1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5284 OF 2009. Essae Teraoka Limited -: versus :- Yogesh Purananad Sharma Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 13, 2010. Heard finally by consent of Shri S.D. Shukla, learned counsel for petitioner and Shri P.N. Khadgi, learned counsel for respondent. Petitioner – employer challenges order dated 12.06.2009 passed by the Industrial Court in Complaint ULPA No. 418/2006 whereby the Industrial Court has directed it to pay subsistence allowance as per law to respondent for period from 01.02.2007 till 30.09.2007. Shri Shukla, learned counsel contends that the petitioner specifically raised defence that respondent is working as Manager and he is not a workman under Section 2[s] of the Industrial Disputes Act and hence Industrial Court had no jurisdiction. He further states that the stand the subsistence allowance is already paid, was also taken, the respondent did not enter the witness box and hence the relief granted without any appreciation of facts by the Industrial Court is thus unsustainable. 2 Shri Khadgi, learned counsel on the other hand argues that only document produced by petitioner – employer revealed payment of subsistence allowance from 22.11.2006 to 31.01.2007. In view of this document it became clear that the subsistence allowance was payable to respondent for further period and as it was not paid therefore the Industrial Court has rightly issued the directions. After hearing the respective counsel, I find that the respondent/employee came to be dismissed on 11.10.2007 and he has filed proceedings challenging the said dismissal in ULP Complaint and non payment of subsistence allowance during departmental enquiry is ground raised before the Labour Court. Stand of petitioner that respondent is not a workman is already on record. The Industrial Court has not recorded any finding in that respect that there was no evidence before it. Similarly the stand of the petitioner employer that he had paid subsistence allowance was also on record, but no finding of payment or non payment could have been recorded as the respondent employee did not enter the witness box before the Industrial Court. Mere payment of subsistence allowance for some period does not make respondent a workman and does not cast obligation upon petitioner to continue to pay subsistence allowance during departmental enquiry. The finding of Industrial Court that complainant before it was entitled to subsistence allowance till completion of the disciplinary proceedings is a finding essentially based on facts and those facts are not apparent in entire order. The order is therefore, unsustainable. 3 However, during hearing both the counsel stated that the matter should not be remanded back to the Industrial Court as his complaint is also pending before the Labour Court. In view of this position the petitioner/ employer shall deposit 50% of the subsistence allowance of respondent from 01.02.2007 to 30.09.2007 before the Labour Court in pending ULPA Complaint. The Labour court shall not permit the respondent to withdraw it. Deposit of subsistence allowance as mentioned above shall be without prejudice to the contentions and right of petitioner in the matter. The Labour Court shall adjudicate the complaint finally and while doing so record a finding upon status of respondent and also upon the payment or non payment of subsistence allowance to him during the relevant period. As per the said adjudication the amount in deposit shall be allowed to be withdrawn by the party succeeding before it. The amount of subsistence allowance as mentioned above be deposited with the Labour Court by 15.05.2010. Parties shall appear before the Labour Court in pending ULPA Proceedings No.120/2007 on 17.05.2010. Writ Petition is thus allowed. Rule accordingly. No cost. JUDGE Rgd.