M.D.Spl. 88 Saptoor Primary Co-operative Bank Ltd. Represented by Its President Vs. the Deputy Commissioner of Labour and ors. - Court Judgment

Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. orderp. sathasivam, j.1. aggrieved by the proceedings of the deputy commissioner of labour, madurai dated 31.10.1990. first respondent herein in p.s.a.no. 11 of 1990 the petitioner co-operative bank has filed the above writ petition.2. the case of the petitioner is briefly stated hereunder:the third respondent herein filed application under section 4 of the tamil nadu payment of subsistence allowance act, 1981 (hereinafter referred to as the 'act') read with rule 5(1) of the tamil nadu payment of subsistence allowance rules, 1981 (hereinafter referred to as the 'rules') before the second respondent on 6.10.1989 claiming subsistence allowance of rs. 1,889.86 for the period 8.5.1987 to 24.4.1988. the said application was filed along with a petition to condone the delay of 15 months in presenting the application. the petitioner filed a counter opposing the main claim as well as the petition for condonation. the second respondent in his proceedings dated 4.6.1990 declined to condone the delay in filing the application and accordingly dismissed the said application. aggrieved by the proceedings of the second respondent, third respondent preferred an appeal in p.s.a.no. 11 of 1990 on the file of the first respondent herein. the first respondent without going into the merits of the application to condone the delay and without considering the reasons assigned, allowed the appeal and remitted the matter to the second respondent for passing fresh orders on merits. against the said order the petitioner has filed the present writ petition.3. in the light of the above factual position, i have heard the learned counsel for the petitioner as well as contesting third respondent.4. it is seen that the third respondent herein made an application before the second respondent claiming a sum of rs. 1,889.86 towards subsistence allowance by giving details in the said application. after considering the said application, the counter statement filed by the petitioner -management, after holding that the application filed by the third respondent herein is barred by limitation as per section 4 of the act, dismissed the said application. aggrieved by the said order the third respondent herein filed an appeal before the appellate authority viz., first respondent herein. the first respondent after considering the object of the act and after noting the various dates with reference to the claim made by the third respondent herein after setting aside the order of the second respondent, remitted the same before the said authority in order to pass an order on merits.5. even though it is stated by the second respondent that the application claiming subsistence allowance has to be made within a period of one year, in order to appreciate the rival contentions it is better to refer the relevant provisions. the act, namely, tamil nadu payment of subsistence allowance act was enacted to provide for the payment of subsistence allowance to employees during the period of suspension. section 4 of the act deals with, 'recovery of money due from an employer', which is as follows:4. recovery of money due from an employer where any money is due to an employee from an employer under this act, the employee himself or any other person authorised by him in this behalf, or in the case of the death of the employee, his legal representative may, without prejudice to any other mode of recovery make an application to the government in such manner as may be prescribed for the recovery of money due to him, and if the government, after giving the employer an opportunity of being heard, in such manner as may be prescribed, are satisfied that any money is so due, they shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue.... provided that every such application shall be made within one year from the date on which the money became due to the employee from the employer:provided further that any such application may be entertained after the expiry of the said period of one year, if the government are satisfied that the applicant had sufficient cause for not making the application within the said period.as per section 12 of the act, the government have framed rules called tamil nadu payment of subsistence allowance rules, 1981, rule 5 speaks about, 'application of recovery of money due to an employee'. rule 5 is as follows:5. application for recovery of money due to an employee: (1) the applicant on under section 4 of the act shall be made in duplicate in form 3 or form 4, as the case may be.(2) the application in form 3 or form 4 shall be sent by registered post acknowledgement due.(3) one copy of the application in form 3 or form 4 shall also be sent by registered post acknowledgement due to the employer by the applicant.(4) on receipt of application referred to in sub-rule (1) as early as possible, a notice in form 5 shall be sent to the employer and the applicant calling them to appear on such date and time specified therein. the employer by himself or through his representative shall appear and furnish all information and material relevant to the question of payment of subsistence allowance to the employee. the applicant or through his representative shall appeal and produce all relevant documents available with him and furnish relevant information.(5) any person desiring to act on behalf of the applicant or employee shall present a letter of authorisation in form 6 or form 7 as the case may be. the letter of authorisation shall be duly signed by applicant or the employer as the case may be and attested by two witnesses.(6) after completion of hearing on the date fixed under sub-rule (4) or after such further evidence, examination of documents, hearing of witnesses and enquiry, as may be deemed necessary, an order shall be passed determining the amount if any, that is payable to the employee with a direction that it shall be paid within thirty days of the receipt of such order.(7) if any of the parties fail to appear on the specified date of hearing after due service of notice without sufficient cause, the application shall be determined as ex parte and orders shall be passed on merits:provided that an order under this sub-rule may, on good cause being shown within thirty days of the said order, be reviewed and the application re-heard after giving not less than fourteen days' notice to the opposite party, of the date fixed for re-heating of the application.it is clear if the subsistence in terms of the provisions of the act is not paid, the aggrieved person may make an application as per rule 5 in the form prescribed therein. it is also clear that, on receipt of such application referred to in sub-rule (1) of rule 5. a notice in form 5 has to be sent to the employer and the applicant calling upon them to appear on a particular date and time specified therein. after completion of the hearing on the date fixed as per sub-rule (4) and after considering the evidence and other documents etc., an order has to be passed determining the amount if any that is payable to the employee with a direction that the same has to be paid within 30 days of the receipt of such order. it is clear that, rule 5 enables the aggrieved person to make an application in the prescribed form and the concerned authority has to determine the amount after notice to the employer and after affording adequate opportunity to both parties concerned.6. after determination of the amount in terms of rule 5 referred to above, if the determined amount is not settled, it is open to the aggrieved person or on the death of the employee his legal representative make an application to the government for the recovery of the said money due to him. section 4 of the act speaks about such recovery of money due from an employer. if such application is made before the government, a duty is cast on the government to give an opportunity to the employer to make their representation and after satisfaction that any money is so due, they shall issue a certificate for that amount to the collector who shall proceed to recovery the same in the same manner as an arrear of land revenue. as per first proviso to section 4, every such application shall be made within one year from the date on which the money became due to the employee from the employer. as per second proviso to section 4, even if there is delay, if the government are satisfied that the applicant had sufficient cause for not making the application within the period of one year, it is open to it to entertain such application, if there is sufficient cause for the same. accordingly, it is clear from the above mentioned provisions that only after the determination of the amount by the concerned authority with reference to the application made under rule 5, the money becomes due. in the light of the said provisions, the contrary view taken by the original as well as appellate authority cannot be sustained. in this regard, as rightly brought to notice by the learned counsel for the third respondent, section 33-c(1) of the industrial disputes act is analogous to section 4 of the present act.7. in the light of the above mentioned discussion and inasmuch as the third respondent has made an application on 6.10.1989 for determining the amount payable by the employer, the second respondent has to determine the amount and thereafter if the said money is not paid, recovery proceedings have to be initiated under section 4 of the act within a period of one year as per proviso to section 4. in such circumstance, even the application filed by the third respondent herein for condonation of delay before the second respondent is unnecessary.8. in the light of what is stated above, the second respondent is hereby directed to pass appropriate orders on the application made by the third respondent herein after notice to all the parties concerned and determine the amount if any within a period of three months from the date of receipt of a copy of this order. the writ petition is disposed of on the above direction. no costs. consequently, w.m.ps., is closed.

