Judgment:
ORDER
S.M. Abdul Wahab, J.
1. This Writ Petition is for quashing the order of the 1st Respondent dated September 30, 1985 in P.S.A. 11 of 1985. The petitioner is the Corporation of Madurai, by its Commissioner. The facts of the case are as follows :-
The 2nd respondent was employed in the Corporation as a Workman. On March 26, 1984 he was placed under suspension under Rule 53(1) of the Fundamental Rules.
Disciplinary proceedings were instituted against him. A criminal case was also registered against him. However, the criminal court acquitted him. The suspension order was revoked on June 3, 1985. During the period of suspension the 2nd respondent was paid 50% of pay during the first six months and thereafter at 75% of the pay till the revocation of the suspension. Thereafter the 2nd respondent filed P.S.A. No. 11 of 1985 claiming Rs. 3,432.31 under Section 4 of the Payment of Subsistence Allowance Act, 1981. According to him, the said amount represented the difference between the amount actually paid to him and the amount he was entitled to receive as per the said Act. The Corporation of Madurai contended that the Fundamental Rule 53 was applicable to the Corporation employees. Therefore the Payment of Subsistence Allowance Act, 1981 was not applicable to the case of the 2nd respondent. Since the contention of the Corporation of Madurai was not accepted by the Deputy Commissioner of Labour, Madurai, the 1st respondent herein, the Writ Petition has been filed in this Court.
2. Mr. E. Padmanabhan, Senior Counsel appearing for the Corporation of Madurai reiterated that as far as the 2nd respondent is concerned, Fundamental Rule 53 alone as applicable, and not the Payment of Subsistence Allowance Act 1981. According to him, the 1st respondent did not consider this vital aspect and hence his order observes to be set aside.
3. The learned counsel for the petitioner Mr. Padmanabhan also contended that the Madurai City Municipal Corporation Act, 1971 and the Rules made thereunder provide for payment of subsistence allowance when a servant of the Corporation is placed under suspension. Madurai City Municipal Corporation Service Rules, 1975 has rule 43 which provides for the application of Fundamental Rules to the Corporation Service. Rules 8 and 9 enables the Corporation to suspend a servant of the Corporation, and the Corporation has already paid the subsistence allowance for the petitioner in accordance with the provisions mentioned above.
4. According to Mr. Padmanabhan, Rules framed under the Madurai City Municipal Corporation Act, 1971, namely Madurai City Municipal Corporation Service Rules, 1975, which provides for payment of subsistence allowance to the servants of the Corporation, is a special enactment, while the Payment of Subsistence Allowance Act, 1981 is a general one, which governs the servants employed in various industrial establishments and other places. Further, it is also contended that there is no non-obstante clause in the later enactment, namely, the Payment of Subsistence Allowance Act, 1981 giving overriding effect to provisions contained in other enactments, particularly, Madurai City Municipal Corporation Act, and the Rules made thereunder, providing for payment of subsistence allowance.
5. Rule 43 of the Madurai City Municipal Corporation Service Rules, 1975 is as follows :-
'In matters in respect of which no provision has been made in the rules, every member of the service shall as nearly as possible, be governed by the provisions applicable to Government servants of similar status and standing. As per this rule, the Madurai Corporation employees are to be governed by the rule provided to Government servants as nearly as possible when there are no specific provisions in the Corporation rules on a matter. Therefore, the application of Fundamental Rule to them is not unconditional or automatic but as nearly as possible, i.e., whenever it is possible or necessary resort can be made to the Government rules.
6. The Tamil Nadu Payment of Subsistence Allowance Act was introduced in the year 1981. Para 2 of the Objects and Reasons of the said Act is as follows :-
'Government have accordingly decided to undertake legislation to make it obligatory on the managements to pay subsistence allowance to the employees during the period of their suspension, pending enquiry.'
