The Management of Hotel Imperial, New
Delhi & Ors Vs. Hotel Workers' Union [1959] INSC 96 (21 May 1959)
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.
GAJENDRAGADKAR, P.B.
CITATION: 1959 AIR 1342 1960 SCR (1) 476
ACT:
Industrial Dispute-Employer seeking
permission to dismiss workmen as result of enquiry Suspension of workmen
Pending decision of such application by Tribunal-Validity-Workmen, if entitled
to wages during Period of suspension--Grant of interim relief-Power of Supreme
court-Industrial Disputes Act, 1947 (14 Of 1947), ss. 10(4), 33.
HEADNOTE:
The appellants, who were the managements of
the three hotels, decided to dismiss some of their workmen who were found
guilty of misconduct as a result of enquiries held by them and suspended them
without pay pending the receipt of the permission of the Industrial Tribunal
under S. 33 Of the Industrial Disputes Act, 1947. The workmen applied to the
Industrial Tribunal for the grant of interim relief pending disposal of the
applications and the Tribunal granted the relief prayed for amounting to full
wages and a sum of Rs. 25 per head per month in lieu of food. The managements
appealed against such grant, but the Labour Appellate Tribunal dismissed the
appeal---. The appellants came up to this court by special leave. The two
questions for,decision in the appeals were, (1) whether any wages were at all
payable to the suspended workmen pending permission being sought under S. 33 to
dismiss them and the decision of the applications under S. 33 Of the Act, and,
(2) whether the Industrial Tribunal was competent to grant interim relief
except by an interim award that was published.
Held, that it was well settled that under the
ordinary law of master and servant the power to suspend the servant without 477
pay could not be implied as a term in an ordinary contract of service between
the master and the servant but must arise either from an express term in the
contract itself or a statutory provision governing such contract.
Hanley v. Pease & Partners, Limited, 1915
(1) K.B. 698;
Wallwork v. Fielding and Ors., 1922 (2) K.B.
66; Secretary of State for India in Council v.Surendra Nath Goswami, I.L.R.
1939 (1) Cal. 46 and Rura Ram v. Divisional Superintendent, N. W. R., I.L.R.
VII (1954) Punj. 415, referred to.
But S. 33 of the Industrial Disputes Act,
1947, which took away the right of the employer to dismiss the employee except
with the permission of the Industrial Tribunal, introduced a fundamental change
in industrial law in modification of the common law by empowering the employer
by implication to suspend the contract of employment and thus relieve himself of
the obligation to pay the wages and the employee of rendering service, where,
as a result of a proper enquiry, he came to the conclusion that an employee
should be dismissed. In the peculiar circumstances created by the enactment of
s. 33 Of the Act it was just and fair that Industrial Tribunals, which had the
power to go beyond the ordinary law of master and servant, should imply such a
term in the contract of employment. The result, therefore, would be that if the
Tribunal granted the permission, the suspended contract would come to an end
and there would be no further obligation on the part of the employer to pay any
wages after the date of suspension. If on the other hand, the permission was
refused. the workmen would be entitled to all their wages from the date of
suspension.
Western India Automobile Association v. The
Industrial Tribunal, Bombay, [1949] F.C.R. 321 and Rohtas Industries Ltd. v.
Brijnandan Pandey, [1956] S.C.R. 800, referred to.
Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram
Sarup, [1956] S.C.R. 916; The Management of Ranipur Colliery v. Dhuban Singh,
C.A. 768/57, decided on 20-4-59, M/s. Sasa Musa Sugar Works (P) Ltd. v.
Shobrati Khan, C. As. 746 and 747/57, decided on 29-4-59 and Phulbari Tea
Estate v. Its Workmen, [1960] (1) S.C.R. 32 explained and relied on.
But the employer's power of suspension could
not take away the power of the Tribunal to grant interim relief to the workmen
under the Act, the words " incidental thereto " occurring in S. 10(4)
of the Act made it clear that interim relief, where admissible, could be
granted as a matter incidental to the main question under reference, although
it might not be expressly mentioned in the terms of the reference.
It is not necessary to decide whether an
interim relief of this nature amounted to an interim award. Even assuming that
the Industrial Tribunal could not grant interim relief except by an interim
award which required publication that could not preclude 478 this Court from
granting interim relief in the same manner as the Industrial Tribunal could and
ss. 15, 17 or 17A could have no of application to such an order passed by this
Court.
Ordinarily interim relief could not be the
whole relief the workmen would get in case of final success and the appellants
should not be made to pay more than half the amount adjudged by the Industrial
Tribunal as interim relief in these cases.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 31-33 of 1958.
