S. N. KUMAR, J. ( 1 ) THE petitioner challenged in this writ petition the order of the Industrial Tribunal, bangalore, dated March 15, 2001 passed in i. D. No. 24/1999 as per Annexure-F where under the Tribunal has held that the domestic inquiry conducted against the respondent is not fair and proper solely on the ground that the management has not paid subsistence allowances for the period from January 7, 1999 to April 14, 1999. ( 2 ) THE facts which are necessary for the disposal of this writ petition are as under: the respondent herein who was an employee of the petitioner was suspended in respect of certain charges for striking work and commission of act subversive to the discipline. He was served with charge sheet on November 30, 1998 accusing him of going on illegal strike without giving valid notice from November 23, 1998. As the respondent/workman was on strike, it was made clear in the said charge sheet/suspension order that he was placed under suspension and since he continues to be outside, the suspension will take effect on his resumption of duty. In pursuance of the said charge sheet issued, the respondent filed his counter and appeared before the inquiry officer on January 7, 1999 to April 2, 1999. In fact there were nine sittings during the said period. It is the case of the management that though he appeared for the inquiry, he did not report for duty. On April 2, 1999 after the day's proceedings were over and inquiry was being adjourned to April 13, 1999 to give workmen one more opportunity to examine the witnesses if he so desires, it is alleged that the workmen suddenly pulled out a chopper (Machu) from the bag he carried and attacked one Mr. Shivakumar, the Deputy Manager/the representative of the management. Thereafter, the management has issued one more charge sheet on May 3, 1999 calling upon the workmen/ respondent herein to show cause as to why disciplinary action should not be taken against him for his misconduct. Further, it was stated in the charge sheet/show cause notice that he is suspended from service with immediate effect. With reference to the aforesaid charge, a separate inquiry was initiated. The workmen fully participated in the said inquiry which was started on August 23, 1999 and concluded on January 10, 2000. Further, it was stated in the charge sheet/show cause notice that he is suspended from service with immediate effect. With reference to the aforesaid charge, a separate inquiry was initiated. The workmen fully participated in the said inquiry which was started on August 23, 1999 and concluded on January 10, 2000. The inquiry officer in its findings dated February 7, 2000 has held that the workman is guilty of misconduct. An opportunity is given to the workman to have his say by forwarding the said findings to him. The respondent herein submitted his representation. After examining the matter fully, the Disciplinary Authority dismissed the workman from service with effect from March 31, 2000. However, since the dispute in I. D. No. 24/1999 was pending before the Industrial Tribunal, Bangalore, an application under Section 33 (2) (b) of the industrial Disputes Act, 1947 was filed after paying one month wages to the respondent. It is the further contention of the management that they did not take any further action in pursuance of the charge sheet dated November 30, 1998 i. e. , regarding strike and commission of act subversive to the discipline and the proceedings was dropped. The application filed by the management before the Tribunal was opposed by the workman by filing a detailed statement of objection. His main objection was that from November 23, 1998 to March 31, 2000 he was not paid full wages as per the certified standing orders. He denied the charge of attacking Sri. Shivakumar as alleged by the management. Further he has stated as on that date he was already kept under suspension as per charge sheet dated November 30, 1998 and as such the question of keeping him under suspension from May 3, 1999 does not arise and his first suspension itself continued up to march 31, 2000. Therefore, he contended that the rejection of the application filed by the management by the Tribunal is correct. Without prejudice to the aforesaid contentions, he also challenged the finding of the domestic inquiry on merits. He contended that no proper subsistence allowance is paid to him in accordance with the standing orders. He also contended that several irregularities have been committed in holding inquiry. Without prejudice to the aforesaid contentions, he also challenged the finding of the domestic inquiry on merits. He contended that no proper subsistence allowance is paid to him in accordance with the standing orders. He also contended that several irregularities have been committed in holding inquiry. ( 3 ) THE management has filed its rejoinder to the said objection statement contending that the respondent herein went on strike with effect from November 23, 1998 till April 14, 