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CWP NO.16487 OF 2005 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CWP NO.16487 OF 2005

DATE OF DECISION: 22.11.2005

SCL Employees Union (Registered) ...Petitioner.

VERSUS

Union of India & others ..Respondents.

CORAM: HON'BLE MR.JUSTICE J.S. KHEHAR

HON'BLE MR.JUSTICE S.N. AGGARWAL

PRESENT: Mr. J.S. Bhatti, Advocate for the petitioner.

Mr. Arun Nehra, Advocate, as caveator, for respondent No.3.

J.S. Khehar, J.

The present controversy relates to the determination of the Management of

Messrs Semi Conductors Complex Limited (hereinafter referred to as 'SCL')
to role back the age of retirement of its employees from 60 years to 58
years. In order to appreciate the controversy raised in the instant writ
petition, it would be necessary to delve into the prescribed age of retirement
for employees of the SCL from time to time. The impugned order dated
17.1.12005 (Annexure P37), expressly notices that the age of CWP
NO.16487 OF 2005 retirement of employees of the SCL right from the
beginning was 58 years.

On 15.12.1989 a letter was issued by the Chairman-cum-Managing Director

of the SCL clearly specifying that the date of superannuation of employees of
the SCL will be the last working day of the month in which the employee
attains the age of 58 years. The age of retirement came to be changed on
30.5.1998 with the supersession of the earlier letter dated 15.12.1989. By
the instant order, the age of retirement of employees of the SCL was
enhanced from 58 years to 60 years.

The terms and conditions of retirement of employees of the SCL including

their age of retirement are expressed in the Certified Standing Orders of
Messrs Semi Conductors Complex Limited (hereinafter referred to as the
Certified Standing Orders). Clause 17-B of the Certified Standing Orders
wherein the age of retirement has been laid down is being extracted
hereunder:-

" The age of retirement or superannuation of a workman shall be as may be

agreed upon between the employer and the workmen under an agreement
or as specified in settlement or award which is binding on both the workman
and the employer. Where there is no such agreed age, retirement or
superannuation shall be on completion of 60 years of age by CWP NO.16487
OF 2005 3 workman."

A perusal of the relevant clause of the Certified Standing Orders, clearly

reveals that the age of retirement on attaining the age of superannuation
would be, as had been expressed in the individual agreement executed by
the SCL with the concerned employee, and in the absence of such an
individual agreement, the age of retirement would be 60 years.

The pleadings of the instant case coupled with the annexures appended
thereto reveal that clause 17B of the Certified Standing Orders did not
require any modification when all employees of the SCL were engaged with
the condition that their age of retirement on attaining the age of
superannuation would be 58 years, since in the said situation, the individual
contract executed with the employee had an over-riding effect.

Likewise, when the age of retirement was enhanced from 58 years to 60

years on 30.5.1998, no change was called for in clause 17B of the Certified
Standing Order, extracted above.

It would be relevant and pertinent to mention, that it was specifically

pointed out by the learned counsel for the petitioner-Union that a separate
agreement was executed by the management of the SCL with the petitioner
Union when the age of retirement was enhanced from 58 years to 60 years,
on the basis of the decision of the SCL dated 30.5.1998.

CWP NO.16487 OF 2005 4

The Ministry of Heavy Industry and Public Enterprises Government of India,
issued a memorandum dated 5.5.2000, whereby, it circulated a revised
voluntary retirement scheme. The aforesaid revised voluntary retirement
scheme is stated to have been adopted and circulated by the management
of the SCL through a memorandum dated 21.12.2001.

Those accepting voluntary retirement under the aforesaid scheme were to be

given benefits of retirement as if they had continued in the employment of
the SCL upto the age of 60 years.

On 9.5.2000 the Ministry of Heavy Industry and Public Enterprises,

Government of India, issued another memorandum proposing to role back
the age of retirement from 60 years to 58 years, in case of sick and
financially unviable public sector undertakings. It is the case of the petitioner
Union that on the basis of the aforesaid communication, it was resolved by
the SCL to role back the age of retirement from 60 years to 58 years. Having
taken the aforesaid decision, an application was filed by the SCL, before the
Certifying Officer (under the „

   
  
 
), seeking a modification of clause 17B of the Certified Standing Orders.
The modification sought through the aforesaid application was to the
following effect:- "17B Age of retirement The age of retirement shall be
58 CWP NO.16487 OF 2005 years and the workman shall retire from service
on the afternoon of the last date of month in which he/she attains the age of
58 years."

The Certifying Officer by an order dated 9.6.2003, rejected the claim of the
management of the SCL, by disallowing the role back in the age of
retirement from 60 years to 58 years. Dissatisfied with the order passed by
the Certifying Officer, SCL preferred an appeal under section 6 of the
„

   
  
  , read with rule 7A of the
Industrial Employment (Standing Orders) Central Rules, 1946. The Deputy
Chief Labour Commissioner ( C), Ministry of Labour, as the appellate
authority, accepted the appeal preferred by the SCL on 17.1.2005 by
accepting the modification of clause 17B of the Certified Standing Order, as
had been proposed by the SCL. In sum and substance, the contention of the
SCL for a role back in the age of retirement from 60 years to 58 years was
accepted by the appellate authority.

The order passed by the appellate authority is subject matter of challenge

through in the instant writ petition. It would be necessary to highlight, the
primary difference between the order passed by the Certifying Officer dated
9.6.2003 and the order dated 17.1.2005. While rejecting the claim of the
SCL for a rolling CWP NO.16487 OF 2005 back of the age of retirement from
60 years to 58 years, the Certifying Officer had relied on the circular issued
by the Ministry of Heavy Industries and Public Enterprises dated 9.5.2000,
and thereupon concluded, that the recommendation made by the said
Ministry was applicable only to sick and financially unviable public sector
undertakings. In the opinion of the Certifying Officer, the aforesaid
recommendation had been made for the purposes of rehabilitation of the
sick and financially unviable public sector undertakings as a revival package.
In so far as the appellate authority is concerned, it took into consideration a
memorandum issued by the Ministry of Heavy Industries and Public
Enterprises, Government of India, dated 22.8.2001, which proposed the
implementation of the role back in the age of retirement from 60 years to 58
years of all public sector undertakings, by extending the proposal earlier
mooted through the memorandum dated 9.5.2000, which was originally
applicable only to sick and financially unviable public sector undertakings, to
all public sector undertakings. The appellate authority arrived at the
conclusion, that on the issuance of the memorandum dated 22.8.2001, the
issue whether a public sector undertaking was sick or financially unviable,
ceased to be significant. The appellate authority, therefore, arrived at the
conclusion that the action of the SCL in rolling back the age of retirement
from 60 years to 58 years, was CWP NO.16487 OF 2005 based on the
recommendation of the Ministry of Heavy Industries and Public Enterprises
and as such, was fully justified.

