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TMI Blog2024 (1) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... a provision under any law or a provision under any other law and the provisions of Section 10(A) of the said Act clearly supervene in relation to the payment of subsistence allowance over the alleged customary practice followed by the Respondent - Company. Once it is found that the said customary practice is in clear conflict with the provisions of Section 10(A) of the said Act, the claim of the employee being entitled to subsistence allowance cannot be permitted to be defeated on the basis of a customary practice followed by the Respondent - Company. What is required under the law is for the suspended employee to inform the employer that he is not gainfully employed elsewhere and nothing more. Once the statutory provisions does not provide for requiring marking of attendance everyday such introduction of a stipulation as per customary practice is illegal in law, no matter what the concerned employer desire from introducing such a condition. In the present case, the said restrictive condition cannot be made a precondition to the extent of claiming that it was for ensuring that the employee was not gainfully employed during the period of suspension. Such an interpretation and arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee 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 Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gents Factory, Survey No.34, Silver Industrial Estate, Village Bhimpore, Daman and its employee Shri Natubhai Mohanlal Patel in respect of the matter specified in the Schedule annexed hereto (herein after referred to as the said dispute ). 4.9. On 28.11.2008, services of Mr. Natubhai Patel were terminated. The dispute that is referred for adjudication before the Reference Court in I.D.R. No.7 of 2008 pertains to the issue of subsistence allowance. The Reference Court framed the following issues and answered them after adjudication:- Sr. No. Points Finding 1. Whether the Reference is vague and incapable of being adjudication by this court? ..In the Negative. 2. Whether the First Party Company proves that condition put by them for making attendance everyday for entitlement of subsistence allowance is just, fair, bonafide and legal or not? And whether the company is entitled to put such condition against the second party workman and whether such condition is in consonance with the Section 10(A) of the IESO Act.? ..In the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kman should not take up any employment during the period of suspension. She would submit that there is no requirement in this regard for any certificate to be furnished and even in matters where there is such a rule for furnishing of a certificate, the Supreme Court has held that the same must be actually called for by the employer. She has drawn my attention to paragraph Nos.6 to 12 of the above decision which read thus:- 6. The Registrar, Co-operative Society by Memo No. 7252 dated 30th October, 1999 rejected the claim for subsistence allowance. The appellant then filed C.W.J.C. No. 9095 of 2000 challenging the order of the Registrar. The High Court by an order dated 26th April, 2001 dismissed the writ petition. The appellant then filed a Letters Patent Appeal. This was dismissed by the impugned Order dated 27th July, 2001 on the ground that the appellant's husband was absent for 23 years and he was present for only one day. In our view, for reasons set out hereafter, the decision of the High Court cannot be sustained. The relevant portion of Rule 96 of the Bihar Service Code reads as follows: 96. (1) A Government servant under suspension shall be entitled to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to give such a certificate. Thus the grant of subsistence allowance cannot be denied on the ground that such a certificate is not given. 10. This view of ours is supported by an authority of this Court in the case of Jagdamba Prasad Shukla v. State of U.P. [(2000) 7 SCC 90]. In this case, on identical facts, it has been held that if the State requires a certificate they should ask for it. It has been held that without asking for such a certificate the State cannot reject a claim for subsistence allowance. 11. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679 this Court has held that a suspended employee is entitled to subsistence allowance as a relationship of employer-employee subsists. 12. For the above reasons, we hold that the appellant is entitled to receive subsistence allowance, which should have been paid to her husband. As the only ground for not paying the subsistence allowance is that a certificate required by Rule 96(2) has not been furnished, we direct the appellant to file an affidavit stating therein that her husband was not engaged in any other employment, business, profession or vocation. The subsistence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pension orders were served on the petitioners on 25 October 1996. Departmental enquiry, according to the respondent-Management, concluded in March 1999. The report was received by the management on 9 November 2000. The enquiry officer has found the petitioners guilty of the charges. This report has not been served on the petitioners till today. Furthermore, no action has been taken on the enquiry report by the disciplinary authority. During the suspension period, the petitioners were entitled to be paid subsistence allowance at the rate of 50 per cent of the wages for the first three months, and at the rate of 75 per cent of the wages for the rest of the period of the suspension. The management has not paid any amount to the petitioners. Consequently, petitioners were compelled to file an application in the Labour Court under S. 33C(2) of the Industrial Disputes Act for computing the amount due on account of subsistence allowance from October, 1996 to December 1996. The management filed the written statement before the Labour Court, denying its liability to pay any amount. The management claimed that the petitioners had failed to mark their presence in the Security Office as requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act. In the present case, the claim of the petitioners is disputed by the respondent-management on the ground that the petitioners have failed to comply with the proviso to Standing Orders 30(d) and (g). The provisions with regard to the grant of subsistence allowance during the period of suspension is made in S. 10A of the Act. For facility of reference S. 10A of the Act and Standing Orders 30(d) and (g) are reproduced as under:- 10A. Payment of subsistence allowance. (1) Where any workman is suspended by the employer pending investigation or enquiry 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 