The Divisional Controller NWKRTC vs Ramappa

R.S. Chauhan, J.—An application has been filed for disposal of the case at this stage itself. With the consent of both the learned counsel for the parties, this case is being decided at this stage itself.

The North Western Karnataka Road Transport Corporation (''Corporation'' for short) has challenged the legality of the order dated 17.3.2014 passed by the Industrial Tribunal, Bangalore, whereby the learned Tribunal has directed to the petitioner-Corporation to pay an interim relief of Rs. 9,570/- to the respondent-workman from 20.9.2013 onwards.

The brief facts of the case are that the respondent-workman, Ramappa, was working as a conductor in the petitioner-Corporation. Allegedly that while he was working as a conductor on 2.8.2008, the bus was stopped and was checked by the checking squad. The checking squad found that eights passengers who were travelling from Pala to Nulvi cross were not issued the tickets by the respondent-workman. Therefore, on 23.8.2008, he was served with the charge-sheet. On 19.9.2008, the respondent-workman submitted his reply, and denied the contents of the charge-sheet. Since the disciplinary authority was not satisfied with the reply, it appointed an Enquiry Officer on 2.8.2011. After the completion of the enquiry, a second show cause notice was issued to the workman. He also filed his reply to the second show cause notice. By the order dated 10.12.2011, the workman was dismissed from his service. However, as an industrial dispute was pending before the learned Tribunal in the form of I.D. No. 148/2005, the dismissal order was subject to the approval of the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947 (`the Act'' for short). Therefore, on 15.12.2011, the petitioner-corporation filed an application under Section 33(2)(b) of the Act, seeking approval of the dismissal order from the learned Tribunal. The application continues to be pending before the learned Tribunal even today.

Unable to find employment, unable to look after his family, on 2.12.2013, the respondent-workman filed an application under Section 10(4-A) of the Act for grant of interim relief till the application filed by the petitioner-corporation was decided. By the order dated 17.3.2014, the said application was allowed in the terms mentioned above. Hence, this petition before this Court.

Mr. Shivakumar S. Badawadagi, the learned counsel for the petitioner-Corporation has raised the following contentions before this Court: firstly relying on the case of Cholan Roadways Limited Vs. G. Thirugnanasambandam, , the learned counsel has pleaded that the scope of jurisdiction under Section 33(2)(b) of the Act is a limited one. While considering the application for grant of approval, the learned Tribunal is merely required to see whether prima facie case has been made out with regard to the validity of the domestic enquiry. The Tribunal is not permitted to travel beyond this scope. Thus, the Tribunal has not been empowered to grant interim relief to a workman while considering the application under Section 33(2)(b) of the Act.

Secondly, that due to the pendency of the industrial dispute in the form of ID. No. 148/2005, an onerous responsibility has been imposed upon the petitioner-Corporation. For, each time the Corporation decides to dismiss an employee, it is forced to seek approval from the learned Tribunal. However, the learned Tribunal does not decide the application under Section 33(2)(b) of the Act for years. Therefore, for the fault of the Tribunal, the petitioner-Corporation cannot be made to suffer financially. Hence, according to the learned counsel, the impugned order deserves to be interfered with.

On the other hand, Mr. Mruthyunjaya S. Hallikeri, the learned counsel for the respondent-workman has relied on the case of Fakirbhai Fulabhai Solanki Vs. Presiding Officer and Another, and a Division Bench judgment of this Court in the case of P.B. Kumar Vs. P.O., II Additional Labour Court and Another, in order to canvas before this Court that although the power to grant an interim relief may not be strictly given by Section 33(2)(b) of the Act, but both the Apex Court as well as this Court, have interpreted Section 33(2)(b) of the Act as containing the power to grant an interim relief to the workman during the pendency of an application under Section 33(2)(b) of the Act.

Secondly, the purpose of Labour Laws and especially of Industrial Disputes Act, was to protect the interest of the labour. In case the workman is compelled to seek justice for his cause, he cannot be denied access to justice due to his poverty. Therefore, during the pendency of the application under Section 33(2)(b) of the Act, a subsistence allowance has to be paid to the workman so as to ensure that he had sufficient means for accessing justice. Therefore, the learned counsel submitted that the power to grant an interim relief to the workman is implicit in Section 33(2)(b) of the Act. Therefore, he has supported the impugned order.

Heard the learned counsel for the parties, perused the impugned order and considered the records.

