FAKIRBHAI FULABHAI SOLANKI versus PRESIDING OFFICER & ANR.

Citation: [1986] 2 S.C.R. 1059 · Decided: 08-05-1986 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

1059 
FAKIRBHAI FUl.ABHAI SOLANKI 
v. 
PRESIDING OFFICER & ANR. 
MAY 8, 1986 
[E,S. VENKATARAMIAH AND SABYASACHI MUKHARJI, JJ,] 
Industrial Disputes Act, 1947 : s.33(3) -
Subsistence 
~allowance - Denial of - whether violates principles of natural 
justice - Whether vitiates proceedings before the Tribunal • 
._ 
Suspension from service -
Whether 
puts 
an 
end to 
relationship of master and servant -
Right to subsistence 
A 
B 
-t- allowance - Whether to be read into the Standing Orders. 
C 
-
1 
Administrative Law. 
Labour disputes: Dismissal - Non-payment of Subsistence 
allowance for the period of suspension - Whether violation of 
principles 
of 
natural 
justice/reasonable 
opportunity 
to 
defend. 
Sub-section (3) of s.33 of the Industrial Disputes Act, 
,Al 1947 provides that no employer shall, during the pendency of 
any proceeding in respect of an industrial dispute, take 
action against 
any 
protected workman 
concerned 
(a) 
by 
altering, to his prejudice the conditions of service appli-
cable to him i1111ediately before the colmlll!!ncement of such 
proceedings, or (b) by discharging or punishing, whether by 
•· t dismissal or otherwise, such protected workman, save with the 
express permission in writing of the authority before which 
-~ the proceeding is pending. 
The appellant, a protected workman, was found guilty 
after a disciplinary enquiry of the act of misconduct alleged 
to have been comf.tted by him. 
The management made an 
application before the Industrial Tribunal under sub-s.(3) of 
s. 33 of the Act for peraission to dismiss him. lie was, 
-ti' 
however, suspended froa service with effect from August 13, 
i 1979 pending disposal of the application but without any wages 
or allowances. The appellant thereupon filed a complaint 
before the Tribunal under s. 33A of the Act alleg~ng violation 
D 
E 
F 
G 
It 
A 
B 
c 
0 
E 
F 
G 
H 
1060 
SUPREME COURT REPORTS 
[1986] 2 s.c.R. 
of s.33 by the management. In the standing orders governing 
the appell1nt there was no provision for payment of any sub- \ 
sistence allowance during the pendency of an application under 
s.33(3), The Tribunal while disposing of both the applications 
granted permission to the management to dismiss the appellant 
from service. 
In these appeals by special leave it was contended for 
the appellant that the permission accorded to the management ~ 
was vitiated as· the non-payment of subsistence allowance had 
resulted in denial of reasonable opportunity to the appellant 
to defend himself effectively before the Tribunal in the 
proceedings under s.33(3) of the Act. 
Allowing the appeal, the Court, 
i 
HELD: l, The work.man against whom an application is made ,~ 
under s.33(3) of the Industrial Disputes Act, 1947 should be 
paid reasonable amount by way of subsistence allowance to 
enable him to maintain himself and the members of his family, 
and also to meet the expenses of litigation before the 
Tribunal. If no amount is paid during the pendency of such an 
application, the work.man concerned can be said to have been 
denied a reasonable opportunity to defend himself in the JI, 
proceedings before the Tribunal. Such denial leads to viola-
tion of the principles of natural justice and consequently 
vitiates the proceedings before the Tribunal and any decision 
given in those proceedings against the workman concerned. 
[1066 B-0] 
i . 
2, A workman does not cease to be a work.man until the 
Tribunal grants permission under s.33(3) of the Act to dismiss L 
him and the management does so pursuant to such permission. T 
[1065 B-C] 
An order of suspension by itself does not put an end to 
the e!lployment. The work.man continues to be an employee during 
-
the period of suspension. Though such an order prevents the 
employee from rendering his services bUt that dbes not put an 
~ 
end to the relationship of master and servant between the 'r 
management and the work.man. [1065 C-D] 
)fmU!g 
•t of Hotel hperia1 v. Hotel Workers' 
Union, 
[1960] 1 SCR 476 and lanipar Colliery v. lbusban Si.Dgh & On., 
1959 LLJ Vol.II 231 distinguished. 
-
FAKIRBHAI v. PRESIDING OFFICER 
1061 
State of Maharashtra v. Oiandrabban Tale, (1983] 
2 SCR 
>f 387 and Iba Qiaad v. i.rl.on of India, (1963] Supp. 1 SCR 229 
referred to. 
3, If the order passed at the conclusion of a domestic 
enquiry is only one of suspension (even though the management 
has decided to dismiss him) where the workman has a chance of 
being reinstated with back wages on the

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