The payment of subsistence allowance to an employee is a necessary facet of the right to life enshrined under Article 21 of the Constitution and cannot be denied to the employee.

1. The instant Appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 14.07.2008 rendered by learned Single Judge of this Court in OWP No. 555/2002 holding that the workman-respondent is entitled to the payment of subsistence allowance for the period of his suspension and that the Industrial Tribunal/Labour Court, Jammu and Kashmir, Jammu did not commit any error in law or facts in passing the Award dated 21.05.2002 by computing the aforesaid amount under Section 33-C(2) of the Industrial Disputes Act, 1947 (for brevity 'ID Act').

2. The facts are not in dispute. The workman-respondent was placed under suspension on 22.06.1997, which culminated into a regular departmental enquiry. In August, 1998 he was dismissed from service. It has also not been disputed that no suspension/subsistence allowance was paid to him during the period of suspen#31;sion. The Industrial Tribunal/Labour Court found that the workman-respondent was entitled to the payment of subsistence allowance as provided by Section 10-A of the Industrial Employment (Standing Orders) Act, 1946 (for brevity 1946 Act'). According to the Labour Court/Industrial Tribunal, the aforesaid provision makes it mandatory that whenever a workman is placed under suspension by an employer during the period of any enquiry into the charges of misconduct against him, the employer is obliged to pay the workman subsistence allowance as provided in Sub Clause (a) and (b) of Sub Section 1 of Section 10-A of 1946 Act. It is also clear from the aforesaid provision that in case the employer refuses to pay subsistence allow#31;ance then the workman could always approach the Labour Court under the ID Act for the payment of subsistence allowance.

3. Feeling aggrieved by the Award dated 21.5.2002 relatable to the instant Appeal, the appellant-employer preferred a Writ Petition, which has been dis#31;missed by the learned Single Judge and the argument based on Clause 28-c(v) of the Certified Standing Orders applicable to the appellant-employer's Mill has been rejected by observing that an employee on his dismissal pursuant to a regular enquiry would not be entitled to any 'wages' to which he would have been entitled had he been absolved of the charges. According to the learned Single Judge, Clause 28-c(v) does not deal with the subject of subsistence allowance/suspension allow#31;ance. The opinion expressed in the impugned judgment is that there is nothing in the Certified Standing Orders, which would debar a workman to claim his statutory right of receiving subsistence allowance under Section 10-A(2) of the 1946 Act, which guarantees to a workman the payment of subsistence allowance and casts a corresponding duty on the employer to pay the same during the pendency of the enquiry into the charges of misconduct. It is for that reason that the Certified Standing Order did not contain any provision eclipsing the right of an employee to claim subsistence allowance.

4. The other contention that the Labour Court lacked jurisdiction to decide the question of entitlement of the workman to claim subsistence allowance under Section 33-Q2), the learned Single Judge again found that the argument was without any substance. Rejecting the argument of the appellant that only a Refer#31;ence under Section 10 of the ID Act could have been sought, it has been observed that Section 10-A(2) of the 1946 Act places the controversy beyond any doubt that the workman is entitled to the payment of subsistence allowance and under Section 33-C(2) no adjudication with regard to entitlement was involved. Accordingly, the argument concerning jurisdictional error has also been rejected.

5. The learned Single Judge also opined that the payment of subsistence allowance to an employee is a necessary facet of right to life enshrined under Article 21 of the Constitution and the same cannot be denied to the employee because no one can be expected to face an enquiry without payment of sub