Gujarat State Road Transport Corporation Vs. C.V. Pandor - Court Judgment

Excerpt:
- - he has contended that in such circumstances, the concerned conciliation officer was under the obligation to determine the amount of suspension allowance to be paid by the corporation to the concerned employee and to fix the time within which such suspension allowance was required to be paid, but he has failed to decide the question of quantum of suspension allowance to be paid and also the time within which such suspension allowance was required to be paid, and instead of deciding the quantum and time for payment of such suspension, allowance, he rejected the application for permission only on the ground that suspension allowance had not been paid. he has contended that since without any just cause, the petitioner failed and neglected to pay the suspension allowance, question of according approval did not arise and as there was no justification to withhold such suspension allowance on the plea of that, the same is to be determined by the conciliation officer, the rejection of the application for according approval was justified and no interference is called for mr.g.n. ray, c.j.1. rule. since mr. shaikh, learned counsel, is appearing for the 1st respondent, service of rule is waived. 2. by consent of the parties, the rule is taken up for final hearing. respondent no. 1 shri c. v. pandor was an employee under the gujarat state road transport corporation. in connection with a disciplinary proceeding initiated against him, he was placed under suspension and in such disciplinary proceeding, the petitioner-gujarat state road transport corporation has taken a decision to dismiss the said shri c. v. pandor from service, but in view of the pendency of a proceeding before the conciliation officer, permission under s. 33 had been sought for, for imposing the proposed punishment of dismissal. it is the case of the petitioner that until the disposal of said application for according permission to the proposed punishment, the appropriate suspension allowance should be decided by the conciliation officer by fixing a time so that within the aforesaid period, the amount so determined by the conciliation officer could be deposited by the petitioner. such an application was made by the petitioner, but unfortunately without disposing of such an application, the permission sought for by petitioner was rejected simply on the ground that suspension allowance was not paid to the said employee, viz. respondent no. 1 shri c. v. pandor. mr. shelat, learned counsel appearing for the petitioner, has contended that there is no standing order applicable to the corporation, by which any suspension allowance has been fixed to be paid when, in a disciplinary proceeding, a decision to impose punishment has been taken, but such decision to impose punishment has been taken, but such decision to impose punishment is pending approval under s. 33 of the industrial disputes act. he has contended that in such circumstances, the concerned conciliation officer was under the obligation to determine the amount of suspension allowance to be paid by the corporation to the concerned employee and to fix the time within which such suspension allowance was required to be paid, but he has failed to decide the question of quantum of suspension allowance to be paid and also the time within which such suspension allowance was required to be paid, and instead of deciding the quantum and time for payment of such suspension, allowance, he rejected the application for permission only on the ground that suspension allowance had not been paid. mr. shelat had, therefore, contended that the order, rejecting the permission, should be set aside and the conciliation officer should be directed to consider the question of suspension allowance to be paid afresh and to give reasonable time to make such payment and thereafter to take the application for consideration on merit. 3. mr. shaikh, learned counsel appearing for the respondent no. 1, has, however, contended that during the pendency of the disciplinary proceeding, the respondent no. 1 was entitled to get appropriate suspension allowance as per the standing order and he has contended that as per the standing order, he was entitled to receive 50% for the first 90 days during which he was placed under suspension pending the disciplinary proceedings, and, thereafter, at the rate of 75% until disposal of the disciplinary proceedings and so long as the permission was not accorded by the appropriate authority, the respondent no. 1 must be held to be under suspension and on the said basis of the standing order, he is entitled to get 75% of the wages by way of subsistence allowance. he has contended that the said standing order is applicable to the employee and no appropriate procedure was adopted to suspend the operation of the standing order. accordingly, the conciliation officer could not have taken any decision contrary to the standing order. he has contended that since without any just cause, the petitioner failed and neglected to pay the suspension allowance, question of according approval did not arise and as there was no justification to withhold such suspension allowance on the plea of that, the same is to be determined by the conciliation officer, the rejection of the application for according approval was justified and no interference is called for mr. shelat, learned counsel for the petitioner, has drawn the attention of this court to the decision of this court made in the case of mansingh r. parmar v. gujarat state road transport corporation reported in (1983 lab ic noc 45 (guj). it was held