Judgment:
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE04H DAY OF NOVEMBER, 2020 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.58284/2015 (L – RES) BETWEEN RECAERO INDIA PRIVATE LIMITED, NO.28/C, BIDADI INDUSTRIAL AREA, BIDADI, RAMANAGAR – 562 109 REPRESENTED BY ITS DIRECTOR JUDIKAEL LE DORIDOUR. ... PETITIONER (BY SRI S.SANTHOSH NARAYAN, ADVOCATE (PHYSICAL HEARING)) AND1 BASAVESH M., S/O SRI MARIDEVARU AGED ABOUT30YEARS, C/O RECAERO INDIA PVT. LTD., WORKERS UNION, # 43, 2ND FLOOR, 3RD STAGE, KHB COLONY, BASAVESHWARNAGAR, BENGALURU – 560 079.
2. THE ASSISTANT LABOUR COMMISSIONER2DIVISION1 KARMIKA BHAVAN, BANNERGHATTA ROAD, BENGALURU – 560 029. ... RESPONDENTS (BY SRI S.RAMESH, ADVOCATE FOR C/R NO.1 (PHYSICAL HEARING); SRI R.SRINIVASA GOWDA, AGA FOR R2 (PHYSICAL HEARING)) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY R-2 I.E., ASSISTANT LABOUR COMMISSIONER, DIVISION - 1, BANGALORE DATED0511.2015 AT ANNEX-H TO THE W.P. ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner in this writ petition has called in question the order dated 05.11.2015 passed by the second respondent - Assistant Labour Commissioner determining a particular amount of subsistence allowance payable to the first respondent – Workman under the Karnataka Payment of Subsistence Allowance Act, 1988 (hereinafter referred to as ‘the said Act’ for short). 3
2. For the sake of convenience, the parties are referred to as the petitioner – Management and first respondent - Workman.
3. Facts germane in terms of the pleadings are as follows: The Management is an industry engaged in the manufacturing of Aircraft components having 82 workmen on its rolls. The Workman was employed with the Management in the capacity of CNC operator.
4. The Workman was placed under suspension by an order dated 08.01.2013 and subsequently, on conducting a domestic enquiry, he was dismissed from service on 21.07.2014, which is challenged before the Labour Court and the proceedings are pending consideration. 4
5. Alleging nonpayment of subsistence allowance between 08.01.2013 and 21.07.2014, the Workman approached the Assistant Labour Commissioner invoking the provisions of the said Act and the Assistant Labour Commissioner accepting the claim of the Workman determined the subsistence allowance payable to the Workman for the period between 08.01.2013 i.e., the date on which he was placed under suspension, till 21.07.2014 i.e., the date of which he was dismissed from service. It is this order that is called in question by the Management.
6. Heard Sri S. Santhosh Narayan, learned counsel for the petitioner, Sri S. Ramesh, learned counsel for caveator – first respondent and Sri R. Srinivasa Gowda, learned Additional Government Advocate for the second respondent. 5
7. Learned counsel for the Management would submit that the Workman was placed under suspension under the Certified Standing Orders and subsistence allowance was paid to the Workman in terms of the Standing Orders. The very proceeding before the Assistant Labour Commissioner in terms of the said Act was without jurisdiction. The said Act is applicable only in cases where there is no provision for payment of subsistence allowance in the said Act, 1946.
8. On the other hand, the learned counsel appearing for the Workman would vehemently argue and contend that it is the choice of an employee to choose under what Act he is entitled to the subsistence allowance. Since the subsistence allowance was more beneficial under the said Act, he had invoked the provisions of the said Act. He would further contend that the Management is paying 6 subsistence allowance to a few Workmen under the said Act. It is only in the case of the Workman, the Management is practicing discrimination. He would submit that the order impugned does not call for any interference.
9. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record in furtherance whereof, the issue that falls for my consideration is, ‘whether the Workman can maintain an application before the Assistant Labour Commissioner invoking the provisions of the said Act for payment of subsistence allowance notwithstanding the existence of Certified Standing Orders of the Company which determines payment of subsistence allowance to the Workmen who are placed under suspension under the Standing Orders’?. 7 10. To consider the issue, the relevant Standing Orders and the provisions of the said Act are required to be noticed.
