WP No. 41505 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO.41505 OF 2012 (L-RES) BETWEEN: G.PRABHUDEV AGED ABOUT 49 YEARS S/O LATE N.V.GIRIYAPPA WORKING AS ASSISTANT ENGINEER GRADE-II STAFF NO.3781440/251 SC/PV ELECTRONICS DIVISION BHARAT HEAVY ELECTRICALS LIMITED P.B.NO.2606, MYSORE ROAD BANGALORE – 560 026. ...PETITIONER (BY SRI.MURALIDHAR H.M., ADVOCATE) AND: BHARAT HEAVY ELECTRICALS LIMITED ELECTRONICS DIVISION POST BOX NO.2606, MYSORE ROAD BANGALORE – 560 026 REPRESENTED BY ITS SENIOR DEPUTY GENERAL MANAGER (HR) …RESPONDENT (BY SWAMY S. SINGH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ORDER DATED 25TH APRIL 2012 PASSED BY THE 1ST ADDITIONAL LABOUR COURT, BANGALORE IN APPLICATION NO.7/2009 (UNDER ANNEXURE-R TO THE WRIT PETITION) BY ISSUE OF A WRIT IN THE NATURE OF CERTIORARI AND DIRECT THE RESPONDENT / COMPANY TO ACCORD THE PETITIONER TIME BOUND PROMOTION, WAGE ARREARS DUE TO WAGE REVISION DATED 15.11.2000 AND ALL OTHER BENEFITS AS CLAIMED BY HIM IN APPLICATION 7/2009 BEFORE THE 1ST ADDITIONAL LABOUR COURT, BANGALORE AND ETC. - 2 - WP No.41505 of 2012 THIS WRIT PETITION PERTAINS TO PRINCIPAL BENCH BENGALURU HAVING BEEN HEARD AND RESERVED ON 14.03.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS AT KALABURAGI BENCH THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING : CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE C.A.V.ORDER This petition is filed challenging the order dated 25.04.2012 in Application No.7 of 2009 on the file of I Additional Labour Court at Bangalore. 2. In terms of the said order, the petitioner's application under Section 33C(2) of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’), is rejected. 3. Admittedly, the petitioner was suspended from service in the year 1997, on the premise that a criminal case is filed by the petitioner’s relative against the petitioner alleging an offence under Section 498-A of Indian Penal Code. The offence alleged is nothing to do with the employment of the petitioner. - 3 - WP No.41505 of 2012 4. The petitioner was tried and was acquitted. The order of acquittal is not questioned by the State. The order of acquittal has attained finality. 5. Learned counsel would contend that under the applicable Service Rules, in case of acquittal, the petitioner is entitled to revocation of suspension and reinstatement with all full backwages and consequential benefits. 6. Admittedly, the petitioner was suspended in 1997 and suspension was revoked in 2003 and was reinstated into service in 2003. However, all the benefits were not conferred on the petitioner. 7. Since some of the service benefits were withheld, the petitioner made a representation to grant full benefits. As it was not considered, the petitioner filed a Writ Petition. The Writ Petition was allowed, direction was issued to the respondent-Management to consider the representation. - 4 - WP No.41505 of 2012 8. Thereafter, the respondent-Management filed an appeal against the order of the learned Single Judge. Appeal is dismissed. Despite that, the representation was not considered. The petitioner initiated contempt proceeding. In the contempt proceeding, during the pendency of the appeal before the Division Bench, the respondent considered the representation, issued an endorsement denying the benefits. Subsequently, the Writ Appeal was dismissed. However, the liberty was reserved to the petitioner to challenge the endorsement. 9. The endorsement is questioned before the Labour Court by invoking Section 33C(2) of the Act of 1947. The Labour Court has rejected the application on the premise that there is no adjudication or settlement conferring the right in favour of the petitioner. 10. Learned counsel appearing for the petitioner would contend that the benefits available in a situation narrated above can be noticed in terms of Annexure-A17 which is the Circular issued by the respondent. He would - 5 - WP No.41505 of 2012 contend that since the Circular is not in dispute and it is not the case of the respondent that the petitioner had the benefit of hon'ble acquittal, the Labour Court committed an error in rejecting the application on the premise that there is no award or settlement. Referring to Section 33C(2) of the Act of 1947, he would contend that the benefit claimed by the petitioner can be quantified from the admitted documents of the respondent and it is based on the pre-existing right. 11. In the alternative, it is urged that if Circular is not applicable, then the petitioner is entitled to full wages during suspension under the applicable Standing Orders. The learned Counsel for the petitioner has relied on the following judgments: i) Fabril Gasosa Vs. Labour Commissioner and Ors.1 ii) State Bank of India Vs. Ram Chandra Dubey and Ors.2 iii) State of U.P. and Anr. Vs. Brijal Singh3 1 [(1997) 3 SCC 150]. 2 [ (2001) 1 SCC 73] - 6 - WP No.41505 of 2012 iv) Central Inland Water Transport Corporation Limited Vs. The Workmen and another4. 