- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2025 PRESENT THE HON’BLE MR. N.V. ANJARIA, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE M.I.ARUN WRIT APPEAL NO.1762 OF 2024 (L-RES) BETWEEN: 1. THE MANAGEMENT OF M/S. TOYOTA KIRLOSKAR AUTO PARTS PRIVATE LIMITED, PLOT NO.21 BIDADI INDUSTRIAL AREA BIDADI, RAMANAGAR DISTRICT BENGALURU-562 109 REGISTERED UNDER COMPANIES ACT REPRESENTED BY ITS DEPUTY MANAGER (HR AND ER) MR. VIJAY H.V. ... APPELLANT (BY SRI S.N. MURTHY, SENIOR ADVOCATE ALONG WITH MS. S. ROOPASRI, ADVOCATE) AND: 1. MR. SHIVAPPA S. BADAGAUDRA S/O. SHANKARAPPA, PHC QRTS. GURUDEVARAHALLI CHIKKANARASINAKERE (P) MADDUR TALUK, MANDYA DISTRICT- 571 422. ... RESPONDENT (BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI SHANKAR S. BHAT, ADVOCATE FOR C/R) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 04.09.2024 IN WRIT PETITION NO.17324 OF 2021 (L-RES) GRANTING INTERIM RELIEF OF 50% OF HIS LAST DRAWN PAY OF RS.29,014/- FROM 16.01.2015 AND CONSEQUENTLY SET ASIDE THE ORDER DATED 22.07.2021 PASSED BY THE HON'BLE ADDITIONAL INDUSTRIAL TRIBUNAL IN SLA NO.41/2014 (IA No.1) GRANTING INTERIM RELIEF TO THE RESPONDENT, ETC. - 2 - THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, M.I.ARUN J., DELIVERED THE FOLLOWING: CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N.V. ANJARIA and HON'BLE MR. JUSTICE M.I.ARUN CAV JUDGMENT (PER: HON'BLE MR. JUSTICE M.I.ARUN) Aggrieved by the order dated 22.07.2021 passed by the Additional Industrial Tribunal, Bengaluru, in Serial Application No.41 of 2014 on I.A.No.1 and the order dated 04.09.2024 passed by learned Single Judge in Writ Petition No.17324 of 2021, the present writ appeal is filed by the employer. 2. The appellant is engaged in the business of manufacture of auto components and is a private limited company. The respondent is one of its employee. The respondent has been dismissed from service by the appellant on the allegations of misconduct. It resulted in an industrial dispute being raised by way of AID No.39 of 2014, in which the Tribunal found that the domestic inquiry conducted against the respondent to be improper and not fair. Thereafter, the Tribunal entertained an interim application filed by the - 3 - respondent, in which the respondent had made the following prayer, "For the reasons set forth in the accompanying affidavit, the Opposite Party workman prays that this Hon'ble Tribunal be pleased to grant interim relief to the Opposite Party Workman with effect from the date of dismissal i.e. 30.12.2014 at the rate of 100% last drawn wages every month commencing from 30.12.2014 till the disposal of the case, in the interest of justice and equity." 3. The Tribunal, on the said application, has passed the following order, "O R D E R I.A.I filed by the opposite party under Section 10(4) of I.D.Act is hereby allowed in part. The opposite party is entitled for the interim relief of 50% of his last pay drawn of Rs.29,014/- from the date of dismissal i.e. from 30.12.2014 till the disposal of this case. Both the parties are hereby directed to co-operate for earlier adjudication of this matter within three months. There is no order as to costs." 4. Aggrieved by the said order of the Tribunal, the appellant herein preferred Writ Petition No.17324 of 2021 wherein the learned Single Judge has passed the following order, "ORDER i. Writ petition is allowed in part. ii. The impugned order passed by the Labour Court stands modified to the extent of holding that the respondent-workman is entitled for interim relief of 50% of his last pay drawn of Rs.29,014/- from 16.01.2015." - 4 - 5. Aggrieved by the order of the learned Single Judge and the order of the Tribunal, the present writ appeal is filed by the employer. 6. The case of the appellant is that the respondent has been dismissed on account of continued 'go slow' in work. It is submitted that it constitutes a serious misconduct and an interim relief cannot be granted on the ground of mercy alone. It is contended that the respondent has not made out a prima facie case against the appellant herein. It is also submitted that the respondent owns 2 acres of land in Haveri District and his wife is working as a nurse and ignoring all these facts, the Tribunal as well as the learned Single Judge have entertained the prayer of the respondent, which is erroneous. 7. Per contra, the learned Senior Counsel for the respondent submits that the Tribunal has entertained the application filed by the respondent only after concluding that the domestic inquiry conducted against the respondent is not fair and proper. It is further submitted that once the domestic inquiry is held to be improper and not fair, in that event, it has to be presumed that the respondent is not guilty of the charges alleged until it is established by the management and the Industrial Disputes Act being a beneficial legislation, the - 5 - workman is entitled to certain interim protection by way of payment of part of the salary. It is contended that Haveri District is a dry area and owning 2 acres of land does not prove anything regarding earning any income and the fact that his wife is working as a nurse cannot be held against the workman. It is also contended that the appellant has failed to establish that the respondent is earning any money out of his 2 acres of land and merely owning 2 acres of land cannot be attributed that the respondent is gainfully employed. On the said grounds, the order passed by the Additional Industrial Tribunal and also the order passed by the learned Single Judge are sought to be justified by the respondent and hence, it is prayed that the writ appeal be dismissed. 