Pakirbhai Fuiabhai Soinnki Vs.
Presiding Officer & ANR [1986] INSC 115 (8 May 1986)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MUKHARJI, SABYASACHI (J)
CITATION: 1986 AIR 1168 1986 SCR (2)1059 1986
SCC (3) 131 JT 1986 394 1986 SCALE (1)1191
ACT:
Industrial Disputes Act, 1947 : s.33(3) -
Subsistence allowance - Denial of - whether violates principles of natural
justice - Whether vitiates proceedings before the Tribunal.
Suspension from service - Whether puts an end
to relationship of master and servant - Right to subsistence allowance -
Whether to be read into the Standing Orders. C Administrative Law.
Labour disputes: Dismissal - Non-payment of
Subsistence allowance for the period of suspension - Whether violation of
principles of natural justice/reasonable opportunity to defend.
HEADNOTE:
Sub-section (3) of 8.33 of the Industrial
Disputes Act, 1947 provides that no employer shall, during the pendency of any
proceeding in respect of an industrial dispute, take action against any
protected workman concerned (a) by altering, to his prejudice the conditions of
service applicable to him immediately before the commencement of such
proceedings, or (b) by discharging or punishing, whether by dismissal or
otherwise, such protected workman, save with the express permission in writing
of the authority before which the proceeding is pending. F The appellant, a
protected workman, was found guilty after a disciplinary enquiry of the act of
misconduct alleged to have been committed by him. The management made an
application before the Industrial Tribunal under sub- s.(3) of 8.33 of the Act
for permission to dismiss him. He was, however, suspended from service with
effect from August 13, 1979 pending disposal of the application but without any
wages or allowances. The appellant thereupon filed a col plaint before the
Tribunal under 8. 33A of the Act alleging violation 1060 Of s.33 by the
management. In the standing orders governing the appellant there was no
provision for payment of any subsistence allowance during the pendency of an
application under 8.33(3). The Tribunal while disposing of both the
applications granted permission to the management to dismiss the appellant from
service.
In these appeals by special leave it was
contended for the appellant that the permission accorded to the management was
vitiated as the non-payment of subsistence allowance had resulted in denial of
reasonable opportunity to the appellant to defend himself effectively before
the Tribunal in the proceedings under s.33(3) of the Act.
Allowlng the appeal, the Court, ^
HELD: 1. The workman against whom an
application is made under s.33(3) of the Industrial DisputeY Act, 1947 should
be paid reasonable amount by way of subsistence allowance to enable him to
maintain himself and the members of his family, and also to meet the expenses
of litigation before the Tribunal. If no amount is paid during the pendency of
such an application, the workman concerned can be said to have been denied a
reasonable opportunity to defend himself in the proceedings before the
Tribunal. Such denial leads to violation of the principles of natural justice
and consequently vitiates the proceedings before the Tribunal and any decision
given in those proceedings against the workman concerned.[l066 B-D]
2. A workman does not cease to be a workman
until the Tribunal grants permission under 9.33(3) of the Act to dismiss him
and the management does so pursuant to such permission.[l065 B-C] An order of
suspension by itself does not put an end to the employment. The workman
continues to be an employee during the period of suspension. Though such an
order prevents the employee from rendering his services but that does not put
an end to the relationship of master and servant between the management and the
workman. [l065 C-D] Management of Hotel Imperial v. Hotel Workers"Union,[1960]
1 SCR 476 and Ranipur Colliery v. Bhusan Singh & Ors.,1959 LLJ Vol.II 231
distinguished.
1061 State of Maharashtra v. Chandrabhan
Tale, [1983] 2 SCR A 387 and Khem Chand v. Union of India, [1963] Supp. 1 SCR
229 referred to.
