suspension pending permission for dismissal of a protected wrkman ( who is also office bearer) who has been adjudged guilty - CiteHR
Umakanthan53
Labour Law & Hr Consultant
Kritarth Consulting
Spl Educators Posh Programs; Hr & Ir
Srinath Sai Ram
Hr Manager

Prime Sponsor - FactoHR.com - Payroll Software with GPS Enabled Attendance, Travel, Performance Management, HRMS. Explore Features
Placing of a protected workman under suspension pending permission from Industrial Tribunal before which proceedings are pending – opinion sought:
We have initiated disciplinary action against a workman for certain serious and grave miscounts and an external Enquiry Officer held the enquiry and submitted his report holding him guilty of ll charges of misconduct levelled against him .
We intend dismissing this workman who is incidentally an office bearer of the recognised union and also a protected workman duly declared/ordered by Assistant Commissioners of Labour on a reference by the union
Being protected workman, as per Section 33(3) of ID Act 1947, we need to get an express permission in writing from the authority before which any proceedings are pending. Currently a wage dispute is pending before industrial Tribunal whilst certain other disputes are pending conciliation before Assistant Commissioner of Labour and hence we should apply to one of the authorities in Form J seeking permission to dismiss this workman.
The enquiry report and findings have been received from External Enquiry Officer who adjudged him guilty of the charges levelled against him .His past record is not free from blemish.
The enquiry being completed and findings received (holding the workman guilty) , we don’t want to allow him inside the plant for the following reasons, during the pendency of our application ( Form J) before Industrial tribunal :
The possibility of his instigating the fellow workmen to go rampage and other unruly acts cannot be ruled out and hence his presence /entry inside the plant, we are afraid, will pollute /disturb the otherwise peaceful atmosphere.
Having explained our situation and whilst moving the application for permission from Industrial tribunal, we wish to place the above workman under suspension pending permission from the Industrial tribunal. On our part we will pay him the necessary subsistence allowance as applicable to him in accordance with the standing orders (as if he is placed under suspension pending enquiry ) until the permission is received from Industrial Tribunal.)
Please let us know
1) Whether we could issue a letter to the workman stating that he has been palced under suspension pending permission (Form J) from Industrial tribunal and pay him subsistence allowance as applicable?
2) Whether application (Form J) seeking permission should be submitted to Industrial tribunal where a wage dispute is pending or Assistant Commissioner of Labour who is the immediate conciliation officer
The follwng court rulings to which we could lay hand, I think may be of interest to you in this regard
See AIR 1989 SC 985 P.L.Shah vs. U.O.I.
Suspension is a state of being debarred. When suspended, the employee is debarred from the privileges of the post held by him. He does not lose the post. He only ceases to exercise powers and discharge duties of his post and therefore, suspension has been held as not punitive. (See AIR 1989 SC 985 P.L.Shah vs. U.O.I.). In the decision reported as 1959(2) LLJ 544, Hotel Imperial New Delhi Vs. Hotel Workers Union, it was held:
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 forbids 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 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 been not disputed before us by either party. Reference in this connexion may be made to Hanley v.Pease and Partners, Ltd [(1915) 1 K.B.698)], Wallwork v. Fielding [(1922) 2 K.B 66] Secretary of State for India in Council v. Surendra Nath Goswami [I.L.R. (1939) Cal.46] and Rura Ram v. Divisional Superintendent, N.W. Railway [I.L.R. VII (1954) Pun.415]"
38. A Division Bench of this court in the decision reported as 25(1984) DLT 362, D.T.C v. D.D.Gupta & Ors. held:
"Coming now to the question as to whether the validity of suspension /termination could or could not be enquired into be the Labour Court in computation proceedings whether under Section 33-C(2) of the Industrial Disputes Act or under Section 15 of the Payment of Wages Act, in our view, it will all depend upon the circumstances of a case. No doubt, this question can be gone into specifically in a reference under Section 10 of the Industrial Disputes Act, all the same if the suspension/termination is void ab initio, then the claim of the workman for computation on the assumption that he continues to be in service all through, there being no valid order of suspension/termination, can be preferred and the enquiry into the validity of the suspension/termination would become incidental to the main question of computation. We are in respectful agreement with our brother S. Ranganathan, J. in the view that he has taken on this point.
