IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1307 of 2006()
1. THE VAYITRI PLANTATIONS LTD.,
... Petitioner
Vs
1. MR.M.P.RAMANKUTTY, ESTATE WORKER,
... Respondent
2. THE COURT OF AUTHORITY UNDER SEC. 4 OF
For Petitioner :SMT.T.D.RAJALAKSHMI
For Respondent :SRI.P.K.RAMKUMAR
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :06/11/2008
O R D E R
H.L. DATTU, C.J. & A.K. BASHEER, J.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
W.A.No. 1307 of 2006
&
O.P.No. 13853 of 2002
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Dated this the 6th day of November, 2008
Judgment
H.L. Dattu, C. J:
Appellant before us is the petitioner in O.P.No.1876 of 1999.
2. The appellant is the employer. Respondent before us in the writ appeal
is the workman.
3. In O.P.No. 13853 of 2002, petitioner is the employer. Contesting
respondent is the workman.
4. In O.P.No.1876 of 1999, the employer had called in question Exts.P5
and P6 orders passed by the Deputy Labour Commissioner, Kannur, who is the
competent authority under the provisions of the Kerala Payment of Subsistence
Allowance Act, 1972 (the Act, for short).
5. The contesting respondent was an estate worker. He was kept under
suspension in contemplation of the departmental enquiry on 25/4/1987.
6. The employer had appointed an Enquiry Officer to enquire into certain
allegations made against the workman. It is the stand of the workman that no
orders were passed by the disciplinary authority on the report of the Enquiry
Officer. However it is contended by the appellant’s learned counsel that after
accepting the report of the Enquiry Officer an order of dismissal was passed and
the same is served on the workman.
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& OP.3853/2002 2
7. The employer had also lodged a criminal complaint against the
respondent workman, inter alia, alleging an offence of theft of the articles
belonging to the employer. At the time of hearing of this writ appeal and the
Original Petition, we were informed by the learned counsel appearing for the
parties that the jurisdictional Magistrate Court has given a clean chit to respondent
No.1/workman.
8. In the claim statement filed before the Deputy Labour Commissioner,
the respondent-workman has stated that he had entrusted the matter to one Union
for making an application for payment of subsistence allowance, as provided
under the Act and since that Union had not taken effective steps, he had to change
his membership and it is only the other Union that had taken effective steps to
present an application for payment of the subsistence allowance under the Act.
Along with the claim statement, the Union also had filed an application for
condonation of delay in filing the application for payment of subsistence
allowance.
9. After registering the claim statement, the Deputy Labour Commissioner
had issued notice to the employee. The stand taken by the workman before the
Deputy Labour commissioner was that the application filed by the petitioner is
barred by limitation and the second contention was that after accepting the report
of the Enquiry Officer, the disciplinary authority had passed an order
dismissing the workman from service of the employer. Strangely, before the
Deputy Labour Commissioner, the employer had not produced a copy of the
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order of the dismissal said to have been passed by them.
10. The Deputy Labour Commissioner, after condoning the delay in filing
the application for payment of subsistence allowance, has directed the employer to
pay subsistence allowance from 25/4/1987 to 28/2/1991 in a sum of Rs.21777.55
and for the period from 1/3/1991 to 31/7/1993 in a sum of Rs.14355/- in
O.P.No.13853/2002. By yet another order the Deputy Labour Commissioner has
directed the employer to pay the subsistence allowance for the period from
1/8/1993 to 30/9/1998 in a sum of Rs.77152/- and the order so passed is the
subject matter in O.P.No.13853 of 2002.
11. Aggrieved by the orders so passed by the Deputy Labour
Commissioner, the employer was before this Court in O.P.NO.1876/1999. The
learned single Judge has rejected the writ petition and while doing so he was of the
opinion that the Deputy Labour Commissioner has not committed any error
whatsoever while passing the impugned orders. Aggrieved by the orders passed
by the learned single Judge in O.P.No.1876/1999, the employer is before us in
W.A.No.1307/2006.
