1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2295/2006 (Zilla Parishad, Bhandara & another VERSUS Bhagirath Dahiramji Nagalwade) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Mrs. M.P. Munshi, counsel for the petitioner. Shri R.A. Gupte, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 3, 2008. Heard. By this petition, the petitioners impugn the judgment rendered by the Industrial Court at Bhandara in Complaint (U.L.P.A.) No.54/2001 on 29.03.2005 directing the petitioner to pay the subsistence allowance to the respondent as per the provisions of Industrial Employment (Standing Orders) Act, 1946 from the date of his suspension i.e. 21.07.1998 till the date of his superannuation i.e. 31.08.2003. The counsel for the petitioners placed reliance on the decision of this Court reported in 2001(3) Mh.L.J. 249 to canvass that the complaint filed by the respondent before the Industrial Court was not maintainable as it was necessary for the respondent to make a representation to the competent authority. The 2 counsel for the petitioners then submitted that the respondent had not made a representation to the competent authority against the non payment of subsistence allowance as per the standing orders and the Industrial Court was, therefore, not justified in granting the relief. The counsel for the petitioners submitted that the criminal case is also pending against the respondent. Shri R.A. Gupte, the learned counsel for the respondent, submitted that the Industrial Court rightly relied on a decision reported in 2004(4) SCC 268 and the unreported decision of this Court dated 07.08.1992 in Writ Petition No.1510/1988 to grant the subsistence allowance to the respondent as per the provisions of the Industrial Employment (Standing Orders) Act, 1946. The counsel for the respondent submits that the judgment reported in 2001 (3) Mh.L.J. 249 is not applicable to the facts of the case. On considering the submissions made on behalf of the parties and on perusal of the impugned judgment dated 29.03.2005, it appears that the judgment dated 29.03.2005 is just and proper. The complaint filed by the respondent was earlier proceeded exparte against the petitioners and after the exparte order was set aside, the matter was reconsidered by the 3 Industrial Court and the judgment dated 29.03.2005 was rendered. The petitioners cannot seek any benefit from the ratio laid down in the judgment reported in 2001(3) Mh.L.J. 249 as the representation which is referred in the aforesaid judgment has to be filed against the suspension order. Even in regard to a challenge to the order of suspension, it is stated that the Court or Tribunal cannot ordinarily entertain a challenge to the order of suspension, which shows that in extra ordinary circumstances, even an order of suspension could be challenged in the Tribunal or Court. The judgment reported in 2001(3) Mh.L.J. 249 is not applicable to the facts of the case as by the complaint (U.L.P.A.) No.54/2001, the respondent had not challenged the suspension order but, had sought the relief of payment of subsistence allowance as per the provisions of the Industrial Employment (Standing Orders) Act, 1946. Hence, it cannot be said that the Complaint (U.L.P.A.) No.54/2001 was not maintainable before the Industrial Court and it was necessary for the respondent to first file a representation before the competent authority. Nothing has been pointed out to the Court to challenge the order of the Industrial Court on merits. It appears from the judgments reported in 2004(4) SCC 268 4 and the unreported judgment of this Court referred to hereinabove that the respondent was entitled to subsistence allowance as per the provisions of the Industrial Employment (Standing Orders) Act, 1946. There is no error whatsoever in the impugned judgment dated 29.03.2005, much less a jurisdictional error. For the aforesaid reasons, the writ petition is dismissed with no order as to costs. JUDGE APTE