The first contention of the learned counsel for the petitioner is, that the SCL
had resolved to role back the age of retirement from 60 years to 58 years,
on the basis of the memorandum dated 9.5.2000. Since the determination of
the SCL, based on the memorandum dated 9.5.2000, had neither been
withdrawn nor superseded, it should be accepted that the SCL had
determined the issue of role back on the basis of the memorandum dated
9.5.2000 and not on the basis of the memorandum dated 22.8.2001. It is
not possible for us to accept the instant contention of the learned counsel for
the petitioner, as there is no basis or foundation for the same either in the
pleadings in the instant petition or in the various documents appended
thereto. The Board of Directors of the SCL resolved to role back the age of
retirement on 15.6.2002, on which date both the memoranda dated
9.5.2000 and 22.8.2001 were in existence. As such, it would only be just
and appropriate to conclude that the resolution dated 15.6.2002 was based
on the memorandum dated 22.8.2001 and even if (though this is not the
case of the petitioner) reference has wrongly been made to the
memorandum dated 9.5.2000, that would have no effect whatsoever in
determining the validity o the action taken by the SCL. For the reasons
recorded above, it is CWP NO.16487 OF 2005 not possible for us to accept
that the memorandum dated 9.5.2000 was the basis of the determination of
the SCL.
The second contention of the learned counsel for the petitioner is that the
role back of the age of retirement from 60 years to 58 years has adversely
affected the civil rights of the members of the petitioner Union, inasmuch as,
they will attain the age of retirement two years before the age of retirement
earlier stipulated by the SCL. It is the vehement contention of the learned
counsel for the petitioner, that after the SCL's decision dated 30.5.1998 the
employees of the SCL started to retire on attaining the age of
superannuation at 60 years, however, by this role back finally adjudicated
upon by the appellate authority which allowed the amendment of clause 17B
of the Certified Standing Orders, all the employees of the SCL will now retire
two years prior to the age, at which they would superannuate on the basis of
the decision dated 30.5.1998. It is the contention of the learned counsel for
the petitioner, that before such a decision was taken by the SCL, which
adversely affected their civil rights, it was imperative for the SCL to follow
the rules of natural justice, inasmuch as the members of the petitioner Union
should have been informed the reason of the role back, as well as, afforded
an opportunity of hearing to repudiate the said determination. It is not
possible for us to accept the instant contention of CWP NO.16487 OF 2005
the learned counsel for the petitioner. The Apex Court in K. Nagraj and
others V. State of Andhra Pradesh and others, 1985(2) Service Law Reporter
337, has clearly arrived at the conclusion, that it is open to the competent
authority to enhance or reduce the age of retirement. In the aforesaid
determination, the Apex Court concluded, that if the policy adopted by the
authority enhancing or reducing the age of retirement, is shown to violate
the recognised norms of employment planning, it would be possible to say
that the policy is irrational, and in that event, it would be possible to
challenge the validity thereof. The Apex Court also recorded in its
conclusions that the reduction of the age of retirement, did not amount to
compulsory retirement, in the sense that employees who could earlier
continue in employment till a higher age, will have to retire at a lower age.

It also arrived at the conclusion that the action of reducing the age of
retirement did not violate the provisions of Articles 16 and 22 of the
  of India, so as to deprive the concerned employees the right of
livelihood for shorting their term of employment. In sum and substance, in
the controversy adjudicated upon by the Apex Court in K. Nagraj's case
(supra) the reduction in the age of retirement from 58 years to 55 years,
was upheld as valid. In view of the decision rendered in K. Nagraj's case B
(supra), it is not possible for us to accept that it was imperative for the CWP
NO.16487 OF 2005 respondents to follow the rules of natural justice before
enforcing the recommendation made by the Ministry of Heavy Industries and
Public Enterprises for a role back in the age of retirement.
Coupled with the contention noticed above, it is submitted that the members
of the petitioner union are gradually moving into the evening of their lives. It
is also pointed out that their children are now grown up, and therefore,
higher financial inputs are needed for their educational and other needs. It is
sought to be contended on the basis of the aforesaid facts, that the instant
action of the SCL, whereby, the age of superannuation has been reduced to
58 years, adversely affects the guarantee to life enshrined in Article 21 of
the   of India. It is pointed out that the constitutional guarantee
contained in Article 21, includes the right to an appropriate enjoyment of life
as well. This action of the SCL, according to learned counsel, will lead the
petitioners to destitution, in the evening of their lives. If one was to accept
the instant contention it would not be possible to ever retire any employee
from service because the submission advanced in reference to retirement at
the age of 58 years, will be ever more forceful at the age of 60 years, and
likewise at 62 years and 64 years etc.. For the reasons recorded above, as
well as, those recorded by the Supreme Court in K. Nagaraj's case (supra), it
is not CWP NO.16487 OF 2005 possible for us to accept the instant
submission advanced on behalf of the petitioner Union.

It is also the vehement contention of the learned counsel for the petitioner,
as was the case projected before the Certifying Officer, that the
memorandum dated 9.5.2000 was applicable only to sick and financially
unviable public sector undertakings, and since SCL was neither a sick nor an
unviable public sector undertaking, it could not rely on the memorandum
dated 9.5.2000, for the purpose of role back of the age of retirement. The
instant contention is clearly misconceived. As already noticed above, the
memorandum dated 9.5.2000 issued by the Ministry of Heavy Industries and
Public Enterprises, which was applicable only to sick and financially unviable
public sector undertakings, was extended to all public sector undertakings
through the memorandum dated 22.8.2001 (Annexure P32).

In view of the above, it is not possible for us to accept the contention of the
learned counsel for the petitioner that the action taken by the SCL was
based on the memorandum dated 9.5.2000.

It is also contended by the learned counsel for the petitioner that a

determination at the hands of the appellate authority under section 6 of the
„

   
  
  , is limited to, setting
aside or confirming an order passed by the Certifying Officer. In CWP
NO.16487 OF 2005 sum and substance, the instant contention of the learned
counsel for the petitioner is to the effect, that it was not open to the
appellate authority to pass an order substituting clause 17B of the Certified
Standing Order, as it earlier existed, by clause 17B, which was proposed to
be introduced as an amendment to the earlier clause. Section 6 of the
„

   
  
  , is being extracted
hereunder:- "6. Appeals.- (1) Any employer, workman, trade union or other
prescribed representatives of the workmen aggrieved by the order of the
Certifying Order under sub-section (2) of Section 5 may, within thirty days
from the date on which copies are sent under sub-section (3) of that section,
appeal to the appellate authority, and the appellate authority, whose
decision shall be final, shall by order in writing confirm the standing orders
either in the form certified by the Certifying Officer or after amending the
said standing orders by making such modifications thereof or additions
thereto as it thinks necessary to render the standing orders certifiable under
this Act.