the 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 wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the delay in completion of disciplinary proceedings is not directly attributable to the conduct of the workman. Nothing has been brought on record in the present proceedings to establish that the petitioners have in any manner been responsible for delay in the completion of disciplinary proceedings. Under the Act, there is no other condition which is to be satisfied by the workman for receipt of the suspension allowance. This right is, however, sought to be cut down under Standing Orders 30(d) and 30(g) and the proviso thereto. In my considered opinion, in the face of S. 10A of the Act, the condition laid down in aforesaid Standing Order 30(d) with regard to the attendance cannot be relied upon by the management for denying the benefit of subsistence allowance to the petitioners. A benefit granted to the workman under the Act cannot be permitted to be curtailed by the Model Standing Orders or the Certified Standing Orders. A similar view has been taken by a Division Bench of the Patna High Court in the case of Secretary, Bihar State Electricity Supply Workers, Union v. Presiding Officer, Industrial Tribunal, [1995 L. I.C. 2752], has observed as under: 20. Section 10A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent was entitled to subsistence allowance as provided by the Model Standing Orders by reasons of Sub-sec. (3) of S. 10A because the Model Standing Order were other law within the meaning of Sub-sec. (3). We find the argument difficult to accept. The Model Standing Order, as also Certified Standing Orders, are law no doubt, but they are law made under the provisions of the Act. They are not provisions under any other law . In our view, therefore, the provisions of S. 10A supervene in relation to the payment of subsistence of the Model Standing Orders . 13. A perusal of the aforesaid ratio clearly shows that Model Standing Orders as also the Certified Standing Orders, are law made under the provisions of the Act. Therefore, the provisions of S. 10A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders/Certified Standing Orders. The aforesaid decision has been followed by the Single Judge (F.I. Rebello, J.) in the case of S.M. Puthran v. Rallies India, Ltd., [1998 II C.L.R. 270]. After referring to the aforesaid ratio of the Division Bench, the Single Judge observed as follows: It is inconceivable th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the factory gate during the period of suspension. Paragraph Nos.8 to 10 of this decision are relevant in this regard and reproduced below:- 8. Despite repeated query from this Court, Learned Counsel for the Company failed to show that there is any requirement under any Rules that a suspended workman has to report for duty everyday or to the sign the attendance register and to receive direction and communication from the Company during the period of suspension. In the absence of any such Rule, it is difficult for this Court to sustain the stipulation to that effect in the suspension order. Learned Counsel also referred to Section 10A of the Industrial Employment (Standing Order) Act, 1946 (hereinafter called the said Act ). Section 10A of the Act reads as follows: 10A. Payment of subsistence allowance. (1) Where any workmen is suspended by the employer pending investigation or inquiry into complaints or charge of misconduct against him, the employer shall pay to such workman subsistence allowance: (a) at the rate of fifty per cent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other employment, business, profession or vocation and having thus not complied with Rule 53(2) of the Financial Hand Book, it may be noticed that at no stage, the appellant was told that he had to furnish such a certificate, and that he could not be paid subsistence allowance without it. It was not the case of the respondents that in response to the appellant's request for payment of subsistence allowance, he was asked to furnish such a certificate and since he did not furnish it, the amount of subsistence allowance was not paid to him. Therefore, the second reason for rejecting the appellant's contention for nonpayment of subsistence allowance also does not deserve to be sustained. 8. The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for nonpayment of the subsistence allowance all through the period of suspension i.e. from suspension till removal. One of the reasons for not appearing in enquiry as intimated to the authorities was the financial crunch on account of non-payment of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance in the suspension order is therefore just, fair, bonafide and legal as held by the Labour Court. She would submit that the Labour Court has held that it can be therefore said to be in consonance with the provisions of Section 10(A) of the said Act. She would submit that the Labour Court held that non-payment of subsistence allowance in this case is not against any provision of law since it found that the condition of marking attendance at the factory gate stipulated by the Respondent - Company is not unfair and against the law. 6.1. She would submit that Respondent Company is permitted under the statute to stipulate a just, fair and bonafide condition in consonance with the prevailing law for entitlement of subsistence allowance. 6.2. In support of her above submissions, she would submit that the Model Standing Orders provide that payment of subsistence allowance is on the condition that the workman concerned is not gainfully employed elsewhere and there is no further provision with respect to the manner in which an organization must satisfy that the workman was not gainfully employed elsewhere during the period of suspension. 