Kamta Parsad vs Certifying Officer

S.S. Nijjar, J.—In this writ petition under Articles 226/227 of the Constitution of India, the petitioners seek issuance of writ in the nature of Mandamus directing the respondent No. 1 to pay the subsistence allowance to the petitioners from the date of suspension till the suspension comes to an end.

The petitioners were appointed by M/s Amtek Auto Limited, 16 Industrial Estate, Rozka Meo, So-hna, District Gurgaon (hereinafter referred to as "the Management") as permanent workman. Petitioner No. 1 was appointed on 23.11.1989. Petitioner No. 2 was appointed on 16.8.1990. They were placed under suspension w.e.f. 9.10.1996. The enquiry has been concluded some time in March, 1999, but no final action has been taken on the enquiry report till date. The petitioners are continuing under suspension ever since 9.10.1996. The petitioners had filed an application u/s 33-C(2) before the Labour Court claiming suspension allowance for the period October, 1996 to December, 1996. The Labour Court by its award dated 23.7.1999 has dismissed the application of the petitioners u/s 33-C(2). Against the aforesaid award, the petitioners filed CWP No. 14675 of 1999. This Writ Petition has been allowed by my separate order passed today. In the aforesaid writ petition, the petitioners had also filed a Civil Misc. application No. 872 of 2001. In that application, it was claimed that after passing of the award by the labour Court, the peti- tioners had filed application before the Certifying Officer-cum-Joint Labour Commissioner, Haryana for payment of subsistence allowance as provided u/s 10A of the Act. During the pendency of the application, representative of the management had agreed to make the payment of the subsistence allowance through Payee Account Cheque/Draft. In spite of the aforesaid agreement, the subsistence allowance had not been paid. It appears that no interim relief was granted in the CM No. 872 of 2001. Hence, the petitioners have filed the present writ petition.

According to the petitioners, the respondent-Management have denied the payment of the suspension allowance on the ground that the petitioners have not been marking their presence at the Security Gate for half an hour daily as required under Certified Standing Orders 30(d), 30(g) and proviso thereto. The petitioners'' case is that they are entitled to payment of subsistence allowance u/s 10A of the Act. This Section does not impose any condition with regard to marking of attendance as provided under the aforesaid Certified Standing Order. The Certified Standing Orders, being inconsistent with Section 10A of the Act cannot be implemented. The petitioners also rely on the order passed by the Certifying Officer on 17.8.2000 in the applications filed by them, claiming subsistence allowance u/s 10A of the Act. The aforesaid order is as follows :-

"Present: 1. Sh. Sharad Mishra D.M. (Per and HR)

Sh. B.S. Prabhakar for workmen.

The representative of the management stated that the management is ready to make the payment. However, the workman is not ready to accept the payment. The representative of the Management is directed (to make ) the payment to the authority in the name of the workman through payee account cheque/draft within a period of twenty days.

Sd/- Representative of workman

Sd/- Representative of Management

Sd/- Certifying Officer 17.8.2000"

On the basis of that order, the petitioners claim that the respondents have now admitted claim put forward by them. Mr. Mittal has argued that Section 10A of the Act prevails over the Certified Standing Orders. Therefore, the petitioners cannot be denied the subsistence allowance on the ground that the petitioners have not reported for half an hour on every working day at the Security Gate at 10 a.m. Learned counsel also submitted the denial of subsistence allowance is in breach of Article 21 of the Constitution of India.

Mr. Jain submitted that this writ petition is not maintainable as the petitioners could have claimed the very same relief in CWP No. 14675 of 1999. It is further submitted that the petitioners have to approach the labour Court by seeking a reference u/s 10 of the Industrial Disputes Act, 1946. It is further submitted that the Certified Standing Orders are binding on the Management as also the workmen after the same are duly certified. It is further submitted that the representative of the Management had no authority to make any concession on the basis of which the order dated 17.8.2000 has been passed by respondent No. 1.

I have considered the submissions made by the learned counsel for the parties.

The controversy in this writ petition is squarely covered by the judgment pronounced today in CWP No. 14675 of 1999. This writ petition is disposed of with the directions that the petitioners are at liberty to make the necessary application for computation of the subsistence allowance in accordance with Section 10-A of the Act to the Labour Court. The Labour Court is directed to decide the application of the petitioners within a period of four weeks of the application being filed. No costs.

Copy of this order be given dasti on payment of necessary charges.

Petition disposed of.