Bombay High Court
Standard Chartered Grindlays Bank Ltd. vs Govind Phopale And Anr. on 3 September, 2002
Equivalent citations: 2003(2)BOMCR311, (2003)1BOMLR72, [2003(96)FLR145], (2002)IIILLJ1036BOM, 2003(2)MHLJ944
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. Rule. By consent of the parties the Rule is made returnable forthwith. Respondents waive service. Heard both the learned Counsel.
The petitioner bank is aggrieved by the order dated 5th June 2002 passed by the Central Government Industrial Tribunal No. 1 in an interlocutory application dated 6th August 2001 filed by the respondent workman in the approval application CGIT-1/2002 filed by the petitioner bank under Section 33(2)(b) of the Industrial Disputes Act, 1947.
2. As far as the order in respect of the amendment in the cause title of the reference is concerned, there is no dispute or challenge by the respondent workman. It appears that from the erstwhile name of the Bank, ANZ Grindlays Bank, Mumbai, the present name has to be substituted and the tribunal has rightly allowed the application filed by the petitioner bank.
Though the facts in the present petition are in a very narrow compass, the question of law involved is of utmost importance in the adjudication of industrial disputes and in the industrial jurisprudence. The petitioner bank has filed an application under Section 33(2)(b) of the I. D. Act seeking approval of its action of dismissal taken against the respondent workman. It appears that the petitioner bank had held a domestic enquiry in the charge sheet dated 12th January 1995 for an alleged act of misconduct allegedly committed by the workman. After the domestic enquiry, the petitioner bank passed an order of dismissal on 2nd March 2000. It appears that as a part of the said transaction the petitioner bank filed the aforesaid approval application before the tribunal and is also appears to have offered wages in lieu of one month's notice as prescribed in the said section. The approval application is pending as yet. During the pendency of the application, the respondent workman not only filed his written statement to oppose the approval application but also filed an application on 6th August 2001 for grant of subsistence allowance during the pendency of the said application. The petitioner bank opposed the said application by filing its reply raising several contentions and strongly resisting the prayers of the respondent workman. The Tribunal by the impugned order decided the application in favour of the respondent workman directing the petitioner bank to pay an amount per month at the rate of suspension allowance or subsistence allowance payable during the pendency of the enquiry, from the date of filing of the application i.e. 12th March 2000. The amount computed by the workman at the rate of subsistence allowance was Rs. 5065.55 per month. The aforesaid figure was not contradicted by the petitioner bank. It was also directed to continue to pay the said amount during the pendency of the application for approval.
3. Shri Patel, the learned Advocate for the petitioner bank has made a serious grievance against the impugned order of the tribunal. According to him, the application for subsistence allowance was not tenable under Section 33(2)(b) of the I.D. Act. Shri Patel submitted that since the employer employee relationship had come to an end by way of order of dismissal, there was no question of granting subsistence allowance to the workman during the pendency of the approval application. Shri Patel submitted that as a result of the dismissal order, the respondent workman had ceased to be in employment and, therefore, he was not entitled to claim any wages till he succeeds to get reinstatement after getting the order of dismissal set aside in appropriate proceedings. According to him, even in the present approval application if the tribunal refused to grant approval to the order of dismissal, then only he would be entitled to get wages for the entire period from the date of dismissal till the date of order passed by the tribunal. Shri Patel submitted that reliance of the tribunal on the decision of the Fakirbhai v. The Presiding Officer and Anr., 1986 2 LLJ 124 was wholly misplaced. Shri Patel submitted that it was a case of permission under Section 33(1)(a) and not a case under Section 33(2)(b). Shri Patel pointed out that under Section 33(1)(a) and Section 33(3), the workmen continue to be in employment and the employer approaches the tribunal for seeking permission to punish them after completion of the disciplinary proceedings for the alleged acts of misconducts. In such cases, the Supreme Court has considered and has granted wages as the employer employee relationship subsisted. During the pendency of the application for permission, if the employer suspends the delinquent workman, he becomes entitled to get suspension wages under the standing orders or full wages, if there are no standing orders empowering the employer to suspend the workman during the pendency of the enquiry. Shri Patel submitted that under Section 33(2)(b), the workman stands dismissed and therefore, he would not be entitled to get any wages till the approval application filed by the employer would be dismissed and in that case, he would get full wages for the entire intervening period. If the approval application is granted, approving the action of dismissal such order relates back to the date of the dismissal and, therefore, the workman does not get anything from the date of dismissal onwards. According to Shri Patel, therefore, if the approval application is dismissed, the workman gets full wages and if the approval application is granted, the workman does not get any wages from the date of dismissal and if any amount is granted by the tribunal during the intervening period by way of subsistence allowance, the employer has no way to recover the said amount which the workman is not lawfully entitled to get. Shri Patel further questioned the jurisdiction of the tribunal to grant such application during the pendency of the main approval application. According to him, the jurisdiction of the tribunal under Section 33 was limited to the extent of deciding the applications for permission to punish the workman and to seek approval of the action taken against as provided under the respective sub-section of Section 33 of the I.D. Act.
