JUDGMENT D.Y. Chandrachud, J.
1. Rule. Returnable forthwith. Counsel for the respondents waives service. By consent, taken up for hearing and final disposal.
2. In this proceeding under Articles 226 and 227 of the Constitution, the correctness of an Order dated 26th July 2002 of the Industrial Court at Thane is called in question. By its order, the Industrial Court dismissed a complaint filed by the petitioner under items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("MRTU & PULP Act, 1971").
3. The petitioner was employed by the first respondent on 1st March 1974. The petitioner initially worked as a Junior Clerk and was thereafter promoted as a Department Assistant. On 8th November 1986 a chargesheet was issued to the petitioner. The substance of the charge against the petitioner was that in certain proceedings which were pending before the Industrial Court in a complaint filed by N.R.C. Employees Union, the company had filed an application dated 8th October 1996. On 14th October 1996,it was alleged, the petitioner filed a reply to the application of the company and annexed thereto a tenancy agreement in respect of certain office premises of the company. According to the first respondent, this item was taken from the agenda of a particular meeting of the Board of Directors of the company held on 9th September 1996. The petitioner was charged of the misconduct of having clandestinely obtained and removed a copy of the agenda of the Board meeting which was thereafter handed over to the Advocate for the Union. The petitioner was charged with theft, fraud and dishonesty in connection with the employer's business and property, disclosing to an unauthorised person information in regard to the processes of the establishment and of the commission of an act subversive of discipline. The petitioner submitted his reply on 16th November 1996. A disciplinary inquiry was convened by the employer and on 25th February 1997 the Inquiry Officer submitted his report. A letter was addressed to the petitioner on 25th February 1997 enclosing a copy of the report of the Inquiry Officer to which the petitioner submitted a reply dated 5th March 1997.
4. On 5th March 1997 the petitioner filed a complaint apprehending termination of his services under the MRTU & PULP Act, 1971. In the complaint, it is common ground that the first respondent appeared before the Labour Court and sought an adjournment to file its reply. In the meantime, the first respondent stated through its representative before the Court that no action would be taken against the petitioner until 12th March 1997. Thereafter, the hearing of the application for the grant of interim relief was adjourned by the Labour Court from time to time. Eventually, on 12th October 1998 the application for interim relief came to be dismissed. Aggrieved by the order of the Labour Court declining to grant interim relief, the petitioner moved the Industrial Court in revision. By an order dated 3rd November 1998 the Industrial Court directed the Labour Court to dispose of the complaint within a period of two months and observed that in the meantime the first respondent shall not terminate the services of the petitioner.
5. On 29th November 1998 the first respondent addressed a letter to the petitioner adverting to the proceedings which had taken place between the parties including the orders which had been passed by the Labour Court and by the Industrial Court in revision. By the said letter, the first respondent informed the petitioner that he will not be entitled to the payment of Subsistence Allowance with effect from 5th November 1998. The reason for which the payment of the Subsistence Allowance was being withheld was stated thus:
"In view of the court proceedings initiated by you, the Management is unable to proceed further in the matter. This situation arose for the reasons directly attributable to your action by approaching the Courts and you have thus stalled the completion of the departmental action."
6. The petitioner thereafter moved an application before the Labour Court for the payment of the Subsistence Allowance and on 21st January 1999 an order was passed by which the first respondent was directed to pay Subsistence Allowance at the rate of 75% from 5th November 1998 till the completion of the hearing and the final decision on the complaint. This order of the Labour Court was challenged by the first respondent in revision and by an order dated 17th February 1999 the Industrial Court while admitting the revision application stayed the operation of the interim order of the Labour Court. The Petitioner was, however, granted liberty to file a separate case before the appropriate forum for the payment of his Subsistence Allowance. Thereafter the petitioner instituted a complaint of unfair labour practices on 24th March 1999 before the Industrial Court at Thane under items 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971. Besides seeking a declaration that the first respondent had engaged in an unfair labour practice, the petitioner sought a recission of the letter of the first respondent dated 28th November 1998 by which the payment of Subsistence Allowance had been withdrawn. That complaint came to be dismissed by the impugned order dated 26th July 2002 passed by the Industrial Court.