A Division Bench of the Calcutta High Court, in the decision reported as 1980 Lab I.C.466, Siten Bose v. Ananda Bazar Patrika dealt with the issue whether a suit was maintainable by a workman challenging his suspension or whether remedy was by raising an industrial dispute under the I.D.Act 1947. It was held:
In this case the question whether the alleged order of suspension was legal or valid rested on the interpretation of certain documents or papers. Such a controversy in our opinion, could not be referred to an industrial tribunal. Again the question whether an order of suspension is valid or not, is not apparently an industrial dispute.
A learned single Judge of the Madras High Court in the decision reported as 1995 (70) FLR 973 Virudhunagar Sarvodaya Sangh v. S. Sathiyathinakaran took a view similar to the one taken by the Division Bench of the Calcutta High Court it was held:
"A suspension will not amount to non-employment. It is only keeping away the employee from work during the time of investigation. It is also not a case where any condition of labour is violated. It is within the power of the master to suspend an employee for any alleged misconduct. There is no condition of service that an employee shall not be suspended during enquiry."
With respect to the learned judges of the Calcutta High Court and Madras High Court, proposition of law that dispute pertaining to suspension can never be the subject matter of an industrial dispute is too widely stated and I express my respectful disagreement with the same. Where suspension is controlled and regulated by the Standing Orders in an industrial undertaking or is covered by an agreement with the Union, it is possible to conceive of a wide range of issues pertaining to a challenge qua a suspension. As in the present case, Standing Orders contemplate payment of subsistence allowance, a sum far less than the actual wage. Standing Orders embody terms of employment. A suspension contrary to the Standing Orders attracts industrial dispute as it relates to 'the terms of employment'. Section 2k is clearly attracted.
But that would not mean that every kind of challenge under the sun, to an order of suspension would be maintainable as an industrial dispute. The Division bench of this Court in D.D.Gupta's case (supra) has correctly held that whether the validity of a suspension can be gone into by the Labour Court will depend upon the circumstances of the case.
Thanks
Senprithvib6
Cite.Co is a repository of information created by your industry peers and experienced seniors sharing their experience and insights.
Join Us and help by adding your inputs. Contributions From Other Members Follow Below...
Dear Clarification Seeker,
Your Query: Can the Employer suspend a Protected Workman, by way of an interim Order, during the Pendency of an earlier Case before the LabourCourt or an Industrial Tribunal involving the same Protected Workman who is also the Office Bearer of the Union which is a Party to the Pending Case?
Clarification from Transformatix Team: "The Authority and or the Power to punish a worker or a person employed by him or her, is absolute and Non-negotiable provided
a) the laid down procedures have been properly and faithfully followed as per the Certified Standing Orders applicable to the concerned Workman/Person so employed, and that the concerned workman was duly informed in writing about the Acts of Misconduct alleged against him or her and that on receipt of his/her reply in defense, proper Inquiry Proceedings as laid down have been genuinely adhered to including giving him /her all reasonable opportunities to defend his/her action, lead his/her witnesses and or other pieces of evidence and examine the same as well as cross-examine the witnesses and or the Evidence examined in support of the allegation , and further that the Inquiry Officer or the Committee has since submitted its Inquiry Report with definite and conclusive Findings till now; and also
b) that the act of disciplinary action is neither arbitrary nor perverse nor smacks of unfair labor practice.
If you /your Employer have meticulously complied with the procedures, please immediately get in touch with the adjudicating authority with full facts and circumstances of the case under reference seeking and securing a clearance to issue necessary Orders to award the proposed Punishment proportionate with the gravity of the acts of misconduct.
Protecting other workmen and others within the premises of your Employer is your / your Employer's Duty for which s/he is empowered to seek and secure the help/assistance of the local Law &Order Authority, the Factory Inspectorate and the Labour Commissioner Office
Confrontation is avoidable yet Appeasement be avoided.
Hoping you and your Management Team, for and on behalf of your Employer overcome dilemma with determination, mindfully without causing any disruption and or deadend. Please thoughtfully and diligently consider our suggestion
Sharan
Transformtaix Performance Solutions
I R Issues Resolutions Team

20.10.17
call me for your query at cell no 8686159292
manoj
advocate
Dear Panchsen,
please note that your proposal ' we wish to place the above workman under suspension pending permission from the Industrial tribunal. On our part we will pay him the necessary subsistence allowance as applicable to him in accordance with the standing orders (as if he is placed under suspension pending enquiry ) until the permission is received from Industrial Tribunal.) is not in conformity with Labour Laws.
