1 901 wp 2796.11.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2796 OF 2011 Paranjape Metal Shapers Pvt. Ltd. ..Petitioner. Vs. Shri Ashok Raghunath Phadtare ..Respondent. Mr. A.D.Patwardhan i/b Mr. T.R.Yadav for petitioner. Mr. Mandar Limaye for respondent. CORAM : K.K.TATED, J. DATED : 19th April, 2011. PC: 1 Heard learned counsel for the parties. 2 Rule. 3 By consent rule made returnable forthwith and matter is taken on board for final hearing. 4 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner challenges the order dated 21st March, 2011 passed by the learned Presiding Officer, Industrial Tribunal, Satara below Exhibit U-5 in Application (IT) No.1 of 2 901 wp 2796.11.doc 2010 preferred by the respondent for grant of subsistence allowances pending the hearing and final disposal of the application filed by petitioner under section 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the said Act”) directing the Petitioner to pay to the respondent- employee subsistence allowances from 12th May, 2010. 5 A few facts of the matter are as under: The Petitioner has a factory at Shirval, District Satara wherein the respondent-workman was working as an employee. The dispute between the company and workman regarding revision of pay of wages is pending before the Industrial Tribunal, Satara in Reference (IT) No.2 of 2005. During the pendency of the said Reference the services of the respondent- workman were terminated for the misconduct committed by him after issuance of four different charge-sheets and a regular domestic enquiry into the same. After completion of the enquiry and issuance of termination order, the petitioner preferred approval application being Approval of Application (IT) No. 1 of 2010 before the Industrial Tribunal, Satara seeking approval of the action of termination. In the said application, the respondent-workman filed his written statement dated 3rd July, 3 901 wp 2796.11.doc 2010 opposing the same. The respondent-workman also filed an application dated 13th October, 2010 for interim relief directing Petitioner to pay the subsistence allowances to him till final disposal of main Application from the date of dismissal or to direct the petitioner to allow him to join his duties till final disposal of main Application. The said Application was decided by Industrial Court on 21st March, 2011 and directed Petitioner to pay subsistence allowances to the respondent. 6 Being aggrieved by the said impugned order dated 21st March, 2011, the Petitioner-employer preferred the present writ petition. 7 The question which arises for determination in this writ petition is, whether a dismissed employee against whom an application is filed by the employer under section 33 (2)(b) of the said Act, seeking approval to the imposition of penalty of dismissal from services, is entitled to subsistence allowances pending the final disposal of the said Application. 8 The learned counsel appearing on behalf of Petitioner submits that the learned Presiding Officer, Industrial Tribunal, Satara erred in coming to the conclusion that respondent is 4 901 wp 2796.11.doc entitled for subsistence allowances from 12th May, 2010 during the pendency of their application for approval of his termination which was issued after following due process of law. He further submits that it was a gross error for the Tribunal to grant the relief of subsistence allowances when admittedly the services of the workman were terminated on 12th May, 2010 and de facto the relationship of employer and employee was severed. He further submits that it was a gross error on the part of the Tribunal to grant the relief of subsistence allowances when admittedly the worker was no longer in employment and under the Model Standing Order subsistence allowances are granted only during the pendency of the domestic enquiry and not after termination. 9 In support of his submissions, the learned counsel appearing on behalf of Petitioner relies on judgment in the matter of Jaipur Zilla Sahkari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma and others reported in 2002 (92) FLR 667 (SC), wherein it has been categorically held that the grant of approval application would relate back to the date of termination and it would be a dejure approval and therefore, the workman would not be entitled to any relief. He also relies on judgment in the matter of Tata Consultancy Engineers, 5 901 wp 2796.11.doc Mumbai vs. Dilip P. Pandit and Another, reported in 2004 (1) CLR 44. In that case, our High Court held that the grant of subsistence allowance pending the proceeding can only be granted after the finding is recorded that enquiry held before termination was not fair and just or there was no enquiry at all. The Paragraph 6 of that judgment reads as under: “6. The law is thus well-settled by the above referred decision of the Division Bench regarding entitlement of the workman to claim subsistence allowance during the pendency of the proceedings for approval of termination of the services of the workman and accordingly the Tribunal before granting any such application for direction for payment of subsistence allowance in such proceedings will have to ascertain whether the inquiry held by the employer was fair or not and whether there was any defect in such inquiry or whether there was a mere farce of an inquiry or whether there was no inquiry at all in the eyes of law held by the employer and only thereafter, depending upon the appropriate findings of the Tribunal in that regard, the Tribunal will have to decide the right of the workman to claim subsistence allowance, bearing in mind the observations of the Division Bench quoted hereinabove.“ 6 901 wp 2796.11.doc 10 On the basis of these decisions, the learned counsel appearing on behalf of Petitioner submits that the impugned order dated 21st March, 2011 passed by the learned Presiding Officer, Industrial Tribunal, Satara relying on judgment in the matter of Standard Chartered Grindlays Bank Ltd. vs. Govind Phopale and another reported in 2002 (2) Bom.LC 630 (Bombay) and Fakirbhai Fulabhai Solanki vs. The Presiding Officer and another, reported in 1986 CLR 440 (SC) erred in coming to the conclusion that they are liable to pay the subsistence allowance to the respondent. 