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PETITIONER: THE MANAGEMENT OF RANIPUR COLLIERY

       Vs.

RESPONDENT: BHUBAN SINGH AND OTHERS

DATE OF JUDGMENT: 21/04/1959

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P. GAJENDRAGADKAR, P.B.

CITATION:  1959 AIR  833            1959 SCR  Supl. (2) 719  CITATOR INFO :  R          1959 SC 923  (9)  R          1959 SC1342  (16,19)  RF         1963 SC1756  (8)  RF         1986 SC1168  (7)

ACT: Industrial  Dispute-Standing  Orders  -  Interpretation  of- Enquiry-Whether   includes  Proceedings  before   Industrial Tribunal -Industrial Disputes Act, 1947 (14 Of 1947), ss. 3, 33A.

HEADNOTE: The Company after regular enquiry and pending permission  of the  Industrial  Tribunal  under s.  33  of  the  Industrial Disputes  Act,  1947, suspended some  workmen  without  pay, whereupon the workmen filed applications under s. 33A of the Act before the ’Industrial Tribunal on the ground that their suspension  without  pay  beyond ten days  was  against  the provisions of the Standing Orders governing their conditions of service to the effect that an employee might be suspended provided  the suspension without pay, whether as  punishment or  pending enquiry, did not exceed ten days.  The  Tribunal dismissed  the  workmen’s  applications  under  S.  33A  and granted  permission  to the Company to dismiss  the  workmen concerned.   The workmen appealed.  The  Appellate  Tribunal upheld the order granting permission to dismiss the  workmen but came to the conclusion that the words " pending  enquiry "  in  cl. 27 Of the Standing  Orders  included  proceedings before the Industrial Tribunal and that there was breach  of the Standing Orders. Held,  that  the  employer could apply under s.  33  Of  the Industrial Disputes Act, 1947, for permission to dismiss  an employee  when  after a regular enquiry he had come  to  the finding  that the case against the employee was  proved  and that the punishment of dismissal was the proper  punishment. The Industrial Tribunal had not to enquire into the  conduct of the employee or the merits of dismissal but see whether a Prima  facie case had been made out and a fair enquiry  made by the employer.  The time taken before the Tribunal in such proceedings was beyond the control of the employer. Standing Orders were concerned with employers and  employees

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and  not with Tribunals.  In the instant case, the  words  " pending enquiry " in cl. 27 of the Standing Orders, referred only  to  the enquiry by the employer and not  to  the  pro- ceedings before the Tribunal. The  principle laid down in Lakshmi Devi Sugar  Mill’s  case that  workmen  would  not be entitled to  payment  of  wages during  the whole period of suspension if the Tribunal  gave permission to, dismiss them, would apply only to cases where there  was a ban under s. 33 and the employer had  to  apply under that section for lifting the ban after completing  the enquiry. 720 Rampalat  Chamay v. The Assam Oil Co. Ltd., (195  4)  L.A.C. 78, dissented from. The  Automobile  Products  of India Ltd.  v.  Rukamji  Bala, [1955] 1 S.C.R. 124I, referred to. Lakshmi  Devi  SugaR Mills Ltd. v. Pt.   Ram  Sarup,  [1956] S.C.R. 916, followed and explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 768 of 1957. Appeal  by special leave from the judgment and  order  dated September  21,  1956, of the Labour  Appellate  Tribunal  of India at Calcutta in Appeal No. Cal. 101 of 1956. M.   C.   Setalvad,  Attorney-General  for  India,   S.   N. Mukherjee and B. N. Ghosh, for the appellants. Dipak Dutta Choudhri, for the respondents. 1959.  April 21.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the decision  of  the Labour Appellate Tribunal of India  in  an industrial  matter.  The appellant is the  Ranipur  Colliery -(hereinafter  called  the  company) which  carries  on  the business  of coal mining in Dishergarh (West  Bengal).   The respondents  are six workmen employed by the company.   They along with another person were working as tub-checkers.   It was  found- that they were making false reports both  as  to quality  and  quantity of coal, which it was their  duty  to check,  with  the  result that the  company  suffered  loss. Consequently, the company served charge-sheetS on them and a regular  enquiry was held on April 13, 1955, at  which  they were  present  and  bad  full  opportunity  to  give   their explanation,  cross-examine witnesses and generally  contest the  charge.  The company came to the conclusion  after  the enquiry that the workmen were guilty of the misconduct  with which  they were charged and should be dismissed.  As,  how- ’ever,  an  industrial dispute between the company  and  its workmen  was  pending before the  Industrial  Tribunal,  the company  applied under s. 33 of the Industrial Disputes  Act (hereinafter  called the Act) for permission to dismiss  the workmen.  It appears that five out 721 of  seven workmen filed two applications under s. 33-  A  of the  Act before the Industrial Tribunal on the  ground  that they  had been suspended without pay from May 4,  1955,  and that  this was against the provision of the Standing  Orders governing   their  conditions  of  service.    These   three applications were heard together by the Industrial Tribunal, which  came to the conclusion that the permission should  be granted  to  the company to dismiss the  seven  workmen  and accordingly  did  so.  Having granted this  permission,  the Industrial   Tribunal,   in   consequence,   dismissed   the applications under s. 33-A. Six  of  the workmen then went up in appeal  to  the  Labour

