The Supreme Court held that the non-payment of subsistence allowance to the appellant workman during the pendency of proceedings before the tribunal regarding the permission to dismiss him, violated principles of natural justice. Section 33 of the Industrial Disputes Act requires that no prejudicial action be taken against a protected workman during such proceedings, including not discharging or punishing them without permission. As the appellant's suspension did not terminate his employment, he was entitled to subsistence allowance until the proceedings were completed to allow him a reasonable opportunity to defend himself. The Court therefore directed the management to reinstate the appellant with full back wages and allowances.

1. FAKIRBHAI FULABHAI SOLANKI V. PRESIDING
OFFICER & ANOTHER (AIR 1986 SC 1168)
BY:- AKSHITA AGARWAL & PARUL JUNEJA

2. FACTS
• Fakirbhai, the appellant, was a workman in a factory called ‘Management of the Alembic Chemical Works
Co. Ltd’
• He was served with a show cause notice, for misconduct, as he was found playing cards with two other
workmen, during working hours.
• A disciplinary proceeding was initiated against him, where he was found guilty and a decision was taken
to dismiss him from service
• However, as Fakirbhai was a protected workman, a prior permission had to be taken before dismissing
him from the Tribunal as per S.33(3)
• During the pendency of the application seeking permission from the tribunal, the appellant was
suspended without any allowances or wages from service, w.e.f. 13.08.1978
• Fakirbhai also filed a complaint in the Tribunal, under S.33A of the Act against the respondents for
violating S.33

3. • Both the complaints were filed in the year 1979, but the Tribunal finally disposed them off, six years
later in the year 1985.
• The Tribunal granted permission to the management to dismiss the appellant, and rejected the
complaint filed by him.
• The appellant was not paid any subsistence allowance during the pendency of the proceedings, i.e.,
from 13th August 1979 to 5th August 1985
• Aggrieved by this decision of the Tribunal, the appellant filed has filed a Special Leave Petition in the
Supreme Court

4. ISSUE:
Whether the non-payment of any subsistence allowance by the
management to the appellant during the pendency of the
proceedings before the Tribunals was against the Principles of
Natural Justice?

5. RULE:
Section 33 of the Industrial Disputes Act, 1947:
Conditions of service, etc., to remain unchanged under certain circumstances during pendency of
proceedings:-
3) Notwithstanding anything contained in sub- section (2), no employer shall, during the pendency of any
such proceeding in respect of an industrial dispute, take any action against any protected workman
concerned in such dispute-
a) by altering, to the prejudice of such protected workman, the conditions of service applicable to
him immediately before the commencement of such proceedings; or
b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save
with the express permission in writing of the authority before which the proceeding is pending
Explanation.-- For the purposes of this sub-section, (a) "protected workman", in relation to an
establishment, means a workman who, being a member of the executive or other office bearer] of a
registered trade union connected with the establishment, is recognised as such in accordance with
rules made in this behalf.

6. Section 33A of the Industrial Disputes Act:
Special provision for adjudication as to whether conditions of service, etc., changed during pendency
of proceedings.- Where an employer contravenes the provisions of section 33 during the pendency of
proceedings before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National
Tribunal], any employee aggrieved by such contravention may, make a complaint in writing, in the
prescribed manner,--
a) to such conciliation officer or Board, and the conciliation officer or Board shall take such
complaint into account in inediating in, and promoting the settlement of, such industrial dispute;
and
b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint,
the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate
upon the complaint as if it were a dispute referred to or pending before it, in accordance with the
provisions of this Act and shall submit his or its award to the appropriate Government and the
provisions of this Act shall apply accordingly.]

7. ARGUMENTS
• The Appellant council argued that non-payment of subsistence allowance would lead to the Appellant
not being able to defend himself effectively before the tribunal in respect to permissions prayed for him
by the Act, and therefore, the permission accorded by the tribunal should be vitiated. They further
relied on the case of State of Maharashtra vs. Chandhraban Tale, 1923, in which it was held that civil
servant under suspension was entitled to normal subsistence allowance even after his conviction by the
trial court. Relying upon the above decision the learned Counsel for the appellant contended that there
was denial of reasonable opportunity to the appellant to defend himself before the Tribunal in the
proceedings initiated by the application made under Section 33(3) of the Act.
• The Defendant’s council relied on the case of Management of Hotel Imperial, New Delhi vs. Hotel’s
worker Union. In the said case, the court was only concerned with the right of the management to
suspend a workman and were allowed to do so.

8. • The Defendant’s council relied on the case of Management of Hotel Imperial, New Delhi vs. Hotel’s
worker Union. In the said case, the court was only concerned with the right of the management to
suspend a workman and were allowed to do so.

9. HELD
• The court, based on the decision in Khem Chand vs. Union of India of India stated that an order of suspension does not put
an end to an employment service.
• The court stated that where the workman has a chance of being reinstated with back wages on the permission being refused
under Section 33 (3) of the act, it cannot be said that the workman is not entitled to Monetary relief at all.
• In such a case, the court held, the right of the workman to receive some reasonable amount which may be fixed either by
the Standing Orders or in the absence of any Standing Order by the authority before which the application is pending by way
of subsistence allowance during the pendency of the application under Section 33(3) of the Act with effect from the date of
suspension should beimplied as a term of the contract of employment having regard to the observations made in Khem
Chand's case.
• The court also stated that In a case where the proceedings are completed and the order of dismissal is successfully
challenged on the ground of non-payment of subsistence allowance for the period of suspension during the pendency of the
application under Section 33(1) or Section 33(3) of the Act it shall be open to the management to ask for the permission of
the authority again under Section 33(1) or Section 33(3) of the Act after paying or offering to pay to the workman concerned
within a reasonable time to be fixed by the authority concerned the arrears of subsistence allowance.

10. • Therefore, based on the following, the court directed the management to reinstate the appellant in its
service and to pay him all the wages and allowance due to him from 13 August, 1979 as if there was no
break in the continuity of his service.
• The following case is good in law and was also upheld in Ram Lakhan vs. Presiding Officer (1999)

11. THANK YOU