Supreme Court of India
FAKIRBHAI FULABHAI SOLANKIversusPRESIDING OFFICER & ANR.
- Citation
- 1986 INSC 112
- Decided
- 8 May 1986
- Disposal
- Appeal(s) allowed
- Bench
- E S VENKATARAMIAH
Holding
A protected workman must be paid a reasonable subsistence allowance during the pendency of an application under Section 33(3); denial of such allowance violates natural justice and vitiates the tribunal's decision.
Summary
Fakirbhai Fulabhai Solanki, a protected workman, was found guilty of misconduct and suspended without pay pending the employer's application under Section 33(3) of the Industrial Disputes Act, 1947 for permission to dismiss him. No subsistence allowance was paid during the six‑year pendency of the application, and the Industrial Tribunal later granted the employer's dismissal request while rejecting the workman's complaint under Section 33A. The Supreme Court held that a protected workman must receive a reasonable subsistence allowance while an application under Section 33(3) is pending; denial of such allowance deprives him of a reasonable opportunity to defend himself, violating natural justice and vitiating the tribunal's proceedings. The Court also clarified that suspension does not terminate the employment relationship. Consequently, the Tribunal's award was set aside, the employer's application dismissed, the workman's complaint allowed, and he was ordered reinstated with full back wages and allowances.
Issues considered
- Whether denial of subsistence allowance to a protected workman during the pendency of an application under Section 33(3) of the Industrial Disputes Act violates the principles of natural justice.
- Whether such denial vitiates the proceedings before the Industrial Tribunal.
- Whether suspension of a workman pending a Section 33(3) application ends the master‑servant relationship.
- Whether a subsistence allowance is implied as a term of the employment contract in the absence of a standing order.
Legislation cited
- Industrial Disputes Act, 1947s. 33(1), s. 33(2)(b), s. 33(3), s. 33A
Subjects
Industrial Disputes ActSection 33(3)Section 33Aprotected workmansubsistence allowancenatural justicesuspensiondismissalemployment contract
Judgment
1059
FAKIRBHAI FUl.ABHAI SOLANKI
v. A
PRESIDING OFFICER & ANR.
MAY 8, 1986
[E,S. VENKATARAMIAH AND SABYASACHI MUKHARJI, JJ,]
B
Industrial Disputes Act, 1947 : s.33(3) - Subsistence
~allowance - Denial of - whether violates principles of natural
justice - Whether vitiates proceedings before the Tribunal •
._ Suspension from service - Whether puts an end to
relationship of master and servant - Right to subsistence
-t- allowance - Whether to be read into the Standing Orders. C
1 Administrative Law.
Labour disputes: Dismissal - Non-payment of Subsistence
allowance for the period of suspension - Whether violation of
principles of natural justice/reasonable opportunity to D
defend.
Sub-section (3) of s.33 of the Industrial Disputes Act,
,Al 1947 provides that no employer shall, during the pendency of
any proceeding in respect of an industrial dispute, take
- action against any protected workman concerned (a) by
altering, to his prejudice the conditions of service appli-
cable to him i1111ediately before the colmlll!!ncement of such
proceedings, or (b) by discharging or punishing, whether by
•· t dismissal or otherwise, such protected workman, save with the
E
express permission in writing of the authority before which
-~ the proceeding is pending. F
The appellant, a protected workman, was found guilty
after a disciplinary enquiry of the act of misconduct alleged
to have been comf.tted by him. The management made an
application before the Industrial Tribunal under sub-s.(3) of
s. 33 of the Act for peraission to dismiss him. lie was, G
-ti' however, suspended froa service with effect from August 13,
i 1979 pending disposal of the application but without any wages
or allowances. The appellant thereupon filed a complaint
before the Tribunal under s. 33A of the Act alleg~ng violation
It
1060 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
of s.33 by the management. In the standing orders governing
the appell1nt there was no provision for payment of any sub- \
sistence allowance during the pendency of an application under
s.33(3), The Tribunal while disposing of both the applications
granted permission to the management to dismiss the appellant
from service.