1999 and during the said strike period no worker is entitled to any wages and the question of paying the respondent wages does not arise at all. It is also stated that in the charge sheet itself it has been specifically made clear that as the workman was on strike, the suspension will take effect only on assumption of duty. The respondent was paid subsistence allowance from April 14, 1999 till the date of dismissal. Even though, the workman was not present from April 14, 1999 for work, he was also paid subsistence allowance from April 14, 1999 till the date of dismissal. The charge sheet dated november 30, 1998 clearly stated that the suspension will take effect from the date of assuming duty. Therefore, suspension mentioned in charge sheet dated November 30, 1998 was conditional one and since such conditions were not fulfilled till April 14, 1999, the suspension did not take effect till April 14, 1999. They have also met other allegations contained in the statement of objection in detail which are not necessary for the disposal of this petition. ( 4 ) ON the basis of the aforesaid pleadings, parties have adduced evidence. The workman/respondent herein examined himself as OW-1 and got marked Ex, O. 1 to O. 9. In rebuttal, the management examined the enquiry officer as AW-1 and got marked the documents as per Ex. A-1 to A-6. ( 5 ) THE learned judge, after elaborately discussing the evidence adduced by the parties and documents relied on by them has held as under:"on perusal of the inquiry proceedings filed as per Exhibit A-5 it is clear that the inquiry officer has afforded all reasonable opportunities to the opposite party workman to defend himself in the inquiry by giving copy of the list of the documents, list of witnesses, and copy of day to day proceedings. It is also clear from the enquiry proceedings and so also the evidence that the enquiry officer has permitted the opposite party workman to defend himself with the help of co-employees witnesses and also permitted him to cross examine the management witnesses and also to give his evidence. "after recording the aforesaid clear finding, the court below proceeded to consider the main attack of the opposite party to the inquiry namely, that he was not paid subsistence allowance correctly and theretore, the inquiry is bad. Accepting the contention of the workman only on the ground of non-payment of subsistence allowance during the period from January 7, 1999 to April 14, 1999, the domestic inquiry conducted against the respondent/workman was held to be not fair and proper and accordingly he has set aside the same. It is against the said order, the present writ petition is filed. ( 6 ) SRI. Kasturi, learned senior counsel appearing for the petitioner/management contended that between the period from january 7, 1999 to April 14, 1999 the petitioner did not keep the respondent under suspension and when he was not kept under suspension during that period, the question of non payment of subsistence allowance during that period would not arise, therefore, he submitted that the order passed by the Tribunal is capricious, illegal and it is liable to be rejected. He further contended that admittedly from November 23, 1998, the respondent was on strike and he was absent from his duty and on that ground alone, the Disciplinary Proceedings were initiated against the respondent and inquiry was being held. In the charge sheet/suspension order issued to the respondent on November 30, 1998, it is clearly mentioned that the workman has been placed under suspension and since he continues to be outside, the suspension shall take effect on his assumption of his duty. The respondent herein reported to duty only on april 14, 1999 and therefore, when the workman has withdrawn from work or service, the question of management preventing the workmen from attending their work by way of an order of suspension does not arise. This aspect has been completely missed by the learned judge and therefore, he submits that the impugned order is liable to be set aside. ( 7 ) PER contra, Sri. This aspect has been completely missed by the learned judge and therefore, he submits that the impugned order is liable to be set aside. ( 7 ) PER contra, Sri. T. S. Anantharam, learned counsel appearing for the respondent/workman contends that though the workman went on strike on November 23, 1998, he reported to his duty on January 7, 1999 and admittedly from January 7, 1999 to April 14, 1999 no subsistence allowance is paid and therefore, in view of the law laid down by the supreme Court in the case of Jagadamba prasad Shukla v. State of U. P. , AIR 2000 SC 2806 : 2000 (7) SCC 90 , the domestic inquiry conducted against the respondent and consequential order of dismissal from his service are liable to be quashed and the Tribunal has rightly set aside the domestic inquiry held by the petitioner. Secondly, he submitted that the certified standing orders do not provide for non-payment of subsistence allowance