The Poona Christian Medical ... vs Prabhakar Namdeo Tambe
2016 Latest Caselaw 1439 Bom

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              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                          
                             WRIT PETITION NO.2951 OF 2016

    The Poona Christian Medical Association,
    Jalna Mission Hospital, Tq. and Dist.Jalna,




                                                         
                                                                      PETITIONER
    Through the Medical Superintendent
    VERSUS 
    Prabhakar S/o Namdeo Tambe,                                       RESPONDENT

Age-56 years, Occu-Service, R/o Kranti Nagar, Tq. and Dist. Jalna

Mr.T.K.Prabhakaran h/f Mr.A.N.Mundada, Advocate for the petitioner.

Mr.M.M.Kamble, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 12/04/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The issue raised in this petition is with regard to the

interference of the Industrial Court in an order of suspension which

has been issued by the employer under Standing Over 25(5) of the

Model Standing Orders, pending disciplinary proceedings.

3. The petitioner/Management is aggrieved by the judgment and

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order dated 15/02/2016 by which Complaint (ULP) No.33/2014 filed

by the respondent/employee has been partly allowed and the

suspension order dated 07/06/2014 has been quashed and set aside.

4. Mr.Prabhakaran, learned Advocate for the Management

submits that a charge sheet-cum-show cause notice had been issued

to the respondent on 27/09/2015. After considering his reply,

disciplinary proceedings in the nature of a domestic enquiry under

the Model Standing Orders has been initiated. Owing to the order of

suspension dated 07/06/2014, the respondent is paid subsistence

allowance in accordance with standing order 25(5).

5. He submits that the Industrial Court has delivered the

impugned order without considering the effect of Standing Order

25(5) and Standing Order 25(5-A). By the impugned judgment,

reliance is placed upon the judgment of the Hon'ble Apex Court in

the matter of Ajay Kumar Choudhary Vs. Union of India, [

7 SCC

291], without considering the fact that the said judgment of the

Hon'ble Apex Court is with regard to speedy trial in criminal cases

and has nothing to do with the Model Standing Orders framed under

the Industrial Employment (Bombay) Rules.

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6. He further submits that the Industrial Court, by its conclusion

in paragraph 23 of the impugned judgment has concluded that "The

enquiry is not concluded in three months. It amounts to unfair labour

practice. Enquiry cannot be prolonged in the absence of written order

of the Enquiry Officer. The respondent can be said to be indulged in

unfair labour practice. The suspension order is passed upto pendency

of enquiry. Such type of suspension order is nothing but malafide act

of the respondent. It is also illegal act. This Court, therefore, is of the

view that the complainant succeeded in proving the unfair labour

practice under Item 9 of Schedule IV of the Act. Still, to have some

time in the form of opportunity to the respondent to conclude the

enquiry within a month, it will be just and proper to direct the

respondent to allow the complainant to resume on duty within one

month from passing of this order."

7. Mr.Prabhakaran, therefore, submits that the Industrial Court

has exercised jurisdiction not vested in it by law and has lost sight of

the fact that an employer can suspend an employee pending

disciplinary action subject to the obligation to pay suspension

allowance till the suspension lasts.

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8. Mr,Kamble, learned Advocate appearing on behalf of the sole

respondent has strenuously attempted to defend the judgment.

Contention is that the respondent is the President of a Union. The

suspension order is malafide and defamatory. There is no reason to

suspend the respondent but for the fact that the employer desires to

keep the respondent out of the premises.

9.

He further submits that the suspension is aimed at weakening

the respondent and for disintegrating the Union. The enquiry is

being unnecessarily prolonged. The Hon'ble Supreme Court in the

matter of Ajay Kumar Choudhary (supra) has concluded that the

suspension should not be continued beyond 3 months. The enquiry

is conducted beyond 3 months and therefore the suspension as well

as the enquiry deserve to be quashed and set aside.

10. He relies upon the affidavit in reply filed by the respondent in

support of his contention.

11. I have considered the submissions of the learned Advocates

and have gone through the affidavit in reply filed by the respondent.

12. It is not in dispute that the complaint filed by the respondent

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under the MRTU and PULP Act, 1971 is for challenging the

suspension order by invoking Item 9 of Schedule IV of the Act. Item

9 is with regard to the failure to implement a settlement, agreement

or an award. As such, the Industrial Court could have allowed the

complaint only if it was to come to a conclusion that an act

committed by the petitioner/Management is covered by Item 9 of

Schedule IV.

13. Standing Order 25(5) and 25(5-A) read as under :-

"25(5) A workman against whom any action is proposed to be taken under sub- clauses (b), (c) or (d) of clause (1) may be suspended pending the inquiry or for the period, if any,

allowed to him for giving his explanation. The order of

suspension may take effect immediately on its communication to the workman.