B
In these appeals by special leave it was contended for
the appellant that the permission accorded to the management ~
was vitiated as· the non-payment of subsistence allowance had
resulted in denial of reasonable opportunity to the appellant
to defend himself effectively before the Tribunal in the
proceedings under s.33(3) of the Act.
c
Allowing the appeal, the Court, i
HELD: l, The work.man against whom an application is made ,~
under s.33(3) of the Industrial Disputes Act, 1947 should be
0
paid reasonable 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 litigation before the
Tribunal. If no amount is paid during the pendency of such an
application, the work.man concerned can be said to have been
denied a reasonable opportunity to defend himself in the JI,
E
proceedings before the Tribunal. Such denial leads to viola-
tion of the principles of natural justice and consequently
vitiates the proceedings before the Tribunal and any decision
given in those proceedings against the workman concerned.
[1066 B-0]
i .
-
F
2, A workman does not cease to be a work.man until the
Tribunal grants permission under s.33(3) of the Act to dismiss L
him and the management does so pursuant to such permission. T
[1065 B-C]
An order of suspension by itself does not put an end to
G
the e!lployment. The work.man continues to be an employee during
the period of suspension. Though such an order prevents the
employee from rendering his services bUt that dbes not put an ~
end to the relationship of master and servant between the 'r
management and the work.man. [1065 C-D]
)fmU!g •t of Hotel hperia1 v. Hotel Workers' Union,
H
[1960] 1 SCR 476 and lanipar Colliery v. lbusban Si.Dgh & On.,
1959 LLJ Vol.II 231 distinguished.
FAKIRBHAI v. PRESIDING OFFICER 1061
State of Maharashtra v. Oiandrabban Tale, (1983] 2 SCR A
>f 387 and Iba Qiaad v. i.rl.on of India, (1963] Supp. 1 SCR 229
referred to.
3, If the order passed at the conclusion of a domestic
enquiry is only one of suspension (even though the management
B
has decided to dismiss him) where the workman has a chance of
being reinstated with back wages on the permission being
refused under s.33(3) of the Act, it cannot be said that the
•workman is not entitled to any monetary·relief at all. In such
a case the right of the workman to receive some reasonable
&S>Unt, which may be fixed either by the standing orders or in
the absence of any standing order by the authority before
which the application is pending by way of subsistence c
-t- allowance during the pendency of the application under s.33(3)
of the Act, with effect from the date of suspension should be
-I implied as a term of the contract of employment. (1070 I>-F]
4. The case fall:tng under s.33(1) of the Act is not in
D
any way different from a case falling under sub-s.(3) of s.33
and in both these cases previous permission of the authority
concerned should be obtained before any action is taken
against the workman concerned. In a case where the proceedings
are c011pleted and the order of dismissal is successfully
~ challenged on the ground of non-paYJl!llt of subsistence
E
-
allowance for the period of suspension during.the pendency of
the application under s.33(1) or s.33(3) of the Act, it shall
be open to the management to ask for the permission of the
authority again under s. 33(1) or s.33(3) of the Act after
paying or offering to pay to the workman concerned within a
t
~ reasonable time to be fixed by the authority the arrears of
subsistence allowance. (1071 A-D] F
~ In the instant case, no material has been placed before
the Court to show that the appellant had sufficient means to
defend himelf before the Tribunal. He has not been paid even
the barest subsistence allowance during the pendency of the
application under s.33(3) of the Act. Having regard to the G
circumstances of the case, grant of an opportunity to the
management to apply for pend.ssion again under s.33(3) of the
i Act is declined. The punishment of dismissal i111>osed on the
appellant appears to be excessive. The order/award of the
Tribunal is set aside. The application 118de by the management
H
1062 SUPREME COURT REPORTS [19861 2 s.c.R. \
A under s.33(3) of the Act is dismissed, and the complaint filed
by the appellant under s.33A of the Act accepted. The \
management is directed to reinstate the appellant in service
' with effect from the date of suspension and to pay him all the
wages and allowances, as if there was no break in the
continuity of his service. (1066 D-E; 1071 D-F]
B CIVIL APPELIATE JURISDICTION : Civil Appeal Nos. 545-
546(NL) of 1986,
From the Award dated 5.8.1985 of the Industrial Tribunal
at Gujarat in complaint No, (IT) 124 of 1979 and application
(IT) No. 88 of 1979 in reference (IT) No. 434 of 1978.
