KAMTA PRASAD Vs. P O LABOUR COURT GURGAON

JUDGEMENT

(1.) IN this Writ Petition under Articles 226/227 of the Constitution of India, the petitioners seek the issuance of a writ in the nature of Certiorari quashing the award dated 23.7.1999 passed by the Presiding Officer, Labour Court, Gurgaon (hereinafter referred to as "the Labour Court") holding that the petitioners are not entitled to any relief under Section 33 -C(2) of the Industrial Disputes Act and dismissing the application.

(2.) THE petitioners are both employed with M/s Amtek Auto Limited, Rozka Meo Industrial Area, Sohna, District Gurgaon (hereinafter referred to as "the Management"). Petitioner No. 1 joined the Management as a permanent workman on 23.11.1989. Petitioner No. 2 joined as permanent workman on 16.8.1990. On 9.10.1996, petitioner No. 1 was working as a Turner and drawing monthly wages of Ks. 3701. Petitioner No. 2 was working as an Operator and drawing monthly wages of Rs. 3153.00. Both the petitioners were suspended from service on 9.10.1996. On 10.10.1996, a charge -sheet was served on the petitioners indicating that a regular departmental enquiry would be conducted against them. The enquiry proceedings commenced on 12.3.1997. The suspension orders were served on the petitioners on 25.10.1996. Departmental enquiry, according to the respondent -Management, concluded in March 1999. The report was received by the Management on 9.11.2000. The Enquiry Officer has found the petitioners guilty of the charges. This report has not been served on the petitioners till today. Furthermore, no action has been taken on the enquiry report by the disciplinary authority. During the suspension period, the petitioners were entitled to be paid subsistence allowance at the rate of 50 per cent of the wages for the first three months, and at the rate of 75 per cent of the wages for the rest of the period of the suspension. The Management has not paid any amount to the petitioners. Consequently, petitioners were compelled to file an application in the Labour Court under Section 33 -C(2) of the Industrial Disputes Act for computing the amount due on account of subsistence allowance from October, 1996 to December, 1996. The Management filed the written statement before the Labour Court, denying its liability to pay any amount. The Management claimed that the petitioners had failed to mark their presence in the Security Office as required by the Certified Standing Orders and were, therefore, not entitled for any subsistence allowance. On 22.10.1997, the Labour Court framed the following two issues : -

(3.) BEFORE the Labour Court, it was argued that the petitioners could not be compelled to attend the office during the period of suspension. It was also argued that the subsistence allowance could not be withheld on the failure of the petitioners to mark the attendance. On the other hand, the Management had argued that it was obligatory for the petitioners to comply with the Certified Standing Orders. They had to report for half an hour on every working day at the Security gate at 10.00 a.m. Since the petitioners failed to report in terms of Clause 30(d) of the Certified Standing Orders, the petitioners are not entitled to be paid any subsistence allowance. After taking into consideration the aforesaid stand taken by the parties, the Labour Court had dismissed the application on the ground that under Section 33 -C(2) of the Industrial Disputes Act, the Labour Court cannot decide disputed rights of the parties. These can be decided only by way of reference under Section 10 of the Industrial Disputes Act. It has been held that an existing right is a right which is either recognised by the employer or is adjudicated upon by a competent court.