Appeal by special leave from the decision
dated May 28, 1956, of the Labour Appellate Tribunal, Lucknow (Delhi Branch),
in Appeals Nos. Ill. 313-315 of 1955.
M. C. Setalvad, Attorney-General for India,
Jai Gopal Sethi, J. B. Dadachanji, S. N. Andley, Rameshwar Nath and P. L. Vohra,
for the appellants (in all appeals).
G. S. Pathak, V. P. Nayar and Janardan
Sharma, for the respondents (in all appeals).
1959. May 21. The Judgment of the Court was
delivered by WANCHOO J.-These are three appeals by special leave from three
decisions of the Labour Appellate Tribunal of India.
We shall dispose of them by one judgment, as
they raise common points. The three appellants are the managements of (1)
Imperial Hotel, New Delhi, (2) Maiden's Hotel, Delhi and (3) Swiss Hotel,
Delhi, the respondents being their respective workmen represented by the Hotel
Workers' Union, Katra Shahanshahi, Chandni Chowk, Delhi.
It seems that disputes were going on between
these hotels and their workmen for some time past about the conditions of
labour of the workmen employed therein. Matters seem to have come to a head
about the end of September, 1955 and a strike of all the workmen in all the
three hotels took place on October 5,1955. Before this general strike in the
three hotels, there had been trouble in Imperial Hotel only in August, 1955. In
that connection charge-sheets were served on 22 workmen and an enquiry was held
by the management which came to the conclusion that the workmen were 479 guilty
of misconduct and therefore decided to dismiss them.
Consequently, notices were served on October
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 Ac, 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 permission under s. 33 of the Act.
As the disputes between the hotels and their
workmen were already under consideration of Government, an order of reference
was made on October 12, 1955, relating to Imperial Hotel. In this reference a
large number of matters were referred to adjudication including the case of 22
workmen whom the management of the hotel had decided to dismiss on October 4,
1955. This reference with respect to Imperial Hotel, however, did not refer to
the workmen whom the management had decided to dismiss on October 7, 1955.
Further enquiries seem to have been made by
the management in this connection and eventually it was decided to confirm the
action taken on October 7 with respect to nineteen workmen. These nineteen
workmen had in the meantime applied under s. 33-A of the Act on the ground that
they had been suspended without pay for an indefinite period and had thus been
punished in breach of s. 33. Thus the dispute so far as Imperial Hotel is
concerned was with respect to 44 workmen in all, 25 of whom were included in
the 480 reference of October 12, 1955, and the remaining 19 in had filed an
application under s. 33-A of the Act. It does not appear, however, that
Imperial Hotel made any application under s. 33 of the Act for permission -to
dismiss these 19 workmen, though an application under that section was made on
October 22, 1955, with respect to 22 workmen whose dismissal was decided upon
on October 4, 1955.
So far as Maiden's Hotel is concerned, the
case relates to 26 workmen whose dismissal was finally considered by the
management to be necessary on further enquiry after October 7, 1955. An order
of reference was made in the case of this hotel on November 23, 1955, in which
the case of 26 workmen was referred to the tribunal along with other matters..
Later, however, 12 of these workmen were
re-employed on December 10, 1955, and the real dispute therefore so far as this
hotel is concerned related to 14 workmen.
In the case of Swiss Hotel also there were
further enquiries after the notices of October 7. In the meantime, an
application was made under s. 33-A of the Act by the union to the conciliation
officer. Eventually, it appears that on November 10, 1955, reference was made
with respect to 14 workmen to the tribunal for adjudication.
We now, come to the proceedings before the
Industrial Tribunal. In all three cases, 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 Imperial Hotel, it
ordered that 43, out of 44 workmen, who had applied for interim relief should
be paid their wages plus a sum of Rs. 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 12 481 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 Rs. 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 the
workmen and they were ordered to report for duty on or before December 10,
1955.
In other respects, the order was in the same
terms as in the case of Maiden's Hotel.
Then followed three appeals by the three
hotels against the three orders granting interim relief These appeals were
dismissed by the Labour Appellate Tribunal on May 28, 1956.
Thereupon the three hotels applied for
special leave to appeal to this Court, which was granted. They also applied for
stay of the order of the Industrial Tribunal relating to payment of wages plus,
Rs. 25 per month per head in lieu of food. Stay was granted by this Court on
June 5, 1956, on condition that the employers would pay to the employees a sum
equal to half of the amount adjudged payable by the orders dated December 5,
1955, in respect of the arrears accrued due till then and continue to pay in
the same proportion in future until determination of the dispute between the
parties. It appears that after this order of June 5, 1956, even those workmen
who had not been reemployed after the order of December 5, 1955, were taken
back in service on July 15, 1956, by the three hotels.