c
A.K. Goel for the Appellant. +
P.H. Parekh and Uday Lalit for the Respondents.
The Judgment of the Court was delivered by
])
Vl!NKATARAMIAH, J. These two appeals by special leave are ,...
filed under Article 136 of the Constitution of India against
the Order/Award dated 5.8.1985 in Application (IT) No. 88 of
1979 and Complaint (IT) No. 124 of 1979 in Reference (IT) No.
434 of 1978 on the file of the Industrial Tribunal, Gujarat by~
-
E the appellant Fakirbhai Fulabhai Solanki against the Manage-
ment of the Alembic Chemical Works Co. Ltd., Baroda.
During the pendency of a referen~e made under the
Industrial Disputes Act, 1947 (hereinafter referred to as 'the i,
Act') to the Industrial Tribunal, Gujarat the management
F
served a charge-sheet on the appellant who was one of the
workmen working in the factory belonging to the management of ~
the Alembic Chemical Works Co. Ltd., Baroda asking him to show
cause why disciplinary action should not be taken against him
for an alleged Act of misconduct said to have been committed
by him on July 12, 1979. The act of misconduct attributed to
G the appellant was that he was playing cards along with two
other workmen during the working hours of the factory. It was '..
alleged that the appellant had given a letter addressed to 'r
Shrl R.A. Desai, Manager, Industrial Relations, Alembic Chemi-
cal Works Co. Ltd. admitting his guilt and tendering apology.
The disciplinary enquiry was held against all the three work-
I'
FAKIRBHAI v. PRESIDING OFFICER [VENKATARA.ll!IAH, J,) 1063
A
f men including the appellant. At the conclusion of the enquiry
the appellant was found guilty of the act of misconduct
alleged to have been conmitted by him by the Inquiry Officer
Shri J.N. Patel, Director (Manufacturing) of the Alembic
Chemical Works Co. Ltd. and it was decided by the management
to dismiss him but because the appellant was a protected work- B
man as defined in the Explanation to sub-section (3) of sec-
tion 33 of the Act and the permission of the Tribunal had to
ibe obtained before dismissing lliin as required by sub-section
(3) of section 33 of the Act, the management made an applica-
tion (IT) No. 88 of 1979 before the Tribunal for such permis-
sion. The appellant was, however, suspended from service with
effect from 13. 8.1979 pending disposal of the application c
+before the Tribunal after he had been found guilty at the
domestic enquiry but without any wages or allowances. The
-1appellant also filed an application before the Tribunal under
section 33A of the Act complaining violation of section 33 of
the Act by the management. The complaint of the appellant was
registered as Complaint (IT) NO. 124 of 1979 in Reference (IT) D
No. 434 of 1978. Both, the application under section 33(3) of
the Act and the complaint under section 33 A of the Act, were
filed in the year 1979. The Tribunal was able to dispose of
them finally only on August 5, 1985. The Tribunal granted
..., permission to the management to dismiss the appe Hant and
rejected the complaint filed by him. Aggrieved by the said E
decision of the Tribunal the appellant has filed these two
appeals.
