CHANDREKANTHARAJ, J. ( 1 ) THE petitioner is the Motor Industries company Limited (hereinafter referred to as 'mico' or 'management' as the case may be ). It is aggrieved by the preliminary finding recorded by the Additional labour Court, Bangalore, in Reference no. 241/1979. The said finding recorded is dated 28th day of August, 1985. ( 2 ) THE brief facts leading to the reference and the finding may be stated as follows : respondent-2 in this proceeding was at the relevant time an employee of the petitioner-Management. On 23-11-1976 he was served with a written charge alleging certain act of mis-conduct on his part viz. , that he was at about 2-15 p. m. On 20-11-76 leaving the factory after his first shift duty and when searched at the new Factory Search Gate by the Security personnel in the presence of witnesses was found unauthorisedly carrying 18 Nos. of Elements belonging to the Company, concealed on his person i. e. tied to his legs (ankles) with duster cloth. He was also informed that an inquiry would be conducted soon thereafter and pending inquiry he was kept under suspension with immediate effect. ( 3 ) ON 3-12-1976, the respondent-workman was supplied with the list of witnesses, statement of witnesses and documents. On 9-12-1976, reports of the the Officers regarding the charge have furnished to him. Examination of wit* nesses commenced on 24-12-1976 and continued till 20-1-1977. The workman participated in the enquiry. He was represented by a fehow-workman by name Gopinattr who cross-examined the witnesses. At the conclusion of the enquiry, within the time specified, submitted written arguments. On 22-7-1977 findings were recorded by the Enquiry officer. On 22-7-1977, based on the findings, orders of dismissal were passed. ( 4 ) WORKMAN raised a dispute and on 29-7-1978, a reference was made to the labour Court, Bangalore. Workman was the first party before the Labour Court and MICO was the second party. Both the parties filed their statements of case. On those pleadings, a preliminary issue was reised as to whether the domestic enquiry held by the Management-MICO was proper and legal. That issue was tried first. ( 5 ) IN support of the domestic enquiry being proper- and legal, the Management examined the Enquiry Officer and the workman examined himself. Both the parties filed their statements of case. On those pleadings, a preliminary issue was reised as to whether the domestic enquiry held by the Management-MICO was proper and legal. That issue was tried first. ( 5 ) IN support of the domestic enquiry being proper- and legal, the Management examined the Enquiry Officer and the workman examined himself. After recording the oral evidence for the parties, the labour Court came to the conclusion that the domestic enquiry held was not proper, in as much as, the petitioner was not furnished with the list of witnesses and other documents along with the charge-sheet, and that his request for assistance of a legally trained person (Lawyer not having granted while the enquiry Officer and 'the Presentation' officer at the domestic enquiry were legally trained persons resulted in denial of fair-play to the workman, and therefore, the enquiry was opposed the rules of natural justice. The labour Court also recorded a finding that admittedly no subsistence allowance having been paid to the workman between the date of suspension and the date of dismissal, the enquiry was vitiated as it put the workman at a financial dis-advantage to offer proper defence. Those findings recorded on the preliminary Issue are impugned in this petition. ( 6 ) FOR one or the other reason this petition filed in 1985 has remained without notice being ordered or rule nisi being issued. BUT, however, on 9-4-1986, this Court while directing payment of Rs. 1000/ -. to the workman as an interim relief, stayed the proceedings before the Labour Court. Again on 4-6-1986 it directed the payment of another rs. 1000/- as interim relief, Therefore, this matter has now been heard as a matter posted for preliminary hearing after notice to respondent - workman and after summoning the records of the labour Court for perusal by This Court. , mr. Kasthuri appearing for MICO has made three fold submissions. Again on 4-6-1986 it directed the payment of another rs. 1000/- as interim relief, Therefore, this matter has now been heard as a matter posted for preliminary hearing after notice to respondent - workman and after summoning the records of the labour Court for perusal by This Court. , mr. Kasthuri appearing for MICO has made three fold submissions. They are : (1) Though the list of witnesses, statements of witnesses and other documents relied upon by the Management were not furnished along with the charge-sheet, the same was furnished well before the commencement of the examination Of witnesses on 24-12-1976 and therefore,, there was no prejudice caused to the workman who had properly understood the charge against him and had filed his statement and therefore, the