Madhya Pradesh High Court
Jabalpur Municipal Corporation vs Presiding Officer, Labour Court And ... on 13 February, 1987
Equivalent citations: (1994)IIILLJ912MP
Author: N.D. Ojha
Bench: N.D. Ojha
JUDGMENT N.D. Ojha, C.J.
1. This writ petition has been filed by the Jabalpur Municipal Corporation challenging the order dated 9th December, 1986 (Annexure-D) passed by respondent No. 1 whereby the petitioner has been directed to pay 75% of the salary payable to respondent No. 2 as subsistence allowance. The facts in a nutshell relevant for determination of the writ petition are that respondent No. 2 is an employee of the petitioner. He was suspended admittedly more than six months prior to passing of the impugned order. He made an application under Section 33C(2) of the Industrial Disputes Act (hereinafter referred to as the Act) for a direction to the petitioner to pay to him subsistence allowance calculated at the rate of 75% of the salary. This application has been allowed by the Presiding Officer, Labour Court, Jabalpur, respondent No. 1. It has been urged by the counsel for the petitioner and has not been disputed by counsel either for respondent No. 1 or for respondent No. 2 who too is represented before us that Fundamental Rule 53 applies in the matter of payment of subsistence allowance to respondent No. 2. Clause (i) of the proviso to Sub-rule (1) of Rule 53 of the Fundamental Rules reads as follows:
"Provided that where the period of suspension exceeds six months the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period of the first six months as follows-
(i) the amount of subsistence allowance may be increased by a suitable amount not exceeding 50% of the subsistence allowance, admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant".
2. It has not been disputed before us by the counsel for the parties that subsistence allowance payable to respondent No. 2 during the first six months of his suspension would be 50% of the leave salary together with dearness allowance if admissible. Counsel for the petitioner has urged that the petitioner has no objection in so far as payment of this 50% of the leave salary together with dearness allowance if admissible is concerned. What has been urged by him is that in the exercise of the power conferred by Section 33C(2) of the Act, the Presiding Officer, respondent No. 1 did not have jurisdiction to himself raise the amount of subsistence allowance from 50% to 75% purporting to act under clause (i) of the proviso to Sub-rule (1) of Rule 53 of the Fundamental Rules. According to him it was the sole domain of the employer to increase the amount of subsistence allowance by suitable amount not exceeding 50% of the subsistence allowance admissible during the period of first six months.
3. It has not been disputed by counsel for respondent No. 2 that the employer has not passed any order as contemplated by the said Clause (i) of Sub-rule (1). The amount payable under clause (i) is not fixed to 50% of the subsistence allowance admissible during the period of first six months. What it contemplates is that there can be no increase in excess of 50% of the subsistence allowance admissible during the period of first six months, meaning hereby that this amount can vary from 50% to 75%.
4. In Central Inland Water Transport Corporation v. The Workmen (1975) I.S.C.R. 153 : AIR 1974 SC 1604, it was held that a proceeding under Section 33C(2) is a proceeding generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to me money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. It would thus be seen that the Labour Court, respondent No. 1, himself had no jurisdiction to adjudge the amount of subsistence allowance payable by the petitioner to respondent No. 2 in excess of 50% of the subsistence allowance admissible during the period of first six months. The impugned order passed by respondent No. 1 in so far as it directs the petitioner to pay subsistence allowance in excess of 50% admissible during the period of six months is concerned, is therefore, apparently without jurisdiction and deserves to be quashed.
5. In the result, this writ petition succeeds and is allowed in part to this extent that the impugned order passed by respondent No. 1, in so far as it has directed the petitioner to pay subsistence allowance to respondent No. 2 in excess of 50% of the subsistence allowance admissible during the period of first six months, is quashed. There shall be no order as to costs.