Thus, 2 workmen in the case of Swiss Hotel,
13 workmen in the case of Maiden's Hotel and 43 workmen in the case of Imperial
Hotel were taken back in service.
The main contentions on behalf of the hotels
are two, namely, (1) are any wages payable at all to workmen who are suspended
pending permission being sought under s. 33 of the Act for their dismissal ?
and (2) is an industrial tribunal competent to grant interim relief without
making an interim award which should have been published ? 61 482 Re. (1).
The contention of the appellants under this
head is that suspension of the workmen pending permission under s. 33 of the
Act imposes an absolute bar to the payment of any wages to the suspended
workmen. On the other hand, it is contended on behalf of the respondents that
suspension of workmen involving non-payment of wages is not contemplated at all
under the ordinary law of master and servant in the absence of an express term
in the contract of employment to that effect; and as in these cases there were
admittedly no standing orders providing suspension without payment of wages, it
was not open to the appellants to withhold wages as the orders of suspension
made in these cases merely amounted to this that the employers 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.
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.
does so in the sense that he forbid,% the
employee to work, he will have to pay wages during the so-called period of
suspension. Where, however, there is power to suspend either in the contract of
employment or in 483 the statute or the rules framed there under, the
suspension has the effect of temporarily suspending the relation of master and
servant with the consequence that the servant is not bound to render service
and the master is not bound to pay. These principles of the ordinary law of
master and servant are well settled and have not been disputed before us by
either party. Reference in this connection may be made to Hanley v. Pease and
Partners, Limited(1), Wallwork v. Fielding (2), Secretary of State for India in
Council v. Surendra Nath Goswami (3) and Bura Ram v. Divisional Superintendent,
N. W. Railway (4).
The next question that falls for
consideration is whether these principles also apply to a case where the master
has decided to dismiss a servant, but cannot do so at once as he has to obtain
the permission necessary under s. 33 of the Act and therefore suspends the
workman till he gets such permission. This brings us to the sphere of
industrial law.
Ordinarily, if s. 33 of the Act did not'
intervene, the master would be entitled to exercise his power of dismissing the
servant in accordance with the law of master and servant and payment of wages
would immediately cease as the contract would come to an end. But s. 33 of the
Act has introduced a fundamental change in the law of master and servant so far
as cases which fall within the Act are concerned. It has therefore to be seen
whether Industrial Tribunals which are dealing with the matter under the Act
must follow the ordinary law of master and servant as indicated above or can
imply a term in the contract in the peculiar circumstances supervening under s.
33 of the Act to the effect that where the master has concluded his enquiry and
come to the decision that the servant should be dismissed and thereupon
suspends him pending permission under s. 33, he has the power to order such
suspension, which would result in temporarily suspending the relation of master
and servant, so that the servant is not bound to render service and the master
is not bound to pay wages. The power of Industrial Tribunal in (1) [1915] 1
K.B. 698. (3) I L.R. [1939] 1 Cal. 46.
(2) [1922] 2 K.B. 66. (4) I.L.R. VII (1954)
Punj.
484 matters of this kind arising out of
industrial disputes was considered by the Federal Court in Western India
'Automobile Association v. The Industrial Tribunal, Bombay(1) 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." This Court in Rohtas Industries Ltd. v. Brijnandan
Pandey (2 ) also recognised the correctness of the dictum laid down in the
above Federal Court decision and observed that there was a distinction between
commercial and industrial arbitration, and after referring to the same passage
in " Labour Disputes and Collective Bargaining " by Ludwig Teller
(Vol. 1, p. 536), proceeded to lay down as follows at p. 810:" A Court of law
proceeds on the footing that no power exists in the courts to make contracts
for people; and the parties must make their own contracts. The Courts reach
their limit of power when they enforce contracts which the parties have made.
An Industrial Tribunal is not so fettered and may create new obligations or
modify contracts in the interests of industrial peace, to protect legitimate
trade union activities and to prevent unfair practice or victimisation."
(1) [1949] F.C.R. 321. (2) [1956] S.C.R. 800.
