P. S. Unnikrishnan v. Chakkkittapara Service Co-Operative Bank Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** ## **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** ## **WP(C) NO. 4141 OF 2020** ## **PETITIONER:** P .S. UNNIKRISHNAN AGED 46 YEARS ACCOUNTANT (UNDER DISMISSAL), CHAKKITTAPARA SERVICE CO-OPERATIVE BANK LTD. NO.F.1675, P. O. CHAKKITTAPARA, PIN - 673 526. BY ADV P.P.JACOB ## **RESPONDENTS:** 1 THE CHAKKITTAPARA SERVICE CO-OPERATIVE BANK LTD. NO.F 1675 P. O. CHAKKITTAPARA, PIN - 673 526, REPRESENTED BY ITS SECRETARY. 2 THE MANAGING COMMITTEE OF THE CHAKKITTAPARA SERVICE CO-OPERATIVE BANK LTD. NO.F.1675 P. O. CHAKKITTAPARA, PIN - 673 526, REPRESENTED BY ITS PRESIDENT. 3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) QUILANDI, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), QUILANDI, KOZHIKODE - 673 305. 4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) KOZHIKODE, OFFICE OF THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES (G), PUTHIYARA, KOZHIKODE - 673 004. BY ADVS. SRI.P.C.SASIDHARAN GOVERNMENT PLEADER ## **OTHER PRESENT:** GP SRI.V. VENUGOPAL W.P.(C) No.4141/2020 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.09.2021, THE COURT ON 28/9/2021 DELIVERED THE FOLLOWING: W.P.(C) No.4141/2020 3 ## **JUDGMENT** The writ petitioner was working as an Accountant under the first respondent society. While so, he was suspended from service on 4/7/2017 on an allegation of misconduct. By order dated 2/7/2018, he was terminated from service. The termination is under challenge before the competent authority and is pending. The grievance of the petitioner is that, though he is an employee governed by the provisions of the Payment of Subsistence Allowance Act, he was paid only a portion of the subsistence allowance, during the period of suspension and a sum of Rs.1,31,909/- is payable to him as subsistence allowance. 2. Claiming the arrears of subsistence allowance, he submitted Ext.P1 representation before the 4[th] respondent. 4th respondent -Joint Registrar forwarded it to the 3[rd] respondent Assistant Registrar for enquiry. Ext.P4 is the reply received from the Joint Registrar, which conveys that the society had undertaken to pay the arrears payable in accordance with law, after the challenge against termination is decided. The petitioner has approached this court claiming a direction to the respondent to pay the balance subsistence allowance of Rs.1,31,909/- with 12 % interest and also to quash Ext.P4 reply. 3. The respondent society had filed counter affidavit and separate counter affidavit was filed by the 4[th] respondent joint registrar . 4. In the counter affidavit filed by the society, it was contended that, W.P.(C) No.4141/2020 4 petitioner was not an employee coming under the Kerala Payment of Subsistence Allowance Act, eligible for receipt of subsistence allowance in terms of that Act . It was contended that he was substantively holding the post of Accountant and also held charge of the Branch Manager of the Bank. The post of Accountant and Branch Manager are supervisory posts and the payment of Subsistence Allowance Act is not applicable to such employees. Hence, he is entitled only to subsistence allowance payable under Rule 55 of Part 1 Kerala Service Rules . The subsistence allowance payable to him has already been paid and nothing further was due. The claim is set up on a false belief that he is governed by the Payment of Subsistence Allowance Act. It was again reiterated that , petitioner was holding a substantive managerial / supervisory post in the service of the society. 5. A reply affidavit was filed reiterating his contention that he was only an ordinary employee without having any managerial or administrative or supervisory capacity. It was stated that the averment that, the post of Accountant is supervisory post and payment of Subsistence Allowance Act, is not applicable to him is absolutely incorrect and false. It was contended that the Branch Manager required degree qualification. The petitioner had only a Pre-degree and JDC qualification, and is not eligible to hold the post of Branch Manager. To support it, petitioner relied on Ext.P5 a circular dated 6/9/2018 issued by the Registrar stating that degree qualification was required to hold the post of Accountant. 6. Heard both sides and examined the records. W.P.(C) No.4141/2020 5 7. The only question that arises is whether the petitioner is an employee coming under the Kerala Payment of Subsistence Allowance Act. It is settled that whether a person is an employee under the Payment of Subsistence Allowance Act does not depend on the designation, but on the basis of the main work undertaken by such person. It is also settled that a person will not be governed by the Provisions of Payment of Subsistence Allowance Act, if he is discharging mainly managerial and administrative function. Hence, irrespective of the designation, the actual nature of the work undertaken by the person is crucial. The society could have evidently established it by producing the duties and responsibilities of the Accountant. Neither party produced it. Since the management was disputing the liability and claiming that the petitioner, as an accountant, was holding mainly managerial and administrative functions, it was obligatory on the part of the society to produce the by laws or the records evidencing duties and responsibilities of the accountant to establish their case. However, that was not done. 8. On the other hand, the petitioner relied on the available materials to contend that he was holding the post of Accountant, which was neither supervisory nor of managerial cadre.. It is to be noted that in the counter affidavit, the admitted case of the society was that the petitioner, though holding the substantive post of Accountant, was put in charge of the manager. They have no case that he was appointed as the manager at any point of time. It is also to be noted that though the petitioner claimed that the Accountant and Branch Manager are supervisory posts, nowhere in the counter affidavit, there W.P.