7. The Industrial Court while dismissing the complaint filed by the petitioner has held against him on two counts: (i) The Industrial Court has held that under the provisions of the Industrial Employment (Standing Orders) Act, 1946 if any question arises as to the application or interpretation of standing orders certified under the Act, the employer, workman or Union may refer the question to the Labour Court constituted under the Industrial Disputes Act 1947 and (ii) There should be a limit as regards the period for which Subsistence Allowance may be paid to a workman. Subsistence Allowance is paid to a workman so that he can take part in disciplinary proceedings effectively,but if those proceedings are prolonged by the workman, it could not be said that the employer had taken any steps contrary to Items 9 and 10 of Schedule IV by withdrawing the payment of the Subsistence Allowance. In so far as the finding on jurisdiction is concerned, it does not appear to be clear as to whether that finding has in fact been rendered or whether the statement in paragraph 14 is merely a statement of the submission which was urged before the Industrial Court. Be that as it may, since the question of jurisdiction has been raised before this Court, I have proceeded on the basis that that this was also an issue which was considered by the Industrial Court. The counsel for the respondent in fact urged that the Industrial Court has dealt with the question of jurisdiction and supports the order on that ground.
8. Counsel appearing for the petitioner assails the findings which have been arrived at by the Industrial Court. Counsel urged, relying upon the judgment of the Supreme Court in B.D. Shetty and Ors. v. Ceat Ltd. and Anr. 2002(1) CLT 69, that it is well settled that a workman who has moved a Court of competent jurisdiction in order to assert his rights under Industrial Legislation cannot be regarded as being responsible for a delay in the completion of disciplinary proceedings which is directly attributable to his conduct. Counsel urged that under Section 10-A of the Industrial Employment (Standing Orders) Act, 1946, the Legislature has laid down a mandate for the payment of subsistence Allowance at a specified rate after the expiry of the first 90 days of suspension. It is obligatory for the employer to pay Subsistence Allowance at the rate of 75% of the wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such a workman is not directly attributable to the conduct of the workman. Counsel urged that the judgment of the Supreme Court clearly lays down that where under an order passed by a competent Court the workman has been protected in the course of the disciplinary proceedings that cannot be regarded as a delay which is directly attributable to the conduct of the workman.
9. On the other hand, Counsel appearing for the first respondent submitted that the Industrial Court had no jurisdiction to deal with the complaint instituted by the petitioner since the only remedy which was available to the petitioner was under Sub-section (2) of Section 10-A of the Industrial Employment (Standing Orders) Act, 1946. Furthermore, in so far as the merits of the case are concerned, it was urged on behalf of the first respondent that the judgment of the Supreme Court in Ceat's case (supra), dealt with a situation where a stay had been granted on departmental proceedings during the pendency of a criminal prosecution and it was submitted that, therefore, that judgment was distinguishable.
10. These submissions may now be considered.
11. In order to consider the question as to whether the Industrial Court did in fact have jurisdiction to entertain the complaint which was instituted by the petitioner, it would be at the outset necessary to notice that under Section 5(d) of the MRTU & PULP Act, 1971, the Industrial Court has been vested with the jurisdiction to decide complaints relating to unfair labour practise except unfair labour practices falling in item 1 of Schedule IV. The powers of the Industrial and Labour Courts are stipulated in Section 30 of the Act. Section 30 provides that where a Court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may in its order, issue a declaration to that effect. Clause (b) of Sub-section (1) of Section 30 is significant for the purposes of the present proceedings, because it defines the nature of the judicial powers which the Industrial court or, as the case may be the Labour Court, can exercise upon a finding that an unfair labour practice has been committed. Under Clause (b), the Industrial Court or the Labour Court may:
"(b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act."
