Placing of a protected workman under suspension pending permission from Industrial Tribunal
We have initiated disciplinary action against a workman for certain serious and grave misconducts. An external Enquiry Officer conducted the enquiry and submitted his report, holding the workman guilty of all charges of misconduct leveled against him. We intend to dismiss this workman, who is incidentally an office bearer of the recognized union and also a protected workman duly declared/ordered by the Assistant Commissioners of Labour on a reference by the union.
Being a protected workman, as per Section 33(3) of the ID Act 1947, we need to get express permission in writing from the authority before which any proceedings are pending. Currently, a wage dispute is pending before the Industrial Tribunal, while certain other disputes are pending conciliation before the Assistant Commissioner of Labour. 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 the External Enquiry Officer, who adjudged him guilty of the charges leveled 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 the Industrial Tribunal:
The possibility of his instigating fellow workmen to go on a rampage and other unruly acts cannot be ruled out. 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 the 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 the Industrial Tribunal.
Please let us know:
1) Whether we could issue a letter to the workman stating that he has been placed under suspension pending permission (Form J) from the Industrial Tribunal and pay him subsistence allowance as applicable?
2) Whether the application (Form J) seeking permission should be submitted to the Industrial Tribunal where a wage dispute is pending or the Assistant Commissioner of Labour, who is the immediate conciliation officer?
The following court rulings, to which we could lay hands, 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 not been disputed before us by either party. Reference in this connection 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].
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 by 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 of whether a suit was maintainable by a workman challenging his suspension or whether the remedy was by raising an industrial dispute under the I.D. Act 1947. It was held:
In this case, the question of 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 of 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, the proposition of law that a 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
We have initiated disciplinary action against a workman for certain serious and grave misconducts. An external Enquiry Officer conducted the enquiry and submitted his report, holding the workman guilty of all charges of misconduct leveled against him. We intend to dismiss this workman, who is incidentally an office bearer of the recognized union and also a protected workman duly declared/ordered by the Assistant Commissioners of Labour on a reference by the union.
Being a protected workman, as per Section 33(3) of the ID Act 1947, we need to get express permission in writing from the authority before which any proceedings are pending. Currently, a wage dispute is pending before the Industrial Tribunal, while certain other disputes are pending conciliation before the Assistant Commissioner of Labour. 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 the External Enquiry Officer, who adjudged him guilty of the charges leveled 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 the Industrial Tribunal:
The possibility of his instigating fellow workmen to go on a rampage and other unruly acts cannot be ruled out. 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 the 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 the Industrial Tribunal.
Please let us know:
1) Whether we could issue a letter to the workman stating that he has been placed under suspension pending permission (Form J) from the Industrial Tribunal and pay him subsistence allowance as applicable?
2) Whether the application (Form J) seeking permission should be submitted to the Industrial Tribunal where a wage dispute is pending or the Assistant Commissioner of Labour, who is the immediate conciliation officer?
The following court rulings, to which we could lay hands, 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 not been disputed before us by either party. Reference in this connection 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].
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 by 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 of whether a suit was maintainable by a workman challenging his suspension or whether the remedy was by raising an industrial dispute under the I.D. Act 1947. It was held:
In this case, the question of 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 of 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, the proposition of law that a 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