Labour court was in error in holding that non-supply of list of witnesses, statement of witnesses and other documents along with the charge-sheet was fatal to the legality of the domestic enquiry; (2) the Labour Court erred in coming to the conclusion that there was denial of fair-play because the workman was not permitted the services of a Lawyer at the domestic enquiry as the workmen never requested for a Lawyer orally or in writing and however was represented by a workman of his choice who had through out assisted the workman and crossexamined the witnesses of the management and further there was not even a plea in the statement filed before the, court that he had asked for services of a lawyer to assist him at the enquiry and the same having been denied vitiating the legality and fairness of the domestic enquiry, and the Labour Court ought not to have acted upon his oral testimony unsupported by prior pleading that he asked for a Lawyer and was refused ; and (3) that non-payment of subsistence allowance cannot be construed as a violation of the rules of natural justice as there was no provision in the standing orders which determined the conditions of service between the workman and the management for payment of subsistence allowance. ' ( 7 ) FOR the respondent, Mr. K. Subba rao has appeared and strongly supported the conclusions reached by the Labour court. Mr. ' ( 7 ) FOR the respondent, Mr. K. Subba rao has appeared and strongly supported the conclusions reached by the Labour court. Mr. Kasthuri has taken considerable pains to take the Court through the order passed by the Labour Court, From the undisputed facts which have been set out earlier in the course of this order in regard to the dates on which the charge- sheet, the documents etc. , were furnished to the workman. It is apparent that the Court was in error in coming to the conclusion that delay in furnishing the list of witnesses and other documents had in any way prejudiced the defence offered by the, workman at the domestic enquiry. In the absence of proof of such prejudice, the Court perversely concluded that it vitiated the enquiry. ( 8 ) SIMILARLY, the second submission made by Mr. Kasturi for and on behalf of the Managementmico must also be sustained. The petition is documented in detail. A perusal of those documents clearly establishes that at no point of time, the workman requested for the services of a Lawyer in writing. Nor is there any evidence in the findings of the enquiry Officer which indicates that there was a request orally made for the utilisation of th$ servjces of a. Lawyer to assist the workman at the domestic enquiry, on the other hand what is clear and incontravertible] is. the fact that the workman was represented by his fellow- worker who assisted him at the enquiry in cross-examining the witnesses of the management along with the workman himself. The Court has been taken through the statement of the case filed by the first party workman before the labour Court. Nowhere therein is a ground taken that, he asked for the services of a lawyer which was refused by the Enquiry Officer. It is only in his oral evidence before the Labour Court in support of the preliminary issue raised that he for the first time spoke of having requested for the services of a Lawyer. It is, therefore; contended by Mr. Kasthuri that the Court should consider the conclusions reached by the Court in that behalf to be perverse and contrary to the evidence on record and therefore, the. finding that such a request refused constituted violation of rules of natural justice to be set aside. ( 9 ) ON the other hand, Mr. It is, therefore; contended by Mr. Kasthuri that the Court should consider the conclusions reached by the Court in that behalf to be perverse and contrary to the evidence on record and therefore, the. finding that such a request refused constituted violation of rules of natural justice to be set aside. ( 9 ) ON the other hand, Mr. Subba Rao relied upon the decision of the Supreme court in the case of The Board of Trustees of The Port of Bombay v Dilipkumar raghavendranath Nadkarni and others ( AIR 1983 SC 109 ). In the said case, Supreme Court observed as follows :"in our view we have reached a stage in our onward march to fairplay in action that where in an enquiry before a domestic tribunal the delinquent officer is pined against a legally trained mind, if he seeks permission to appear: through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. " ( 10 ) ONE certainly cannot but agree with the proposition laid down by the Supreme court. But the question is whether Mr. Subba Rao may have the assistance of that ruling. To attract that ruling, two things are required to be satisfied. One is that the workman was pitted against legally trained persons at the enquiry and that he made a request for the services of a Lawyer, or a legal practitioners. If those two thinga are not present then a workman cannot take advantage of the ruling. ( 11 ) WHAT is