M/S Dhawan Engineering Works vs P. Balkrishna & Ors
2010 Latest Caselaw 2167 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   WP(C) 3909/2004

%                                                  Date of decision: 26th April, 2010

M/S DHAWAN ENGINEERING WORKS                ..... PETITIONER
                 Through: Mr. Vinay Sabharwal & Ms. Neha
                          Sabharwal, Advocates

                                        Versus
P. BALKRISHNA & ORS.                         ..... RESPONDENTS
                   Through: Mr. H.K. Chaturvedi, Advocate for
                            Respondents 1 & 2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                  YES

2.        To be referred to the reporter or not?                  YES

3.        Whether the judgment should be reported                 YES
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner employer impugns the order dated 25th July, 2002 of the

Labour Court holding the enquiry conducted by the petitioner employer prior to

removal of the respondents no.1 & 2 workmen from employment to be bad only

for the reason of the petitioner employer having not made payment of subsistence

allowance month wise to the respondents workmen. The petitioner employer in

this petition sought the interim relief of stay of further proceedings before the

Labour Court. On 1st February, 2005, the counsel for the respondents workmen

agreed that further proceedings before the Labour Court shall be got adjourned.

Though there are no further orders in this regard but both counsels inform that

the proceedings before the Labour Court remain stayed.

2. Though the respondents workmen had before the Labour Court challenged

the enquiry preceding their dismissal on other grounds also but the Labour Court

has held against the respondents workmen on all the other grounds. No

grievance with respect to the said findings has been made by the respondents

workmen before this Court either. Thus, the only question is whether the order

of the Labour Court holding the enquiry to be vitiated on the ground of non-

payment of subsistence allowance regularly i.e. month wise requires any

interference.

3. However, before considering the aforesaid question, a preliminary

objection of the respondents workmen needs to be considered. They contend that

the writ petition at this stage is not maintainable. It is there case that a writ

petition is maintainable only against the award of the Labour Court and not

against a decision of the Labour Court on a preliminary issue. It is contended

that the petitioner employer ought to participate in the further proceedings before

the Labour Court by, if choosing to, leading evidence to establish misconduct on

the basis whereof the respondents workmen are sought to be removed from

employment before the Labour Court and if the final award is against the

petitioner employer, then the petitioner employer in challenge thereto can also

challenge the order holding the enquiry to be vitiated for non-payment regularly

of subsistence allowance. Reliance in this regard is placed on The Cooper

Engineering Limited Vs. Shri P.P. Mundhe 1975 (2) SCC 661 where the

Supreme Court held that when a case of dismissal or discharge of an employee is

referred for industrial adjudication, the Labour court should first decide as a

preliminary issue whether the domestic enquiry has violated the principles of

natural justice and on that decision being pronounced, it will be for the

management to decide whether it will adduce any evidence before the Labour

Court or not. It was further clarified that there will be no justification for any

party to stall the final adjudication of the dispute by the Labour Court by

questioning its decision with regard to the preliminary issue when the matter, if

worthy, can be agitated even after the final award. It was further held that it will

be legitimate for the High Court to refuse to intervene at that stage. Such

observations were made to ensure that there is no undue delay in industrial

adjudication.

4. Per contra, the counsel for the petitioner employer has contended that the

observations aforesaid of the Supreme Court are obiter and not binding. It is

contended that the question whether a finding on the preliminary issue of the

validity of the enquiry can be challenged or not did not fall for adjudication in

The Cooper Engineering Limited (supra); the observation to that effect came to

be made only because of the unusual delay which had been occasioned in that

case. The counsel contends that if the preliminary issue is decided in favour of

the employer, there would be no need for the employer to again prove the

misconduct before the Labour Court. It is also argued that if the challenge to the

preliminary issue / finding on the validity of the enquiry is not permitted to be

made and the employer is compelled to prove the misconduct before the Labour

Court, the possibility of the Labour Court on the basis of the evidence adduced

before it, coming to a conclusion other than that reached by the Enquiry Officer

and the Disciplinary Authority cannot be ruled out. It is contended that in such a

situation, the High Court at the time of final hearing is likely to believe the

conclusion reached by the Labour Court on the aspect of misconduct rather than

the conclusion reached by the Enquiry Officer; it is urged that adopting such

course would cause prejudice and will deprive the employer in the circumstances

of real opportunity to challenge the finding of the Labour Court on the

preliminary issue.

