Bombay High Court
Automotive Manufacturers Limited vs Member on 17 February, 2009
Author: J.H.Bhatia
Bench: J.H.Bhatia
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO.2022 OF 2008.
PETITIONER: Automotive Manufacturers Limited,
A Company incorporated and registered
under the Companies Act, 1956, having
its registered office at Mumbai and itself
Branch office at 574, Kamptee Road,
Nagpur - 4400 26, through its Branch
Manager.
..VERSUS..
RESPONDENTS: 1. Member, Industrial Court,
Nagpur.
2. Smt.Sweety Aranha,
aged about 47 years,
r/o D-23, Shubham Apartments,
Byramji Town, Nagpur.
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Mr.H.V.Thakur, Adv. for the petitioner.
Mrs.A.R.Taiwade, Adv. for respondent no.1.
Mr.M.V.Mohokar, Adv. for respondent no.2
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2
WRIT PETITION NO.2904 OF 2008.
PETITIONER: Smt.Sweety Aranha,
aged about 47 years, Occu: under
suspension, r/o D-2, Shubham Apartment,
Bairamji Town, Nagpur.
..VERSUS..
RESPONDENT: M/s Automotive Manufacturers Ltd.,
Nagpur Bench, through its Branch Manager,
Kamptee Road, Nagpur.
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Mr.M.V.Mohokar, Adv. for the petitioner.
Mr.S.V.Bhutada, Adv. for the respondent.
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Coram: J.H.BHATIA,J.
Dated : 17th February 2009.
ORAL JUDGMENT :
1. In both the matters, Rule. Rule is made returnable forthwith. With consent of the parties the matters are taken for final hearing immediately.
2. Heard the learned counsel for the parties.
::: Downloaded on - 09/06/2013 14:21:28 ::: 33. These are two counter petitions arising out of the order passed by the Industrial court on 11th April, 2008 in Complaint ULPA No.1032 of 1993. One Petition is filed by the employer/Management of the Automotive Manufacturers Ltd. and second petition is filed by employee - Smt.Sweety Aranha.
3A.
Admitted facts are that the employee was initially appointed as telephone operator and her services were confirmed. Thereafter she was posted as a Assistant Dispatch Clerk. In September, 1990, two employees of this employer had died and their dead bodies were in the mortuary of the Government Medical College and Hospital, Nagpur. Mr.Kalantari - Manager of the employer had been there. The employee was also present there. According to the management, the employee assaulted Mr.Kalantri and on his report an F.I.R. was registered and she was also prosecuted. On 26/9/1990, the Management issued a charge-sheet to the concerned employee in respect of the assault on the Manager Mr.Kalantari. The employee filed Regular Civil Suit No.2443 of 1990 for quashing the domestic ::: Downloaded on - 09/06/2013 14:21:28 ::: 4 enquiry. However, that suit came to be dismissed on 9/7/1993, for want of jurisdiction. After that, the employee filed Complaint ULPA No.62 of 1993 for 100% subsistence allowance, as suspension had continued beyond the period of six months. Thereafter, the management began to pay suspension allowance at the rate of Rs.1165/- per month from 1993 onwards. The employee thereafter filed ULPA No.1032/1993, challenging the validity of the charge-
sheet, suspension and the enquiry. On 26/8/1993, the Industrial Court granted interim stay to the enquiry. That order was challenged by the management in Writ Petition No.2894 of 1993 and the High Court by order dated 22/10/1993 stayed the order passed by the Industrial Court and permitted the Management to proceed with the enquiry. It may be noted that complaint ULPA No.1032 of 1993 whereby, the employee had sought to quash the charge-sheet and the enquiry and also for getting 100% subsistence allowance at the revised rate of salary, came to be partly allowed only in respect of the subsistence allowance but was dismissed about prayer to quash the charge-sheet and the departmental enquiry. That order has been ::: Downloaded on - 09/06/2013 14:21:28 ::: 5 challenged by the management, as it is aggrieved by the direction to pay 100% subsistence allowance on the basis of the revised pay scale.
The employee has challenged the impugned order to the extent of dismissal of her complaint seeking to quash the charge-sheet and the enquiry.
4. It will be convenient to deal with the question of quashing the proceedings first. The learned counsel for the employee vehemently contended that the incident, on the basis of which the enquiry has been commenced, had not taken place within the premises of the factory and therefore, it cannot be said that there was violation or breach of standing order. Secondly, it is contended that inspite of the fact that more than 18 years have passed after the incident, the enquiry has not been completed for which the management itself is responsible and therefore, it will not be in the interest of justice to continue this enquiry. Thirdly, he contended that the employee was also prosecuted for the same charges on the basis of the report lodged by Mr.Kalantari and she has been acquitted and therefore, there is no ::: Downloaded on - 09/06/2013 14:21:28 ::: 6 justification to continue this enquiry. All these contentions have been refuted by the learned counsel on behalf of the management. Learned counsel for the management contended that it is well settled position of law that inspite of acquittal in the criminal case, the management can hold the departmental enquiry because the procedure and standard of proof in the criminal case and the domestic enquiry are different. He further contended that the employee had assaulted the Manager with shoe and also otherwise alleging that he was responsible for death of the two employees of the company in the said accident and this act of the employee was subversive of the discipline in the premises of the factory. According to him, if the effect of the said act of the employee is felt within the premises, that amounts to breach of the certain Standing Orders and the management is within its rights to hold the enquiry. He also contended that the employee herself was responsible for the delays for most of the time and therefore, she cannot be allowed to get benefit of her foully.
