VERDICTUM.

IN
2024:BHC-AS:282
WP.8562.15.doc

Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8562 OF 2015

M/s. Hindustan Level Employees Union .. Petitioner

Versus
M/s. Hindustan Unilever Limited .. Respondent

....................
 Ms. Jane Cox a/w. Mr. Jignesha Pandya i/by Mr. Bennet D’Costa,
Advocates for Petitioner.
 Ms. Supriya Mujumdar a/w. Melvyn Fernandes, Advocates i/by
Vaish Associates for Respondent.
............…...

CORAM : MILIND N. JADHAV, J.

RESERVED ON : DECEMBER 12, 2023.
PRONOUNCED ON : JANUARY 03, 2024.

JUDGMENT:

1. At the outset, Ms. Cox, learned Advocate appearing for the

Petitioner seeks amendment to the Writ Petition to the extent of

maintaining the challenge in the Writ Petition under the provisions of

Article 227 of the Constitution on India in addition to the challenge

under the provisions of Article 226. Proposed Draft Amendment is

taken on record and marked ‘X’ for identification. Petitioner is

permitted to amend the Writ Petition to the extent of the Draft

Amendment. Amendment shall be carried out in the body of the Writ

Petition within a period of one week from today. Re-verification stands

dispensed with.

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2. Petition raises an important point of law. Challenge in the

Writ Petition is to the Award dated 13.08.2014 rejecting the Reference.

Reference related to the Petitioner’s claim for seeking subsistence

allowance which was denied by the Respondent – Company on the

ground that the suspended employee did not attend the factory

premises to mark his attendance at the factory gate in the muster /

register provided for the purpose during his suspension. Award has

held that denial of subsistence allowance is not contrary to law and

justified, since the employee did not attend the factory everyday and

sign the muster / register provided therefor.

3. Cause of the employee is espoused by the recognized Union

in the Respondent – Company. According to Petitioner, it is not a

requirement under the law requiring and/or to call upon a suspended

employee to mark his physical attendance and sign the muster

everyday at the factory gate as a pre-requisite for being paid

subsistence allowance. In the present case, the employee has not

attended the factory each day and signed the muster due to which he

has been denied subsistence allowance. This is upheld by the Labour

Court.

4. Briefly stated, the facts necessary for the adjudication of the

present case are as under:-

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4.1. The employee in question is one Mr. Natubhai Mohanlal

Patel. Sometime in November 2002, Respondent – Company set up a

Union called ‘Hindustan Lever Limited Daman Karmachari Sangh’ (the

Petitioner herein). In and around February / March 2003, Respondent

– Company sponsored another Union called ‘Association of Chemical

Workers Union’. In the year 2003, the long term settlement in

existence with the Respondent – Company came to an end. At that

time, officers of the Respondent – Company were forcing workmen to

sign on membership forms of the ‘Association of Chemical Workers

Union’.

4.2. On 01.05.2003, the Petitioner – Union terminated the

settlement under the provisions of law and submitted a fresh charter of

demands. On 22.05.2003, Petitioner approached the office of the

Commissioner of Labour for intervention in Wage Dispute Revision.

Certain incident took place on 23.08.2003 when a police officer

threatened Mr. Natubhai Patel (concerned workman) and compelled

him to leave the factory premises so that the management of the

Respondent – Company could force the other workmen to sign the

settlement with the Respondent’s sponsored Union.

4.3. On 24.08.2003, Respondent – Company signed the

settlement with the sponsored Union.

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4.4. On 03.04.2004, an order of suspension was issue to Mr.

Natubhai Patel alongwith a charge-sheet. Charge-sheet was also issued

to five other employees who actively participated in formation of the

Petitioner – Union.

4.5. On 23.04.2004, Petitioner - Union raised a demand for

increase in wages against the Respondent – Company which was

referred to the Labour Court, Daman. In the meanwhile, on

21.05.2004, domestic enquiry commenced and was held outside the

factory at a far away location at Hotel Green View, Vapi, Gujarat.

4.6. On 15.09.2004, an application was filed by Petitioner –

Union seeking subsistence allowance to Mr. Natubhai Patel. On the

same date, Respondent – Company refused payment of subsistence

allowance and shifted the venue of enquiry to another location at Hotel

Regent Palace near Bhimpore village.

4.7. On 24.09.2004, Petitioner – Union represented to the

Respondent – Company that Mr. Natubhai Patel was not employed nor

earning any wages to sustain his livelihood during the enquiry

proceedings. Between May 2004 and January 2007, the enquiry was

abandoned / adjourned according to the Petitioner and resumed only

in February, 2007. Demand was raised by the Petitioner - Union for

subsistence allowance to be paid which the Respondent – Company

refused. Between October 2007 and March 2008 conciliation

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proceedings were held resulting in a failure.

4.8. On 11.06.2008, order of Reference was made as under:-

“WHEREAS, the U.T. Administration of Daman & Diu is of the

opinion that an Industrial Dispute exits between the
Management of M/s.Hindustan Unilever Limited, Daman
Detergents Factory, Survey No.34, Silver Industrial Estate,
Village Bhimpore, Daman and its employee Shri Natubhai
Mohanlal Patel in respect of the matter specified in the
Schedule annexed hereto (herein after referred to as the ‘said
dispute’).”

4.9. On 28.11.2008, services of Mr. Natubhai Patel were

terminated. The dispute that is referred for adjudication before the

Reference Court in I.D.R. No.7 of 2008 pertains to the issue of

subsistence allowance. The Reference Court framed the following

issues and answered them after adjudication:-

Sr. Points Finding

No.
1. Whether the Reference is vague and …..In the Negative.
incapable of being adjudication by this
court?
2. Whether the First Party Company …..In the Affirmative.
proves that condition put by them for
making attendance everyday for
entitlement of subsistence allowance is
just, fair, bonafide and legal or not?
And whether the company is entitled to
put such condition against the second
party workman and whether such
condition is in consonance with the
Section 10(A) of the IESO Act.?
3. Whether the Second Party workmen is …..In the Negative.
entitled for 12% interest on the
subsistence allowances and other
allowances or not?
4. Whether the demand dated …..In the Negative.
21/12/2006 is required to be accepted
or not?

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5. Is the claimant entitled to relief …..In the Negative.

sought?
6. What order and award? …..As per final order.

4.10. Issue Nos.1, 3, 4 and 5 were answered in the negative

whereas issue No.2 was answered in the affirmative.

