AIR INDIA LIMITED Vs. LIBIO FRANCISCO COLACO

JUDGEMENT

(1.) THE question which arises for determination in these Appeals is whether a dismissed employee against whom an application is filed by the employer under Section 33 (2) (b) of the Industrial Disputes Act, 1947, hereinafter referred to as "the Act" seeking approval to the imposition of penalty of dismissal from service, is entitled to subsistence allowance pending the final disposal of the said application.

(2.) AS the question raised before us is a pure question of law, it is not necessary to state the facts of each case in detail. Suffice it to point out that in all the above mentioned cases, the services of the employees had been terminated by the employers whereafter applications have been filed under Section 33 (2) (b) of the Act. In these applications, prayers had been made for grant of subsistence allowance which had been allowed by the Tribunal relying upon the decision of KOCHAR, J. in Standard Chartered Grindlays Bank Ltd. v. Govind Phople 2002-III-LLJ-1036 (Bom ). The said decision of KOCHAR, J. is under challenge in Appeal No. 1191 of 2002.

(3.) IN the case of Standard Chartered Grindlays Bank Ltd. , the Appellant Bank had filed an application under Section 33-2 (b) (sic) of the Act seeking approval of the action of dismissal taken against the Respondent-employee. The Appellant-Bank had held domestic enquiry for alleged act of misconduct committed by the employee. After the domestic enquiry, the Appellant-Bank passed an order of dismissal. As a part of the said transaction, the Appellant-Bank filed the 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 employee filed his written statement to oppose the approval application and also filed an application for grant of subsistence allowance during the pendency of the said application. The Tribunal decided the said application in favour of the Respondent employee directing the Appellant-Bank to pay an amount per month at the rate of subsistence allowance payable during the pendency of the enquiry from the date of the application. The order of the Tribunal was confirmed by KOCHAR J. relying upon the decision of the Supreme Court in Fakirbhai Fulabhai Solanki v. Presiding Officer AIR 1986 SC 1168 : 1986 (3) SCC 131 : 1986-II-LLJ-124 and Ram Lakhan v. Presiding Officer, AIR 2000 SC 1946 : 2000 (10) SCC 201 : 2000-I-LLJ-1067. The learned Judge observed that the nature of the application under Section 33 (2) (b) is similar to the application under Section 33 (1) and 33 (3) and in both the cases jural relationship continued and it is not severed or snapped till the permission is granted or approval is accorded. The learned Judge was of the view that the Supreme Court has not confined the ratio of Fakirabhais case only to the applications under Section 33 (1) or 33 (3) seeking permission to take action of dismissal or discharge of the workman concerned. It equally applies to every application under Section 33 of the Act. The learned Judge pointed out that in Jaipur Zila Sahakari Bhumi Vikas Bank Ltd. v. Ram Gopal Sharma 2002-I-LLJ-834, the Supreme Court has held that till the approval application is granted by the Tribunal, the jurat relationship of master and servant continues. Therefore, according to the learned Judge, where the employee is ready and willing to work for the employer, but is prevented by the employer from doing the work, he is entitled to monthly wages. Further, according to the learned Judge the ratio of fakirbhai read with Jaipur Zila Sahakari Bhumi Vikas Bank Ltd. unequivocally declared that all such employees concerned under Section 33 of the Act shall be entitled to subsistence allowance.