Allowed

M/S. Bajaj Electricals Ltd. v. v. Subramaniam and Anr.

Bombay HC1 Mar 2005WP/458/2005

Case brief

AI extract

What is this about?

This writ petition challenged an award by the National Industrial Tribunal regarding subsistence allowance entitlement during suspension. The Court held that Section 10-A of the Industrial Employment (Standing Orders) Act supersedes the more beneficial provisions of the Bombay Industrial Employment (Standing Orders) Rules and quashed the Tribunal's award while directing closure of proceedings.

What did the court decide?

Impugned award of 8th September, 2004 quashed and set aside; petitioner directed to conclude disciplinary proceedings within three months.

M/S. Bajaj Electricals Ltd. Vs v. Subramaniam… — Labour and Industrial Disputes | Bombay HC (2005)

¶1

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 O. O. C. J.

¶4

 WRIT PETITION NO.458 OF 2005

¶5

 M/s.Bajaj Electricals Limited ..Petitioner.

¶6

Vs.

¶7

 V. Subramaniam & anr. ..Respondents.

¶8

 Mr.C.U.Singh with Mr.P.M.Palshikar for the

¶9

 Petitioner.

¶10

 Mr.S.C.Naidu for Respondent No.1.

¶11

CORAM : DR.D.Y.CHANDRACHUD, J.

¶12

 1st March, 2005.

¶13

P.C.:

¶14

 1. Rule, by consent made returnable forthwith.

¶15

 Counsel appearing on behalf of Respondent No.1
 waives service. By consent, and at the request of
 counsel taken up for hearing and final disposal.

¶16

 2. The Petitioner suspended the First Respondent

¶17

¶18

 on 9th March, 2000 pending an enquiry into alleged

¶19

 acts of misconduct. During the pendency of the
 enquiry the First Respondent was paid subsistence
 allowance at the rate of 50% of the last drawn
 wages for the first 90 days, 75% for the next 90
 days and at the rate of 100% for the rest of the
 period. The First Respondent instituted a
 complaint under Section 33-A of the Industrial
 Disputes Act, 1947 before the National Industrial
 Tribunal contending that he was entitled to receive
 annual increments on the basic wages as well as
 Variable Dearness Compensatory allowance which had
 not been taken into consideration by the Petitioner
 in making its calculations of subsistence
 allowance. On these grounds, it was submitted that
 the Petitioner had during the pendency of a
 reference to adjudication changed the service
 conditions of the First Respondent which was
 redressable in a complaint under Section 33-A. The
 Petitioner filed its written statement contending
 that the First Respondent was not a "concerned
 workman" during the pendency of the reference since
 he had already accepted the benefits of two
 settlements signed with the Mumbai General

¶20

¶21

 Employees Association in 1996 and 2000. Further
 more it was also submitted that while determining
 the quantum of subsistence allowance the Petitioner
 had taken into account the last drawn wages paid
 before suspension and non-payment of annual
 increments and Dearness Compensatory allowance
 during the period of suspension did not amount to
 an illegal change within the meaning of Section 33
 of the Industrial Disputes Act, 1947.

¶22

 3. The Presiding Officer of the National
 Industrial Tribunal by his award dated 8th
 September, 2004 came to the conclusion that he had
 jurisdiction to entertain the complaint under
 Section 33-A. On merits, the Tribunal held that
 the First Respondent was entitled to the payment of
 annual increments and Dearness Allowance in
 computing his subsistence allowance. The Tribunal
 was of the view that Section 10-A(3) of the
 Industrial Employment (Standing Orders) Act, 1946
 saved provisions under any other law in regard to
 the payment of subsistence allowance which were
 more beneficial and that the provisions contained
 in Standing Order 23 of the Bombay Industrial

¶23

¶24

 Employment (Standing Orders) Rules, 1959 in their
 application to clerical and supervisory staff was
 one such provision under any other law for the time
 being in force.