in the said decision that, when, after completion of disciplinary proceeding, a decision to terminate the service was taken by the employer although the application for permission to impose the punishment was pending, the contract of employment must be deemed to have been suspended temporarily and in the absence of master and servant relationship because of such contract of employment being suspended temporarily, there was no obligation on the employer to pay wages and to pay subsistence allowance. it appears to us that in view of the decision made by the supreme court in the case of fakirbhai fulbhai solanki v. presiding officer reported in 1986 - ii - llj - 124 it cannot be contended that during the pendency of the application for according permission to impose penalty of removal or dismissal from service after the completion of the disciplinary proceeding, no suspension allowance is payable. it has been specifically held in the said decision by the supreme court that even in a case where application for permission is pending before the authorities, it will be open to the management to pay within a reasonable time to be fixed by the authority, before which such application for permission is pending, the subsistence allowance for the period, during which the workman is kept under suspension without wages and to continue the proceedings. it has been indicated by the supreme court that such subsistence allowance shall be the amount fixed under the standing orders, it any, which the management is liable to pay to the workman if he is kept under suspension during the pendency of such application or in the absence of any such standing order, the amount to be fixed by the authority, before which such application is pending. the supreme court has further indicated in the said judgment that in a case where the proceedings are completed and the order of dismissal is successfully challenged on the ground of non-payment of subsistence allowance for the period of suspension during the pendency of the application under section 33(1) or section 33(3) of the act, it shall be open to the management to ask for the permission from the authority again under section 33(1) or section 33(3) of the industrial disputes act, after paying or offering to pay to the workman concerned within a reasonable time to be fixed by the authority concerned, the arrears of subsistence allowance at the rate stated above. in view of the aforesaid decision of the supreme court, it, therefore, appears to us that even after completion of the disciplinary proceeding and pending the disposal of the application for according permission to impose punishment proposed to be made, suspension allowance was required to be paid by the employer and the supreme court, in paragraph 8 of the said decision, has indicated the reasoning for which such suspension allowance was required to be paid to the employee. it, however, appears to us that such a prayer was made by the employer before the conciliation officer to fix the quantum of suspension allowance and to determine the period within which such suspension allowance was required to be paid contending, inter alia, that there is no provision in the standing order applicable in such circumstances, by which the quantum of suspension allowance in such cases may be fixed. in that view of the matter, there is force in the contention of mr. shelat, that the conciliation officer should have determined the amount of compensation and fixed the period within which such suspension allowance should be paid by the employer, but without determining such quantum of compensation and period within which it is to be paid, the application for according permission was rejected only on the ground that suspension allowance was not paid and the conciliation officer, by rejecting such application for permission, without determining the quantum of compensation and the period within which such compensation is to be paid, has misdirected itself. 4. we, therefore, dispose of this application by directing that without prejudice to the rights and contentions of the parties before the conciliation officer about the determination of the quantum of compensation to be paid to the concerned employee and the period within which such compensation was to be paid to him by the petitioner-corporation, the petitioner-corporation should pay to the respondent no. 1 a sum equivalent to 50% of the wages last drawn by him from the date of initial order of suspension during the pendency of the disciplinary proceeding till february, 1991. such payment should be made within a period of four weeks from today. it is made clear that such payment should ultimately abide by the decision to be made by the conciliation officer, as directed hereinbefore. it is also made clear that if the quantum of compensation to be determined by the conciliation officer is not paid with the period to be fixed by such conciliation officer, the question of considering the application for according permission will not arise and such application will stand rejected. if, however, such payment is made within the period prescribed by the conciliation officer, the conciliation officer will consider the application for granting permission in accordance with law on merits. by way of abundant caution, it is made clear that this court has no expressed any opinion on the legality or validity of the disciplinary proceeding initiated against the respondent no. 1 and all questions raised in the application for granting permission are kept open to be decided by the conciliation officer. 5. rule is made absolute to the extent indicated above. no order as to costs.