12. Since the appeal was pending before this Court, the learned single
Judge has also referred O.P.No.13853/2002 for our consideration and decision.
13. We have heard learned counsel for the appellant as well as the learned
counsel for the respondents.
14. The appellant’s learned counsel would submit that the Deputy Labour
Commissioner was not justified in condoning the delay in filing the application
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for payment of subsistence allowance. Secondly, it is contended that the employer
had passed an order of dismissal of the respondent/workman from service and
therefore the workman is not entitled to payment of subsistence allowance as
envisaged under the Act.
15. In order to answer the issues canvassed by the learned counsel for the
appellant, it is appropriate for us to refer to the objects of the Act and the other
relevant provisions.
16. The object of the Act is to provide the payment of subsistence
allowances to the employees in certain establishments during the period of
suspension. This is a social measure adopted by the State Government, the
reason being that during the suspension period the employee should not suffer for
want of food etc.
17. Section 4 of the Act provides for recovery of money due from an
employer. The said provision is as under:
“4. Recovery of money due from an
employer:–Where any money is due to an
employee from an employer under this Act, the
employee of any other person authorised by
him in this behalf, or in the case of the death of
the employee, his legal representative may,
without prejudice to any other mode of
recovery, make an application to the
Government in such manner as may be
prescribed for the recovery of money due to
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& OP.3853/2002 5
him, and if the government, after giving the
employer an opportunity of being heard in such
manner as may be prescribed, is satisfied, that
any money is so due, it shall issue a certificate
for that amount to the collector who shall
proceed to recover the same in the same
manner as an arrear of land revenue:
Provided that every such application
shall be made within one year from the date on
which the money became due to the employee
from the employer:
Provided further that any such
application may be entertained after the expiry
of the said period of one year, if the
Governments is satisfied that the applicant had
sufficient cause for not making the application
within the said period.”
18. Section 4 of the Act authorises a workman or any other person
authorised by him, or in the case of death of an employee his legal
representatives for making an application before the State Government as
provided under the Act for recovery of the amounts due from the employer. The
section also states that if such an application is filed by the workman or his
authorised representative or the legal representatives of the deceased workman,
the State Governments shall afford an opportunity of hearing to all the parties
and proceed to pass an appropriate order and then issue a certificate for that
WA.1307/08
& OP.3853/2002 6
amount to the Collector who will proceed to recover the amounts due as arrears of
the land revenue.
19. The first proviso appended to the Section stipulates that every
application shall be made by the workman or his authorised representative or the
legal representative of the deceased employee within one year from the date on
which the money became due to the employee from the employer.
20. The second proviso gives the discretion to the State
Government/Deputy Labour Commissioner to entertain the application, if it/he is
satisfied that the applicant had sufficient cause for not preferring the application
within the period stipulated under the first proviso to Section 4 of the Act.
21. The first contention of the learned counsel for the appellant is that there
was inordinate delay in filing the application for payment of subsistence
allowance as envisaged under the Act and therefore the Deputy Labour
Commissioner was not justified in allowing the application.
22. As stated already, the Kerala Payment of Subsistence Allowance Act
is a social welfare measure given to an employee/workman for payment of
subsistence allowance during the period of suspension in contemplation of the
departmental enquiry proceedings . Therefore the period of limitation prescribed
under the Act requires to be liberally construed. Therefore the Legislature itself
has incorporated proviso to Section 4 of the Act, giving discretion to the State
Government/Deputy Labour Commissioner to condone the delay, if any, in
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making the application, if it/he is satisfied that the applicant had sufficient cause
in not preferring the application within the time prescribed under the first proviso
to Section 4 of the Act.
23. In the instant case, the applicant has stated before the Deputy Labour
Commissioner that he was a member of one Union and he had requested that
Union to make an appropriate application before the Deputy Labour Commissioner
for payment of subsistence allowance and in spite of his repeated requests, the said
Union had not taken any steps to make any application before the Deputy Labour
Commissioner and therefore he had changed his membership from that Union to
another Union and that Union had filed an application for payment of subsistence
allowance as envisaged under the Act. Therefore it is stated that there was some
delay in filing the application and the same requires to be condoned.