12. Learned counsel for the respondent raised the following contentions: (i) Annexure - 'A' 17 Circular relied on by the petitioner is not applicable to the workmen but it is only applicable to the staff and the petitioner does not come under such category. The Petitioner has not pleaded in his application under Section 33C(2) of the Act of 1947 as to whether he is claiming suspension allowance or wages and he has not pleaded as to whether the claim is based on the Standing Orders. (ii) Under the Certified Standing Orders of the respondent-Management, the respondent- 3 [ (2005) 8 SCC 58] 4 [ (1974) 4 SCC 696] - 7 - WP No.41505 of 2012 Management is under no obligation to pay suspension allowance in case suspension has taken place under Section Clause 34(c) of the Standing Orders. (iii) The petitioner was suspended in the year 1997 and the suspension was in force till 2003. The claim for wages is not maintainable as Sub-Clause 9 of Clause 34 of the Standing Orders which disentitled such payment was in force till October, 2007. (iv) The Co-ordinate Bench of this Court in similar situation in Writ Petition No.56744/2017 has held that petition under Section 33C(2) is not maintainable. (v) In a situation, where the Standing Orders of the respondent-Management does not cover the situation under Clause 34(c), the Model Standing Orders would apply and under the Model Standing Orders, the petitioner is not entitled to 100% suspension - 8 - WP No.41505 of 2012 allowance and he is entitled only to 75% and 75% is paid and as such, nothing is due to the petitioner. 13. This Court has considered the contentions raised at the Bar and perused records. 14. Annexure-A17 is the Circular dated 20.02.2006. The said Circular provides the guidelines of pay allowances and other benefits during the suspension period and after reinstatement of the employees governed under BHEL CDA Rules, 1975. It is noticed that the said Rules are not applicable to the Workman and it is applicable to staff other than workman. 15. For the aforementioned reasons, the petitioner cannot rely on the said Circular. 16. Now the question is whether the petitioner is entitled to full wages and allowances during suspension period, if later, he is acquitted of charges. - 9 - WP No.41505 of 2012 17. The relevant clause of certified Standing Order would be Clause-34 which deals with the suspension and the same reads as under: “34. SUSPENSION. a) xxxxx b) xxxxx c) Where a case against the workman in respect of any criminal offence is under investigation by police or trial in criminal court” 18. The Sub Clauses 8 and 9 of Clause 37 of the Certified Standing Orders which dealt with the suspension allowance in a case covered under clause 34(c) of the Standing Orders, have been deleted with effect from 03.04.1994 and 16.10.2007 respectively. The said Sub Clauses 8 and 9 of Clause 37 read as under: “8) In cases where a workman is placed under suspension for reason mentioned under Standing Order 34(c), the workman so placed under suspension shall not be entitled any wages or subsistence allowance during the period of suspension. - 10 - WP No.41505 of 2012 9) Where a workman is placed under suspension for reasons mentioned under Standing Order No.34(c) is acquitted by the criminal court, the order of suspension shall be revoked but the workman will not be entitled to any wages for the period of suspension.” 19. Clause 37(8) which is applicable in case of suspension under Clause-34(c) did not provide for payment of any wages or subsistence allowances during the period of suspension. 20. Clause 37(9) provides that even in case of acquittal by the Criminal Court, the employee is not entitled to wages during suspension period. 21. Admittedly, in the present case, the petitioner was placed under suspension pursuant to a criminal case (unconnected with affairs of the Management) filed by one of the family members. The petitioner was placed under suspension on 31.05.1997. Admittedly, on 03.04.1994, Sub Clause 8 of Clause 37 which disentitled wages and suspension allowance was deleted. Since Sub Clause 8 of Clause 37 was deleted on 03.04.1994, the wages could - 11 - WP No.41505 of 2012 not have been denied to the petitioner under the said provision in the certified Standing Orders as such a provision was not in place. In other words, the Certified Standing Orders of the respondent – Management did not provide for withholding wages during suspension in a situation covered under Clause 34(c) in the year 1997. 22. It is already noticed that Sub Clause 9 of Clause 37 of certified Standing Orders was deleted on 16.10.2007. The said provision enabled the employer to deny the wages during the suspension period even in case of acquittal. However, it is to be noticed that the petitioner was placed under the suspension in the year 1997. Though, Sub Clause 9 of Clause 37 was in place in the Standing Orders in 1997, Sub Clause 8 of Clause 37, which enabled the employer to deny the wages and suspension allowance during suspension pending investigation, inquiry or trial was deleted in 1994 itself. 