Mukesh Motilal Macwan vs Steelco Gujarat Limited

C.L. Soni, J. (Oral)—Since in all these petitions, a common issue is raised in connection with the claim for payment of subsistence allowance at the enhanced rate, the petitions are heard together.

It appears that pending Reference (IT) No.3 of 2012, orders for removal of the petitioners from service were made by respondent No.1- the employer following the departmental inquiry held against them. Respondent No.1 therefore, filed three different applications, titled as ''Permission Application'' under Section 33(3) of the Industrial Disputes Act (''the Act'') seeking permission to remove the petitioners from service.

It further appears that pending the departmental inquiry, the petitioners were suspended and they were paid subsistence allowance. However in the pending permission applications, the petitioners moved different applications seeking enhancement in the subsistence allowance. Such applications of the petitioners came to be rejected by the Industrial Tribunal (''the Tribunal'') by the impugned orders.

Learned advocate Mr. Mishra for the petitioners submitted that on revision of wage, the petitioners had become entitled to more subsistence allowance. Mr. Mishra submitted that as per 2(p) settlement between the company and the workmen, for rise in the pay and other benefits, the petitioners shall be otherwise entitled to subsistence allowance at the enhanced rate. Mr. Mishra submitted that the Tribunal has committed serious error in rejecting the applications on the ground that the petitioners have challenged the settlement and therefore, they are not entitled to claim any benefits under the settlement and that in the permission applications, the petitioners are not entitled to ask for enhancement in the subsistence allowance. Mr. Mishra submitted that as per the settled principle of law, periodical review of the amount of the subsistence allowance pending the departmental inquiry is to be made by the employer, however in the present case, though there is settlement for giving rise in the pay consequently, there will be enhancement in the rate of subsistence allowance, still however, in absence of any periodical review of the amount of the subsistence allowance, the petitioners are being deprived of the benefit of enhancement in the subsistence allowance.

Learned advocate Mr. Nisarg Desai appearing for Nanavati Associates, Advocate for respondent No. 1 in each matter, submitted that the Labour Court has rightly come to the conclusion that since the petitioners have not signed the settlement and have in fact challenged the settlement, the petitioners cannot claim any benefit under the settlement. Mr. Desai submitted that in any case, the claim of the petitioners for enhanced rate of subsistence allowance cannot be decided in the pending permission applications as deciding of such issue would amount to go beyond the scope of the permission application under Section 33(3) of the Act. Mr. Desai submitted that in any case, on conclusion of the departmental inquiry, the petitioners are removed from service and therefore, there is no question of considering the claim of the petitioners for grant of enhanced rate of subsistence allowance. He therefore, urged not to interfere with the orders made by the Tribunal.

Having heard learned advocates for the parties and having perused the impugned orders made by the Tribunal it appears that since removal orders were made pending the reference, the respondent no.1 has moved permission applications for approval of the removal orders against each of the petitioners under Section 33(3) of the Act. Section 33(3) of the Act reads as under:-

(3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute -

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.

As per the above provisions, the authority before which the reference is pending, is to decide the issue as to whether permission sought for by the employer is to be granted or not. It may be that till the permission is granted by the concerned authority under Section 33(3)(b) of the Act, the employee shall continue to be entitled to receive subsistence allowance. However such would not be a ground to say that the employee can raise a dispute about his entitlement to get higher amount of subsistence allowance in the proceeding of permission application. When a claim is made to get higher amount of subsistence allowance and when there is opposition to such claim by the employer, it is a sort of dispute to be resolved before appropriate forum. So far as the proceedings pending under Section 33(3)(b) of the Act are concerned, it is limited to grant or refuse permission known as approval to the action of the employer to discharge or dismiss the employee from service. The Court, therefore finds that the Tribunal has rightly observed in the impugned order that in an application for permission, the Tribunal is to decide whether to grant approval to the order of dismissal/removal of the employee or not. The Tribunal has also observed that it is not the case of the petitioners that the petitioners are not at all paid subsistence allowance. Learned advocate Mr. Mishra however relied on the decision of Hon''ble Supreme Court in the case of Umesh Chandra Misra v. Union of India and others reported in 1993 Supp (2) SCC 210, so as to submit that as held by Hon''ble Supreme Court in the said decision, there has to be periodical review for the amount of subsistence allowance and if there is increase in the rate of subsistence allowance, the employee under suspension is to be made entitled to subsistence allowance at the enhanced rate. The Court finds that in the facts of the present case, the decision in the case of Umesh Chandra Misra (supra), will have no application. In the said case, proceedings before the Payment of Wages Authority under Section 15 of the Payment of Wages Act for recovery of the dues of the employees were pending. Hon''ble Supreme Court has observed that though payment of wages authority could not have gone into the question as regards payment of subsistence allowance, however in the facts of the case, Hon''ble Supreme Court did not think it fit to send the matter to the concerned authority and finding that appeals before the concerned authority were pending right from 1987 and the claim for subsistence allowance related to the period of November 1975 and February 1977, being a small claim and also finding that the claim was governed by the circular of the Railway as well as the rule of the railway, directed the Railway to pay subsistence allowance to the appellant therein.

Irrespective of the above aspects of the matter, the Tribunal has also considered that the petitioners have not signed the settlement and in fact have challenged the settlement and it was only under the settlement, the benefit of pay revision and other benefits were available to the employees who had signed the settlement. The petitioners are thus found not entitled even as per the settlement to claim any amount of subsistence allowance at the enhanced rate. In such view of the matter, the Court finds that the approach taken by the Tribunal in not accepting the claim of the petitioners for enhanced rate of subsistence allowance cannot be said to be in anyway perverse or illegal so as to call for interference in the impugned orders in exercise of the powers under Article 226 of the Constitution of India. The petitions are therefore, rejected. Notice is discharged in each petition.