Allowed

Chokkad Service Co-Operative Bank Ltd. v. the Deputy Labour Commissioner

Kerala HC25 Mar 2019WP(C)/7348/2019

Case brief

AI extract

What is this about?

An employee of the petitioner bank challenged the payment of subsistence allowance without a certificate from a Gazetted Officer. The High Court upheld the order relying on the Deputy Labour Officer's report finding no gainful employment.

What did the court decide?

Directed the petitioner to pay eligible gratuity and subsistence allowance to the 3rd respondent within one month of receiving the judgment copy.

Chokkad Service Co-Operative Bank Ltd. Vs the… — Pension and Retirement Benefits | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941

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WP(C).No. 7348 of 2019

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PETITIONER/S:

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CHOKKAD SERVICE CO-OPERATIVE BANK LTD. NO.M.602, CHOKKAD P.O, MALAPPURAM DISTRICT-679395, REPRESENTED BY ITS SECRETARY, MR. SAJEEVAN NAIR V.P, AGED 53 YEARS, S/O. PRABHAKARAN NAIR.

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BY ADVS. SRI.M.SASINDRAN SRI.JOMY K. JOSE

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RESPONDENT/S:

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1 THE DEPUTY LABOUR COMMISSIONER

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THOZHIL BHAVAN, CIVIL STATION ROAD, PALAKKAD DISTRICT.678001.

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2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) CIVIL STATION ROAD, UP HILL, MALAPPURAM, KERALA-676505

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3 JISHAL A, S/O. ABDUL KHADAR, IRNAGUVILA VEEDU, CHOPPAD P.O, MALAPPURAM DISTRICT-679395.

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BY ADVS.

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SRI.P.RAMAKRISHNAN SMT.ASHA K.SHENOY SMT.PREETHI RAMAKRISHNAN (P-212) SRI.C.ANIL KUMAR SRI.PRATAP ABRAHAM VARGHESE SRI.T.C.KRISHNA

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OTHER PRESENT:

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SMT.AMMINIKUTTY-SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7348 of 2019

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J U D G M E N T

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The petitioner, which is a Co-operative Society registered under the provisions of the Kerala Co-operative Societies Act ('KCS Act' for short), has filed this writ petition being aggrieved by Ext.P4 order of the Deputy Labour Commissioner, Palakkad, acting as the competent Authority under the payment of Subsistence Allowance Act, 1972. As per this order, respondent No.3, who is the employee of the petitioner under suspension, has been directed to be paid certain amounts as eligible subsistence allowance and the petitioner asserts that without the 3^rd respondent having produced a certificate from a Gazetted Officer or a Notary Public, certifying that he is not gainfully employed, it was not proper on the part of the competent Authority to have issued Ext.P4 order. They, therefore, pray that Ext.P4 be vacated.

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Smt.Preethi Ramakrishnan, the learned counsel appearing for respondent No.3, submits that the contentions of the petitioner – Bank has already been answered against them in a Bench Judgment of this Court in Philo V.K & others v. Thuruthippuram Service Co.op Bank Ltd & Another, (W.A.No.2450 of 2008), wherein the declaration of law is to the following effect:-

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WP(C).No. 7348 of 2019

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“We are of the view that the said rule mentions only about the rate of subsistence allowance payable to employees who are not covered by the provisions of Payment of Subsistence Allowance Act. It is elementary that a person gainfully employed elsewhere or engaged in some other business and has a decent income is not eligible to get subsistence allowance. In this case the appellants would point out that the original petitioner did not have any income from his working as LIC agent. The first respondent/bank would submit that he was a crorepathy for the relevant year and, therefore, he has earned a substantial income during his suspension period. We think whether the suspended employee had reasonable income to sustain himself and his family and therefore, is ineligible to get subsistence allowance is a matter which should be considered by the Joint Registrar. The petitioner has already preferred Ext.P7 representation before the Joint Registrar. We direct the second respondent Joint Registrar to consider the claim of the appellants for payment of subsistence allowance due for the period from 13.5.2003 to 29.4.2004, after affording an opportunity of being heard to them and the first respondent society. The parties may file additional statements, pleadings or materials before the second respondent in support of their respective claims. The said respondent shall take a decision in the matter as directed above within six weeks from the date of production of a copy of this judgment. The writ appeal is disposed of as above.”

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She, therefore, submits that Ext.P4 order of the competent Authority under the payment of Subsistence Allowance Act is irreproachable and without error.

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Sri.M.M.Sasindran, the learned standing counsel appearing for the petitioner – Society, in answer submits, that

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WP(C).No. 7348 of 2019

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since there is nothing on record to show that the 3^rd respondent is not gainfully employed, it was not proper for the Authority to have issued Ext.P4 merely relying on the report of the Deputy Labour Officer, Malappuram, since as per the provisions of the KCS Act read with the provisions of the Kerala State Rules, a certificate from a Gazetted Officer or a Notary Public ought to have been produced by the 3^rd respondent.

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Even though I hear Sri.M.Sasindran as afore, the fact remains that, as is clear from Ext.P4, the Deputy Labour Officer, Malappuram, who is certainly a Gazetted Officer, has already conducted an enquiry into the 3^rd respondent's present status and has made a report that he is not gainfully employed. In fact, the copy of the said report has been produced along with a memo filed by the learned Senior Government Pleader, dated 21^st of March, 2019, as per the interim orders of this Court, which clearly would show that the enquiry by the Deputy Labour Officer has concluded without doubt that the 3^rd respondent is not engaged in any avocation earning remuneration.

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In the afore circumstances, I pointedly asked Sri.M.Sasindran, why the report of the Deputy Labour Officer, which is perhaps the best Authority who can speak on these issues, cannot be accepted by the petitioner – Bank, to which he

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WP(C).No. 7348 of 2019

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conceded that they would obtain no tenable reason to do so and he submitted that taking note of the report of Deputy Labour Officer, the 3^rd respondent will be paid his eligible subsistence allowance in terms of Ext.P4 within a short period. He prayed that the larger question as to whether a certificate from a Gazetted Officer or a Notary Public, as required under the provisions of the Kerala State Rules, be left open without being considered by this Court.

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In the afore circumstances, and taking specific note of submissions of Sri.M.Sasindran, I order this writ petition and direct the petitioner to pay the eligible gratuity, subsistence allowance as ordered under Ext.P4 order, to the 3^rd respondent, as expeditiously as is possible but not later than one month from the date of receipt of a copy of this judgment.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C).No. 7348 of 2019

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APPENDIX

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PETITION	ER'S/S EXHIBITS:
EXHIBIT	P1	A TRUE COPY OF THE CHARGE MEMO ISSUED TO THE 3RD RESPONDENT.
EXHIBIT	P2	A TRUE COPY OF THE LETTER ISSUED TO THE 3RD RESPONDENT.
EXHIBIT	P2 A	A TRUE COPY OF THE LETTER DATED 7.8.2018.
EXHIBIT	P3	A TRUE COPY OF THE SUMMONS ISSUED TO THE PETITIONER.
EXHIBIT	P4	A TRUE COPY OF THE ORDER DATED 17.1.2019 IN S.A.C.NO.1/2018 ISSUED BY THE 1ST RESPONDENT.

Chokkad Service Co-Operative Bank Ltd. v. the Deputy Labour Commissioner

Case brief

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Chokkad Service Co-Operative Bank Ltd. v. the Deputy Labour Commissioner

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