Judgment:
ORDER

P. Sathasivam, J.

1. Aggrieved by the proceedings of the Deputy Commissioner of Labour, Madurai dated 31.10.1990. First respondent herein in P.S.A.No. 11 of 1990 the petitioner Co-operative Bank has filed the above writ petition.

2. The case of the petitioner is briefly stated hereunder:

The third respondent herein filed application under Section 4 of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 (hereinafter referred to as the 'Act') read with Rule 5(1) of the Tamil Nadu Payment of Subsistence Allowance Rules, 1981 (hereinafter referred to as the 'Rules') before the second respondent on 6.10.1989 claiming subsistence allowance of Rs. 1,889.86 for the period 8.5.1987 to 24.4.1988. The said application was filed along with a petition to condone the delay of 15 months in presenting the application. The petitioner filed a counter opposing the main claim as well as the petition for condonation. The second respondent in his proceedings dated 4.6.1990 declined to condone the delay in filing the application and accordingly dismissed the said application. Aggrieved by the proceedings of the second respondent, third respondent preferred an appeal in P.S.A.No. 11 of 1990 on the file of the first respondent herein. The first respondent without going into the merits of the application to condone the delay and without considering the reasons assigned, allowed the appeal and remitted the matter to the second respondent for passing fresh orders on merits. Against the said order the petitioner has filed the present writ petition.

3. In the light of the above factual position, I have heard the learned Counsel for the petitioner as well as contesting third respondent.

4. It is seen that the third respondent herein made an application before the second respondent claiming a sum of Rs. 1,889.86 towards subsistence allowance by giving details in the said application. After considering the said application, the counter statement filed by the petitioner -management, after holding that the application filed by the third respondent herein is barred by limitation as per Section 4 of the Act, dismissed the said application. Aggrieved by the said order the third respondent herein filed an appeal before the appellate authority viz., first respondent herein. The first respondent after considering the object of the Act and after noting the various dates with reference to the claim made by the third respondent herein after setting aside the order of the second respondent, remitted the same before the said Authority in order to pass an order on merits.

