Chenab Textile Mills. vs Abhimaniu and Anr.

PetitionerCompany has filed this writ petition calling in question Industrial Tribunal/Labour Court, Jammu and Kashmir, Jammu's Award of May

21, 2002, awarding an amount of Rs. 17,332.00, as subsistence allowance, to Mr. Abhimaniu respondent No. 1.

Mr. Amur Kotwal, learned counsel appearing on behalf of the Company, relying on clause 28(c)(5) of Certified Standing Orders of the Company,

questions respondent No.l's right to receive subsistence allowance during the course of enquiry pursuant whereto he was dismissed. Learned

counsel additionally submits that the dispute as to the entitlement or otherwise of subsistence allowance was not cognizable by the Labour Court

under Section 33C(2) of the Industrial Disputes Act, 1947. He relies on Municipal Corporation of Delhi v. Ganesh Razak and another, reported

as (1995) 1 SCC 235, to support his submissions.

Mrs. Surinder Kour, learned counsel appearing on behalf of the employee, on the other hand, submits that, the Certified Standing orders had no

application to the facts of the case and that the right accrued to respondent No. 1 to receive subsistence allowance during the course of the

enquiry, being a statutory right under the Industrial Employment (Standing Orders) Act, 1946 cannot be denied to the respondent. Asserting that

the Labour Court had the jurisdiction to decide the question raised before it, learned counsel supports the award saying that it does not suffer from

any error of law or jurisdiction.

I have considered the submissions of learned counsel for the parties and gone through the judgment cited at the Bar and the provisions of the

Industrial Employment (Standing Orders) Act, 1946, Industrial Disputes Act, 1947 and the provisions of the Certified Standing Order's of the

petitionercompany.

Before dwelling on the questions raised in this petition, reference needs to be made to clause 28(c) of the Certified Standing Orders relied upon by

the petitioner and Section 10 A of the Industrial Employment (Standing Orders) Act, 1946. These read thus:

Clause 28(c) of the Certified Standing Orders

PROCEDURE FOR DEALING WITH CASES OF MISCONDUCT:

i) If a major misconduct is alleged against a workman, the Manager or any otherauthorized officer will issue a charge sheet and depute a person to

hold enquiry against the workman. The workman charged with major misconduct will be afforded a reasonable opportunity for explaining and

defending his actions but to avail himself of this privilege, such workmen must appear before the enquiry officers when directed to do so. Any such

enquiry may be made jointly against several workers if the charges against them are same or similar and any common question of law or fact is

likely to arise.

ii) A workman charged with major misconducts may be suspended forthwith from duty pending enquiry or final disposal of his case,

iii) The orders of suspension shall be in writing and will set out in general terms as far as possible the nature of major misconducts alleged against

the workman and shall take effect immediately on communication thereof to the workman.

iv) If during the enquiry it is found that the workman is guilty of misconduct other than that stated in the order of suspension, a fresh chargesheet

will be served at once.

v) If, as a result of enquiry, the workman is adjudged guilty of major misconduct and punishment is awarded, the workman shall be deemed to

have been absent from duty for the period of suspension and shall not be entitled to any wages or any other payment for such period and in case

the worker is dismissed it will have effect from the date of suspension. Even if any punishment, other than dismissal is given, he will not be entitled

to any payment for the suspension period. If, however, he is not found guilty of any misconduct, the order of suspension shall be withdrawn and he

shall be deemed to have been on duty during the period of suspension and shall get his wages for such period,.

vi) Nothing contained hereunder shall effect the rights of the mills to terminate the services of workmen by notice or payment of wages in lieu of

notice in accordance with these orders notwithstanding that any enquiry into the alleged misconduct of the employee has been made or is pending.

Section 10A of the Industrial Employment Standing Orders Act ,1946

Payment of subsistence allowance: (1) where any workmen is suspended by the employer pending investigation or inquiry into complaints or

charges of misconduct against him, the employer shall pay to such workman subsistence allowance

(a) At the rate of fifty per cent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first

ninety days of suspension; and

(b) At the rate of seventyfive per cent of such wages for the remaining period of suspension if the delay in the completion of disciplinary

proceedings against such workman is not directly attributable to the conduct of such workman.

(2) if any dispute arises regarding the subsistence allowance payable to a workman under subsection (1), the workman or the employer concerned

may refer the dispute to the Labour Court constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose

jurisdiction the industrial establishment wherein such workman is employed is situate and the Labour Court to which the dispute is so referred shall,

after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.