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Appellate  Tribunal  against  the  grant  of  permission  to dismiss and the dismissal of their applications under s. 33- A.  Their case was (i) that no permission to dismiss  should have  been  granted,  and (ii) that five of  them  had  been placed  under  suspension without wages  for  an  indefinite period in violation of the express provision of the Standing Orders  and  therefore they were entitled  to  relief.   The Appellate Tribunal dismissed the appeal with respect to  the grant  of permission to dismiss.  It, however, came  to  the conclusion that there was a breach of cl. 27 of the Standing Orders,  and  therefore allowed the appeal of  five  workmen (other  than Akhey Roy), who had applied under s.  33-A  and ordered  that they should be paid their wages from the  date of  suspension  without pay to the date  of  the  Industrial Tribunal’s order, less ten days as provided in cl. 27 of the Standing  Orders.   Thereupon the company  applied  to  this Court  for special leave which was granted; and that is  how the matter has come before us. It appears that Akhey Roy has been unnecessarily joined as a respondent, for the order of the Appellate Tribunal does not show  that any relief was granted to him and his  appeal  to the Appellate Tribunal must therefore be taken to have  been dismissed. Thus the only point that falls for consideration is  whether suspension without pay pending permission of the  Industrial Tribunal under s. 33 of the Act is a 91 722 breach  of cl. 27 of the Standing Orders.  The  brief  facts necessary  in this connection are these: Seven workmen  were served  with  charge-sheets on April 1, 1955.   After  their replies had been received, an enquiry was held on April  13, 1955,  and  they were found guilty, of misconduct.   It  was decided   thereupon  to  apply  for  permission  for   their dismissal under s. 33 of the Act.  The application was  made to  the Tribunal on April 29, 1955.  Thereafter the  workmen were suspended on May 4, 1955, without pay pending orders of the Industrial Tribunal. Clause 27 of the Standing Orders, on which reliance has been placed, reads thus- "  An employee may be suspended, fined or dismissed  without notice or any compensation in lieu of notice if he is  found to be guilty of misconduct, provided suspension without pay, whether as a punishment or pending enquiry, shall not exceed ten days The contention on behalf of the workmen is that the words  " pending enquiry " appearing in cl. 27 include enquiry  under s.  33  of  the Act before  the  Industrial  Tribunal  also. Therefore, if the Industrial Tribunal takes longer than  ten days  to decide the application under s. 33 and the  workman is suspended without pay, there would be a breach of cl.  27 of  the  Standing Orders after ten days are  over.   On  the other  hand, it is contended on behalf of the  company  that the  words " pending enquiry " in el. 27 refer only  to  the enquiry  by the employer and not to the  proceedings  before the Industrial Tribunal under s. 33.  The Appellate Tribunal has come to the conclusion that the words " pending  enquiry "  in  cl.  27 include  proceedings  before  the  Industrial Tribunal under s. 33 and therefore if suspension without pay is  for  more than ten days, even though it may  be  pending orders  of the Industrial Tribunal under s. 33, there  is  a breach of el. 27 of the Standing Orders.  In this connection it has relied on an earlier decision of its own in  Rampalat Chamar v. The Assam Oil Co., Ltd. (1), where the words  were