¶25

 4. The award of the Tribunal has been questioned
 both on the maintainability of the complaint under
 Section 33-A as well as on the merits of the
 determination made by the Tribunal. In so far as
 the maintainability of the complaint is concerned,
 it was submitted that the First Respondent was a
 member of the Mumbai Labour union which had arrived
 at two settlements in 1996 and 2000. In the
 reference that was made to adjudication, on the
 demands of the All India Bajaj Electricals
 Federation an award was made by the Tribunal.
 However, the award was challenged before this Court
 in Writ Petition 1368 of 2004 which ended in a
 settlement that was arrived at between the parties
 on 14th December, 2004. As a result of the
 settlement, the employees situated at Mumbai, Pune
 and Wardha were excluded from the terms of the
 settlement. Hence, it was submitted that the First
 Respondent had no connection to the reference which

¶26

¶27

 was pending before the Industrial Tribunal and that
 the conditions precedent for the invocation of the
 jurisdiction under Section 33-A read with Section
 33 of the Act do not exist. In so far as the
 merits are concerned, it was urged that the workman
 was entitled to the benefit of subsistence
 allowance under Section 10-A of the Industrial
 Employment (Standing Orders) Act, 1946 which has
 been granted by the employer. In view of the
 judgment of the Supreme Court in B.D. Shetty v.
CEAT Ltd. (2002 1 CLR 69) the provisions of the
 Model Standing Orders cannot be construed as
 provisions of "any other law for the time being in
 force", since the aforesaid expression in sub
 section (3) of Section 10-A cannot comprehend the
 standing orders which are made under the Act of
 1946 and not under any otherindependent provision
 of law.

¶28

 5. On the other hand, it is submitted on behalf of
 the First Respondent that the reference to
 adjudication which was made before the National
 Industrial Tribunal on 8th May, 1997 covered
 various demands of the All India Bajaj Electricals

¶29

¶30

 Employees Federation and even according to the
 Petitioner the First Respondent as a member of the
 union was affiliated to the Federation. Hence, it
 was submitted that the First Respondent was clearly
 a workman concerned in the dispute within the
 meaning of Section 33(1)(a) of the Industrial
 Disputes Act, 1947 and that the complaint under
 Section 33-A was maintainable. In so far as the
 merits are concerned, it was submitted that the
 First Respondent was placed on suspension on 9th
 March, 2000 and that the enquiry officer submitted
 his report on 21st March, 2002. Hence, it was
 submitted that the enquiry must be deemed to have
 been concluded on the aforesaid date after which,
 the payment of subsistence allowance would cease to
 operate with reference to Section 10-A of the
 Industrial Employment (Standing Orders) Act, 1946.
 Thereafter, it was urged, the workman would be
 entitled to the benefit of subsistence allowance
 under the Standing Orders.

¶31

 6. For the purposes of these proceedings, it would
 be convenient to proceed on the assumption that the
 complaint which was instituted by the First

¶32

¶33

 Respondent under Section 33-A of the Industrial
 Disputes Act, 1947 was maintainable. This is
 because I am of the view that even on the aforesaid
 foundation the First Respondent had absolutely no
 case on merits and that consequently the award of
 the Industrial Tribunal is liable to be quashed and
 set aside.

¶34

 7. Section 10-A of the Industrial Employment
 (Standing Orders) Act, 1946 provides thus :

¶35

 "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 workman
 subsistence allowance -

¶36

 (a) at the rate of fifty per cent of wages
 which the workman was entitled to immediately
 preceding the date of such suspension, for the
 first ninety days of suspension; and

¶37

 (b) at the rate of seventy five per cent of

¶38

¶39

 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.

¶40

 (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, 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.

¶41

 (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

¶42

¶43

 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."