4.11. Hence, the present Writ Petition.

5. Ms. Cox, learned Advocate appearing for the Petitioner -

Union would submit that the relevant statute does not lay down any

condition / pre-condition for marking of physical attendance at the

gate of the factory during the period of suspension. She would submit

that the decision of the Labour Court holding that marking of physical

attendance at the factory gate is in consonance with the provisions of

Section 10(A) of the Industrial Employment (Standing Orders) Act,

1946 (for short the “the said Act”) is contrary to the decision and

judgment of the Supreme Court reported in 2002 (3) CLR 291. She

would submit that the concerned workmen has specifically filed

pleadings to convey that he was unemployed during the period of

suspension before the Enquiry Officer, before the Conciliation Officer,

before the Labour Court and during his evidence. She would submit

that the concerned workman was not directed nor called upon to file

any affidavit to state that he was not gainfully employed during the

period of suspension before the Labour Court.

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5.1. In addition to the aforesaid aforesaid submissions, she has

made the following submissions:-

(i) She would submit that in the absence of any applicable service

Rules or Regulations there can be no external / onerous condition

which can be imposed to record physical attendance everyday at

the factory gate for being eligible to be paid subsistence allowance

as held by the Supreme Court in the case of Anwarun Nisha

Khatoon Vs. State of Bihar and Ors.1. She would submit that the

only requirement found under clause 14(4)(e) of the Central

Rules, 1946 is that the workman should not take up any

employment during the period of suspension. She would submit

that there is no requirement in this regard for any certificate to be

furnished and even in matters where there is such a rule for

furnishing of a certificate, the Supreme Court has held that the

same must be actually called for by the employer. She has drawn

my attention to paragraph Nos.6 to 12 of the above decision

which read thus:-

“6. The Registrar, Co-operative Society by Memo No. 7252

dated 30th October, 1999 rejected the claim for subsistence
allowance. The appellant then filed C.W.J.C. No. 9095 of 2000
challenging the order of the Registrar. The High Court by an
order dated 26th April, 2001 dismissed the writ petition. The
appellant then filed a Letters Patent Appeal. This was dismissed
by the impugned Order dated 27th July, 2001 on the ground
that the appellant's husband was absent for 23 years and he was
present for only one day. In our view, for reasons set out
hereafter, the decision of the High Court cannot be sustained.

1 AIR 2002 SC 2959

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The relevant portion of Rule 96 of the Bihar Service Code reads

as follows:
“96. (1) A Government servant under suspension shall be
entitled to the following payments, namely:
(a) Subsistence grant at an amount equal to the leave
which the Government servant would have drawn, if he
had been on leave, on half average pay, or on half pay
and in addition cost of living allowance based on such
leave salary:
xxxx xxxx xxxx”
Thus, under this Rule subsistence allowance has to be
paid for the period a Government servant is under
suspension.

7. Mr. B.B. Singh relied upon Rule 96(2) which says that no
payment under sub-rule (1) shall be paid unless the
Government servant furnishes a certificate that he is not
engaged in any other employment, business, profession or
vocation. Mr. B.B. Singh submits that such a certificate was
never submitted. He submits that for this reason the appellant's
husband was not entitled to subsistence allowance. Mr. B.B.
Singh also submits that the appellant's husband only reported at
the headquarter assigned to him on 3 rd June, 1968 and did not
report at the headquarter on any other day during the period 4 th
August, 1967 to 25th July, 1990. Mr. B.B. Singh submitted that
as he was not reporting at the headquarter, he was not entitled
to subsistence allowance.
8. Mr. B.B. Singh relied upon the authority of the Patna High
Court in the case of Ganesh Ram v. State of Bihar [(1995) 2
PLJR 690] wherein, after considering the abovementioned
Rules, it has been held that after suspension it is not necessary
that the employee must attend work. It is held that a suspended
employee cannot be compelled to mark attendance. It has been
held that the authority is, however, entitled to ensure itself
about the presence of the suspended employee at the
headquarter before making payment of subsistence allowance.
It is held that in the event of a dispute, it will be for the
employee to establish his presence at the headquarter.
9. In our view, this authority, far from assisting the
respondents, is against them. This authority shows that there is
no requirement to mark attendance. To us also no rule could be
shown which required a suspended employee to mark
attendance. The respondents can at the most ask for a
certificate that the appellant's husband was not engaged in any
other employment, business, profession or vocation. The
appellant's husband having died, he could not have furnished
such a certificate. At no stage have the respondents asked the
appellant to give such a certificate. Thus the grant of
subsistence allowance cannot be denied on the ground that such
a certificate is not given.

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10. This view of ours is supported by an authority of this

Court in the case of Jagdamba Prasad Shukla v. State of U.P.
[(2000) 7 SCC 90]. In this case, on identical facts, it has been
held that if the State requires a certificate they should ask for it.
It has been held that without asking for such a certificate the
State cannot reject a claim for subsistence allowance.
11. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines
Ltd. reported in (1999) 3 SCC 679 this Court has held that a
suspended employee is entitled to subsistence allowance as a
relationship of employer-employee subsists.
12. For the above reasons, we hold that the appellant is
entitled to receive subsistence allowance, which should have
been paid to her husband. As the only ground for not paying the
subsistence allowance is that a certificate required by Rule
96(2) has not been furnished, we direct the appellant to file an
affidavit stating therein that her husband was not engaged in
any other employment, business, profession or vocation. The
subsistence allowance as per Rule 96 shall be released to the
appellant within 4 weeks of receipt of such an affidavit.”

(ii) She would refer to and rely upon the decision of the Punjab and

Haryana High Court in the case of Kamta Prasad and Anr. Vs.

Presiding Officer, Labour Court, Gurgaon and Anr.2 wherein it is

held that in the face of the provision of Section 10(A) of the said

Act even though if a condition is laid down in the Standing Order

with regard to marking of attendance, it cannot be relied upon by

the Management to deny benefit of subsistence allowance to the

workman. It is held that a statutory benefit granted to the

workman under the said Act cannot be permitted to be curtailed

by the Model Standing Order or the Certified Standing Order as

the Standing Orders have to be in conformity with the provisions

of the statute. In that case, Standing Orders 30(d) and 30(g)

stipulated that it was obligatory for the workman to comply with

2 2003 (3) L.L.N. 430

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the condition to report for half an hour on every working day at

the security gate at 10:00 a.m. and since the workman failed to

report in terms of the Certified Standing Orders he was not

entitled to be paid any subsistence allowance. The learned Single

Judge after setting out the facts and the law held that his decision

was fortified by a Division Bench judgment of our Court in the

case of May and Baker Ltd. Vs. Kishore Jaikishandas Icchaporia

and Anr.3 which held that the provisions of Section 10(A) would

prevail over the Standing Orders 30(d) and 30(g). The relevant

paragraph Nos.2, 4, 10, 11 to 14 and 18 are reproduced

hereunder and read thus:-

2. The petitioners are both employed with M/s Amtek Auto,

Ltd., Rozka Meo Industrial Area, Sohana, District Gurgaon
(hereinafter referred to as the management). Petitioner No. 1
joined the management as a permanent workman on 23
November 1989. Petitioner No. 2 joined as permanent workman
on 16 August 1990. On 9 October 1996, petitioner No. 1 was
working as a Turner and drawing monthly wages of Rs. 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 October 1996. On 10 October
1996, a chargesheet was served on the petitioners indicating
that a regular departmental enquiry would be conducted
against them. The enquiry proceedings commenced on 12
March 1997. The suspension orders were served on the
petitioners on 25 October 1996. Departmental enquiry,
according to the respondent-Management, concluded in March
1999. The report was received by the management on 9
November 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

3 1991 (2) L.L.N. 879

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management has not paid any amount to the petitioners.