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"  pending full enquiry ". It was of opinion that there  was no difference between " pending (1)  [1954] L.A.C. 78. 723 enquiry  "  and  "  pending full  enquiry  "  and  that  the proceedings before the Industrial Tribunal under s. 33 are also included in these words. We  agree that there is no real difference  between  pending enquiry " which appears in cl. 27 of the Standing Orders and "  pending  full enquiry " which appeared  in  the  Standing Orders  in  The Assam Oil Company case (1).  But we  are  of opinion that the view taken by the Labour Appellate Tribunal both in The Assam Oil Company case (1), and in this case  is incorrect.   This Court has held in The Automobile  Products of  India Ltd. v. Rukamji Bala (2) that s. 33 imposes a  ban on  the employer to dismiss a workman and it gives power  to the  Industrial Tribunal, on an application made to  it,  to grant  or withhold the permission to dismiss, i.e., to  lift or  maintain the ban.  So far, however, as the  employer  is concerned, his enquiry is (or, at any rate, should be)  over when  he  comes  to the finding that the  case  against  the employee  is proved and that the punishment of dismissal  is the  proper punishment.  It is only then that  the  employer applies under s. 33 for permission to dismiss the  employee. Further,  the proceedings under s. 33 are not an enquiry  by the  Industrial  Tribunal into the rights or wrongs  of  the dismissal;  all that it has to see is whether a prima  facie case has been made out or not for lifting the ban imposed by the section and whether a fair enquiry has been made by  the employer  in which he came to the bona fide conclusion  that the employee was guilty of misconduct.  Once it found  these conditions in favour of the employer, it was bound to  grant the  permission  sought for by him.  It is thus  clear  that proceedings under s. 33 are not in the nature of an  enquiry into the conduct of the employee by the Industrial Tribunal: (see  Lakshmi Devi Sugar Mills Ltd. v. Pt.  Ram Sarup  (3)). The  proceedings  therefore before the  Industrial  Tribunal cannot  be  called  an  enquiry  into  the  conduct  of  the employee.    On  the  other  hand,  the  enquiry  which   is contemplated by cl. 27 is an enquiry into the conduct of the employee.  That enquiry could (1) [1954] L.A.C. 78.         (2) [1955] 1 S.C.R. 1241. (3)  [1956] S.C.R. 916. 724 only  be by the employer.  Therefore, when cl. 27  uses  the words " pending enquiry ", these words can only refer to the enquiry  by the employer into the conduct of  the  employee. It is, in our opinion, entirely unnecessary that the words " pending enquiry " should have been qualified by the words  " by the employer before they can be interpreted as  referring to  the  enquiry  by  the  employer.   Standing  Orders  are concerned  with employers and employees and not with  tribu- nals.  Therefore, when an enquiry is mentioned in cl. 27  it can in the context only refer to the enquiry by the employer and not to a proceeding under s. 33 before the tribunal.  We are therefore of opinion that in the context in which  these words  have been used in cl. 27 they mean an enquiry by  the employer  and are not referable to the proceedings under  s. 33 of the Act before the Tribunal. The  scheme  and  object  of  s.  33  also  show  that  this conclusion is reasonable.  Section 33 of the Act, as already stated,  imposes a ban on the employer, thus preventing  him from  dismissing  an  employee till the  permission  of  the tribunal  is obtained.  But for this ban the employer  would have been entitled to dismiss the employee immediately after

