion of period of leave will have the effect of vacating
the order of suspension and, hence, the subsistence allowance drawn
amounting to Rs.1,30,746/- was adjusted from the D.C.R.G.
4. The learned counsel for the petitioner relied upon Rule 5 of
Part I KSR the decision reported in K.S.R.T.C. vs.Vamadevan Nair [1996
(1) KLT 581], the decision of the Division Bench of this Court in Kerala
State Warehousing Corporation v.Pauly John [2006 (3) KLT 27] as well
as of another Division Bench decision of this Court in Kerala State
Electricity Board vs. R.Mohan Kumar & another [2008 (3) KLT 73].
5. Rule 5 of Part I KSR reads thus:-
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“Nothing in these rules or in any rule made thereunder
shall operate to deprive any person of any right or privilege to
which he is entitled:-
a) by or under any law, or
(b) by the terms of any contract or agreement
subsisting between such person and Government on the date of
these rules come into force.”
6. In K.S.R.T.C. v. Vamadevan Nair (1996 (1) KLT 581), the
effect of the above rule was considered. The question was whether the
provisions of Payment of Subsistence Allowance Act, 1972 could be
applied in the matter of payment of subsistence allowance to the employees
of K.S.R.T.C. While examining the said contention, it was held in para 4 as
follows:
“When the K.S.R. is adopted as part of settlement necessarily along
with Rule 55 Part I, Rule 5 Part I also becomes its part. In that
case, Rule 55 shall not operate to deprive any person the right or
privilege to which he is entitled to under any law. Without any
dispute, the Act comes within the purview of the law mentioned in
Rule 5. Therefore, the provisions in the Act prevails by reason of
application of Rule 5, over the provisions in Rule 55, governing the
grant of subsistence allowance to respondents 1 to 9. On that
ground K.S.R. cannot be applied for regulating subsistence
allowance.”
The position herein is similar. Therefore, whatever be the provisions of
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Rule 56B (9) of Part I K.S.R., it is controlled by the provisions of Rule 5 of
Part I K.S.R. In that view of the matter, K.S.R. cannot be applied for
regulating the subsistence allowance, as held in the above decision. The
Apex Court in Municipal Corporation of Delhi v. Dharam Prakash
Sharma and another (AIR 1999 SC 293) considered the applicability of
Payment of Gratuity Act, being a special law, in spite of the provisions
contained in the Central Civil Services (Pension) Rules, 1972. It was held
that the Payment of Gratuity Act, being a special provision for payment of
gratuity unless there is any provision which excludes its applicability to an
employee who is otherwise governed by the provisions of the Pension
Rule, it is not possible to hold that the employee of Municipal Corporation
of Delhi is not entitled to the gratuity under the Payment of Gratuity Act. A
Division Bench of this court in K.S.E.B. v. Mohankumar (2008 (3) KLT
73), examined the same question. It was held that “the employees of the
Corporation, by no stretch of imagination can be employees of the State
Government. Section 14 of the Payment of Gratuity Act provides that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than the Act or in
any instrument or contract having effect by virtue of any enactment under
the Act……………. Payment of Gratuity Act, 1972 being a special
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provision, shall have an overriding effect over any scheme that might have
been adopted by the concerned employer, and even if the benefit is availed
of under the concerned scheme, the employee would be entitled for payment
of gratuity under the Act.” Accordingly, it was held that the provisions of
Gratuity Act will prevail over Part III K.S.R.
7. Going by Section 14 of the Payment of Gratuity Act, the
provisions of the said Act shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than the said Act or
in any instrument or contract having effect by virtue of any enactment other
than the said Act. Therefore, the provisions of Payment of Gratuity Act will
override the provisions of K.S.R.
8. A Division Bench of this court in Kerala State Warehousing
Corporation v. Pauly John (2006 (3) KLT 27) examined the question
whether in respect of an employee who is governed by the Payment of
Subsistence Allowance Act, 1972 any refund of subsistence allowance
could be ordered or the employer could be asked to recover the same. It
was held in para 6 that “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
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employee is not to refund subsistence allowance received by him at all.”
While examining the contention under Rule 56B of Part I K.S.R. which
authorises the employer to issue orders of recovery, it was held in para 8
that “when a special statute governs the parties, contracting out is not
permissible.”
9. After referring to the various aspects covered by the said Act, it
was also held that “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.”
10. Even though the decision of the Division Bench of this Court
reported in K.S.E.B’s case in [2008 (3) KLT 73] is pending in the appeal
before the Apex Court, the same need not bar this Court from considering
the matter in the light of the provisions of Rule 5 of Part I KSR. The
learned counsel for the petitioner is right in submitting that going by Rule 5
of Part I KSR, the right of petitioner under any other law cannot be deprived
by the operation of the provisions of this Rule. If that be so, the contention
raised by the respondents that Rule 56 B (9) of Part I KSR will apply,
cannot be accepted. Apart from the amount that is sought to be recovered,
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there are other items covered by Ext.P2. The same are not challenged in
this writ petition and the claim is confined to the amount that is paid as
subsistence allowance for the period from March 1997 to October 1998.
Therefore, the action taken by the authorities to recover the subsistence
allowance paid, from the D.C.R.G., is illegal. There will be a direction to
the respondents to release the said amount within a period of one month
from the date of receipt of the copy of this judgment.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
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