Daily Wage Workers Entitled To Claim Subsistence Allowance During Suspension: Kerala High Court

Justice Murali Purushothaman observed thus,

“Section 2(a) does not exclude a daily wage employee for the purpose of payment of subsistence allowance...Accordingly, I hold that the 1st respondent, a daily wage driver, is an employee as defined under Section 2(a) of the Kerala Payment of Subsistence Allowance Act, 1972, and is entitled to subsistence allowance during suspension.”

The Court made the following observations in a writ petition filed by the Kerala State Horticultural Products Development Corporation Limited, a company under the Department of Agriculture, challenging the order of granting subsistence allowance to a daily wage employee.

The respondent was working as a driver in the petitioner company on a daily wage basis. Pursuant to an enquiry, the respondent was not engaged in work for a few months and he claimed subsistence allowance for the said period. The claim for subsistence allowance was granted which was challenged before the High Court.

The Court considered the definition of ‘employee’ under Section 2(a) of the Kerala Payment of Subsistence Allowance Act, 1972. It reads thus:

“(n) employee" means any person employed in or in connection with the work of any establishment to do skilled, semi-skilled or unskilled manual, supervisory, technical, clerical or any other kind of work for hire or reward, whether the terms of employment be express or implied, but does not include any such person who is employed mainly in a managerial or an Administrative Capacity or as an out worker, that is to say a person to whom any articles or materials are given out by or on behalf of the employer to be cleaned, washed, altered, ornamented or repaired by such out-worker in any place not under the control and management of the employer.”

The Court found that the respondent who was a driver at the petitioner company was a skilled worker and being being a daily wage driver he was not working in a managerial or administrative capacity. Thus it held he would fall under the ambit of the term ‘employee’ under the Act. Moreover, there was no averment in the writ petition that the 1st respondent was employed in any other establishment during the period of his suspension.

The Court also stated that the petitioner company was a government owned company and comes within the definition of ‘establishment’ under Section 2(c) of the Act and was obligated to pay subsistence allowance.

On the above findings, the Court dismissed the writ petition.

Case name: Kerala State Horticultural Products Development Corporation Limited V Sunil Kumar S

Case number: WP(C) NO. 27421 OF 2023