5. As per the law laid down in Delhi Cloth & General Mills Company Vs.

Ludh Budh Singh AIR 1972 SC 1031, if the Industrial Tribunal / Labour Court

is satisfied that the enquiry proceedings have been held properly and are valid,

the question of considering the evidence adduced before it on merits no longer

survives. It is only when the Tribunal holds that the enquiry proceedings have

not been properly held, that it derives jurisdiction to deal with the merits of the

dispute and in such a case it has to consider the evidence adduced before it by the

employer and decide the matter on the basis of such evidence. Thus if the finding

of the Labour Court / Industrial Tribunal on the issue of validity of the enquiry is

to be in the favour of the employer, nothing further remains for the employer to

prove before the Labour Court. It thus cannot be said that the order of the

Labour Court on such an issue is of a nature where irrespective of the decision,

further proceedings are necessary before the Labour Court. If the decision of the

Labour Court on the preliminary issue is to be in favour of the employer, it is

virtually the end of the proceedings before the Labour court, even if the formal

making of the award remains. In the opinion of this Court there can thus be no

general rule as to whether a challenge before this Court to such an order lies or

not. The Court may, depending upon the facts and circumstances, decide to

entertain the petition at that stage only or refuse to exercise discretion reserving

the right of the employer to challenge the said order along with the final award.

In the present case, this petition has remained pending for the last six years and at

this stage the petitioner employer cannot be non suited on this ground. The

stage, if at all, for that was at the time of admitting / issuing notice of the petition.

6. That brings me to the merits of the controversy i.e. whether the enquiry in

the present case is vitiated by non-payment regularly of the subsistence

allowance. It is not as if the subsistence allowance was not paid. The

subsistence allowance was however paid for five to six months together before

the Labour Office and for two to three months together before the Enquiry

Officer. I have enquired from both the counsels as to whether there are any rules

for payment of subsistence allowance i.e. whether the workman is supposed to go

to the employer to collect the subsistence allowance or it is the duty of the

employer to, irrespective of whether the workman comes to collect the same or

not, tender the same to the workman. Neither counsel has been able to assist in

that regard.

7. I find that the Supreme Court in State of Punjab Vs. Dharam Singh AIR

1997 SC 1905 has held that even during the period of suspension an employee is

required to attend the roll call and be available to the authorities. It was held that

it is the duty of the employee to come to the office and collect subsistence

allowance and if it is not paid, make necessary representation to the higher

authorities and if grievance is not redressed, to the appropriate forum seeking

payment. Though the said observations were made in relation to police officers

and the Punjab Police Rules but they appear to be of general application. A

workman by being suspended does not cease to be in the employment of the

employer. The relationship of employer and employee subsists. The only effect

of suspension is that the employer has no obligation to give work to the

workman. Just like a workman goes to the employer to collect the wages so has

the workman to go to the employer to collect the subsistence allowance, unless

there are circumstances to the contrary. The mere act of suspension does not

oblige the employer to treat the workman as a creditor for payment of

subsistence allowance. In U.P. State Textile Corporation Ltd. Vs. P.C.

Chaturvedi AIR 2006 SC 87, though again in the context of the rules of the

employer in that case, it was held that where the employee did not attend office

pursuant to the order of suspension, non-payment of subsistence allowance is of

no consequence. The Division Bench of this Court in Shri Hawa Singh Vs.

Union of India 120 (2005) DLT 361, in the facts of that case also noted that the

employee was coming to the office personally to collect the subsistence

allowance. The norm thus appears to be for the employee / workman to go to the

place of work and collect the subsistence allowance. The Division Bench of the

Allahabad High Court in Hem Raj Payasi Vs. Collector MANU/UP/ 1180/2008

also observed that subsistence allowance was to be collected by the employee

from the place to which he had been transferred and it was further held that since

the employee failed to join at the place of transfer, the employer could not be

blamed for non-payment of the subsistence allowance.

