SHETHNA, J. - (1.) THE petitioner was working with the respondent Mill since 1965 as Weaver on Badli. According to him, he was made permanent w. e. f. 1. 1. 69. He claimed to be Union Leader having been elected as Vice President of Pali Mills Mazdoor Union in 1980 and later on, elected as General Secretary in 1983. He was charge-sheeted on 19. 8. 83 (Annex. 1) for abusing 3 Guards of unit at odd hours at 11:30 P. M. on 16. 8. 83. Simultaneously, he was also placed under suspension. In the departmental proceedings, the Management appointed Chief Labour Officer of the mill as enquiry officer and one Sudhir Chandra was appointed as Presenting Officer to present the case of the management. On 1. 9. 83, the petitioner denied the charges in the enquiry, therefore, as many as six witnesses were examined by the Management. THEy were duly cross examined by the petitioner. After the evidence of management was over, he examined himself on 29. 10. 83. Not only that, he examined one Ghewar Chand as his defence evidence on 1. 11. 83. Five other witnesses were also examined by him in his defence on different dates in November, 1983. On the conclusion of the enquiry, the petitioner was informed by letter dated 29. 12. 83 (Annex. 3) that the enquiry officer has submitted his report and as per the report he was found guilty for the mis-conduct alleged against him, therefore, he was asked to show cause as to why he should not be dismissed from service. THE petitioner replied to the said show cause notice on 4. 1. 84 (Annex. 4 ). However, the management was not impressed by the reply, therefore, dismissed him from service by an order dated 20. 1. 84 (Annex. 5 ). THEreafter, the Management moved an application under Section 33 (2) (b) of the I. D. Act, 1947 for giving approval to the order of dismissal dated 20. 1. 84. It has also made an application on 30. 7. 84 for framing the issues regarding the legality of the disciplinary proceedings, to which, the petitioner submitted his reply and pleaded that the entire disciplinary proceedings was illegal as no subsistance allowance was paid to him and that no reasonable opportunity to defend him was given by offering a defence assistant to defend him in the disciplinary proceedings. However, the Industrial Tribunal by its order dated 29. 6. 85 (Annex. 6) accepted the application of Management and gave its approval to the dismissal order. Hence, the petitioner raised industrial dispute before the competent authority and in absence of any agreement arrived at between the parties in conciliation proceedings, the failure report was submitted by the Conciliation Officer to the Government and accordingly, the Government referred the matter to the Industrial Tribunal by notification dated 28. 2. 86. THE Industrial Tribunal by its award dated 13. 6. 89 (Annex. 12) held that the dismissal order dated 20. 1. 84 passed against the petitioner was legal and valid. THE same is challenged by the petitioner by way of this petition.
(2.) AT the outset, it may be stated that this petition is labelled under Article 226 of the Constitution but strictly speaking it is a petition under Article 227. The scope of which is narrow and limited as held by the Hon'ble Supreme Court in the case of Mohd. Yunus vs. Mohd. Mustaquim (1 ). It has been held that this Court cannot correct error committed by the subordinate court either on facts or even on law. Having carefully gone through the impugned award passed by the learned Tribunal, I do not see any reason to entertain this petition. However, learned counsel for the petitioner tried to challenge the impugned award passed by the Tribunal on the ground that the petitioner was not paid subsistence allowance during the disciplinary proceedings, therefore, he was unable to defend him properly in disciplinary proceedings. Hence, it must be held that the disciplinary proceedings were vitiated as the petitioner was denied reasonable opportunity to defend himself in the disciplinary proceedings. This very point was argued before the learned Tribunal but it was not accepted on the ground that Rule 26-A was amended in the Standing Order only with effect from 26. 8. 84 and the day on which the petitioner was placed under suspension and charge- sheet was filed i. e. on 19. 8. 83, there was no such provision of giving subsistence allowance during the departmental proceedings. However, it was vehemently submitted by the learned counsel for the petitioner that by not giving him subsistence allowance during the suspension period, the management has deprived the petitioner from his right to defend him properly in the disciplinary proceedings. He submitted that considering this aspect only, Rule 26-A was subsequently added under which it was made compulsory to give subsistence allowance to a person who is placed under suspension while facing disciplinary proceedings. It was, therefore, submitted that it must be held that not paying subsistence allowance to the petitioner during the disciplinary proceedings, was fatal as the petitioner was unable to properly defend him in the enquiry.
(3.) PRIMA-facie there seems to be some substance in what is submitted by the learned counsel for the petitioner but on a closure scrutiny, I am unable to accept this contention on the peculiar facts of this case for two reasons:- (1) that the period of suspension was a brief period of hardly 5 months and (2) the petitioner never made a grievance in the disciplinary proceedings that in absence of subsistence allowance, he was unable to defend himself properly. At this stage, learned counsel Mr. Singhvi for the respondent pointed out that the petitioner was having sufficient means to maintain himself as he was already having a Kirana Shop, therefore, he has never made such grievance during the enquiry but only as an after thought, this grievance was made for the first time before the Labour Court. Under the circumstances, it cannot be said that the petitioner was denied reasonable opportunity to defend himself in the departmental enquiry by the management by not providing him subsistence allowance during the suspension period. Hence, this first contention raised by the learned counsel for the petitioner is rejected. ;