IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.03.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.12146 of 2007 The Special Officer, Thorappalli Primary Agricultural Co-operative Bank Ltd., Thorappalli Agraharam, Thorappalli, Hosur Taluk, Krishnagiri District. ... Petitioner Vs. 1.M.Ramakrishnan 2.The Presiding Officer, Labour Court, Salem. ... Respondents Petition filed under Article 226 of the Constitution, praying for a Writ of Certiorari, calling for the records of the 2nd respondent in C.P.No.295 of 2004 dated 12.01.2007 and quash the same. For Petitioner : Mr.N.Kolandaivelu For Respondent : Mr.K.V.Shanmuganathan for R1 O R D E R
The petitioner is a Co-operative Society, represented by its Special Officer. The Society filed the writ petition, seeking to challenge an order of the second respondent Labour Court, Salem in C.P.No.295 of 2004 dated 12.01.2007. By the impugned order, the Labour Court computed a sum of Rs.4,95,200/- as due and payable to the first respondent.
2. The writ petition was admitted on 03.04.2007. Pending the writ petition, this Court directed the petitioner Society to deposit a sum of Rs.1 lakh to the credit of the CP within a period of four weeks. It is fairly submitted that the petitioner has not deposited the said amount.
3. The first respondent herein filed a petition under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short Act) claiming subsistence allowance for the period from 01.03.1989 to 31.05.2004. He also stated that he had not been paid any subsistence allowance despite being suspended from service. But the calculation of subsistence allowance was done on the basis of the salary receivable by the first respondent for the following years :
i) 1989 – Rs.1000/-
ii) 1990 – Rs.1500/-
iii) 1991 – Rs.1600/-
iv) 1992 – Rs.1800/-
v) 1993 – Rs.2000/-
vi) 1994 – Rs.2200/-
vii) 1995 – Rs.2400/-
viii) 1996 – Rs.2600/
ix) 1997 – Rs.2800/-
x) 1998 – Rs.3000/-
xi) 1999 – Rs.3250/-
xii) 2000 – Rs.3500/-
xiii) 2001 – Rs.3750/-
xiv) 2002 – Rs.4000/-
xv) 2003 – Rs.4200/-
xvi) 2004 – Rs.4400/-
4. The first respondent was working as a Salesman. He claimed the payment pursuant to a settlement dated 07.03.1994 signed between the parties under Section 12(3) of the Act. He also claimed that he was eligible for annual increments during the relevant time. The said petition was taken on file as C.P.No.295 of 2004.
5. The petitioner Society filed a counter statement dated 22.09.2005. In the counter statement, it was stated that the petitioner had committed misappropriation during March 1989. Since he had not repaid the amount of Rs.9832.80, the Society was attempting to attach his properties. Though his suspension was in the year 1989, he has filed the claim petition only in the year 2004, nearly after a gap of 16 years. Under the provisions of Tamil Nadu Payment of Subsistence Allowance Act,1981 the claim for subsistence allowance will have to be made within one year from the date on which the amounts become due. Inasmuch as the first respondent had not claimed the said amount within the limitation, he cannot make use of Section 33-C(2) of the Act to get over limitation. His appointment itself was done in contravention of Rule 149 of the Tamil Nadu Co-operative Societies Rules. As he was an irregular appointee, he was not eligible for any payment.
6. Before the Labour Court, on behalf of the petitioner Management, one C.Upendran was examined as R.W.1. On the side of the first respondent, 4 documents were filed and were marked as Exs.A1 to A4. On the side of the petitioner Management, 2 documents were filed and were marked as Exs.R1 and R2. The first respondent did not examine himself orally.
7. The Labour Court on the basis of materials placed before it (both oral and documentary) found that subsequent to the suspension of the first respondent, no charge memo was given to him and no steps were taken to conduct an enquiry. As per Ex.A2, he was not paid subsistence allowance. Hence, he was eligible for subsistence allowance. Though the amount claimed by the first respondent was disputed, since no details were furnished by the petitioner Management, the Labour Court held that there was no bar for the Labour Court to entertain a claim under Section 33-C(2) of the I.D.Act. Since there is no limitation prescribed for making a claim under Section 33-C(2) of the Act, the objection raised by the Management was not valid. Therefore, accepting the stand of the first respondent, the amount has been computed as prayed for by the first respondent Workman.
8. The objection raised by the Management with regard to the maintainability of the claim petition and the limitation pleaded cannot be countenanced by this Court. The Tamil Nadu Payment of Subsistence Allowance Act, 1981 do not have any non- obstante clause so as to oust the jurisdiction of the Labour Court under Section 33-C(2) of the Act. Therefore, the claim for subsistence allowance can be made either under the Tamil Nadu Payment of Subsistence Allowance Act or under Section 33-C(2) of the I.D.Act. It is only in case of Payment of Subsistence Allowance Act, the limitation will come into play. Even under the Act, the authority has power to condone the delay in filing the application. When an application is filed under Section 33-C(2) of the Act, the Act do not contemplate any limitation as held by the Supreme Court in Town Municipal Council v. Presiding Officer, Labour Court Hubli reported in 1969 (1) SCC 873 and Nityanand M.Joshi v. L.I.C.of India reported in 1969 (2) L.L.J. 711.