¶44

 8. These provisions were interpreted by a Division
 Bench of this Court in May & Baker Ltd. v.
Kishore Jaikishandas Icchaporia(1991 II CLR 176).
 This Court held while construing Section 10-A(3)
 that while the aforesaid provision saves those
 provisions in relation to the payment of
 subsistence allowance under any other lawfor the
 time being in force which are more beneficial than
 Section 10-A, the expression "other law" would not
 refer to the model standing orders or the certified
 standing orders since they are laws made under the
 provisions of parent act itself and not under any
 other law. The Model Standing Orders and Certified
 Standing Orders, held the Division Bench, "are laws
 no doubt but they are laws made under the
 provisions of the Act". They were held not to be
 provisions under any otherlaw. Hence, Section

¶45

¶46

 10-A would "supervene in relation to the payment of
 subsistence allowance over the provisions of the
 Model Standing Orders".

¶47

 9. This interpretation of Section 10-A by the
 Division Bench in May and Bakerwas accepted by the
 Supreme Court in B.D.Shetty’s case (supra) with the
 following observations :

¶48

 "It is plain from the very language of Section
 10-A(3) that the words ’provisions of such
 other law’ necessarily refer to the law other
 than one covered by the very Act and Rules
 made thereunder."

¶49

 10. The Tribunal in the present case held that sub
 section (3) of Section 10-A would save sub-rule 5A
 of Rule 23 of the Bombay Industrial Employment
 (Standing Orders) Rules 1959 which was more
 beneficial to the workman because it gave to the
 workman the benefit of basic wages, Dearness
 Allowance and other compensatory allowances in
 computing the subsistence allowance. This view of

¶50

¶51

 the Tribunal is ex-facie contrary to the law laid

¶52

 down by the Division Bench of this Court in May &
Baker Ltd (supra) which has now been affirmed by
 the Supreme Court in B.D.Shettyas having laid down
 the correct position in law.

¶53

 11. Counsel appearing on behalf of the First
 Respondent, however, submitted that Section 10-A(1)
 postulates the payment of subsistence allowance
 during the pendency of an enquiry and it was
 faintly urged that the enquiry must be deemed to
 have been completed on the submission of the report
 on 21st March, 2002. This submission cannot be
 accepted. The enquiry for the purposes of Section
 10-A(1) cannot be regarded as being concluded on
 the submission of the enquiry report. The enquiry
 officer is a delegate of the disciplinary authority
 for the purpose of holding and concluding the
 disciplinary enquiry. Upon the submission of the
 report the disciplinary authority has to take due
 steps in accordance with law.

¶54

 12. In the circumstances, the view of the Tribunal
 on merits is unsustainable. In view of the

¶55

¶56

 aforesaid conclusion, I have not considered it
 necessary to decide upon the question as to whether
 the complaint that was filed by the First
 Respondent was maintainable because even on the
 foundation that it was, I am of the view that the
 finding of the Tribunal on merits calls for
 interference under Article 226.

¶57

 13. The Petition is accordingly allowed. The
 impugned award of the Tribunal dated 8th September,
 2004 is quashed and set aside. The Petitioner
 shall take expeditious steps to conclude the
 disciplinary proceedings in any event within a
 period of three months from today.

¶58

 There shall be no order as to costs.

M/S. Bajaj Electricals Ltd. v. v. Subramaniam and Anr.

Case brief

What is this about?

What did the court decide?

M/S. Bajaj Electricals Ltd. v. v. Subramaniam and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Hindustan Lever Employees Union Vs Hindustan Lever Ltd. and Ors.

Lingappa Patel and Ors. Vs M/S. Borosil Glass Works Ltd. and Ors.

Mohammed Iqbal Yusuf Siddique Vs the Union of India and Ors.

M/S. Kalyani Exporters and Ors. Vs the Greater Bombay Co-Op. Bank Ltd. and Ors.

Premji Kanji Shah Vs Shramik Sahakari Bank Ltd. and Ors.

Balmer Lawrie and Co. Ltd. Vs Nivrutti N. Agalawe and Anr.