Disposed

C.H.Ismail v. the Joint Registrar (General)

Kerala HC5 Jul 2016WP(C)/12965/2016

Case brief

AI extract

What is this about?

Petitioner employee sought to quash suspension order and claim subsistence allowance under Section 3 of the Kerala Payment of Subsistence Allowances Act. Court directed respondent bank to pay arrears within three weeks, noting the statutory 90-day threshold for full salary entitlement.

What did the court decide?

Directive to the 2nd respondent to pay the petitioner the subsistence allowance remaining due with arrears within three weeks from the date of receiving a copy of this judgment.

C.H.Ismail Vs the Joint Registrar (General) — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 5TH DAY OF JULY 2016/14TH ASHADHA, 1938

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WP(C).No. 12965 of 2016 (U)

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PETITIONER(S):

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C.H. ISMAIL, AGED 53 YEARS, S/O.HASSAN RAWATHER, RESIDING AT POOSANATTU HOUSE, CHALAPPALLY P.O., CHERIYAKUNNAM MURI, PERUMPETTY VILLAGE, MALLAPALLY TALUK, PATHANAMTHITTA DISTRICT, PIN -689 107.

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BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA).

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RESPONDENT(S):

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1. THE JOINT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, PATHANAMTHITTA, PIN- 689 645.

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2. THE KOTTANADU SERVICE CO-OPERATIVE BANK LTD. NO.A 153, KOTTANADU P.O., THIRUVALLA, PATHANAMTHITTA, REPRESENTED BY ITS SECRETARY, PIN- 689 615.

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R1 BY SR. GOVT. PLEADER SRI.V. VIJULAL. R2 BY ADVS. SRI.ARUN.B.VARGHESE, SRI.JAYKAR.K.S.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 12965 of 2016 (U)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1:	THE COPY OF MEMO DATED 07.05.2015, ISSUED BY THEN PRESIDENT OF THE SECOND RESPONDENT.
EXHIBIT P1(A):	ENGLISH TRANSLATION OF EXT.P1.
EXHIBIT P2:	THE COPY OF DISCHARGE CARD ISSUED FROM THE MEDICAL COLLEGE HOSPITAL DATED 02.01.2016.
EXHIBIT P3:	THE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 05.12.2015.

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EXHIBIT P3(A): ENGLISH TRANSLATION OF EXT.P3.

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RESPONDENT'S EXHIBITS:-

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EXT.R2A COPY OF THE RELEVANT PORTION FO THE MINUTES OF THE DIRECTOR BOARD MEETING HELD ON 08/06/1989 OF THE 2ND RESPONDENT BANK.

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EXT.R2B COPY OF THE RELEVANT PORTION OF THE MINURES OF THE DIRECTOR BOARD MEETING HELD ON 17/03/2014.

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EXT.R2C COPY OF THE STATEMENT DATED 11/04/2014 SUBMITTED BY THE WRIT PETITIONER.

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EXT.R2D COPY OF THE MEMO OF CHARGES ISSUED BY THE BANK TO THE WRIT PETITIONER.

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EXT.R2E COPY OF THE LETTER DATED 31/05/2016 ISSUED TO THE ENQUIRY OFFICER BY THE BANK.

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EXT.R2F COPY OF THE LETTER DATED 31/05/2016 ISSUED TO THE WRIT PETITIONER BY THE BANK.

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EXT.R2G COPY OF THE COMPLAINT DATED 28/05/2016 SUBMITTED BEFORE THE PRESIDENT OF THE 2ND RESPONDENT BANK.

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EXT.R2H COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE BOARD OF DIRECTORS OF THE 2ND RESPONDENT.

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EXT.R2I COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING OF THE BOARD OF DIRECTORS HELD ON 27/04/2016.

//TRUE COPY//

P.S. TO JUDGE

rs.

SHAJI P. CHALY, J.

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W.P.(C). No. 12965 of 2016

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----------------------------------------------Dated this the 5^th day of July, 2016

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JUDGMENT

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This writ petition is filed by the petitioner seeking to quash Ext.P1 suspension order and for a direction to the 2^nd respondent to pay the subsistence allowance as per Section 3 of the Kerala Payment of Subsistence Allowances Act, 1972, hereinafter called “the Act”, expeditiously as possible and for other related reliefs.

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Material facts for the disposal of the writ petition are thus; petitioner, an employee of the 2^nd respondent was suspended from service on 7.5.2014 as per Ext.P1 order issued by the President of the 2^nd respondent bank on the basis of a decision of the Board of Directors. According to the petitioner, the order of suspension made by the President itself is bad. That apart it is contended that, even though the petitioner is under suspension from 7.5.2014 and a period of 90 days have elapsed, the subsistence allowance due as per Section 3 of the Act is not paid by the 2^nd respondent. It is in

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W.P.(C). No. 12965 of 2016

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this background this writ petition is filed by the petitioner.

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Second respondent has filed a counter affidavit

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basically admitting that the suspension is continuing from the aforesaid date. But the petitioner is paid subsistence allowance at the rate of 50%. It is also clear from Section 3 of the Act, after expiry of 90 days period, if a person continues under suspension, then the said person is entitled to get the subsistence allowance on the basis of the full salary. Admittedly that is not paid to the petitioner. That apart it is also contended in the counter affidavit that, the Director Board has taken a decision as per R2(h) whereby it was decided to provide 50% of the salary to the petitioner and to credit the balance 50% of the salary in favour of the bank against his liability towards the bank. Learned counsel for the 2^nd respondent contended that the said resolution is not under challenge. Admittedly Ext.R2(h) is issued on 10.11.2014 i.e., before filing of the writ petition but however, the same is not under challenge in this writ petition. Learned counsel has pointed out that since the said resolution is not under challenge in this writ petition, petitioner is not entitled to get

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W.P.(C). No. 12965 of 2016

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any relief based on the said decision.

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On an evaluation of the facts and circumstances and

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the submissions made across the Bar and perusal of the documents and pleadings, I am of the considered opinion that 2^nd respondent can be directed to pay the subsistence allowance remaining due to the petitioner within a time frame.

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Therefore, there will be direction accordingly to the 2^nd respondent to pay the subsistence allowance remaining with arrears within a period of three weeks from the date of receipt of a copy of this judgment. However, the liberty of the petitioner to challenge Ext.R2(h) is left open. I make it clear that I have not made any observation with respect to the pendency of the disciplinary proceedings or any consequential action made by the 2^nd respondent in the subject issue.

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Writ petition is disposed of accordingly.

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Sd/-

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SHAJI P. CHALY JUDGE

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smv 05.07.2016

C.H.Ismail v. the Joint Registrar (General)

Case brief

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C.H.Ismail v. the Joint Registrar (General)

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