Air India Limited vs A.J. Texeria And Anr.
2003 Latest Caselaw 1054 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Rule. By consent, the rule is made returnable forthwith.

2. The short point for consideration which arises in the matter is as to whether the Tribunal could have directed the payment of subsistence allowance during the pendency and till the disposal of the approval application. In that regard, undisputedly, the Division Bench in an unreported decision in the matter of Air India Limited v. Mr. Libio Francisco Colaco & another, Appeal Stamp No. 351 of 2003, along with other appeals and writ petitions delivered on 30-6-2003, has clearly held that:---

"Broadly the cases in the 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 workman 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 the High Court, the legislative mandate or 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 in deserving cases."

The law on the point being well-settled, it is clear that unless the Tribunal comes to a finding that the domestic inquiry was either a total farce or that it was not just and fair or it was contrary to the provisions of law, the question of directing the employer to pay the subsistence allowance to the employee during the pendency of the proceedings for approval under the section 33(2)(b) of the Industrial Disputes Act, 1947 does not arise at all. In the circumstances, it is necessary for the Tribunal to pass appropriate order, bearing in mind the ruling of the Division Bench quoted above, and hence the impugned order cannot be sustained and is liable to be set aside.

3. Accordingly, the petition succeeds. The impugned order is hereby quashed and set aside. The matter is remanded to dispose of the approval application as expeditiously as possible and in any case within a period of four months from the date of receipt of the writ of this Court. The Tribunal should file compliance report immediately after the expiry of the period of four months. The rule is made absolute accordingly with no order as to costs.