Binod Kumar vs The State Of Jharkhand
2022 Latest Caselaw 4945 Jhar

                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    W.P.(L) No.1866 of 2020
                                          ....

             Binod Kumar                                                   ....    Petitioner
                                          Versus
            1. The State of Jharkhand

2. The Deputy Labour Commissioner, Govt. of Jharkhand, Sitaramdera, Jamshedpur, East Singhbhum-831003

3. Tata Steel Ltd., Jamshedpur through its Managing Director, PO & PS Bistupur, Jamshedpur, East Singhbhum-831001

4. The Managing Director, Tata Steel Ltd. PO & PS Bistupur, Jamshedpur, East Singhbhum-831001 .... Respondents ....

             CORAM:          HON'BLE MR. JUSTICE RAJESH KUMAR

                For the Petitioner           : Mr. Abdul Kalam Rashidi, Adv.
                                               Md. Azam, Adv.
                For the State                : Mr. Anshuman Kumar, A.C. to S.C. (L&C) II
                For the Respondent Nos.3 & 4 : Mr. G.M.Mishra, Adv.
                                              ....

14/07.12.2022             Heard learned counsel for the petitioner and learned counsel for the
                respondents.

This writ petition has been filed for issuance of an appropriate order and for quashing the order dated 03.03.2020 passed in Misc. Case No.8 of 2017 in the court of Presiding Officer (Labour Court), Jamshedpur in pending to Industrial Dispute Case No.18 of 2016.

It appears that the petitioner has been employed under the respondent as Junior Supervisor Trainee w.e.f. 23.03.1992 and thereafter he continued in the service and has been granted promotion also. He has been charge-sheeted on 14.07.2015 and subsequently memo has been issued on 24.07.2015. On 21.07.2015, the petitioner has submitted his explanation. Thereafter, enquiry has been initiated which has been concluded on 25.01.2016. Charge has been found proved and accordingly after following the procedure, as claimed by the management, the petitioner has been terminated from the services w.e.f. 01.04.2016. Thereafter, the industrial dispute has raised and finally it has been referred for adjudication under Section 10 of the I.D. Act being Industrial Dispute Case No.18 of 2016.

It appears that a petition has been filed being Misc. Case No.8 of 2017 before the Labour Court, after it has found that the enquiry was not fair and proper and de novo enquiry has been ordered.

By above petition, the petitioner workman has claimed subsistence allowance during the pendency of the proceeding.

It has been argued by the learned counsel for the petitioner that the enquiry has been found not fair and proper and as such he is entitled for subsistence allowance. For this purpose, he has relied upon the judgment of the Hon'ble Apex Court reported in 2010 7 SCC 635 in the case of Vijaya Bank Vrs. Shyamal Kumar Lodh.

Referring to the above judgment, it has been submitted that in that case it has been held that the concerned employee is entitled for subsistence allowance.

On the other hand, learned counsel for the respondent-management has opposed the prayer and submission has been advanced by referring to the judgment of the Hon'ble Bombay High Court passed in Writ Petition No.2606 of 2010 in the case of M/s Mumbai Cricket Association Vrs. Pramod G. Shinde that once the employer employee relation gets terminated then there is no question of subsistence allowance. Even, if the Tribunal uphelds the termination, it has to relate back to the date of dismissal passed by the employer.

The judgment relied by the learned counsel for the petitioner is not applicable in the present case as it was related to merely proceeding and in that case the proceeding was pending before the employer itself not before the Tribunal.

Having heard learned counsel for the parties and from perusal of the record, it appears that there was an employer employee relation which is not in dispute. Further the concerned employee has been terminated and that termination order is under scrutiny of the concerned Labour Court in the pending proceeding. The concerned Labour Court has declared the enquiry not fair and proper and as such de novo enquiry has been ordered. Both the parties have been asked to led evidence.

The claim of the petitioner with regard to the subsistence allowance during pendency of the proceeding is concerned, the case has been well considered by the Hon'ble Bombay High Court as relied upon by the learned counsel for the petitioner.

