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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

From India, Chennai
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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 Labour Court 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 the power to punish a worker or a person employed by him or her are absolute and non-negotiable, provided that: a) the laid-down procedures have been properly and faithfully followed as per the certified standing orders applicable to the concerned workman/person employed, and the concerned workman was duly informed in writing about the acts of misconduct alleged against him or her. 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 actions, 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. Furthermore, the inquiry officer or the committee has submitted its inquiry report with definite and conclusive findings until now; and also b) 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 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 he/she is empowered to seek and secure the help/assistance of the local law and order authority, the factory inspectorate, and the Labour Commissioner's office.

Confrontation is avoidable, yet appeasement should be avoided.

Hoping you and your management team, for and on behalf of your employer, overcome the dilemma with determination, mindfully without causing any disruption or dead end. Please thoughtfully and diligently consider our suggestion.

Regards, Senprithvib6

From India, Delhi
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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 an inquiry) until the permission is received from the Industrial Tribunal," is not in conformity with labor laws.

Proposing Punishment in the Second Show Cause Notice

You have to propose the punishment in the Second Show Cause Notice. After awarding the punishment of dismissal/termination, a simultaneous application should be made to the relevant authority for approval of the action of the employer, i.e., dismissal/termination, by complying with the procedure laid down.

Regards, Senprithvib6

From India, New Delhi
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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 suspended at all so far, either before or at any stage during the course of the domestic enquiry into the charges leveled against him. Am I correct?

Understanding Suspension in Employment

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 cannot 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.

Legal Precedents on Suspension

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, 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.

Answers to Your Questions

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 permission from the higher forum viz., the Industrial Tribunal only.

Thanks

Senprithvi

From India, Salem
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Dear Mr. Umakanthan, Thanks for your answers to my queries, which I take quite earnestly. Thanks to Transformtaix Performance Solutions (IR Issues Resolutions Team) and Mr. Manoj, Advocate, for their views.

Query to Mr. Srinath Sairam

While applying for permission before dismissing the protected workman is alright, how do you assert that it is not in conformity with labor laws to suspend a protected workman pending permission from the concerned authority? Your attention is drawn to the decision of the Apex Court (i.e., Hotel Imperial, New Delhi and Ors v. Hotel Workers Union - AIR 1959 S.C. 1342), wherein the Apex Court also held that in cases falling within sec.33 of the Industrial Disputes Act, 1947, if the employer, after a proper inquiry, has concluded that the workman should be dismissed and consequently suspends the workman pending permission required under sec.33, he has the power to order such suspension. 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.

Regards, Senprithvib6

From India, Chennai
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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 blemishes. There is a wage dispute pending before the Industrial Tribunal. The General Secretary of the union (delinquent) is a protected workman. The workman was proceeded with a domestic enquiry after serving him a Show Cause Notice, without his being suspended pending an enquiry. He is still attending 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 well known that the Proviso of the ID Act (Section 33) casts an obligation on the employer to require prior permission from the Presiding Officer of the Industrial Tribunal before issuing dismissal orders, yet the management has decided to place him under suspension pending permission from the Industrial Tribunal for the proposed action of dismissal, for which an application has already been preferred. We intend to state in the suspension orders, among others, that the workman will be paid 100% wages during the period of suspension until the permission or otherwise is received from the Industrial Tribunal. In other words, he will not be permitted to enter the organization, however, he will be paid full wages including allowances, etc. (not being subsistence allowance as contemplated under the Certified Standing Orders or Subsistence Allowances Act).

In this scenario, I would be glad to have the views of fellow professionals.

Regards, Panchsen

From India, Chennai
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