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CASE NO.:

Appeal (civil) 7382 of 2001

PETITIONER:

B.D. SHETTY AND OTHERS

Vs.

RESPONDENT:

M/S. CEAT LTD. AND ANOTHER

DATE OF JUDGMENT: 30/10/2001

BENCH:

D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

Shivaraj V. Patil, J.

Leave granted.

The question whether the `delay in completion of

disciplinary proceedings directly attributable to the conduct of

a workman under Section 10-A(1)(b) of Industrial Employment

(Standing Orders) Act, 1946 also covers delay occasioned on

account of such workman succeeding in getting stay of

disciplinary proceedings at the hands of competent judicial

authority pending trial of a criminal case in a bona fide effort

to protect him from the prejudice that may be caused by

simultaneous proceedings has come up for consideration and

decision in this appeal.

In brief, the facts giving rise to this appeal are:

The appellants are employees of the respondent-company.

They resigned from the membership of the Mumbai Shramik Sangh

Union, which till then had been the only trade union in the

respondent-company and accepted membership of Shramik Utkarsha

Sabha. One Mr. Sayeed Admed, an employee of respondent and Vice-

President of Mumbai Sharamik Sangh made a false complaint on

23.4.1996 on account of union rivalry against the appellants

alleging that they had assaulted him; they were arrested and

subsequently released on bail; on 8.5.1996, suspension orders

were issued to the appellants on account of criminal cases; the

appellants replied to the order of suspension denying allegations

made against them. on 7.10.1996, the respondent issued charge-

sheets to the appellants alleging misconduct under the Model

Standing Orders 24(K) and 24(I); the appellants gave replies to

the charge-sheets denying the allegations; the domestic inquiry

commenced on 25.1.1997; the appellants requested the respondent

as well as Inquiry Officer not to proceed with the domestic

inquiry till the conclusion of criminal trial pending before the

Sessions Court; since the said request was not accepted, the

appellants filed complaints before the Labour Court, Thane under

the Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971 (for short the MRTU & PULP

Act). In the said complaint cases, the Labour Court granted

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interim order on 23.7.1997 staying the domestic inquiry. In the

final order passed on 11.12.1997, the Labour Court confirmed the

said interim order restraining the respondent from conducting the

domestic inquiry till the completion of the criminal trial.

Against this order, the respondent has filed Revision Application

(ULP) Nos. 34, 35 and 36 of 1998 before the Industrial Tribunal,

Thane, which are pending.

On 19.12.1997, the respondent reduced the subsistence wages

of the appellant from 75% to 50% on account of delay caused by

the appellants in the completion of the domestic inquiry. The

appellants, in the reply denied that the delay in the domestic

proceedings is directly attributable to them and that as per the

long standing practice, they were entitled to full wages after

180 days of suspension which was not paid to them. Thereafter,

aggrieved by the rate of reduction of subsistence wages, the

appellants filed complaint on 29.12.1997 in the Industrial Court

invoking the provisions of the MRTU & PULP Act and claimed 100%

subsistence wages. The said complaint was dismissed. The

appellants filed Writ Petition No. 6208/1998 in the High Court

challenging the said order passed by the Industrial Court

dismissing the complaint. The same was dismissed by the learned

Single Judge of the High Court. The Letters Patent appeal filed

by the appellants against the said order of the learned Single

Judge was also dismissed in limine. Hence, this appeal.

Mr. Sanjay Parikh, learned counsel for the appellants

contended that (1) the delay in completion of domestic inquiry is

not directly attributable to the appellants when a competent

judicial authority has granted stay of the proceedings in

domestic inquiry pending trial in criminal proceedings on being

satisfied of bonafide efforts of the appellants to protect

themselves from the prejudice that would be caused if the

domestic inquiry was to be continued affecting their fair trial

in criminal proceedings; if the domestic inquiry was not stayed

the appellants would have been compelled to disclose their

defence which would have prejudiced their valuable legal right to

free and fair trial in criminal proceedings. (2) The labour

court granted stay of domestic inquiry in the light of various

decisions of this Court, satisfied on facts of the case that

continuance of domestic inquiry pending criminal trial would be

prejudicial to the appellants; merely because the appellants

succeeded in getting stay order to protect their rights, it

cannot be considered as a delay caused by them covered by Section

10-A(1)(b) of the Industrial Employment (Standing Orders) Act,

1946 (for short the Act). (3) the appellants are entitled for

100% subsistence allowance after 180 days of suspension under

Clause 25(5-A) of the Model Standing Order Rules framed under the

Bombay Industrial Employment (Standing Orders) Rules, 1959;

clause 25(5-A) of the Model Standing Order Rules being more

beneficial prevails over Section 10-A(3) of the Act; the High

Court has failed to see this aspect of the matter. (3) The High

Court also failed to appreciate that the exercise of their legal

rights by the appellants for a fair and free trial before the

Sessions Court did not attract the mischief of Section 10-A(1)(b)

of the Act.

