9911796707
TMI Blog1959 (5) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ction charge-sheets were served on 22 workmen and an enquiry was held by the management which came to the conclusion that the workmen were guilty of misconduct and therefore decided to dismiss them. Consequently, notices were served on October 4, 1955, upon these workmen informing them that the management had decided to dismiss them subject to obtaining permission under s. 33 of the Industrial Disputes Act, 1947 (hereinafter called the Act). It seems that this action of the management of Imperial Hotel led to the general strike in all the three hotels on October 5, 1955. Thereupon the three managements issued notices to the workmen on October 5, 1955, directing them to re-join their duties within three hours failing which action would be taken against them. As the workmen did not join within this time, fresh notices were issued the same day asking them to show cause why disciplinary action should not be taken against them. In the meantime they were informed that they would be under suspension. On October 7, 1955, the three managements issued notices to the workmen informing them that it had been decided to dismiss them and that they were being suspended pending the obtaining of per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, applications were filed on behalf of the workmen for interim relief, the date of the application being October 22 in case of Imperial Hotel and November 26 in case of Maiden's Hotel and Swiss Hotel. Replies to these applications was filed by the managements on December 5, 1955. On the same day, the Industrial Tribunal passed an order granting interim relief. In the case of Imperil Hotel, it ordered that 43, out of 44 workmen, who had applied for interim relief should be paid their wages plus a sum of ₹ 25 per month per head in lieu of food till final decision in the matter of the dismissal of these workmen. In the case of Maiden's Hotel, the management was prepared to take back 12 workmen and they were ordered to report for duty or before December 10, 1955. It was also ordered that these 12 workmen till they were re-employed and the remaining 13 workmen till the decision of their case would be paid by way of interim relief their wages from October 1, 1955, plus ₹ 25 per month per head in lieu of food. No order was passed with respect to the 26th workman, namely, Chiranjilal sweeper. In the case of Swiss Hotel, the management was prepared to take back six of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployers were not prepared to take work from the workmen. Even so, the right of the workmen to receive wages remained and the employer was bound to pay the wages during the period of so-called suspension. The Industrial Tribunal as well as the Appellate Tribunal took the view that in the absence of an express term in the contract of employment, wages could not be withheld, even though the employer might suspend the workman in the sense that he was not prepared to take any work from them. 10. The first question therefore that falls for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing out of industrial disputes was considered by the Federal Court in Western India Automobile Association v. The Industrial Tribunal, Bombay [[1949] F.C.R. 321] and the following observations of Mahajan, J. (as he then was) at p. 345 are apposite : Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations. In Volume 1 of 'Labour Disputes and Collective Bargaining' by 'Ludwig Teller, it is said at p. 536 that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements. In our opinion, it is a true statement about the functions of an industrial tribunal in labour disputes. 12. This Court in Rohtas Industries Ltd. v. Brijnandan Pandey (1956) IILLJ 444 SC also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in these extraordinary circumstances arising out of the effect of s. 33 to imply a term in the contract giving power to the employer to suspend the contract of employment, thus relieving himself of the obligation to pay wages and relieving the servant of the corresponding obligation to render service. We are of opinion that in the peculiar circumstances which have arisen on account of the enactment of s. 33, it is but just and fair that Industrial Tribunals should imply such a term in the contract of employment. 14. This Court had occasion to consider this matter in four cases, though the point was not specifically argued in the manner in which it has been argued before us now. But a consideration of these cases will show that, though the point was not specifically argued, the view of this Court has consistently been that in such cases a term should be implied giving power to the master to suspend the contract of employment after he has come to the conclusion on a proper enquiry that the servant should be dismissed and has to apply to the tribunal for permission under s. 33. 15. In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup (1957) ILLJ 17 SC , there was a provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd. v. Shobrati Khan C.As. 746 , decided on April 29, 1959], the view taken in the two earlier cases was reiterated with the rider that in case the employer did not hold an enquiry and suspend the workman pending permission, he would have to go on paying the wages till the proceedings under s. 33 were concluded and the tribunal granted permission to dismiss the workman. 18. In Phulbari Tea Estate v. Its Workmen (1959) IILLJ 663 SC , the rider laid down in the case Messrs. Sasa Musa Sugar Works (P) Ltd. [C.As. 746 747/57, decided on April 29, 1959], was further extended to a case of an adjudication under s. 15 of the Act and it was pointed out that if there was any defect in the enquiry by the employer he could make good that defect by producing necessary evidence before the tribunal; but in that case he will have to pay the wages up to the date of the award of the tribunal, even if the award went in his favour. 19. It is urged on behalf of the respondents that there were at any rate some Standing Orders, particularly in Lakshmi Devi Sugar Mills Ltd. (1957) ILLJ 17SC and The Management of Ranipur Colliery [C.A. 768/57 decided on April 20, 1959] giving power to suspend f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionship of master and servant by suspending his employee pending proceedings under s. 33. It follows therefore that if the tribunal grants permission, the suspended contract would come to an end and there will be no further obligation to pay any wages after the date of suspension. If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension. 20. This, however, does not conclude the matter so far as the grant of interim relief in these cases is concerned. Even though there may be an implied term giving power to the employer to suspend a workman in the circumstances mentioned above, it would not affect the power of the tribunal to grant interim relief for such a power of suspension in the employer would not, on the principles already referred to above, take away the power of the tribunal to grant interim relief if such power exists under the Act. The existence of such an implied term cannot bar the tribunal from granting interim relief if it has the power to do so under the Act. This brings us to the second point, which has been canvassed in these appeals. Re. (2). 21. After a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m relief, on the other hand, is granted under the power conferred on the tribunal under s. 10(4) with respect to matters incidental to the points of dispute for adjudication. 23. It is however urged on behalf of the appellants that even if the tribunal has power under s. 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 s. 15 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 s. 17 and thereafter the provisions of s. 17-A will apply. In reply the respondents rely on a decision of the Labour Appellate Tribunal in Allen Berry and Co. Ltd. v. Their Workmen, [1951] 1 L.L.J. 228 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 withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