11 On the other hand, the learned counsel appearing on behalf of respondent vehemently opposed the present Petition. He submit that the learned Presiding Officer, Industrial Tribunal, Satara has rightly considered the respondent’s Application dated 13th October, 2010 and directed the Petitioner to pay the subsistence allowances from 12th May, 2010. He submits that during the pendency of the Application under section 33 (2) (b) of the said Act workmen have right to file an Application for subsistence allowances. In support of his submission he relies on judgment in the matter of T.N. State Transport Corporation vs. Neethivilangan, Kumbakonam reported in (2001) 9 SCC 99. Head note of that judgment reads as under: 7 901 wp 2796.11.doc “Labour Law – Industrial Disputes Act, 1947 – S. 33 (2)(b) – Rejection of application under, for approval of dismissal order, on merits – Consequential right of workman and remedy therefor – In such circumstances, the dismissal order, held, became non est and the employer was bound to treat him as continuing in service with the right to all consequential benefits – Workman concerned could get that right enforced under Art. 226 and need not raise a new industrial dispute for that purpose – Constitution of India – Art. 226 – Maintainability – Alternative remedy – When not a bar“ 12 He also placed reliance on the judgment in the matter of Standard Chartered Grindlays Bank Ltd. vs. Govind Phopale and another, reported in 2002 (2) Bom. L.C. 630 (Bombay). In that case, the learned single Judge of this court held that merely because employer posses an order of dismissal/discharge and refuses to allow the workman to work though the jural relationship subsists, it can not be said that the workman is not entitled to get any remuneration till his jural relationship is brought to an end lawfully. He relies on Paragraph 9, which reads thus: 8 901 wp 2796.11.doc “Section 33(1) talks of the matters and workmen connected with the pending Industrial Dispute. While Section 33(2) talks of the matters and the workmen who are not connected with the pending Industrial Dispute. In the former case, the express permission is a mandate before any action therein is taken by the employer, while in the letter case the employer is allowed to take and complete the action at his end but must get approval of the action taken by him from the authority before which the Industrial Dispute is pending. In the third case of protected workmen, there is no condition of having any connection with the dispute of the protected workmen. There is complete ban on touching the protected workmen during the pendency of the Industrial Dispute without express permission of the authority. The protected workmen might be connected with the dispute or might not be connected with the dispute. The service conditions to be altered might or might not be connected with the dispute. In no case, the protected workmen can be prejudiced in any manner without the express permission of the authority.“ 13 The authority cited by the learned counsel appearing on behalf of the respondent in the matter of Standard Chartered Grindlays Bank Ltd. (supra) was considered and overruled by the Division Bench of this court in the matter of Air India Ltd. 9 901 wp 2796.11.doc Vs. Libio Francisco Colaco and another reported in 2004 (101) FLR 249. Therefore, there is no question of reliance on the authority cited by the learned counsel appearing on behalf of respondent. The other authorities cited by the learned counsel appearing on behalf of respondent in the matter of T.N. State Transport Corporation (supra) is not applicable in the present case on the facts and circumstances involved. 14 On the basis of these submissions, the learned counsel appearing on behalf of respondent submits that the impugned order passed by the learned Presiding Officer, Industrial Tribunal, Satara, below Exhibit U-5 in Application (IT) No.1 of 2010 is according to law and, therefore, there is no question of any interference in the present Writ Petition under Articles 226 and 227 of the Constitution of India. 15 In the present case, during the pendency of the dispute between Petitioner-respondent, the Petitioner after following due process of law terminated Respondent’s services, therefore, they filed an application under section 33 (2) (b) of the Industrial Disputes Act, 1947. Section 33 (2) (b) of the Industrial Disputes Act, 1947 reads thus: 10 901 wp 2796.11.doc “33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings.- (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman; Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.” 16 This clause permits an employer to discharge or punish a workman by way of dismissal or otherwise for any act or 11 901 wp 2796.11.doc misconduct not connected with the dispute pending before the authority in accordance with the standing orders applicable to a workman concerned, in such dispute and in the absence of the standing orders in accordance with the terms of the contract whether expressed or implied. The proviso to this clause requires the employer in case of discharge or punishment by way of dismissal or otherwise, to pay to the workman concerned wages for one month and to make an application to the authority before which the proceeding is pending for approval of the action taken, therefore, the petitioner filed approval Application (IT) No.1 of 2010 before the Industrial Tribunal on 12th May, 2010. During the pendency of the said application, respondent preferred interim application dated 13th October, 2010 for a direction to the Petitioner to pay subsistence allowances to the respondent till final disposal of main application from the date of dismissal or direct to allow the respondent to join his duties till final disposal of the main application. It is to be noted that during the pendency of such application under section 33 (2) (b) of the Industrial Disputes Act, 1947 employee is not entitled any subsistence allowances. This point is squarely covered by this court in the matter of Tata Consultancy Engineers, Mumbai vs. Dilip P. Pandit and Another, reported in 2004 (1) CLR 44.. In that case, it is 12 901 wp 2796.11.doc held that employee is not entitled to subsistence allowances pending the proceeding under section 33 (2) (b) of the Industrial Disputes Act, 1947. 17 The impugned order passed by the learned Presiding Officer, Industrial Tribunal, Satara below Exhibit U-5 in Application (IT) No.1 of 2010 can not be sustained in law. Therefore, the same is set aside. Writ Petition is allowed in terms of prayer clause (A) which reads as under: “(A) that this Hon’ble High Court in exercise of its powers under Article 226 of the Constitution of India be pleased to issue a Writ of Certiorari or any other like Writ or direction and on calling upon the records and proceedings from the Industrial Tribunal, Satara in Approval (IT) No. 1 of 2010 and on going into the legality and propriety of the Order impugned be pleased to quash and set aside the Order below Exhibit U-5 dated 21/03/2011 passed in Approval (IT) No.1/2010.“ 18 No order as to costs. (K.K.Tated, J.)