6.3. She would submit that unless there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der suspension shall not leave the head-quarters during the period of suspension without the prior approval of the CEO or the President, as the case may be, and if the employee fails to abide by the aforesaid condition, he would not be entitled to claim the subsistence allowance. Similarly, Uttar Pradesh State Textile Corporation Conduct, Control and Disciplinary Rules, 1992 ( Disciplinary Rules ) provide that subsistence allowance would be payable only when the employee, if required, presents himself every day at the place of work or such other place as mentioned in the order. Further, the employee, under suspension would have to furnish a certificate that he is not engaged in other employment, business, profession or vocation for entitlement of subsistence allowance. In support thereof, she has relied on the decision of the Supreme Court in the case of U.P. State Textile Corp. Ltd. v. P.C. Chaturvedi, (2005) 8 SCC 211, wherein in paragraph No.16 of the judgment, inter alia, the Supreme Court observed that Rule 41 of the Disciplinary Rules, 1992 provides that the subsistence allowance is payable only when the employee if required presents himself everyday at the place of work and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition stipulated in the suspension notice and therefore in the absence of challenge to the said notice is now estopped from raising any grievance with respect to the same. In this regard, she would submit that no reasons are set out by the Petitioner Union for not marking the attendance and on the contrary, Mr. Natubhai Patel accepted the condition and marked attendance from April 2004 till April 2005 and received payment of subsistence allowance in lieu thereof. She would submit that Mr. Natubhai Patel raised grievance in respect of non-payment only before the Enquiry Officer for the first time on the ground that the condition stipulated in the suspension notice was unlawful, however, when the matter was placed during reference before Conciliation Officer as well as the Labour Court, there was no challenge to the suspension notice in respect of the condition but only demand regarding payment of wages, as set out above. She would therefore submit that Mr. Natubhai Patel by his conduct was deemed to have accepted the condition when he abided by it on his volition and also did not challenge the suspension notice. 6.9. She would therefore submit that the condition stipulated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Petitioner was opposed to the idea of marking attendance everyday at the gate under the pretext that the said condition was illegal. She would next submit that the same is so deposed in his affidavit of evidence. 6.13. She would submit that, no such demand regarding withdrawal or setting aside of this condition for subsistence allowance was raised by the Petitioner / employee. She submits that it was for the first time in the affidavit of evidence that Mr. Natubhai Patel deposed that he had declared before the Enquiry Officer and the Respondent - Company that he was not gainfully employed during the period of suspension and further Mr. Natubhai Patel also went ahead to depose that an affidavit regarding the same was filed before the Conciliation Officer, however, the proof of such declaration / affidavit was neither produced with the statement of claim nor with the affidavit of evidence. 6.14. She has next drawn my attention to the cross-examination of Mr. Natubhai Patel and has submitted that it is clear that despite being aware that he was required to mark attendance at the gate of the Respondent - Company everyday for entitlement to subsistence allowance, as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e burden of proof would be on the workman as it is a negative burden and only if the same is discharged by the workman, the onus of proof would shift onto the employer. 6.17. Finally, she would submit that the requirement of workman signing the attendance register at the factory gate during the period of suspension is a customary practice followed by the Company for all its workmen / employees and the Respondent - Company in its affidavit of evidence filed through its witness Ms. Tanvi Shah has deposed that the requirement of marking attendance every day at the gate was followed for all suspended workmen of the Respondent - Company and has been a prevalent practice for many years and hence it has become a rule, custom and usage in the Respondent - Company and Mr. Natubhai Patel could not be absolved from it; Mr. Natubhai Patel himself has admitted in his deposition that the said practice was followed in the case of other suspended workmen by the Respondent - Company. 6.18. She would therefore submit that the practice of requiring a suspended workman to mark his attendance every day for showing that the suspended workman was not gainfully employed elsewhere during his suspensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 (14 of 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. 10. As against the above, let us see the condition which is stipulated in the suspension order issued to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customary practice of the Respondent - Company to require marking of attendance at the factory gate because of which subsistence allowance is denied to Mr. Natubhai Patel. Therefore, the question before me is whether such a customary practice of requiring the employee to mark his attendance at the factory gate without the support of any rule, regulation, standing order or statutory enactment is maintainable in the face of the statutory provision of Section 10(A) of the said Act. I am afraid it is not. The Respondent - Company cannot lay down and insist on a customary practice followed by the Company to prevail upon the existing statutory provisions of law. The argument of the Respondent - Company is difficult to accept. A customary practice cannot be equated as a provision under any law or a provision under any other law and the provisions of Section 10(A) of the said Act clearly supervene in relation to the payment of subsistence allowance over the alleged customary practice followed by the Respondent - Company. Once it is found that the said customary practice is in clear conflict with the provisions of Section 10(A) of the said Act, the claim of the employee being entitled to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory provisions does not provide for requiring marking of attendance everyday such introduction of a stipulation as per customary practice is illegal in law, no matter what the concerned employer desire from introducing such a condition. In the present case, the said restrictive condition cannot be made a precondition to the extent of claiming that it was for ensuring that the employee was not gainfully employed during the period of suspension. Such an interpretation and argument deserves to be rejected and dismissed in the first instance itself. Such a stipulation is unreasonable and cannot be within the four corners of the statutory provisions. 14. In the written submissions submitted by the Respondent - Company it has been specifically submitted that such a requirement of signing the attendance register at the gate during the period of suspension is a customary practice followed by the Respondent - Company for all the workmen and even though the workman in his evidence / deposition has admitted that the Respondent - Company had followed such a practice, that cannot be held against the workman. It cannot be argued by the Respondent - Company that by virtue of customary pract ..... X X X X Extracts X X X X X X X X Extracts X X X X
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