(2) The appellate authority shall, within seven days of its order under sub-
section (1), send copies thereof of the CWP NO.16487 OF 2005 Certifying
Officer, to the employer and to the trade union or other prescribed
representatives of the workmen, accompanied, unless it has confirmed
without amendment the standing orders as certified by the Certifying Officer,
copies of the standing orders as certified by it and authenticated in the
prescribed manner." It is not possible for us to accept the instant contention
of the learned counsel for the petitioner that the appellate authority could
have only set aside or confirm the order passed by the Certifying Officer. In
fact, section 6 of the Act envisages that the appellate authority has the right
of "making such modifications thereof or additions thereto as it thinks
necessary" (with reference to the order passed by the Certifying Officer). In
view of the above, we are satisfied that the appellate authority had the
jurisdiction as well as the authority to pass the order dated 17.1.2005
(Annexure P37) by which it substituted the earlier clause 17B with clause
17B as proposed by the SCL.

No other contention was advanced on behalf of the petitioner.

Dismissed.

( J.S. Khehar )

Judge

( S.N. Aggarwal)

November 22, 2005. Judge

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Umesh C. Banerjee & K.G. Balakrishnan.

Banerjee, J.

Leave granted.

Relying upon the well-accepted and settled principles of law as regards the
norm of interference with the order of inferior Tribunals, the High Court
negated the plea of the Appellant herein that Certified Standing Order being
a part of the conditions of service, ought to be strictly interpreted and there
is no scope of reading into the same, some other element. It is in this score
the decision of this Court in Syed Yakoob (Syed Yakoob v. K.S.
Radhakrishnan & Ors. :AIR 1964 SC 477) ought to be noticed.

This Court in Yakoob's decision stated:

"7. The question about the limits of the jurisdiction of High Courts in issuing
a writ of certiorari under Art. 226 has been frequently considered by this
Court and the true legal position in that behalf is no longer in doubt. A writ
of certiorari can be issued for correcting errors of jurisdiction committed by
inferior courts or tribunals : these are cases where orders are passed by
inferior courts or tribunals without jurisdiction, or is in excess of it, or as a
result of failure to exercise jurisdiction. A writ can similarly be issued where
in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally
or improperly, as for instance, it decides a question without giving an
opportunity to be heard to the party affected by the order, or where the
procedure adopted in dealing with the dispute is opposed to principles of
natural justice.

There is, however, no doubt that the jurisdiction to issue a writ of certiorari
is a supervisory jurisdiction and the Court exercising it is not entitled to act
as an appellate Court. This limitation necessarily means that findings of fact
reached by the inferior Court or Tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ proceedings. An error of
law which is apparent on the face of the record can be corrected by a writ,
but not an error of fact, however grave it may appear to be. In regard to a
finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it
is shown that in recording the said finding, the Tribunal had erroneously
refused to admit admissible and material evidence, or had erroneously
admitted inadmissible evidence which has influenced the impugned finding.

Similarly, if a finding of fact is based on no evidence, that would be regarded

as an error of law which can be corrected by a writ of certiorari.

In dealing with this category of cases, however, we must always bear in

mind that a finding of fact recorded by the Tribunal cannot be challenged in
proceedings for a writ of certiorari on the ground that the relevant and
material evidence adduced before the Tribunal was insufficient or inadequate
to sustain the impugned finding. The adequacy or sufficiency of evidence led
on a point and the inference of fact to be drawn from the said finding are
within the exclusive jurisdiction of the Tribunal, and the said points cannot
be agitated before a writ Court. It is within these limits that the jurisdiction
conferred on the High Courts under Art. 226 to issue a writ of certiorari can
be legitimately exercised." The decision in Syed Yakoob (supra) stands
considered in a recent judgment of this Court in P.G.I. of Medical Education
& Research, Chandigarh v. Raj Kumar (2001 (2) SCC 54), wherein this Court
in paragraph 9 stated as below :

"9. The Labour Court being the final court of facts came to a conclusion that
payment of 60% wages would comply with the requirement of law.

The finding of perversity or being erroneous or not in accordance with law

shall have to be recorded with reasons in order to assail the finding of the
Tribunal or the Labour Court. It is not for the High Court to go into the
factual aspects of the matter and there is an existing limitation on the High
Court to that effect. In the event, however the finding of fact is based on
any misappreciation of evidence, that would be deemed to be an error of law
which can be corrected by a writ of certiorari. The law is well settled to the
effect that finding of the Labour Court cannot be challenged in a proceeding
in a writ of certiorari on the ground that the relevant and material evidence
adduced before the Labour Court was insufficient or inadequate though,
however, perversity of the order would warrant intervention of the High
Court. The observation, as above, stands well settled since the decision of
Radhakrishnan (AIR 1964 SC 477)." It is at this juncture the factual matrix
of the matter ought to be adverted : The facts reveal : The petitioner
company engaged Ram Bahagat, the respondent-workman as a Helper on
8.12.1980.
On 6.11.1989, he was promoted as Operator. For the discharge of his duties
against the post of Operator, he was deputed to work in the elector-plating
unit of the factory. He continued to work till 12.10.1990 and thereafter
absented himself without any prior information with effect from 13.10.1990.
The Management waited for some days and eventually addressed a
communication dated 17.10.1990 to the workman informing him that he had
been absenting himself from duty with effect from 13.10.1990, without
authorised leave or notice, he was advised to report back on duty within 48
hours of the receipt of the aforesaid letter and also to tender his explanation
for his absence. In the letter dated 17.10.1990, he was warned that in case
he failed to report for duty within the specified time, it would be presumed
that he was no longer interested in serving the management and his name
would be struck off from the rolls of the company under the Certified
Standing Orders of the Company. The respondent workman did not comply
with the condition stipulated in the letter dated 17.10.1990. He was
informed through registered post, vide letter dated 25.10.1990, that his
name had been removed from the muster rolls of the company. A perusal of
the aforesaid letter shows that the aforesaid action had been taken under
Clause 9(f) (ii) of the Certified Standing Orders of the Company, in view of
the fact that the respondent-workman had remained absent from duty for a
period of 10 days continuously. Clause 9(f)(ii) of the Certified Standing
Orders of the Company is being reproduced hereunder :- "9(f) Any workman
who, xxx xxx xxx (ii) absents himself for ten consecutive working days
without leave shall be deemed to have left the firm's service without notice,
thereby terminating his service." The respondent-workman is stated to have
refused to receive the registered communication dated 25.10.1990. He,
however, addressed a letter dated 30.1.1991 requesting the management to
take him back on duty. In the aforesaid letter, he informed the management
that he had been unwell during the period of his absence. In this behalf, he
also enclosed his medical certificate as also a fitness certificate. In the letter
dated 30.1.1991 he made a reference of the earlier letter dated 24.10.1990
sent by him to the management, requesting for leave on medical grounds.
On the same date i.e. 30.1.1991, he was informed that he had remained
absent from duty without getting sanctioned leave and without any notice to
the management, and that his name had been struck off from the rolls of
the company under the Certified Standing Orders of the Company, vide
letter dated 25.10.1990. Accordingly, the request of the respondent-
workman for being taken back on duty was declined.

