ORDER
V. Gopala Gowda, J.
1. One K. Sudhakar and another M.R. Mallapur, the employees of the petitioner, were dismissed from job on certain allegations. Certain Charter of Demands raised by the first respondent union, which also include the dismissal of the aforesaid two employees, were referred by the Government for adjudication by the 2nd respondent Industrial Tribunal. During the pendency of the said reference, an application was filed by the two dismissed employees seeking grant of interim relief at the rate of 75% of their last drawn salary. The Tribunal considered the said application and passed the impugned order allowing the application and directed the petitioner to pay the interim relief claimed by the two employees. Aggrieved by the same, the petitioner has filed this Writ Petition.
2. The impugned order is challenged mainly on two grounds. They are (1) Section 10(4) of the Industrial Disputes Act confers unlimited power upon the Tribunal and the said power can be exercised only after the case reached the stage of answering the validity of the domestic enquiry and only after satisfying that the grant of interim relief during the pendency of the dispute is warranted when it is established that the concerned workmen were not gainfully employed elsewhere from the date of dismissal and, (2) By wrongly applying the law laid down by the Apex Court in the case of Hotel Imperial v. Hotel Workers Union (1959-II-LLJ-544) (SC) and without applying the law laid down by the decisions of this Court in Mysore Cements Ltd. v. B.R. Siddaramaiah67FJR 136 and T. T, Ltd. v. R. Subramaniam 77 FJR 153 and considering the case put forward by the petitioner objecting to the grant of interim relief, the Tribunal has granted the interim relief and the same is liable to be quashed.
3. Per contra, Mr. M.C. Narasimhan, learned Counsel for the first respondent sought to justify the impugned order placing strong reliance on the decision of the Supreme Court in Hotel Imperial’s case referred to above and another decision in Fakirbai Fulabhai Solanki v. Presiding Officer (1986-11- LLJ-124)(SC) and contended that the Supreme Court, considering the power of the Tribunal under Section 10(4) of the Act, has held that grant of interim relief is incidental to the main relief and therefore the power is unlimited and absolute. In Solanky’s case the Supreme Court, taking into consideration the consumption of time by the Labour Courts and Tribunals in adjudicating the disputes, in order to see that the workmen should be in a position to defend themselves in the litigation, has held that the workmen should not be made to accept the terms of the management. He further submits that the judgments referred to and relied upon by the Industrial Tribunal have laid down the law that interim relief may be granted after recording a finding with regard to the validity of the domestic enquiry.
4. Point No. 2 of reference relates to the justification of the petitioner in dismissing the aforesaid two employees. The Tribunal observed that the State Government granted interim relief at 75% of the last drawn salary, in exercise of the power under Section 10-B of the Industrial Disputes Act (Karnataka Amendment) Act, 1988 to the two employees. The same was challenged in W.P. 27299/1985. The Writ Petition was dismissed and the appeal filed against the said order in W.A. No. 1030/1986 was disposed of with an observation that all the pleas raised therein shall be deemed to have been kept open for the parties.
5. After the dispute was referred to the Tribunal, the claim statement was filed by the first respondent on January 25, 1996. Till August 22, 1996 counter was not filed by the petitioner. In the order of reference the time prescribed to adjudicate the dispute was 3 to 6 months. Since counter itself was not filed and the period of interim relief granted by the Government came to an end, the two employees have filed application for grant of interim relief. In the application it was specifically stated that they are unemployed and they find it difficult to maintain their families. The 75% interim relief granted by the State Government was stopped on the expiry of six months. In those circumstances the application was filed for interim relief. Counter was filed to the application contending that the Tribunal should not exercise its power under Section 10(4) of the Act as the stage for grant of interim relief has not reached; that the validity of the domestic enquiry was not considered; that the grant of interim relief by the Government under Section 10-B of the Act is entirely different from exercise of power under Section 10(4) of the Act.
6. The question for consideration is, whether the power conferred under Section 10(4) of the Act is limited or unlimited for grant of interim relief is a pending dispute. The Supreme Court in Hotel Imperial, New Delhi v. Hotel Workers’ Union (supra) has held as under:
“It is however urged on behalf of the appellants that even if the Tribunal has power under Section 10(4) of the Act to grant interim relief of the nature granted in these cases, it can only do so by submitting an award under Section 5 to the appropriate Government. Reference in this connection is made to Sections 15, 17 and 17-A of the Act. It is submitted that as soon as the Tribunal makes a determination whether interim or final, it must submit that determination to Government which has to publish it as an award under Section 17 and thereafter the provisions of Section 17-A will apply. In reply, the respondents rely on a decision of the Labour Appellate Tribunal in Allen Berry & Co., Ltd, v. Their workmen (1951-I-LLJ-228) (Cal), where it was held that an interim award had not to be sent like a final award to the Government for publication and that it would take effect from the date of the order. We do not think it necessary to decide for present purposes whether an order granting interim relief of this kind is an award within the meaning of Section 2(b) and must therefore be published under Section 17. We shall assume that the interim order passed by the Tribunal on December 5, 1955 could not be enforced as it was in the nature of an award and should have been submitted to the Government and published under Section 17 to become enforceable under Section 17-A. It is, however, still open to us to consider whether we should pass an order giving interim relief in view of this alleged technical defect in the order of the Industrial Tribunal. We have the power to grant interim relief in the same manner as the Industrial Tribunal could do and our order need not be sent to Government for publication, for Sections 15, 17 and 17-A do not apply to the order of this Court just as they did not apply to the decision of the Appellate Tribunal which was governed by the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950) (since repealed). We have already mentioned that this Court passed an order on June 5, 1956, laying down conditions on which it stayed the operation of the order of December 5, 1955 made by the industrial Tribunal. We are of opinion that order is the right order to pass in the matter of granting interim relief to the workmen in these cases.”