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the  completion of his enquiry on coming to  the  conclusion that  the employee was guilty of misconduct.  Thus if s.  33 had  not  been  there,  the contract  of  service  with  the employee  would  have  come  to  an  end  by  the  dismissal immediately  after  the conclusion of the  enquiry  and  the employee would not have been entitled to any further  wages. 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, in  case some industrial dispute is pending between the employer  and his employees.  It stands to reason therefore that so far as the  employer is concerned he has done all that he could  do in  order  to bring the contract of service to an  end.   To expect him to continue paying the employee after he had come to the conclusion that the employee was guilty of misconduct and should be dismissed, is, in our opinion, unfair,  simply because of the accidental 725 circumstance that an industrial dispute being pending he has to  apply  to the tribunal for permission.  It seems  to  us therefore  that  in  such  a  case  the  employer  would  be justified  in suspending the employee without pay  after  he has made up his mind on a proper enquiry to dismiss him  and to apply to the tribunal for that purpose.  If this were not so, he would have to go on paying the employee for not doing any  work,  and the period for which this will  go  on  will depend  upon an accidental circumstance, viz., how long  the tribunal  takes in concluding the proceedings under  s.  33. In the present case the application for permission was  made on  April  29, 1955, and the Tribunal’s award was  given  on March 10, 1956, more than ten months later.  So if the  view taken by the Appellate Tribunal is correct, the employer has to pay the employee for this period of more than ten months, even though the employer had completed his enquiry and  made up  his mind to dismiss the employee long before  and  would have done so but for the ban imposed by s. 33.  The  purpose of  providing ten days as the maximum period  of  suspension without pay pending enquiry in cl. 27 obviously is that  the employer  should  not  abuse  the  provision  of  suspension pending  enquiry  and delay the enquiry  inordinately,  thus keeping  the employee hanging about without pay for  a  long period.   The  object further seems to be to  see  that  the employer  finishes his enquiry promptly within ten  days  if the suspension of the employee is without pay.  But it could not  have been intended that the Industrial Tribunal  should also  conclude the proceedings under s. 33 within ten  days, and if that was not done there would be a breach of cl.  27. In  any  case the time taken by the proceedings  before  the tribunal  under s. 33 is beyond the control of the  employer and  as the provisions of el. 27 would be inappropriate  and inapplicable  to the said proceedings.’ We are therefore  of opinion that the words " pending enquiry " in cl. 27 both in the  context  and in justice and reason refer  only  to  the enquiry  by the employer and not to the  proceedings  before the tribunal under s. 33. This interpretation would not cause any serious 726 hardship  to  the  employee,  for  if  the  tribunal  grants permission  to the employer to dismiss the employee he  will not get anything from the date of his suspension without pay ;  on the other hand, if the tribunal refuses to  grant  the permission  sought  for, he would ’be entitled to  his  back wages  from the date of his suspension without pay.  We  may in  this connection refer to the case of Lakshmi Devi  Sugar Mills Ltd. (1) where a similar point arose for decision.  In

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that  case the Standing Orders -provided suspension  without pay  only for four days.  It was there held that  suspension without  pay pending enquiry as also pending  permission  of the  tribunal could not be considered a punishment, as  such suspension without pay would only be an interim measure  and would  last  only  till the application  for  permission  to punish  the  workman was made and the  tribunal  had  passed orders thereon.  It was also held that if the permission was accorded the workman would not be entitled to payment during the  period of suspension but if the permission was  refused he would have to be paid for the whole period of suspension. The  principle laid down in that case applies to  this  case also.   We would only like to add that that  principle  will apply  only to those cases where there is a ban under s.  33 and the employer has to apply under that section for lifting the  ban after completing the enquiry.  The matter  will  be different  if there is no question of applying under  s.  33 and  under  the  relevant Standing Orders  the  employer  is competent  to  dismiss the employee  immediately  after  his enquiry is complete.  In such a case if the Standing  Orders provide  that  suspension without pay will not be  for  more than  a certain number of days, the enquiry must  either  be completed  within  that  period or if it  goes  beyond  that period   and  suspension  for  any  reason   is   considered necessary,  pay cannot be withheld for more than the  period prescribed under the Standing Orders.  In the present  case, the  suspension  without  pay  took  place  even  after  the application  under  s.  33 had been  made  and  was  pending permission  under that section.  As the Industrial  Tribunal has  accorded  permission to dismiss the employees  in  this case and (1)  [1956] S.C.R. 916. 727 as  that part of the award has been upheld by the  Appellate Tribunal,  there is no question of the employees being  paid during the period of suspension without pay.  We, therefore, allow  the  appeal,  set  aside  the  order  of  the  Labour Appellate  Tribunal and restore the order of the  Industrial Tribunal dismissing the two applications under s. 33-A.   In the circumstances, we pass no order as to costs. Appeal allowed.