23. Though it is urged that Sub Clause 9 of Clause 37 which was deleted on 16.10.2007 provided for denying - 12 - WP No.41505 of 2012 backwages during the suspension period, since Sub Clause 8 of Clause of 37 which provided for denial of the wages and subsistence allowance during suspension period was deleted with effect from 03.04.1994, Sub Clause 9 of Clause 37 cannot be invoked. The reason is when the petitioner was under suspension in the year 1997, the Certified Standing Orders did not contain any provision to withhold the wages or suspension allowance in a situation where suspension was under Clause 34(c) referred to above. 24. Sub Clause 9 of Clause 37 deals with denial of wages during the period of suspension in the event of acquittal. Said Clause becomes operative only in case, the Establishment is enabled to withhold the wages or suspension allowance during investigation or criminal trial. Since Sub Clause 8 of Clause 37 was deleted on 03.03.1994, Sub Clause 9 of Clause 37 did not have any effect post 03.03.1994. The reason is Sub Clause 9 of Clause 37 does not have any independent existence and it only clarifies the position relating to denial of wages during - 13 - WP No.41505 of 2012 suspension, in the event of acquittal. For Sub Clause 9 of Clause 37 to apply, there has to be the denial of wages or denial of suspension allowance under Sub Clause 8 of Clause 37. The denial of full wages to the petitioner during investigation and trial appears to be without any enabling provision in the Certified Standing Orders as Sub Clause 8 of Clause 37 was omitted in 1994. 25. In fact, it appears that Sub Clause 9 of Clause 34 should have been omitted simultaneously along with Sub Clause 8 of Clause 34. And it is omitted in 2007 though it had lost its relevance post 03.03.1994. 26. Learned Counsel for the respondent- Management has urged that in case, the certified Standing Orders do not provide for denial of wages in the fact situation obtained, then the Model Standing Orders would govern the payment of subsistence allowance and wages during the period of suspension. 27. Under the Model Standing Orders, the relevant provisions are Clause 15, 4(a), (b), (bb), (c) of the - 14 - WP No.41505 of 2012 Karnataka Industrial Employment Model Standing Orders Rules, 1961. 28. In the aforementioned clauses, there is no provision for payment of full wages after revocation of suspension allowance or after the workmen is acquitted in criminal proceedings. 29. The Clause 15(4)(d) and (e) of Schedule-I of the Model Standing Orders reads as under: “(d) If on the conclusion of the inquiry, or as the case may be of the criminal proceedings, the workman has been found to be not guilty of any of the charges framed against him he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension, after deducting the subsistence allowance paid to him for such period. (e) The payment of subsistence allowance under this standing order shall be subject to the workman concerned not taking up any employment during the period of suspension.]” 30. On a reading of aforementioned provision, it is evident if the workman is not found guilty of any charges in a criminal case, it should be deemed that he was on - 15 - WP No.41505 of 2012 duty during the period of suspension and entitled to same wages as he would have received as if he had not been placed under suspension, after deducting the subsistence allowance if any paid for the said period. 31. It is not the case of the respondent- Management that the petitioner’s case falls under Clause 15(4)(e) of the Model Standing Orders where the Management can deny the wages on the premise that the workmen had taken-up employment elsewhere during the period of suspension. 32. Thus, this Court is of the view that the Model Standing Orders do not come to the aid of the respondents. 33. It is relevant to note that when Clause 9 of Clause 37 was deleted on 16.10.2007, the Model Standing Orders provided for payment of subsistence allowance and also the payment of full wages under Clause 15(4)(d), when the employee was acquitted. Thus, it appears that the employer might have thought fit to delete Sub Clause - 16 - WP No.41505 of 2012 9 of Clause 37 to bring Certified Standing Orders in conformity with the Model Standing Orders. Hence, this Court is of the view that the petitioner is entitled to full backwages during the period of suspension. 34. Now the question is whether the application under Section 33C(2) was maintainable without there being any determination of the amount payable to the petitioner. Section 33C(2) of the Act of 1947, reads as under: 33C: Recovery of money due from an employer.