ORDER
F.M. Ibrahim Kalifulla, J.
1. The petitioners, who are daily rated employees in the third respondent-mill, were placed under suspension pending disciplinary action with effect from 30.10.94. As per the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (hereinafter referred to as “the Act”), during the period of suspension, they were entitled to receive from the employer as subsistence allowance, the payment equal to 50% of wages, which the employee was drawing immediately before suspension for the first ninety days reckoned from the date of such suspension and @ 75% after the said ninety days i.e. for the next 180 days and after the expiry of next 180 days, it should be @ full wages.
2. The third proviso to section 3(1) of the Act however reiterates that if enquiry or criminal proceedings are prolonged beyond the period of ninety days for reasons directly attributable to the employee, the subsistence allowance for the period exceeding ninety days shall be reduced to 50%, which the employee was drawing immediately before his suspension. I am not concerned with the said proviso.
3. In the case on hand, the grievance of the petitioners was that the third respondent failed to pay the required subsistence allowance by taking the stand that the petitioners being daily rated employees, were not entitled for the payment of subsistence allowance for the weekly holidays and festival holidays and also during the period of strike.
4. The petitioners moved the second respondent herein by way of separate applications in Application P.S.A. Nos.7 of 1995 etc. claiming the difference in the payment of subsistence allowance. The second respondent took the view that the petitioners are entitled to claim subsistence allowance for all the ninety days irrespective of the question whether after the date of suspension, any festival holidays or weekly holidays had come in between or any strike has taken place. On that footing, the second respondent computed the amount payable to each of the petitioners in his order dt.24.7.95.
5. Aggrieved against the said order of the second respondent, the third respondent preferred appeals in P.S. Appeal Nos.7 of 1995 etc. before the first respondent. The first respondent took a different view and held that the petitioners would be entitled for subsistence allowance only for 26 days in a month and by calculating the subsistence allowance payable after the order of suspension, in respect of each of the petitioners, the first respondent worked out subsistence allowance @ 50% for the first ninety days and @ 75% for the subsequent dates till the filing of the applications by the petitioners before the second respondent.
6. Therefore, the question to be decided is as to whether the subsistence allowance payable to the petitioners are to be worked out on the total number of ninety days for each spell? For deciding the said question, I feel it necessary to refer to the provisions of the Act. Section 2(a) of the Act defines an employee to mean as under:-
(a) “employee” means any person employed in, or in connection with the work or activities of, any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical, clerical or any other kind of work or activities for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person–”
7. Section 2(g) of the Act defines the term “suspension” to mean as follows:-
” “suspension” means an interim decision of an employer as a result of which an employee is debarred temporarily from attending to his office and performing his functions in the establishment on the ground that–
(1) an enquiry into grave charges against him is contemplated or is pending or no final order after the completion of the enquiry has been passed; or
(2) a complaint against him of any criminal offence is under investigation or trial or the complaint has not been finally disposed of;
8. The definition of 2(h) adopts the same meaning of ‘wages’ in Clause 2(rr) of the Industrial Disputes Act, 1947 which is in the following terms:-
“wages” means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employement, and includes—”
9. Section 3(1) of the Act reads as under:-
” 3. Payment of subsistence allowance:– (1) An employee who is placed under suspension shall, during the period of such suspension, be entitled to receive payment from the employer as subsistence allowance an amount equal to fifty per centum of the wages which the employee was drawing immediately before suspension, for the first ninety days reckoned from the date of such suspension:”
10. A conspectus reading of the aforesaid provisions makes it clear that the employee, who is placed under suspension, is entitled to receive the payment from the employer as subsistence allowance, the amount equal to 50% of the wages, that the employee was drawing immediately before such suspension for the first ninety days from the date of such suspension. Likewise, if it crosses beyond ninety days it is @ 75% as in this case. It is not the stand of the third respondent that the departmental enquiry was prolonged at the instance of the petitioner and therefore the subsistence allowance should not have to be worked out @ 75% after the first ninety days and for the next 180 days.
11. The definition of suspension under section 2(g) of the Act should necessarily be read along with section 2(a) of the Act. The petitioners herein are admittedly daily rated employees and the fact that the third respondent’s mill was working all the days in the month is not in dispute. Therefore, it will have to be necessarily presumed that all the petitioners, by virtue of the order of suspension were temporarily debarred from attending to their work and performing their functions in the third respondent-mill on all the ninety days immediately after the date of such suspension and also on the subsequent dates. I say so because it is common ground that as daily rated employees, they are provided with employment in the third respondent-mill depending upon the availability of work in the mills.
12. Therefore, when once the petitioners were issued with the order of suspension and thereby they were temporarily debarred from attending to such daily engagements, it will have to be proceeded in the footing that such daily engagement was so debarred in respect of the petitioners initially on all the ninety days after the date of suspension as well as on the subsequent days. When that would be the concomitance in the case of the petitioners, by virtue of the status as daily rated employees as well as by applying the definition of suspension as defined under section 2(g) of the Act, as a necessary corollary, they would be entitled for the payment of subsistence allowance for all the ninety days as well as for the subsequent period of 180 days @ at which it is to be paid as per section 3(1) of the Act.
13. If, when that would be the legal consequence on the interpretation of section 3(1) read along with section 2(g) of the Act, the conclusion of the first respondent in computing the subsistence allowance in respect of the petitioners by working out their wages by multiplying the daily wages by 26 days in a month and arriving @ 50% for the first ninety days and 75% for the subsequent days would be contrary to the provisions of the Act.
14. Unfortunately, the first respondent proceeded on the footing and presumed as though the petitioners would be deprived of their daily engagement for the weekly half in a month and therefore their wages will have to be calculated only for 26 days in a month. The first respondent failed to realise that section 3(1) of the Act is the provision under which payment of subsistence allowance has to be made which provides that subsistence allowance should be paid @ 50% for the first ninety days and @ 75% for the next 180 days and @ 100% for the subsequent periods i.e. after 180 days.
15. In such a situation, admittedly, the petitioners provided with employment depending upon the availability of the work in the third respondent-mill and when it is not in dispute that the third respondent’s mill worked for all the thirty days or 31 days in a month, it will have to be necessarily inferred by applying the definition of suspension as defined under section 2(g) of the Act that the scope of employing the petitioners as daily rated employees on all the days in the month irrespective of weekly holidays existed.
16. Therefore, the conclusion of the first respondent in working out the payment of subsistence allowance on the formula applied by it was contrary to the provisions of the Act and is therefore liable to be set aside and accordingly set aside. While setting aside the said order of the first respondent dt.24.7.95, the order of the second respondent shall stand restored and the amount computed and payable as per the order of the second respondent should be paid by the third respondent to the petitioners. It is stated that the third respondent deposited the difference amount that was directed to be paid by the second respondent in its order dt.24.7.95 with the second respondent himself. In the circumstances, the second respondent is directed to release the said payment to the respective petitioners on production of copy of this order. The writ petition is allowed. No costs.