4. Shri C.U. Singh, the learned Counsel for the respondent workman has submitted that this court should not interfere with the impugned order under the extra ordinary jurisdiction of Article 226 of the Constitution of India for more than one reasons. According to the learned Counsel, the tribunal has considered the interlocutory application of the workman to claim subsistence allowance during the pendency of the trial of the approval application so that he would keep his body and soul together and would survive. According to him, there is no miscarriage of justice warranting interference with the impugned order. Shri Singh submitted that under the law every approval application is required to be disposed of within a period of three months but in view of the pendency, the tribunal could not and cannot dispose of the matters as legislatively prescribed. Shri Singh pointed out that the application was made by the respondent workman on 2nd March 2000 i.e. after a lapse of about 17 months as he found it extremely difficult to meet the two ends meet and to face the brunt of litigation. According to Shri Singh, the building dockets in the shelves of the courts defy the legislative prescription of limitation to dispose of the matter in time frame given by the several enactments. It is true that none can be blamed in the present system. Shri Singh has relied upon the following judgments :--
i) Fakirabhai Fulabhai Solanki v. Presiding Officer and Anr., 1986 II LLJ 124 - AIR 1986 S.C. 1169 ii) S. Ganapathy and Ors. v. Air India and Anr., 1993 II LLJ 731 iii) Ram Lakhan v. Presiding Officer, 2000 I LLJ 1067 iv) Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Ors., 2002 Lab.I.C. 513
5. I need not trace the history of Section 33 of the I. D. Act. Under its miscellaneous Chapter VII a total prohibitory ban is placed on the employer to alter the service conditions of the workmen who are connected with an industrial dispute pending before the authorities prescribed under Section 33(1) of the Act this provision obviously is to check the employer from causing any prejudice to the workmen who are connected with the pending industrial dispute in any manner. The employer is mandated that service conditions prevalent before the commencement of the proceedings either by way of settlement or by way of an award of the authority. Secondly, the employer is totally prohibited to discharge or punish any workman concerned in the pending dispute for any misconduct connected with such dispute. It is, therefore, crystal clear that Section 33(1)(a) and (b) are relating to the workmen connected with the pending industrial dispute. If the employer wants to take any action or any step in respect of either of the aforesaid provisions, he has to seek an express permission in writing of the authority before which the proceeding is pending. He cannot take any action in respect of any of the items under the aforesaid provisions unless an express permission is given by the authority. Such permission has to be obviously a prior permission.
6. Similar express permission is a mandatory requirement for the employer under Section 33(3) of the I. D. Act, which is in respect of a protected workman concerned in such dispute. The employer is totally forbidden to alter the conditions of service applicable to the prejudice of such protected workman immediately before the commencement of such proceedings. Similarly no such protected workman can be discharged or punished by way of dismissal or otherwise save with the express permission in writing of the authority before which the proceedings of the industrial dispute is pending. These are the two categories of workmen viz., those who are connected with the pending dispute and those who are protected workmen under the I. D. Act, for whom the employer has to approach the authority and seek express permission for any change in the service conditions or for discharging or dismissing or punishing them.
7. These two categories of workmen continue to be in employment of the employer and the employer-employee relationship subsists and has not come to an end. After completion of any disciplinary proceedings such a workman can be suspended if permissible under the standing orders. In that case, he gets subsistence allowance as provided in the law. It is, however, not necessary that in every case the employer suspends such a workman. The employer employee relationship continues jurally and factually. If the authority grants an express permission to the employer, to bring about an end of relationship from that moment, the relationship gets severed. Thereafter, the law would take its own course.