You have to propose the Punishment in Second Show Cause Notice.After awarding punishment of Dismissal/Termination, Simultaneous Application to be made to the relevant Authority for approval of the action of Employer i.e Dismissal/Termination by complying with the procedure laid down
Dear Senprithvi,
Your lengthy preamble with so many legal citations about suspension pending enquiry to the two questions raised at the end leaves the readers to infer that the delinquent employee was not at all suspended so far either before or at any stage during the course of the domestic enquiry into the charges leveled against him. Am I correct?
Suspension, per se, is an interim debarment of an employee from attending to his office/work as per the contract of employment. Whether it is punitive or pending disciplinary proceedings, it is a state of suspended animation of the contract of employment. However, there can not be any order of suspension as a punishment except where the contract of employment including Standing Orders applicable empowers the employer to do so. Even where the conditions of service or the Standing Orders do not provide for any suspension pending enquiry or as a punishment, the Supreme Court held that a person who is suspended pending enquiry would be entitled to wages during the period of suspension [ Hotel Imperial, New Delhi and Ors v. Hotel Workers Union - AIR 1959 S.C. 1342 ]. Later, in M.Paul Anthony (Capt.) v. Bharat Gold Mines Ltd and another [ 1999 (1) CLR 1032 ] the Supreme Court affirmed that to place an employee under suspension is an unqualified right of the employer.
In the same Imperial Hotel Case supra, the Apex Court also held that in cases coming within sec.33 of the Industrial Disputes Act,1947, if the employer has, after a proper enquiry, has come to the conclusion that the workman should be dismissed and in consequence suspends the workman pending permission required under sec.33, he has the power to order such suspension and in such cases a term empowering the employer to suspend the workman should be implied by Industrial Tribunals in the contract of employment.
Coming to the answers to your questions, I do hope that your first question stands answered as above.
Regarding the second one, since this is a case of prior permission for the dismissal of a protected workman, notwithstanding the nature of the disputes pending, you have to seek the permission from the higher forum viz., the Industrial Tribunal only.
Dear Mr, Umakanthan,Thanks for your answers to my queries which I take it right earnest
Thanks to Transformtaix Performance Solutions,( I R Issues Resolutions Team) and Mr.Manoj,Advocate, for their views,
My query to Mr.Srinath Sairam:
Whilst applying for permission before dismissing the protected workman is alright , how come you assert that it is not in conformity labour laws to suspend protected workman pending permission from the authority concerned . Your attention is drawn to the decision if Apex Court ( i.e Hotel Imperial, New Delhi and Otrs v. Hotel Workers Union - AIR 1959 S.C. 1342 ] wherein the Apex Court also held that in cases coming within sec.33 of the Industrial Disputes Act,1947, if the employer has, after a proper enquiry, has come to the conclusion that the workman should be dismissed and in consequence suspends the workman pending permission required under sec.33, he has the power to order such suspension and in such cases a term empowering the employer to suspend the workman should be implied by Industrial Tribunals in the contract of employment. Mr.Umakanthan has also cited this case. Anyway thanks for your response.
Senprithvib6
The facts in brief '
The General Secretary of the union has committed certain grave misconducts and the charges of misconduct have been sufficiently proved in the domestic enquiry .
His past record is full of blemish
There is a wage dispute pending before Industrial Tribunal .
The general secretary of the union ( delinquent) is a protected workman .
The workman was proceeded with a domestic enquiry after serving him SC Notice , without his being suspended pending an enquiry . He is still attending to work even after the charges have been proved against him in the enquiry
The management has issued a second Show Cause Notice , proposing to award him dismissal from service.
Although it is known well that the Proviso of ID Act( Section 33 ) casting an obligation on employer to require a prior permission from the Presiding Officer of Industrial Tribunal before issuing dismissal orders , yet the management has decided to place him under suspension pending permission from Industrial Tribunal for the proposed action of dismissal for which an application has already been preferred.
we indent stating in the suspension orders among others that that the workman will be paid 100% wages during the period of suspension until the permission or otherwise is received from Industrial Tribunal . In other words, he will not be permitted to enter into organisation , however be paid full wages including callowness etc ( not being subsistence allowance as contemplated under the CERTIFIED Standing orders or subsistence allowances act)
In the scenario, I would be glad to have the views of fellow professional.
Panchsen
Prime Sponsor - Talentedge.com "Interactive Anywhere Learning". Executive courses from top reputed institutes like IIM, XLRI, MICA. View Courses
This discussion thread is closed. If you want to continue this discussion or have a follow up question, please post it on the network.
Add the url of this thread if you want to cite this discussion.






About Us Advertise Contact Us
Privacy Policy Disclaimer Terms Of Service



All rights reserved @ 2019 Cite.Co™