Secretary-In-Charge vs Deputy Labour Commissioner on 12 August, 2009

Kerala High Court
Secretary-In-Charge vs Deputy Labour Commissioner on 12 August, 2009




WP(C).No. 20277 of 2009(D)

                      ...  Petitioner


                       ...       Respondent


                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.


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

W.P.(C). No. 20277 OF 2009

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


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


6. But, in my view, the petitioner is entitled to succeed on

the short ground that the second respondent had approached

W.P.(C). No. 20277 OF 2009

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

W.P.(C). No. 20277 OF 2009

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.



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