Having failed to persuade the management to take him back into service,
the respondent-workman served a demand notice dated 29.3.1991. On
failure of conciliation proceedings, the State Government made a reference
of the dispute raised by the respondent-workman to the Presiding Officer,
Labour Court, Rohtak (hereinafter referred to as the 'Labour Court').
On the basis of the evidence produced by the respondent- workman, the
Labour Court concluded that almost the whole period of alleged absence of
the respondent-workman was proved to be on account of his illness and the
respondent-workman's absence from duty was not intentional. Having
arrived at the aforesaid conclusion, the Labour Court considered the validity
of the order of the management on the basis of clause 9(f)(ii) of the
Certified Standing Orders of the Company and held that the action of the
management in terminating the services of the respondent- workman was
not justified and thus ordered his reinstatement with continuity in service
along with 67% back wages and being aggrieved by the award of the Labour
Court dated 1.2.1999, the management approached the High Court through
a writ petition under Article 226 of the Constitution.

Significantly, the High Court did not, however, in the matter under
consideration find any misreading or mis-appreciation of evidence resulting
into perversity as regards the order of the Tribunal and thus concurred upon
the conclusion of the Tribunal The issue thus raised - Can it be said to be
within the jurisdiction of this Court under Article 136 of the Constitution to
intervene or interfere with an appraisal of evidence on record ? A further
question also in consequence thereof arises that in the event the High Court
records a finding in terms of the order of the Tribunal and in the event of a
party being aggrieved, would there be an inevitable refusal of this Court to
entertain Can it be said to be the true purport of our justice delivery system
? It is again answered in the negative by reason of the fact that in the event
of there being a misreading of law or applicability of law wrongly, the
intervention cannot but be said to be the correct approach to the matter.

Let us, therefore, analyse as to whether this particular Standing Order in

fact warrant a conclusion without anything further on record or to put it
differently - does it survive on its own and that being a part of the contract
of employment ought to govern the situation as is covered in the contextual
facts. This Court in DK Yadav's case [D.K. Yadav v. J.M.A. Industries Ltd.

(1993 (3) SCC 259)] strictly speaking did not answer the same in a
categorical fashion though undoubtedly read into Certified Standing Order
compliance with the doctrine of natural justice as also the principles
underlying in Article 14 of the Constitution.

The observations in Yadav (supra) seems to be rather apposite on this score.

As such the same is set out hereinbelow:

"8. The cardinal point that has to be borne in mind, in every case, is whether
the person concerned should have a reasonable opportunity of presenting
his case and the authority should act fairly, justly, reasonably and
impartially. It is not so much to act judicially but is to act fairly, namely, the
procedure adopted must be just, fair and reasonable in the particular
circumstances of the case. In other words application of the principles of
natural justice that no man should be condemned unheard intends to
prevent the authority from acting arbitrarily affecting the rights of the
concerned person.

9. It is a fundamental rule of law that no decision must be taken which will

affect the right of any person without first being informed of the case and
giving him/her an opportunity of putting forward his/her case. An order
involving civil consequences must be made consistently with the rules of
natural justice" It is on the basis of the aforesaid however, this Court in
Yadav (supra) upon consideration of the entire gamut of judicial precedents
since Anwar Ali [State of West Bengal v. Anwar Ali Sarkar (1952: SCR 284)]
came to the conclusion as below:

11. The law must therefore be now taken to be well-settled that procedure
prescribed for depriving a person of livelihood must meet the challenge of
Article 14 and such law would be liable to be tested on the anvil of Article 14
and the procedure prescribed by a statute or statutory rule or rules or orders
affecting the civil rights or result in civil consequences would have to answer
the requirement of Article 14. So it must be right, just and fair and not
arbitrary, fanciful or oppressive.

12. Therefore, fair play in action requires that the procedure adopted must
be just, fair and reasonable. The manner of exercise of the power and its
impact on the rights of the person affected would be in conformity with the
principles of natural justice. Article 21 clubs life with liberty, dignity of
person with means of livelihood without which the glorious content of dignity
of person would be reduced to animal existence.

When it is interpreted that the colour and content of procedure established

by law must be in conformity with the minimum fairness and processual
justice, it would relieve legislative callousness despising opportunity of being
heard and fair opportunities of defence. Article 14 has a pervasive
processual potency and versatile quality, equalitarian in its soul and allergic
to discriminatory dictates. Equality is the antithesis of arbitrariness. It is
thereby, conclusively held by this Court that the principles of natural justice
are part of Article 14 and the procedure prescribed by law must be just, fair
and reasonable." Subsequently as well in Uptron India Ltd. v. Shammi Bhan
& Anr. (1998 (6) SCC 538) upon reliance on Yadav (supra) this Court stated
:
"9. The general principles of the Contract Act, 1872 applicable to an
agreement between two persons having capacity to contract, are also
applicable to a contract of industrial employment, but the relationship so
created is partly contractual, in the sense that the agreement of service may
give rise to mutual obligations, for example, the obligation of the employer
to pay wages and the corresponding obligation of the workman to render
services, and partly non- contractual, as the States have already by
legislation, prescribed positive obligations for the employer towards his
workmen, as, for example, terms, conditions and obligations prescribed by
the Y     ; „

   
  

 ;

     ; Y   !   "; Y  

#  $% etc.

10. Prior to the enactment of these laws, the situation, as it prevailed in

many industrial establishments, was that even terms and conditions of
services were often not reduced to writing nor were they uniform in nature,
though applicable to a set of similar employees. This position was wholly
incompatible to the notions of social justice, inasmuch as there being no
statutory protection available to the workmen, the contract of service was
often so unilateral in character that it could be described as mere
manifestation of subdued wish of the workmen to sustain their living at any
cost. An agreement of this nature was an agreement between two unequals,
namely those who invested their labour and toil, flesh and blood, as against
those who brought in capital. The necessary corollary of such an agreement
was the generation of conflicts at various levels disturbing industrial peace
and resulting necessarily in loss of production and sometimes even closure
or lockout of the industrial establishment. In order to overcome this difficulty
and achieve industrial harmony and peace, the „

  

  
   was enacted requiring the management to
define with sufficient precision and clarity, the conditions of employment
under which the workmen were working in their establishments. The
underlying object of the Act was to introduce uniformity in conditions of
employment of workmen discharging similar functions in the same industrial
establishment under the same management and to make those terms and
conditions widely known to all the workmen before they could be asked to
express their willingness to accept the employment.

