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PETITIONER: THE MANAGEMENT OF HOTEL IMPERIAL, NEW DELHI & OTHERS

       Vs.

RESPONDENT: HOTEL WORKERS’ UNION

DATE OF JUDGMENT: 21/05/1959

BENCH: WANCHOO, K.N. BENCH: 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,

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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.

JUDGMENT:   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).

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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

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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  re- employed  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,

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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 thereunder, 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

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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. 415. 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.

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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

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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

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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 workman- there 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  pro- ceeding  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

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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  res- pondents 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

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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-empolyment, 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.        493