In the Standing Orders governir.g the appellant there was
· ~no provision for payment of any subsistence allowance (either
the whole of the allowance which the workman was entitled to F
jdraw or a part thereof) during the pendency of an application
)made by the management under section 33(3) of the Act for
permission to dismiss protected workman. Admittedly the
appellant was not paid any allowance from 13.8.1979 to August
5, 1985 on which date the Tribunal accorded its permission to
the management to dismiss him from service. G
,) In these appeals the learned counse 1 for the appellant
'(has confined his submission to the effect of non-payment of
any subsistence allowance on the decision of the Tribunal
under section 33(3) of the Act. It is urged by the learned
counsel for the appellant that since the appellant was denied H
1064 SUPREME COURT REPORTS [19861 2 s.c.R.
A
the subsistence allowance it was not possible for him to ·t
defend himself effectively before the Tribunal in the
proceedings relating to the permission prayed for by the
management under section 33(3) of the Act and, therefore, the
permission accorded by the Tribunal was vitiated. In support
of his case he has relled upon the decision of this Court in
B State of Maharashtra v. lllandrabhan Tale, [1983] 2 s.c.c.
387. In that case the respondent Chandrabhan Tale was a
Government servant. He was convicted and sentenced to~.
imprisonment by the Trial Court in a criminal case. He filed
an appeal against his conviction and sentence and remained on
bail throughout without undergoing the sentence of
c imprisonment. He was, however, kept under suspension pending
trial of the criminal case and was paid normal subsistencef
allowance under the main rule 21 of the Bombay Civil Services
Rules, 1959 from the ·date of his suspension until the date on~
which he was convicted and sentenced to imprisonment by the
Trial Court. But from the date of his conviction the
D subsistence allowance was reduced to the nominal sum of Re.I
per month under the second proviso to rule 15(1) (ii )(b) of the
Bombay Civil Services Rules, 1959. The order reducing his
subsistence allowance was questioned in this Court in the
above case. The Court held that the second proviso to rule
15(l)(ii)(b) of the Bombay Civil Services Rules, 1959 which._
E directed the reduction of the subsistence allowance to Re. I
-
per month was unreasonable and void. The Court further held
that a. civil servant under suspension was entitled to the
normal subsistence allowance even after his conviction by the
Trial Court pending consid~ration of his appeal filed against
his conviction until the appeal was disposed of finally one-f •
F way or the other, whether he was on bail or lodged in prison
on conviction by the Trial Court. Relying upon the above deci:~
sion the learned counsel for the appellant contended that(
there was denial of reasonable opportunity to the appellant to
defend himself before the Tribunal in the proceedings initiat-
ed by the application made under section 33(3) of the Act.
G
Sub-section (3) of section 33 of the Act provides that
notwithstanding anything contained in sub-section (2) thereof '-.
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
H
FAKIRBHAI v. PRESIDING OFFICER [VENKATARAMIAH, J.] 1065
A
altering, to the prejudice of such protected workman, the
f conditions of service applicable to him immediately before the
co111Dencement 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 proeeeding is pending. It follows B
from the provisions of sub-section (3) of section 33 of the
Act that the workman does not cease to be a w~rkman until the
Tribunal grants permission to dismiss the workman and the
,,. management dismisses the workman pursuant to such permission.
An order of suspension by itself does not put an end to the
employment. The workman continues to be an employee during the
period of suspension and it is for this raason ordinarily the c
various standing orders l.n force in several factories and
t industrial establishments provide for payment of subsistence
allowance which is normally less than the usual salary and
~ allowance that are paid to the workman concerned. An order of
suspension no doubt prevents the employee from rendering his
service but it does not put an end to the relationship of D
master and servant between the management and the workman.
When an applicaton is made under section 33(3) of the Act the
workman is entitled to defend himself before the Tribunal. In
those proceedings it is open to him to show that the domestic
enquiry held against him was not in accordance with law and
_.. principles of natural justice and the action proposed to be E
taken against him by the management is unjust and should not
be permitted. Sometimes it may be necessary to either of the
parties to lead evidence even before the Tribunal. The
proceedings before the Tribunal very-often take a long time to
, i come to an end. In this very case the proceedings were pending
before the Tribunal for nearly six years. Most of the workmen F
are not in a position to maintain themselves and the members
j_ of their families during the pendency of such proceedings. In
i 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.