5. The learned counsel for the parties have taken me though ::: Downloaded on - 09/06/2013 14:21:28 ::: 7 the relevant documents, the impugned order, several authorities of the Supreme Courts and this court, in support of their respective contentions. On perusal of the charge-sheet issued on 26th September, 1990, it appears that the employee was charged that on 9/9/1990 at about 10 a.m. in presence of several persons at the mortuary department of Government College and Hospital, she had threatened the branch manager Mr.Kalantari alleging that he was responsible for the accident resulting in death of the Works Manager and Deputy Works Manager and she also tried to assault him by throwing chappals at him. It also reveals that on the same day, immediately after the above incident when branch Manager Mr.Kalantari was proceeding towards his car, the employee rushed towards him, caught his shirt-collar and assaulted him. Thirdly, she had approached the press and made report against the branch manager of the company.
Her riotous and disorderly behaviour before the senior responsible officers and unfounded damaging allegations made by her in the press against the company are serious misconducts. Admittedly, Mr.Kalantari had lodged the report with the police and after ::: Downloaded on - 09/06/2013 14:21:28 ::: 8 investigation police had filed charge-sheet against her. However, she was acquitted in the said criminal case on 21/6/1993.
6. Mr.Thakur, learned counsel for the management, contended that the acts of the employee were subversive of her discipline and good behaviour. According to him, these acts amount to misconduct under standing Order 24(l) and if the effect of such act is subversive of good discipline and good behaviour on premises of the establishment, the management is within its competence to hold domestic enquiry.
He placed reliance in support of his contention on Munchandani Electrical and Radio Industries Ltd. ..vs.. Their Workmen, 1975 LLJ 391, wherein standing Order 24(l) under the Industrial Employment (Standing Orders) Act, 1946 was interpreted. In that case, the appellant/company owned the factory at Thana near Bombay. An Operator/employee of the aforesaid factory was alleged to have threatened a charge-hand with assault because the charge-
hand had made report against another operator, who was consequently removed from the service. On the same day in the train ::: Downloaded on - 09/06/2013 14:21:28 ::: 9 between Thana and Mulund, said charge-hand was threatened and assaulted again. Disciplinary action was commenced against the said workman for the incident which had occurred in the train. The labour court found that the alleged assault did not amount to misconduct under the Standing Order 24(l) as incident had not occurred within the premises of the establishment. The order was maintained by the High Court and finally the Management preferred an appeal before the Supreme Court. The Supreme Court, after referring to the facts, referred the Standing Order 24(l) in para no.6 as follows -
6. On the question of misconduct the relevant Standing Order is Standing Order 24(l) which is in these terms:
"24. The following acts and omissions on the part of a workman shall amount to misconduct :
* * * *
(l) Commission of any act subversive of discipline or good behaviour within the premises or precincts of the establishment:
* * * * It was not disputed before us that the ::: Downloaded on - 09/06/2013 14:21:28 ::: 10 allegation of assault, if proved, would be an act subversive of discipline; what was contended on behalf of the respondent was that the alleged assault having taken place in the train between Thana and Mulund which was obviously outside the premises or precincts of the establishment, was not covered by Standing Order 24(l). The Labour Court also found that the alleged assault did not amount to misconduct under Standing Order 24(l) which, it was held, was restricted to acts and omissions inside the premises of the establishment. In our opinion, on a plain reading of the clause, the words "within the premises or precincts of the establishment"
refer not to the place where the act which is subversive of discipline or good behaviour is committed but where the consequence of such an act manifests itself. In other words, an act, wherever committed, if it has the effect of subverting discipline or good behaviour within the premises or precincts of the establishment, will amount to misconduct under Standing ::: Downloaded on - 09/06/2013 14:21:28 ::: 11 Order 24(l). We are unable to agree that Standing Order 24(l) leaves out of its scope an act committed out said though it may result in subversion of discipline or good behaviour within the premises or precincts of the establishment in question. Such a construction in our view be quite unreasonable."
7. On perusal of this authority, it becomes clear that Their Lordships held that the words "within the premises or precincts of the establishment" refer not to the place where the act which is subversive of the discipline or good behaviour is committed but where the consequences of such an act manifest themselves. Therefore, it was held that even though the actual incident had taken place in the train, its consequences could be manifested within the premises of the factory and therefore, the appeal was allowed and the labour court was directed to proceed with the said reference.
8. Mr.Mohokar, learned counsel for the employee, however, ::: Downloaded on - 09/06/2013 14:21:28 ::: 12 contended that before three-judge Bench of the Supreme Court in Glaxo Laboratories (I) Ltd. ..vs.. Labour Court, Meerut and ors.