24. Keeping in view the explanation offered by the applicant, the Deputy
Labour Commissioner has condoned the delay and while doing so has assigned
not only cogent but also appropriate reasons. Since the findings of the Deputy
Labour Commissioner in that regard are not perverse, interference with those
finding is not called for in a petition under Articles 226 and 227 of the
Constitution. Keeping that aspect of the matter in view, the learned single judge
has rejected the first contention canvassed by the learned counsel for the
petitioner/appellant.
25. It was the stand of the learned counsel for the appellant that the
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respondent/workman was dismissed from service on 8/3/1988 and therefore not
entitled for payment of subsistence allowance. Though the said contention was
taken before the Deputy Labour Commissioner, the employer had not produced
any orders passed by them. It is only before this Court that they had produced
Ext.P2 order which is an order of dismissal of the respondent/workman. It is the
stand of the learned counsel for the respondent that the said order was not
communicated to him at any point of time. Learned single Judge is satisfied that
though an order might have been passed by the employer, the said order was never
communicated to the respondent workman and therefore the workman is entitled
for payment of subsistence allowance.
26. In our opinion, whenever an employer initiates departmental enquiry
proceedings, the employer is expected to pay subsistence allowance to the
workman. This view of ours is supported by the decision of the Apex Court in the
case of Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. & Anr .(`1999 (3) SCC
679. In the said decision the Apex Court had held as under:
“31. On joining government
service, a person does not mortgage or
barter away his basic rights as a
human being, including his fundamental
rights, in favour of the Government.
The Government, only because it has
the power to appoint does not become
the master of the body and soul of the
employee. The Government by providing
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job opportunities to its citizens only
fulfils its obligations under the
Constitution, including the Directive
Principles of State Policy. The
employee, on taking up an employment
only agrees to subject himself to the
regulatory measures concerning his
service. His association with the
Government or any other employer, like
instrumentalities of the Government or
statutory or autonomous corporation etc.
is regulated by the terms of contract
of service or service rules made by the
Central or the State Governments under
the proviso to Article 309 of the
Constitution or other statutory rules
including certified standing orders. The
fundamental rights, including the right
to life under Article 21 of the
Constitution or the basic human rights
are not surrendered by the employee.
The provision for payment of
subsistence allowance made in the
service rules only ensures non-violation
of the right to life of the employee.
That was the reason why this Court in
State of Maharashtra v. Chandrabhan
Tale ((1983) 3 SCC 387) struck down a
service rule which provided for payment
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& OP.3853/2002 10
of a nominal amount of rupee one as
subsistence allowance to an employee
placed under suspension. This decision
was followed in Fakirbhai Fulabhai
Solanki v. Presiding Officer and it was
held in that case that if an employee could
not attend the departmental proceedings
on account of financial stringencies
caused by non-payment of subsistence
allowance, and thereby could not
undertake a journey away from his home
to attend the departmental proceedings,
the order of punishment, including the
whole proceedings would stand vitiated.
For this purpose, reliance was also
placed on an earlier decision in
Ghanshyam Das Shrivastave v. State of
M.P.(1973) 1 SCC 656″
27. Keeping all these aspects of the matter in view, in our opinion, the
learned single Judge has rightly rejected the Original Petition filed by the employer
thereby confirming the orders passed by the Deputy Labour Commissioner.
28. Having gone through the orders passed by the Deputy Labour
Commissioner and also the orders passed by the learned single Judge, we are of
the firm opinion that the learned single Judge has not committed any error
WA.1307/08
& OP.3853/2002 11
whatsoever. Therefore interference with the said order is not called for.
Accordingly, writ appeal requires to be rejected and it is rejected.
29. In view of the rejection of WA.No.1307/2006, we have no other
alternative but to reject O.P.No.13853/2002 filed by the management questioning
the orders passed by the Deputy Labour Commissioner for the period from
1/8/1993 to 30/9/1998.
Ordered accordingly.
H.L. DATTU
Chief Justice
A.K. BASHEER
an. Judge