In this case the appellant was in receipt of salary and G
allowances till the end of the disciplinary enquiry. But from
.> 13.8.1979 he was not paid even the barest subsistence
allowance till August 5, 1985 when the Tribunal passed its
1 order/award on the application of the management and the
complaint of the appellant. It is true that in the instant
case the Tribunal granted the application of the management H
1066 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
and rejected the complaint of the appellant. It was also quite
possible that the Tribunal could have rejected the application _.
of the management and upheld the complaint of the appellant in
which case the appellant would have been entitled to continue
to be an employee under the management of the factory and the
disciplinary enquiry held aginst him would have had no effect
B at all. 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 ls made
should be paid some amount by way of subsistence allowance to ~
enable him to maintain hi!llself and the members of his family
and also to meet the expenses of the litigation before the
c Tribunal. And if no al!k)unt 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 ·i-
the proceedings before the Tribunal. Such denial leads to
violation of principles of natural justice and consequently t
vitiates the proceedings before the Tribunal under sub-section
D (3) of section 33 of the Act and any decision given in those
proceedings against the worklllan concerned. No material has
been placed bef or~ us in this case to show that the appellant
had sufficient means to defend himself before the Tribunal. -
The learned counsel for the management however relied
upon the decision of this Court in the Management of Hotel "
Imperial, New Delhi & Ors. v. Hotel Workers' Union, [1960] 1
F
S.C.R. 476. In that case this Court was mainly concerned with
the right of the management to suspend a workman where the
management had taken a decision to dismiss him but could not
immediately give effect to such decision owing to the restric-
tion imposed by section 33(1) of the Act which required the f'
management to obtain the perlllission of the Tribunal when a
-
reference was pending adjudication before it. In that case I,.
this Court observed at pages 485, 488-489 thus: (
''We have, therefore, to see whether it would be
G reasonable for an Industrial Tribunal where it is
dealing with a case to which section 33 of the Act
applies, to imply a term in the contract giving
power to the naster to suspend a servant when the
master has come to the conclusion after necessary
enquiry that the servant has conmdtted misconduct
H and ought to be dismissed, but cannot do sq because
FAKIRBHAI v. PRESIDING OFFICER [VENKATARAMIAH, J,] 1067
A
of section 33. It is urged on behalf of the
f respondents that there is nothing in the language
of section 33 to warrant the conclusion that when
an employer has to apply under it for permission he
can suspend the workmen concerned. This argument,
however, begs the question because i.f there were B
any such provision in s. 33, it would be an express
provision in the statute authorising such
suspension and no further question of an implied
term would arise. What we have to see is whether in
the absence of an express provision to that effect
in s. 33, it will be reasonable for an Industrial
Tribunal in these extraordinary circumstances c
arising out of the effect of s. 33 to imply a term
in the contract giving power to the employer to
suspend the contract of employment, thus relieving
himself of the obligation to pay wages and
relieving the servant of the corresponding
obligation to render service. We are of opinion D
that in the peculiar circumstances which have
arisen on account of the enactment of s. 33, it is
but just and fair that Industrial Tribunals should
imply such a term in the contract of
employment ••••••••••••••••••
E
We are, therefore, of opinion that the
ordinary law of master and servant as to suspension
can be and should be held to have been modified in
view of the fundamental change introduced by s.