ILLJ, 1984, 16 , the same question was required to be considered again and Their Lordships came to conclusion that the Standing Orders have to be interpreted strictly and if the incident had occurred within the premises of the establishment or the vicinity thereof, it will be treated as misconduct.
ig It appears that in the case of Glaxo Laboratory, a strike was declared and that some loyal workmen boarded a bus chartered by the appellant company exclusively for the use of the loyal workmen commuting between the city and the factory. It was alleged that some of the striking workmen boarded the bus and during the journey in the bus at different places manhandled the loyal workmen and charge-sheet was issued under clause 10, 16 and 30 of the Standing Order 22 as applicable to the workmen employed by the appellant company. Clauses 16 and 30 of Standing Order 22 applicable in that case, are not relevant here. In para no.6, the said clauses of Standing Order 22 are quoted. The relevant clause 10 is as follows -
::: Downloaded on - 09/06/2013 14:21:28 ::: 13"22. The following acts or missions will be treated as misconducts.
(10) Drunkenness, fighting, indecent nor disorderly behaviour, use of abusive language, wrongfully interfering with the work of other employees, or conduct likely to cause a breach of the peace or conduct endangering the life or safety of any other person, assault or threat of assault, any act subversive of discipline and efficiency and any act involving moral turpitude, committed within the premises of the establishment, or in the vicinity thereof:
9. It is material to note that the judgment in Munchandani Electricals was also rendered by three-judge Bench of the Supreme Court in 1975 and judgment in Glaxo Laboratories was also rendered by the three-judge Bench of the Supreme Court in 1983. In the Glaxo Laboratories, the observations in Munchandani Electricals were also referred to and it was noted that there is substantial difference in Standing Order 24(l), which was interpreted in Munchandani's case and Standing Order 22(10), which was required to be interpreted in ::: Downloaded on - 09/06/2013 14:21:28 ::: 14 Glaxo Laboratories. After referring to the observations in Munchandani Electrical, Their Lordships observed as follows -
12. ............
"The decision proceeds on the language of the standing order which came for interpretation before this court. There is a marked difference between the language of Cl. 10 of S.O. 22 under which action is proposed to be taken by the appellant in this case and S.O. 24(l) that came for interpretation in that case. Clause (l) of S.O. 24 which was before the Court in that case did not refer to such specific acts of misconduct as drunkenness, fighting, indecent or disorderly behaviour, use of abusive language etc. If workman is involved in a riot or indulged in fighting somewhere far away from the premise of the establishment, it has no causal connection with his performance of duty in the industrial establishment in which he is employed. Further in that case, the court put a wide construction on a penal measure but did not choose to set out its reasons for departing from the well-established principle that penal statues generally receive a strict construction. 'A status is regarded as penal for the purpose of construction if it imposed fine, penalty or forfeiture other than penalty in the nature of liquidation of damages or other penalties which are in the nature of civil remedies. It is a general rule that penal enactments are to be constructed strictly and not extended beyond their clear meaning.' See Halsbury's Laws of England, 4th Edition Vol. 44 paragraphs 909, 910 at page 650. It ::: Downloaded on - 09/06/2013 14:21:28 ::: 15 cannot be seriously questioned that S.O. 22 is a penal status in the sense that it provides that on proof of misconduct penalty can be imposed. It cannot be disputed that it is a penal status. It must, therefore, receive strict construction, because for a penalty to be enforced, it must be quite clear that the case is within both the letter and the spirit of the status. If the expression 'committed within the premises of the establishment or in the vicinity thereof' is given a wide construction so as to make the clause itself meaningless and redundant, the penal status would become so vague and would be far beyond the requirement of the situation as to make it a weapon of torture."
In my humble opinion, the language of clause 10 of Standing Order 22, which was required to be interpreted in Glaxo Laboratories was substantially different from the standing order 24(l) and that is why in the latter case Their Lordships themselves observed that the decision in Munchandani's case proceeds on the language of the Standing Order which came up for interpretation in that case. In view of the difference in the language of the two clauses, which were required to be interpreted by the two different and co-ordinate Benches, in my opinion, this court is bound by the authority of the Supreme Court in Munchandani Electrical case. The very same standing order 24(l), ::: Downloaded on - 09/06/2013 14:21:28 ::: 16 which is applicable to the present case was required to be interpreted in that case.
10. It may be noted that according to the employee, Mr.Kalantari - the manager had assaulted her with intend to outrage her modesty in the premises of mortuary; while according to the management, the employee had twice assaulted the manager holding him responsible for death of the two employees of the factory in the said incident. The allegations of the employee are in nature of her defence only and cannot be considered at this stage. The defence can be considered when the enquiry is actually held. At this stage, the proceedings cannot be quashed on the basis of allegations made by her. If she had assaulted the manager of the factory holding him responsible for the death of the two employees of the factory, this would prima facie amount to subversive act which would have effect and consequence on the discipline within the precincts and premises of the factory. Therefore, I am unable to accept the contention of the learned counsel for the employee that the proceedings should be ::: Downloaded on - 09/06/2013 14:21:28 ::: 17 quashed because the incident had actually taken place outside the factory premises.
11. Mr.Mohokar, learned counsel for the employee, placed reliance on some more cases in support of his contention. They include Bhavani Metal Works ..vs.. Pandurang R.Sawant & Ors., 1994 (III) LLJ, 711.
