Lalini Subramonian v. M/S Cosmopolitan Hospitals Pvt. Ltd. and Deputy Labour Commissioner & Secretary, State Advisory Contract Labour Board, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938 WA.No. 2339 of 2016 () IN WP(C).23168/2016 -------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 23168/2016 of HIGH COURT OF KERALA DATED 26-10-2016 ## APPELLANT/2ND RESPONDENT : ----------------------------------------------- LALINI SUBRAMONIAN NO.7, PADMANAGAR, FORT PO, THIRUVANANTHAPURAM - 695023. BY ADVS.SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM RESPONDENTS/PETITIONER & 1ST RESPONDENT.: ------------------------------------------------------------------------ 1. M/S.COSMOPOLITAN HOSPITALS PVT.LTD. PATTOM PO, THIRUVANANTHAPURAM. REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 2. AUTHORITY UNDER THE KERALA PAYMENT OF SUBSISTENCE AND - ALLOWANCE ACT 1972, DEPUTY LABOUR COMMISSIONER & SECRETARY, STATE ADVISORY CONTRACT LABOUR BOARD, THIRUVANANTHAPURAM - 695001. R BY GOVERNMENT PLEADER SRI.E.S.ASHRAF R BY ADV.SMT.A.K.PREETHA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2017, ALONG WITH WA. 2348/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **K.SURENDRA MOHAN & A.M.BABU, JJ. --------------------------------------------Writ Appeal Nos.2339 & 2348 of 2016 ---------------------------------------------Dated this the 9[th] day of January, 2017** ## **C O M M O N J U D G M E N T** ## Surendra Mohan, J. The appellant was the petitioner in W.P.(C).No.31833 of 2016 and the second respondent in W.P.(C).No.23168 of 2016. The appellant is aggrieved by the common judgment of the learned Single Judge dated 26.10.2016 disposing of both the writ petitions. W.P.(C).No.23168 of 2016 was filed by the first respondent in W.A.No.2339 of 2016 challenging Ext.P3 order passed by the second respondent. W.P.(C).No.31833 of 2016 was filed by the appellant seeking enforcement of the very same order, Ext.P3. As per the judgment appealed against, the learned Single Judge has set aside Ext.P3 and has directed the second respondent to consider and pass orders in the matter, afresh. The appellant challenges the said judgment, in these Writ Appeals. Since the Writ Appeals are against the common judgment, they were heard together and are disposed of by this common judgment. W.A.No.2339 of 2016 is treated as the leading case. The parties as well as the documents produced are referred to in the manner in which they are referred to in the said appeal. 2. The short facts of the case necessary for our purpose are the following : Writ Appeal Nos.2339 & 2348 of 2016 2 The appellant was working as a Biomedical Engineer under the first respondent. It is not in dispute that she was a permanent employee of the first respondent. On 08.05.2015 she was placed under suspension and disciplinary proceedings were initiated against her on the basis of a memo of charges. She claimed that she was entitled to be paid subsistence allowance for the period that she was under suspension. It is the said issue that arises for consideration in these appeals. As per Ext.P3 order of the Deputy Labour Commissioner, who is also the authority under Section 4 of the Kerala Payment of Subsistence Allowance Act, 1972 (hereinafter referred to as 'the Act' for short), the appellant was directed to be paid subsistence allowance amounting to 3,31,947/-. The said₹ order was challenged by the first respondent (Management) in W.P. (C).No.23168 of 2016. As already noticed above, the appellant (employee) had also invoked the jurisdiction of this Court by filing W.P.(C).No.31833 of 2016 seeking enforcement of the order, Ext.P3. 3. According to the Management, the appellant, though a permanent employee of the establishment, was not entitled to claim subsistence allowance for the reason that she was appointed to a post that was essentially a managerial or administrative post. It was contended that, such employees are excluded from being paid subsistence allowance not only by the provisions of the Act but also by the Service and Conduct Rules that are applicable. The Writ Appeal Nos.2339 & 2348 of 2016 **==> picture [8 x 10] intentionally omitted <==** employee on the other hand contended that, she had neither administrative nor managerial duties assigned to her. She was working as a Biomedical Engineer and was the only staff available for discharging all the duties connected with the post which included even clerical work. According to her, she had earlier approached the Kerala State Human Rights Commission complaining that denial of subsistence allowance to her amounted to violation of Human Rights and as per order dated 05.01.2016 in HRMP No.8290/2015 the Human Rights Commission, Thiruvananthapuram had found that she was entitled to be paid subsistence allowance. It was contended that in deference to the said order, it was incumbent on the Management to have paid the subsistence allowance claimed by her. It was thereafter that, the second respondent had passed the order that was under challenge in the writ petition at the instance of the Management. 