Consequently, petitioners were compelled to file an application
in the Labour Court under S. 33C(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 October 1997, the Labour Court framed the following
two issues:
“(1) Whether the applicant is entitled to the benefits/
money as mentioned in the application?
(2) Relief.”
……….
4. It is stated by MW1 on behalf of the petitioners that they
used to go to the factory, but they were not allowed to mark
their attendance. The management had asked them to resign
and they had been told that their attendance would not be
marked. MW1 Ranbir Singh stated that the applicants had
refused to accept the suspension order and the chargesheets.
These were later given to them before the Labour-cum-
Conciliation Officer, Gurgaon. He also stated that two other
employees who were also placed under suspension, namely,
A.K. Mittal and R.K. Sharma had been regularly coming to the
factory for marking their attendance in accordance with the
Certified Standing Orders. These workers had been paid the
subsistence allowance.
……...
10. That being the position of law, the Labour Court ought to
have decided the question as to whether the applicants would
have been denied the subsistence allowance on the ground that
they have failed to mark their presence at the security gate. This
was not such a dispute which needed any complicated
adjudication. The Labour Court had to decide as to whether S.
10A of the Act would prevail over the provisions of the Certified
Standing Orders. A perusal of the Act shows that the Certified
Standing Orders have to be made in conformity with the Model
Standing Orders which have been set out in terms of S. 15(2)
(b). The Standing Orders made by the employer have to be
clarified under S. 4 of the Act. While certifying the Standing
Orders, the certifying authority has to satisfy itself that the
Standing Orders contain provisions for every matter set out in
the schedule which is applicable to the industrial
establishments. The Standing Orders have to be in conformity
with the provisions of the Act. It is the mandatory function of
the Certifying Officer or the appellate authority to adjudicate
upon the fairness or reasonableness of the provisions of the

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Standing Orders. Upon certification, the Standing Orders bind

the management and the workman. Nevertheless the Model
Standing Order or the Certified Standing Orders remain law
made under the Act. In the present case, the claim of the
petitioners is disputed by the respondent-management on the
ground that the petitioners have failed to comply with the
proviso to Standing Orders 30(d) and (g). The provisions with
regard to the grant of subsistence allowance during the period
of suspension is made in S. 10A of the Act. For facility of
reference S. 10A of the Act and Standing Orders 30(d) and (g)
are reproduced as under:-
“10A. Payment of subsistence allowance.— (1)
Where any workman is suspended by the employer
pending investigation or enquiry into complaints or
charges of misconduct against him, the employer
shall pay to such workman subsistence allowance—
(a) at the rate of fifty per cent of the
wages which the workman was entitled to
immediately preceding the date of such
suspension, for the first ninety days of
suspension; and
(b) at the rate of seventy five per cent of
such wages for the remaining period of
suspension if the delay in the completion
of disciplinary proceedings against such
workman is not directly attributable to the
conduct of such workman.
(2) If any dispute arises regarding the subsistence
allowance payable to a workman under Sub-sec (1),
the workman or the employer concerned may refer
the dispute to the Labour Court, constituted under
the Industrial Disputes Act, 1947, within the local
limits of whose jurisdiction the industrial
establishment wherein such workman is employed is
situate and the Labour Court to which the dispute is
so referred shall, after giving the parties an
opportunity of being heard, decide the dispute and
such decision shall be final and binding on the
parties.
(3) Notwithstanding anything contained in the
foregoing provisions of this section where provisions
relating to payment of subsistence allowance under
any other law for the time-being in force in any State
are more beneficial than the provisions of this section,
the provisions of such other law shall be applicable to
the payment of subsistence allowance in that State.
30 (d). A workman under suspension shall report for
half an hour on every working day at the security gate
at 10.00 A.M. to receive any communication which

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may be tendered to him on behalf of the Manager,

and get his attendance marked.
30(g) A workman under suspension will be paid
subsistence allowance at the rate of half his average
pay calculated in accordance with the provisions of
S. 2(aaa) of the Industrial Disputes Act, 1947.
Provided that for the days the suspended workman
fails to report in terms of Sub-cl. (d), or leaves the
station without leave or is allowed leave without
subsistence allowance in terms of Sub-cl. (g), he shall
not be paid any subsistence allowance at all for those
days. Provided further that if the enquiry proceedings
go beyond a period of 90 days for which the
suspended workman has been paid subsistence
allowance, at the rate of 50 per cent of the average
pay, he shall thereafter be paid subsistence allowance
at the rate of ¾th of his average pay calculated in the
like manner”.
11. A perusal of S. 10A of the Act clearly shows that on
suspension, the workman is entitled to subsistence allowance at
the rate of 50 per cent of the wages which the workman was
entitled to immediately preceding the date of suspension for the
first 90 days of suspension. Thereafter, the workman is entitled
to subsistence allowance at the rate of 75 per cent of such
wages for the remaining period of suspension. The increased 75
per cent of the suspension allowance has to be paid to the
workman, if the delay in completion of disciplinary proceedings
is not directly attributable to the conduct of the workman.
Nothing has been brought on record in the present proceedings
to establish that the petitioners have in any manner been
responsible for delay in the completion of disciplinary
proceedings. Under the Act, there is no other condition which is
to be satisfied by the workman for receipt of the suspension
allowance. This right is, however, sought to be cut down under
Standing Orders 30(d) and 30(g) and the proviso thereto. In my
considered opinion, in the face of S. 10A of the Act, the
condition laid down in aforesaid Standing Order 30(d) with
regard to the attendance cannot be relied upon by the
management for denying the benefit of subsistence allowance to
the petitioners. A benefit granted to the workman under the Act
cannot be permitted to be curtailed by the Model Standing
Orders or the Certified Standing Orders. A similar view has been
taken by a Division Bench of the Patna High Court in the case of
Secretary, Bihar State Electricity Supply Workers, Union v.
Presiding Officer, Industrial Tribunal, [1995 L. & I.C. 2752], has
observed as under:
“20. Section 10A of the Act has been newly inserted
by Act 18 of 1982. From reading of the provision as a
whole, it appears that this provision takes care of the
employees who are put under suspension. The rate at

