2004(1) ALL MR 660
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. MOHITE, J.

Air India Ltd.Vs.Mr. B. P. Sharma & Anr.

Writ Petition No.2408 of 2003

8th December, 2003

Petitioner Counsel: Mr. SALUJA,M/s. M. V. Kini and Co.

Industrial Disputes Act (1947), S.33(3)(b) - Application for grant of approval - Filed under S.33(3)(b) - Application filed by employer - Held, unless Tribunal came to a finding that domestic enquiry was either a total farce or that it was not just and fair or it was contrary to the provisions of law, the question of directing the employer to pay subsistence allowance to the employee during pendency of the proceedings for approval under S.33(3)(b) of the Industrial Disputes Act, does not arise. Decision in Appeal Stamp No.351/2003 (Bom), Dt.30-06-2003 - Rel. on. (Para 5)

Cases Cited:
Standard Chartered Grindlays Bank Ltd. Vs. Govind Phopale, 2002(III) CLR 405 [Para 5]
Air India Ltd. Vs. Mr. Libio Franciscio Colaco, Appeal Stamp No.351/2003 along with other appeals and writ petitions, Dt.30-6-2003 [Para 5]


JUDGMENT

JUDGMENT :- Rule.

2. By consent of the parties rule is made returnable forthwith.

3. The point which has been raised in this petition is covered by the Judgment of Single Judge of this court passed in Writ Petition (Lodging No.2056 of 2003 decided by (R.M.S. Khandeparkar, J.) on 16.9.2003.

4. The brief facts of the case are that on 5.3.2001 an application was made by the petitioner-employer for grant of approval under Section-33(2)(b) of the Industrial Disputes Act, 1947. The employee had been dismissed prior to the making of this application for approval on the day when the application for approval was made. On 27.3.2003, employee-respondent No.1 made an application for grant of subsistence allowance. In the said application, he contended that he was being supported by his son who has expired in an accident. With such averments delay caused in making the application for subsistence allowance was sought to be explained. The application for subsistence allowance was granted by the National Industrial Tribunal by its order dated 4th June, 2003. It is this order which is impugned in the present petition.

5. In the impugned order, the Tribunal has recorded that the Air India has not disputed the fact that the workman has not paid the subsistence allowance from 5.3.2001. The present petitioner had however, questioned the jurisdiction of the Tribunal to grant the interim relief. While disposing of the application, the Tribunal relied upon the Judgment delivered by R. J. Kochar, J. in the case of Standard Chartered Grindlays Bank Ltd. Vs. Govind Phopale and another reported in 2002(III) CLR 405 and came to a conclusion that the issue as to whether the tribunal has power under Section-33(2)(b) of the Industrial Disputes Act, 1947 and passed the impugned order that it did have power to grant subsistence allowance. The present petition came to be filed on 8.10.2003. During the pendency of this petition a group of appeals including Appeal No.1191 of 2002 preferred in the very case of Standard Chartered Grindlays Bank Ltd. came to be heard and disposed of by the Division Bench of this court vide its Judgment and Order dated 30.6.2003. The Division Bench disagreed with certain aspects of the view taken by the Single Judge (R. J. Kochar, J.) in the case of Standard Chartered Grindlays Bank Ltd. Vs. Govind Phopale and another while upholding the power to grant of the subsistence allowance. It indicated that the subsistence allowance should normally be granted when there was de-novo enquiry. It also observed that the subsistence allowance would not normally be granted where domestic enquiry was held to be valid. Therefore, I am informed that the group of about 24 writ petitions in which the Air India Ltd. was also the petitioner against different employees came up before another Single Judge of this court (R.M.S. Khandeparkar, J.) and the entire group came to be disposed of by similar orders. I am informed that the present petition was also on board on 14.10.2003 but was not disposed of. I have perused the order passed by the Single Judge in Writ Petition Lodging No.2056 of 2003 by which the Single Judge after relying upon the unreported Judgment of the Division Bench in the matter of Air India Ltd. Vs. Mr. Libio Franciscio Colaco and another (Appeal Stamp No.351 of 2003 along with other appeals and writ petitions) delivered on 30.6.2003 concluded that the point was well settled and it was clear that unless the Tribunal came to a finding that the domestic enquiry was either a total farce or that it was not just and fair or it was contrary to the provisions of law, the question of directing the employer to pay the subsistence allowance to the employee during the pendency of the proceedings for approval under Section 33(3)(b) of the Industrial Disputes Act, 1947 did not arise at all. The proceedings before the learned Single Judge were proceedings under Section 33(2)(b) of the Industrial Disputes Act, 1947. I am of the view that the said Judgment is passed in a case where the circumstances are similar as in the present case. The present petition, in my view, can be disposed of by the similar directions in the decided group of petitions.

6. In view of what is stated above, petition succeeds. The impugned order is hereby quashed and set aside and the matter is remanded to dispose of the approval application as expeditiously as possible and in any case within a period of three months from the date of receipt of the writ of this court. The Tribunal to file compliance report immediately after the expiry of the period of three months. The rule is made absolute accordingly with no order as to costs.

7. Writ pertaining to this order be sent forthwith to the Tribunal.

Parties to act on ordinary copy of this order duly authenticated by the Associate/C.S. of this court as true copy.

Petition allowed.