2007 Supreme(Guj) 561

Gujarat High Court
Judgename :H.K.RATHOD
SURENDRANAGAR DISTRICT MILK PRODUCTS UNION LIMITED - Appellant
Versus
KIRTIBHAI KASTURBHAI PUNJARA - Respondent
Special Civil Application 22607 Of 2006
Decided On : 09/17/2007

Headnote:Point in Issue :

       In absence of any Service Rules whether workman employee entitled to full pay during the period of suspension?

       Head Note :

       Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Section 33-C(2) - Recovery application - Amount of - Subsistence allowance - Sustainability - Finding as to - The respondent was suspended without pay on ground of misconduct that after his transfer at C center he did not work and remained absent - He was ordered to be paid subsistence allowance and was directed to report once a day in office and on failure would not be entitle to subsistence allowance - On facts it is not disputed that there is no standing order or service rules with regard suspension - Even considering the implied power of employer to suspend the employee the petitioner was required to pay full wages or salary to him - Petitioner did not even paid suspension allowance as ordered - The contention that he did not reported for work and not signed the muster roll - But no notice was sent by petitioner to respondent in that regard - It is not also disputed that after the order of suspension no departmental inquiry was initiated and no charge-sheet was served on him - From the entire record intention of petitioner is very clear that conduct, attitude, lending intention of petitioner it is clear that what even order is issued by petitioner in absence of service rules is bad in law - Accordingly the Labour Court has rightly came to the conclusion that respondent workman was entitled to the full wages as subsistence allowance from petitioner - Hence, there is no substance in the present petition.

       Held :

       In absence of service rules, it is a pre-existing right of the respondent workman to claim the salary from the petitioner as a subsistence allowance. Looking to the conduct, attitude, tendency, intention of the petitioner, it is clear that whatever order is issued by petitioner in absence of service rules is with a view to keep away the respondent from the duty. Otherwise there is no other purpose which justified such suspension because from date of suspension, no charge-sheet, no departmental inquiry though more than 7 years have passed. That suggests the bad intention on the part of the petitioner. Therefore, according to Court opinion, the Labour Court has rightly examined the claim and decided it and come to the conclusion that respondent workman is entitled the full wages as subsistence allowance from the petitioner.

       The Labour Court has rightly considered the oral evidence appreciated the same and come to right conclusion that whenever service rules are not there and the workman in suspended then workman is entitled the full wages as a suspension allowance and in absence of service rules, question of putting the condition to report to sign muster is also not permissible because on one hand, the employer is suspending the employee on the apprehension that he will tamper with the evidence and record and on the other hand, the employer is calling the workman to report to sign the muster. These two things are completely contradictory to each other. Therefore, according to my opinion, the Labour Court after appreciating the oral as well as documentary evidence and in absence of service rules, considering that condition is not necessary to be observed by the respondent workman and another aspect not to pay suspension allowance to the respondent workman upto the period from 2000, naturally the workman may not report further in absence of subsistence allowance with the petitioner. Not to pay the subsistence allowance amounts to denying the opportunity to the respondent workman which caused great prejudice to the respondent workman who is maintaining the family in absence of the salary for more than 7 years, even though petitioner has not paid a single pie to the respondent workman except as ordered by this Court paid six months amount and Rs. 15,000/- additionally and reinstated him in November, 2006. Therefore, these are the steps taken by petitioner in pursuance to the order passed by this Court. [Para 8]

       It is necessary to note that in absence of preliminary inquiry and charge-sheet, the question of suspension does not arise. In Model Standing Orders 1946, Section 10-A where no provision is made to report daily for marking presence before establishment. So the suspension order was issued without charge-sheet. The suspension must be in or during pending enquiry. But, in this case, in absence of charge-sheet, there is no pending enquiry against respondent even though he was suspended. That suspension without any enquiry is bad or without jurisdiction or power. The power to suspend the employee is pending enquiry but when charge-sheet not served at all then there was no pending enquiry, therefore, suspension order itself is illegal and without any power in absence of rules. The provision of Model Standing Orders 1946 must be applicable and under Section 10-A, no such condition incorporated which required to mark presence daily. Therefore, the order of suspension with such condition itself is illegal.

        [Para 9]

       In view of Court observations and conclusion of the Labour Court is within jurisdiction which is not beyond the scope of Section 33-C(2) of the I.D. Act, 1947. The Labour Court has certainly power to examine the legal claim and decide it on the basis of evidence, merely raising the objection by employer against the recovery application which cannot ousted the jurisdiction of the Labour Court. Therefore, the view taken by Labour Court is correct, just, proper, legal and valid. [Para 16]

       Law Laid Down :

       In absence of preliminary inquiry and charge-sheet the question of suspension does not arise.

       Case Law Analysis :

       Commercial Co-operative Bank Ltd. vs. Pravin S. Mehta, 2007 (1) LLJ 513 [Para 10];; Kamta Parsad & Anr. vs. Presiding Officer, Labour Court, Guragaon & Anr., 2002 Lab I.C. 1934 (P & H) [Para 11];; Union of India & Ors. vs. Gulam Mohamed Ghanchi, 2006 (1) LLJ 33 [Para 12];; Mahalaxmi Co-operative Hsg. Soc. Ltd. vs. Dilip Singh Parocha & Ors., 2007 (1) CLR 475 [Para 13];; K.S. Periyaswamy vs. Bharath Earth Movers Ltd., Bangalore, 2006 (1) CLR 490 [Para 14];; Management of SS-7 Inam Byroji Primary Agricultural Co-operative Bank Ltd., Inam Byroji Post, Verrapandi vs. R. Natesan & Ors., 2007 (2) LLN 698 [Para 15].-Relied on

       Conclusion :

       In absence of Service Rules employee is entitled to full pay during the period of suspension and recovery application for the amount maintainable under the Act.

       Cases Referred :

       Sachidanand Lal vs. State of Bihar & Ors., 2007 (2) LLN 932;; Central Bank of India vs. P.S. Rajagopalan, AIR 1964 SC 743;; Peter D Jada & Anr. vs. Superintendent of Post Offices Udupi & Ors., 1989 ATC 225;; Fakirbhai Fulabhai Solanki vs. The Presiding Officer & Anr., 1986 LLJ 124;; Ram Lakhan etc. vs. Presiding Officer & Ors., 2000 (2) Scale 9;; State of Maharashtra vs. Chanderbhan, AIR 1983 SC 803;; Cpt. M. Paul Anthony vs. Bharat Gold Mines Limited & Anr., AIR 1999 SC 1416;; O.P. Gupta vs. Union of India, 1987 (4) SCC 328;; Indra Bhanu Gaur vs. Committee, Management of M.M. Degree College & Ors., 2003 Lab IC 3844;; Chief Post Master General vs. Rameshbhai L. Parmar, SCA No. 5080/04;; State of Punjab & Ors. vs. K.K. Sharma, 2003 AIR SCW 2792;; O.P. Gupta vs. Union of India, AIR 1987 SC 2257 = 1987 (4) SCC 328;; Khem Chand vs. Union of India, AIR 1958 SC 300;; Zonal Manager, Food Corporation of India vs. Khallel Ahmed Siddiqui, 1982 LIC 1140 (AP);; Balvantrai Ratilal Patel vs. State of Maharashtra, AIR 1968 SC 800;; V.P. Gidroniya vs. State of Madhya Pradesh & Anr., 1970 (1) SCC 362.

       Decided in Favour of :

       Respondent

       Petition Dismissed