Orissa High Court
Manoj Kumar Panda vs Orissa Air Products Ltd. on 16 November, 2007
Equivalent citations: 105(2008)CLT142, (2008)IILLJ800ORI, 2008(I)OLR287
Bench: Chief Justice, I. Mahanty
JUDGMENT A.K. Ganguly, C.J.
1. This writ appeal has been filed by the workman, the Opposite Party No. 2 in the Writ Petition which was filed by M/s. Orissa Air Products Ltd., the Company.
2. The Writ Petition, being OJC No. 8193 of 2001, was filed by the Company challenging the Order Dated 25.4.2001 passed by the Labour Court, Bhubaneswar in Industrial Dispute Misc. Case No. 5 of 1994. The said Misc. Case was registered on the basis of an application filed by the present Appellant under Section 33C(2) of the Industrial Disputes Act, 1947 ( hereinafter called the 'said Act'). In the said Misc. Case, a prayer was made by the present Appellant for issuing a direction on the Management of the Company for computation of full wages during the period of suspension of the Appellant from service.
3. The material facts are:
The present Appellant was working as an Assistant Depot Superintendent in the Respondent's establishment at Rourkela. In view of certain allegation against him, he was placed under suspension with effect from 4.3.1993. The said order of suspension runs as follows:
We have received reports alleging serious complaints about gross misconduct, as well as indiscipline of various nature against you, necessitating initiation of disciplinary proceedings in view of the gravity of the charges involved therein. Accordingly, you are here by placed under suspension from service w.e.f. 4.3.1993. A charge sheet will follow shortly. You will be entitled to receive subsistence suspension allowance during the period of suspension as per rules. You are further required to report yourself daily between 9.15 A.M. and 9.30 A.M. on all working days at our Rourkela depot to sign is the register kept there and also receive directions and communications which may be addressed to you from time to time.
4. The charge sheet was issued on 15.6.1993 on several grounds. However, the order of suspension against the Appellant was revoked on 14.9.1993 and the Appellant was directed to report for duty on 16.9.1993. As the Appellant was not paid subsistence allowance during the pendency of the departmental proceeding, he filed an application under Section 33-C(2) of the said-Act claiming subsistence allowance as well as arrears of salary. During pendency of the said application, the Departmental Enquiry was concluded and the Appellant was found guilty and ultimately was dismissed from service. However, challenging the said order of dismissal, the Appellant raised Industrial Dispute before the District Labour Officer, Dhenkanal-cum-Conciliation Officer and the conciliation having failed, the dispute has been referred to the Presiding Officer, Labour Court and the said reference has been registered as I.D. Case No. 55 of 1996.
5. In the application under Section 33-C(2) of the Act which was filed by the Appellant, the Labour Court held that the Appellant is entitled to get the subsistence allowance and as the suspension was revoked unconditionally, it was further held that the period of suspension is bound to be treated as on duty and the Labour Court Computed the amount to be payable to the Appellant at Rs. 17976/-and directed the Management of the said Company to pay the same.
6. Against such direction, the Writ Petition was filed. Learned Judge after considering the facts of the case and considering the provisions of Rule 14(2) of the Orissa Industrial Employment (Standing Orders) Rules, 1946 and Rule 14(4)(b) of the aforesaid Rules held that a workman who is placed under suspension shall, during the period of suspension, be paid subsistence allowance at the stipulated rates. Learned Judge of the Writ Court held that the aforesaid Standing Order applies to the case of the Appellant but the Learned Judge held that the Labour Court has lost sight of the aforesaid provision and thus the order suffers from non-consideration of relevant provision. Learned Judge further held that whether the Appellant would be entitled to any Subsistence Allowance or not depends upon the answer to the reference made by the State Government namely, whether the order of dismissal passed by the Management is just and proper. Since the reference is pending before the Labour Court, the Learned Judge of the Writ Court refused to come to any conclusion about the entitlement of subsistence allowance. As such, the order of the Labour Court was set aside and the Court directed that the entitlement of the subsistence allowance of Appellant shall depend upon the result in I.D. Case No. 55 of 1996.