The moot issue before this Court is "whether the learned Tribunal has the jurisdiction to grant an interim relief to a workman during the pendency of an application under Section 33(2)(b) of the Act or not?"

Before this issue can be decided, it has to be kept in mind that the Industrial Disputes Act is a social beneficial piece of legislation. At the time of independence, when industrialisation of the country was seen as a crucial factor for the development of the country, the issue before the country was with regard to the condition of the labour class. For centuries, the labour class existed only at the periphery of the society, although their contribution to the prosperity of the society was an immense one. Therefore, in order to protect the labour class, a weaker section of the society, the Industrial Disputes Act was brought into force. The Act is an endeavor to ensure that socio-economic justice is done to the labour class as a whole. Therefore, the Act is merely the concretisation of two of the aims of the preamble of the Constitution of India, namely social and economic justice. While interpreting Section 33(2)(b) of the Act, the beneficial purpose of the Act cannot be ignored by this Court.

Keeping in mind the plight of a workman, keeping in mind the fact that even when he is employed and paid, he continues to exist in the lower strata of the society, keeping in mind his condition once he has been dismissed, after dismissal he is almost reduced to an animal existence, it is with these factors in mind that concept of subsistence allowance was introduced into labour jurisprudence. A workman cannot be expected to live at the level of animal existence. Since he is a human being, under Article 21 of the Constitution of India, he has a right to live "life" with dignity. Therefore, to deny him subsistence allowance while he is kept in animated suspension would be to deny him the fundamental right given to him under Article 21 of the Constitution of India. Thus, while interpreting Section 33(2)(b) of the Act, even the fundamental right under Article 21 of the Constitution of India will have to be kept in mind.

Admittedly, Section 33(2)(b) of the Act does not explicitly bestow the power of granting an interim relief to the Tribunal. In the case of Cholan Roadways Ltd., (supra), undoubtedly the Hon''ble Supreme Court has discussed the ambit and scope of Section 33(2)(b) of the Act. However, the issue "whether Section 33(2)(b) of the Act bestows the power of granting any relief or not?" was not raised in the said case. Hence, the Hon''ble Supreme Court has not expressed its opinion on the said issue. Therefore, the said case does not come to the rescue of the petitioner-Corporation.

However, the said issue was pointedly raised before the Apex Court in the case of Fakirbhai Fulabhai Solanki (supra). The Hon''ble Supreme Court opined as under:

"5. Sub-section (3) of Section 33 of the Act provides that notwithstanding anything contained in Sub-section (2) thereof no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute - (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or punishing whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. It follows from the provisions of Sub-section (3) of Section 33 of the Act that the workman does not cease to be a workman until the Tribunal grants permission to dismiss the workman and the management dismisses the workman pursuant to such permission. An order of suspension by itself does not put an end to the employment. The workman continues to be an employee during the period of suspension and it is for this reason ordinarily the various standing orders in force in several factories and industrial establishments provide for payment of subsistence allowance which is normally less than the usual salary and allowance that are paid to the workman concerned. An order of suspension no doubt prevents the employee from rendering his service but it does not put an end to the relationship of master and servant between the management and the workman. When an application is made under Section 33(3) of the Act the workman is entitled to defend himself before the Tribunal. In those proceedings it is open to him to show that the domestic enquiry held against him was not in accordance with law and principles of natural justice and the action proposed to be taken against him by the management is unjust and should not be permitted. Sometimes it may be necessary to either of the parties to lead evidence even before the Tribunal. The proceedings before the Tribunal very-often take a long time to come to an end. In this very case the proceedings were pending before the Tribunal for nearly six years. Most of the workmen are not in a position to maintain themselves and the members of their families during the pendency of such proceedings. In addition to the cost of maintenance of his family the workman has to find money to meet the expenses that he has to incur in connection with the proceedings pending before the Tribunal. In this case the appellant was in receipt of salary and allowances till the end of the disciplinary enquiry. But from August 13, 1979 he was not paid even the barest subsistence allowance till August 5, 1985 when the Tribunal passed its order/award on the application of the management and the complaint of the appellant. It is true that in the instant case the Tribunal granted the application of the management and rejected the complaint of the appellant. It was also quite possible that the Tribunal could have rejected the application of the management and upheld the complaint of the appellant in which case the appellant would have been entitled to continue to be an employee under the management of the factory and the disciplinary enquiry held against him would have had no effect at all. Because it is difficult to anticipate the result of the application made before the Tribunal it is reasonable to hold that the workman against whom the application is made should be paid some amount by way of subsistence allowance to enable him to maintain himself and the members of his family and also to meet the expenses of the litigation before the Tribunal. And if no amount is paid during the pendency of such an application it has to be held that the workman concerned has been denied a reasonable opportunity to defend himself in the proceedings before the Tribunal. Such denial leads to violation of principles of natural justice and consequently vitiates the proceedings before the Tribunal under Sub-section (3) of Section 33 of the Act and any decision given in those proceedings against the workman concerned. No material has been placed before us in this case to show that the appellant had sufficient means to defend himself before the Tribunal."