5. Even though it is stated by the second respondent that the application claiming subsistence allowance has to be made within a period of one year, in order to appreciate the rival contentions it is better to refer the relevant provisions. The Act, namely, Tamil Nadu Payment of Subsistence Allowance Act was enacted to provide for the payment of subsistence allowance to employees during the period of suspension. Section 4 of the Act deals with, 'Recovery of money due from an employer', which is as follows:

4. Recovery of money due from an employer Where any money is due to an employee from an employer under this Act, the employee himself or any other person authorised by him in this behalf, or in the case of the death of the employee, his legal representative may, without prejudice to any other mode of recovery make an application to the Government in such manner as may be prescribed for the recovery of money due to him, and if the Government, after giving the employer an opportunity of being heard, in such manner as may be prescribed, are satisfied that any money is so due, they shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.... Provided that every such application shall be made within one year from the date on which the money became due to the employee from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the Government are satisfied that the applicant had sufficient cause for not making the application within the said period.

As per Section 12 of the Act, the Government have framed Rules called Tamil Nadu Payment of Subsistence Allowance Rules, 1981, Rule 5 speaks about, 'application of recovery of money due to an employee'. Rule 5 is as follows:

5. Application for recovery of money due to an employee: (1) The applicant on under Section 4 of the Act shall be made in duplicate in Form 3 or Form 4, as the case may be.

(2) The application in Form 3 or Form 4 shall be sent by registered post acknowledgement due.

(3) One copy of the application in Form 3 or Form 4 shall also be sent by registered post acknowledgement due to the employer by the applicant.

(4) on receipt of application referred to in Sub-rule (1) as early as possible, a notice in Form 5 shall be sent to the employer and the applicant calling them to appear on such date and time specified therein. The employer by himself or through his representative shall appear and furnish all information and material relevant to the question of payment of subsistence allowance to the employee. The applicant or through his representative shall appeal and produce all relevant documents available with him and furnish relevant information.

(5) Any person desiring to act on behalf of the applicant or employee shall present a letter of authorisation in Form 6 or Form 7 as the case may be. The letter of authorisation shall be duly signed by applicant or the employer as the case may be and attested by two witnesses.

(6) After completion of hearing on the date fixed under Sub-rule (4) or after such further evidence, examination of documents, hearing of witnesses and enquiry, as may be deemed necessary, an order shall be passed determining the amount if any, that is payable to the employee with a direction that it shall be paid within thirty days of the receipt of such order.

(7) If any of the parties fail to appear on the specified date of hearing after due service of notice without sufficient cause, the application shall be determined as ex parte and orders shall be passed on merits:

Provided that an order under this sub-Rule may, on good cause being shown within thirty days of the said order, be reviewed and the application re-heard after giving not less than fourteen days' notice to the opposite party, of the date fixed for re-heating of the application.

It is clear if the subsistence in terms of the provisions of the Act is not paid, the aggrieved person may make an application as per Rule 5 in the Form prescribed therein. It is also clear that, on receipt of such application referred to in Sub-rule (1) of Rule 5. A notice in Form 5 has to be sent to the employer and the applicant calling upon them to appear on a particular date and time specified therein. After completion of the hearing on the date fixed as per Sub-rule (4) and after considering the evidence and other documents etc., an order has to be passed determining the amount if any that is payable to the employee with a direction that the same has to be paid within 30 days of the receipt of such order. It is clear that, Rule 5 enables the aggrieved person to make an application in the prescribed form and the concerned authority has to determine the amount after notice to the employer and after affording adequate opportunity to both parties concerned.

6. After determination of the amount in terms of Rule 5 referred to above, if the determined amount is not settled, it is open to the aggrieved person or on the death of the employee his legal representative make an application to the Government for the recovery of the said money due to him. Section 4 of the Act speaks about such recovery of money due from an employer. If such application is made before the Government, a duty is cast on the Government to give an opportunity to the employer to make their representation and after satisfaction that any money is so due, they shall issue a certificate for that amount to the Collector who shall proceed to recovery the same in the same manner as an arrear of land revenue. As per first proviso to Section 4, every such application shall be made within one year from the date on which the money became due to the employee from the employer. As per second proviso to Section 4, even if there is delay, if the Government are satisfied that the applicant had sufficient cause for not making the application within the period of one year, it is open to it to entertain such application, if there is sufficient cause for the same. Accordingly, it is clear from the above mentioned provisions that only after the determination of the amount by the concerned authority with reference to the application made under Rule 5, the money becomes due. In the light of the said provisions, the contrary view taken by the original as well as appellate authority cannot be sustained. In this regard, as rightly brought to notice by the learned Counsel for the third respondent, Section 33-C(1) of the Industrial Disputes Act is analogous to Section 4 of the present Act.

7. In the light of the above mentioned discussion and inasmuch as the third respondent has made an application on 6.10.1989 for determining the amount payable by the employer, the second respondent has to determine the amount and thereafter if the said money is not paid, recovery proceedings have to be initiated under Section 4 of the Act within a period of one year as per proviso to Section 4. In such circumstance, even the application filed by the third respondent herein for condonation of delay before the second respondent is unnecessary.

8. In the light of what is stated above, the second respondent is hereby directed to pass appropriate orders on the application made by the third respondent herein after notice to all the parties concerned and determine the amount if any within a period of three months from the date of receipt of a copy of this order. The writ petition is disposed of on the above direction. No costs. Consequently, W.M.Ps., is closed.