K PONSINGH Vs. CENTRAL REGISTRAR OF COOPERATIVE SOCIETIES

JUDGEMENT

(1.) The Assistant Secretary, the appellant herein, who was working as in-charge of Indian Medical Practitioners Cooperative Pharmacy and Stores Limited (for short IMPCOPS), was placed under suspension. A domestic enquiry was initiated. According to the appellant, the subsistence allowance was not paid to him. Therefore, he filed three writ petitions viz., (1) W.P. No. 21659 of 2008 for payment of subsistence allowance (W.A. 190/2010), (2) W.P. No. 6521 of 2009 for quashing the order passed by the second respondent to hold domestic enquiry (W.A. 189/2010) and (3) W.P. No. 26794 of 2008 for a direction to quash the suspension order (WA.191/2010).

(2.) Learned single Judge dismissed all the writ petitions. While doing so, a direction was given for payment of subsistence allowance to the petitioner in terms of the bye-laws of the respondent-society. Now, these three writ appeals have been filed.

(3.) The appellant was picked up by the police for an enquiry at around 6.00 a.m. on 29-11-2007 from his office quarters, pursuant to a complaint given by his wife and he was remanded to judicial custody for the offences punishable under Sections 498A, 406, 506(ii) IPC and under Sections 4 and 6 of the Dowry Prohibition Act in Crime No. 13 of 2007 on the same day. The said incident had brought down the morale and the image of the Institution. According to Clause 3(xii) Sub Clause (3) of the Standing Orders of the Institution, an employee who has been committed to prison on a criminal charge should be considered as under suspension from the date of his arrest and would be entitled to subsistence allowance until the termination of the proceedings against him. The subsistence allowance was directed to be paid during the period of suspension with effect from 29.11.2007. On 30.07.2008 by proceedings F.No.E/2008-09, the Secretary of the respondent-Society informed that 100% of the subsistence allowance was paid to the appellant, as per Section 3(1) of the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Thereafter, the petitioner was informed that subsistence allowance as per the aforesaid Act is not admissible to him. Therefore, the excess amount paid was to be recovered from him. Against this, he filed W.P. No. 21659 of 2009. By Proceedings F. No. E/2008-09 dated 29.09.2009 show cause notice issued and reply of the appellant were referred and the appellant was informed that since the charges levelled against him are serious in nature, he will be placed under suspension and he will not leave the Headquarters of the Society. At this juncture, he filed W.P. No. 26974 of 2008. Interim stay was granted on 04.09.2008 in W.P. No. 21659 of 2008 with regard to the recovery of subsistence allowance, giving liberty to the appellant to move the appropriate authority under Section 84 of the Multi State Cooperative Societies Act, 2002. On 20.03.2009, by proceedings in F.No.E/2008-09, the appellant was informed about the appointment of Enquiry officer. So, he filed W.P. No. 6521 of 2000. On 27.03.2009, by proceedings in E/2008-2009, the appellant was informed about the nomination of Presentation Officer on behalf of the Management. On 07.04.2009, the appellant requested the respondent to pay him the subsistence allowance. In W.P. No. 6521 of 2009, an interim order was passed restraining the respondents from proceeding with the enquiry without payment of subsistence allowance, observing that "it is needless to point out that if the subsistence allowance is paid, enquiry can proceed". Thereafter all the writ petitions were taken up for final disposal on 17.11.2009. The learned Single Judge found that the petitioner is entitled to subsistence allowance only in terms of bye-laws which are applicable to him and not by invoking the provision of the Tamil Nadu Subsistence Allowance Act, since he is admittedly not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act. Learned Counsel for the respondent IMCOPS submitted that the Society is paying subsistence allowance to the petitioner in terms of the Bye-laws.