11. The Act also aimed at achieving a transition from mere contract between
unequals to the conferment of "status" on workmen through conditions
statutorily imposed upon the employers by requiring every industrial
establishment to frame "Standing Orders" in respect of matters enumerated
in the Schedule appended to the Act.
The Standing Orders so made are to be submitted to the Certifying Officer
who is required to make an enquiry whether they have been framed in
accordance with the Act and on being satisfied that they are in consonance
with the provisions of the Act to certify them. Once the Standing Orders are
so certified, they become binding upon both the parties, namely, the
employer and the employees. The Certified Standing Orders are also
required to be published in the manner indicated by the Act which also sets
out the Model Standing Orders. Originally, the jurisdiction of the Certifying
Officer was limited to examining the Draft Standing Orders and comparing
them with the Model Standing Orders. But in 1956, the Act was radically
amended and Section 4 gave jurisdiction to the Certifying Officer, as also the
appellate authority, to adjudicate and decide the questions, if raised, relating
to the fairness or reasonableness of any provision of the Standing Orders."
This Court further in fine in paragraph 25 of the report stated as below :

"25. In view of the above, we are of the positive opinion that any clause in
the Certified Standing Orders providing for automatic termination of service
of a permanent employee, not directly related to "production" in a factory or
industrial establishment, would be bad if it does not purport to provide an
opportunity of hearing to the employee whose services are treated to have
come to an end automatically." While it is true that a later Three Judge
Bench decision of this Court in Punjab and Sind Bank & Ors. v. Sakattar
Singh (2001 (1) SCC 214) sounded a different note but the same should not
detain us any further, since the factual context differs in material particulars
and even the bi-partite settlement involved therein was of much
accommodative in nature.

It is thus in this context one ought to read the doctrine of natural justice
being an in-built requirement on the Standing Orders. Significantly, the facts
depict that the respondent- workman remained absent from duty from 13th
October 1990 and it is within a period of four days that a letter was sent to
the workman informing him that since he was absenting himself from duty
without authorised leave he was advised to report back within 48 hours and
also to tender his explanation for his absence, otherwise his
disinterestedness would thus be presumed. Is this in strict compliance with
the Certified Standing Order the answer possibly cannot be in the
affirmative. Though however, if the letter dated 25th October, 1990 as
noticed above is to be taken note of, then and in that event the same thus
come within the ambit of the Certified Standing Order of 10 days' continued
absence the situation however is slightly different in the present context
since the letter of 25th October is an intimation of his name being struck off
the rolls of the company. It is an act; subsequent to the order of termination
and if the letter of 17th October is an indication for such an order of
termination the same does not come within the ambit of the Certified
Standing Order. The High Court on this score stated as below:

"Even if it presumed that the petitioner- management may have afforded an

opportunity to the respondent-workman to tender his explanation and as
such complied with the principles of natural justice in terms of the decision
rendered by the Apex Court in Hindustan Paper Corporation's case (supra),
yet the question remains, whether the determination of the petitioner
management was arbitrary and without application of mind?" ..

In our considered view, the rejection of the claim of the respondent-

workman is absolutely arbitrary and without consideration of the material
placed on record by the respondent-workman (as discussed in the foregoing
paragraph). The Labour Court examined in detail the factual position and
returned a finding that the respondent workman had not absented himself
from service deliberately or intentionally and also that he had not abandoned
his service. It was further concluded that his absence was based on account
of his illness which could be affirmed from the medical certificates produced
by him. In the aforesaid view of the matter, in our considered view, the
action of the petitioner-management in rejecting the representation of the
respondent- workman dated 30.1.1991 was clearly arbitrary and as such it is
not sustainable in law." Having regard to the well settled principle of law as
in Yadav (supra), the decision to terminate by reason of a presumption as
noticed above, we cannot but lend concurrence to the conclusion of the High
Court that the action is purely and surely arbitrary in nature. Arbitrariness is
an anti-thesis to rule of law: equity: fair play and justice contract of
employment there may be but it cannot be devoid of the basic principles of
the concept of justice.

Justice oriented approach as is the present trend in Indian jurisprudence

shall have to read as an in-built requirement of the basic of concept of
justice, to wit, the doctrine of natural justice, fairness, equality and rule of
law : The letter dated 17th October cannot by any stretch be treated to be
an opportunity since it is only on the fourth day that such a letter was sent
the action of the appellant herein stands out to be devoid of any
justification, neither it depicts acceptability of the doctrine of natural justice
or the concept of fairness arbitrariness is written large and we confirm the
finding of the High Court as also that of the learned Trial Judge and the
Tribunal as regards issue as noticed above.

In that view of the matter, there cannot thus be any perversity or any
miscarriage of justice warranting intervention of this Court under Article 136
of the Constitution. The appeal therefore fails and is dismissed
c

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Acts used in this case are as follows:

Section 6 in The Industrial Employment (Standing Orders) Act, 1946,

Section 5 in The Industrial Employment (Standing Orders) Act, 1946,

Section 6(1) in The Industrial Employment (Standing Orders) Act, 1946,

Cases cited in this case are as follows:

Management Of Karnataka Agro ... vs Presiding Officer, Industrial ... on 15

October, 1984

AMENDMENT OF STANDING ORDERS -- APPLICATION FILED -- Order

passed by Certifying Officer fixing age of retirement as 58 years --
Challenged by workmen and the management before Appellate Authority --
Appellate Authority setting aside order of certifying officer and remanded the
matter back to the Certifying Officer for fresh consideration -- Order of
Appellate Authority challenged in Writ Petition by both parties and the order
of learned Single Judge challenged in Writ Appeals -- Power of Appellate
Authority to remand the matter whether available under Section 6 under
question. HELD: Power of remand is not available to the Appellate Authority
because Section 6 confers the power either to confirm or modify the order as
it deems fit.

