JUDGMENT
K. Balakrishnan Nair, J.
1. The petitioner was the Secretary of the Corporation of Cochin Employees Cooperative Society Ltd. No. 331, Thoppumpady, Cochin. He was suspended from service on 14.10.1999. The disciplinary proceedings ended in his compulsory retirement on 14.4.2000, with effect from 14.10.1999. The petitioner submits, though he moved the President by filing representations repeatedly, claiming Subsistence Allowance, the same was not paid to him. After his compulsory retirement, he moved the Assistant Registrar and the Assistant Registrar, by Ext.P2 order dated 13.7.2000, directed the Society to pay the Subsistence Allowance due to him. The petitioner submitted Ext.P3 representation before the Assistant Registrar, pointing out that the direction in Ext.P2 was not obeyed. Thereafter, he moved the Joint Registrar by filing Ext.P4 representation. The said officer considered his grievance and issued Ext.P5 order dated 6.2.2001, directing to pay the subsistence allowance for the period the petitioner was out of service. In Ext.P5, the date of suspension was shown on 16.11.1999. The Society moved a Review Petition before the Joint Registrar. That was rejected by Ext.P6 and the Society was again directed to pay the Subsistence Allowance due to the petitioner from 14.10.1999 to 14.4.2000. The Society filed an appeal against Ext.P6 before the Government. That was allowed by Ext.P10. This Writ Petition is filed, challenging Ext.P10.
2. The Government upheld the contention of the Society that since the petitioner was awarded compulsory retirement from service retrospectively from the date of suspension, he is not eligible for Subsistence Allowance. The petitioner is deemed to be out of service from the date of suspension and therefore, he is not entitled to get any allowance for the period he was not in the service of the Society, according to the Government. The petitioner submits, the said finding of the Government is plainly perverse. Under Rule 198(6) of the Kerala Co-operative Societies Rules, he is entitled to get Subsistence Allowance. He has been repeatedly moving the President of the Society to pay it and thereafter, the statutory authorities have validly found on the entitlement of the petitioner and directed payment of it. The right to get Subsistence Allowance cannot be defeated by this subterfuge of retrospective compulsory retirement, it is submitted.
3. The Society has filed a counter affidavit, in which it is submitted that the petitioner never claimed Subsistence allowance while he was under suspension. Since only after the compulsory retirement, he raised the said claim, the Society took the stand that he is not eligible for any allowance. Further, it is submitted that the petitioner was the Secretary of the Society and he has misappropriated more than Rs. 93,000/- and for this reason also, he is ineligible.
4. The petitioner has filed a reply affidavit, producing Ext.P11 series representations filed by him before the President during the period he was under suspension.
5. Heard the learned counsel on both sides. 50% of the Subsistence Allowance, as directed in Ext.P6, was paid as per the interim order of this Court dated 18.11.2003.
6. The petitioner, relying on the decisions of the Apex Court in Jagdamba Prdsad Shukla v. State of U.P. ((2000) 7 SCC 90) and this Court in Philipose v. State Bank of Hyderabad (2001 (3) KLT 378) submitted that he is entitled to get Subsistence Allowance for the period of suspension and the retrospective compulsory retirement is bad.
7. The learned counsel for the Society, relying on the decision of this Court in State of Kerala v. K.P. Gopalan (1980 (1) SLR 302), submitted that retrospective compulsory retirement is permissible.
8. The petitioner was the Secretary of a Co-operative Society and therefore, he is eligible to get Subsistence Allowance, as provided in the Kerala Service Rules, in the light of Rule 198(6) of the Kerala Co-operative Societies Rules. The said right to get Subsistence Allowance does not depend upon the gravity of the charges levelled against him. In other words, if a delinquent employee is accused of misappropriation, the same cannot be a ground to deny Subsistence Allowance to him. The said allowance is meant to help the employee to sustain himself during the period of suspension and to face the disciplinary proceedings. Therefore, the Society was bound to pay the employee the Subsistence Allowance every month. Whether the petitioner has claimed the benefit every month, is a disputed question. Still, there was no justification for not releasing the amount due to the petitioner, at least from the date of Ext.P2, that is 13.7.2000. The retrospective compulsory retirement cannot be pressed into service, as a ground for denial of Subsistence Allowance. If it is permitted, somehow or other, the payment of Subsistence Allowance can be dodged and thereafter, by passing a dismissal order with retrospective effect from the date of suspension, every delinquent employee can be denied Subsistence Allowance. The contention of the Society raised in this regard is plainly against the mandate of Rule 198 and the concept of payment of Subsistence Allowance.
9. The Apex Court in State of Maharashtra v. Chandrabhan (AIR 1983 SC 803) had held that the non-payment of Subsistence Allowance which disabled the employee from effectively participating in the enquiry proceedings, will vitiate the disciplinary proceedings itself. The said principle has been reiterated by the Apex Court in Jagdamba Prasad Shukla v. State of U.P. ((2000) 7 SCC 90). So, payment of Subsistence Allowance cannot be denied by retrospective dismissal of an employee. The statutorily vested right of an employee cannot be deprived by passing a resolution, dismissing him with retrospective effect. The resolution of a Co-operative Society cannot have the effect of overriding the statutory provisions contained in Rule 198(6).
Accordingly, the Writ Petition is allowed with costs. Ext.P10 is quashed. The petitioner is entitled to get Subsistence Allowance with 9% interest from 13.7.2000, the date of Ext.P2. The 2nd respondent shall pay the balance Subsistence Allowance due to the petitioner, in the light of the declaration made herein above, alongwith the costs, within one month from the date of production of a copy of this judgment.