during the period of strike and therefore, the management was not justified in refusing to pay the subsistence allowance during the period from January 7, 1999 April 14, 1999. Lastly, he submitted that it is well settled law that on a finding recorded by the Labour Court on a preliminary issue this court should not entertain any writ petition and the remedy open to the management is to challenge the said order at the end of the entire inquiry in the event of the ultimate order goes against them on merits. ( 8 ) IN view of the rival contentions, the point that arises for my consideration is:"whether the Industrial Tribunal was justified in setting aside the domestic inquiry conducted against the respondent/workman as not fair and proper only on the ground of non-payment of subsistence allowances for the period from January 7, 1999 to April 14, 1999. " ( 9 ) POINT No. 1 : In order to answer the point it is necessary to have a look at the undisputed facts in this case. It is not in dispute that the respondent was a workman of the petitioner. The workmen of the petitioner went on strike from November 23, 1998. It is not in dispute that the respondent also went on strike from November 23, 1998. It is not in dispute that the respondent was a workman of the petitioner. The workmen of the petitioner went on strike from November 23, 1998. It is not in dispute that the respondent also went on strike from November 23, 1998. The management initiated disciplinary proceedings against the respondent for striking work and on the charge of commission of acts subversive to discipline. Charge sheet was issued to the respondent on november 30, 1998. In the charge sheet it was made clear that the respondent was placed under suspension and since he continued to be outside, the suspension will take effect on resumption of duty. It is thereafter enquiry before the Enquiring Officer commenced and it is not in dispute that the workman attended me enquiry on January 7, 19999, January 14, 1999, January 20, 1999, February 1, 1999, february 22, 1999, March 20, 1999, March 6, 1999, March 2, 1999 and April 2, 1999. On april 2, 1999 the case of the management is that the workman after enquiry for the day was over suddenly pulled out a chopper from the bag he was carrying and attacked Shivakumar, the management Executive. Therefore a second charge sheet was issued regarding the incident which took place on April 2, 1999 and in the second charge sheet also it is made clear that he has been kept under suspension with immediate effect. The finding recorded by the industrial Tribunal makes it abundantly clear that the Enquiring Officer who was holding second enquiry has afforded all reasonable opportunity to the opposite party workman to defend himself in the enquiry by giving copy of the list of documents, list of witnesses and copy of day-to-day proceedings. It is also clear from the enquiry proceedings and so also the evidence that the Enquiring Officer has permitted the opposite party/workman to defend himself with the help of co-employee and also permitted him to cross-examine the management witness and also to adduce evidence. It is admitted in the evidence that he has been paid subsistence allowance from April 14, 1999 i. e. , even prior to service of charge sheet in the second case till the date of dismissal. They contend that the said subsistence allowance paid do not fully comply with the terms of the standing order. It is admitted in the evidence that he has been paid subsistence allowance from April 14, 1999 i. e. , even prior to service of charge sheet in the second case till the date of dismissal. They contend that the said subsistence allowance paid do not fully comply with the terms of the standing order. ( 10 ) IN the light of the aforesaid undisputed facts and proved facts on record it is to be found out whether the contention of the workman that he resumed work on January 7, 1999 is established on evidence. The management contends that strike was called off on April 14, 1999 and whether the respondent reported to duty or not he is deemed to have reported to duty on that day. It is on that basis the management has paid subsistence allowance from April 14, 1999 till the date of dismissal. When the workman has admitted that he went on strike on November 23, 1998 and when he sets up a case that he reported to duty on january 7, 1999 the burden of proving that he reported to duty on January 7, 1999 is squarely on him when the management specifically denies the said case putforth by the workman. In order to substantiate that contention the workman relies on a letter written by him to the management which is found alongwith the enquiry report. In the said letter with reference to payment of salary treating his absence as leave from January 7, 1999 is concerned, he states that he reported to duty on January 7, 1999 as per notice issued to him and further more he also attended enquiry on the dates mentioned in the said letter and his complaint