33 in that law and a term should bE! implied for
Industrial Tribunals in the contract of employment F
that if the master has held a proper enquiry and
come to the conclusion that the servant should be
dismissed and in consequence suspends him pending
the permission required under s. 33 he has the
power to order such suspension, thus suspending the
contract of employment temporarily, so that there G
is no obligation on him to pay wages and no
obligation on the servant to work. In dealing with
this point the basic and decisive consideration
introduced by s. 33 Olis t be borne in mind. The
undisputed COlllBOn law right of the master to
dismiss his servant for proper cause has been H
1068 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
subjected by s. 33 to a ban; and that in fairness
llllSt mean that, pending the removal of the said-+
statutory ban, the master can after holding a
proper enquiry temporarily terminate the relation-
ship of master and servant by suspending his
employee pending proceedings under s. 33. It
B follows therefore that if the tribunal grants
permission, the suspended contract would come to an
end and there will be no further obligation to pay
any wages after the date of suspension. If, on the"'
other hand, the permission is refused, the
suspension would be wrong and the workmen would be
c entitled to all his wages from the date of
suspension."
i
In the above decision it was laid down that the manage-t
ment should be deemed to possess the power to suspend an
employee in respect of whom a decision had been taken to
D dismiss him but an application for permission had to be filed
until the application for permission was decided. The Court in
giving the above decision also relied on an earlier decision ~
of the Court in Ranipur Colliery v. l!huban Singh & Ors.,
[ 1959] L. L. J. Vol. II 231. In that case it was pointed out
that but for the ban on the employer by section 33(1) the
E employer would have been entitled to dismiss the employee~
immediately after the completion of his enquiry on coming to
the conclusion that the employee was guilty of misconduct but
section 33 stepped in and stopped the employer from dismissing <II
the employees immediately on the conclusion of his enquiry and
compelled him to seek permission of the Tribunal.. It was,f,
F
therefore, held that it was reasonable that the employer
having done all that he could do to bring the contract of
service to an end should not be expected t..l continue payingJ
the employee thereafter. It was pointed out that in such a
case the employer would be justified in suspending the
employee without pay as the time taken by the Tribunal to
G
accord permission under section 33 of the Act was beyond the
control of the employer. Lastly, it was observed that this
would not cause any hardship to the employee for if the ~
Tribunal granted permission the employee would not get anyth-
ing from the date of his suspension without pay while if the Y
permission was refused he would be entitled to his back wages
H from such date.
FAKIRBHAI v. PRESIDING OFFICER [VENKATARAMIAH, J.] 1069
A
f But in neither of the above two decisions the Court
considered the question from the angle from which we have
approached the problem. In neither of them the Court had the
occasion to consider whether the denial of payment of
subsistence allowance during the pendency of the proceedings
under section 33(3) of the Act would amount to violation of B
principles of natural justice. They approached the question
from the angle of the common law right of a master to keep a
• workman under suspension either during the pendency of a
dom=stic enquiry into an act of misconduct alleged to have
been committed by a workman or during the pendency of an
application under section 33 of the Act. Those were perhaps
halcyon days when such applications were being disposed of c
quickly. If the Court had rea Used that such applications
t would take nearly six years as it has happened in this case
i thel.r view would have been different. An unscrupulous
management may by all possible means delay the proceedings so
that the workman may be driven to accept its terms instead of
defending himself in the proceedings under section 33(3) of D
the Act. To expect an ordinary workman to wait for such a long
-I time in these days is to expect something which is very
unusual to happen. Denial of payment of atleast a small amount
by way of subsistence allowance would amount to gross
unfairness.
~
E
-
Apart from the violation of the principles of natural
justice, the very concept of the relationship of master and
servant has undergone a sea-change since the date on which
Hotel 1-perial's case (supra) was decided. We have pointed out
that in that case this Court recognised the power of suspen-
sion without pay vested in the management after it had decided F
to dismiss an employee where it had to make an application for
permission under section 33(1) of the Act. The case falling
under sectior. 33(1) of the Act is not in any way different
from a case falling under sub-section (3) of section 33 and in
both these cases previous permission of the authority concern-
ed should be obtained before any action is taken against the G
workman concerned unlike a case falling under section 33(2)(b)
of the Act where only its approval to an action already taken
is required to be sought. This Court further observed in the
above decision that the management could relieve itself of the
obligation to pay wages during the period of such suspension.