Relevant paragraph Nos.26, 28, 29 of the relied judgment are quoted hereinbelow:-

26. Mr.Pathak submits that if the orders of the present nature are set aside, then, employers may delay the enquiry or prolong or protract it endlessly. In such a situation, a employee who is already dismissed from services will be seriously prejudiced as grave hardship and irreparable loss will be caused to him. Therefore, the Court should extend the principle laid down in the Supreme Court's decisions referred to above and read into the same an implied power of the WP2606-10 Labour Court to grant such a relief. In this behalf he has relied upon the decision of the Division Bench of this Court in the case of Air India Limited (supra). Far from assisting Mr.Pathak, this decision is re-enforcing the conclusion arrived at by me. The question which arose for determination of the Division Bench is whether dismissed employee against whom an application is filed by the employer under section 33(2)(b) of Industrial Disputes Act, 1947 seeking approval to the imposition of the penalty from dismissal of services, is entitled to subsistence allowance pending the final disposal of the application.

The Division Bench had before it a case arising out of an application for approval made by the employer post termination of the services of the employee. The Division Bench was considering the ambit and scope of section 33(2)(b) which appears in Chapter VII of the Industrial Disputes Act, 1947. After referring to the object of the said provision in para 5, the Division Bench noted distinction between section 33(1) and section 33(2). The Division Bench was dealing with the ambit and scope of section 33(2)(b) and after referring to the Supreme Court decisions in the field, it concluded that there is a WP2606- 10 distinction between section 33(1) and section 33(2) and section 33(3).

In the former cases previous permission of the authority concerned has to be obtained before any action is taken against the workman whereas under section 33(2)(b) only approval to an action already taken is required to be sought. It is in that context it referred to the case of Fakirbhai Fulabhai Solanki (supra) and made the observations made in paragraphs 16 and 17 which are relied upon by Mr.Pathak.

But what Mr.Pathak failed to note is the conclusion in paragraph 20 of the decision in the case of Air India Ltd (supra) which reads thus:

"20. 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 workmen concerned. The mandate of the statute is to WP2606- 10 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 WP2606-10 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."

28. In the light of the observations of the Hon'ble Supreme Court in three Judges Bench decision referred by me above and particularly the observations in paragraph 15, it is clear that the Labour Court has WP2606-10 ample powers, if it finds that the employee is dragged into endless or futile litigation. If the employer is unable to prove the charges of misconduct even if of serious nature, by adducing additional evidence before the Court, then, in conclusive and final order the Labour Court while granting appropriate relief to the workman it may also direct payment of backwages and take care of the victimisation of the employee by the employer as held by the Hon'ble Supreme Court.

29. Therefore, it is not as if the hardship to the employee has not been taken note of by the Hon'ble Supreme Court or has gone completely unnoticed till date.

Thus, the issue has been settled by the Hon'ble Bombay High Court relying upon the judgment of the Hon'ble Apex Court to the effect that no subsistence allowance is payable in a proceeding pending before a Labour Court or Tribunal under Section 10 of the I.D. Act.

So far as the judgment relied upon by the learned counsel for the petitioner is concerned that was with regard to the payment of subsistence allowance under Section 10A of the I.D. Act. The Hon'ble Apex Court has opined in the above judgment that merely a wrong section has been quoted that will not vitiate the proceeding. If the Labour Court has a jurisdiction to entertain an application under Section 10 A of the I.D. Act then merely the fact that it has been filed under Section 33 (C) (2) of the I.D. Act will not vitiate the proceeding. In that case the claim has been raised, the claim was with regard to the subsistence allowance pending departmental enquiry before the employer. While in the present case, the claim is for subsistence allowance which is pending enquiry before the Labour Court.

Thus, in view of above discussion, it is clear that employee is entitled for subsistence allowance only in the case if the proceeding is pending before the employer and not for the proceeding pending before the Labour Court or Tribunal under Section 10 of the I.D. Act.

Since, in the present proceeding Section 10 of the I.D. Act is under consideration and accordingly this Court is not discussing the other section of the I.D. Act.

In view of above observation and reasons given, this Court finds no merit in the present writ petition accordingly the same is hereby dismissed.

However, the concerned Labour Court is directed to concluded the proceeding as early as possible preferably within four months from the date of receipt/production of a copy of this order.

(Rajesh Kumar, J.) Shahid/