(5-A) Subject to the provisions of the Payment of Wages Act, 1936 a workman who is placed under suspension under sub- clause (5) shall, during the period of such suspension, be paid a

subsistence allowance at the following rates namely :-

(i) For the first ninety days of the suspension period subsistence allowance to be paid per month shall be equal to one-half of basic wages, dearness allowances and other compensatory allowances to which the workman would have

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been entitled if he were on leave with wages.

(ii) If the enquiry gets prolonged and the workman continues to be under suspension for a period exceeding ninety days, the subsistence allowance to be paid per month

for a further period of ninety days shall be equal to three- fourths of such basic wages, dearness allowance and other compensatory allowances.

(iii) If the enquiry is not completed within a period for 180 days, the workman shall be paid basic wages, dearness

allowance and other compensatory allowance in full as subsistence allowance to be paid per month until such time as the inquiry is finally concluded.

Provided that, where the findings of the Inquiry Officer show that such inquiry is prolonged beyond a period of 90 days, or as the case may be 180 days, for reasons directly

attributable to the workman, the subsistence allowance to be paid per month shall for the period exceeding 90 days or, as the case may be 180 days, shall be reduced to one-half of such basic wages, dearness allowance and other compensatory

allowances.

(iv) If as result of the inquiry held or explanation tendered, it is decided not to take any action against the workman under clause (1) the workman shall be deemed to have been on duty and shall be entitled to full wages minus such subsistence

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allowance as he may have already drawn and to all other privileges for the full period of suspension."

14. It is, therefore, apparent that an employer can suspend an

employee pending disciplinary proceedings subject to the strict

compliance of Standing Order 25(5-A) in the nature of payment of

subsistence allowance. For the first 90 days, the suspended employee

is entitled for 50% of the wages which he would have normally earned

while on duty. For the second phase of 90 days, he is entitled for

75% of the wages. If the suspension extends beyond 180 days, he is

entitled to 100% wages unless the Enquiry Officer passes an order in

the enquiry that the enquiry is getting delayed on account of the

dealing tactics of the employee. If such an order is passed, the

subsistence allowance can be reduced as per the prescription of the

Model Standing Order.

15. In the instant case, the Industrial Court has not arrived at a

conclusion that the employer has violated Standing Order 25(5) or

25(5-A). The reproduced portion of the impugned judgment as above

indicates that the Industrial Court has misdirected itself. So also,

the view taken by the Hon'ble Apex Court in the matter of Ajay

Kumar Choudhary (supra) is with regard to the issuance of a charge

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sheet in criminal proceedings and the expeditious and speedy trial in

criminal cases. In the given facts of the case, the Government was

directed not to continue the suspension beyond 3 months if within

the said period the memorandum of charges/charge sheet is not

served upon the delinquent Officer. The issue of Standing Order

25(5) and 25(5-A) was not before the Hon'ble Supreme Court.

16.

It is evident from Standing Order 25(5-A) that the suspension

order can continue beyond 3 months. So also it could extend beyond

180 days following which the employee would be entitled for 100%

wages as suspension allowance.

17. Mr.Kamble has further argued that because the enquiry has

extended beyond 3 months, the same being impermissible, the

enquiry, therefore, deserves to be quashed and set aside. This issue

is no longer res-integra.

18. This Court, by its judgment dated 29/11/2013, in the matter of

Bapu Parwati Urmude Vs.Premier Industries, 2014(5) Mh.L.J. 130 =

2014(4) All M.R.11 has dealt with the effect of the Standing Orders

and especially Standing Order 25(4), (5) and (5-A). It has been

concluded that merely because the enquiry is extended beyond 3

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months would not render the enquiry a nullity. In fact, the law

intends that the enquiry should be completed by giving a reasonable

and fair opportunity of hearing to the delinquent and should not be

concluded within 3 months in undue haste. The submission of

Mr.Kamble is, therefore, fallacious.

19. During the course of the hearing of this matter, Mr.Kamble has

taken instructions from the respondent/employee and makes a

statement that he would fully co-operate in participating in the

enquiry in order to enable the enquiry to be concluded within 3

months from the next date of hearing. He submits that the

respondent is assisted by an Advocate as his defence representative.

Mr.Prabhakaran makes a statement that if the respondent co-

operates, the enquiry could be concluded within 3 months. The

Management witness is kept waiting for cross examination since the

respondent has sought adjournment on two occasions on the ground

that his Advocate is busy.

20. In the light of the above, this petition is allowed. The

judgment and order dated 15/02/2016 delivered by the Industrial

Court, Jalna is quashed and set aside. Complaint (ULP) No.33/2014

stands dismissed. Having noted the statements of the learned

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Advocates as have been recorded on instructions, both the litigating

sides shall endeavour to have the enquiry concluded within 3 (three)

months from today. In the event, some more time is required, the

Enquiry Officer shall accordingly record the reasons and shall extend

the time to ensure that the enquiry is conducted in due adherence to

the principles of natural justice.

21.

Rule is made absolute in the above terms.

( RAVINDRA V. GHUGE, J.)

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