Schedule IV of the Act defines unfair labour practices on the part of the employees. The unfair labour practice under Item 9 of Schedule IV is a failure to implement an award, settlement or agreement.
12. Section 10-A of The Industrial Employment (Standing Orders) Act, 1946 provides thus:
"10-A. Payment of subsistence allowance. - (1) Where any workman is suspended by the employer pending, investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance -
(a) at the rate of fifty per cent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and
(b) at the rate of seventy-five per cent 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.
(2) If any dispute arises regarding the subsistence allowance payable to a workman under Sub-section (1), the workman or the employer concerned may refer the dispute to the Labour Court constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situate and the Labour Court to which the dispute and the Labour Court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.
(3) Notwithstanding anything contained in the foregoing provisions of this Section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that state."
13. In order to accept the submission which has been urged on behalf of the first respondent, the Court would essentially have to hold that Sub-section (2) of Section 10-A is an exhaustive code in regard to the resolution of disputes relating to the payment of subsistence allowance to a workman. That Section 10A is not an all encompassing statutory blueprint is apparent from Sub-section (3) which preserves the more beneficial provisions which a State Law provides relating to the payment of subsistence allowance. Undoubtedly Sub-section (2) does provide that if any dispute arises regarding the Subsistence Allowance payable to a workman under Sub-section (1), the workman or the employer concerned may refer the dispute to a Labour Court and that the decision of the Labour Court shall be final and binding on the parties. The learned counsel appearing for the first respondent relied upon the judgment of the Supreme Court in Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant, (1995) II L.L.N. 271. The Supreme court in that case dealt with the provisions of Section 13-A of the Industrial Employment (Standing Orders) Act, 1946 which inter alia provides that if any question arises as to the application or interpretation of the standing orders certified under the Act, any employer, workman or trade union may refer the question to one of the Labour Courts constituted under the Industrial Disputes Act, 1947 for the disposal of such proceeding and the Labour Court shall, after hearing the parties, decide the question. The decision of the Labour Court, it has been provided, shall be final and binding. A Bench of three learned Judges of the Supreme Court adverted to the earlier decisions is that certified standing orders constitute statutory terms and conditions of service. Before the Supreme Court, it was contended that any violation of a standing order would entitle the workman to directly approach the Labour Court under Section 13-A and the Labour Court was empowered to adjudicate upon the dispute and to grant relief as was appropriate in the circumstances of the case. Dealing with the submission, the Supreme Court held thus:
"While we agree that language of Section 13A is not very clear, it cannot certainly be understood as certifying a forum for adjudication of industrial disputes involving the application and/or interpretation of the Standing Orders. That is the function of the Courts and Tribunals constituted under the Industrial Disputes Act. The limited purpose of Section 13A is to provide a forum for determination of any question arising "as to the application or interpretation" of the Certified Standing Orders as such, in case either the employer or the employee entertain a doubt as to their meaning or their applicability. Probably it was thought that a decision of the appointed forum on the said question would itself facilitate the resolution of an industrial dispute, whether existing or apprehended. So far as the Labour Court, Industrial Tribunal or other adjudicatory bodies under the Industrial Disputes Act are concerned, it is agreed on hands and we endorse it that where a dispute is referred to any of them they are undoubtedly competent to go into and decide questions as to the application or interpretation of the Certified Standing Orders in so far as they are necessary for a proper adjudication of the question or dispute referred."
The Supreme Court summarised the principles which emerge from the decisions of the Court in paragraph 35 of the judgment, and amongst the propositions which have been laid down by the Supreme Court, the following would be material for the purposes of the present case:
"(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946, which can be called 'sister enactments' to Industrial Disputes Act and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise recourse to civil Court is open."