485 It is clear therefore that Industrial
Tribunals have the power to go beyond the ordinary law of master and servant,
if circumstances justify it. In these cases the decision of the Labour
Appellate Tribunal has proceeded strictly on the basis of the ordinary law of
master and servant without regard to the, fundamental change introduced in that
law by the enactment of s. 33 of the Act. All the cases to which we have been
referred with respect to the ordinary law of master and servant had no occasion
to consider the impact of s. 33 of the Act on that law as to the power of the
master to suspend. We have, therefore, to see whether it would be reasonable
for an Industrial Tribunal where it is dealing with a case to which s. 33 of
the Act applies, to imply a term in the contract giving power to the master to
suspend a servant when the master has come to the conclusion after necessary
enquiry that the servant has committed misconduct and ought to be dismissed,
but cannot do so because of s. 33. It is urged on behalf of the respondents
that there is nothing in the language of s. 33 to warrant the conclusion that
when an employer has to apply under it for permission he can suspend the
workmen 'concerned. This argument, however, begs the question because if there
were any such provision in s. 33, it would be an express provision in the
statute authorising such suspension and no further question of an implied term
would arise. What we have to see is whether in the absence of an express
provision to that effect in s. 33, it will be reasonable for an Industrial
Tribunal 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.
This Court had occasion to consider this
matter in four cases, though the point was not specifically argued 486 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.
In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram
Sarup (1), there was a provision in the standing orders for suspension for four
days without pay. In actual fact, however, the employer in that case after
having come to the conclusion that the employees should be dismissed suspended
them without pay pending permission of the tribunal and it was held that such
suspension was not punishment, even though it exceeded four days. This was the
main point which was under consideration in that case; but it was further
observed that such a suspension was only an interim measure and would last till
the application for permission to punish the workman was made and the tribunal
had passed orders thereon. If the permission was accorded the workman would not
be paid during the period of suspension: but if the permission was refused, he
would have to be paid for the whole period.
In The Management of Ranipur Colliery v.
Bhuban Singh (2), it was pointed out that but for this ban the employer would
have been entitled to dismiss the employee immediately after the completion of
his enquiry on coming to the conclusion that the employee was guilty of
misconduct. The contract of service would thus be brought to an end by an
immediate dismissal after the conclusion of the enquiry and the employee would
not be entitled to any further wager,. But s. 33 steps in and stops the
employer from dismissing the employee immediately on the conclusion of his
enquiry and compels him to seek permission of the Tribunal. It was, therefore,
reasonable that the employer having done all that he could do to bring the
contract of service to an end should not be (1) [1956] S.C.R. 916. (2) C.A.
768/57, decided on April 20, 1959.
487 expected to continue paying the employee
thereafter. It was pointed out that in such a case the employer, would be
justified in suspending the employee without' pay as the time taken by the
tribunal to accord permission under s. 33 of the Act was beyond the control of
the employer. Lastly, it was pointed out that this would not cause any hardship
to the employee; for if the tribunal granted permission, the employee would not
get anything from the date of his suspension with out pay, while if the
permission was refused he would be entitled to his back wages from such date.
Lakshmi Devi Sugar Mills Ltd. (1) was
referred to and it was explained that the principle laid down in that case
would only apply where s. 33 would be applicable.
In Messrs. Sasa Musa Sugar' Works (P) Ltd. v.
Shobrati Khan (2), 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.
In Phulbari Tea Estate. v. Its Workmen (3),
the rider laid down in the case Messrs. Sasa Musa Sugar Works (P) Ltd. (2) 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.
It is urged on behalf of the respondents that
there were at any rate some Standing Orders, particularly in Lakshmi Devi Sugar
Mills Ltd. (1) and The Management of Ranipur Colliery (4) giving power to
suspend for some period of time and therefore further suspension might be
justified on the basis of those Standing Orders. In the case of Messrs.
Sasa Musa Sugar (1) [1956] S.C.R. 916. (3)
[1960] 1 S.C.R. 32.
(2) C.As. 746 & 747/57, (4) C.A. 768/57
decided on April 29, 1959, decided on April 20, 1959, 488 Works (P) Ltd. (1),
however, there were no Standing Orders till then in force. The ratio of the
decision in these cases was, however, not based on the presence or absence of
the Standing Orders; for there is very little difference in principle between
the cases where Standing Orders provided a few days suspension without pay and
the suspension was continued for a much longer period and where there were no
Standing Orders providing suspension without pay. We are of opinion that though
these cases did not expressly proceed on the basis of an implied term in the
contract of employment to suspend the employee an thus suspend the relation of
master and servant temporarily, that must be the implicit basis on which these
decisions were given. But for such a term being implied, it would not be
possible at all to lay down, as was laid down in these cases, that if a proper
enquiry bad been held and the employer had decided to dismiss the workman and
apply for permission and in consequence had suspended the workmanthere would be
no obligation on him to pay wages from the date of suspension if permission was
accorded to him under s. 33. We are, therefore, of opinion that the ordinary
law of master and servant as to suspension can be and should be held to have
been modified in view of the fundamental change introduced by s. 33 in that law
and a term should be implied by Industrial Tribunals in the contract of
employment that if the master has held a proper enquiry and come to the
conclusion that the servant should be dismissed and in consequence suspends him
pending the permission required under s. 33 he has the power to order such
suspension, thus suspending the contract of employment temporarily, so that
there is no obligation on him to pay wages and no obligation on the servant to
work. In dealing with this point the basic and decisive consideration
introduced by s. 33 must be borne in mind. The undisputed common law right of
the master to dismiss his servant for proper cause has been subjected by s. 33
to a ban; and that in fairness must mean that, pending the removal of the said
statutory ban, the master can (1) C.As. 746 & 747/57, decided on April 29,
1959.