3. If the order passed at the conclusion of a
domestic enquiry is only one of suspension (even though the management has
decided to dismiss him) where the workman has a chance of being reinstated with
back wages on the permission being refused under 8.33(3) of the Act, it cannot
be said that the workman is not entitled to any monetary relief at all. In such
a case the right of the workman to receive 8 Q reasonable amount, which may be
fixed either by the standing orders or in the absence of any standing order by
the authority before which the application is pending by was of subsistence
allowance during the pendency of the application under 8.33(3) of the Act, with
effect from the date of suspension should be implied as a term of the contract
of employment. [1070 D-F]
4. The case falling under 8.33(1) of the Act
is not in any way different from a case falling under sub-s.(3) of 8.33 and in
both these cases previous permission of the authority concerned should be
obtained before any action is taken against the workman concerned. In a case
where the proceedings are completed and the order of dismissal is successfully
challenged on the ground of non-payment of subsistence allowance for the period
of suspension during the pendency of the application under 8.33(1) or 8.33(3) of
the Act, it shall be open to the management to ask for the permission of the
authority again under 8. 33(1) or 8.33(3) of the Act after paying or offering
to pay to the workman concerned within a reasonable time to be filed by the
authority the arrears of subsistence allowance. [1071 A-D] F In the instant
case, no material has been placed before the Court to show that the appellant
had sufficient means to defend himself before the Tribunal. He has not been
paid even the barest subsistence allowance during the pendency of the
application under 8.33(3) of the Act. Having regard to the circumstances of the
case, grant of an opportunity to the management to apply for permission again
under s. 33(3) of the Act is declined. The punishment of dismissal i posed on the
appellant appears to be excessive. The order/award of the Tribunal is set
aside. The application made by the management H 1062 under s. 33(3) of the Act
18 dismissed, and the complaint filed by the appellant under s. 33A of the Act
accepted. The management is directed to reinstate the appellant in service with
effect from the date of suspension and to pay him all the wages and allowances,
as if there was no break in the continuity of his service. [1066 D-E; 1071 D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
545 546(NL) of 1986.
From the Award dated 5.8.1985 of the
Industrial Tribunal at Gujarat in complaint No. (IT) 124 of 1979 and
application (IT) No. 88 of 1979 in reference (IT) No. 434 of 1978.
A.K. Goel for the Appellant.
P.H. Parekh and Uday Lalit for the
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. These two appeals by special leave are filed under Article
136 o' the Constitution of India against the Order/Award dated 5.8.1985 in
Application (IT) No. 88 of 1979 and Complaint (IT) No. 124 of 1979 in Reference
(IT) No. 434 of 1978 on the file of the Industrial Tribunal, Gujarat by the
appellant Fakirbhai Futabhai Solanki against the Management of the Alembic
Chemical Works Co. Ltd., Baroda.
During the pendency of a reference made under
the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') to the
Industrial Tribunal, Gujarat the management served a charge-sheet on the
appellant who was one of the workmen working in the factory belonging to the management
of the Alembic Chemical Works Co. Ltd., Baroda asking him to show cause why
disciplinary action should not be taken against him for an alleged Act of
misconduct said to have been committed by him on July 12, 1979. The act of
misconduct attributed to the appellant was that he was playing cards along with
two other workmen during the working hours of the factory. It was alleged that
the appellant had given a letter addressed to Shri R.A. Desai, Manager,
Industrial Relations, Alembic Chemical Works Co.
Ltd. admitting his guilt and tendering
apology. The disciplinary enquiry was held against all the three work- 1063 men
including the appellant. At the conclusion of the enquiry the appellant was
found guilty of the act of misconduct alleged to have been committed by him by
the Inquiry Officer Shri J.N. Patel, Director (Manufacturing) of the Alembic
Chemical Works Co. Ltd. and it was decided by the management to dismiss him but
because the appellant was a protected work- man as defined in the Explanation
to sub- section (3) of section 33 of the Act and the permission of the Tribunal
had to be obtained before dismissing him as required by sub-section (3) of
section 33 of the Act, the management made an application (IT) No. 88 of 1979
before the Tribunal for such permission. The appellant was, however, suspended
from service with effect from 13.8.1979 pending disposal of the application
before the Tribunal after he had been found guilty at the domestic enquiry but
without any wages or allowances. The appellant also filed an application before
the Tribunal under section 33A of the Act complaining violation of section 33
of the Act by the management. The complaint of the appellant was registered as
Complaint (IT) NO. 124 of 1979 in Reference (IT) No. 434 of 1978. Both, the
application under section 33(3) of the Act and the complaint under section 33 A
of the Act, were filed in the year 1979. The Tribunal was able to dispose of
them finally only on August 5, 1985. The Tribunal granted permission to the
management to dismiss the appellant and rejected the complaint filed by him.