11. The payment of subsistence allowance to the employees who are placed under suspension is governed under the Standing Orders of the Management in terms of Clause 28.3, which reads as follows: “28.3 : A workman who is placed under suspension under sub-clauses 28.1 above shall during the period of such suspension be paid a subsistence allowance at the following rates:- (i) Where the enquiry contemplated or pending is departmental, the subsistence allowance shall, for the first 60 days from the date of suspension, be equal to half of the 8 basic wages, dearness allowance and other compensatory allowance, if any, which the workman would have been entitled to if he were on leave with wages. If the departmental enquiry gets prolonged for a period exceeding 60 day, the subsistence allowance shall for such period beyond 60 days be equal to 3/4th of such basic wages, dearness allowance and other compensatory allowance, if any. Provided that where such enquiry is prolonged beyond the period of 60 days for reasons directly attributable to the workman the subsistence allowance shall, for the period exceeding 60 days be reduced to 1/4th of such basic wages, dearness allowance and other compensatory allowance, if any.” In terms of the afore-extracted clause, which determines the payment of subsistence allowance to 9 an employee – Workman of the Management placed under suspension for the first 60 days from the date of suspension, the Workman would be entitled to 50% of wages including allowance for a period beyond 60 days, the subsistence allowance is to be increased to 75%, provided if the reason for prolonged enquiry is attributable to the Management and if attributable to the Workman would be reduced to 25% of the basic wages and the allowance.
12. The Workman was placed under suspension in terms of the aforesaid Standing Orders on 08.01.2013 and the domestic enquiry proceedings commenced against him on 21.02.2013 and the proceedings went on upto 31.01.2014 i.e., the date on which the Enquiry Officer submitted his report. The claim of the Workman for a particular amount of subsistence allowance depends upon the afore- extracted clauses of the standing orders and the fact 10 that the enquiry was prolonged at whose instance. To consider this aspect, the dates of enquiry and the presence or absence of the Workman is required to be noticed and is extracted for the purpose of quick reference: “PROCEEDINGS OF ENQUIRY Sl.No.Dates of Hearing What Transpired 01. 22/01/2013 Respondent Absent 02. 04/03/2013 Respondent Absent 03. 16/03/2013 Respondent Absent 04. 25/03/2013 Respondent Absent 05. 05/04/2013 Respondent Absent 06. 22/04/2013 Respondent Absent 07. 07/05/2013 Respondent Present 08. 27/05/2013 Respondent Absent 09. 11/06/2013 Respondent Absent 10. 25/06/2013 Respondent Absent 11. 15/07/2013 Respondent Absent 12. 29/07/2013 Respondent Present 13. 05/08/2013 Respondent Absent 14. 02/09/2013 Respondent Present 15. 23/09/2013 Respondent Present 11 16. 01/10/2013 Respondent Present 17. 04/10/2013 Respondent Absent 18. 17/10/2013 Respondent Present 19. 24/10/2013 Respondent Present 20. 30/10/2013 Respondent Absent 21. 27/11/2013 Respondent Present 22. 03/12/2013 Respondent Absent 23. 03/01/2014 Respondent Absent 24. 17/01/2014 Respondent Present 25. 28/01/2014 Respondent Present 26. 13/02/2014 Respondent Present 27. 20/02/2014 Respondent Absent 28. 04/03/2014 Respondent Present 29. 26/03/2014 Respondent Present 30. 11/04/2014 Respondent Present 31. 21/04/2014 Respondent Present 32. 09/05/2014 Respondent Absent 33. 16/05/2014 Respondent Absent 34. 30/05/2014 Respondent Present Out of Total 34 sittings of enquiry held, the respondent remained absent on 18 hearings.” 12 In terms of the afore-extraced dates and events of enquiry, it becomes clear that the enquiry was to a large extent prolonged by the absence of the workman.
13. Since the enquiry was prolonged, a show cause notice was issued to the Workman on 18.10.2013 seeking to show cause as to why the Management should not reduce subsistence allowance to 25%, owing to the absence of the Workman as a result of which, the enquiry was prolonged. The Workman replied to the aforesaid show cause notice on 25.10.2013. After submitting his reply to the show cause notice, the Workman approached the Assistant Labour Commissioner seeking subsistence allowance invoking the provisions of the said Act.
14. The Assistant Labour Commissioner exercising its jurisdiction under the said Act, 13 determined the subsistence allowance payable to the Workman upto 90 days at 50%, beyond 90 days at 75% and beyond 181 days at 90%. Since the domestic enquiry against the Workman had gone beyond 180 days, the subsistence allowance was enhanced in a staggered manner and the amount of Rs.45,601/- is determined to be the difference of subsistence allowance that is to be paid to the Workman in terms of the said Act.
