Judgment

VENKATARAMIAH, 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 the appellant Fakirbhai Fulabhai Solanki against the Management of the Alembic Chemical Works Co. Ltd., Baroda.

2. During the pendency of a reference made under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) to the Industrial Tribunal, Gujarat the management 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 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 Shri R. A. Desai, Manager, Industrial Relations, Alembic Chemical Works Co. Ltd. admitting his guilt and tendering. apology. The disciplinary enquiry was held against all the three workmen including the appellant. At the conclusion of the enquiry the appellant was found guilty of the act of misconduct alleged to have been committed 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 workman as defined in the Explanation to sub-section (3) of section 33 of the Act and the permission of the Tribunal had to be obtained before dismissing him as required by sub-section (3) of section 33 of the Act, the management made an Application (IT) No. 88 of 1979 before the Tribunal for such permission. The appellant was, however, suspended from service with effect from 13-8-1979 pending disposal of the application before the Tribunal after he had been found guilty at the domestic enquiry but without any wages or allowances. The appellant 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) No. 434 of 1978. Both, the application under section 33(3) of the Act and the complaint under section 33A 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 appellant and rejected the complaint filed by him. Aggrieved by the said decision of the Tribunal the appellant has filed these two appeals.

3. In the Standing Orders governing the appellant there was no provision for payment of any subsistence allowance (either the whole of the allowance which the workman was entitled to draw 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 a 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.

4. In these appeals the learned counsel 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 the subsistence allowance it was not possible for him to 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 vitiate