SPECIAL OFFICER MORANGAM AGRICULTURAL SERVICE CO OPERATIVE SOCIETIES LTD Vs. APPELLATE AUTHORITY UNDER THE TAMIL NADU PAYMENT OF SUBSISTENCE ALLOWANCE ACT DEPUTY COMMISSIONER OF LABOUR SALEM

JUDGEMENT

(1.) THE third respondent was working as Secretary in the petitioner Co Society. He was placed under suspension pending enquiry on 10.3.1987. An enquiry into charges was held and on a report received that the charges are proved, a second show cause notice was issued to the third respondent proposing punishment by dismissal from service. It was at that stage the third respondent filed O.S.No.42 of 1988, D.M.C Tiruch engode, against the validity of disciplinary proceedings and obtained an order of interim injunction on 18.1.1988 itself. THE petitioner filed an application for vacating the interim injunction, but the suit itself was ordered to be posted for disposal to an early date. It is in dispute that the suit was ultimately dismissed on 28.2.1990.

(2.) AFTER having instituted the suit and obtained an injunction, the third respondent 30.11.1988 filed an application before the Authority under the Payment of Subsistence Allowance Act, claiming subsistence allowance in a sum of Rs.477.40 for the period 15.12.1987 to 31.12.1987 at 100% and in a sum of Rs.10,175 for the period from to 30.11.1988, representing eleven months salary at 100%. That application was contested by the petitioner inter alia on the ground that the third respondent was holding a managerial position and, therefore, not entitled to the relief under the Act and also on the ground having obtained an order of injunction in a civil court on 18.1.1988 and prevented management from passing any final orders in the disciplinary proceedings, the respondent cannot have the advantage of claiming subsistence allowance. It is the petitioner that had not that injunction been granted by the civil court on 18.1.1988, obtaining explanation from the third respondent on the second show cause notice, management would have been in a position to pass final orders and that was effectively prevented by the third respondent by obtaining an injunction. He also pleaded subsequent to the dismissal of the suit by orders dated 20.3.1990 the third respondent dismissed from service, which would show that the same effect would have taken place not an order of injunction been obtained. The Authority under the Payment of Subsistence Allowance Act (the second respondent) quoted Sec.3 of the Act, which is extracted below:

(3.) EVEN though the Third Proviso to Sec.3 of the Act states that even in cases where enquiry is prolonged beyond ninety days due to reasons directly attributable employee, he would be entitled to 50% of the wages as subsistence allowance, yet the proviso has to be understood in the context in which it appears in that section, when section contemplates the conduct of disciplinary enquiry placing an employee suspension pending completion of enquiry. There may be cases where the domestic is not expeditiously completed due to the fault of the management and in that case employee would be entitled to higher rate of subsistence allowance. But if due to the the employee the enquiry is not completed expeditiously, then he is entitled to 50% wages for the period beyond ninety days. This provision would apply only in a case the domestic enquiry is completed or not completed expeditiously warranting payment subsistence allowance at the rates mentioned. They would not apply to a circumstance situation where the employee resorts to a civil suit and the civil suit is kept pending inordinate time (normally it happens) and obtained the benefit of payment of subsistence allowance during the pendency of the disciplinary proceedings.