15. To determine the applicability of the said Act notwithstanding the Standing Orders of the Management, the objects and reasons for promulgation of the said Act is required to the noticed and is extracted hereunder for the purpose of ready reference: “STATEMENT OF OBJECTS AND REASONS. Act 18 of 1992:- Employers very often resort to suspension of workmen on the 14 ground that an enquiry into alleged misconduct is pending or that a complaint of criminal offence against the workman is under investigation or trial. In certain cases employers do not make payment of any subsistence allowance during the period of such suspension. The Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946 provide for payment of such subsistence allowance during suspension. It is the experience that several establishments to whom the Industrial Employment (Standing orders) Act, applies have not made necessary provisions in their Standing Orders to provide for payment of subsistence allowance, as their standing orders had been certified prior to the Model standing orders being framed. There is also no legislation or rule for payment of subsistence allowance to suspended workman, in establishments to which the Standing Orders Act, does not apply. It is, therefore, necessary to enact a legislation to provide for payment of subsistence allowance to suspended workman.” (emphasis supplied) The very object behind promulgating the said Act can be clearly gathered from the objects and reasons, 15 which was due to lack of Standing Orders in various Managements, which did not provide for adequate subsistence allowance when the Workmen were placed under suspension. The objects and reasons further make it clear that the said Act will be applicable only to those establishments where there are no Standing Orders of their own which would govern the payments of subsistence allowance. That being the case, when the Management has its own Standing Orders, to deal with disciplinary action for misconduct also contains a provision for payment of subsistence allowance in a particular manner as indicated in clause 28.3 (supra). Thus, the very institution of the proceedings before the Assistant Labour Commissioner invoking the provisions of the said Act was without jurisdiction in the light of the existence of the Standing Orders of the Management. 16
16. It is a trite law that in the order passed by an Authority without jurisdiction is a non est in the eye of law. Hence, the order of the Assistant Labour Commissioner granting payment of the subsistence allowance by determining a particular amount assuming the jurisdiction under the said Act in the teeth of the standing orders existing with the Management is without authority of law and requires to be set aside.
17. The Management has also placed additional documents by way of interlocutory application which are also taken on record as there were no objections to the same by the Workman. In those documents the Management has clarified that, though show cause notice was issued as to why the subsistence allowance should not be reduced to 25%, the same is recalled and the Workman is paid subsistence allowance in terms of the standing orders. 17
18. It is not the case of the Workman that he is not paid subsistence allowance in terms of the standing orders but his entitlement under the said Act on the ground that it is more beneficial to him. This submission of the learned counsel appearing for the Workman is unacceptable as the provisions of the said Act does not and cannot govern payment of subsistence allowance when subsistence allowance is required to be paid in terms of the Standing Orders under which the Management has placed the Workman under suspension.
19. Insofar as the submission of the learned counsel that other Workmen are paid subsistence allowance in terms of the said Act and the petitioner who is similarly placed is also required to be paid under the said Act is concerned, when the said Act itself is not applicable to the Workman of the 18 Management in the light of the existence of the Standing Orders, the fact that the Management is paying subsistence allowance in terms of the said Act will not enure to the benefit of the Workman to claim or seek a prayer for payment of the subsistence allowance under the said Act. If the Management has paid the subsistence allowance contrary to law. This Court would not direct the Management to perpetuate such illegality as there is no concept of negative equality in law. It is a trite law that equality in terms of Article 14 of Constitution of India is a positive concept and there can be no negative equality in law. The Hon’ble Apex Court in the case of UNION OF INDIA V. INTERNATIONAL TRADING CO., reported in (2003) 5 SCC437 which reads as follows: “13. What remains now to be considered, is the effect of permission 19 granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short “the Constitution”) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even 20 if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. In terms of the afore-extracted judgment, the contentions urged by the Workman is unacceptable. This Court after holding that the said Act is not applicable to the Company would be loathe to make the Management to pay the subsistence allowance on the ground of discrimination as submitted by the learned counsel as equality is a positive concept and there is no negative equality in law.
19. For the aforesaid reasons, the following: ORDER
a. The writ petition is allowed. 21 b. The impugned order dated 05.11.2015 passed by the second respondent - Assistant Labour Commissioner is quashed. Sd/- JUDGE nvj CT:MJ