On the other hand, Mr. S. Ganesh, learned senior counsel

for the respondents, supporting the impugned order, contended

that if the delay is attributable to workman, it is enough to

attract the application of Section 10-A(A)(b) of the Act; when

the language of the Section is plain and clear it is not

permissible to exclude delay attributable to workman on the

ground that delay is caused on account of stay granted by the

court; it is not permissible to add or exclude any words to the

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provision; the labour court as well as the High Court were right

in accepting the case of the respondent-company reducing

subsistence allowance of appellants to 50% having due regard to

clear provision contained in Section 10-A(1)(b). He also added

that the appellants caused delay at every stage even before the

labour court as well as before the revisional authority. The

further submission of the learned counsel was that in Mumbai

completion of a sessions trial takes number of years,

particularly, the cases where the accused are on bail; in this

case the appellants are on bail; in cases where trial takes long

time there would be no justification to stay domestic inquiry or

payment of subsistence allowance at higher rate. According to

him no prejudice would be caused to the appellants as they have

already disclosed their defence by denying the charge of their

involvement in criminal acts; even the revision petition filed by

the respondents challenging the order of stay, granted by the

labour court, is pending consideration and decision; in those

proceedings also the appellants are causing delay on one or the

other ground; the benefit of clause 25(5A) of the Model Standing

Order Rules is not available to the appellants in terms of

Section 10-A(3) of the Act, they not being `any other law.

We have carefully considered the submissions made by the

learned counsel for the parties. Section 10-A of the Industrial

Employment (Standing Orders) Act, 1946, to the extent relevant,

reads:-

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) ..........................

(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.

It is clear from Section 10-A, extracted above, that the

employer is required to pay subsistence allowance to a workman

suspended pending inquiry at the rate of 50% of wages for the

first 90 days and at the rate of 75% of wages for the remaining

period of suspension, if delay in completion of disciplinary

proceedings is not directly attributable to the conduct of the

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workman concerned. If a workman is entitled to more beneficial

provisions regarding subsistence allowance under any other law in

force in any State, then the provisions of such other law shall

prevail.

Where a workman is suspended by the employer, pending

investigation or inquiry into a complaint or charges of

misconduct against such workman, a statutory obligation is cast

on the employer under the said provision to pay subsistence

allowance at the rate mentioned and such a workman has a

statutory right to get subsistence allowance. However, as an

exception a workman can be denied payment of subsistence

allowance at the rate of 75% after expiry of 90 days of

suspension, if the delay in the completion of disciplinary

proceedings is directly attributable to the conduct of such

workman.

In the light of the question set out above we have to

examine whether delay of any kind is covered by mischief of

Section 10-A(1)(b) of the Act, as sought to be made out on behalf

of the respondent. The work attribute means to ascribe to

as belonging or pertaining as stated in Words and Phrases

Permanent Edition. According to P. Ramanatha Aiyars Law Lexicon

attributable is a plain Engligh word involving some casual

connection between the loss of employment and that to which the

loss is said to be attributable. This connection need not be

that of a sole, dominant, direct or proximate cause and effect.

A contributory casual connection is quite sufficient. The

expression attributable to is wider in import than the

expression derived from and so it follows that the legislature

intended to cover receipts from sources other than the actual

conduct of the business of generation and distribution of

electricity.

If under Section 10-A(1)(b) of the Act only the words

attributable to were used, the position would have been

different but the words used directly attributable to prefixing

the word directly to the words attributable to makes a

drastic difference to emphasis that in order to deny a workman

subsistence allowance at the rate of 75%, the delay should be

directly attributable to the conduct of such workman in

completion of disciplinary proceedings and not that every kind of

delay is covered by the said provision. If that was the

intention of the legislature there was no need for emphasis by

adding the word directly and instead they would have simply

used the words attributable to. In the field of interpretation

of statutes the courts always presume that the legislature

inserted every part thereof with a purpose and the legislative

intention is that every part of the statute should have effect.

Further, it cannot be said that a word or words used in a statute

are either unnecessary or superfluous unless there are compelling

reasons to say so looking to the scheme of the statute having

regard to the object and purpose sought to be achieved by it. In

this view, the use of the word directly in the provision has to

be given meaning and effect in the context of the said provision

under the scheme of the Act.