The workmen made an application for amendment of the standing orders of

the year 1968 by making an application under Sub Section (2) of Section 10
of the Industrial Employment (Standing Orders) Act, 1946 (for short, 'the
Act'). The said application was allowed by the Certifying Officer by fixing the
age of retirement of the workmen at 58 years. This order was challenged by
both the workmen and the management by way of an appeal before the
Appellate Authority. The Appellate Authority by order dated 6.1.99 set aside
the order of the Certifying Officer on the ground that the principles of natural
justice had not been followed, and remanded the matter to the Certifying
officer for fresh consideration. This order was challenged both by the
management and the workmen by way of filing Writ Petitions before this
Court. The learned Single Judge clubbed all cases and passed a common
order dated 15.11.2000. The learned Single judge disposed of the Writ
Petitions by quashing the orders of the Certifying Officer and the Appellate
Authority and remitted the matter back to the Certifying Officer to reconsider
the matter afresh keeping the order of the Certifying Officer in force till a
fresh decision is taken. Aggrieved by the direction issued by the learned
single Judge keep the order of the Certifying Officer alive till the matter is
disposed of by him, the Management has filed these Writ Appeal Nos.
149/2001 and 937/ 2001 to 941/2001 and 693/2001 to 704/2001. The
workmen have also filed the appeals challenging the order of, the learned
Single Judge (W.A. Nos. 945-951/2001).

Sri M.C. Narasimhan, the learned Counsel appearing for the workmen
submits that the learned Single Judge has not noticed that the Appellate
Authority has no power to remand the matter for fresh consideration to the
Certifying Officer. In support of his contention, he has drawn our attention to
Sub-section (1) of Section 6 of the Act, which reads as under:

"6(1) Any employer, workmen, trade union or other prescribed

representatives of the workmen aggrieved by the order of the Certifying
Officer under Sub-section (2) of Section 5 may, within thirty days from the
date on which copies are sent under Sub-section (3) of that Section, appeal
to the appellate authority, and the appellate authority, whose decision shall
be final, shall by order in writing confirm the standing orders either in the
form certified by the Certifying Officer or after amending the said standing
orders by making such modifications thereof or additions thereto as it thinks
necessary to render the standing orders certifiable under this Act."

From the reading of the above said Section, it is clear that the Appellate
Authority has the power either to confirm the order of the Certifying officer
or alter in the form certified by the Certifying Officer amending the said
standing order by making modification thereto as he thinks necessary.

The learned Counsel Sri. K. Gopal Hegde appearing for the management
submits that the Appellate Authority has an incidental power to remand by
setting aside the order of Certifying Officer if it feels that natural justice has
not been followed. In the case of KERALA AGRO MACHINERY CORPN.
LIMITED v. INDUSTRIAL TRIBUNAL AND ORS. 1988 LLJ it is held as follows:

"The powers of the Appellate Authority are specified in Clause (1) of Section
6 of the Act. The Appellate Authority has the power to confirm the standing
orders certified by the Certifying Officer, or to amend or modify and add to
the standing orders as it thinks necessary to make the standing orders
certifiable under the Act. This power of the Appellate Authority includes the
power to adjudicate the fairness or reasonableness of the standing orders
also. Under the first part of Clause (1) of Section 6, right is given to any
person aggrieved by the order of the Certifying Officer to challenge the same
by preferring an appeal. The power of the Appellate Authority is to confirm
the standing orders either in the form certified by the officer or by amending
the same or by making such modification or additions as it thinks necessary
to render the standing orders certifiable under the Act. The Appellate
Authority can exercise only those powers conferred on it under Section 6(1).
The Appellate Authority has no power to cancel the standing orders or set
aside the order passed by the Certifying Officer. Therefore, the Appellate
Authority has no power to set aside the orders of the Certifying officer and
remand the matter for fresh disposal. The power to remand is not a
procedural one."

Section 6 specifically specifies the powers to be exercised by the Appellate

Authority. In the instant case, the Appellate Authority has remanded the
matter for fresh consideration. This power of remand is not available to it
because Section 6 confers the power either to confirm or modify the order as
it deems fit. Since these aspect of the matter has not been considered by
the learned Single Judge, we are of the view that the order of the learned
Single Judge and the order of the Appellate Authority are to be set aside and
the matter has to be sent back to the Appellate Authority to reconsider the
matter afresh in the light of the observation made above. In the result, we
pass the following order:

The order of the Appellate Authority dated 6.1.99 in S.O.A. Nos. 1/98 and
2/98 are quashed.

The order of the learned Single Judge impugned in these Writ appeals is set
aside.

The matter is remitted to the Appellate Authority to reconsider the matter

afresh after notice to all the parties concerned including notice to the
Manipal Printing Press Employees Union and Udupi Taluk Press Workers
Union,

All other contentions raised in these appeals are kept open.

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S. B. Sinha & Markandey Katju

[Arising out of Special Leave Petition (Civil) No. 3735 of 2006] [with CA
1238/2007 @ SLP(Civil) Nos. 10406/2006 CA 1236/2007 @ SLP(Civil) Nos.
10407/2006 CA 1237/2007 @ SLP(Civil) Nos. 10408/2006 MARKANDEY
KATJU, J.

Leave granted.

These appeals have been directed against the impugned judgment and order
dated 6.9.2005 of the Uttaranchal High Court in Writ Petition No. 774 of
2002.

The appellant - U.P. Road Transport Corporation (hereinafter referred to as

the 'Corporation'), has been constituted under the Road Transport
Corporation Act, 1950. The respondent which is a Trade Union of the
appellant-Corporation, filed an Application before the Labour Court,
Dehradun under Section 11-C of the U.P. „
 &  $ read
with Section 13A of the „

   
  
  ,
praying for a declaration that the 15 persons who were appointed on
contract basis as 'drivers' and 'conductors' as shown in the annexed chart,
be declared as regular and substantive workmen of the Corporation. It was
also prayed in the said Application that the concerned workmen be given all
the benefits and facilities of regular employees.