in evidence from the records of the case is that the Enquiry Officer had previous experience of holding enquiries against other workman charged with other or similar acts of misconduct. Similariy, the Presentation Officer was drawn from the Security Department of MICO. From those two facts it is not reasonable to infer that they were legally trained persons. No other material was placed before the Labour Court to come to the conclusion that they were legally trained persons Secondly, as earlier pointed out, there was no shred of evidence before the Labour Court to drew an inference that the workman asked for the assistance of a legally trained person except in self-serving testimony before the Labour Court. No other material was placed before the Labour Court to come to the conclusion that they were legally trained persons Secondly, as earlier pointed out, there was no shred of evidence before the Labour Court to drew an inference that the workman asked for the assistance of a legally trained person except in self-serving testimony before the Labour Court. No doubt, second party MICO failed to touch upon that aspect when it cross-examined the workman before the Labour Court. But that it self should not pursued this Court to accept the testimony as sacrosanet and on the other hand it fs reasonable to draw the inference that he asked for the services of a Lawyer and the same was refused was an after thought having regard to the judicial pronouncements subsequently. This Court must presume that in such an event the worker would have refused to participate further in the enquiry, which would be the normal conduct. On the other hand, what this court sees is that the witnesses of the management at the domestic enquiry have been cross-examined by the workman himself as welt as by his Co-worker gopinath with efficiency. If that is so, the contention of Mr, Kasthuri that it is only an afterthought that he deposed before the Labour Court that he asked for a Lawyer and was refused was the outcome of the decision of the Supreme court and not a genuine statement on oath appears to be well founded. Having regard to the totality of the circumstances, I am inclined to accept the case made out for the Management and find that the second submission made on behalf of the Management also must be sustained. ( 12 ) THE final submission made/ in regard to the effect of non-payment of subsistence allowance doas require closer examination. In fact, he was not paid subsistence allowance is not in dispute. Now the question is what is the effect. Mr. Subba Rao, appearing for the 2nd respondent-workman has drawn may attention to the more recent decision of the Supreme Court in the case of fakifbhai Fulabhai Solanki v Presiding officer and am. , ( AIR 1986 SC 1168 ), where in their Lordships in a Division bench ruling had occasion to consider the effect of non-payment of subsistence allowance vis-a-vis the inability of the workman to put up a proper defence. , ( AIR 1986 SC 1168 ), where in their Lordships in a Division bench ruling had occasion to consider the effect of non-payment of subsistence allowance vis-a-vis the inability of the workman to put up a proper defence. It was contended that on account of the non-payment of subsistence allowance it was not possible for the workman to defend himself effectively before the tribunal in the proceedings relating to the permission prayed for by the management U/s 33 (3) of the Act (Industrial Disputes Act) and therefore the permission accorded by the Tribunal was vitiated. Upholding that contention and after referring to an earlier decision of the supreme Court construing Bombay Civil services Rules, the learned Judges held that it was reasonable to hold that the workman against whom the application was made should be paid some amount by way of subsistence allowance to have enabled him to maintain himself and the members of his family and also to have met the expenses of the litigation before the Tribunal and if nothing was paid during the pendency of such an application, it was to be held that the workman concerned had been denied 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. In other words the force of the contention for the workman was that mere non-payment of subsistence allowance would ipso facto act as denial of adequate opportunity and therefore in violation of rules of natural justice and such an enquiry would be hit by the vice of offending the rules of natural justice. ( 13 ) ON the one hand the view expressed by the learned Judges of the Supreme court in Fakirbhai's case supra is supported by an earlier judgement of the Supreme Court in the case of Ghanshamdas srivastava v State of Madhya Pradesh ( 1971 (3) SCC 802 ). The facts of that case may be briefly stated and are as follows : a Forest Ranger was suspended by the Government of M. P. , pending enquiry but he was not paid any subsistence allowance. He could not attend the enquiry. Therefore the enquiry was proceeded with exparte