(3) Notwithstanding anything contained in the foregoing provisions of this section, where provisions relating to payment of subsistence allowance

under any other law for the Lime being in force in any State are more beneficial than the provisions of this section, the provisions of such other law

shall be applicable to the payment of subsistence allowance in that State.

I will first take up the issue as to whether the Certified Standing Orders would debar a dismissed employee to receive subsistence allowance during

the course of the enquiry proceedings.

Perusal of Clause 22(c)(5) of the Certified Standing Orders demonstrates that what has been prohibited in the Standing Orders, in case of an

employee who is dismissed pursuant to an enquiry from the date of his suspension, is ""the wages"", to which he would have been entitled to, had he

been absolved of the charges, and not the ""subsistence allowance/suspension allowance"", as urged by learned counsel for the petitioner. I do not

find anything in this provision of the Certified Standing Orders which may debar the employee of his statutory right to receive the subsistence

allowance which is allowed to every worker under Section 10(2) of the Industrial Employment (Standing Orders) Act, 1946.

Section 10(2) of the Industrial Employment (Standing Orders) Act, 1946, guarantees an employee, and enjoins upon the employer, the duty to pay

the employee, the subsistence allowance, pending investigation or enquiry into the complaint or charges of misconduct against him. It is for this

reason that there is no provision made in the Certified Standing Orders which may debar the employee of this statutory right which is guaranteed to

him under the Act.

I, therefore, do not find any merit in learned counsel's submission that respondent No. 1 is not entitled to payment of subsistence allowance in view

of his dismissal.

I find substance in Mrs. Kour's submission when she urges at the Bar that the employer had been harsh to the employee in not paying the

subsistence allowance during the course of the enquiry and it was because of this reason that he could not participate in the enquiry proceedings

which ultimately resulted in his dismissal.

The next contention of Mr. Kotwal that the Labour Court had no jurisdiction to decide the question of the entitlement or otherwise of the

respondent No. 1 to subsistence allowance because such a question cannot be adjudicated upon by the Labour Court under Section 33C(2) of

the Industrial Disputes Act, 1947, too is found to be misconceived, because Section 33C(2) requires to be read in the light of the provisions of

Section 10A(2) of the Industrial Employment (Standing Orders) Act, 1946 in terms whereof, the dispute regarding subsistence allowance payable

to a workman, is required to be adjudicated upon by the Labour Court and no reference, in terms of Section 10 of the Industrial Disputes Act,

1947, is necessary for the decision of such question. Jurisdiction exercised by the Labour Court in issuing an award for payment of subsistence

allowance cannot thus be faulted. Judgment relied by the learned counsel for the petitioner may not thus be applicable to the facts of the present

case because the provisions of Section 10A(2) was not the subject matter of consideration before Hon'ble Supreme Court in the case cited by the

learned counsel for the petitioner. Even otherwise as the dispute raised by the employer that respondent No.1 was not entitled to subsistence

allowance, was not covered by any clause of the Certified Standing Orders, so all what remained to be decided by the Labour Court, in the

matter, was the computation of subsistence allowance and not the entitlement or otherwise of respondent No.1 thereto in view of the clear

provisions of Section 10A of the Industrial Employment (Standing Orders) Act, 1946 which vests a right in the employee to receive subsistence

allowance during the course of an enquiry.

Even otherwise, I do not find any error in the award of the Labour Court, for all that it allows to the dismissed employee is what he is entitled to

under Section 10A of the Industrial Employment (Standing Orders) Act, 1946 as also under Article 21 of the Constitution of India. Payment of

subsistence allowance to an employee during the course of enquiry, which is a necessary facet of Right to life enshrined in Article 21 of the

Constitution of India, cannot thus be denied to the employee. This is so because, no one can be expected to face an enquiry without being paid

allowances needed for his sustenance until the conclusion of the enquiry. Even if there would have been any provision in the Certified Standing

Orders to the contrary prohibiting payment of subsistence allowance to an employee in the event of his dismissal becoming effective from the date

of his suspension, such a provision had to relent to the provisions of the Industrial Employment (Standing Orders) Act, 1946 in view of its Section

4 which mandates the Certified Standing Orders to be in conformity with the provisions of the Act.

In view of the above discussion, I do not find any merit in this petition which is, accordingly, dismissed.