4. The learned Single Judge considered the rival contentions, examined the order that was challenged in the writ petition and found that, the authority had not properly considered the question as to whether the post in which the appellant had been employed was essentially an administrative or managerial one. The learned Single Judge also noticed that though both the parties had let in evidence, the authority had not considered the evidence that was let in, in a proper manner. The nature of the duties that the 4 Writ Appeal Nos.2339 & 2348 of 2016 appellant had been discharging, according to the learned Single Judge, had to be decided on the basis of the factual data placed before the said authority. Such an exercise not having been done, the learned Single Judge found that the impugned order was not sustainable. Accordingly, Ext.P3 has been set aside and the authority has been directed to consider and pass fresh orders in the matter. In the interregnum, the first respondent has also been directed to make an interim payment of ₹1,00,000/to the employee without prejudice to the contentions advanced by them, on condition that the amount so paid could be recovered from the employee if it is ultimately found that the employee was not entitled to such payment. It is the said judgment that is under challenge in these writ appeals. 5. According to Adv.Sri.Pirappancode V.S.Sudheer, who appears for the appellant, Ext.R2(a) produced along with the counter affidavit of the second respondent is the order by which the employee was confirmed in the post of Biomedical Engineer. Her confirmation has been made “subject to the terms and conditions in the Service and Conduct Rules of the Cosmopolitan Services (P) Ltd., which have already been accepted” by the employee. Our attention is drawn to Ext.R2(b) which is a copy of the Service and Conduct Rules to point out that, the said Rules apply generally to all employees of the establishment. The definition of “employee” Writ Appeal Nos.2339 & 2348 of 2016 5 contained in Clause 1 (f) of Chapter I of Ext.R2(b) is referred to, to point out that the expression would include all categories of employees, except persons employed “mainly in a managerial or administrative capacity”. The provision in Ext.R2(b) regarding suspension of an employee is referred to, to point out that, the said provision contained in Chapter VII (c)(4) specifically entitles the employee to subsistence allowance, “if payable under any statute”. Ext.R2(d) memo of charges is referred to by the learned counsel to put forward a contention that, disciplinary proceedings have also been initiated under the Service and Conduct Rules of the Hospital. It is therefore contended that, the employee was entitled to claim subsistence allowance, going by the provisions of the Service Rules as well as the provisions of the enactment relating to such payment. According to the learned counsel, Ext.P3 order has referred to the various circumstances from which, it could be inferred that the employee was not working in an administrative or managerial post. In view of the above, it is contended that the learned Single Judge erred in interfering with Ext.P3, setting aside the same and directing a _de novo_ consideration. We have also been taken through the proceedings of the Kerala State Human Rights Commission produced as Ext.R2(f) to support the contention that, all the aspects of the case had been considered by the said authority and therefore, the learned Single Judge seriously erred in interfering with Ext.P3 6 Writ Appeal Nos.2339 & 2348 of 2016 order that was under challenge. 