When a workman approaches a competent court bonafidely to

protect himself from prejudice likely to be caused by continuing

proceedings simultaneously in domestic inquiry as also in the

criminal case grounded on the same set of facts and succeeds in

getting order from a competent judicial authority staying further

proceedings in the disciplinary proceedings till the disposal of

the criminal case, it cannot be said that delay on that account

in completion of disciplinary proceedings is directly

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attributable to the conduct of such workman. It cannot be denied

that a workman is also entitled for a free and fair trial in the

criminal case. Hence, if a workman, in order to protect himself

from the prejudice that may be caused by simultaneous

proceedings, approaches a competent judicial authority and that

authority, on being satisfied, taking into consideration the

facts and circumstances of the case, stays further proceedings in

a domestic inquiry pending a criminal trial, delay caused on that

account in completion of domestic inquiry cannot be directly

attributable to the conduct of such workman because granting stay

of further proceedings in a domestic inquiry does not depend on

the pleasure or mere wish of a workman himself. May be, in a

given case the court may refuse to stay disciplinary proceedings.

It is open to the employer to oppose granting order by a

competent court staying disciplinary proceedings on all the

grounds available to him. If a workman is to be denied

subsistence allowance at the rate of 75% under Section 10-

A(1)(b), even in a case where he may have a legal right and a

good case on merit to get order from a competent court staying

domestic inquiry pending criminal trial, he may be forced to

suffer in silence. During the period of suspension he has to

support his family and survive to fight or defend his case. It

appears, reference to the delay directly attributable to the

conduct of the workman in the said provision is obviously to the

one where the workman unjustifiably, deliberately or designedly

drags on or prolongs the domestic inquiry. To put it in other

way, a workman cannot be permitted to take advantage of delay

caused by himself in the absence of any order passed by a court.

If such a delay is also to be taken as covered by Section 10-

A(1)(b) it may amount to in a way putting restraint or clog on

the exercise of legal right of a workman to approach a court of

law out of fear of losing subsistence allowance at the rate of

75%. It is one thing to say that in a given case there should be

no stay of disciplinary proceedings. It is another thing to say

that in case stay is granted there will be delay in completion of

disciplinary proceedings, which is directly attributable to the

conduct of a workman. Merely because legal proceedings will be

pending in a court or before other authority and they take

sometime for disposal, may be inevitably, that itself cannot be

the ground to deny subsistence allowance to a workman against a

statutory obligation created on the employer under Section 10-

A(1)(b). One must not lose site of the fact that the Act is a

beneficial piece of legislation and the provision of subsistence

allowance made is intended to serve a definite purpose of

sustaining the workman and his family members during the bad time

when he is under suspension pending inquiry. This provision is

enacted with a view to ensure social welfare and security.

Hence, such a beneficial piece of legislation has to be

understood and construed in its proper and correct perspective so

as to advance the legislative intention underlying its enactment

rather than abolish it. Assuming two views are possible, the

one, which is in tune with the legislative intention and furthers

the same, should be preferred to the one which would frustrate

it.

It is open to the employer to resist granting of interim

order by a court staying the disciplinary proceedings or getting

the stay order vacated, as the case may be, satisfying the court

that on facts and circumstances of the case, there is no

justification to stay the disciplinary proceedings pending

criminal trial. In the present case, as already stated, the

competent court has granted stay order staying the disciplinary

proceedings and the matter is pending in revision filed by the

respondent challenging the same before the Industrial Tribunal.

It may be stated here itself that during the course of the

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arguments both the learned counsel stated that in order to avoid

further delay, a direction may be given to Industrial Tribunal to

dispose of the revision petition within a given time frame.

Whether there is justification for continuation of the stay order

or not is pending consideration before the Industrial Tribunal.

Hence, we do not express any opinion on merit although some

submissions were made before us by the learned counsel for the

parties in this regard. The learned senior counsel for the

respondent submitted that even before the Tribunal in the

revision petition, the delay is caused by the appellants. As can

be seen from Rozname (order sheet) of the proceedings before the

Tribunal, the delay is not entirely attributable to the

appellants although few adjournments were sought by them.

Sometimes court was vacant, sometimes the proceedings were

adjourned by the consent of the parties and sometimes for other

reasons. The learned counsel for the appellants complained that

there was delay on the part of the respondent also after issuing

suspension orders to the appellants on 8.5.1996; the appellants

replied to the suspension orders on 6.9.1996; no action was taken

upto 7.10.1996 on which date charge-sheets were received by the

appellants; the appellants filed reply to the charge-sheets on

15.10.1996 and the domestic inquiry commenced only on 25.1.1997.