In that case, one workman had assaulted another workman far away from the factory premises out of private dispute and therefore, it was held that it would not be a breach of Standing Order 24(k) and (l). In Kolhapur Zilla Shetkari Vinkari Sahakari Soot Girani Ltd. ..vs.. Ramchandra Shankar Shinde and anr.,1992(1) LLJ, 435 also, fight between co-employees had taken place out of the establishment out of personal dispute between the said employees. It was held that even the personal quarrel between employees pertaining to work would be an act subversive of discipline only if discipline in employer's factory was attempted to be subverted.
However, the said incident had nothing to do with the discipline in the employer factory, and the employee could not be charged and ::: Downloaded on - 09/06/2013 14:21:28 ::: 18 could not be held guilty of indiscipline. Almost similar are the facts in P.V.Pujari and others ..vs.. Municipal Corporation of Greater Bombay and anr., 1995 Lab.I.C. 157, wherein some bus conductor of the BEST had assaulted another bus conductor and the incident had not taken place within the premises of the corporation, none of them was on duty at the relevant time. Similar are the facts in Indian Express and Chronical Press ..vs.. M.C.Kapur, 1974(2) LLJ, 240. In my considered opinion, none of these authorities come to the rescue of employee in the present case.
12. Mr.Mohokar, learned counsel for the employee, vehemently contended that she has been acquitted by the criminal court and therefore the enquiry cannot be continued in view of the authority of this court in Abdulla A.Latifshah ..vs.. Bombay Port Trust and Ors.
1992 CLR. In that case an employee had allegedly committed theft of ball bearings valued at Rs.1800/-. The employee was honourably acquitted by the criminal court and he was completely exonerated from all the criminal charges. Under such circumstances, learned ::: Downloaded on - 09/06/2013 14:21:28 ::: 19 single judge of this court found that no departmental enquiry can be held unless there is strong and sound reasons for the same.
13. On the other hand, learned counsel for the management vehemently contended that there is no bar to hold disciplinary or departmental enquiry against an employee merely because on the same charges the said employee has been acquitted in a criminal court. It is well settled position that the standard of proof in the criminal prosecution and the domestic enquiry is different. There may be several reasons for acquittal of a person in a criminal court but if the management feels that the concerned employee had committed act of indiscipline, it can certainly initiate the disciplinary enquiry inspite of acquittal. In Suresh Pathrella ..vs.. Oriental Bank of Commerce AIR 2007 SC 199, Their Lordships of Supreme Court observed in para no.11 as follow -
"11. In our view, the findings recorded by the learned Single Judge are fallacious. This court has taken the view consistently that acquittal in a ::: Downloaded on - 09/06/2013 14:21:28 ::: 20 criminal case would be no bar for drawing up a disciplinary proceedings against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities."
Again in Noida Entrepreneurs Association ..vs.. Noida and others (2007) 10 SCC 385, three-judge Bench of the Supreme Court held that there is a conceptual difference between departmental enquiry and the criminal proceedings and the standard of proof required for departmental proceedings is not the same as required to prove in the criminal charges and the acquittal in criminal proceedings is not a bar to the departmental proceedings. Their Lordships referred to several other authorities from the Supreme Court before coming to this conclusion. In view of the legal position settled by the Supreme Court in number of cases, it is difficult to accept the contention of the ::: Downloaded on - 09/06/2013 14:21:28 ::: 21 learned counsel for the employee that disciplinary enquiry is liable to be quashed because she has been acquitted by the criminal court.
14. Learned counsel for the employee vehemently contended that in view of the stay granted by the High Court to the interim order of stay to the proceedings granted by the Industrial Court, there was no obstacle in holding of enquiry from the year 1993 till the year 2004 when the management sought to recommence the enquiry. It is contended that there was a delay of 11 years on the part of the management and the enquiry has not been completed for last more than 18 years. According to him, in such circumstances, on the ground of delay itself, the enquiry is liable to be quashed.
15. Mr.Mohokar, learned counsel for the employee, placed reliance on several authorities in support of his contention including State of A.P. ..vs.. Radhakishan, AIR 1998 SC 1833. In fact, in that case Their Lordships of the Supreme Court held that whether the delay vitiates the proceedings is the question that has to be decided on the ::: Downloaded on - 09/06/2013 14:21:28 ::: 22 facts and circumstances of each case. In that case, the charges related to an incident, which was about 10 years old, were framed depending upon the the departmental records; there was no explanation why the inquiry officer did not examine such records; the delinquent was not contributing the delay and therefore, the Supreme Court held that the charge-sheet was liable to be quashed. Their Lordships observed as follows in para no.19 of the judgment.
"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is a delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are ::: Downloaded on - 09/06/2013 14:21:28 ::: 23 concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."::: Downloaded on - 09/06/2013 14:21:28 ::: 24
16. The learned counsel for the employee also placed reliance on Mahadevan P.V. ..vs.. M.D., Tamil Nadu Housing Board, 255(3), LLJ, 527. In that case, the irregularities committed in 1990 came to the notice of the employer in audit report of 1994-95, however, the charge memo was issued for the first time in the year 2000. Thus, there was delay of about ten years or at least 5 to 6 years on the part of the management even before the charge memo could be issued. In these circumstances, the Supreme Court held that the enquiry was liable to be quashed.
