- (1.) THE petitioner was working as a Clerk in the respondent Port Trust. He has come forward to challenge the order of suspension dated 21.12.2004. By the said order, the petitioner was placed under suspension pending departmental action for the misconduct committed by him.
(2.) IT is contended by the petitioner that the order of suspension had been extended every 90 days and no charge memo was issued for nearly one and half years. Finally it was issued only on 10.04.2006. The suspension was unnecessary as it had been granted on vexatious complaint. IT was stated that the subsistence allowance paid to him was not revised. On notice from this Court, the respondents have filed a counter affidavit dated Nil (February 2007). In the counter affidavit it was stated that since the case of the petitioner required detailed investigation, it was referred to vigilance for further investigation. However, the Deputy Chief Vigilance Officer, Chennai Port Trust had recommended the case to be handed over to Central Bureau of Investigation (CBI) for proper investigation. It was now stated that subsequent to the handing over the case to CBI, the investigation was completed and charge memo has been filed and was pending before the Special Judge. In respect of the departmental action, an Enquiry Officer was appointed and enquiry was also in progress. In so far as revision of subsistence allowance is concerned, in paragraph 18 of the counter affidavit, it was averred as follows:- "Since the petitioner involved in the criminal case, the Port Trust is unable to proceed with the disciplinary action due to the absence of the CBI and vigilance report. After issuing the charge sheet only the petitioner had deliberately not allowed the Port Trust to conduct a domestic enquiry against him. The petitioner filed the writ petition No.46528 of 2006 against the Port Trust and got an interim stay against conducting the enquiry and taking the disciplinary action against the petitioner. The above fact clearly proves that the petitioner deliberately not allowed the Port Trust to proceed with the disciplinary action against him. Hence, the petitioner is not entitled for the enhancement of the further subsistence allowance." Though the petitioner had filed W.P.No.46528 of 2006 preventing the disciplinary action from proceeding with on the basis that criminal case was pending enquiry and obtained a stay, subsequently the said writ petition was disposed of on 02.04.2009.
(3.) IN view of the above facts, Mr.L.Chandrakumar, learned counsel for the petitioner states that at this juncture, he is not attacking the suspension order. It would be suffice if enhanced revision of subsistence allowance is given in view of the prolonged suspension which is pending for the last six years. But however, Mr.M.R.Dharanichander, learned counsel for the Port Trust states that in view of the stand taken in paragraph 18 of the counter affidavit, such enhanced revision is not permissible. It must be noted that Section 10A was introduced in the Industrial Employment (Standing Orders) Act, 1946 by the Central Act 18 of 1982 with effect from 17.05.1982. Section 10A reads as follows:- Payment of subsistence allowance " (1) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of miconduct 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. 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 situated 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. 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 move 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. ;