IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20277 of 2009(D)
1. SECRETARY-IN-CHARGE, CHERTHALA SERVICE
... Petitioner
Vs
1. DEPUTY LABOUR COMMISSIONER,
... Respondent
2. P.VAMADEVAN, VIMALA NIVAS,
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.VAKKOM N.VIJAYAN
The Hon'ble MR. Justice V.GIRI
Dated :12/08/2009
O R D E R
V.GIRI, J.
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W.P.(C). No. 20277 OF 2009
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Dated this the 12th day of August 2009.
JUDGMENT
The petitioner is the Assistant Secretary-in-charge of
Secretary of the Cherthala Service Co-operative Bank Limited
No.1688, Cherthala. The second respondent was working as a
Chief Accountant and Manager-in-charge of the morning and
evening branch of the Bank. He was placed under suspension on
07.05.2003. He was paid subsistence allowance at the rate of
50% of the last drawn salary. He challenged the suspension and
sought for reinstatement in service, by approaching this Court in
W.P.(C).No.6302/2006. He had also sought for a direction in the
said writ petition, to the petitioner herein namely, the
respondent in the said writ petition to pay subsistence allowance
under Section 3 of the Kerala Payment of Subsistence Allowance
Act 1972. The writ petition was dismissed by this Court under
Ext.P1 judgment, finding that the petitioner is not entitled to
any reliefs.
2. The second respondent then filed an application before
the first respondent under the provisions of the Kerala Payment
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2
of Subsistence Allowance Act claiming an amount of
Rs.3,63,870/-. The petitioner submitted remarks to the said
application as per Ext.P3. The objections were overruled and
the first respondent passed an order Ext.P4 holding that the
second respondent is eligible for a sum of Rs.3,63,870/- by way
of subsistence allowance. This has been challenged in this writ
petition.
3. Notice on admission was issued from this Court. The
second respondent has entered appearance and has filed a
counter affidavit.
4. I heard counsel on both sides and have taken up the writ
petition for disposal by consent of parties.
5. Several contentions have been taken up in the writ
petition challenging Ext.P4 order. This includes a contention
that the second respondent was not an employee within the
meaning of Section 2(A) of the Kerala Payment of Subsistence
Allowance Act since his duties were mainly managerial or
administrative.
6. But, in my view, the petitioner is entitled to succeed on
the short ground that the second respondent had approached
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3
this Court in W.P.(C).No.6302/2006 inter alia praying for a
direction to the respondents in the said writ petition, including
the petitioner herein to pay him subsistence allowance as
provided under Section 3 of the Kerala Payment of Subsistence
Allowance Act. The said writ petition was dismissed in it’s
entirely this by Court, holding that the points raised by the writ
petitioner are liable to be held against him. It was not open to
the second respondent to move the first respondent thereafter
for subsistence allowance under the Payment of Subsistence
Allowance Act. This objection should have been specifically
taken by the Bank, on receipt of notice from the first respondent.
Mr. S.P.Aravindakshan Pillay, learned Counsel for the petitioner
submits that the said objection which was fatal to the very
maintainability of the application filed by the second respondent
herein was not taken because the then Secretary of the Bank,
who was responsible for the conduct of the case before the first
respondent was also facing disciplinary action along with the
second respondent herein.
7. Be that as it may, Ext.P1 judgment clearly stands in
the way of the second respondent prosecuting a claim for
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subsistence allowance under the Kerala Payment of Subsistence
Allowance Act, before the first respondent.
Accordingly, the writ petition is allowed and Ext.P4 order
passed by the first respondent is quashed.
(V.GIRI)
JUDGE
kkms/