14. In the present case, it is, in my view, not possible to accept the submission of the first respondent to the effect that the remedy which has been provided by Sub-section (2) of Section 10-A is exhaustive of the course of action which can be adopted where a dispute regarding the Subsistence Allowance payable to a workman under Sub-section (1) of Section 10-A arises. There is intrinsic material in Sub-section (3) to militate against such a construction. The interpretation suggested by the First Respondent will run counter to the decision of the Supreme Court in the Rajasthan State Road Transport Corporation case, (supra).
15. It is a well settled principle of law that the provisions of the Standing Orders constitute statutory terms and conditions of service. In the present case, the Court is concerned with the substantive provision of Section 10-A which mandates that a particular rate of Subsistence Allowance be allowed to a workman during the pendency of a disciplinary inquiry. The provisions of Section 10-A have to be regarded and treated as constituting a part of the statutory terms and conditions of service of the workman. That being the position, a breach of Section 10-A must be held to implicate a breach of item 9 of Schedule IV of the MRTU & PULP Act, 1971. A failure to implement an award, settlement or agreement constitutes an unfair labour practice under item 9 of Schedule IV.
16. In Sub-section (2) of Section 10-A of the Industrial Employment (Standing Orders) Act, 1946, the Labour Court is empowered to decide a dispute regarding the subsistence allowance payable to a workman under Sub-section (1) of the provision. On the other hand, the powers of the Industrial Court under Section 30(1)(b) of the MRTU & PULP Act, 1971 are much wider in their scope and canvass. The Industrial Court is empowered to direct any person to cease and desist from engaging in an unfair labour practice and to take affirmative action including payment of reasonable compensation to the employee affected by the unfair labour practice, as may in the opinion of the Court be necessary to effectuate the policy of the Act. There is no principle of statutory interpretation to presuppose that the provisions of Sub-section (2) of Section 10-A exclude the applicability of the provisions of the MRTU & PULP Act, 1971. There is neither an express exclusion or an exclusion by necessary intendment. On the contrary, the line of reasoning which has found acceptance in the judgment of the Supreme Court in the Rajasthan State Road Transport Corporation case (supra) would militate against the acceptance of the submission which has been urged by the first respondent. In the circumstances, I am of the view that there is no merit in the contention of the first respondent that the Industrial Court had no jurisdiction to entertain the complaint of unfair labour practice filed by the petitioner herein. In his complaint, the petitioner complained that the first respondent was guilty of an unfair labour practice as defined under items 9 and 10 of Schedule IV. Incidental to that determination, the Industrial Court was entitled to and had the jurisdiction to exercise such powers as are conferred under Section 30(1)(b). The complaint was, therefore, not outside the jurisdiction of the Industrial Court.
17. In so far as the merits of the issue are concerned, the findings of the Industrial Court are summarised in paragraph 15 of the impugned order which reads thus:
"Ultimately, there is some limit for how much period the subsistence allowance would be given. It is given to the workman if he should take part in the disciplinary proceedings effectively, but if the proceeding prolonged (sic) by the workman, then it can not be said that the company had taken any illegal steps and committed the breach of Items 9 & 10 of Schedule IV of the Act. The complainant has not proved that respondents committed unfair labour practice as alleged by him."
18. In my view,these findings which have been arrived at by the Industrial Court are in the teeth of the law laid down by the Supreme Court in Ceat's case (supra).