Now what is the effect of suspension? Does it put an end to
the relationship of master and servant altogether? It does
1070 SUPREME COURT REPORTS [19861 2 s.c.R.
A
not. This Court has in its subsequent decision in Kliem Clland
v. Union of India, [1963] Supp. 1 S.C.R. 229, at pages 236-237 ~
observed thus :
"An order of suspension of a government servant
does not put an end to his service under the
B Government. He continues to be a member of the
service in spite of the order of suspension ••••
The real effect of the order of suspension is that +
though he continued to be a member of the
Government service he was not permitted to work,
and further, during che period of his suspension he
c was paid only some allowance - generally called
"subsistence allowance" - which is normally less
than his salary - instead of the pay and allowances
t
he would have been entitled to if he had not been ~
suspended. There is no doubt that the order of
suspension affects a government servant
D injuriously. 'fllere is no basis for thinking however
that because of the order of suspension he ceases
to be a member of the service." -
If the order passed at the conclusion of domestic enquiry
is only one of suspension (even though the management has
E decided to dismiss him) where the workman has a chance of
-
being reinstated with back wages on the permission being
refused under section 33(3) of the Act, it cannot be said that
the workman is not entitled to any monetary relief at all. In
such a case the right of the workman to receive some
reasonable amount which may be fixed either by the Standing
F Orders or in the absence of any Standing Order by the
authority before which the application is pending by way of
subsistence allowance during the pendency of the application
under section 33(3) of the Act with effect from the date of
f
suspension should be implied as a term of the contract of
employment having regard to the observat tons made in Kbea
G Chand's case (supra). In the two earlier decisions referred to
above this aspect of the matter has not been considered.
It is likely that in some cases filed under section 33(1) r
or section 33(3) of the Act (which are 'permission' clauses
and not 'approval' clauses) pending before any authority, the
H management may not be payl.ng any subsistence allowance to the
workman concerned. We, therefore, clarify that in such cases
FAKIRBHAI v. PRESIDING OFFICER [VENKATARAMIAH, J.] 1071
A
it shall be open to the management to pay within a reasonable
t time to be fixed by the authority, the subsistence allowance
for the period during which the workman is kept under
suspension without wages and to continue the proceedings. Such
subsistence allowance shall be the amount flxed under the
Standing Orders, if any, which the management is H.able to pay B
to the workman if he is kept under suspension during the
pendency of such application or in the absence of any such
Standing Order by the authrity before which such application
~ls pending. In a case where the proceedings are completed and
the order of dismissal ts successfully challenged on the
ground of non-payment of subsistence allowance for the period
of suspension during the pendency of the application under c
j_ section 33(1) or section 33(3) of the Act it shall be open to
r the management to ask for the permission of the authority
'+again under section 33(1) or section 33(3) of the Act after
paying or offering to pay to the workman concerned within a
reasonable time to be fixed by the authority concerned the
arrears of subsistence allowance at the rate stated above. But D
in the instant case however having regard to the circumstances
-1 of this case we do not wish to grant any such opportunity to
the management to apply for permission again under section
33(3) of the Act. On facts we are of the view that the punish-
ment of dismissal imposed in this case on the appellant
r appears to be excessive but our decision however is not based E
on this ground.
- We, therefore, set aside the order/award of the Tribunal
and dismiss the application made by the management under
, 1 section 33(3) of the Act. We accept the complaint filed by the
appellant under section 33A of the Act. The management is F
directed to reinstate the appellant in its service and to pay
fhim all the wages and allowances due to him from August 13,
, 1979 as if there was no break in the continuity of his
service. The appeals are accordingly allowed •rlth costs.
G
P. S.S. Appeals allowed.
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