8. Under Section 33(2) of the Act, the employer is permitted to alter, in accordance with law, the conditions of service applicable to the workmen not connected with the dispute. The employer is allowed to change any industrial matter which is not connected with the pending dispute. The employer is further permitted to take any disciplinary action for any misconduct which is not connected with the dispute and he is allowed to discharge or punish by way of dismissal or otherwise such a workmen. The employer however, is mandated to apply for approval of the action taken by him from the authority before which the dispute is pending. Precisely, the employer has to seek approval of the action of discharge or dismissal from the authority and has to pay wages for one month to the workman.
9. Section 33(1) talks of the matters and workmen connected with the pending industrial dispute. While Section 33(2) talks of the matters and the workmen who are not connected with the pending industrial dispute. In the former case, the express permission is a mandate before any action therein is taken by the employer, while in the latter case the employer is allowed to take and complete the action at his end but must get approval of the action taken by him from the authority before which the industrial dispute is pending. In the third case of protected workmen, there is no condition of having any connection with the dispute of the protected workmen. There is complete ban on touching the protected workmen during the pendency of the industrial dispute without express permission of the authority. The protected workmen might be connected with the dispute or might not be connected with the dispute. The service conditions to be altered might or might not be connected with the dispute. In no case, the protected workmen can be prejudiced in any manner without the express permission of the authority.
10. As far as this law is concerned, it is absolute. In both the cases, the employer must approach the authority to seek either express permission prior to the action or seek approval of the action taken by the employer. The nature of both these applications is similar. The employer has to make out a case for either express permission or for approval of the action proposed to be taken or already taken. Both these proceedings are judicial proceedings and are entertained and tried without any difference in respect of the law and the procedure. In respect of the approval application, the legislature has prescribed a time limit of three months for disposal of such applications. There is no such time limit for disposal of the applications as in the former case the workman continues to work while in the latter one he is discontinued from employment factually. It is beyond any pale of doubt that in both the cases jural relationship continues and it is not severed or snapped till the permission is granted or approval is accorded. In the case of approval the workman jurally and legally continues to be an employee of the employer until the decision of the authority granting approval of the action taken to bring about an end to the employer employee relationship. Obviously, during this period of pendency of the application, such a workman cannot seek any alternative employment elsewhere, otherwise he would be accused of double employment. He has to per force of law await the decision of the approving authority. The workmen in the permission cases are in a better position as they jurally and often even factually continue to be in physical employment of the employer till permission to snap the relationship is granted.
11. The grievance which is a very valid grievance, in my opinion, is that during the pendency of the decision of the approval application why the workman should not get any wage or some subsistence allowance? If in case of a workman awaiting a decision of express permission is held to be entitled to get suspension allowance or subsistence allowance under the standing orders, on the analogy that he continues to be in employment of the employer, as the employer has not taken any action to dismiss or discharge such a workman under the application seeking express permission. According to Shri Patel, the learned Advocate for the petitioner-Bank, the distinction is crucial. He has tried to distinguish the case of express permission from the case of an approval of the action taken by the employer. Shri Patel points out that the former is the case where the workman continues to be in employment and, therefore, he is entitled to get the wages until the authority grants the express permission while in the latter case, the workman already stands discontinued from employment and, therefore, he does not have a right to get wages from the employer. Shri Patel, therefore, submits that such a workman whose action is waiting approval is not entitled to get wages during the pendency of the approval application. Shri Patel draws my pointed attention to the fact that the Supreme Court was dealing with an application for express permission under Section 33(1) in the case of Fakirbhai (supra) and therefore, it granted subsistence allowance during the pendency of the disposal of the said permission application. He points out that it was not a case of approval under Section 33(2)(b). According to Shri Patel, the ratio of Fakirbhai (supra) has to be confined only to the cases of applications for express permission under Section 33(1) or Section 33(3) of the I. D. Act. Shri Patel has tried to distinguish even the case or Jaipur Zilla (supra) on the same line. According to him, a workman under approval application having ceased to be in employment factually is not entitled to get any wages during the pendency of the approval application.