7. In Fakhirbhai Fulabhai Solanki v. Presiding Officer (supra) the Supreme Court, after referring to various decisions, having regard to the fact of time that would be consumed by the Labour Courts, in paragraph 8 it has been held that:
” 8. But in neither of the above two decisions the Court considered the question from the angle from which we have approached the problem. In neither of them the Court had the occasion to consider whether the denial of payment of subsistence allowance during the pendency of the proceedings under Section 33(3) of the Act would amount to violation of principles of natural justice. They approached the question from the angle of the common law right of a master to keep a workman under suspension either during the pendency of a domestic enquiry into an act of misconduct or during the pendency of an application under Section 33 of the Act. Those were perhaps halcyon days when such applications were being disposed of quickly. If the Court had realised that such applications would take nearly six years as it has happened in this case their view would have been different. An unscrupulous management may by all possible means delay the proceedings so that I the workman may be driven to accept its terms instead of defending himself in the proceedings under Section 33(3) of the Act. To expect an ordinary workman to wait for such a long time in these days is to expect 1 something which is very unusual to happen. Denial of payment of atleast a small amount by way of subsistence allowance would amount to gross unfairness.”
8. In both Hotel Imperial and Solanky cases referred to above, the proceedings were under Section 33(1) of the Act seeking permission to dismiss the workmen after conducting an enquiry. There will be temporary suspension of the workmen. If the permission is accorded, the workman is not entitled for the salary even though the Supreme Court has laid down law that Section 10(4) is applicable to the said proceedings, the Labour Court can grant interim relief.
9. From the law laid down in the aforesaid two decisions it is clear that grant of interim relief is in aid of adjudication of the main dispute. The Supreme Court has not carved out any exception that only after answering the validity of the domestic enquiry, the power for granting the interim relief has to be exercised.
10. The two decisions pressed into service on behalf of the petitioner before the Tribunal in Mysore Cements Ltd. v. B.R. Siddaramaiah (supra) and T. T. Ltd, v. R. Subramaniam (supra) have no application to the question involved in the instant case. In Mysore, Cements case the question of grant of interim relief in cases where the domestic enquiry is set aside was considered and it was held that even, if the workman is found to be gainfully employed but is earning a smaller amount, it would be reasonable to direct payment of an amount as interim relief which, together with the amount workman is earning, is approximately equal to the rate prescribed in Section 10-A of the Industrial Employment (Standing Orders) Act, under which quantum of subsistence allowance is fixed and that provides the guidelines. In T. T. Ltd. case, it was held that where the Labour Court or Industrial Tribunal finds that the domestic enquiry which ended in the dismissal of a workman was invalid, it can grant interim relief to the workman from the date on which the application was made. In this case what was considered was, from when the interim relief can be granted. In both the cases the question of grant of interim relief before recording a finding as to the validity of domestic enquiry conducted, was not considered and therefore those decisions have no application to the instant case.
11. A Division Bench of this Court in Rangaswamy and Co. v. D. V. Jagdish 77 IFJ 306 has held as under:
“Where the employer had not disputed that the claimant was his employee and it is established that the employee had nothing to maintain himself, it is necessary that he should be provided an interim relief so that he can prosecute the dispute and the relief sought by him can be adjudicated. The High Court, in the exercise of its jurisdiction under Articles 226 and 227 of the Constitution, can direct the employer to pay certain amount to the employee during the pendency of the dispute in such cases.”
It is crystal clear from the above decision that when the relationship of the employee with the employer is not disputed, in such cases interim relief can be granted to adjudicate the claim. So, the grant of interim relief by the Tribunal in the instant case is in accordance with the law laid down by the Apex Court and this Court and no fault can be found with the impugned order of the Tribunal.
12. In the light of the law laid down by the Supreme Court, the Labour Court or the Industrial Tribunal can examine the claim of the workmen as to whether in a particular case is it fit to grant interim relief before recording a finding as to the validity of the domestic enquiry.
13. The exercise of power under Section 10(4) of the Act can also be considered keeping in view the power conferred upon the Labour Court under Section 11-A of the Act. The said Section confers wide powers for substituting its own penalty after appreciation of the evidence on record. Even after proving the misconduct alleged, the gravity of charges and the penalty imposed also can be gone into. That power is not vested in the High Court under Articles 226 and 227 of the Constitution of India. Such being the case, the Labour Court can consider grant of interim relief even before recording a finding as to whether the validity of the domestic enquiry conducted even though the misconduct alleged, is proved. Keeping in view Section 11-A of the Act, for a limited purpose the Labour Court can consider the claim for grant of interim relief even before recording a finding with regard to the validity of the domestic enquiry. Therefore, the answer is, Section 10(4) of the Act confers wide powers upon the Labour Court and Tribunal and the said power can be exercised for grant of interim relief notwithstanding a finding recorded or not with regard to the validity of the domestic enquiry.
14. In the instant case the Tribunal has considered the rival contentions advanced on both sides. It has referred to the order passed by the Government under Section 10-B of the Amended Act (Karnataka Act 5 of 1988). The Tribunal has applied the law enunciated by the Supreme Court and granted the interim relief taking into consideration the fact that the period for which the interim relief was granted by the Government came to an end. I do not see any error or irregularity in the impugned order. The Tribunal applied the law laid down in Hotel Imperial case (supra) and also in E.I.D. Parry India Ltd. v. Industrial Tribunal, Chennai (1993-II-LLJ-1) (Mad) and Darshak Ltd. v. Industrial Tribunal (1986-I-LLJ-253) of this Court. The order need not be interfered with by this Court in exercise of its powers under Articles 226 and 227 of the Constitution of India.
15. The Writ Petition is devoid of merit and the same is dismissed.