The aforesaid Application was allowed by the Labour Court, Dehradun by its
order dated 19.9.2001. The Labour Court directed that the concerned
workmen be given the minimum wages admissible to the regular employees
in the pay scales of 'drivers' and 'conductors'. The Labour Court also held
that the said workmen are employees of the Corporation.
It is not disputed that the concerned workmen were appointed on contract
basis. Before the Labour Court, the Corporation had contended that Rule 2 of
U.P.S.R.T.C Employees (Other than Officers) Service Regulations, 1981
(hereinafter referred to as the 'Regulations') clearly mentions that these
regulations shall not apply to employees working on contract basis. The
persons working on contract basis filed Writ Petition No. 41349/1999 Kanchi
Lal and others vs. U.P.S.R.T.C before the Allahabad High Court for grant of
same benefits as the regular employees of the Corporation, but the said writ
petition had been dismissed. However, the objection of the Corporation was
rejected by the Labour Court. It filed a writ petition thereafter before the
High Court which was dismissed by the impugned judgment.

It was contended in the writ petition by the appellant that the concerned
workmen had not been selected in terms of the process of selection required
for appointment of regular employees and hence they cannot be directed to
be given minimum pay scales of regular employees. It was also contended
that the Labour Court acted beyond its jurisdiction by passing the impugned
order dated 19.9.2001 since Section 11-A only permits interpretation and
application of a standing order and not any particular relief which can only
be given under the „
 &  $.

It may be noted that the scope of Section 11-C is much narrower than the
scope of a regular reference under Section 10 of the „
 & 
or Section 4-K of the U.P. „
 & .

Section 11-C of the U.P. „
 &  states:

"11-C. Interpretation, etc. of standing orders - If any question as to the

application or interpretation of a standing order certified under the „


   
  
  , any employer or workman may

refer the question to any one of the Labour Courts specified for the disposal
of such proceeding by the State Government by notification in the Official
Gazette, and the Labour Court to which the question is so referred shall,
after giving the parties an opportunity of being heard, decide the question
and such decision shall be final and binding on the parties"

Similarly Section 13-A of the „


   
  
 
 states:.

"13-A. Interpretation etc. of standing orders - If any question arises as to

the application or interpretation of a standing order certified under this Act,
any employer or workman or a trade union or other representative body of
the workmen may refer the question to any one of the Labour Courts
constituted under the „
 &  $, and specified for the
disposal of such proceedings by the appropriate Government by notification
in the Official Gazette, and the Labour Court to which the question is so
referred shall, after giving the parties an opportunity of being heard, decide
the question and such decision shall be final and binding on the parties".

In our opinion, the power of the Labour Court under Section 11-C of the UP
„
 &  or under Section 13-A of the „

  

  
   is much narrower than the power of the Labour
Court on a reference under Section 10 of the „
 &  which
corresponds to Section 4-K of the U.P. „
 & .

In our opinion, the Labour Court could not have granted the relief it granted
by the order dated 19.9.2001, as that could only have been granted on a
regular reference under Section 4-K of the U.P. „
 &  or
under Section 10 of the „
 & .

A perusal of the order of the Labour Court dated 19.9.2001 shows that it has
not referred to any standing order of the appellant. On the other hand,
paragraph 3 of the said order refers to Rule 2 of the 1981 Regulations which
clearly provides that the Regulations do not apply to employees engaged on
contract basis. In our opinion, the Labour Court cannot amend the
Regulations while hearing an application under Section 11-C of the „

& .

As already stated above, the scope of Section 11-C is limited to decide a

question arising out of an application or interpretation of a standing order
and the Labour Court cannot go beyond the scope of Section 11-C of the
U.P. „
 & .

For the reasons given above, the appeals are allowed. The impugned
judgment of the High Court as well as the order of the Labour Court dated
19.9.2001 are set aside. However, it is open to the concerned workmen to
raise their grievances before the concerned authority under Section 4-K of
the U.P. „
 &  or under Section 10 of „
 &
, as the case may be, and if the State Government refers such a dispute
to the Labour Court or Tribunal, we hope that the same will be decided
expeditiously. No costs.
Bajaj Electricals Ltd. vs V. Subramaniam And Anr.
on 1/3/2005
JUDGMENT

D.Y. Chandrachud, J.

1. Rule, by consent made returnable forthwith. Counsel appearing on behalf

of Respondent No. 1 waives service. By consent, and at the request of
counsel taken up for hearing and final disposal.

2. The Petitioner suspended the First Respondent on March 9, 2000 pending

an enquiry into alleged acts of misconduct. During the pendency of the
enquiry the First Respondent was paid subsistence allowance at the rate of
50% of the last drawn wages for the first 90 days, 75% for the next 90 days
and at the rate of 100% for the rest of the period. The First Respondent
instituted a complaint under Section 33-A of the Industrial Disputes Act,
1947 before the National Industrial Tribunal contending that he was entitled
to receive annual increments on the basic wages as well as Variable
Dearness Compensatory allowance which had not been taken into
consideration by the Petitioner in making its calculations of subsistence
allowance. On these grounds, it was submitted that the Petitioner had during
the pendency of the reference to adjudication changed the service conditions
of the First Respondent which was redressable in a complaint under Section
33-A. The Petitioner filed its written statement contending that the First
Respondent was not a "concerned workman" during the pendency of the
reference since he had already accepted the benefits of two settlements
signed with the Mumbai General Employees Association in 1996 and 2000.
Furthermore it was also submitted that while determining the quantum of
subsistence allowance the Petitioner had taken into account the last drawn
wages paid before suspension and non-payment of annual increments and
Dearness Compensatory allowance during the period of suspension did not
amount to an illegal change within the meaning of Section 33 of the
Industrial Disputes Act, 1947.

3. The Presiding Officer of the National Industrial Tribunal by his award

dated September 8, 2004 came to the conclusion that he had jurisdiction to
entertain the complaint under Section 33-A. On merits, the Tribunal held
that the First Respondent was entitled to the payment of annual increments
and Dearness Allowance in computing his subsistence allowance. The
Tribunal was of the view that Section c of the Industrial Employment
(Standing Orders) Act, 1946 saved provisions under any other law in regard
to the payment of subsistence allowance which were more beneficial and
that the provisions contained in Standing Order 23 of the Bombay Industrial
Employment (Standing Orders) Rules, 1959 in their application to clerical
and supervisory staff was one such provision under any other law for the
time being in force.