- 1. xxxxx 2. Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months] - 17 - WP No.41505 of 2012 35. On a reading of the aforementioned provision, it is evident that if any money or benefit which is capable of being computed in terms of money is due to the employee from an employer, or a question as to the amount due or amount at which such benefit should be computed, then the Labour Court can decide the question. The said provision has been interpreted to say that the workman can file an application under Section 33C(2) provided there is a pre-existing right in his favour to make such a claim. 36. It is an admitted fact at this stage that the respondent proceeded to deny 100% wages and paid only 75% of the wages on the premise that the petitioner is not entitled to full wages. 37. As already discussed above, the dispute in this case is relating to payment of wages during suspension period. The petitioner claims that he is entitled to 100% wages and respondent is claiming that the petitioner is not entitled to 100% wages but only 75% wages. - 18 - WP No.41505 of 2012 38. he only point that is required to be adjudicated is, whether the provision relating to payment of 100% would apply or provision relating to 75% would apply. This has to be decided with reference to applicable provisions in the Standing Orders already discussed. 39. This Court is of the view that the Labour Court has the jurisdiction to decide the question as the question involved in the present case is covered under the expression “any benefit which is capable to being computed in terms of money and if any question arises as to the amount due or as to the amount at which the benefit should be computed” found under Section 33C(2). The Labour Court did not appreciate the aforementioned provision in proper perspective. 40. The learned counsel for the petitioner would refer the Judgment of the Co-ordinate Bench of this Court in W.P No.56744/2017 (K Ananda vs. M/s Bharat Heavy Electricals Ltd.,) to contend that under the identical situation, the Court has dismissed the Writ - 19 - WP No.41505 of 2012 Petition holding that the levy sought is beyond scope of Section 33C(2). This Court on going through the said judgment is of the view that the claim made in the said case was relating to dearness allowance from 1994 to 2006 and there was no order quantifying the allowance payable. It appears that the respondent–employer disputed the claim for fixation of allowance. However, in the instant case, the dispute is whether the employer is justified in deducting the wages during the period of suspension. Once the Court has taken a view that employer is not entitled to deduct the suspension allowance or wages, and given the fact that the respondent claims to have paid certain amount deducting the balance amount by taking a stand that the respondent is entitled to deduct the balance amount under the provisions of the Standing Orders discussed above, the respondent cannot contend that the amount payable is not yet quantified. 41. In the instant case, the petitioner is claiming full wages during suspension period under the applicable - 20 - WP No.41505 of 2012 Standing Orders. The number of days for which the petitioner was in suspension is not in dispute. The wages payable to the petitioner when he was under suspension is not in dispute. 42. In the circumstances mentioned above, the Labour Court ought to have quantified the amount payable by considering undisputed facts relating to wages payable to the petitioner. Said exercise is permissible under Section 33C(2) of the Act of 1947 as the said amount payable to the petitioner is capable of being computed. 43. For any technical reason even if it is to be accepted that under Section 33C(2) of the Act of 1947, the Labour Court could not have decided on the interpretation of the Standing Orders and its consequences relating to entitlement of wages during the period of suspension, as this Court has decided the rights and liability of the parties consequent to suspension of service and acquittal, and said question being a pure question of law, the Labour Court shall now proceed to compute the benefits payable - 21 - WP No.41505 of 2012 to the petitioner as such exercise has not been carried out by the Labour Court. 44. For the aforementioned reasons, this Court is of the view that the impugned order has to be set-aside and matter has to be remitted to the Labour Court for further adjudication. 45. Hence, the following: ORDER (i) The petition is allowed in part. (ii) The impugned order dated 25.04.2012 passed by I Additional Labour Court at Bengaluru in Application No.7/2009 is set aside. (iii) The matter is remitted to the Labour Court for fresh consideration in accordance with law. (iv) The parties shall appear before the Labour Court on 09.06.2025 Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS/GVP