8. The question that arises for consideration in the intra-court appeal is whether, under the given peculiar facts and circumstances of the case, the learned Single Judge was justified in granting the protection as ordered in Writ Petition No.17324 of 2021 in favour of the respondent herein? 9. Admittedly, there have been serious allegations of misconduct made against the respondent-workman. However, the Tribunal has found the domestic inquiry conducted against the workman not to be fair and proper. Under the said - 6 - circumstances, the burden of proving that the workman is guilty of the charges alleged is on the employer and the status of the workman has to be equated with the status of an employee who is kept under suspension pending inquiry. Under the circumstances, any payment in the form of the interim relief is nothing but subsistence allowance as contemplated in the service jurisprudence. A Division Bench of this Court in the case of the Management of Kanoria Industries Ltd. vs Bagalkot Cement Company Workers Union & Another reported in ILR 2001 KAR 890 while deciding the question at what stage the interim relief can be granted to a dismissed employee while a labour dispute is pending adjudication, in paragraphs 7, 8 and 10 has held as under: "7. Is there a right in an employee suspended pending inquiry to receive any allowance? This question has been answered by the Supreme Court in M. PAUL ANTHONY vs. BHARAT GOLD MINES LTD. in the following manner: "26. To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Government of India and the State Governments. (See for example, Rule 10 of Central Civil Services (Classification, Control and Appeal)) Rules. Even under the General clauses Act, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss. 27. The order of the suspension does not put an end to an employee's service and he continues to be a member of the service though he is not permitted to work and is paid only Subsistence Allowance which is less than his - 7 - salary (See: State of M.P v. State of Maharashtra, (1977) 2 SCR 555 : (1977) 2 SCC 288: AIR 1977 SC 1466). 28. Service Rules also usually provide for payment of salary at a reduced rate during the period of suspension. (See: Fundamental Rule 53). This constitutes the "Subsistence Allowance". If there is no provision in the rules applicable to a particular class of service for payment of salary at a reduced rate, the employers would be liable to pay full salary even during the period of suspension. 29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself. This Court in O.P. Gupta vs. Union of India (1987) 4 SCC 328 (AIR 1987 SC 2257) made the following observations with regard to Subsistence Allowance (para 15 of AIR): "An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India (AIR 1958 SC 300) is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance generally called subsistence allowance which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary - 8 - meaning of the word 'subsist' as given in Shorter Oxford English Dictionary, Vol.II at P.2171 is "to remain alive as on food; to continue to exist". "Subsistence" means - means of supporting life, especially a minimum livelihood." 30. If therefore, even that amount -is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non- payment of Subsistence Allowance can be likened to slow poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death". We find that this is what was stated by the Supreme Court briefly earlier in FAKIR BHAI PULABHAI SOLANKI vs. THE PRESIDING OFFICER AND OTHER (1986(11) LLJ 124). "Because it is difficult to anticipate the results of an application made before the Tribunal it is reasonable to hold that the workman against whom the application is made should be paid some amount by way of subsistence allowance to enable him to maintain himself and the members of his family and also to meet the expenses of the litigation before the Tribunal. And if no amount is paid during the pendency of such an application, it has to be held that the workman concerned has been denied a reasonable opportunity to defend himself in the proceedings before the Tribunal. Such denial leads to violation of principles of natural justice and consequently vitiates the proceedings before the Tribunal under Sub-section (3) of Section 33 of the Act and any decision given in these proceedings against the workman concerned." 