Fakirbhai Fulabhai Solanki v. Presiding Officer

FACTS

• The appellant, Fakirbhai Fulabhai Solanki, a "protected workman" of Alembic Chemical Works Co. Ltd., was charge-sheeted for misconduct (playing cards during working hours) in 1979.

• He was found guilty at the domestic inquiry, and the Management decided to dismiss him.

• Due to his protected status under Section 33(3) of the Industrial Disputes Act, 1947 (IDA), the Management had to apply for express permission from the Tribunal before dismissing him.

• The appellant was suspended from service pending the disposal of the Management's application under Section 33(3).

• The core issue raised by the appellant (via his Section 33A application) was the denial of subsistence allowance during the nearly six years the Section 33(3) application was pending.

ISSUES

• Whether the denial of payment of subsistence allowance during the pendency of the proceedings under Section 33(3) of the Act would amount to a violation of principles of natural justice.

JUDGEMENT

• The apex court allowed the appeal on the point of subsistence allowance.

• The Court held that the workman's right to receive a reasonable amount (subsistence allowance) during the pendency of the application under Section 33(3) of the Act should be implied as a term of the contract of employment.

• The Court acknowledged that failure to pay subsistence allowance prevents the workman from defending himself before the Tribunal.

OBSERVATION & NATURAL JUSTICE

This judgment established a crucial safeguard for workmen facing punitive action, particularly protected workmen who face inevitable delays due to statutory requirements.

1. Violation of Natural Justice

• The Court held that if no amount is paid during the pendency of such an application (under Section 33(3)), the workman concerned is denied a reasonable opportunity to defend himself in proceedings before the Tribunal.

• Such denial leads to a violation of principles of natural justice and consequently vitiates the proceedings before the Tribunal under Section 33(3).

2. Implied Term of Contract

• Due to the peculiar circumstances arising from the enactment of Section 33 (which freezes the employer's power of punishment pending an application), the Court found it "but just and fair that Industrial Tribunals should imply such a term in the contract of employment" giving the right to receive a reasonable allowance.

• Quantum: The amount of subsistence allowance payable shall be such as may be fixed either by the standing orders or, in the absence of any such standing order, by the authority before which the application for permission is pending.

3. Managerial Prerogative and Subsistence

• This ruling balances the employer's Managerial Prerogative (the right to suspend an employee to prevent further misconduct, as affirmed in Hotel Imperial) with the employee's fundamental Right to Livelihood. It ensures that the suspension—which is often lengthy and mandated by law in effect—does not become a vehicle for denying the employee the ability to sustain himself and his defense.