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which subsistence allowance is to be paid has also

been prescribed under this section itself. In such
circumstances, in my opinion, the amendment of
Cl. 30(d) cannot sustain and as such this should be
deleted from the Standing Order”.
12. A bare perusal of Standing Orders 30(d), 30(g) and the
proviso shows that they are not in conformity with S. 10A of the
Act. Therefore, the provisions of S. 10A would prevail over the
Standing Orders 30(d) and 30(g) and the proviso. In this view
of mine, I am fortified by a Division Bench judgment of the
Bombay High Court in the case of May and Baker, Ltd. v.
Kishore Jaikishandas Icchaporia, [1991 (2) L.L.N. 879]. In this
case, the Division Bench was dealing with the situation where a
suspended employee had been paid the subsistence allowance
in accordance with the Certified Standing Orders. There was no
dispute that the Certified Standing Orders are in conformity
with S. 10A of the Act. The employee, however, in his
application under S. 13A before the Labour Court had claimed
subsistence allowance under the provisions of the Model
Standing Orders. This plea was raised on the basis of Sub-sec.
(3) of S. 10A. It was argued that the provision with regard to
subsistence allowance was more beneficial under the Model
Standing Orders than the provision under S. 10A. Model
Standing Orders being “other law” as specified in Sub-sec. (3) of
S. 10A of the Act, the suspended employee therein ought to be
paid subsistence allowance under the Model Standing Orders.
After considering the submissions made, the Division Bench
held that the Model Standing Orders are applicable only until
such times as amendment thereto has been propose and
certified. Once the amendment has been certified, the Certified
Standing Orders operate. Thereafter, the Division Bench
observed as follows, in Para. 9, at pages 882 and 883:
“There is no dispute that the payment that was made
by the appellant to the first respondent was in accord
not only with the provisions of the Certified Standing
Orders applicable to their industrial establishment
but also with those of S. 10A. It was urged by Smt.
D'Souza learned counsel for the first respondent, that
the first respondent was entitled to subsistence
allowance as provided by the Model Standing Orders
by reasons of Sub-sec. (3) of S. 10A because the
Model Standing Order were “other law” within the
meaning of Sub-sec. (3). We find the argument
difficult to accept. The Model Standing Order, as also
Certified Standing Orders, are law no doubt, but they
are law made under the provisions of the Act. They
are not provisions “under any other law”. In our
view, therefore, the provisions of S. 10A supervene in
relation to the payment of subsistence of the Model
Standing Orders”.
13. A perusal of the aforesaid ratio clearly shows that Model

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Standing Orders as also the Certified Standing Orders, are law

made under the provisions of the Act. Therefore, the provisions
of S. 10A supervene in relation to the payment of subsistence
allowance over the provisions of the Model Standing
Orders/Certified Standing Orders. The aforesaid decision has
been followed by the Single Judge (F.I. Rebello, J.) in the case
of S.M. Puthran v. Rallies India, Ltd., [1998 II C.L.R. 270]. After
referring to the aforesaid ratio of the Division Bench, the Single
Judge observed as follows:—
“…… It is inconceivable that the Legislature knowing
that they have framed Model Standing Orders and/or
have made provisions for Certified Standing Orders
would yet provide for S. 10A and make the provisions
of the Certified Standing Orders or Model Standing
Orders under the Act override the provisions of S.
10A itself. Even in the judgments of Bank of India,
Ltd. the Division Bench therein has followed the
judgment of the learned Single Judge mentioned in
the said judgment which took the view that when the
Standing Orders are in conflict with S. 10A, then S.
10A must prevail over the Standing Orders. The same
has been reiterated by the Division Bench of the
Court in May and Baker, Ltd., [1991 (2) L.L.N. 879]
(vide supra)”.
14. That being so, the petitioners would be entitled to receive
the subsistence allowance as calculated in terms of S. 10A. They
cannot be compelled to mark their presence as required under
Standing Order 30(d) and the proviso thereto.
…….
18. Keeping the aforesaid ratio of the Division Bench in view, I
am of the considered opinion that the Labour Court committed
an error of jurisdiction in not deciding the claim of the
applicants on merits. The Labour Court ought to have
adjudicated upon the claim on the ground that question of
applicability of Standing Orders 30(d)(g) and the proviso
thereto is incidental to the claim of the applicants under S. 10A
of the Act. In view of the above, the writ petition is allowed.
The impugned order passed by the Labour Court, dated 23 July
1999, is hereby quashed. The matter is remanded to the Labour
Court with a direction to compute the subsistence allowance
payable to the petitioners for the period October 1996 to
December, 1996 in terms of S. 10A of the Act by ignoring the
requirement of attendance stipulated in proviso to Certified
Standing Orders 30(d) and 30(g). No costs. The Labour Court is
directed to pass the necessary orders within a period of four
weeks of the receipt of a copy of this order.”

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(iii) She has next decision relied upon the decision in the case of

Manoj Kumar Panda Vs. Orrissa Air Products Ltd.4 wherein the the

Division Bench of the Orissa High Court in a similarly placed case

held that as per the provisions of Section 10(A) of the said Act

read with clause 14(4)(b) and (e) of the Central Rules, 1946

there is no provision or requirement for marking of attendance at

the factory gate during the period of suspension. Paragraph Nos.8

to 10 of this decision are relevant in this regard and reproduced

below:-

“8. Despite repeated query from this Court, Learned Counsel

for the Company failed to show that there is any requirement
under any Rules that a suspended workman has to report for
duty everyday or to the sign the attendance register and to
receive direction and communication from the Company during
the period of suspension. In the absence of any such Rule, it is
difficult for this Court to sustain the stipulation to that effect in
the suspension order. Learned Counsel also referred to Section
10A of the Industrial Employment (Standing Order) Act, 1946
(hereinafter called the ‘said Act’). Section 10A of the Act reads
as follows:—

“10A. Payment of subsistence allowance.

(1) Where any workmen is suspended by the

employer pending investigation or inquiry into
complaints or charge of misconduct against him, the
employer shall pay to such workman subsistence
allowance:—

(a) at the rate of fifty per cent of the wages which

the workman was entitled to immediately preceding
the date of such suspension, for the first ninety days
of suspension; and

(b) at the rate of seventy-five per cent of the such

wages for the remaining period of suspension if the
delay in the completion of disciplinary proceedings
against such workman is not directly attributable to

4 2008 II LLJ 800 (Ori)

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the conduct of such workman.

(2) If any dispute arises regarding the subsistence

allowance payable to a workman under sub-Section
(1) the workman or the employer concerned may
refer the dispute to the Labour Court, constituted
under the Industrial Disputes Act, 1947 (14 of
1947), within the local limits of whose jurisdiction
the industrial establishment wherein such workman
is employed is situate and the Labour Court to which
the dispute is so referred shall, after giving the
parties an opportunity of being heard, decide the
dispute and such decision shall be final and binding
on the parties.

(3) Notwithstanding anything contained in the

foregoing provisions of this Section where provisions
relating to the payment of subsistence allowance
under any other law for the time being in force in
any state are more beneficial than the provisions of
this Sections, the provisions of such other law shall
be applicable to the payment of subsistence
allowance in the state,”

9. The rate of payment of subsistence allowance is made clear

in the said statutory provisions. Here, admittedly, the Appellant
has not been paid anything by way of subsistence allowance.