7. Learned Counsel for the said Company admitted that during the period of suspension, no subsistence allowance was paid to the Appellant and Learned Counsel justified the same by saying that as the Appellant did not report for duty daily between 9.15 A.M. and 9.30 A.M. on all working days at Rourkela depot and did not sign in the attendance register nor did he receive any direction and communication he was not paid the subsistence allowance. Learned Counsel further submitted that this is the long standing practice in the establishment that subsistence allowance to the suspended employees is not paid unless they fulfil the aforesaid condition. Learned Counsel has further admitted that this is also the finding of the Learned Judge of the Writ Court that The Orissa Industrial Employment (Standing Orders) Rules, 1946 ( hereinafter referred to as the 'said Rules') shall apply in the case of the Appellant in so far as suspension is concerned. Rule 14(e) provides that the payment of subsistence allowance under the Standing Order shall-be subject to the workman concerned not taking up any employment during the period of suspension.
8. Despite repeated query from this Court, Learned Counsel for the Company failed to show that there is any requirement under any Rules that a suspended workman has to report for duty everyday or to the sign the attendance register and to receive direction and communication from the Company during the period of suspension. In the absence of any such Rule, it is difficult for this Court to sustain the stipulation to that effect in the suspension order. Learned Counsel also referred to Section 10A of the Industrial Employment (Standing Order) Act, 1946 (hereinafter called the 'said Act'). Section 10A of the Act reads as follows:
10A. Payment of subsistence allowance.
(1) Where any workmen is suspended by the employer pending investigation or inquiry into complaints or charge of misconduct against him, the employer shall pay to such workman 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 the such wages for the 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.
(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 situate 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 the 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 Sections, the provisions of such other law shall be applicable to the payment of subsistence allowance in the state.
9. The rate of payment of subsistence allowance is made clear in the said statutory provisions. Here, admittedly, the Appellant has not been paid anything by way of subsistence allowance.
10. The relevant Rule under the Industrial Employment (Standing Order) Rules on which reliance was placed by the Learned Counsel for the Company is Rule 14(e). The said Rule is as follows:
14(e). The payment of subsistence allowance under this Standing Order shall be subject to the workman concerned not taking up any employment during the period of suspension.
11. Learned Counsel for the Company has relied on a decision of the Supreme Court in support of his contention that the Company was justified in not paying the Subsistence Allowance to the Appellant during the period of suspension. Reliance was placed on the decision of the Supreme Court in the case of U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi and Ors. reported in 2005 AIR SCW 5519. In that case, Learned Judges of the Supreme Court construed Rule 41 of Uttar Pradesh State Textile Corporation Conduct, Control and Disciplinary Rules, 1992. Rule-41 of the said Rules which governed the question of subsistence allowance in that case is as follows:
41. Subsistence allowance during suspension:
An employee under suspension shall be entitled to draw subsistence allowance equivalent to 50% of his basic pay plus 50% dearness allowance provided that the employee is not engaged in any other employment or business or profession or vocation. The subsistence allowance would be payable only when the employee, if required, presents himself every day at the place of work or such other place as mentioned in the relevant order. Further, the employee under suspension would have to furnish a certificate that he is not engaged in other employment, business, profession or vocation for entitlement of subsistence allowance Construing the said Rule, Learned Judges held that since the employee did not sign the Attendance Register even though he was specifically asked to do so in the orders of suspension, the High Court was not justified in coming to a conclusion that the non-signing was not consequential or a bona fide lapse. In the instant case, there is no such Rule as pointed above. Therefore, in the absence of any Rule asking the Appellant to report everyday for duty or sign the attendance register, refusal of payment of subsistence allowance to the Appellant cannot be sustained in the eye of law.