17. In Chauhan N.B. ..vs.. Delhi Development Authority and others, 2004(3) LLJ, 921, in February 1981 a charge sheet was served and for 13 years no progress was made in enquiry, the Delhi High Court held that the charge-sheet is liable to be quashed because disciplinary authority was not serious in pursuing the charge-sheet against the delinquent. In Cantonment Executive Officer and anr.
..vs.. Vijay D.Wani and ors., AIR 2008 SC 2953, thirteen years had ::: Downloaded on - 09/06/2013 14:21:28 ::: 25 passed and no progress was made and therefore, the Division Bench of High Court refused permission to the management to proceed further.
When the matter came to the Supreme Court, 16 years had been passed and Their Lordships held that it would not be fair to permit the management to proceed afresh in the matter.
18. In all these cases relied upon by Mr.Mohokar, there was inordinate delay on the part of the management in proceeding with the disciplinary enquiry.
19. In my considered opinion, the principles laid down by the Supreme Court in the case of State of A.P. ..vs.. Radhakishan provide necessary guidelines in all such matters in respect of whether the delay was justified or not, and whether the management alone is responsible on the basis of material placed before the court. In the present case, the incident occurred on 9/9/1990 and on 26/9/1990, the charge-sheet was served on the employee. That shows the promptness with which the management acted. However, as soon as ::: Downloaded on - 09/06/2013 14:21:28 ::: 26 the charge-sheet was served on the employee, instead of cooperating in holding enquiry, she first rushed to the civil court by filing Civil Suit No.2443 of 1990 and obtained stay to the enquiry by order dated 8/11/1990. The suit itself was dismissed on 9/7/1993 for want of jurisdiction. However, for almost three years, the enquiry was stayed because the employee had obtained stay from the civil court, which had no jurisdiction.
After dismissal of the suit, she filed two complaints; ULPA No. 62 of 1993 seeking grant of 100% subsistence allowance and ULPA No.1032 of 1993 for quashing the charge-sheet and the enquiry. In the second complaint i.e. ULPA No.1032 of 1993, the Industrial Court had passed an order dated 26/8/1993 and had stayed the enquiry proceedings. The management moved the High Court in Writ Petition No.2894 of 1993 against that order. The High Court by order dated 22/2/1993 granted stay to the stay which was granted by the Industrial court and thus the enquiry could be proceeded with by the management. However, facts remains that the Complaint ULPA No.1032 of 1993 was pending in the Industrial Court for fifteen years and it was disposed of by the impugned order dated ::: Downloaded on - 09/06/2013 14:21:28 ::: 27 11/4/2008 only. Not only this, writ petition No.2894 of 1993 was disposed of in the year 2005. Thus, even though the stay to the disciplinary proceedings was vacated by the High Court, there was hanging sword of uncertainty about that enquiry in view of the pendency of ULPA No.1032 of 1993 in industrial Court and writ petition before the High court. It is true that the management also did no take any effective steps in holding the enquiry from October, 1993 till August, 2004 when the Industrial Court issued notice to the management about the said complaint and the management in turn issued notice of appearance to the employee. It is material to note that as soon as the management issued notice to the employee about the disciplinary enquiry, she again moved the Industrial Court to stay the proceedings and the Industrial court again granted stay on 24/2/2005. From this, it appears that the employee herself put every possible obstacle in the proceedings of disciplinary enquiry and did her best to see that the domestic enquiry could not proceed further.
Admittedly, the management had filed a writ petition challenging the stay order granted by the Industrial court on 24/2/2005 but without ::: Downloaded on - 09/06/2013 14:21:28 ::: 28 success. They also moved the High Court in Letters Patent Appeal but could not succeed. As a result, the stay granted by the Industrial court on 24/2/2005 continued till ULPA No.1032 of 1993 was finally dismissed by the impugned order dated 11/4/2008. After dismissal of that complaint, employee filed writ petition No.2904 of 2008 which is being disposed of by this judgment. If this history of the present case is looked into, it is impossible to come to conclusion that the management alone was responsible for the delay. In fact, the major responsibility for the delay can be attributed to employee herself.
Even the Industrial court noted that both the parties had contributed to the delay. If the employee would be free of any fault in respect of the delay, then in view of the principles laid down by the Supreme Court in several cases, the enquiry could have been quashed because it was pending for last eighteen years. But in view of the facts stated above, it is clear that from the date the charge sheet was served on the employee, she tried her best to secure stay from one or the other court and she succeeded not allowing the enquiry to proceed further. The learned counsel for the employee vehemently contended that the ::: Downloaded on - 09/06/2013 14:21:28 ::: 29 management was not paying the subsistence allowance at the full and revised rate and that is why the employee was constrained to file complaint ULPA No.62 of 1993. If it would be only one complaint for claiming subsistence allowance, one could not find fault with her and in fact the delay was not cause due to that. Admittedly, that complaint was disposed of in February, 2006 with liberty to the employee to agitate the same point in ULPA No.1032 of 1992. In view of all the circumstances, I am unable to accept the contentions of the employee that the disciplinary enquiry is liable to be quashed on the ground of delay.
20. Taking into consideration all the facts and circumstances, I find that the Industrial court was right in rejecting ULPA No.1032 of 1993 to the extent of the claim for setting aside and quashing the charge-sheet and disciplinary enquiry, and to that extent it needs no interference. In the result, Writ Petition No.2904 of 2008 filed by the employee is liable to be dismissed.
