Statutory provisions governing subsistence allowance cannot be overridden by customary practices requiring attendance during suspension, as per Section 10A of the Industrial Employment (Standing Orders) Act, 1946.

JUDGMENT:

1. At the outset, Ms. Cox, learned Advocate appearing for the Petitioner seeks amendment to the Writ Petition to the extent of maintaining the challenge in the Writ Petition under the provisions of Article 227 of the Constitution on India in addition to the challenge under the provisions of Article 226. Proposed Draft Amendment is taken on record and marked ‘X’ for identification. Petitioner is permitted to amend the Writ Petition to the extent of the Draft Amendment. Amendment shall be carried out in the body of the Writ Petition within a period of one week from today. Re-verification stands dispensed with.

2. Petition raises an important point of law. Challenge in the Writ Petition is to the Award dated 13.08.2014 rejecting the Reference. Reference related to the Petitioner’s claim for seeking subsistence allowance which was denied by the Respondent – Company on the ground that the suspended employee did not attend the factory premises to mark his attendance at the factory gate in the muster / register provided for the purpose during his suspension. Award has held that denial of subsistence allowance is not contrary to law and justified, since the employee did not attend the factory everyday and sign the muster / register provided therefor.

3. Cause of the employee is espoused by the recognized Union in the Respondent – Company. According to Petitioner, it is not a requirement under the law requiring and/or to call upon a suspended employee to mark his physical attendance and sign the muster everyday at the factory gate as a pre-requisite for being paid subsistence allowance. In the present case, the employee has not attended the factory each day and signed the muster due to which he has been denied subsistence allowance. This is upheld by the Labour Court.

4. Briefly stated, the facts necessary for the adjudication of the present case are as under:-

4.1. The employee in question is one Mr. Natubhai Mohanlal Patel. Sometime in November 2002, Respondent – Company set up a Union called ‘Hindustan Lever Limited Daman Karmachari Sangh’ (the Petitioner herein). In and around February / March 2003, Respondent – Company sponsored another Union called ‘Association of Chemical Workers Union’. In the year 2003, the long term settlement in existence with the Respondent – Company came to an end. At that time, officers of the Respondent – Company were forcing workmen to sign on membership forms of the ‘Association of Chemical Workers Union’.

4.2. On 01.05.2003, the Petitioner – Union terminated the settlement under the provisions of law and submitted a fresh charter of demands. On 22.05.2003, Petitioner approached the office of the Commissioner of Labour for intervention in Wage Dispute Revision. Certain incident took place on 23.08.2003 when a police officer threatened Mr. Natubhai Patel (concerned workman) and compelled him to leave the factory premises so that the management of the Respondent – Company could force the other workmen to sign the settlement with the Respondent’s sponsored Union.

4.3. On 24.08.2003, Respondent – Company signed the settlement with the sponsored Union.

4.4. On 03.04.2004, an order of suspension was issue to Mr. Natubhai Patel alongwith a charge-sheet. Charge-sheet was also issued to five other employees who actively participated in formation of the Petitioner – Union.

4.5. On 23.04.2004, Petitioner - Un