STANDARD CHARTERED GRINDLAYS BANK LIMITED Vs. GOVIND PHOPALE

JUDGEMENT

(1.) RULE. By consent of the parties the Rule is made returnable forthwith. Respondents waive service. Head both the learned Counsel. The petitioner bank is aggrieved by the order dated 5th June, 2002 passed by the Central Government Industrial Tribunal No. I in an interlocutory application dated 6th August, 2001 filed by the respondent workman in the approval application CGIT - 1/2002 filed by the petitioner bank under section 33 (2) (b) of the Industrial Disputes Act, 1947.

(2.) AS far as the order in respect of the amendment in the cause title of the reference is concerned, there is no dispute or challenge by the respondent workman. It appears that from the erstwhile name of the bank, ANZ Grindlays Bank, Mumbai, the present name has to be substituted and the Tribunal has rightly allowed the application filed by the petitioner bank. Though the facts in the present petition are in a very narrow compass, the question of law involved is of utmost importance in the adjudication of industrial disputes and in the industrial jurisprudence. The petitioner bank has filed an application under section 33 (2) (b) of the I. D. Act seeking approval of its action of dismissal taken against the respondent workman. It appears that the petitioner bank had held a domestic enquiry in the charge-sheet dated 12th January, 1995 for an alleged act of misconduct allegedly committed by the workman. After the domestic enquiry, the petitioner bank passed an order of dismissal on 2nd March, 2000. It appears that as a part of the said transaction the petitioner bank filed the aforesaid approval application before the Tribunal and it also appears to have offered wages in lieu of one months notice as prescribed in the said section. The approval application is pending as yet. During the pendency of the application, the respondent workman not only filed his written statement to oppose the approval application but also filed an application on 6th August, 2001 for grant of subsistence allowance during the pendency of the said application. The petitioner bank opposed the said application by filing its reply raising several contentions and strongly resisting the prayers of the respondent workman. The Tribunal by the impugned order decided the application in favour of the respondent workman directing the petitioner bank to pay an amount per month at the rate of suspension allowance or subsistence allowance payable during the pendency of the enquiry, from the date of filing of the application i. e. 12th March, 2000. The amount computed by the workman at the rate of subsistence allowance was Rs. 5065. 55 per month. The aforesaid figure was not contradicted by the petitioner bank. It was also directed to continue to pay the said amount during the pendency of application for approval.

(3.) SHRI Patel, the learned Advocate for the petitioner bank has made a serious grievance against the impugned order of the Tribunal. According to him, the application for subsistence allowance was not tenable under section 33 (2) (b) of the I. D. Act. Shri Patel submitted that since the employer employee relationship had come to an end by way of order of dismissal, there was no question of granting subsistence allowance to the workman during the pendency of the approval application. Shri Patel submitted that as a result of the dismissal order, the respondent workman had ceased to be in employment and, therefore, he was not entitled to claim any wages till he succeeds to get reinstatement after getting the order of dismissal set aside in appropriate proceedings. According to him, even in the present approval application if the Tribunal refused to grant approval to the order of dismissal, then only he would be entitled to get wages for the entire period from the date of dismissal till the date of order passed by the Tribunal. Shri Patel submitted that reliance of the Tribunal on the decision of the (Fakirbhai v. The Presiding Officer and another) 1986 (2) L. L. J. 124 was wholly misplaced. Shri Patel submitted that it was a case of permission under section 33 (1) (a) and not a case under section 33 (2) (b ). Shri Patel pointed out that under section 33 (1) (a) and section 33 (3), the workman continue to be in employment and the employer approaches the Tribunal for seeking permission to punish them after completion of the disciplinary proceeding, for the alleged acts of misconducts. In such cases, the Supreme Court has considered and has granted wages as the employer employee relationship subsisted. During the pendency of the application for permission, if the employer suspends the delinquent workman, he becomes entitled to get suspension wages under the standing orders or full wages, if there are no standing orders empower the employer to suspend the workman during the pendency of the enquiry. Shri Patel submitted that under section 33 (2) (b), the workman stands dismissed and therefore, he would not be entitled to get any wages till the approval application filed by the employer would be dismissed and in that case, he would get full wages for the entire intervening period. If the approval application is granted, approving the action of dismissal such order relates back to the date of the dismissal and, therefore, the workman does not get anything from the date of dismissal onwards. According to Shri Patel, therefore, if the approval application is dismissed, the workman gets full wages and if the approval application is granted, the workman does not get any wages from the date of dismissal and if any amount is granted by the Tribunal during the intervening period by way of subsistence allowance, the employer has no way to recover the said amount which the workman is not lawfully entitled to get. Shri Patel further questioned the jurisdiction of the Tribunal to grant such application during the pendency of the main approval application. According to him, the jurisdiction of the Tribunal under section 33 was limited to the extent of deciding the applications for permission to punish the workman and to seek approval of the action taken against as provided under the respective sub-section of section 33 of the I. D. Act.