(C) No.4141/2020 6 is a specific averment that the petitioner was mainly exercising managerial or administrative functions. This crucial factor is conspicuously absent in the counter affidavit. On the other hand, in the writ petition as well as in the reply affidavit, the petitioner has specifically asserted that he was not holding any managerial or administrative functions. 9. As a collateral piece of material to substantiate his contentions, petitioner relied on Ext. P8, which was the Circular No.20/11 issued by the Registrar of the Co-operative societies specifically relating to the promotion, annual increment and short term educational courses for the employees. In clause (a)(xi), it was stated that all the employees excluding sub staffs, stenographers, typists, etc.including junior accountants upto senior inspectors, who were lower than the Branch manager post will come under the ministerial cadre and the branch manager posts fall within the supervisory cadre. Though this is not directly touching upon the issue, this is projected by the learned counsel for the petitioner as one material, which indicated that Accountant is not holding any supervisory cadre. 10. It is also pertinent to note that in Ext.P1 representation, it was specifically asserted that petitioner was an employee governed by the provisions payment of Subsistence Allowance Act. In the reply given by the Joint Registrar, after conducting due enquiry through the Assistant Registrar, it is informed that the society had undertaken to pay the legally entitled amounts due to the petitioner after the ARC proceedings were completed. The society has a further case that since the ARC proceedings are pending, the W.P.(C) No.4141/2020 7 issue is before the authority and hence no orders can be passed for payment of any subsistence allowance. I am not attracted by this argument, since from Ext.P4 reply given by the Joint Registrar after enquiring with the society, it is evident that the society had no case at that point of time that the petitioner was not a person coming under the Payment of Subsistence Allowance Act. Further, the decision on his termination has nothing to do with his claim to receive subsistence allowance, during the period of suspension. 11. The learned counsel for the society tried to salvage the position by relying on the decision reported in _**Chittur Service Co-op.Bank Ltd. v. State of Kerala (1992 (1) KLT 168**_ ) wherein it was held by a Division Bench of this Court that, to decide whether a person is an employee under the payment of Subsistence Allowance Act, the crucial question was whether he was employed mainly in the managerial or administrative capacity. The designation in the employment was not crucial, but what the exactly are the duties assigned to him by the employer. In that decision, it was held that a branch manager occupies the highest position among all the employees in the branch, and hence he is not an employee under the Payment of Subsistence Allowance Act. Identical view was taken by the learned Single Judge of this Court in _**Kudayam S.Co-opBank Ltd. v. Radhakrsihnan Nair (1999 (3) KLT**_ _**76)**_ that the Secretary was not entitled to subsistence allowance under the Act. 12. There is no dispute regarding the crucial legal position. However, in this case there is absolutely no evidence to indicate that the petitioner, being an Accountant, was holding mainly managerial or administrative functions. It W.P.(C) No.4141/2020 8 is also to be noted that even it is settled that holding at times a charge of a supervisory nature cannot substantially change the character of the substantive post held by him. In the light of the above legal position and also the facts that are .narrated above, I am satisfied that materials available on record clearly indicate that the petitioner was holding the post of Accountant and was not exercising mainly managerial or administrative functions . Hence, he is an employee under the Payment of Substance Allowance Act and he is entitled for subsistence allowance as provided under the Act. In the result, the original petition is allowed. The first respondent society is directed to calculate the subsistence allowance payable to the petitioner under the Payment of Substance Allowance Act and to pay it, as expeditiously as possible , at any rate, within a period of one month from the date of receipt of a copy of this judgment. Sd/- **SUNIL THOMAS** **Judge** dpk W.P.(C) No.4141/2020 9 ## **APPENDIX OF WP(C) 4141/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT DATED 24.12.2018. - EXHIBIT P2 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FOURTH RESPONDENT TO THE THIRD RESPONDENT DATED 30.1.2019. - EXHIBIT P3 TRUE PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 6.6.2019. EXHIBIT P4 TRUE PHOTOCOPY OF THE PROCEEDING ISSUED BY THE THIRD RESPONDENT TO THE DATED 13.8.2019. EXT.P5: COPY OF THE CIRCULAR VIDE NO. M(2) 5548/2018 DATED 6/9/2018 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES WITH TYPED COPY EXT.P6: COPY OF THE APPLICATION DATED 12/2/2021 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DATED 10/2/2021 FILED BEFORE THE FOURTH RESPONDENT. EXT.P8: COPY OF THE ORDER DATED 25/2/2011 ISSUED BY THE REGISTRAR OF COOPERATIVE SOCIETIES.