::: Downloaded on - 09/06/2013 14:21:28 ::: 3021. Coming to the Writ Petition No.2022 of 2008 filed by the management, it is to be noted that the Industrial court directed the management to pay subsistence allowance to the complainant as per the revised scale as has been made applicable to the employee after deducting the payment already made to her. He further noted that as per order passed in complaint ULPA No.62 of 1993, the management was already paying full wages as subsistence allowance and it was noted that as per the settlement of 1990, which was applicable at that time, the complainant's wages were Rs.1165/- per month at the time of her suspension and that amount was being paid to her from 1993.
As noted earlier, complaint ULPA No.62 of 1993 was not decided on merits and was disposed of on 28th February, 2006 with liberty to the complainant to raise the said question in ULPA No. 1032 of 1993 and as such by the impugned order both the prayers were considered by the Industrial court. The Industrial Court after referring to certain authorities came to conclusion that she is entitled to full pay at the revised rates as subsistence allowance beyond period of 180 days and accordingly the order was passed. That order has been challenged in ::: Downloaded on - 09/06/2013 14:21:28 ::: 31 the present petition.
22. It is material to note that the Industrial court appears to have based the direction to give full wages as subsistence allowance on the standing order 25(5-A), which was incorporated w.e.f.
2/1/1978 by the Industrial Employment (Standing Orders Amendment Rules, 1977. Clause 5-A of the Standing Order reads as follows -
(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 allowance and other compensatory allowances to which the workman would have 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 ::: Downloaded on - 09/06/2013 14:21:28 ::: 32 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 a 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 allowance as he may have already drawn and to all other privileges for the full period of suspension.
Thus as per Standing Order 25(5-A), for first ninety days half of the basic wages, dearness allowance and other compensatory allowances could be paid as subsistence allowance and if the enquiry continues beyond 90 days, he would be paid three-fourths of such basic wages, ::: Downloaded on - 09/06/2013 14:21:28 ::: 33 dearness allowance and other compensatory allowances and if the enquiry is not completed within a period of 180 days, he would be paid basic wages, dearness allowance and other compensatory allowance in full as subsistence allowance till enquiry is completed.
23. However, it appears that in 1982 Section 10-A was added to the Industrial Employment (Standing Order) Act, 1946 by Amendment Act 18 of 1982 and it came into force in 17/5/1982.
Section 10-A reads as follows [10-A. Payment of subsistence allowance.
(1) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workmen subsistence allowance-
(a) at the rate of fifty per cent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and
(b) at the rate of seventy-five per cent of such wages for remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.
::: Downloaded on - 09/06/2013 14:21:28 ::: 34(2) If any dispute arises regarding the subsistence allowance payable to a workman under sub-section(1), the workman or the employer concerned may refer the dispute to the Labour Court, constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situated and the labour court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.
(3) Notwithstanding anything contained in the foregoing provisions of this section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State.
Thus, by incorporating section 10A, the legislature itself fixed rates at fifty per cent as wages for first ninety days of suspension and seventy-
five per cent wages for remaining period of suspension if enquiry is not completed within ninety days. Section 10-A does not provide for payment of full wages as subsistence allowance. It appears that provisions of Section 10-A was not brought to the notice of Industrial ::: Downloaded on - 09/06/2013 14:21:28 ::: 35 Court and Industrial court passed order on the basis of clause 5-A of Standing Order 25 while directing the management to pay full wages as subsistence allowance. When the Legislature made the amendment in the act and incorporated Section 10-A specifically making provisions of subsistence allowance, it must be held that Section 10-A supercedes the provision of Clause 5-A of Standing Order 25. Under Sub-section 3 of Section 10-A if the provisions relating to payment of subsistence allowance under any other law for the time being in force are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance. However, the Standing Order Rules, 1959 cannot be said to be any other law made applicable in this State because said Rules and the Standing Order are issued under the Industrial Employment (Standing Order) Act, 1946 itself, as it will be clear from the preamble of the said Rules. It declares that in exercise of the powers conferred by Section 5 of the Industrial Employment (Standing Orders) Act, 1946, the Government of Bombay makes the rule. Same rules are applicable to the State of Maharashtra after reorganisation of ::: Downloaded on - 09/06/2013 14:21:28 ::: 36 States. Thus, Section 10-A clearly supercedes the provisions of Clause 5 of Standing Order 25. Therefore, court cannot give direction to pay 100 per cent of full wages as subsistence allowance.
24. Next question is about the payment of subsistence allowance on the revised rates. The learned counsel for the employee contended that it is settled position of law that the employee is entitled to get subsistence allowance on the basis of the revised scale of salary, which was prevalent and due, to which the appellant during the relevant period would be entitled. In support of this, he placed reliance upon Umesh Chandra Misra ..vs.. Union of India and ors.
1993(1) LLJ, 187. In fact, in that case the whole controversy was what percentage of subsistence allowance should be paid to the employee and in para no.5,6 and 7 the facts of that case were narrated to come to conclusion that the employee was entitled to 50% of the salary as subsistence allowance for certain period and at the rate of 75% of the salary for the remaining period of suspension.
