Air India Limited, A Company ... vs Raghunath N. Patil And S.C. ...
2003 Latest Caselaw 1143 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard.

2. In all these Petitions, the notices were issued for final disposal of the matters at the admission stage as the issue involved in all these Petitions is a common issue and the same has already been settled by the decision of the Division Bench in Appeal (Lodging) No. 351 of 2003 in Writ Petition No. 813 of 2003 along with various other connected matters delivered on 30th June, 2003. Accordingly, all these Petitions were heard together and are being disposed of by this common judgment.

3. The issue in all these petitions relates to the right of the workmen to claim subsistence allowance during the pendency of the application under Section. 33(2)(b) of the Industrial Disputes Act, 1947, and the procedure to be followed by the Court below while dealing with the application for any such interim relief in that regard during the pendency of such proceedings, and in that regard, the Division Bench in the above referred decision has ruled thus:--

"Broadly the cases in Tribunal could be categorised in three categories. As far as the first category of cases is concerned, they are cases in which a workman is dismissed for misconduct after due inquiry and on scrutiny by the Labour Court or the Tribunal, as the case may be, also the inquiry is found to be valid. In such cases, there would be no justification for providing payment of subsistence allowance to the workmen concerned. The mandate of the statute is to complete the proceedings within a period of three months. If in every case application for interim order is filed and on that application considerable amount of time is spent both before the Tribunal and Labour Court and before the High Court, the legislative mandate of early hearing of the application would be completely defeated. In such cases, the Tribunal would be justified in taking up the main application for approval for hearing. But there are cases in which either the domestic inquiry held by the management is set aside on the ground that it was defective or there was only a facade of an inquiry or there was no inquiry at all. But for the procedure evolved by the decisions of the Court in the Interest of speedy finalisation of the cases in which the workmen were dismissed from service, by requiring the Labour Court or the Tribunal itself to hold a de novo inquiry, the position would have been, the moment it is established that the domestic inquiry is invalid or there was no domestic inquiry at all the penalty imposed would have had to be set aside, but without prejudice to the right of the management to hold a de novo inquiry. In that situation, during the period of de novo inquiry, the management may be asked to give subsistence allowance to the workmen concerned in accordance with the Standing Orders or the rules regulating the condition of service. It is because of the procedure, namely, the holding of domestic inquiry by the Labour Court/Tribunal itself, evolved by the decision of the Court, it has resulted in this situation viz., even as the order of dismissal remains undisturbed, a de novo inquiry is held to find out as to whether dismissal was justified or not. We are of the opinion that if de novo inquiry is ordered to justify the order of dismissal and the matter has been unduly protracted for no fault of the workmen, the Tribunal would be justified in awarding subsistence allowance to the workman in appropriate cases. We, however, hasten to add that the grant of interim relief is not a matter of course and the exercise of such power should be used sparingly and only an deserving cases."

4. The point sought to be raised in these petitions, being already settled by the above referred decision of the Division Bench of this Court, the petitioners are justified in challenging the impugned orders and the same cannot be sustained and are liable to be set aside and the matters are to be remanded to the Industrial Tribunal to dispose of the applications for interim relief under Section 33(2)(b) of the Industrial Disputes Act, 1947, in accordance with the observations made by the Division Bench in the decision hereinabove referred, The issue regarding the relief of subsistence allowance to be decided by the Industrial Tribunal, in accordance with the provisions of law and bearing in mind the observations made by the Division Bench in the decision hereinabove referred, as expeditiously as possible and after, hearing the parties, The petitions are accordingly disposed of with no order as to costs.