is the wages for the said dates had not been paid even though he was on duty on those dates. Therefore, it is clear from the said letter what he contends is he should be paid the wages for attending the enquiry on nine dates mentioned in the said letter treating him as if he was on duty. Therefore, it is not his case that he was on duty continuously from January 7, 1999 to april 14, 1999. Therefore, it is clear from the said letter what he contends is he should be paid the wages for attending the enquiry on nine dates mentioned in the said letter treating him as if he was on duty. Therefore, it is not his case that he was on duty continuously from January 7, 1999 to april 14, 1999. In reply to that, the management wrote by saying that, "you are well aware that you were on strike as indicated in the above letter, as such the question of payment of salary for those dates does not arise", when the management did not accept the contention of the workman that he was on duty on those nine dates. In other words when he did not report on those dates, the entire burden of showing that the workman reported to duty on January 7, 1999 is prejudiced. Except these two letters and the oral testimony of the workman there is absolutely no material placed on record to substantiate his contention that he reported to duty on January 7, 1999. Therefore, in the absence of any acceptable evidence on record to demonstrate that he reported to duty on January 7, 1999, the case of the management which has been consistent throughout that when strike was called off by the union whether the respondent reported for duty or not or he is deemed to be on duty, therefore the order of suspension has come into effect from that date and has been paid subsistence allowance has to be accepted. As already referred to by me the letter on which the workman relies itself gives an indication that all that the workman is saying is on the date he attended the first enquiry proceedings he is deemed to be on duty and he should be paid wages ana not that he reported to duty on january 7, 1999 but he is deemed to be on duty till April 14, 1999. The Tribunal was in total error in holding that he reported to duty on january 7, 1999 in the light of the aforesaid unimpeachable evidence on record. As such the order passed by the Tribunal cannot be sustained. ( 11 ) ONE other reason for setting aside the order of Labour Court is this. The first enquiry was initiated on November 13, 1999 and it went on upto April 2, 1999. As such the order passed by the Tribunal cannot be sustained. ( 11 ) ONE other reason for setting aside the order of Labour Court is this. The first enquiry was initiated on November 13, 1999 and it went on upto April 2, 1999. Thereafter it was abandoned and no punishment is inflicted on the basis of the said enquiry. For the incident which took place on April 2, 1999, second charge sheet was issued on May 3, 1999, on the basis of the said enquiry the respondent was dismissed from service on March 31, 2000. It is this dismissal order which is the subject matter of proceedings. Therefore, non-payment of subsistence allowance for the period from january 7, 1999 to April 14, 1999, the period anterior to the commencement of the second enquiry is of no relevance, in deciding the validity of the second domestic enquiry as admittedly the respondent was paid subsistence allowance from April 14, 1999 to March 31, 2000, during the period of second enquiry namely from May 3, 1999 to March 31, 2000. ( 12 ) NOW coming to the law on the point, the Court below as well as the learned counsel for the respondent relied on the judgment of the supreme Court in the case of Jagadamba prasad Shukla v. State of U. P. and others (supra) to support the order of the Tribunal where the Supreme Court has held as under in 2000-II-LLJ-1513 at p. 1515:"the payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension, i. e. , from suspension till removal. One of the reasons for not appearing in enquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the otner was me illness of the appellant. The appellant in reply to show-cause notice stated that even if he was to appear in enquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. The appellant in reply to show-cause notice stated that even if he was to appear in enquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus the departmental enquiry and the consequent order of removal from service are quashed. " ( 13 ) IN the aforesaid judgment of the supreme Court though the Sub-inspector who was suspended pending enquiry was a resident of Kanpur he was transferred to Gorakhpur after suspension. An enquiry was conducted at gorakhpur. He was not well. He was not paid the subsistence allowance right from the date of suspension till the date of removal. On account of non-payment of subsistence allowance he could not take treatment to his illness, he could not travel from Kanpur to gorakhpur, he could not participate in the proceedings