12. Jurisdictional parameters of Section 33(1)(2) and (3) are same and there is no change or alterations in the width and depth or length of such jurisdiction. It is said to be only a supervisory jurisdiction as a whole under Section 33. In the case of permission under Section 33(1) and 33(3), the same yardsticks are to be applied while granting or refusing to grant permission as is applied in the case of approval application. There is absolutely no change in the principles to decide these applications. The principles laid down by the Supreme Court in the applications for permission and applications for approval are identical. I need not enumerate the judgments of the Supreme Court on this issue as it is very well established that the tribunal or the authority has to consider that a prima facie case for action existed; that a prima facie case for grant of permission/approval existed; that the action of the employer in both the cases is a bona fide exercise of powers and that it does not suffer from mala fides or any malice or is not vitiated by the stigma of victimization or unfair labour practice. In both the cases, the authority has to find out whether a fair and proper enquiry has been, held before the action was taken and that the workman was given a reasonable and adequate opportunity to defend himself in such enquiry and that the punishment was not shockingly disproportionate to attract the charge of mala fides or legal victimisation. These are the common tests which are invariably applied in the cases under Section 33(1) or 33(2)(b) or 33(3) of the I. D. Act. It is nowhere laid down that while considering the question of permission other principles are to be applied and the same principles could not be applied in the case of an application for approval. In my opinion, there is absolutely no change in the tests or principles to be applied to the cases under Section 33(1), (2) and (3) i.e. applications for permissions or approval. In both the categories the authority has to find out a prima facie good case justifying the action taken and justifying the case for permission or approval. The only difference which the Legislature has drawn is that in one category of the disputes, the workmen are connected with the pending dispute and in the second category of the disputes workmen are not connected with the pending dispute before the authority. In the case of protected workmen as stated by me earlier, there is a complete ban to touch them without the express permission of the authority. Even the time prescribed by the Legislature for disposal of the permission application and the approval application is the same, i.e. three months. It is not that the permission applications are disposed of early and the approval applications get delayed disposal. Both are sailing the same boat of delay and the underlying cause for grant of relief to the workman in the case of Fakirbhai (supra) is the delay in disposal of such applications. The Supreme Court was pained to realise the burning question of delay in disposal of the labour matters, where the workmen whose jural relationship subsisted, were made to starve on the ground that the application for permission or approval was pending. It was mere a coincidence that the case before the Supreme Court was that of an application for permission under Section 33(1) of the I. D. Act. The basic and the foundational question which the Supreme Court considered was that the workman had no means of livelihood to defend himself before the tribunal, though the jural relationship with the employer continued. The workman was denied even the subsistence allowance to enable him and his family to survive the litigation, the end of which none could forecast. The distinction which Shri Patel tries to draw between the case of permission and the case for approval is totally immaterial and irrelevant for our purpose. The Supreme Court has not confined the ratio of the Fakirbhai's case only to the applications under Section 33(1) or 33(3) seeking permission to take action of dismissal or discharge of the workman concerned. It equally applies to every application under Section 33 of the Act.
13. As far as the principles and procedure to decide the applications under Section 33 are concerned, there is absolutely no difference or distinction. Every such application filed by the employer either for permission or for approval has to be considered by applying the well known tests laid down by the Supreme Court in a catena of judgments. The foundation of the principles of adjudication in the cases of disciplinary proceedings was laid by the Supreme Court in the case of Indian Iron and Steel Company Ltd. v. Their Workmen, reported in 1958 LLJ 260, The Supreme Court has observed that in cases of dismissal for misconduct, the Tribunal does not, act as a court of appeal and substitute its own judgment or that of the management. The Supreme Court has guided as to when to interfere with the decision of the management, The- tribunal is permitted to interfere;
i) when there is want of good faith; ii) when there is victimisation or unfair labour practice; iii) when the management has been guilty of a basic error or violation of principles of natural justice; and iv) when on the materials, the finding is completely baseless or perverse;
In all the subsequent judgments, the Supreme Court has followed the aforesaid basic guidelines and there is absolutely no deviation from any of the aforesaid principles in the matter of decision of disciplinary proceedings, which invariably must be in accordance with the rules of natural justice. The quintessence of the rules of natural justice was given by B. N. Banerjee, J. of Calcutta High Court in Saxby and Farmer (India) Ltd. v. Industrial Tribunal, reported in 1962(2) LLJ 52 Calcutta. The learned Judge has observed as : "The principle of natural justice in its journey through the centuries has shed much of its glories and is now crystallised into four principles of justice viz., (i) opportunity for both the contesting parties to be heard, (ii) hearing before an impartial tribunal so that no man can be a judge of his own cause; (iii) decision made in good faith; and (iv) an orderly course of procedure." Apart from these no other principle of natural justice is known in modern jurisprudence.