Aggrieved by the said decision of the Tribunal the appellant has filed these
two appeals.
In the Standing Orders governing the
appellant there was no provision for payment of any subsistence allowance
(either the whole of the allowance which the workman was entitled to draw or a
part thereof) during the pendency of an application made by the management
under section 33(3) of the Act for permission to dismiss protected workman.
Admittedly the appellant was not paid any
allowance from 13.8.1979 to August 5, 1985 on which date the Tribunal accorded
its permission to the management to dismiss him from service. G In these
appeals the learned counsel for the appellant has confined his submission to
the effect of non-payment of any subsistence allowance on the decision of the
Tribunal under section 33(3) of the Act. It is urged by the learned counsel for
the appellant that since the appellant was denied R 1064 the subsistence
allowance it was not possible for him to defend himself effectively before the
Tribunal in the proceedings relating to the permission prayed for by the
management under section 33(3) of the Act and, therefore, the permission
accorded by the Tribunal was vitiated. In support of his case he has relied
upon the decision of this Court in State of Maharashtra v. Chandrabhan Tale,
[1983] 2 S.C.C. 387. In that case the respondent Chandrabhan Tale was a
Government servant. He was convicted and sentenced to imprisonment by the Trial
Court in a criminal case. He filed an appeal against his conviction and
sentence and remained on bail throughout without undergoing the sentence of
imprisonment. He was, however, kept under suspension pending trial of the
criminal case and was paid normal subsistence allowance under the main rule 21
of the Bombay Civil Services Rules, 1959 from the date of his suspension until
the date on which he was convicted and sentenced to imprisonment by the Trial
Court. But from the date of his conviction the subsistence allowance was
reduced to the nominal sum of Re. 1 per month under the second proviso to rule
15(1)(ii)(b) of the Bombay Civil Services Rules, 1959.
The order reducing his subsistence allowance
was questioned in this Court in the above case. The Court held that the second
proviso to rule 15(1)(ii)(b) of the Bombay Civil Services Rules, 1959 which
directed the reduction of the subsistence allowance to Re. 1 per month was
unreasonable and void. The Court further held that a civil servant under
suspension was entitled to the normal subsistence allowance even after his
conviction by the Trial Court pending consideration of his appeal filed against
his conviction until the appeal was disposed of finally one way or the other,
whether he was on bail or lodged in prison on conviction by the Trial Court.
Relying upon the above decision the learned counsel for the appellant contended
that there was denial of reasonable opportunity to the appellant to defend
himself before the Tribunal in the proceedings initiated by the application
made under section 33(3) of the Act.
Sub-section (3) of section 33 of the Act
provides that notwithstanding anything contained in sub-section (2) thereof no
employer shall during the pendency of any such proceeding in respect of an
industrial dispute, take any action against any protected workman concerned in
such dispute - (a) by 1065 altering, to the prejudice of such protected
workman, the conditions of service applicable to him immediately before the
commencement of such proceedings; or (b) by discharging or punishing whether by
dismissal or otherwise, such protected workman, save with the express
permission in writing of the authority before which the proceeding is pending.
It follows from the provisions of sub-section (3) of section 33 of the Act that
the workman does not cease to be a workman until the Tribunal grants permission
to dismiss the workman and the management dismisses the workman pursuant to
such permission. An order of suspension by itself does not put an end to the
employment. The workman continues to be an employee during the period of
suspension and it is for this reason ordinarily the various standing orders in
force in several factories and industrial establishments provide for payment of
subsistence allowance which is normally less than the usual salary and
allowance that are paid to the workman concerned. An order of suspension no
doubt prevents the employee from rendering his service but it does not put an
end to the relationship of master and servant between the management and the
workman.
When an applicator is made under section
33(3) of the Act the workman is entitled to defend himself before the Tribunal.
In those proceedings it is open to him to show that the domestic enquiry held
against him was not in accordance with law and principles of natural justice
and the action proposed to be taken against him by the management is unjust and
should not be permitted. Sometimes it may be necessary to either of the parties
to lead evidence even before the Tribunal. The proceedings before the Tribunal
very-often take a long time to come to an end.