We are not impressed by the submission of the learned

counsel for the respondent that once there is delay on account of

the conduct of the workman, whatever may be the reason for delay,

it is good enough to attract Section 10-A(1)(b) to deny the

workman subsistence allowance at 75% after 90 days of suspension.

According to him, no distinction can be made to exclude delay

caused on account of stay order granted by a court at the

instance of workman. He contended that no words can be added or

excluded to the said provision to avoid the mischief of it. In

our view, a plain reading and clear understanding of Section 10-

A(1)(b), as already discussed above, excludes the delay in

completion of disciplinary proceedings caused on account of order

granted by a competent court from the mischief of the said

provision. It is only the delay that is directly attributable to

the workman is covered by the said provision. For what is stated

above, the question raised in the beginning is answered in the

negative.

The argument of the learned counsel for the appellants that

looking to the Model Standing Orders appearing in Schedule I

appended to the Bombay Industrial Employment (Standing Orders)

Rules, 1959, which are more beneficial, the appellants are

entitled for 100% subsistence allowance equivalent to their

wages, dearness allowance and other compensatory allowance in

case inquiry is not completed within the period of 180 days is

based on Section 10-A(3) is untenable. The learned senior

counsel for the respondent pointed out that Model Standing Orders

contained in Schedule I, are the part of Bombay Industrial

Employment (Standing Orders) Rules, 1959 and these rules are

framed in exercise of the powers conferred by Section 15 of the

Act. Hence, it cannot be said that the said Model Standing

Orders come within the meaning of such `other law covered by

Section 10-A(3). He drew our attention to a Division Bench

judgment of Bombay High Court in May & Baker Ltd. vs. Kishore

Jaikishandas Icchaporia (1991 Lab.I.C. 2066) in which it is

clearly held that Model Standing Orders were not other laws.

Para 9 of the said judgment reads thus:-

There is no dispute that the payment that was

made by the appellant to the 1st respondent was

in accord not only with the provisions of the

Certified Standing Orders applicable to their

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industrial establishment but also with those of

Section 10-A. It was urged by Mrs. Dsouza,

leaned counsel for the 1st respondent that the

1st respondent was entitled to subsistence

allowance as provided by the Model Standing

Orders by reason of sub-section (3) of Section

10-A because the Model Standing Orders were

other laws within the meaning of sub-section

(3). We find this argument difficult to

accept. The Model Standing Orders, as also

Certified Standing Orders, are laws no doubt,

but they are laws made under the provisions of

the Act. They are not provisions under any

other law. In our view, therefore, the

provisions of Section 10-A supervene in

relation to the payment of subsistence

allowance over the provisions of the Model

Standing Orders.

We have every good reason to accept the said view. 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. In

this view, we reject the contention of the learned counsel for

the appellants. Similarly, his argument that there is a practice

with the respondent to make 100% subsistence allowance if inquiry

is not completed within 180 days, and as such the appellants are

also entitled accordingly, cannot be accepted in view of the

specific provision contained in Section 10-A of the Act.

In view of submissions made by both learned counsel that

the revisional authority may be directed to dispose of the

revision petitions pending before the Industrial Tribunal within

the given time frame and looking to the facts and circumstances

of the case, we also think it just and appropriate to direct the

Industrial Tribunal, Thane, to dispose of the revisions pending

before it within two months from the date of receipt of copy of

this order. It is open to both the parties to urge all the

contentions available to them including that there is no need to

continue the stay order at this length of time and that no

prejudice will be caused to appellants when they have already

disclosed their defence in the domestic inquiry.

The learned senior counsel for the respondent submitted

that in the event we hold against the respondent and reverse the

impugned order, the payment of subsistence allowance at the rate

of 75% may be ordered prospectively. Having regard to the facts

and circumstances of the case and the view we have taken, it is

not possible to accept the request made on behalf of the

respondent that payment of subsistence allowance at the rate of

75% may be ordered prospectively.

In view of the interpretation we have placed on Section 10-

A(1)(b) in regard to delay and answered the question in the

negative, the impugned order does call for interference.

For what is stated above, the impugned order cannot be

sustained. We set aside the same and hold that the appellants

are entitled for subsistence allowance at the rate of 75%. The

appeal is allowed accordingly. The Industrial Tribunal, Thane,

shall dispose of the Revision Application (ULP) Nos. 34, 35 and

36 of 1998 within a period of two months from the date of receipt

of copy of this order. No costs.

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.......................J.

(D.P. MOHAPATRA )

.......................J.

(SHIVARAJ V. PATIL )

October 30, 2001.