14. The Supreme Court has elaborated the above precis given by Banerjee, J. in the subsequent judgment in the case of Delhi Cloth and General Mills v. Ludbud Singh, reported in 1972(1) LLJ 180. The Supreme Court has exhaustively dealt with the principles to be followed while dealing with disciplinary proceedings. After enumerating these principles which I need not repeat, the 7th principle laid down by the Supreme Court is as under :--
"The above principles applied to the proceedings before the tribunal which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act."
It is, therefore, crystal clear that while deciding the reference under Section 10 and applications under Section 33, the principles which are to be applied are the same and there is no difference of whatsoever nature. Earlier in the case of Motipur Sugar, 1965 (2) LLJ 162 (supra), the Supreme Court had expressed the same opinion as "....But in principle we see no difference whether the matter comes before the Tribunal for approval under Section 33 or on a reference under section 10 of the I. D. Act, 1947.
14-A. Similarly, I see no difference between an application for permission and an application for approval as far as the adjudication or decision part before the tribunal is concerned. According to Shri Patel, under Section 33(1) and 33(3) where the permission is sought the workman continues to be in employment, while in the case of approval under Section 33(2)(b), he is no more in employment de facto. Shri Patel, however, conceded the fact that till the approval application of the workman is granted by the tribunal, his termination will not be complete. Even if Shri Patel was not to concede, the law on that point has been further crystallised by the Constitution Bench of the Supreme Court in the recent case of Jaipur Zilla Sahakari Bhumi Vikas Bank Ltd. (supra). The Supreme Court has clearly laid down in para 14 the legal position of workman who is awaiting the decision of the approval application under Section 33(2)(b). It is, therefore, absolutely clear that till the approval application is granted by the Tribunal, the jural relationship of Master and servant continues and if that is so, I fail to understand why even such a workman should suffer the misery of unemployment till the final decision of the tribunal. I see no reason why the principles which are enunciated in the case of Fakirbhai (supra) should not be applied in toto even in the cases of approval applications under Section 33(2)(b) of the I. D. Act. All the observations and expressions in the said judgment and particularly in para 5 squarely apply even to the workmen awaiting approval in his cause. I further fail to understand how a workman under permission can be treated differentially and favourably as is suggested by Shri Patel. The Supreme Court has observed in para 5 "......most of the workmen are not in a position to maintain themselves and the members of their families during the pendency of such proceedings. In addition to the cost of maintenance of his family, the workman has to find money to meet the expenses that he has to incur in connection with the proceedings pending before the tribunal." The Supreme Court further observed which equally applies to the workman under approval that "......because it is difficult to anticipate the result of the application made before the tribunal, it is reasonable to hold that the workman against whom the application is made should be paid some amount by way of subsistence allowance to enable him to maintain himself and the members of his family and also to meet the expenses of the litigation before the tribunal and if no amount is paid during the pendency of such an application it has to be held that the workman concerned has been denied a reasonable opportunity to defend himself in the proceedings before the tribunal. Such denial leads to violation of principles of natural justice and consequently vitiates the proceedings before the tribunal under Section 33(3) of the Act." Merely because the Supreme Court was factually dealing with application under Section 33(3) we find reference to that section, otherwise there is no difference of whatsoever nature between the two sets of circumstances of a case under Section 33(1) and (3) and a case under Section 33(2)(b) of the I. D. Act. There is absolutely no difference between the adjudicatory process of permission application and that of approval application. Both are subjected to the supervisory jurisdiction of Section 33 of the Act, equally.