However, at the flag end of the para no.8, Their Lordships observed as ::: Downloaded on - 09/06/2013 14:21:28 ::: 37 follows -
"We further direct that the subsistence allowance be paid on the basis of the revised scale of salary, if any, which was prevalent and due to the appellant during the relevant period for which the subsistence allowance is directed to be paid."
Thus, the direction to pay the subsistence allowance on the revised scale of the salary was given in one sentence. On perusal of the whole judgment, it appears that no question of law in this respect was actually considered by the Lordships of the Supreme Court. However, it appears that same authority was followed by the Division Bench of this court in S.N.Thampy ..vs.. Textiles Committee, 2001 III CLR 667 wherein Division of this court relied upon Umesh Chandra and directed in para no.31 that the amount of subsistence allowance payable to the employee concerned should be reviewed from time to time, where proceedings drag on for a long time, even in absence of express rule. S.10 A(1)(a) provides for payment of subsistence allowance at the rate of 50% of wages which the workman was entitled to immediately preceding the date of his suspension. It does ::: Downloaded on - 09/06/2013 14:21:28 ::: 38 not provide for revision from time to time. It appears that the Division Bench directed review of subsistence allowance from time to time because some times enquiry drags on for a long time. It appears that in number of cases for example; Swapan Kumar Basu ..vs.. United Bank of India and Ors. 2004 II CLR 847 (Calcutta), Sumer Chand Khajuria .. vs... State and others,1992 (II) LLJ, 723, the principles laid down by the Supreme court in Umesh Chandra have been followed. It appears that this has been followed continuously by this court as well as other courts and therefore, I do not venture to enter into the question as to whether under the provisions of Section 10-A the revision is permissible or not. Though the learned counsel for the management tried to state that. In Jagdish V. Gursahani ..vs.. AIR India Ltd. and ors., 2001(4) Mh.L.J. 237 as well as AIR India Ltd. ..vs.. L.R.Solanki and anr. 2005(3), Mh.L.J.974, the learned Single of this court had tried to indicate that the subsistence allowance has to be paid on the basis of the last drawn wages. Even though the learned single Judge dealt with that question to the some extent, the main question was about grant of increment as well as ::: Downloaded on - 09/06/2013 14:21:28 ::: 39 productivity allowance and it was held that during the suspension period the employee would not be entitled to benefit of increment or productivity allowance as he had not actually worked and contributed to the productivity of the complainant. Therefore, it must be held that the employee should be entitled to get subsistence allowance on the basis of the pay revised from time to time and as made applicable to other employees. However, that revision will be based on pay which she was drawing at the time of suspension without any addition of increment or productivity allowance.
25. In view of the provisions of Section 10A, she is entitled to fifty per cent or 75 per cent of the allowance. In view of the language of clause (b) of sub section 1 of Section 10A of the Industrial Employment (Standing Orders) Act, 1946 as quoted above, she is entitled to get seventy five per cent of the wages for the remaining period beyond 90 days, if the delay in completion of disciplinary proceedings against such employee is not directly attributed to such workman. In the present case, Industrial court came to the conclusion ::: Downloaded on - 09/06/2013 14:21:28 ::: 40 that both the parties have contributed to the delay. In view of the fact stated above, it appears that from 1990 to 1993 and again from 2004 to 2008 i.e. for almost 7 to 8 years she was directly responsible for the delay because she filed one after another proceedings to get the stay to the enquiry and at the same time the management, possibly because of the pendency of the complaint of the employee, did not take any action to proceed with the enquiry from October, 1993 till 2004 i.e. for almost 10 to 11 years. The learned counsel for the employee contended that if the disciplinary proceedings were stayed by the order of the judicial authority, the delay cannot be directly contributed to the workman and for this purpose he relied upon B.D.Shetty and others ..vs.. CEAT Ltd. and anr., 2002 SCC (L & S)
131. Their Lordships observed as follows -
11. If under Section 10-A(1)(b) of the Act only the words "attributable to" were used, the position would have been different but the words used are "directly attributable to", prefixing the word "directly" to the words "attributable to" make a drastic difference to the ::: Downloaded on - 09/06/2013 14:21:28 ::: 41 emphasis that in order to deny a workman subsistence allowance at the rate of 75%, the delay should be directly attributable to the conduct of such workman in completion of disciplinary proceedings and not that every kind of delay is covered by the said provision. If that was the intention of the legislature there was no need for emphasis by adding the word "directly" and instead they would have simply used the words "attributable to". In the field of interpretation of statutes the courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statue should have effect. Further, it cannot be said that a word or words used in a statue are either unnecessary or superfluous unless there was compelling reasons to say so looking to the scheme of the statute having regard to the object and purpose sought to be achieved by it. In this view, the use of the word "directly" in the provision has to be given meaning and effect in the context of the said provision under the scheme of the Act.
12. When a workman approaches a competent court bona fidely to protect himself from prejudice likely to be ::: Downloaded on - 09/06/2013 14:21:28 ::: 42 caused by continuing proceedings simultaneously in domestic inquiry as also in the criminal case grounded on the same set of facts and succeeds in getting order from a competent judicial authority staying further proceedings in the disciplinary proceedings till the disposal of the criminal case, it cannot be said that delay on that account in completion of disciplinary proceedings is directly attributable to the conduct of such workman. It cannot be denied that a workman is also entitled to a free and fair trial in the criminal case.