4. The award of the Tribunal has been questioned both on the

maintainability of the complaint under Section 33-A as well as on the merits
on the determination made by the Tribunal. Insofar as the maintainability of
the complaint is concerned, it was submitted that the First Respondent was a
member of the Mumbai Labour Union which had arrived at two settlements
in 1996 and 2000. In the reference that was made to adjudication, on the
demands of the All India Bajaj Electricals Federation an award was made by
the Tribunal. However, the award was challenged before this Court in Writ
Petition 1368 of 2004 which ended in a settlement that was arrived at
between the parties on December 14, 2004. As result of the settlement, the
employees situated at Mumbai, Pune and Wardha were excluded from the
terms of the settlement. Hence, it was submitted that the First Respondent
had no connection to the reference which was pending before the Industrial
Tribunal and that the conditions precedent for the invocation of the
jurisdiction under Section 33-A read with Section 33 of the Act do not exist.
Insofar as the merits are concerned, it was urged that the workman was
entitled to the benefit of subsistence allowance under Section 10-A of the
Industrial Employment (Standing Orders) Act, 1946 which has been granted
by the employer. In view of the judgment of the Supreme Court in B.D.
Shetty v. CEAT the provisions of the Model Standing Orders cannot be
construed as provisions of "any other law for the time being in force", since
the aforesaid expression in Sub-section (3) of Section 10-A cannot
comprehend the standing orders which are made under the Act of 1946 and
not under any other independent provision of law.

5. On the other hand, it is submitted on behalf of the First Respondent that

the reference to adjudication which was made before the National Industrial
Tribunal on May 8, 1997 covered various demands of the All India Bajaj
Electricals Employees Federation and even according to the Petitioner the
First Respondent as a member of the union was affiliated to the Federation.
Hence, it was submitted that the First Respondent was clearly a workman
concerned in the dispute within the meaning of Section 33(1)(a) of the
Industrial Disputes Act, 1947 and that the complaint under Section 33A was
maintainable. Insofar as the merits are concerned, it was submitted that the
First Respondent was placed on suspension on March 9, 2000 and that the
enquiry officer submitted his report on March 21, 2002. Hence, it was
submitted that the enquiry must be deemed to have been concluded on the
aforesaid date after which, the payment of subsistence allowance would
cease to operate with reference to Section 10-A of the Industrial
Employment (Standing Orders) Act, 1946. Thereafter, it was urged, the
workman would be entitled to the benefit of subsistence allowance under the
Standing Orders.

6. For the purposes of these proceedings, it would be convenient to proceed

on the assumption that the complaint which was instituted by the First
Respondent under Section 33A of the Industrial Disputes Act, 1947 was
maintainable. This is because I am of the view that even on the aforesaid
foundation the First Respondent had absolutely no case on merits and that
consequently the award of the Industrial Tribunal is liable to be quashed and
set aside.
7. Section 10-A of the Industrial Employment (Standing Orders) Act, 1946
provides thus:

"10-A.Payment of subsistence allowance.-(1) Where any workman is

suspended by the employer pending investigation or inquiry into complaints
or charges of misconduct against him, the employer shall pay to such
workman subsistence allowance.

(a) at the rate of fifty per cent of wages which the workman was entitled to
immediately preceding the date of such suspension, for the first ninety days
of suspension; and

(b) at the rate of seventy five per cent of such wages for the remaining
period of suspension if the delay in the completion of disciplinary
proceedings, against such workman is not directly attributable to the
conduct of such workman.

(2) If any dispute arises regarding the subsistence allowance payable to a

workman under Sub-section (1), the workman or the employer concerned
may refer the dispute to the Labour Court, constituted under the Industrial
Disputes Act, 1947, within the local limits of whose jurisdiction the industrial
establishment wherein such workman is employed is situate and the Labour
Court to which the dispute is so referred shall, after giving the parties an
opportunity of being heard, decide the dispute and such decision shall be
final and binding on the parties.

(3) Notwithstanding anything contained in the foregoing provisions of this

Section, where provisions relating to payment of subsistence allowance
under any other law for the time being in force in any State are more
beneficial than the provisions of this Section, the provisions of such other
law shall be applicable to the payment of subsistence allowance in that
State."

8. These provisions were interpreted by a Division Bench of this Court in May

& Baker Ltd. v. Kishore Jaikishandas Icchaporia 1994-III-LLJ (Suppl)-237
(Bom). This Court held while construing Section 10-A(3) that while the
aforesaid provision saves those provisions in relation to the payment of
subsistence allowance under any other law for the time being in force which
are more beneficial than Section 10-A, the expression "other law" would not
refer to the Model Standing Orders or the Certified Standing Orders since
they are laws made under the provisions of parent Act itself and not under
any other law. The Model Standing Orders and Certified Standing Orders,
held the Division Bench, "are laws no doubt but they are laws made under
the provisions of the Act". They were held not to be provisions under any
other law. Hence, Section 10-A would "supervene in relation to the payment
of subsistence allowance over the provisions of the Model Standing Orders."

9. This interpretation of Section 10-A by the Division Bench in May and

Baker (supra) was accepted by the Supreme Court in B.D. Shetty's case
(supra) with the following observations:

"It is plain from the very language of Section 10-A(3) that the words
'provisions of such other law' necessarily refer to the law other than one
covered by the very Act and Rules made thereunder."

10. The Tribunal in the present case held that Sub-section (3) of Section 10-
A would save Sub-rule (5-A) of Rule 23 of the Bombay Industrial
Employment (Standing Orders) Rules, 1959 which was more beneficial to the
workmen because it gave to the workman the benefit of basic wages,
Dearness Allowance and other compensatory allowances in computing the
subsistence allowance. This view of the Tribunal is ex-facie contrary to the
law laid down by the Division Bench of this Court in May & Baker Ltd.
(supra) which has now been affirmed by the Supreme Court in B.D. Shetty
(supra) having laid down the correct position in law.

11. Counsel appearing on behalf of the First Respondent, however,

submitted that Section 10-A(1) postulates the payment of subsistence
allowance during the pendency of an enquiry and it was faintly urged that
the enquiry must be deemed to have been completed on the submission of
the report on March 21, 2002. This submission cannot be accepted. The
enquiry for the purposes of Section 10A(1) cannot be regarded as being
concluded on the submission of the enquiry report. The enquiry officer is a
delegate of the disciplinary authority for the purpose of holding and
concluding the disciplinary enquiry. Upon the submission of the report the
disciplinary authority has to take due steps in accordance with law.

12. In the circumstances, the view of the Tribunal on merits is

unsustainable. In view of the aforesaid conclusion, I have not considered it
necessary to decide upon the question as to whether the complaint that was
filed by the First Respondent was maintainable because even on the
foundation that it was, I am of the view that the finding of the Tribunal on
merits calls for interference under Article 226.

13. The Petition is accordingly allowed. The impugned award of the Tribunal
dated September 8, 2004 is quashed and set aside. The Petitioner shall take
expeditious steps to conclude the disciplinary proceedings in any event
within a period of three months from today.

14. There shall be no order as to costs.