The object is to make it obligatory for all the managements not only to industrial establishments but also to other establishments. That is why the definition of establishment containing Section 2(c) is wider. Section 2(c) of the Payment of Subsistence Allowance Act, 1981 is as follows :-
'establishment' means any place where any industry, trade, business, undertaking manufacture, occupation or service is carried on, and with respect to which the executive power of State extends, but does not include :-
(i) any office or department of the Central or the State Government; or
(ii) a railway administration; or
(iii) any mine or oil field; or
(iv) any major port; or
(v) any public sector undertaking of the Central Government.
From a reading of the above said Section, one will have no doubt that Corporation like Madurai City Municipal Corporation and its establishments will be brought in its fold.
7. If the Fundamental Rules have been applied to the Madurai City Municipal Corporation employees from 1975 up to 1981, the same cannot be said to be illegal but after the introduction of payment of subsistence allowance under Act 43 of 1981 it is not possible to have resort to the Fundamental Rules. As stated earlier as per Rule 43 mentioned above, resort has to be made when there was necessity. Since there was no other provision which can be made applicable to the Madurai Corporation employees before the introduction of the Payment of Subsistence Allowance Act, 1981.
8. In my view after the coming into force of the Payment of Subsistence Allowance Act, 1981 there is no necessity to have resort to the Fundamental Rules, because the necessity is not there.
9. Mr. Padmanabhan contended that the Madurai City Municipal Corporation Service Rules, 1975 which provided for payment of subsistence allowance to the employees of the Madurai Corporation by applying the Fundamental Rules is a special enactment while the Payment of Subsistence Allowance Act, 1981 is a general one. Therefore, the former rules will prevail. He also contended that there is no non obstante clause in the later enactment giving overriding effect to the provisions contained in the rules mentioned above. Therefore he contended that the provisions of the Payment of Subsistence Allowance Act, 1981 is not applicable to the employees of the Madurai City Municipal Corporation. This contention cannot be countenanced because there is no provision in the Madurai City Municipal Corporation Act, 1981 or the Madurai City Municipal Corporation Service Rules, 1975 providing for payment of subsistence allowance. However, as per Rule 43 as mentioned above, as far as possible and whenever necessary resort has to be made to the Fundamental Rules. But after the introduction of Payment of Subsistence Allowance Act, 1981 the possibility as well as the necessity cease to exist because, in my view, the Payment of Subsistence Allowance Act, 1981 is directly applicable to the employees of the Madurai City Municipal Corporation.
10. Mr. Padmanabhan cited a decision reported in AIR 1984 S.C. 1130 Ajay Kumar v. Union of India and contended that inasmuch as there is no express provision in the Payment of Subsistence Allowance Act, 1981 altering, abrogating or repealing the provisions containing the earlier enactment, namely, the Madurai City Municipal Corporation Service Rules, 1975, the said rule must govern the field. But as stated earlier their is no specific provision contained in the Madurai City Municipal Corporation Service Rules, 1975, and therefore the decision is not applicable. Similarly the other decision cited by him, : [1964]2SCR87 Municipal Council, Palani v. T.J. Joseph which states that where the provisions of the special statute are wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. For the same reasons stated above, this judgment also is not useful to the present case. Section 5 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 is as follows :-
'Nothing in this Act shall affect any right or privilege to it any employee is entitled on the date of commencement of this Act under any law for the time being in force or under any contract, custom or usage which is more favourable to him than any right or privilege conferred upon him by this Act.'
Even assuming for the sake of argument that the Fundamental Rule 53(1) is applicable even then as per this Section, the Tamil Nadu Payment of Subsistence Allowance Act, 1981 alone will become applicable after the commencement of this Act, because, the right or privilege conferred under this Act is more favourable to an employee of the Madurai City Municipal Corporation, since the subsistence allowance to be paid at 50% for the first 90 days becomes 75% after the expiry of 90 days, and after the expiry of 180 days, it becomes cent per cent, i.e., full wages. Therefore, the decision of the 1st Respondent holding that the provisions of the Payment of Subsistence Allowance Act, 1981 are applicable to the employees of the Madurai City Municipal Corporation and the provisions contained in the said enactment are more favourable is correct. For the foregoing reasons, I am not in a position to agree with the contentions raised by the learned counsel for the petitioner. Accordingly the Writ Petition fails and it is dismissed. However, there will be no order as to costs.