1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.813 OF 1997 Yeola Taluka Sahakari Kharedi Vikri Sangh Ltd., Yeola ..Petitioner. Vs. Shrikant A. Patil and others ..Respondents. .... Mr. P.N. Joshi for the Petitioner. Mr. S.M. Dharap for Respondents 1 to 4. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 24th June, 2008. P.C. : 1. These proceedings arise out of an order passed by the Industrial Court in a complaint of unfair labour practices under items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The complaint was instituted by four employees of the Petitioner who are Respondents to these proceedings. The First Respondent was employed as a godownkeeper since 1967; the Second Respondent as a clerk since 1972; while the Third and Fourth Respondents were engaged as clerks since 1973 and 1981. The Respondent workmen were placed on suspension pending 2 disciplinary proceedings. The order of the Industrial Court records that the First Respondent was placed on suspension on 9th July, 1991 while the Second Respondent was placed on suspension on 8th October, 1990 with effect from 1st November, 1990. The Third and Fourth Respondents are stated to have been suspended with immediate effect from 1st November, 1990. The prayer before the Industrial Court in the complaint was for the payment of subsistence allowance in accordance with the provisions of the Industrial Employment (Standing Orders) Act, 1948. 2. In its order dated 7th December, 1996 the Industrial Court noted that it was an admitted position that until date no charge- sheet had been issued and no enquiry proceedings were initiated and that the workmen were under suspension since 1990 or, as the case may be, from 1991. The Industrial Court has noted that criminal proceedings have been instituted and it appears that the Petitioner herein was awaiting decision of the criminal proceedings. The Court also observed that the Petitioner had paid 50% subsistence allowance from the date of the orders of suspension until August 1993 while no payment had been made from September 1993. The Petitioner was directed to make 3 payment of the subsistence allowance at the rate of 75% of the wages after the expiry of the first 90 days of suspension, for a further period of 90 days and thereafter to pay the subsistence allowance at 100% until the criminal proceedings were decided. 3. Counsel appearing for the Petitioner has assailed the findings of the Industrial Court on the ground that it was factually erroneous to proceed on the basis that no charge-sheet had been issued and no enquiry had been held. As a matter of fact it was urged that a charge-sheet was issued on 31st May, 1991 and after the disciplinary proceedings were concluded an enquiry report was submitted on 9th October, 1994. Each of the workmen responded to the notices to show cause that were issued prior to the imposition of the disciplinary penalty between 1st and 4th February, 1995. Moreover, it was submitted that in pursuance of a resolution passed by the managing committee on 28th March, 1995 orders of termination were issued on 17th August, 1996. As a matter of fact on 14th November, 1996 a complaint of unfair labour practices (Complaint (ULP) 166 of 1996) was instituted by the Respondent workmen before the Labour Court at Nashik under items 1 (a), (b), (d), and (f) of Schedule IV to the Act. Consequently on 7th 4 December, 1996 when the impugned order was passed the Respondent workmen had instituted complaints of unfair labour practices challenging the orders of termination. Hence, the Industrial Court was in error in observing that no enquiry had been held. On the other hand, Counsel appearing for the Respondent workmen submitted that even if, as submitted by the Petitioner enquiries were held and orders of termination were passed, the workmen will be entitled to receive their subsistence allowance from the date of the order of suspension until the date on which orders of termination were passed. 4. From the material which has been placed on the record it emerges that the Petitioner had issued charge sheets against the Respondent workmen on 31st May, 1991. The workmen were suspended in contemplation of disciplinary proceedings on the dates which have been referred to in the earlier part of the judgment. An enquiry report was submitted on 9th October, 1994. The workmen submitted replies to the show cause notices which were issued to them upon the submission of the report. Their services were terminated on 17th August, 1996. The workmen instituted a complaint of unfair labour practices before the Labour 5 Court on 14th November, 1996 in order to challenge the orders of termination. In the circumstances, the Industrial Court was not correct in observing that it was an admitted position that no charge – sheet has been issued and that though the workmen were suspended since 1990 or, as the case may be, 1991 no enquiry has been instituted. As a matter of fact on the date on which the Industrial Court passed its impugned order, orders of termination had already been passed and the complaint of unfair labour practices was instituted by the workmen challenging the orders of termination. 5. However, despite this position, it cannot be gain saying that the workmen would be entitled to receive their subsistence allowance during the period of suspension which would end with the passing of the order of termination. The Industrial Court was not justified in holding that the Petitioner would be liable to pay subsistence allowance until the criminal proceedings were disposed of. About this there can be no dispute whatsoever. The Model Standing Order 10-A prescribes that during the period of suspension the workmen would be entitled to subsistence allowance at the rate of 50% of the wages which the workman was 6 entitled to immediately preceding the first 90 days of suspension and at the rate of 75% 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. In the present case, there is absolutely no material before the Court to indicate that the workmen were in any manner responsible for any delay in the conduct of the disciplinary enquiry. In the circumstances, it is only appropriate and proper for this Court to issue a direction to the effect that the workmen would be entitled to subsistence allowance at the rate of 50% of the last drawn wages for the first 90 days of the period of suspension and thereafter at the rate of 75% of the last drawn wages until 17th August, 1996 on which date the orders of termination have been passed. There shall be an order in the aforesaid terms. During the pendency of these proceedings, when the Petition was admitted on 26th August, 1997 the order of the Industrial Court was stayed subject to the condition that the Petitioner deposits in the case of each of the Respondent workmen 50% of the subsistence allowance for the first 90 days and thereafter at the rate of 75% till the date of dismissal. The Petitioner deposited an amount of Rs.31,000/- in respect of the four 7 Respondents. The interim order of stay was vacated on 16th July, 1998 on the ground that the statement made in the Civil Application taken out by the Respondent workmen for vacating the interim relief that full payment had not been deposited was not controverted before the Court on behalf of the Petitioner by filing a reply. Leave was granted to the workmen to withdraw the amount of Rs.31,000/- deposited by the Petitioner. While disposing of this Petition it would be necessary to clarify that in computing the payment which is to be made by the Petitioner to the Respondents at the rate of 50% of the last drawn wages for the first 90 days of suspension and thereafter at the rate of 75% until the date of termination, due credit shall be given of the amount of Rs.31,000/- which has been paid to the workmen. The order of the Industrial Court shall stand modified to the aforesaid extent. 6. Counsel appearing for the Petitioner has stated that the Petitioner has instituted proceedings for recovery against the Respondent workmen before the competent Court. The payment of subsistence allowance has nothing to do with the proceedings for recovery which shall proceed independently if they are still pending in accordance with law. In the event that any decree or 8 order is passed in the proceedings for recovery, it is needless to add that it would be open to the Petitioner to take recourse to such remedies as are open in law for the execution of the decree. The Petition shall be allowed in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs. *****