RAMAPRASADA RAO, J. - (1.) THE petitioner is the Secretary of the Palani Co -operative Sales Society. Dindigul Road, Palani. The second respondent was appointed as one of its salesman. On charges of misconduct, to wit, making false entries in the books of account of the Society and distributing to card -holders rations far in excess of those permitted to them, the second respondent was placed under suspension pending disciplinary action. The order of suspension was dated 5 -12 -1967 and it was to take effect from 6 -12 -1967. The petitioner's case is that such suspension is possible under its bye -laws. It transpires that latar on the enquiry was completed and ultimately the second respondent was dismissed from service. We are not however concerned with the order of dismissal. The second respondent during the pendency of the enquiry filed a claim petition on the file of the first respondent under Section 33 -C (2) of the Industrial Disputes Act claiming a sum of Rs. 700 made up of a sum of Rs. 640 towards salary for the period commencing from 6 -12 -1967 to 26 -10 -1968 and a sum of Rs. 60 as and towards leave wages. The petitioner's contention was that the second respondent was not entitled to the full pay under bye -law 13 (h) which according to the petitioner would apply to the facts of the case, and therefore, the order of the Labour Court, Madurai, which directed the payment of the salary in full as claimed was vitiated by an error apparent. The contention of the second respondent however is that bye -law 13 (h) will not cover a situation like the one which has arisen in this case as that bye -law can only apply to a case where suspension is imposed as a matter of substantive punishment against a delinquent employee and would not relate to a case where the order of suspension is made during the pendency of a regular enquiry into the misconduct of an employee.
(2.) THE bye -law which is relied upon by both the petitioner as well as the second respondent appears to be one which is generally incorporated in the bye -laws of co -operative societies. Bye -law 13 (h) of the bye -laws of the petitioner -society deals with the punishments which an appropriate authority can inflict on any of its employees. The punishments include censure, withholding of increments, suspension or reduction in rank or dismissal. Bye -law 13 (h) which is reproduced here for ready reference deals with a case of suspension of an employee. It reads as follows - "The authority competent to suspend an employee may, in its discretion, sanction him subsistence allowance at a rate not exceeding one -fourth of his substantive pay during the period of his suspension. No employee shall in any case be kept under suspension for a period exceeding three months at a time." The argument of the learned counsel for the petitioner is that bye -laws 13 (b) and 13 (h) are mutually exclusive and that bye -law 13 (h) by itself covers all situations, including a case where suspension is awarded during the pendency of an enquiry and where such suspension is awarded as substantive punishment on a delinquent employee. Per contra, it is argued that bye -law 13 (h) is ancillary to bye -law 13 (b) and bye -law 13 (h) has to be understood in the context of bye -law 13 (b) and therefore the said bye -law will not enable an employer to suspend an employee without concurrently making himself responsible for paying his full salary and emoluments during the period of such suspension, if such suspension is occasioned during the pendency of an enquiry. The language of bye -law 13 (h) is peculiar and, in my view, it is not necessary to interpret this bye -law in the context of bye -law 13 (b). The text of bye -law 13 (h) contemplates that no employee shall in any case be kept under suspension for a period exceeding three months at a time. This limitation in the exercise of power and more so in the infliction of the punishment cannot be squarely read into bye -law 13 (b) which gives an unlimited discretion to the competent authority to award such punishment as it deems fit and particularly to suspend an emoloyee for any period as decided by it. If, therefore, bye -law 13 (h) and bye -law 13 (b) are to be understood as complementary to each other, then the power of the competent authority tinder bye -law 13 (b) is conditioned by the prescription under bye -law 13 (h). which I am of the view, is not the intention of either of these bye -laws. Bye -law 13 (h) speaks of the power of the competent authority to award punishments and the various heads of punishments are detailed therein. In juxtaposition to this, bye -law 13 (h) deals with a situation where an employee is kept under suspension for a period beyond three months. The latter part of bye -law 13 (h) can in the normal circumstances refer only to the factum of suspension during the pendency of an enquiry, but not to the order of suspension made by a competent authority against his employee as a substantive punishment awarded after full enquiry.
