KAMTA PARSAD Vs. CERTIFYING OFFICER

JUDGEMENT

(1.) In this writ petition under Articles 226/227 of the Constitution of India, the petitioners seek issuance of writ in the nature of Mandamus directing the respondent No. 1 to pay the subsistence allowance to the petitioners from the date of suspension till the suspension comes to an end.

(2.) The petitioners were appointed by M/s Amtek Auto Limited, 16 Industrial Estate, Rozka Meo, So-hna, District Gurgaon (hereinafter referred to as "the Management") as permanent workman. Petitioner No. 1 was appointed on 23.11.1989. Petitioner No. 2 was appointed on 16.8.1990. They were placed under suspension w.e.f. 9.10.1996. The enquiry has been concluded some time in March, 1999, but no final action has been taken on the enquiry report till date. The petitioners are continuing under suspension ever since 9.10.1996. The petitioners had filed an application under Section 33-C(2) before the Labour Court claiming suspension allowance for the period October, 1996 to December, 1996. The Labour Court by its award dated 23.7.1999 has dismissed the application of the petitioners under Section 33-C(2). Against the aforesaid award, the petitioners filed CWP No. 14675 of 1999. This Writ Petition has been allowed by my separate order passed today. In the aforesaid writ petition, the petitioners had also filed a Civil Misc. application No. 872 of 2001. In that application, it was claimed that after passing of the award by the labour Court, the peti- tioners had filed application before the Certifying Officer-cum-Joint Labour Commissioner, Haryana for payment of subsistence allowance as provided under Section 10A of the Act. During the pendency of the application, representative of the management had agreed to make the payment of the subsistence allowance through Payee Account Cheque/Draft. In spite of the aforesaid agreement, the subsistence allowance had not been paid. It appears that no interim relief was granted in the CM No. 872 of 2001. Hence, the petitioners have filed the present writ petition.

(3.) According to the petitioners, the respondent-Management have denied the payment of the suspension allowance on the ground that the petitioners have not been marking their presence at the Security Gate for half an hour daily as required under Certified Standing Orders 30(d), 30(g) and proviso thereto. The petitioners' case is that they are entitled to payment of subsistence allowance under Section 10A of the Act. This Section does not impose any condition with regard to marking of attendance as provided under the aforesaid Certified Standing Order. The Certified Standing Orders, being inconsistent with Section 10A of the Act cannot be implemented. The petitioners also rely on the order passed by the Certifying Officer on 17.8.2000 in the applications filed by them, claiming subsistence allowance under Section 10A of the Act. The aforesaid order is as follows :-