Subsistence Allowance during the suspension to Secretary of Co-operative Society – High Court Madras
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2020
CORAM :
THE HON’BLE MR.A.P.SAHI, CHIEF JUSTICE
AND
THE HON’BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.1352 of 2019
1. The Registrar
The Co-operative Society
N.V.Natarajan Maligai
Periyar EVK High Road
Kilpauk, Chennai – 600 010.
2. The Deputy Registrar
The Co-operative Society
The Officer of the Assistant Registrar
Sudhakaran Complex, Vellore Road
Tiruchengodu
Namakkal District – 637 211.
3. The President
S. 1067, Jamin Elampalli PACS
Jamin Elampalli Post
Solasiramani (via)
Paramathi Velur (TK)
Namakkal District – 637 210.
4. The Administrator
S. 1067, Jamin Elampalli PACS
Jamin Elampalli Post
Solasiramani (via)
Paramathi Velur (TK)
Namakkal District – 637 210. .. …………………………………..Appellants
-vs-
M.Elango …………………………………………………………………Respondent
PRAYER: Appeal under Clause 15 of the Letters Patent against the order of the learned Single Judge dated 25.10.2018 passed in W.P.No.1706 of 2018.
For Appellants : Mrs.Narmadha Sampath Additional Advocate General assisted by Mr.L.P.Shanmughasundaram Special Govt. Pleader
For Respondent : Mr.G.Murugendran
JUDGMENT
(Delivered by The Hon’ble Chief Justice)
The appellants, who are authorities of the State, have come up assailing the judgment of the learned Single Judge dated 25.10.2018 in this intra-court appeal contending that the respondent/writ petitioner, Secretary of a Primary Agricultural Co- operative Credit Society, on being suspended, is not entitled to subsistence allowance.
2. The learned Single Judge had allowed the writ petition following the judgment of a Division Bench of this Court in the case of Special Officer, D.K.81, Chennasandiram Primary Agricultural Co-operative Credit Society Ltd. v. P.Periyannan and another, 2015 Supreme (Madras) 766, which refers to the judgment in the case of K.Avanasiappan v. The Management of Thekkalur Primary Agricultural Co-operative Bank and others, CDJ 2011 MHC 6513 : 2011 Supreme (Madras) 4814.
:: :: :: ::
:: :: :: ::
[view pdf for another part]
Held
31. To “subsist” means to manage to stay alive, especially with limited resources or money. The state of living as such is known as subsistence, which is indicative of the fact that one has enough resources to sustain life with basic minimum needs. This means of existence or continuance with meagre resources of livelihood for a salaried employee is known as a subsistence allowance, which is an advance payment to cover immediate living expenses while being kept away from service. It is, therefore, an income that is sufficient to provide bare necessities and is an adequacy of support that exists as a reality while undergoing a compulsory distress. The idea is to preserve sustenance at the minimum economic level to sustain a minimum standard of living. It is practically an allowance for maintenance granted under special circumstances. An employee of whatever rank, if is surviving only on his salary, then whatever be the standard or status of employment, a minimum sustenance is required for all employees. A managerial or secretarial cadre employee also has to maintain himself and may be his family, if he has one. It is in reality a surviving need, when employment is put in suspended animation, that is necessary whether it be an ordinary employee or one who may be enjoying a managerial capacity. This also depends upon the emoluments that are received by an employee and, therefore, it is a matter of assessment, as in the present case, as to what salary was the Secretary being paid. Thus, an universal application of the rule of not paying any subsistence allowance to an employee of the secretarial or managerial cadre may not be a correct approach to the fundamental of the necessity of subsistence allowance. It cannot be accepted by applying a universal logic that a Secretary or a Manager ceases to have the need of basics to continue to live at the bare minimum on being suspended.
32. The underlying principle for making payment of subsistence allowance is to allow an individual to sustain himself. In the present context of the suspension of an employee, one has to keep in mind that services of an employee have not been snapped and the employer~employee relationship during suspension continues to subsist. There is a possibility of the employee being exonerated and he may in such circumstances be entitled to his entire emoluments of the said period. On the other hand, an employee can be found partially guilty and the employer may choose to deduct part of the emoluments by imposing a condition that the employee would not be entitled to any further emoluments, apart from what he has received during his period of suspension. It is, therefore, the discretion of the employer according to the Bye~Laws and Rules applicable, but, at the same time, it is the right of sustenance of an employee to receive subsistence allowance. As to what would be the ratio to which an employee may be entitled in the present context will have to be left to the discretion of the employer, as Bye~Law 31(2) indicates that the employer may pay subsistence allowance as he may deem fit. This discretion, however, should be exercised reasonably and may be subject to any such deductions in the event an employee is found to be ultimately guilty of heavy financial irregularities or misappropriations. On this ground, we therefore find favour with the respondent/writ petitioner that his representation for payment of subsistence allowance also deserves consideration in the background aforesaid. A total denial of subsistence allowance to a suspended employee, in our opinion, would be violative of Article 21 of the Constitution of India, unless it can be shown that payment of subsistence allowance is not warranted on the facts of a particular case, as illustrated above. We are conscious that a possible sense of injustice or inconvenience resulting in a temporary hardship by itself cannot be a ground to claim a right bereft of the statutory provisions, but where the very sustenance is a single salaried source, a total denial thereof may result in an abrupt punishment with hardly any justification thereby violating basic fundamental rights.
33. We, therefore, without approving the reasoning in paragraph (5) of the impugned judgment for grant of subsistence allowance, uphold the conclusion drawn by the learned Single Judge, but, at the same time, modify the impugned judgment dated 25.10.2018 in the light of the conclusions drawn herein above with liberty to the appellants to pass an appropriate order on this count relating to the claim of the subsistence allowance of the respondent/writ petitioner, in the event no such order has been finally passed while passing the final order of termination. The said exercise be completed within six weeks from the date of receipt of a copy of this order.
The appeal stands disposed of accordingly. No costs. Consequently, C.M.P.No.9258 of 2019 is closed.
(A.P.S., CJ.) (S.P., J.)
10.02.2020
COMMENTS