Hence, if a workman, in order to protect himself from the prejudice that may be caused by simultaneous proceedings, approaches a competent judicial authority and that authority, on being satisfied, taking into consideration the facts and circumstances of the case, stays further proceedings in a domestic inquiry pending a criminal trial, delay caused on that account in completion of domestic inquiry cannot be directly attributable to the conduct of such workman because granting stay of further proceedings in a domestic inquiry does not depend on the pleasure or mere wish of a workman himself. May be, in a given case the court may refuse to stay disciplinary proceedings. It is open ::: Downloaded on - 09/06/2013 14:21:28 ::: 43 to the employer to oppose granting order by a competent court staying disciplinary proceedings on all the grounds available to him. If a workman is to be denied subsistence allowance at the rate of 75% under Section 10-A(1)(b), even in a case where he may have a legal right and a good case on merit to get order from a competent court staying domestic inquiry pending criminal trial, he may be forced to suffer in silence.
During the period of suspension he has to support his family and survive to fight or defend his case. It appears, reference to the delay directly attributable to the conduct of the workman in the said provision is obviously to the one where the workman unjustifiably, deliberately or designedly drags on or prolongs the domestic inquiry. To put it in other way, a workman cannot be permitted to take advantage of delay caused by himself in the absence of any order passed by a court.
If such a delay is also to be taken as covered by Section 10-A(1)(b) it may amount to in a way putting restraint or clog on the exercise of legal right of a workman to approach a court of law out of fear of losing subsistence allowance at the rate of 75%. It is one thing to say that in a given case there should be no stay of disciplinary ::: Downloaded on - 09/06/2013 14:21:28 ::: 44 proceedings. It is another thing to say that in case stay is granted there will be delay in completion of disciplinary proceedings, which is directly attributable to the conduct of a workman. Merely because legal proceedings will be pending in a court or before other authority and they take some time for disposal, may be inevitably, that itself cannot be a ground to deny subsistence allowance to a workman against a statutory obligation created on the employer under Section 10-A(1)(b). One must not lose sight of the fact that the Act is a beneficial piece of legislation and the provision of subsistence allowance made is intended to serve a definite purpose of sustaining the workman and his family members during the bad time when he is under suspension, pending inquiry. This provision is enacted with a view to ensure social welfare and security. Hence, such a beneficial piece of legislation has to be understood and construed in its proper and correct perspective so as to advance the legislative intention underlying its enactment rather than abolish it.
Assuming two view are possible, the one, which is in tune with the legislative intention and further the same, should be preferred to the one which would frustrate it."
::: Downloaded on - 09/06/2013 14:21:28 ::: 4526. From the opening sentence of para no.12, it appears that when a workman approaches a competent court bonafidely to protect himself from the prejudice likely to be caused by continuing proceedings simultaneously in domestic enquiry as also in the criminal case grounded on the same set of facts and succeeds in getting order from a competent judicial authority staying the proceedings till disposal of the criminal case, it cannot be said that the delay is directly attributable to the conduct of such workman. In the present case, as stated earlier, the employee filed suit before civil court and obtained the stay and finally that suit was dismissed in 1993 on the ground that the court did not have jurisdiction and after that she filed complaint before the Industrial Court. It shows that her act of filing the civil suit before the civil court having no jurisdiction and obtaining the stay was not bona fide to protect her interest. When in 2004 the management began to take steps to re-initiate the inquiry, she immediately rushed to the Industrial court and again filed an application and got stay against dismissal of the complaint filed in 1993. In view of this, it ::: Downloaded on - 09/06/2013 14:21:28 ::: 46 can be said that she was not bona fide interested in protecting her interest but she was interested only in prolonging the matter.
Therefore, it must be said that the delay can be directly attributed to her and therefore, in my considered opinion she is not entitled to 75 per cent of wages but only 50 per cent of the wages. Even the Industrial court did not find that she is completely free of fault while rejecting full wages as subsistence allowance.
27. For the aforesaid reasons, the writ petition No.2022 of 2008 deserves to be allowed partly.
The impugned order passed by the industrial court stands modified as follows -
The Management i.e. petitioner shall pay subsistence allowance beyond period of initial 90 days till completion of enqiury at the rate of 50% of her wages including the dearness allowance which she would have been otherwise entitled had she not been suspended, with all the revisions in pay scales made applicable to the ::: Downloaded on - 09/06/2013 14:21:28 ::: 47 other employees of her category minus the subsistence allowance which she has already received. However, she will not be entitled to get benefit of any increment which she would have otherwise earned had she not been suspended, nor she would be entitled to any other benefits granted to other employees. As enquiry is pending since September, 1990, the management shall take steps to expedite the same and finish within three months after appearance of the respondent before the enquiry officer.
As the learned counsel for the employee want four weeks time to challenge this order, this order shall be kept in abeyance for four weeks from this date. Respondent no.2 i.e. petitioner-employee shall appear before the enquiry officer on 28/3/2009.
Writ petition No.2904/2008 stands dismissed.
JUDGE.
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