10. The relevant Rule under the Industrial Employment

(Standing Order) Rules on which reliance was placed by the
Learned Counsel for the Company is Rule 14(e). The said Rule
is as follows:

“14(e). The payment of subsistence allowance under

this Standing Order shall be subject to the workman
concerned not taking up any employment during the
period of suspension”.”

(iv) She has next relied upon the decision in the case of Jagdamba

Prasad Shukla Vs. State of U.P. and Ors.5 wherein the Supreme

Court has held that payment of subsistence allowance in

accordance with the rules in a case of suspension is not a bounty

but a right and the employee is entitled to be paid the subsistence

5 (2000) 7 SCC 90

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allowance. Paragraph Nos.7 and 8 of the decision are relevant

and reproduced herein under:-

“7. Reverting now to the other reason which prevailed with

the High Court, namely, the appellant having not furnished a
certificate stating that he is not engaged in any other
employment, business, profession or vocation and having thus
not complied with Rule 53(2) of the Financial Hand Book, it
may be noticed that at no stage, the appellant was told that he
had to furnish such a certificate, and that he could not be paid
subsistence allowance without it. It was not the case of the
respondents that in response to the appellant's request for
payment of subsistence allowance, he was asked to furnish such
a certificate and since he did not furnish it, the amount of
subsistence allowance was not paid to him. Therefore, the
second reason for rejecting the appellant's contention for non-
payment of subsistence allowance also does not deserve to be
sustained.

8. The payment of subsistence allowance, in accordance with

the Rules, to an employee under suspension is not a bounty. It
is a right. An employee is entitled to be paid the subsistence
allowance. No justifiable ground has been made out for non-
payment of the subsistence allowance all through the period of
suspension i.e. from suspension till removal. One of the reasons
for not appearing in enquiry as intimated to the authorities was
the financial crunch on account of non-payment of subsistence
allowance and the other was the illness of the appellant. The
appellant in reply to show cause notice stated that even if he
was to appear in enquiry against medical advice, he was unable
to appear for want of funds on account of non-payment of
subsistence allowance. It is a clear case of breach of principles
of natural justice on account of the denial of reasonable
opportunity to the appellant to defend himself in the
departmental enquiry. Thus, the departmental enquiry and the
consequent order of removal from service are quashed.”

5.2. On the basis of the aforesaid submissions and case citations,

she would submit that the impugned Award deserves to be quashed

and set aside.

6. PER-CONTRA, Ms. Mujumdar, learned Advocate appearing

for the Respondent – Company would strongly oppose the submissions

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of the Petitioner - Union and would contend that in the suspension

notice dated 03.04.2004, the concerned employee, Mr. Natubhai Patel

was directed to report at the factory gate everyday at 11:00 a.m. and

mark his attendance in the register provided for that purpose and it

was stipulated that in case he failed to mark his attendance he would

be treated as absent for the day and no subsistence allowance would

be payable to him for that day. She would submit that in this

background the dispute raised by the Petitioner – Union in demand

No.4 regarding payment of subsistence allowance to Mr. Natubhai

Patel was agitated by the Petitioner - Union before the Conciliation

Officer and this is the only grievance which was agitated. She would

submit that during the conciliation, Mr. Natubhai Patel did not contest

that he had chosen to not mark his attendance everyday as directed in

his suspension order for being entitled to subsistence allowance.

However, the conciliation failed and dispute IDR No.7 of 2008 was

referred to the Labour Court on the above issue. She has drawn my

attention to the issues framed by the Labour Court and would submit

that in so far as issue No.2 is concerned, the Labour Court has returned

a finding in paragraph No.20 of the Award that as per provisions of

clause 4(e) of Schedule - I of the Model Standing Orders (Central), the

workman has to satisfy that he was not in employment during the

suspension period to claim subsistence allowance. Taking this further,

she would submit that as a natural corollary, the condition of marking

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attendance in the suspension order is therefore just, fair, bonafide and

legal as held by the Labour Court. She would submit that the Labour

Court has held that it can be therefore said to be in consonance with

the provisions of Section 10(A) of the said Act. She would submit that

the Labour Court held that non-payment of subsistence allowance in

this case is not against any provision of law since it found that the

condition of marking attendance at the factory gate stipulated by the

Respondent - Company is not unfair and against the law.

6.1. She would submit that Respondent – Company is permitted

under the statute to stipulate a just, fair and bonafide condition in

consonance with the prevailing law for entitlement of subsistence

allowance.

6.2. In support of her above submissions, she would submit that

the Model Standing Orders provide that payment of subsistence

allowance is on the condition that the workman concerned is not

gainfully employed elsewhere and there is no further provision with

respect to the manner in which an organization must satisfy that the

workman was not gainfully employed elsewhere during the period of

suspension.

6.3. She would submit that unless there is a specific restrictive

provision barring the employer from stipulating such conditions, the

employer would be entitled to impose such stipulations to give effect to

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the Model Standing Orders by ensuring that the stipulation is fair,

reasonable and bonafide. She would therefore submit that there is no

illegality in the stipulation requiring the suspended workman to mark

attendance at the gate everyday to prove that he is not gainfully

employed elsewhere during his suspension.

6.4. Next, she has relied upon the decision of the Patna High

Court in the case of Ganesh Ram and Ors. Vs. The State of Bihar and

Ors.6 wherein while deciding whether a suspended employee could be

asked to mark his attendance every day at the head-quarters fixed for

him, it was held that a suspended employee was entitled to subsistence

allowance only upon production of a certificate to the effect that he

was not gainfully employed at any other place. The Patna High Court

further held that although the rules referred therein did not provide for

marking of attendance by a suspended employee, there was however,

nothing in the rules prohibiting the concerned authority from requiring

the suspended employee to mark his presence everyday and further

that the suspended employee was required to be present at the head

quarters and if he was absent from the head quarters, he may not be

entitled to subsistence allowance during the period when he was

absent. The Patna High Court further held that the requirement to

mark the attendance everyday was to ensure that the suspended

employee is present at the head quarters and mere marking of

6 1995-I L.L.N. 1074

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attendance is different than requiring a suspended employee to work

during the period of suspension. She would thus submit that unless

there is a restrictive clause contained in the law, the employer may

require the employee / workman to mark his attendance every day for

the purpose of ensuring that he was not gainfully employed during his

suspension period.

6.5. Next, she would submit that the stipulation is

reasonable and within legal bounds and the same is evident from the

fact that various legislations have recognized such conditions by

incorporating the same in the Rules / Regulations for eg. Rule 33(4) of

the Maharashtra Employees of Private Schools (Conditions of Service)

Rules, 1981 ("MEPS Rules") which provides that an employee under

suspension shall not leave the head-quarters during the period of

suspension without the prior approval of the CEO or the President, as

the case may be, and if the employee fails to abide by the aforesaid

condition, he would not be entitled to claim the subsistence allowance.

