473 0 V CINP No173 of 2008 and 1 CWP No114 of 2008 IN THE HIGH COURT OF PUNJAB 8 HARYANA CHANDIGARH CWP No173 of 2008 and CWP No3114 of 2008 Dateof decision August312009 RajaRam Petitioner Versus 1 The PresidingOffieer Labour Court Ambala and others 0 Respondents C 1 CWP No114 of 2008 C5 Bhoop Singh I Petitioner Z Versus The PresidingOfficer Labour Court Ambaia and others C Respondents a5 CORAM HONBLE MR JUSTICE K KANNAN et Presentl Mr J S3edi Advocate 7 for the petitioner Z MrO Slalwa AdditionalAdvocate 0 Generai Haryanafor Nos2 and 3 1A1 1Y 1W 1 Whether reportersof Iocalnewspapers may be allowedto see the judgmcnt2 Yes 2 To be referredto the reportersor not2 Yes 3 Whetherthejudgmentshould be reportedin the digest2Yes K KaIlnA 1 The two writ petitionsconcem the orders of termination made by the same Managementand address the same issue of the validityof the terminationorders passed011 report01the officer Before the Labour Court it was contended thal the Rawat Seema 2014.01.25 11:01 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 474 CWP No173 of2008 and 2 CWP No114 of 2008 workmen had not been grantedsubsistence allowance and they were ieadingin penury and hence theycould not effectively defend themselves The Labour Courtreasoned thattheyhad not taken any such objections even before the EnquiryOfficer and theywere estoppedfrom makingsuch a contention The Labour Court also observed that the workmenhad not participated in the enquiryand the decision taken by the disciplinary 0 authority on the basis of exeparte evidence was perfectly justiOed 0 2 On behalf of the workmen the contention was that 0 when the order of terminationdated 21 2001 had been made without an C5 enquirytheyhad challenged the same by a intra departmental appealto Z the higherauthorityVlZ DistrictForest Officerwho directed by his order Z clated2162001 that a fresh enquirywas to be conducted before passing r an orderof termination Learned counsels submission therefore was that C theoriginalorder of terminationmade on 2142001 must be taken to have cej beenset aside and when the AppellateAuthorityhad directed an enquiryto be constituted and proper action was to be taken the workmen were 7 boundto be treated in and paidthe same wages as theywere Z drawin There had not even been an order of suspensionand therefore Qw theworkmen had claimed that theywere wlliingto work and theyshould also be paidtheir wages Theyhad complainedin answer to the charge sheet issued to them on 26 2001 subsequentto the directions from the AppellateAulhoritythat theywere Ieading a Iifeof penury and it was not possible for them to defend themselves and effectivelyparlicipatein the enquiryunless they were paidtheir wages or at Ieast the subsistence allowance The contention therefore was that there had been a specific demand to the for beingpaid their wages to effectively defend themselves and on the failure to attend the fundamental o1wages the enquiryitseifwas vitiated 1V1 Rawat Seema 2014.01.25 11:01 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 475 1 CWP No173 of2008 and 3 CWP No81140f2008 3 Learned counsel appearingfor the State would submit tllat a dailywager was not entitiedto wage for the daywhen he was not workingand all that the AppellateAuthority was doingwas to direct a fresh enquiry It did not mean that theywere entitied to be treated as thoughtheywere stilldoingwork The were not entitled to wages when he was not doingany work 10 4 In my view the submission of the iearned counsel 0 for the State is fallacious There cannot be a generalprinciplethat a daily C wager cannot be paid subsistence allowance even when there is no 40 terminationin the eye of Iaw when he shall be deemed to be in servIce I After all the workmen had not declined to do any work The specificplea Z even in the answer to the chargesheet by the workman is that he IS preparedto do the work and he be assignedthe work to do If he had C expressedhis willingnessto work but still the work has not been assigned 3 08 to him wages cannot be denied to him At any rate it shall be unfair to keep the enquirygoing without expressly itself of having e suspendedhim or keptIllm in service The Iaw is well settled that when a Z workman againstwhom an enquiryis constituted pleadsdeprivation and tl starvation and compiainsthat he could be granted his su bsistence allowance to denythe same and to proceedwhen an enquirywould only subvert the cause of justice In Faquir Bhai Fullabhai Solanki Vs Presidinq Officer 1198613 SCC 131 the Honble SupremeCourt held that paytnent of subsistence allowance duringthe enquirywhen there is such a demandbythe workman and when he pleadsa deprivationthe conduct of enquiry without providingfor such subsistence wouid be bad The Honble Supreme Court however caulioned it was not alwaysa rule of thumb that subsistenceallowance must be grantedIt would defend on whether any is pleadedby the workman In this case the workman pleaded rT 1 1 1 Rawat Seema 2014.01.25 11:01 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 476 1 CWP No173 of 2008 and 4 CWP No 8114 of 2008 that he was starvingwlthout any wages The same principlewas affirmed byit in UPate Textile Corporation Ltd Vs PC Chaturvedi 1200518 SCC211 5 The Labour Court in my view has erred in stating that no prejudice was shown bythe workmenwhen theywere not paidthe subsistence allowance The Labour Court has held that the workmen by decidingnot to participate in the enquirywere estoppedfrom raisingsuch a 7 C3 contention The observationin my view is whollywrong C3 6 am of the view that the enquiryconducted bythe I 9 enquiryofficer without providing for subsistence allowance was not fair or properand the whole proceedingsare vitiatedThe Labour Court is bound 2 to providean opportuntyto the workmanto giveevldence in supponof his 4t C own defence It shall be open to the Managementto opt to avail of an to prove misconduct before the Labour Court but it is a matter 08 that will be decided onlyby the and there is no direction in that regardbythis Court r 7 7 The decision rendered by the Labour Court acting 2 on the enquiry reportof the Managementis set aside The matter is remittedto the Labour Court for consideration of the whole case afresh in the Iightof the observatlonsmade above 8 The writ petitionis allowed in the above terms 1K KANNANI pFArl JUDGE pAlo y August312009 c 9 4 8 4 a 544 1l T Rawat Seema 2014.01.25 11:01 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document