- (1.) THIS appeal is directed against judgment dated 23. 1. 1992 of the learned Single Judge vide which he dismissed C. W. P. No. 15602 of 1995 filed by the appellants against order dated 12. 12. 1989 passed by Industrial Tribunal, Punjab (for short, 'the Tribunal') on an application filed by respondent No. 2 under Section 33 (1) of the Industrial Disputes Act, 1947 (for short, 'the Act' ).
(2.) THE facts: In the year 1975-76, the management of respondent No. 2 reduced the bonus payable to the employees. The workers union approached the management for restoration of the bonus but failed in its attempt. Consequently, all the employees up to the level of Foremen went on strike w. e. f. 11. 8. 1979. The strike was called off on 15. 7. 1979 in the wake of assurance given by the management. Thereafter, the management charge-sheeted 12 of the workers including the appellants who were office bearers of the union. The appellants and other workers controverted the charge that they had incited the workers to go on strike. The management of respondent No. 2 did not accept their reply and entrusted the enquiries to Shri S. K. Heeraji, Standing Counsel of the Company and his associate Shri B. K. Gupta, Advocate. The request made by the workmen for permission to seek assistance from the workman of another establishment was rejected by the management. Their prayer for holding a joint enquiry was also rejected. The Enquiry Officers submitted reports with the finding that the charge levelled against the workmen is proved. The management accepted the reports of enquiries and decided to dismiss the workmen. However, final order could not be passed due to pendency of industrial dispute between the workmen and the management concerning payment of bonus and statutory bar contained in Section 37 (1) of the Act. In order to get over the legal obstacle, the management filed an application under Section 33 (1) of the Act before the Tribunal for grant of permission to dismiss the appellants from service w. e. f. 17. 9. 1980. Simultaneously an order dated 17. 9. 1980 was passed placing the appellants under suspension with the rider that they will not be paid allowance for the period of suspension. The operative part of that order reads as under: "as there is pendency of Reference No. 76 of 1979 relating to payment of bonus and Reference No. 22 of 1976 before the Industrial Tribunal, Punjab, Chandigarh, the Management has separately applied for permission as per requirements of Section 33 of the Industrial Disputes Act, 1947. Till such time, the permission for dismissal is granted or the application for permission is finally disposed of, you are suspended from duty with immediate effect. You shall not be paid any allowances for the period of suspension. " On being noticed by the Tribunal, the appellants filed reply to contest the application of the management and prayed for dismissal thereof by contending that the decision of the management not to pay subsistence allowance during the period of suspension was per se illegal and their cause would be adversely affected on that account. The management contested the plea of the appellants by asserting that the subsistence allowance was payable only during the pendency of the domestic enquiry and not during the pendency of application filed under Section 33 (1-B) of the Act. In view of the rival pleadings, the Tribunal framed the following issues: "1. Whether the respondent is entitled to get subsistence allowance with effect from 17. 9. 1980 onwards during the period of suspension? (O. P. on respondent.) 2. In case issue No. 1 is decided in favour of the management is this Tribunal competent to treat the application dated 25. 11. 1981 as being one under Section 33-C (2) of the Industrial Disputes Act, 1947? If so, what is its effect? (O. P. on respondent ). " After hearing the representatives of the parties, the Tribunal rejected the plea of the workmen vide order dated 8. 12. 1982. It held that the decision of the management not to pay subsistence allowance was in consonance with the law laid down by the Supreme Court in Management of Ranipur Colliery under Equitable Co. Ltd. v. Bhuban Singh and Ors. , A. I. R. 1959 S. C. 833 and The Management Hotel Imperial New Delhi and Ors. v. Hotel Workers Union, A. I. R. 1959 S. C. 1342, the Tribunal distinguished the judgment of the Supreme Court in Sasa Musa Sugar Workers Private Ltd. v. Shobrati Khan and Ors. , 1959-II L. L. J. 388 by observing as under: "in the present case, a regular enquiry was held against the respondent by the management into the allegations of misconduct made against the respondent which were mentioned in the charge-sheet served upon him. That being so, the observation of the Supreme Court made in that case that the management should pay the wages during the period of suspension of the employees till the award of the Industrial Tribunal was given is not attracted in the present case. Rather, the