The Hon''ble Supreme Court further opined as under:

"8. But in neither of the above two decisions the Court considered the question from the angle from which we have approached the problem. In neither of them the Court had the occasion to consider whether the denial of payment of subsistence allowance during the pendency of the proceedings under Section 33(3) of the Act would amount to violation of principles of natural justice. They approached the question from the angle of the common law right of a master to keep a workman under suspension either during the pendency of a domestic enquiry into an act of misconduct alleged to have been committed by a workman or during the pendency of an application under Section 33 of the Act. Those were perhaps halcyon days when such applications were being disposed of quickly. If the Court had realised that such applications would take nearly six years as it has happened in this case their view would have been different. An unscrupulous management may by all possible means delay the proceedings so that the workman may be driven to accept its terms instead of defending himself in the proceedings under Section 33(3) of the Act. To expect an ordinary workman to wait for such a long time in these days is to expect something which is very unusual to happen. Denial of payment of at least a small amount by way of subsistence allowance would amount to gross unfairness."

The Apex Court held as under:

"11. It is likely that in some cases filed under Section 33(1) or Section 33(3) of the Act (which are ''permission'' clauses and not ''approval'' clauses) pending before any authority, the management may not be paying any subsistence allowance to the workman concerned. We, therefore, clarify that in such cases it shall be open to the management to pay within a reasonable time to be fixed by the authority, the subsistence allowance for the period during which the workman is kept under suspension without wages and to continue the proceedings. Such subsistence allowance shall be the amount fixed under the Standing Orders, if any, which the management is liable to pay to the workman if he is kept under suspension during the pendency of such application or in the absence of any such Standing Order by the authority before which such application is pending. In a case where the proceedings are completed and the order of dismissal is successfully challenged on the ground of non-payment of subsistence allowance for the period of suspension during the pendency of the application under Section 33(1) or Section 33(3) of the Act it shall be open to the management to ask for the permission of the authority again under Section 33(1) or Section 33(3) of the Act after paying or offering to pay to the workman concerned within a reasonable time to be fixed by the authority concerned the arrears of subsistence allowance at the rate stated above. But in the instant case however having regard to the circumstances of this case we do not wish to grant any such opportunity to the management to apply for permission again under Section 33(3) of the Act. On facts we are of the view that the punishment of dismissal imposed in this case on the appellant appears to be excessive but our decision however is not based on this ground."

A similar issue was also raised before this Court in the case of P.B. Kumar (supra). In the said case, this Court has clearly opined that "what matters is the relationship of the workman vis-�-vis the management at a given point of time. The setting aside of the domestic enquiry by the Labour Court would inescapably revert the position of the workman vis-�-vis the management to that of a servant and a master and in such cases it has to be construed that the power to grant an interim order is implicit in the power conferred on the Tribunal or the Labour Court under Section 33 ."

Therefore, the learned counsel for the petitioner is unjustified in claiming that the Tribunal does not have the implicit power to grant an interim relief to the workman during the pendency of an application under Section 33(2)(b) of the Act.

Even in the present case, by the order dated 20.9.2013, the learned Tribunal had given a positive finding that the domestic enquiry held against the respondent-workman was unfair and an improper one. Therefore, the ultimate conclusion would be, according to the case of P.B. Kumar (supra), that the relationship of master and servant would be restored eventually. Therefore, the learned counsel for the petitioner is unjustified in claiming that the Corporation is being burdened financially to maintain a workman who is no longer serving the Corporation.

Even if a workman is not serving the Corporation, even then two factors have to be kept in mind: firstly, the Act is in favour of the workman; secondly, it is essential to keep the workman alive with a sense of human dignity, while an application is pending. Moreover, the workman cannot be left in animated suspension during the pendency of the application. After all, he cannot be made to suffer for no fault of his own. Therefore, the Corporation is not justified in claiming that it is being financially burdened by maintaining a workman during the pendency of its application.

For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of any merit, is hereby dismissed.