and therefore an ex-parte order came to be passed. It is in that context, the supreme Court held the reason for non-appearing in the enquiry is on account of non-payment of subsistence allowance and illness, and the employee did not have reasonable opportunity to defend himself and therefore it is a clear case of breach of principles of natural justice. ( 14 ) IN the instant case the respondent was stationed at Bangalore, enquiry was conducted at Bangalore. It is not his case he was suffering from any illness. It is not his case that for non-payment of subsistence allowance he was prevented from defending the case or engaging a co-worker or in any way prevented from participating in the proceedings. As observed by the Tribunal he did participate in the proceedings, he had full opportunity, he had the assistance of co-worker and therefore none of the facts which exist in the aforesaid judgment of the Supreme Court do exist in this case for applying the law declared by the supreme Court. If on facts, it is to be held that from January 7, 1999 to April 14, 1999, he was not under suspension as he was on strike the question of paying subsistence allowance during the said period as per standing order would not arise. If on facts, it is to be held that from January 7, 1999 to April 14, 1999, he was not under suspension as he was on strike the question of paying subsistence allowance during the said period as per standing order would not arise. Admittedly, the second enquiry which is based for dismissing him from service commenced from May 3, 1999 whereas he has been paid subsistence allowance from april 14, 1999. Therefore, non-payment of subsistence allowance to the respondent from january 7, 1999 to April 14, 1999 would in no way affect the respondent in defending himself in departmental proceedings. ( 15 ) IF we have to go by the contention taken in the objection statement, his specific case was that he was not paid subsistence allowance in accordance with the standing orders and it is not the case of non-payment of subsistence allowance. A Division Bench of this Court in the case of Syndicate Bank v. G. Venkataramani 2001-II-LLJ-483 has held as under at p. 485:". . . . . Non-observance of principles of natural justice in conducting a departmental proceedings is independent of the issue regarding less payment of subsistence allowance. In the present case those facts could have been mixed up so as to interfere with the duly held disciplinary proceedings. We are of the considered opinion that in the present case there was no violation of principles of natural justice since the respondent had the fullest opportunity of defending himself in accordance with law. "therefore, though the petitioner did not accept the contention of the workman that he was not paid subsistence allowance in accordance with the certified standing orders. The only grievance made out is after expiry of 90 days instead of paying 75% subsistence allowance he was paid 50% allowance. Therefore if at all it is a case of payment of less subsistence allowance. As held by the Division Bench of this Court payment of less subsistence allowance would not render the disciplinary proceedings void on the ground of non-observance of the principles of natural justice. ( 16 ) IN so far as the contention of the respondent that this Court should not entertain this writ petition as the finding recorded by the industrial Tribunal is on a preliminary issue as held by the Supreme Court in the case of D. P. Maheshwari v. Delhi Admn. ( 16 ) IN so far as the contention of the respondent that this Court should not entertain this writ petition as the finding recorded by the industrial Tribunal is on a preliminary issue as held by the Supreme Court in the case of D. P. Maheshwari v. Delhi Admn. and Others AIR 1964 SC 153 : 1983 (4) SCC 293 is concerned, all that the supreme Court has said is neither jurisdiction of the High Court under Article 226 of the constitution nor the jurisdiction of the Supreme court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues avoiding decision on issues more vital to them. In this case the Court below after recording a finding that the respondent had full liberty to defend in the domestic enquiry has wrongly applied the law declared by the Supreme Court and has set aside the domestic enquiry. The said finding recorded by the Tribunal is ex facie illegal and opposed to the admitted facts of this case. Unfortunately, in this case after recording a finding regarding domestic enquiry on merits in favour of the management, it has set aside the entire enquiry on this short question by mis-application of the law of the Supreme court. Under those circumstances, I am of the opinion a case for interference under Article 226 of the Constitution has been made out. Hence I pass the following order. ( 17 ) THE impugned order passed by the tribunal is quashed. The matter is remitted back to the Tribunal for disposal in accordance with law. --- *** --- .