(3.) THE above position appears to be rather clear. But two conflicting views of pur Court have been placed before me in the course of the arguments by the learned counsel. Mr. Chidambaram, learned counsel for the petitioner, referred to the decision of Alagiriswami J. in W. P. Nos. 2718 and 2719 of 1968 and 2120 of 1969 (Mad) the Madurai Mills Workers Co -operative Stores Ltd. v. Presiding Officer. Labour Court Madurai. In this case, the question directly arose as to whether bye -law 13 (h), which is being considered by me, would apply to a case where the authority was imposing a substantive punishment, or to a case where an order of suspension was made pending an enquiry into the delinquency of a servant of a co -operative society. The learned Judge expressed the view - "There was no need to specify any period of suspension as a punishment. The bye -laws do not lay down any maximum period for suspension as punishment. It is true that the bye -law contemplates suspension both as punishment and suspension pending enquiry............I do not think there is any difficulty at all in holding that bye -law (h) deals with suspension pending enquiry also." After quoting the decision of the Supreme Court in R.P. Kapur v. Union of India. AIR 1964 SC 787 the learned Judge said: - "............ there is no difficulty in holding that the employer has the right to suspend the employee pending enquiry. That power is only subject to the limitation laid down in bye -law 13 (h), that is the period of suspension should not exceed three months at a time ......... But it may not be possible to complete the enquiry within 3 months and it will be very difficult to hold that the employer has no right to renew the period of suspension for 3 months at a time. That is the meaning which has got to be given to bye -law 13 (h)." Palaniswami J. in W. P. No. 3763 of 1969 (Mad) the Madras Dt. Co -operative Supply and Marketing Society Ltd.. Madurai v. Veerappan, a judgment rendered by him on 24 -3 -1971, had no occasion to refer to the decision of Alagiriswami, J., as obviously it was not placed before him. In those circumstances, interpreting bye -law 13 (h) the learned Judge said - "............ there is no reference to suspension pending enquiry, Secondly, the period of suspension is limited to three months. Obviously such a restriction cannot be applied in the case of suspension pending enquiry. For reasons beyond the control of the employer and the employee the enquiry may go on for more than 3 months. If the provision was intended to apply to a case of suspension pending enquiry, the said limit of 3 months time would be out of place. Therefore, I am of the view that Clause (h) of bye -law 13, dealing with suspension does not in power (sic) to suspending pending enquiry, and that clause is applicable only to suspension as a substantive punishment." In a later case decided by the learned Judge on 28 -4 -1971, the decision of Alagiriswami, J. was placed before him. In W. P. Nos. 394 and 2581 of 1970 (Mad), the Kanvakumari Dt. Co -operative Supply and Marketing Society Ltd. v. Sankaranarayana. Palaniswamy, J., dealing with the situation and referring to the judgment of Alagiriswami, J. said - "On behalf of the petitioner reliance was next placed upon the decision of Alagiriswami, J. in W. P. Nos. 2718, 2719 of 1968 and 2120 of 1969......That case related to the claim for computation of subsistence allowance for the period during which certain employees were kept under suspension. The learned Judge on a construction of the bye -laws, held that the employer was entitled to suspend the employees pending enquiry. In that view, the learned Judge held that the employees were not entitled to subsistence allowance during the period of suspension." With great respect, this was not ratio of the decision in W. P. Nos. 2718 and 2719 of 1968 and 2120 of 1969 (Mad), Madurai Mills Workers Co -operative Stores Ltd. v. Presiding Officer. Labour Court, Madurai, rendered by Alagiriswami, J. As a matter of fact, bye -law 13 (h) was expressly considered by the learned Judge and he came to the conclusion that it was applicable to a case where suspension was awarded during the pendency of an enquiry. Even in the later case, following his earlier view, Palaniswami, J., held bye -law 13 (h) can only apply to a case where suspension was awarded as a substantive punishment.;