14-B. The basic underlying principle in both the judgments viz., Fakirbhai and Jaipur Zilla (supra) is that when jural relationship of master and servant subsists and continues, the workman should not be made to starve and his family should not be subjected to misery of starvation. It would be entirely different when jural relationship comes to an end as is in the case of an ordinary dismissal or discharge of workmen, whose case does not fall under Section 33 of the Act. Even the legislature has recognised the principle of mitigating the miseries of unemployment when the jural relationship subsists. The principles which the Supreme Court had laid down in the case of Fakirbhai (supra) have been vividly reflected in the Section 17B of the Industrial Disputes Act, 1947. The Legislature has amended the Act to provide for wages during the pendency of proceedings before the High Court filed by the employer against the award of the labour court/tribunal granting reinstatement to the dismissed/discharged workman. The legislature recognises the principle that when at the end of the adjudication before the competent authority, the workman succeeds to get reinstatement but the higher court stays such an award of reinstatement, in that case, he must be paid monthly wages to enable him to survive the proceedings before the higher court. The underlying philosophy of this provision is very clear that the employer once severes the relationship of employer employee by passing an order of dismissal/discharge and the competent court/tribunal having set aside the said orders and having restored the jural relationship of Master and servant by ordering reinstatement of such workman, he becomes entitled to get his monthly remuneration during the pendency of the proceedings before the higher courts. We, therefore, have to recognise and accept the principle that so long as jural relationship subsists, the workman is ready and willing to work for the employer but he is prevented by the employer from doing his work, he is entitled to get monthly wages which he would have earned by working. Merely because the employer passes an order of dismissal/discharge and refuses to allow the workman to work, though the jural relationship subsists, it cannot be said that the workman is not entitled to get any remuneration till his jural relationship is brought to an end lawfully, Jural relationship in my opinion, is of paramount importance. The unilateral severance of contract of service is not permissible without any compensation or reward to the other party to the contract. I fail to understand why a workman who is facing the proceedings under Section 33(2)(b) should be thrown out of the employment even when the jural relationship continues. The de facto snapping of relationship can be justified only in the rare cases where the workman is held guilty of serious acts of violence or misappropriation or of theft of the employers property. Even in such cases, the magnitude of the offence must be borne in mind. In my opinion, therefore, in ordinary cases of misconducts for which the employer has taken an action of dismissal/discharge and has approached the tribunal for approval, such a workman should be continued in employment so that he works and earns his bread till his fate is decided in the approval application. It is true that neither the workman nor the employer has control over the time limit of the proceedings before the tribunal or the authority. Considering this fact also the employer should continue such a workman in employment so that the employer gets work from the workman and pays him therefor. In such cases, the employer would be saving a lot in case the authority refuses to grant approval to the action taken by the employer. If the workman is kept out of employment and approval is not granted, in that case, the employer has to pay for the entire period the full wages without any work or without any production.
15. Article 21 of the Constitution of India is the life of the Constitution. The Supreme Court has very marvelously and miraculously extended the horizons of this magnificent Article to protect against every conceivable injustice to the people of this country and even the non citizens have become entitled to get relief under this article, if they satisfy the violation of the Article. This Article does not discriminate between an accused, prisoner or detenu. The courts have given them relief whenever they deserved in the given circumstances. This Article has given equal protection even to the undertrials and convicts. The Supreme Court has found right to education as implicit fundamental right in this Article. The Supreme Court has also held that right to social justice is also a fundamental right. The umbrella of social justice has been spread over to the extent of including an employee who was afflicted by an unfortunate disease and was given relief by applying the principles enunciated under Article 21. The Supreme Court has even held that a speedy trial of an accused was a fundamental right under this glorious Article.
16. Indeed a speedy trial and expeditious disposal of an industrial dispute has always remained mirage or an illusion for the working class. More than 25 years back, the Supreme Court in the case of Mahabir Jute Mills Ltd. v. Shibbanlal Saxena, 460 SCC L and S had given mandate that the labour matters should be given top priority and should not be allowed to be prolonged for long periods. It was further observed that inordinate delays would result in a situation causing embarassment both to the courts and to the parties. The Supreme Court further ordered that such matters should be disposed of by the High Courts within a year of the presentation of the petition. The present bulging shelves with the pendency of the petitions have defied, though helplessly, the aforesaid writ of mandamus issued by the Supreme Court.
17. Recently the Supreme Court has in the case of Roshan Deen v. Preeti Lal reported in 2001 AIR SCW 4577, conveyed the fundamental "Mantra" of the Articles 226 and 227 as under:--
The power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by product of a erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law."
These Articles are meant to do justice and to overreach injustice and not to thwart the course of justice on the feeble law point.