8. Hence, if the Tribunal or the Labour Court, is yet to pronounce on the propriety of the punishment imposed on the worker the worker is equated to the status of an employee suspended pending inquiry. If so, any payment in the form of interim relief is nothing but subsistence allowance contemplated under the Service jurisprudence. In such a situation, to contend that the finding on the domestic enquiry by the Tribunal/Labour Court is sine qua non for considering as to whether interim relief has to be granted or not is not a correct proposition of law. 10. Hence interim relief is being granted to the worker for the purpose of maintaining him during the period - 9 - the Tribunal adjudicates the dispute and till the Court finally adjudicates on the issue. Though in other services, a final order of punishment would have visited the employee facing an enquiry, absence of that circumstance alone cannot make any difference. Due to the intervention of Section 11 A of the I.D. Act the punishment imposed on the employee would take effect only after the same has been upheld by the Tribunal, though no doubt, from the earlier date of its imposition of the punishment (See the judgment of the Supreme Court in. THIRUVIRKOLAM V. PRESIDING OFFICER (1997(1) SCC 9); PUNJAB DAIRY DEVELOPMENT CORPORATION LTD. vs. KALA SINGH (1997(6) SCC 159). In these circumstances, we are of the view that the award of interim relief in an industrial adjudication is not dependent on the finding on the issue on the validity or otherwise of the domestic enquiry. It is to be awarded notwithstanding the finding with reference to the validity of the domestic enquiry. Therefore there is no necessity for the Labour Court to defer consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry. If so, the learned Judge was correct in dismissing the Writ Petition. We do not find any grounds to interfere with the order in appeal. The W.A. is dismissed.” 10. As observed by the Tribunal in relation to whether the respondent is gainfully employed or not, the only aspect that is elucidated from his cross examination is that he owns 2 acres of land in Haveri District and his wife is working as a nurse. The appellant has failed to show any proof that the respondent is earning from the said 2 acres of land. The Tribunal taking into consideration these facts and also the fact that Haveri District is a dry area and normally much cannot be grown on the land said to have been owned by the respondent has passed the interim order in favour of the respondent. 11. This Court in the case of Delta Infralogistics (Worldwide) Ltd. vs. Sri Mohan K.E. and Others (Writ - 10 - Appeal No.1074 of 2021 DD 02.09.2022) in paragraphs 13 and 14 has held as under: "13. The issue whether the self employment amounts to employment in an establishment is no longer res intergra and has been answered by a two Judge bench of Supreme Court in RAJINDER KUMAR KINDRA v. DELHI ADMINISTRATION (AIR 1984 SC 1805). Para 21 of the aforesaid decision reads as under: "If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer after an utterly case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal-dept, it cannot be said that the appellant was gainfully employed." 13. Thus, it is evident that self employment does not amount to an employment in an establishment. However, subsequently a two Judge Bench of the Hon'ble Supreme Court without referring to the decision of a coordinate bench in RAJINDER KUMAR KINDRA supra held as under: "12. On the said question, we are unable to accept the reasoning of the labour court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self- employment wherefrom income is generated." 14. The earlier decision rendered by a two judge bench was neither considered nor has been distinguished in the subsequent decision. Therefore, the previous decision of the Hon'ble Supreme Court binds this court. Therefore, the second question is answered in the negative and it is held that self employment does not amount to employment in an establishment." - 11 - 12. Under the circumstances, we have no hesitation to conclude that, as domestic inquiry conducted against the respondent has been considered to be improper and not fair, the burden lies on the appellant to establish the allegations made against the respondent. Mere making serious allegations against the respondent does not entitle the appellant to deprive the respondent from being paid subsistence allowance. Further, the appellant has not been successful in showing that the respondent is otherwise gainfully employed. The Industrial Disputes Act is a beneficial legislation and we do not find any error in the order passed by the learned Single Judge, whereby the respondent has been ordered to be paid 50% of his last drawn pay of Rs.29,014/- with effect from 16.01.2015. For the aforementioned reasons, the writ appeal being devoid of merits is hereby dismissed. Pending interlocutory applications, if any, stand disposed of. Sd/- (N.V. ANJARIA) CHIEF JUSTICE Sd/- (M.I.ARUN) JUDGE hkh.