6. Per contra, Adv.Smt.A.K.Preetha, who appears for the first respondent Management contends that, the dispute in the present case is essentially regarding the entitlement of the appellant to subsistence allowance, in law. According to the learned counsel, the definition of “employee” under Section 2(a) of the Act does not take in the appellant, who is a Biomedical Engineer and a professional. She was also heading the Department. The counsel has placed reliance on a decision of the Division Bench of this Court in _**Mar Baselios Medical Mission Hospital, Kothamangalam v. Dr.Joseph Babu C and Another [2010 (1) KHC 525]**_ to point out that, this Court has held that a Doctor was not a workman coming within the definition of the said expression under the Industrial Disputes Act, 1947. The said proceedings had arisen under Section 33C(2) of the said enactment. According to the learned counsel, even if it is assumed that the Service Rules of the establishment were applicable to the appellant, she would not be entitled to claim subsistence allowance, unless she came within the definition of an employee under Section 2(a) referred to above. Even going by the Service Rules, it is contended that subsistence allowance is payable only if it is payable under any statute. Therefore, according to the learned counsel, unless the appellant is able to establish that she is a person coming within the definition of employee under Section 2 7 Writ Appeal Nos.2339 & 2348 of 2016 (a) of the Act, she would not be entitled to such payment. It is on the above crucial aspect that, the authority under the Act had not entered a specific finding in Ext.P3. It was for the said reason that the order has been set aside by the learned Single Judge. The nature of the duties discharged by the employee being an aspect that requires to be proved by adducing evidence, the authority at the first instance has been directed to address the said question and to pass appropriate orders. It is contended that, there is absolutely no infirmity in the said direction warranting an interference therewith in appeal. The counsel therefore contends that both Writ Appeals are only to be dismissed. 7. Heard. A perusal of Ext.P3 order shows that, the authority has not addressed itself to the question as to whether the appellant is a person who would come within the definition of an “employee” contained in Clause (i)(f) of Chapter I of Ext.R2(b). Since a person who is employed in a managerial or administrative capacity is excluded by the definition, it was necessary for the authority to have considered whether the appellant was an employee within the meaning of the said expression in Ext.R2(b). For the purpose of such an enquiry, the nature of duties discharged by the employee at the time of suspension also is a relevant aspect that had to be considered, as rightly pointed out by the learned Single Judge. In Ext.P3, the second respondent appears to have proceeded on the Writ Appeal Nos.2339 & 2348 of 2016 8 presumption that, the appellant was an employee coming within the definition contained in Ext.R2(b). In view of the above, the learned Single Judge is right in concluding that, Ext.P3 order is a cryptic one as far as the above crucial aspect is concerned. A finding on the above crucial aspect is absolutely necessary before the liability to pay subsistence allowance could be fastened on the first respondent. As rightly pointed out by the learned counsel for the first respondent, the liability to pay subsistence allowance is dependant on whether the same was payable under any statute. The contention of the first respondent is that, the appellant was working in an administrative or managerial post. Admittedly, she is a Biomedical Engineer. Therefore, it was necessary that the question as to whether she was an employee within the meaning of Ext.R2(b) was considered and a definite finding entered by the second respondent. The learned Single Judge was, therefore, right in setting aside and directing the authority to consider the matter afresh, in accordance with law. We notice that the learned Single Judge has taken care to direct the appellant to pay an amount of ₹1,00,000/- on condition that, the said amount would be recovered from the employee, if it is found that she was not entitled to receive the same. The said payment would mitigate the grievance of the employee, to a great extent, until the question is finally decided by the second respondent. We do not find any infirmity in the 9 Writ Appeal Nos.2339 & 2348 of 2016 judgment appealed against, justifying an interference therewith, in appeal. It is only appropriate that, the second respondent considers the issue without any further delay and passes final orders in the matter. 8. The parties are therefore directed to appear before the second respondent on 21.03.2017 at 11.00 a.m. The second respondent shall hear the parties and shall pass final orders in the matter, as expeditiously as possible and at any rate, within a period of six weeks thereafter. In the result, both these appeals fail and they are, therefore, dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **A.M.BABU JUDGE** AV /True Copy/ P.A to Judge