Similarly, Uttar Pradesh State Textile Corporation Conduct, Control

and Disciplinary Rules, 1992 ("Disciplinary Rules") provide that

subsistence allowance would be payable only when the employee, if

required, presents himself every day at the place of work or such other

place as mentioned in the order. Further, the employee, under

suspension would have to furnish a certificate that he is not engaged in

other employment, business, profession or vocation for entitlement of

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subsistence allowance. In support thereof, she has relied on the

decision of the Supreme Court in the case of U.P. State Textile Corp.

Ltd. v. P.C. Chaturvedi, (2005) 8 SCC 211, wherein in paragraph

No.16 of the judgment, inter alia, the Supreme Court observed that

Rule 41 of the Disciplinary Rules, 1992 provides that the subsistence

allowance is payable only when the employee if required presents

himself everyday at the place of work and for establishing that the

employee had presented himself at the place of work, the authorities

had clearly stipulated a condition that the attendance register was to

be signed. No explanation was given by the employee in that case as to

why he did not sign the register. The Supreme Court therefore, held

that such a condition cannot be lightly brushed aside as technical and /

or inconsequential. As the employee had not signed the attendance

register even though specifically required in the order of suspension,

the Supreme Court held that the High Court was not justified in

coming to a conclusion that the non-signing was not a consequential or

a bonafide lapse.

6.6. She would next submit that the above judgment of the

Supreme Court was relied upon by this Court (Aurangabad Bench) in

the matter of Ashok s/o. Sahaji Gulbhile Vs. The Secretary, Gramvikas

Shikshan Prasarak Mandal & Ors., in respect of similar rules contained

in the MEPS Rules, to observe that in the absence of specific instruction

or prior intimation to the workman that he would not be entitled for

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subsistence allowance if he did not mark his daily attendance, the

employer was not justified in denying the subsistence allowance. She

would submit that this Court further noted that requirement of

attendance was contained in the Disciplinary Rules itself, however, it

has noted that the employer would not be entitled to deny subsistence

allowance if neither the Rules nor the suspension order provide for a

condition of marking attendance. Hence she would submit that in the

instant case, the condition to mark the attendance in the register was

clearly stated by the Respondent – Company in the suspension notice

itself and Mr. Natubhai Patel was also cognizant about the pre-

condition and has also duly admitted the same during the proceedings.

6.7. In light of the above judgments Ms. Mujumdar would submit

that it is amply clear that the condition stipulated in the suspension

notice requiring Mr. Natubhai Patel to mark his attendance everyday at

the factory gate for entitlement to subsistence allowance is fair,

reasonable and bonafide and in furtherance to serve the purpose /

intent of the law i.e., to ensure that the concerned workman should

not be gainfully employed during the suspension period.

6.8. The next submission is that Mr. Natubhai Patel by his own

conduct is deemed to have accepted the condition stipulated in the

suspension notice and therefore in the absence of challenge to the said

notice is now estopped from raising any grievance with respect to the

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same. In this regard, she would submit that no reasons are set out by

the Petitioner – Union for not marking the attendance and on the

contrary, Mr. Natubhai Patel accepted the condition and marked

attendance from April 2004 till April 2005 and received payment of

subsistence allowance in lieu thereof. She would submit that Mr.

Natubhai Patel raised grievance in respect of non-payment only before

the Enquiry Officer for the first time on the ground that the condition

stipulated in the suspension notice was unlawful, however, when the

matter was placed during reference before Conciliation Officer as well

as the Labour Court, there was no challenge to the suspension notice in

respect of the condition but only demand regarding payment of wages,

as set out above. She would therefore submit that Mr. Natubhai Patel

by his conduct was deemed to have accepted the condition when he

abided by it on his volition and also did not challenge the suspension

notice.

6.9. She would therefore submit that the condition stipulated in

the suspension notice is unchallenged and since the same is accepted

and partly abided by Mr. Natubhai Patel, the plea of illegality of the

suspension notice is misconceived, malafide and an after-thought. She

would submit that thus the concerned employee is deemed to have

waived his right to challenge the legality of the suspension notice and

is estopped from making any grievance in respect of the same after

marking his attendance and receiving payments for certain periods.

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Therefore she would submit that, it does not lie in the mouth of the

Petitioner to contend that non-payment of subsistence allowance for

the period when no attendance was marked is in violation of his

fundamental rights.

6.10. The next submission that is advanced is that the onus of

proving that the workman Mr. Natubhai Patel was not gainfully

employed in any other employment during his suspension period is on

the Petitioner - Union or the workman irrespective of whether any

condition is stipulated or otherwise. She would submit that this

obligation is not discharged by the Petitioner/ workman; that assuming

without admitting that the concerned employee was not legally

entitled to stipulate any condition for payment of subsistence

allowance, the employee would still be under an obligation to prove

that he was not gainfully employed during his suspension period for

entitlement of subsistence allowance, especially, in the present case,

where, for a period of 1 year Mr. Natubhai Patel has marked his

attendance and has also participated in the enquiry proceeding; that

Mr. Natubhai Patel has failed to prove how he managed his subsistence

when he was not paid any subsistence allowance.

6.11. She would submit that the Petitioner has neither pleaded in

the statement of claim that he was not gainfully employed during his

suspension, nor has he produced any document before the Respondent

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- Company, the Enquiry officer or the Labour Court regarding his non-

employment during the period of suspension.

6.12. She has next drawn my attention to the statement of claim of

Mr. Natubhai Patel which is at Exhibit – H Page No. 33 onward in the

Writ Petition and would submit that bare perusal of the statement of

claim of the employee would show that the employee has made no

averment regarding the fact of him not being gainfully employed

during his suspension; that the only fact that is highlighted is that the

Petitioner was opposed to the idea of marking attendance everyday at

the gate under the pretext that the said condition was illegal. She

would next submit that the same is so deposed in his affidavit of

evidence.

6.13. She would submit that, no such demand regarding

withdrawal or setting aside of this condition for subsistence allowance

was raised by the Petitioner / employee. She submits that it was for the

first time in the affidavit of evidence that Mr. Natubhai Patel deposed

that he had declared before the Enquiry Officer and the Respondent -

Company that he was not gainfully employed during the period of

suspension and further Mr. Natubhai Patel also went ahead to depose

that an affidavit regarding the same was filed before the Conciliation

Officer, however, the proof of such declaration / affidavit was neither

produced with the statement of claim nor with the affidavit of

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evidence.

6.14. She has next drawn my attention to the cross-examination of

Mr. Natubhai Patel and has submitted that it is clear that despite being

aware that he was required to mark attendance at the gate of the

Respondent - Company everyday for entitlement to subsistence

allowance, as per the prevalent practice of the Respondent - Company,

he chose not to mark the attendance. She would submit that, this

reflects the defiance of the concerned employee to adhere to conditions

which are not harsh but reasonable. She would further submit that Mr.