11.1 Reference in this connection may be made to the decision of the Division Bench of the Andhra Pradesh High Court in the case of Zonal Manager, Food Corporation of India and Ors. v. Khaleel Ahmed Siddiqui, reported in 1982 (2) SLR 779. Construing the Regulation 66 of the Food Corporation of India Staff Regulations, 1971, Chief Justice Alladi Kuppuswami delivering the Judgment of the Court observed that the Court fails to understand how an employee who is debarred temporarily from service, could be compelled to attend office and mark his attendance daily and also be visited with penalty if he does not mark his attendance. Learned Judges said that any instructions to that effect are inconsistent with the Rule. The Learned Chief Justice found that there is no such requirement under Regulation 66 and in the absence of Rule, administrative instruction to the contrary cannot be given. In the instant case, there is no such pre-condition for receiving subsistence allowance in the Rule 14(e). Therefore, neither in the Rule nor in the Act of 1946, there is any requirement on the Appellant to report for duty and mark the attendance register as condition precedent for receiving subsistence allowance. So the decision in the case of P.C. Chaturvedi (supra) does not apply to the facts of this case.
12. In view of the aforesaid Rules, the contention of the Learned Counsel for the Company cannot be accepted in view of the legal position which has been settled by the Supreme Court in a number of Judgments.
13. In the case of Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. , Learned Judges of the Supreme Court held that payment of subsistence allowance to an employee during the period of suspension ensures non-violation of right to life of the employee'. Learned Judges have virtually equated suspended employee's right to get subsistence allowance with right to life under Article 21. That principle was also referred to the decision of the Supreme Court in the case of State of Maharashtra v. Chandrabhan Tale where the Supreme Court struck down payment of subsistence allowance @ Rs. 1/- to the suspended employee as payment of such a meagre amount is violative of Article 21 of the Constitution. The said decision in Chandrabhan Tale was also followed by the Supreme Court in the subsequent decision in Fakirbhai Fulabhai Solanki v. Presiding Officer . Subsequently, in the decision of the Supreme Court in the case of Jagdamba Prasad Shukla v. State of U.P. and Ors. , the Supreme Court held that payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty, but it is a right of the employee. In the case of Jagdamba Prasad Shukla, the purported justification of the employer in not paying the subsistence allowance was that the employee did not furnish any certificate to the effect that he was not employed anywhere during the period of suspension. Learned Judges held that at no stage,-the employee was told that he had to furnish such a certificate. Therefore, unless the employee is told to furnish such a certificate the subsistence allowance cannot be denied. Here, also at no stage, the Appellant was told that he had to furnish a certificate to show that he was not employed elsewhere. Therefore, on that ground the subsistence allowance cannot be withheld. However, no such ground has been taken by the Company that subsistence allowance has been refused to the Appellant as he has not furnished such a certificate. In the instant case, it was refused as the Appellant was not reporting for duty and not marking the attendance register. Since the Appellant is not called to do so under any Rules or Regulation, the subsistence allowance cannot be denied to him on those frivolous grounds.
14. In the case of Anwarun Nisha Khatoon v. State of Bihar and Ors. reported in 2002 LAB I.C. 2979, the same principles have been reiterated by the Supreme Court and in doing so, Learned Judges relied on the earlier decisions in the cases of Jagdamba Prasad Shukla and Captain M. Paul Anthony. In that case, Learned Judges held that no Rule was shown to the Court which required a suspended employee to mark his attendance. The Court however, held that the employer can at the most be asked to give a certificate that he was not engaged in any other employment or business. But since no such certificate was asked for, grant of subsistence allowance cannot be denied on the ground that such a certificate was not given. In the instant case, no such certificate was asked for from the Appellant at any point of time.
15. For the reasons aforesaid, the order of the Learned Judge of the/first Court cannot be sustained. This Court directs that the Appellant must be paid subsistence allowance at the rate as provided under Section 10A of Industrial Employment (Standing Order) Act, 1946 and such payment must be made to the Appellant within a period of two months from the date of service of this order or the 'said Company and failing which the said Company will have to pay the same with interest @ 10% to be calculated from the date of expiry of the said period of two months till the date of actual payment.
The Writ Appeal is thus allowed to the extent indicated above.
I. Mahanty, J.
16. I agree.