9. The second contention that the relief has to be claimed only under the Payment of Subsistence Allowance Act and not under Section 33-C(2) of the Act is also not maintainable. It must be noted that under the Minimum Wages Act, 1948 Section 20 prescribes limitation for claiming minimum wage. But if the claim for minimum wage is made under Section 33-C(2) of the Act, the limitation prescribed under Minimum Wages Act is not applicable. Merely because Minimum Wages Act prescribes limitation, that cannot be a bar for claiming a relief under Section 33-C(2) of the Act. This position of law has been made clear vide decision reported in 1976 (1) L.L.J 334 [Municipal Council, Akola v. Second Labour Court, Nagpur and others]. Same analogy will apply to the claim under the T.N.Act 43/1981.
10. The fact that first respondent has been accused of misappropriation and that he was facing serious charges is not a ground for denying subsistence allowance. The very fact that the first respondent was suspended pending enquiry into grave charges itself will show that he is eligible to get subsistence allowance. Since parties did not refer to any by-laws, it can be presumed that the claim has been made only in terms of the rates prescribed under the Tamil Nadu Payment of Subsistence Allowance Act. It has to be seen whether the Labour Court had calculated the allowance in terms of the rates prescribed under the said Act. It also has to be further seen whether the petitioner was entitled to get all the subsequent pay revisions made by the Management pursuant to a settlement. With reference to the said contention, the Supreme Court has held that a person who is under suspension is not eligible for any enhanced suspension on the basis of any subsequent pay revision made by the employer.
11. In Union of India v. R.K. Chopra reported in (2010) 2 SCC 763, in paragraphs 28 and 29, the Supreme Court observed as follows:
28. On a combined reading of Note 3 to Rule 7 of the Revised Pay Rules and FR 53(1)(ii)(a) with the clarification with Office Memorandum dated 27-8-1958 it is clear that if the revision of pay takes effect from a date prior to the date of suspension of a government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision scale of pay takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not.
29. In view of the clear distinction drawn by the rule-making authority between the cases in which the revised scale of pay takes effect from a date prior to the date of suspension and a date falling within the period of suspension, the plea of discrimination raised cannot be sustained especially when there is no challenge to the Rules. The benefit of pay revision and the consequent revision of subsistence allowance stand postponed till the conclusion of the departmental proceedings, if the pay revision has come into effect while the government servant is under suspension.”
(Emphasis added)
Though the above case arose in the context of the Central Civil Service Rules relating to a Central Government servant, yet the principles laid down therein will apply to the facts of the present case.
12. In the present case, the settlement relied on by the petitioner had come into force only on 07.03.1994 and the petitioner has been suspended on 01.03.1989. Therefore, the subsequent wage revision has no relevance. If that is taken into account, then the real wages of the petitioner before the revision for the post of Salesman was only 430-10-450-15-525. Therefore, at the maximum, the first respondent would have got Rs.525/- as basic wage and assuming other allowances are added, he himself has claimed the last drawn wage as Rs.1000/- in the Annexure to the claim petition filed by him. If that is taken as a basis for claim, then the rate prescribed under the T.N.Payment of Subsistence Allowance Act will have to be taken for calculating the subsistence allowance. Under the Tamil Nadu Payment of Subsistence Allowance Act, subsistence allowance will have to be paid to an employee at the rate of 50% for the first 90 days and 75% from 90 to 180 days. Only after 180 days, a workman is eligible for 100% of the wages. The Act itself states that if the delay is attributable to the workman, then he is not eligible for the enhancement.
13. In the present case, the allegation made by the first respondent that after suspending him, no further progress was made was not denied by the petitioner Management. Therefore, the possible defence available to the petitioner Management to keep the subsistence allowance at the minimum rate will not enure to their benefit. If the last drawn wages is taken as Rs.1000/- and the rate prescribed under the Act is applied, then the first respondent is eligible to get the following amount:
First 90 days i.e. 01.03.1989 to 31.05.1989
= Rs.500 x 3 = Rs.1500/-
90 to 180 days i.e., 01.06.1989 to 30.09.1989
= Rs.750 x 3 = Rs.2,250/-
After 180 days i.e., 01.10.1989 to 31.05.2004
= Rs.1000 x 176 = Rs.1,76,000/-
———————-
Total : Rs.1,79,750/-
————
14. In the absence of the petitioner Management contending these facts, the Labour Court merely on the basis of calculation found in Annexure to the claim petition computed the amounts. Under Section 33-C(2) of the Act, there must be a pre-existing right for the workman before computing the amount due and payable to him. In the present, case, the claim is made under the provisions of Subsistence Allowance Act. The Labour Court has failed to apply the relevant law as well as the rates prescribed under the Act and had committed a grave mistake in computing a sum of Rs.4,95,200/-. But the actual amounts due and payable to the first respondent under the Act works out only to Rs.1,79,750/-.
15. In the light of the above, the order of the Labour Court is liable to be interfered with. While upholding the right of the first respondent to claim subsistence allowance, this Court is of the view that the amount will have to be calculated as per the rates prescribed under the T.N.Act 43/1981 and as per the law laid down by the Supreme Court. Accordingly, the order of the Labour Court to the extent of directing payment of Rs.4,95,200/- is set aside. It is hereby directed that the Management shall pay only Rs.1,79,750/- towards subsistence allowance to the first respondent.
16. The writ petition is partly allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petition is closed.
svki
To
The Presiding Officer,
Labour Court,
Salem