BIBHU DEB ROY Vs. J.M. SAVERY AND ANOTHER

JUDGEMENT

(1.) This application under Sec. 115. Code of Civil Procedure read with Art. 227 of the Constitution is directed against the order dated 4-5-1991 passed by the Assistant District Judge No. 1, Cachar at Silchar in Misc. Appeal No. 25 of 1990. By this impugned order, the lower appellate Court set aside the order of the Munsiff No. 1. Silchar dated 14-1-1990 passed in Misc. Case No. 381 of 1990. This Misc. Case arose out of a petition filed in Title Suit No. 59 of 1990 filed by the present petitioner as plaintiff. The Munsiff directed by the above order to give subsistence allowance during the suspension period to the petitioner.

(2.) Present petitioner as plaintiff filed the above Title Suit against the opposite parties herein viz District Manager, Schlumberger, Calcutta and Engineer in-charge of the company stationed at Silchar praying for a decree for declaration that the petitioner was a regular employee in the establishment of the above firm and also for a declaration that the order of suspension of the plaintiff-petitioner and with-holding of subsistence allowance are illegal. It may be stated that the plaintiff was appointed as Jr. Operator of the company by the Opp. Party No. 2 on probation. Thereafter, he was confirmed. He was placed under suspension with effect from 1.1.90 by order dated 30.12.89 passed by the defendant-Opp. Party No. 1. Plaintiff filed a written explanation and the District Magistrate Viz. Opp. Party No. 1 herein dropped all the charges except one charge regarding unauthorised use of the jeep of the company. The regular departmental enquiry was ordered, but plaintiff has not been paid anything from the date of his suspension. As stated above, plaintiff filed a petition under Order 39 Rule 1 and 2 C.P.C. for temporary injunction restraining the defendant from proceeding with the order of suspension order. Plaintiff has further prayed for a direction for payment of subsistence allowance.

(3.) On perusal of the impugned order which is available at Annexure-IV to the petition, I find that in the written objection filed by the defendants it was stated that under service Rule of the company there was no provision for payment of subsistence allowance and that the claim is covered by the provision of Industrial Disputes Act. The lower appellate court noted that there is no Rule for payment of subsistence allowance court noted that there is no Rule for payment of subsistence allowance in the rules framed by the company and although the trial court directed payment of such subsistence allowance, the question posed by the lower appellate court was as to who would pay this amount as the company was not made a party. It further held that such a direction by the trial court would have created a confusion as a mere direction may not serve the purpose since the direction does not contain the rate of such allowance. Accordingly, the appeal was allowed.