In this very case the proceedings were
pending before the Tribunal for nearly six years. Most of the workmen are not
in a position to maintain themselves and the members of their families during
the pendency of such proceedings. In addition to the cost of maintenance of his
family the workman has to find money to meet the expenses that he has to incur
in connection with the proceedings pending before the Tribunal. In this case the
appellant was in receipt of salary and allowances till the end of the
disciplinary enquiry. But from 13.8.1979 he was not paid even the barest
subsistence allowance till August 5, 1985 when the Tribunal passed its
order/award on the application of the management and the complaint of the
appellant. It is true that in the instant case the Tribunal granted the
application of the management 1066 and rejected the complaint of the appellant.
It was also quite possible that the Tribunal could have rejected the application
of the management and upheld the complaint of the appellant in which case the
appellant would have been entitled to continue to be an employee under the
management of the factory and the disciplinary enquiry held against him would
have had no effect at all. Because it is difficult to anticipate the result of
the application made before the Tribunal it is reasonable to hold that the
workman against whom the application is made should be paid some amount by way
of subsistence allowance to enable him to maintain himself and the members of
his family and also to meet the expenses of the litigation before the Tribunal.
and if no amount is paid during the pendency of such an application it has to
be held that the workman concerned has been denied a 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 before the Tribunal under sub-section (3) of section 33 of the Act
and any decision given in those proceedings against the workman concerned. No
material has been placed before us in this case to show that the appellant had
sufficient means to defend himself before the Tribunal.
The learned counsel for the management
however relied upon the decision of this Court in the Management of Hotel
Imperial, New Delhi & Ors. v. Hotel Worker' Union, [1960] 1 S.C.R. 476. In
that case this Court was mainly concerned with the right of the management to
suspend a workman where the management had taken a decision to dismiss him but
could not immediately give effect to such decision owing to the restriction
imposed by section 33(1) of the Act which required the management to obtain the
permission of the Tribunal when a reference was pending adjudication before it.
In that case this Court observed at pages 485, 488-489 thus:
"We have, therefore, to see whether it
would be reasonable for an Industrial Tribunal where it is dealing with a case
to which section 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 1067 Of section 33. It is
urged on behalf of the respondents that there is nothing in the language of
section 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..................
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 for 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 H 1068 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 after holding a proper enquiry temporarily
terminate the relation ship 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 workmen would be entitled to all his wages from the date of
suspension." In the above decision it was laid down that the management
should be deemed to possess the power to suspend an employee in respect of whom
a decision had been taken to n dismiss him but an application for permission
had to be filed until the application for permission was decided. The Court in
giving the above decision also relied on an earlier decision of the Court in
Ranipur Colliery v. Rhuban Singh & Ors., [1959] L.L.J. Vol. II 231. In that
case it was pointed out that but for the ban on the employer by section 33(1)
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 but section 33 stepped in and stopped the employer from
dismissing the employees immediately on the conclusion of his enquiry and
compelled him to seek permission of the Tribunal. It was, therefore, held that
it was reasonable that the employer having done all that he could do to bring
the contract of service to an end should not be 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 section 33 of the Act was
beyond the control of the employer. Lastly, it was observed 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 without pay
while if the permission was refused he would be entitled to his back wages from
such date.
1069 But in neither of the above two
decisions the Court considered the question from the angle from which we have
approached the problem. In neither of them the Court had the occasion to
consider whether the denial of payment of subsistence allowance during the
pendency of the proceedings under section 33(3) of the Act would amount to
violation of principles of natural justice. They approached the question from
the angle of the common law right of a master to keep a workman under
suspension either during the pendency of a domestic enquiry into an act of
misconduct alleged to have been committed by a workman or during the pendency
of an application under section 33 of the Act. Those were perhaps halcyon days
when such applications were being disposed of quickly. If the Court had
realised that such applications would take nearly six years as it has happened
in this case their view would have been different. An unscrupulous management
may by all possible means delay the proceedings so that the workman may be
driven to accept its terms instead OF defending himself in the proceedings
under section 33(3) of the Act. To expect an ordinary workman to wait for such
a long time in these days is to expect something which is very unusual to
happen. Denial of payment of atleast a small amount by way of subsistence
allowance would amount to gross unfairness.