18. I need not stress the fact that wage is the real content of the Article 21. If we were to take out the wage content from this Article 21 it would be reduced t o a dead letter not worth even for a decoration. In the absence of the source of livelihood which is protected by Article 21, the other fundamental rights would sound hollow and empty words and would collapse in no time as a dilapidated house. The workman and his family should not be made to starve merely on the pretext that proceedings under Section 33(2)(b) for approval of the action taken by employer is pending though he is told by law that the jural relationship continues and he still carries the label that he is an employee of the applicant employer before the tribunal. This jural sense of employment must put bread in his empty belly. He cannot be denied the wage content of his jural relationship by drawing a fine distinction of law point that he has factually ceased to be in employment as the employer has already passed an order of dismissal/discharge though he still continues to be in the employment of the employer in Jaw. In the case of Fakirbhai, (supra) the Supreme Court was very much conscious of the delay in disposal of discharge/dismissal matters where the workmen concerned needed relief very badly. The Supreme Court has, therefore, considering the crucial aspect of the delay has given a great solace to the working class whose fate is covered under Section 33 of the Act as a whole not to be sub-divided by the sub-sections.
19. The aforesaid discussion is the essence of the wisdom which I have drawn from the following a few recent judgments of the Supreme Court. I am not quoting the quotable quotes from the said judgments to state what is very well known and well established needing no elaboration :--
i) C.E.S.C. Ltd. and Ors. v. Subhash Chandra Bose and Ors. :
"Page 462 para 30 : "......... The right to social justice is a fundamental right. Right to livelihood springs from the right to live guaranteed under Article 21. The health and strength of a worker is an integral facet of right to life. The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. Right to human dignity, development of personality, social protection, right to rest and leisure as fundamental human rights to common man mean nothing more than the status without means. To the tillers of the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers and hut dwellers, the civil and political rights are "mere cosmetic" rights. Socio-economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life. The Universal Declaration of Human Rights, International Convention of Economic, Social and Cultural Rights, recognise their needs which include right to food, clothing, housing, education, right to work, leisure, fair wages, decent working conditions, social security, right to physical or mental health, protection of their families as integral part of right to life. Our constitution in the Preamble and Part IV reinforces them compendiously as socio-economic justice, a bedrock to an egalitarian social order. The right to social and economic justice is thus a fundamental right."
ii) , Nilabari Behera (Smt.) Alias Lalita Behera v. State of Orissa and Ors.;
Page 746 Head Note : "Constitution of India - Article 21 - Convicts, prisoners and undertrials also have right under Article 21- State has strict duty to ensure that a citizen in custody of police or prison is not deprived of his right under Article 21 except in accordance with law."
iii) , Unni Krishnan J. P. and Ors. v. State of Andhra Pradesh and Ors.;
Page 655 :--Headnote para 166 :--"Though right to education is not stated expressly as a fundamental right, it is implicit in and flows from the right to life guaranteed under Article 21 having regard to the broad and expansive interpretation given by the Court. The right to education has been treated as one of transcendental importance. It has fundamental significance to the life of an individual and the nation. Without education being provided to the citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail."
iv) Consumer Education and Research Centre and Ors v. Union of India and Ors.;
"Head Note page 43 paras 20 and 22 :--The Jurisprudence of personhood or philosophy of the right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality. The expression "life" assured in Article 21 does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure."
v) , Dr. Ashok v. Union of India and Ors.;
Page 11 Head Note paras 4 and 5 :--"Right to life enshrined in Article 21 means right to have something more than survival and not mere existence or animal existence. It includes all those aspects of life which go to make a man's life meaningful, complete and worth living. By giving an extended meaning to the expression "life" in Article 21 the Supreme Court has brought health hazards due to pollution within it and so also the health hazards from use of harmful drugs."
vii) , Raj Deo Sharma v. The State of Bihar. It is observed, " Though it is not enumerated as a fundamental right in the Constitution, this Court has recognised the same (Speedy Trial) to be implicit in the spectrum of Article 21."
20. The Tribunal has rightly touched the Article 21.1 have merely tried to expand the idea briefly. Every legislation touching the question of livelihood or employment must yield to Article 21 of the Constitution of India, it gives freedom from starvation. The ratio of Fakirbhai read with the Jaipur Zilla (supra) unequivocally declares that all such workmen concerned under Section 33 of the I. D. Act shall not starve but shall have to live to outlive the litigation.
21. It however, needs to be clarified that this ratio is based on the firm foundational fact that the jural relationship of employer-employee subsists and not in other cases where the jural relationship comes to an end.
22. In the aforesaid circumstances, I do not find any fault with the reasoning of the Tribunal and there is no illegality or impropriety in the impugned order passed by the tribunal awarding remuneration equivalent to the suspension allowance or subsistence allowance under the Rules. The petition, therefore, stands dismissed with no orders as to costs.