At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE A.P. SHAH
For the Appearing Parties: ----
A. P. SHAH, J.
( 1 ) THIS petition under Article 226 of the Constitution of India challenges the Awards Part I and Part II dated August 17, 1994 and December 19, 1994 respectively passed by the 3rd Labour Court, Mumbai in Reference (IDA) No. 161 of 1987 a proceeding under the provisions of the Industrial Disputes Act, 1947.
( 2 ) THE petitioner is a company engaged in the business of manufacturing heavy engineering items. The 1st respondent was employed as watchman in the petitioner's company sometime in 1966. On December 13, 1984 the then Managing Director of the company while taking a round found that the 1st respondent had deserted his plant (sic) and was chitchatting with his colleagues at some other plant. On the next day the 1st respondent gave a written apology admitting the mistake and assuring that he would not commit such mistake in future and requested that he may be given one more chance. The 1st respondent was charge-sheeted for the above misconduct. During the enquiry the 1st respondent retracted his confession and claimed that the apology was given under coercion. The enquiry officer gave his report holding the 1st respondent guilty of misconduct. Consequently by letter dated May 6, 1986 the workman was dismissed from service.
( 3 ) THE workman raised an industrial dispute for reinstatement which resulted in a Reference (IDA) No. 161 of 1987 to the 3rd Labour Court at Bombay. By Part I award dated August 17, 1994 the Labour Court held that the enquiry was not fair and proper. It seems that no evidence was led by the company after the award Part I was made although opportunity was given to adduce evidence to establish the misconduct. By award Part II dated December 14, 1994 the Labour Court directed reinstatement of the workman with full back wages.
( 4 ) IT is required to be stated at this stage that the workman has been reinstated in service. Thus the present petition is confined only to the issue of back wages. Shri Singh learned counsel for the petitioners contended that enquiry was not challenged by the workman on the ground of non-payment of subsistence allowance. No such averment was made in the statement of claim. It is for the first time before the Labour Court workman has deposed that he was not paid the subsistence allowance during the suspension period of 15 months. Mr. Singh submitted that in the absence of any pleadings the Labour Court was not right in holding that the enquiry was vitiated on the ground of nonpayment of subsistence allowance. Secondly Mr. Singh submitted that the workman and his representative participated in the enquiry initially but thereafter they remained absent and, therefore, the enquiry officer had to proceed ex-parte. Under the circumstances it cannot be said that there was violation of the principles of natural justice. In any event Mr. Singh submitted that the Labour Court ought not to have granted full back wages since the employee has accepted his guilt in the apology letter. Mr. Singh submitted that the company is declared as sick undertaking by the BIFR. Mr. Singh submitted that taking into consideration these circumstances the Labour Court ought not to have granted back wages to the workman.
( 5 ) MR. Ganguli, for the workman submitted that the workman has deposed in his evidence that no subsistence allowance was paid to him during the suspension period. This statement was not challenged by the management. No evidence was led to show that the subsistence allowance was paid to the workman. Under the circumstances the Labour Court was right in holding that the inquiry was vitiated. Mr. Ganguli relied upon the judgment of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. 1999-1-LLJ-1094 (SC ). Mr. Ganguli submitted that xerox copies produced by the company are totally illegible and therefore the Labour Court was fully justified in not placing reliance upon the said copies. Mr. Ganguli submitted that the workman was not employed during the period of suspension. The Labour Court has therefore rightly granted full back wages and this Court sitting in writ jurisdiction should not interfere with the said order.
( 6 ) IT is not disputed before me by Mr. Singh that the subsistence allowance was not paid to the workman during the suspension period. The workman has deposed to that effect in the examination in chief and there is no challenge to the same in the cross examination. The Labour Court relied upon the decision of this Court reported in Madhukar Janaradhan Mulay v. State of Maharashtra and Ors. 1989 I CLR 35 and held that the enquiry was vitiated on the ground that the workman, was not paid the subsistence allowance during the pendency of the enquiry in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. (supra) the Supreme Court held that the provisions of payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'subsistence allowance', so that the employee may sustain himself. The very object of paying the reduced salary to the employee during the period of suspension would be frustrated if even subsistence allowance is not paid because 'subsistence' means of supporting life, especially a minimum livelihood. The act of non-payment of subsistence allowance can be likened to slow poisoning as the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance would gradually starve himself to death. In the instant case it is not the case of the company that the subsistence allowance was paid to the employees during the suspension period which lasted for nearly 15 months. The workman was employed on a meagre, salary as a watchman. Even the token amount of subsistence allowance was not paid to him during the suspension period. It is true that this ground is not specifically raised in the statement of claim but having regard to the fact that the company is unable to lead any evidence to show that the payment of subsistence allowance was made, no interference is called for with the finding of the Labour Court in writ jurisdiction of this Court under Article 226 of the Constitution of India.
( 7 ) SECONDLY the enquiry papers are also not produced before the Court. There is nothing to indicate that the date of the enquiry was communicated to the workman or his representative. The xerox copies produced by the company are unreadable. Thus the Labour Court has rightly come to the conclusion that the enquiry was not fair and proper. It is not disputed that opportunity was given to the company for leading evidence to establish the charge of misconduct. However, no evidence was led and thus the Labour Court has rightly ordered reinstatement.
( 8 ) NORMALLY reinstatem
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ent of a person in service should carry direction of payment of back wages. However, I feel in the present case awarding 50% of the back wages will be justified. As stated earlier there is a letter of the workman himself put on record admitting the guilt on his part. The company is before the BIFR and it is declared a sick unit. Under the circumstances award of full back wages is not possible and sustainable. In my opinion the ends of justice would be served if the company is directed to pay 50% of the back wages. Accordingly the order of the Labour Court is partly modified directing that the workman would be entitled to 50% of the back wages instead of 100% back wages. ( 9 ) RULE is made partly absolute. Petitioner to pay the back wages within eight weeks.