Supreme Court has given a definite finding in Ranipur Collery's case (supra) that in the circumstances as are of the present case, the workman is not entitled to the payment of any wages which term includes subsistence allowance during the period of his suspension. The employer was justified in suspending the employee without pay after he had made up his mid on a proper enquiry to dismiss him and to apply to the Tribunal for that purpose. A similar view was taken by the Supreme Court in other case reported as Hotel Imperial, New Delhi and Ors. v. Hotel Workers Union, 1959-II Labour Law Journal 544. It has been held in that case as under: "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 temporarilly 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. " In that very authority, it has been held as under: "the undisputed common law right of the master to dismiss his servant for proper cause has been subjected by Section 33 to a ban and that in fairness must mean that pending the removal of the said statutory has, the master can after holding a proper enquiry temporarily terminate the relationship of master and servant by suspending his employee pending proceedings under Section 33. It follows therefore that if the Tribunal grants permission, the suspended contract would come to an end and there will be no further obligation to pay any wages after the date of suspension. If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension. " In view of the above discussion, it is abundantly clear that in the present cases, the respondent is not entitled to get subsistence allowance with effect from 17. 9,1980 onwards during the period of his suspension. Thus the respondent has failed to prove this issue, which is decided against him. " Thereafter, the Tribunal framed the following issues on the application filed by the management of respondent No. 2: "1. Whether the domestic enquiry held by the applicant against the respondent was fair and proper? 2. Whether the circumstances of the case warrant the grant of permission to the action of the applicant for passing the sentence of dismissal of the respondent from service? 3. Whether the impugned action taken by the management against the respondents is an act of victimization and unfair labour practice? If so, what is its effect?" Both the parties were given opportunity to lead oral and documentary evidence in support of their respective cases and after examining the same, the Tribunal granted permission to the management of respondent No. 2 to dismiss the appellants w. e. f. 17. 9. 1980 and another workman, namely, Har Sarup Dewan w. e. f. 22. 9,1980. The writ petition filed by the appellants was dismissed by the learned Single Judge.
(3.) SHRI Sarjit Singh, Senior Advocate appearing for the appellants assailed the order of the learned Single Judge by arguing that the view taken by him on the question of payment of subsistence allowance to the workman during the pendency of application filed under Section 33 (1) of the Act cannot be treated as correct in view of the law laid down by the Supreme Court in Fakirbhai Fulabhai Solanki v. Presiding Officer and Anr. , A. I. R. 1986 S. C. 1168. He argued that order dated 17. 9. 1980 passed by the management to suspend the appellants did not bring an end to the master-servant relationship and, therefore, the former was bound to pay subsistence allowance in accordance with Clause 31 read with Clause 32 of the Model Standing Orders. Shri Sarjit Singh further argued that the Tribunal and the learned Single Judge erred in relying upon the decisions of Ranipur Colliery's case (supra) and Hotel Imperial's case (supra) because the question relating to the workman's entitlement to get subsistence allowance did not directly arise for consideration in those cases and in Fakirbhai Fulabhai Solanki's case (supra), the question was categorically answered in favour of the workmen. Still further, he argued that the learned Single Judge erred in rejecting the appellants plea on the ground of delay and their failure to specifically challenge order dated 8. 12. 1982 passed by the Tribunal. Learned counsel submitted that order dated 8. 12. 1982 will be deemed to have merged in final order dated 12. 12. 1989 passed by the Tribunal granting permission to the management of respondent No. 2 and, therefore, the appellants failure to challenge the same could not be made a ground for denying relief to them- He then argued that the action of the management of punishing the office bearers of the union only amounted to unfair labour practice and victimisation and the Tribunal committed a serious illegality by rejecting the plea of the appellants. In support of this argument, Shri Sarjit Singh relied on the judgments of the Supreme Court in India General Navigation and Railway Co. Ltd. and Anr. v. Their Workmen, A. I. R. 1960 S. C. 219 and Bharat Sugar Mills Ltd. v. Jai Singh and Ors. , 1961-II L. L. J. 644.;