19. The factual background of the decision of the Supreme Court in Ceat was undoubtedly one where an order of stay was passed by the Labour Court restraining the employer from conducting a domestic inquiry till the completion of a criminal trial. However, the judgment of the Supreme court cannot, in my view, be distinguished merely on the basis of the factual background in which the law was laid down. The Supreme Court had before it the provisions of Section 10-A of the Industrial Employment (Standing Orders) Act, 1946 which fell for consideration. Mr. Justice Shivraj Patil delivering the judgment held that the legislature in Clause (b) of Sub-section (1) of Section 10-A has advisedly used the expression "directly attributable to" the workman. The Supreme Court noted that, as a result, the delay should be directly attributable to the conduct of the workman in the completion of disciplinary proceedings and every kind of delay was not covered by the provision. In that context, the Supreme Court held as follows:
"It appears, reference to the delay directly attributable to the conduct of the workman in the said provision is obviously to the one where the workman unjustifiably, deliberately or designedly drags on or prolongs the domestic inquiry. To put it in other way, a workman cannot be permitted to take advantage of delay caused by himself in the absence of any order passed by a court. If such a delay is also to be taken as covered by Section 10-A(1)(b) it may amount to in a way putting restraint or clog on the exercise of legal right of a workman to approach a court of law out of fear of losing subsistence allowance at the rate of 75%. It is one thing to say that in a given case there should be no stay of disciplinary proceedings. It is another thing to say that in case stay is granted there will be delay in completion of disciplinary proceedings, which is directly attributable to the conduct of a workman. Merely because legal proceedings will be pending in a court or before other authority and they take sometime for disposal, may be inevitably, that itself cannot be the ground to deny subsistence allowance to a workman against a statutory obligation created on the employer under Section 10-A(1)(b)."
Section 10A was enacted to ensure social welfare & security. The interpretation of the provision must advance that object. This judgment of the Supreme Court, in my view, would squarely apply to a case like the present. In the present case, the petitioner moved the Labour Court after he was served a copy of the report of the Inquiry Officer apprehending that his services were about to be terminated unlawfully. Whether or not the petitioner ought to have been granted an order of stay, at that stage, is a separate issue which does not fall for consideration in this proceeding. What does emerge from the proceedings, however, is that initially a statement was made on behalf of the first respondent that the services of the petitioner would not be terminated until 12th March 1997. The protection that was granted to the services of the petitioner was thereafter extended from time to time until 12 October 1998 when the application for the grant of interim relief was rejected by the Labour Court. The petitioner thereafter moved the Industrial Court in revision and on 3rd November 1998, while allowing the revision, the Industrial Court directed the Labour Court to dispose of the main complaint pending which the services of the petitioner were directed not to be terminated. This order of the Industrial Court was not challenged by the first respondent by adopting appropriate proceedings before this Court. Be that as it may, from the facts which have been narrated, it emerges that in the present case the petitioner had adopted remedies open to him under Industrial law for protecting himself against an apprehended termination of his services. The petitioner moved a Competent Court having jurisdiction and his services came to be protected as a result of interim orders passed in those proceedings. In these circumstances, it cannot be said that the delay in the disposal of disciplinary proceedings is directly attributable to the conduct of the petitioner. Not only has the petitioner adopted a remedy under the law which has been made available to him, but as a result of the espousal of that remedy the services of the petitioner have continued to be protected as a result of judicial orders holding the field. The letter of the employer dated 28th November 1998 withdrawing the Subsistence Allowance was almost a backlash to the order of the Industrial Court dated 3rd November 1998 continuing the protection of the services of the workman till the complaint was disposed of by the Labour Court. In the circumstances, I am of the view that the order of the Industrial Court dismissing the complaint of the petitioner is unsustainable. The petitioner was entitled to succeed before the Industrial Court and the rejection of the complaint was improper.
20. In the circumstances, Rule is made absolute accordingly in terms of prayer (a). The impugned order of the Industrial Court dated 26th July 2002 is quashed and set aside. The respondents are directed to pay to the petitioner his Subsistence Allowance with effect from 5th November 1998 within a period of four weeks from today. However, having regard to the facts and circumstances of the case, the hearing of the complaint being Complaint (ULP) No. 125/1997 which has been filed by the petitioner before the Labour Court is expedited. The Respondent shall pay the costs of the proceedings quantified at Rs. 3,000/-.
21. On the request of the learned counsel for the first respondent, the operation of this order shall remain stayed until 14th November 2003 so as to enable the first respondent to espouse its remedies in appeal.
Copy of this order duly authenticated by the Sheristedar/Private Secretary of this Court be supplied to the parties.