Natubhai Patel also failed to show that he was not gainfully employed

during the period of suspension and therefore, the Respondent -

Company is justified in not paying him the subsistence allowance. She

would submit that it is an admitted position that the other workmen

suspended with him complied with the condition and made no

grievance in respect of subsistence allowance and it was only Mr.

Natubhai Patel who has acted with malafide intent and is attempting

to gain undue advantage of his own shortcoming.

6.15. In support of her above submissions, she has referred to and

relied upon the following decisions of the Supreme Court and the

various High Courts:-

(i) Kendriya Vidyalaya Sanghtan and Anr. Vs. S.C.

Sharma7;
7 (2005) 2 SCC 363

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(ii) U.P. State Brassware Corporation Ltd. and Anr. Vs.

Uday Narain Pandey8;

(iii) Talwara Cooperative Credit and Service Society Ltd. Vs.

Sushil Kumar9;

(iv) Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya

and Anr.10;

(v) National Gandhi Museum Vs. Sudhir Sharma11;

(vi) Salim Ali Centre For Ornithology & Natural History,

Coimbatore and Anr. Vs. Dr. Mathew K. Sebastian12;
and

(vii) K.S. Periyaswamy Vs. Bharath Earth Movers Ltd.,

Banglore13;

(viii) U.P. State Textile Corporation Ltd. Vs. P.C. Chaturvedi

and Ors.14; and

(ix) Ashok S/o Shahaji Gulbhile Vs. The Secretary and

Ors.15.

6.16. While refereeing to the above judgments, she would submit

that when the question of determining the entitlement of subsistence

allowance is concerned the employee has to show that he was not

gainfully employed and the initial burden is on him. She would submit

that though it was for the employer to raise the plea about the

8 (2006) 1 SCC 479

9 (2008) 9 SCC 486
10 (2002) 6 SCC 41
11 (2021) 12 SCC 439
12 2022 SCC Online SC 451
13 2006 (1) L.L.N. 610
14 (2005) 8 SCC 211
15 WP No.2438 of 2012 decided on 20.03.2015

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employee not being gainfully employed during the suspension period,

having regard to the provisions of Section 106 of the Indian Evidence

Act, 1872, such a plea if raised by the workman, then the burden of

proof would be on the workman as it is a negative burden and only if

the same is discharged by the workman, the onus of proof would shift

onto the employer.

6.17. Finally, she would submit that the requirement of workman

signing the attendance register at the factory gate during the period of

suspension is a customary practice followed by the Company for all its

workmen / employees and the Respondent - Company in its affidavit

of evidence filed through its witness Ms. Tanvi Shah has deposed that

the requirement of marking attendance every day at the gate was

followed for all suspended workmen of the Respondent - Company and

has been a prevalent practice for many years and hence it has become

a rule, custom and usage in the Respondent - Company and Mr.

Natubhai Patel could not be absolved from it; Mr. Natubhai Patel

himself has admitted in his deposition that the said practice was

followed in the case of other suspended workmen by the Respondent -

Company.

6.18. She would therefore submit that the practice of requiring a

suspended workman to mark his attendance every day for showing

that the suspended workman was not gainfully employed elsewhere

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during his suspension is a fair, reasonable and bonafide condition,

which has been recognized by the Supreme Court as well as High

Courts as demonstrated in the judgments cited above and accordingly,

in the event of failure of the concerned employee to prove that he was

not gainfully employed elsewhere during his suspension period, the

Respondent - Company is justified in denying him the subsistence

allowance during the period when he did not mark his attendance. She

would therefore submit that the Petition is meritless and not

maintainable and hence deserves to be dismissed with costs.

7. I have heard Ms. Cox, learned Advocate for Petitioner –

Union and Ms. Mujumdar, learned Advocate for Respondent –

Company and with their able assistance perused the record and

pleadings of the present case. Submissions made by the learned

Advocates have received due consideration of this Court.

8. In the present case, it is seen that the only dispute pertains to

the issue of non-payment of subsistence allowance in view of an

unfulfilled condition stipulated by the Respondent – Company in the

suspension order. Prima facie, it is seen that before the Enquiry Officer,

before the Conciliation officer, before the Labour Court in pleadings

after the Reference is made and during the evidence in the Reference

proceedings, employee Mr. Natubhai Patel had repeatedly demanded

and raised a grievance about non-payment of subsistence allowance to

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him. There is no dispute about this fact.

9. What is pertinent to note is that whether the condition in the

suspension order can be such that a statutory benefit granted to the

employee / workman can be permitted to be curtailed by the

condition. In this regard at the outset, let us analyse the statutory

provision of Section 10(A) of the said Act which is applicable in the

present case. Section 10(A) of the said Act reads thus:-

“10-A. Payment of subsistence allowance – (1) Where any

workman is suspended by the employer pending investigation
or inquiry into complaints or charges of misconduct against
him, the employer shall pay to such workman subsistence
allowance-
(a) at the rate of fifty per cent of the wages which workman
was entitled to immediately preceding the date of such
suspension, for the first ninety days of suspension; and
(b) at the rate of seventy-five per cent of such wages for the
remaining period of suspension if the delay in the completion of
disciplinary proceedings against such workman is not directly
attributable to the conduct of such workman.
(2) If any dispute arises regarding the subsistence allowance
payable to a workman under sub-section (1), the workman or
the employer concerned may refer the dispute to the Labour
Court, constituted under the Industrial Disputes Act, 1947 (14
of 1947), within the local limits of whose jurisdiction the
industrial establishment wherein such workman is employed is
situate and the Labour Court to which the dispute is so referred
shall, after giving the parties an opportunity of being heard,
decide the dispute and such decision shall be final and binding
on the parties.
(3) Notwithstanding anything contained in the foregoing
provisions of this section, where provisions relating to payment
of subsistence allowance under any other law for the time being
in force in any State are more beneficial than the provisions of
this section, the provisions of such other law shall be applicable
to the payment of subsistence allowance in that State.”

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10. As against the above, let us see the condition which is

stipulated in the suspension order issued to the workman in the

present case. The said condition is found in the suspension pending

enquiry order which is at Exhibit “A” - page No.18 of the Petition in the

last unnumbered paragraph therein which reads thus:-

“Your suspension pending enquiry will continue till the enquiry

is completed and the decision is made thereupon. You are
advised to report at the factory gate everyday at 11.00 a.m. and
mark your attendance in the register provided for this purpose.
Please note that in case you fail to mark your attendance, you
will be treated as absent for the day and no subsistence
allowance will be payable to you for that day.”