Apart from the violation of the principles of
natural justice, the very concept of the relationship of master and servant has
undergone a sea-change since the date on which Hotel Emperial's case (supra)
was decided. We have pointed out that in that case this Court recognised the power
of suspension without pay vested in the management after it had decided to
dismiss an employee where it had to make an application for permission under
section 33(1) of the Act.
me case falling under section. 33(1) of the
Act is not in any way different from a case falling under sub-section (3) of
section 33 and in both these cases previous permission of the authority
concerned should be obtained before any action is taken against the workman
concerned unlike a case falling under section 33(2)(b) of the Act where only
its approval to an action already taken is required to be sought. This Court
further observed in the above decision that the management could relieve itself
of the obligation to pay wages during the period of such suspension. Now what is
the effect of suspension? Does it put an end to the relationship of master and
servant altogether? It does 1070 not. This Court has in its subsequent decision
in Khem Chand v. Union of India, [1963] Supp. 1 S.C.R. 229, at pages 236- 237
observed thus :
"An order of suspension of a government
servant does not put an end to his service under the Government. He continues
to be a member of the service in spite of the order of suspension The real
effect of the order of suspension is that though he continued to be a member of
the Government service he was not permitted to work, and further, during the
period of his suspension he was paid only some allowance - generally called
"subsistence allowance" - which is normally less than his salary -
instead of the pay and allowances he would have been entitled to if he had not
been suspended. There is no doubt that the order of suspension affects a
government servant injuriously. There is no basis for thinking however that
because of the order of suspension he ceases to be a member of the
service." If the order passed at the conclusion of domestic enquiry is
only one of suspension (even though the management has decided to dismiss him)
where the workman has a chance of being reinstated with back wages on the
permission being refused under section 33(3) of the Act, it cannot be said that
the workman Is not entitled to any monetary relief at all. In such a case the
right of the workman to receive some reasonable amount which may be fixed
either by the Standing Orders or in the absence of any Standing Order by the
authority before which the application is pending by way of subsistence
allowance during the pendency of the application under section 33(3) of the Act
with effect from the date of suspension should be implied as a term of the
contract of employment having regard to the observations made in Khem Chand'a
case (supra). In the two earlier decisions referred to above this aspect of the
matter has not been considered.
It is likely that in some cases filed under
section 33(1) or section 33(3) of the Act (which are 'permission' clauses and
not 'approval' clauses) pending before any authority, the management may not be
paying any subsistence allowance to the workman concerned. We, therefore,
clarify that in such cases 1071 it shall be open to the management to pay
within a reasonable time to be fixed by the authority, the subsistence
allowance for the period during which the workman is kept under suspension
without wages and to continue the proceedings. Such subsistence allowance shall
be the amount fixed under the Standing Orders, If any, which the management is
liable to pay to the workman if he is kept under suspension during the pendency
of such application or in the absence of any such Standing Order by the
authority before which such application is pending. In a case where the
proceedings are completed and the order of dismissal is successfully challenged
on the ground of non-payment of subsistence allowance for the period of
suspension during the pendency of the application under section 33(1) or
section 33(3) of the Act it shall be open to the management to ask for the
permission of the authority again under section 33(1) or section 33(3) of the
Act after paying or offering to pay to the workman concerned within a reasonable
time to be fixed by the authority concerned the arrears of subsistence
allowance at the rate stated above. But in the instant case however having
regard to the circumstances of this case we do not wish to grant any such
opportunity to the management to apply for permission again under section 33(3)
of the Act. On facts we are of the view that the punishment of dismissal
imposed in this case on the appellant appears to-be excessive but our decision
however is not based on this ground.
We, therefore, set aside the order/award of
the Tribunal and dismiss the application made by the management under section
33(3) of the Act. We accept the complaint filed by the appellant under section
33A of the Act. The management is directed to reinstate the appellant in its
service and to pay him all the wages and allowances due to him from August 13,
1979 as if there was no break in the continuity of his service. The appeals are
accordingly allowed with costs.
P.S.S. Appeals allowed.
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