489 after holding a proper enquiry
temporarily terminate the relationship 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.
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).
After a dispute is referred to the tribunal
under s. 10 of the Act, it is enjoined on it by s. 15 to bold its proceeding
expeditiously and on the conclusion thereof submit its award to the appropriate
government. An " award " is defined in s. 2(b) of the Act as meaning
" an interim or final determination by an Industrial Tribunal of any
industrial dispute or of any question relating thereto." Where an order
referring an industrial dispute has been made specifying the points of dispute
for adjudication, the tribunal has to confine its adjudication to those points
and matters incidental thereto; (s. 10(4)). It is urged on behalf of the
appellants that the tribunal in these cases had to confine itself to
adjudicating on the points referred and that as the question of interim relief
was not referred to it, it could not adjudicate upon that. We are of opinion 62
490 that there is no force in this argument, in view of the words "
incidental thereto " appearing in s. 10(4). There can be no doubt that if,
for example, question of reinstatement and/or compensation is referred to a
tribunal for adjudication, the question of granting interim relief till the
decision of the tribunal with respect to the same matter would be a matter
incidental thereto under s. 10(4) and need not be specifically referred in
terms to the tribunal. Thus interim relief where it is admissible can be
granted as a matter incidental to the main question referred to the tribunal
without being itself referred in express terms.
The next question is as to how the tribunal
should proceed in the matter if it decides to grant interim relief. The
definition of the word "award" shows that it can be either an interim
or final determination either of the whole of the dispute referred to the
tribunal or of any question relating thereto. Thus it is open to the tribunal
to give an award about the entire dispute at the end of all proceedings.
This will be final determination of the
industrial dispute referred to it. It is also open to the tribunal to make an
award about some of the matters referred to it whilst some others still remain
to be decided. This will be an interim determination of any question relating
thereto. In either case it will have to be published as required by s. 17.
Such awards are however not in the nature of
interim relief for they decide the industrial dispute or some question relating
thereto. Interim 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.
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 491 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 Work. men(1), 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 s. 2(b) and must
therefore be published under s. 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 s. 17 to become enforceable under s. 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 ss.
159 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 (No. 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. Ordinarily, interim relief should not be the whole
relief that the workmen would get if they succeeded finally. In fairness to the
Industrial Tribunal and the Appellate Tribunal we must say that they granted
the entire wages plus Rs. 25 per mensem per head in lieu of food on the view
that no suspension was possible at all in those cases and therefore the
contract of service continued and full wages must be paid. Their orders might
have been different (1) [1951] 1 L.L.J. 228.
492 if they had held otherwise. It seems to
us just and fair in the circumstances therefore to order that the appellants
shall pay to their respective workmen concerned half the amount adjudged
payable by the order dated December 5, 1955, with respect to the entire period,
as the case may be, from October 1, 1955 to December 10, 1955 or July 15, 1956,
by which date, as we have already pointed out, practically all the workmen were
taken back in service. We, therefore, order accordingly.
Lastly, it is urged on behalf of the
respondents that as all the workmen concerned were taken back in service they
should be paid full wages for the interim period as their re-employment means
that the decision to dismiss them and the consequent order of suspension were
waived. This is a matter on which we do not propose to express any opinion.
The proceedings are so far at the initial
stage and the effect of re-employment, in the absence of full facts, on the
question of waiver cannot be determined at this stage.
It is enough to point out that the order we
have passed above is an interim relief and it will be liable to be modified one
way or the other, when the Industrial Tribunal proceeds to make the final
determination of the questions referred to it in the light of the observations
we have made on the matter of suspension. The appeals are partly allowed and
the order dated December, 5, 1955, granting interim relief is modified in the
manner indicated above. In the circumstances, we order the parties to bear
their own costs of this Court. As more than three years have gone by in these
preliminaries since the references were made, we trust that the Industrial
Tribunal will now dispose of the matter as expeditiously as possible.
Appeals allowed in part.
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