11. It is seen that immediately thereafter on 24.09.2004 a letter

is addressed by the Union office bearers / departmental representatives

for Mr. Natubhai Patel for payment of subsistence allowance. It is next

seen that on 21.08.2007, a letter is addressed by the Vice President of

the Petitioner – Union to the Respondent – Company once again

raising the issue of non-payment of subsistence allowance which was

clearly in violation of the provisions of Section 10(A) of the said Act.

This letter is annexed as Exhibit “D” - page No.27 to the Petition.

Thereafter at Exhibit “F” - page No.31 is the Conciliation Failure

Report dated 05.05.2008 wherein it has been recorded by the

Conciliation Officer that the Management has further stated that they

are ready to pay the subsistence allowance to Mr. Natubhai Patel when

he marks his attendance at the factory gate as per the practice of the

Respondent - Company to show that he is not gainfully employed

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elsewhere and it also records that Mr.Natubhai Patel has submitted his

written statement stating that he was not employed anywhere during

his suspension period.

12. In view of the above rival position, the question for

adjudication is whether the act of the Respondent – Company is in

consonance with the provisions of Section 10(A) of the said Act. As

seen above, Section 10(A) refers to payment of subsistence allowance

during the period of suspension. From reading Section 10(A) of the

said Act, it appears that the provision is a beneficial enactment to take

care of employees who are placed under suspension and they are

required to be paid the prescribed 50% wages as contemplated for the

period under suspension. In the present case, the Respondent -

Company has argued that it is a long standing customary practice of

the Respondent - Company to require marking of attendance at the

factory gate because of which subsistence allowance is denied to Mr.

Natubhai Patel. Therefore, the question before me is whether such a

customary practice of requiring the employee to mark his attendance at

the factory gate without the support of any rule, regulation, standing

order or statutory enactment is maintainable in the face of the

statutory provision of Section 10(A) of the said Act. I am afraid it is

not. The Respondent - Company cannot lay down and insist on a

customary practice followed by the Company to prevail upon the

existing statutory provisions of law. The argument of the Respondent -

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Company is difficult to accept. A customary practice cannot be equated

as a provision under any law or a provision under any other law and

the provisions of Section 10(A) of the said Act clearly supervene in

relation to the payment of subsistence allowance over the alleged

customary practice followed by the Respondent - Company. Once it is

found that the said customary practice is in clear conflict with the

provisions of Section 10(A) of the said Act, the claim of the employee

being entitled to subsistence allowance cannot be permitted to be

defeated on the basis of a customary practice followed by the

Respondent - Company.

13. The Labour Court in the impugned Award in paragraph

No.20 thereof has taken a parochial view of the aforementioned issue

which was before it for adjudication. Once the Petitioner places on

record its grievance for non-payment of subsistence allowance it

cannot be held that no contention has been raised about the condition

put by the employer that it is against the provisions of law. The

findings given in paragraph No.20, that the evidence of the employee

is silent about the provisions of law according to which the condition

of attendance at the gate of the factory everyday during the period of

suspension is illegal cannot be sustained. It cannot be held by the

Court that because such a condition was put by the employer which

was to the knowledge of the employee, the said condition was to be

followed by the employee. Any condition put by the employer and

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more specifically a condition directly relating to entitlement of

subsistence allowance has to be within the parameters and four corners

of Section 10(A) of the said Act only. In the present case, the provision

of clause 4(e) of Schedule - I of the Model Standing Orders (central)

require the employee to satisfy that he was not in employment during

the suspension period to claim the subsistence allowance. This

provision cannot be stretched to the extent of the employer requiring

satisfaction of a pre-condition of marking attendance at the gate of the

factory everyday during the period of suspension. The condition

stipulated by the Respondent - Company is an illegal condition and

deserves to be dismissed. It is an unfair, unjust and malafide condition

which is contrary to the provisions of Section 10(A) of the said Act. In

fact, the findings returned in paragraph No.20 of the impugned Award

dated 13.08.2014 are unreasoned findings which do not satisfy the

statutory provisions at all and deserve to be quashed and set aside.

None of the judgments referred to and relied upon by the Respondent

– Company have addressed the aforementioned legal issue of requiring

marking of attendance everyday during the period of suspension.

What is required under the law is for the suspended employee to

inform the employer that he is not gainfully employed elsewhere and

nothing more. Once the statutory provisions does not provide for

requiring marking of attendance everyday such introduction of a

stipulation as per customary practice is illegal in law, no matter what

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the concerned employer desire from introducing such a condition. In

the present case, the said restrictive condition cannot be made a pre-

condition to the extent of claiming that it was for ensuring that the

employee was not gainfully employed during the period of suspension.

Such an interpretation and argument deserves to be rejected and

dismissed in the first instance itself. Such a stipulation is unreasonable

and cannot be within the four corners of the statutory provisions.

14. In the written submissions submitted by the Respondent -

Company it has been specifically submitted that such a requirement of

signing the attendance register at the gate during the period of

suspension is a customary practice followed by the Respondent -

Company for all the workmen and even though the workman in his

evidence / deposition has admitted that the Respondent - Company

had followed such a practice, that cannot be held against the

workman. It cannot be argued by the Respondent - Company that by

virtue of customary practice prevalent for many years, it has become a

rule, custom or usage. It cannot be and should not be equated with

the fact of proving whether the workman was not gainfully employed

during the period of suspension.

15. In view of the above observations and findings and the

decisions referred to and relied upon by the Petitioner as alluded to

herein above, the Writ Petition stands allowed in terms of prayer

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clauses ‘a’, ‘b’ and ‘c’ which read thus:-

“a) that this Hon’ble Court may be pleased to quash and set
aside the Order dated 13.08.2014 marked as EXHIBIT -
“M” passed by the Hon’ble Civil Judge, Senior Division,
Daman;
b) that this Hon’ble Court may be pleased to declare that the
Respondents were required to pay the Petitioner his
subsistence allowance from the date of suspension till the
date of his termination without the requirement that he
attends the company during the period of suspension;
c) that this Hon’ble Court may be pleased to direct the
Respondents to pay the Petitioner his subsistence
allowance from the date of suspension till the date of his
termination with 10% interest.”

16. Writ Petition is allowed with the following directions:-

(i) The impugned Award dated 13.08.2014 is quashed and

set aside and it is declared that Mr. Natubhai Patel, the

concerned employee is entitled to payment of

subsistence allowance from the date of suspension till

the date of his termination alongwith interest @ 10%

per annum (simple interest) from the date on which

each payment was due and payable till the same is paid

over to him;

(ii) It is directed that Petitioner shall compute the details of

payment and inform the same to the Respondent -

Company alongwith an authenticated copy of this

judgment within a period of one week from today; and

(iii) The Respondent Company is directed to pay the entire

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amount as computed and entitled to alongwith interest

to the concerned employee Mr. Natubhai Patel within a

period of one week thereafter.

17. In view of the above, Writ Petition is disposed.

[ MILIND N. JADHAV, J. ]

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