against the delinquent Government servant. He came to be dismissed. The facts of that case may be briefly stated and are as follows : a Forest Ranger was suspended by the Government of M. P. , pending enquiry but he was not paid any subsistence allowance. He could not attend the enquiry. Therefore the enquiry was proceeded with exparte against the delinquent Government servant. He came to be dismissed. He complained in a writ petition filed in the High Court of M. P. , that there was violation of rules of natural justice by not paying htm subsistence allowance which disabled him to attend the enquiry which took place 500 miles away from where he was posted. The High Court dismissed the writ petition. On appeal, the Supreme Court pointed out that non-payment of subsistence allowance which prevented the government servant from attending the enquiry at a far of place did amount to denial of rules of natural justice and the high Court was in error in overlooking that fact and remitted the mattter for consideration afresh by the High Court in the light of the observations made by the Supreme Court. ( 14 ) THEREFORE, Mr. Subba Rao contended that even according to the ruling of a constitution Bench of the Supreme Court as early as in 1971 the matter was settled that non-payment of subsistence allowance would disable the delinquent from properly defending himself. As against these, Mr. Kasturi, for mico-Management relied upon the decision of another decision of the Supreme court in the case of Vice Chancel for jammu University and Anr. v Dushinant kumar Rampal (AIR 1977 SC 1147) wherein a Division Bench of three Judges of the S. C. after referring to yet another s. C. decision in the case of V. P. Gindroniya v State of Madhya Pradesh and Am. v Dushinant kumar Rampal (AIR 1977 SC 1147) wherein a Division Bench of three Judges of the S. C. after referring to yet another s. C. decision in the case of V. P. Gindroniya v State of Madhya Pradesh and Am. ( AIR 1970 SC 1494 ) observed as follows; "11) it will, therefore, be seen that where there is power conferred on the employer either by an express terms in the contract or by the rules governing the terms and conditions of service to suspend an employee, the order of suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the employee is not bound to render service and the employer is not bound to pay In such a case the' employee would not be entitled to receive any, payment atari from the employer unless the contract of employment or the rules governing the terms and conditions of service provide for payment of some subsistence allowance". He therefore contended that the Standing orders applicable to the Management of mico did not provide for payment of subsistence allowance and therefore nonpayment of subsistence allowance would not be construed as unjustified attaching any liability to the management. ' ( 15 ) IT is not for this Court to say anything about what Has been said by the Supreme court. It must be accepted as It has been said without question. Even then what was said in Gindioniya's case and what really emerges is that where there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the matter is not bound to pay. ( 16 ) IN V. G. Gindroniya's caseit is stated thus : -"it is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his enumeration for the period of suspension if there is no statute or rule under which, it could be withheld The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the,contract is subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him. during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey. " ( 17 ) THE passage extracted above rendered by Justice Hegde, in Gindroniya's case decided by the Constitution Bench of the Supreme Court clearly shows that the later decision of the Supreme Court in Vice Chancellor, Jammu University's case did not have to depend on the specific case of suspension pending an enquiry provided for by the statute or the contract governing relationship of master and servant. This is easily understandable because in the case of Vice Chancellor v Dushlnant kumar Rampal, what was in dispute was whether the Professor who was under suspension was entitled to full salary or only the allowance permitted under the statute If the context in which the supreme Court referred to the earlier decision is borne in mind the observation made in the case Of Vice Chancellor, jammu University v Ramphal, is not of assistance to the Mico-Management. I am persuaded not only by the view taken by the two Constitution Benches of the Supreme Court specifically in the matter of enquiry and suspension. But on the facts of life as is apparent to all in a dispute between the management and the workman. Workman is the weaker party. A workman is entirely dependent on the income derived from his employer. But on the facts of life as is apparent to all in a dispute between the management and the workman. Workman is the weaker party. A workman is entirely