8. In the present case, there is no averment whatsoever of the respondents

workmen that they went to the place of work to collect the subsistence allowance

or that the same was refused to them. There is no such finding also of the Labour

Court. In view of the legal position as noted above, on this ground alone the

grievance of the respondents workmen of non-payment of subsistence allowance

fails and consequently the order of the Labour Court cannot be sustained.

9. Be that as it may, the counsels have argued the matter on another

platform. The counsel for the petitioner relying on Municipal Board, Amroha

Vs. U.P. Public Services Tribunal 2001 (90) FLR 385, Banshidhar Panigrahi

Vs. State of Orissa 1975 (2) SLR 725, has contended that for enquiry to be

vitiated on the ground of non-payment of subsistence allowance, some prejudice

has to be established. No prejudice having been suffered by the respondents

workmen by non-payment regularly of the subsistence allowance stands

established in the present case. It is contended that the Labour Court has also not

found any prejudice and thus the finding of the Labour Court, proceeding on the

premise that by mere non-payment of subsistence allowance enquiry is vitiated,

cannot be sustained.

10. Per contra, the counsel for the respondents workmen has contended that

the petitioner employer in the present case inspite of the application of the

respondents workmen and direction of the Labour Court to produce evidence to

show as to when subsistence allowance was paid to the respondents workmen,

failed to produce the same and this is what led the Labour Court to decide against

the petitioner employer. Relying on Jagdamba Prasad Shukla Vs. State of U.P.

AIR 2000 SC 2806, Bharat Petroleum Corporation Ltd. Vs. Ramnath Jagdish

Tiwari 1995 LLR 259 (Bombay) & Management of Sylvania Laxman Ltd. Vs.

Lt. Governor 1985 (51) FLR 81 (Delhi), it is contended that a workman with no

means/resources and earning meager salary necessarily suffers on non-payment

of subsistence allowance and prejudice is writ large by non-payment and there

was no need for the respondents workmen to plead or prove any prejudice or for

the Labour Court to return a finding thereon. It is also contended that the finding

of the Labour Court of subsistence allowance having not been paid within time

and of the respondents workmen having suffered prejudice there-from is a

finding of fact and with respect whereto writ petition cannot be entertained.

11. I am unable to hold the law to be as contended by the counsel for the

respondents workmen. None of the judgments have held the mere factum of

non-payment of subsistence allowance to be vitiating the enquiry. In each case

the courts have proceeded to determine the prejudice if any caused by such

payment. The facts in the present case are completely silent in this regard. The

argument of the counsel for the respondents workmen, of this Court in exercise

of writ jurisdiction not interfering with findings of fact, is also not tenable. The

High Court certainly has the power to interfere with the findings, even if of fact,

by the Labour Court if found to be without any evidence on record. The same is

the position in the present case. The Labour Court has proceeded as if the test is

only to determine whether the subsistence allowance has been paid or not and

has not even applied the test of prejudice.

12. I have enquired from the counsel for the respondents workmen whether

the respondents workmen at any time demanded the subsistence allowance or

took a stand before the Enquiry Officer either personally or by writing that owing

to non-payment of subsistence allowance they were prejudiced or not in a

position to participate in the enquiry. The answer is in the negative.

13. The order of the Labour Court in so far as holding the enquiry to be

vitiated for the reason of non-payment of subsistence allowance regularly is thus

set aside / quashed. The Labour Court otherwise has held the enquiry to be valid.

Though in view of the aforesaid, axiomatic conclusion is of decision of the

dispute / reference in favour of the petitioner employer but the counsel for the

respondents workmen has contended that without the Labour Court having

passed an award, this Court cannot pass that order. Accordingly, the matter is

remanded to the Labour Court for answering the reference in the light of the

above.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 26th April, 2010 gsr