dependent on the income derived from his employer. If he is completely cut off from receiving that money on any pretext, he has to starve. When he is starving any defence he puts forward at an enquiry can only be something which would be of lesser efficiency than it would have been if he had been paid some allowance to sustain himself and his family. This is the aspect which has been stressed in the 1986 decision of the Supreme Court in the case of Fakirbhai Fulabhat's case, if any other view is taken that favours the employer then the Courts will be encouraging the employer to resort to unfair labour practice of driving the workman to submissiveness by prolonging a domestic enquiry for long periods without paying any allowance whatsoever. This could not be the intention of any law much less judicial pronouncements of courts which are expected to hold the scales of Justice even at all times. ( 18 ) THEREFORE, I have no hesitation to come to the conclusion that non-payment of allowance to a workman during an enquiry, either subsistence allowance or his full wages should be considered ipso facto fatal to the enquiry on the principle that a starving workman cannot defend himself properly. ( 19 ) IN this regard Mr. Kasturi drew my attention to Standing Order 22 of the m ico-Management. That provides for various mis-conducts, and the manner in which those mis-conducts may be dealt with. It is stated that the Management may suspend an employee for not more than 14 days by way of punishment. It does not speak of particular suspension pending enquiry anywhere else in the standing Orders. In other words even the power to suspend is not specifically conferred on the Management by the standing Orders. In that view of the matter the decision of the Supreme court rendered in Gindroniya's case on all force applies to the facts of this case. In that view of the matter the distinction sought to'be made by relying upon the decision of the Supreme Court in the case of Andheri Marol Kuria Bus service and am. v State of Bombay (1959 vol. II LLJ 236) is of no assistance to mr. In that view of the matter the distinction sought to'be made by relying upon the decision of the Supreme Court in the case of Andheri Marol Kuria Bus service and am. v State of Bombay (1959 vol. II LLJ 236) is of no assistance to mr. Kasturi because it does not speak of anything about suspension by way of punishment but proceeds to interpret sec. 12 (6) r/w S. 22 of the I. D. Act, as to what is said to be pending in the matter of conciliation. I do not think the citation relied upon is apposite to the facts of the case to distinguish the two decisions of the Supreme Couit which is directly on the point. ( 20 ) DESPITE the perversity of reasoning in regard to some aspects of the enquiry of the Labour Court, its conclusion on the basis of non-payment of subsistence allowance in my view must be sustained and this Court must hold that the Court came to the right conclusion in holding that the domestic enquiry was vitiated as it violated the rules of natural justice pn account of non-payment of subsistence allowance. Mr. Kasturi pointed out, after a long lapse of time, some of the witnesses have dies and some have left the employment and the petitioner MICO Management is not now in a position to adduce evidence to support the charge before the Tribunal and therefore this Court must notice that remanding this case back to the Tribunal for deciding the reference would only be a futile exercise. It may be so. But this court cannot answer the reference. What has been decided is only the preliminary issue in regard to the validity of the domestic enquiry, ff the domestic enquiry is bad then the opportunity to the Management to prove before the Court is open to it. But not it is not in a position to prove cannot be a ground to change the law or interpret a particular provision or a decision in a order to favour the one who claims to be at a dis-advantage. The ample powers conferred on the Court or the Tribunal U/s. 11-A, despite the defect in the enquiry, the management mico is in a position to plead loss of confidence in a workman who was caught stealing materials belonging to its employer. The ample powers conferred on the Court or the Tribunal U/s. 11-A, despite the defect in the enquiry, the management mico is in a position to plead loss of confidence in a workman who was caught stealing materials belonging to its employer. ( 21 ) IN that position it is possible for the company to move the Court to award compensation instead of reinstatement and that avenue is open to the management. That must be persisted only before the Tribunal or the Court and not in this court under Article 226. In addition to the above all other defences available to the Management are left open but to be urged only before the Labour Court and not in this Court. Subject to the above observations this petition is dismissed. No costs, having regard to interim payments directed by this Court. --- *** --- .