Jayachandra Reddy, J.
1. The Amarthalur Co operative Rural Bank Ltd., represented by its president, is the petitioner. The petitioner in this writ petition is netting a writ of certiorari to quash the order of the Labour Court, the 2nd respondent herein, in Miscellaneous Petition No 116 of 1974 which was filed under Section 33C(2) of the Industrial Disputes Act by the 1st respondent herein.
2. A few facts that are necessary to appreciate the rival contentions have to be stated. The 1st respondent joined the service of the petitioner-bank, as a clerk in the year 1961 and he became the secretary in 1965. He was placed under suspension with effect from 5th June, 1970, pending certain allegations. It appears that no charges were framed and no enquiry was conducted. He remained under suspension till December, 1974. He filed the application under Section 33C(2) of the Industrial Disputes Act before the Labour Court for full salary of 54 months amounting to Rs. 14,850 In the said application the petitioner claimed that he is entitled to the salary for all those months as he was not paid any salary during that period and as no charges were framed against him nor any enquiry was held. That petition was resisted by the management mainly on three grounds. The first ground is that the employee is not a workman within the meaning of the Industrial Disputes Act and the second ground is that the Labour Court had no jurisdiction to entertain a claim arising out of the provisions of the Shops and Establishments Act and lastly, that an application under Section 33C(2) is not maintainable. It appears that no evidence was adduced by either side. The Labour Court, after referring to the provisions of Section 64(1) of the Shops and Establishments Act, proceeded to consider whether there was sufficient material to show that the employee was not a workman. The Labour Court ultimately held that from the fact that the employee was the secretary of the Bank and that he was discharging the managerial and administrative functions it cannot be inferred that he is not a workman. The Labour court also pointed out that the management did not by adducing sufficient evidence prove that the employee does not come under the category of workman. Ultimately it observed thus:
In the absence of such proof it has to be held that the petitioner is a workman and he would not come under any category of the persons employed mainly in a managerial or administrative capacity or in a supervisory capacity drawing wages exceeding Rs. 500.
Thus the first contention of the management was repelled.
3. As regards the second contention the management contended that all claims arising under the provisions of the A.P. Shops and Establishments Act relating to the wages must go before the Authority appointed under Section 43 of the Act and that the Labour Court is not a proper forum to entertain such claims. This contention was naturally rejected because the Labour court had already reached the conclusion that the employ re was a workman and as such he could approach the Labour Court.
4. Then coming to the question whether an application under Section 33C(2) was maintainable or not, it is pointed out by the Labour Court that under the contract of employment an employee who is placed under suspension is entitled to full salary if there is no term limiting the scale of pay during that period and accordingly a lowed the application filed by the employee it is this order that is impugned in this writ petition.
5. The learned Counsel for the petitioner has raised the same contentions before us that were raised before the Labour Court. He contends that the Labour Court has erred in holding that the 1st respondent-employee comes within the meaning of workman. According to the learned Counsel the 1st respondent was the secretary of the Bank and was discharging the duties which are in the nature of managerial. We cannot go into this question as it is a disputed question of fact. When the Labour Court, after examining the material oil record, has categorically held that the management did not prove that the 1st respondent does not come within the meaning of workman, it is not for this Court to again go into a discussion on ibis aspect. So, we have to reject this contention.
6. As regards the second contention viz., that the Labour Court had no jurisdiction we must also hold that that question does not arise as the Labour Court had rightly held that the employee is a workman and he could invoke the jurisdiction of the Labour Court.
7. It is then contended by the learned Counsel for the petitioner that the management has power to suspend the workman and the employee is not entitled to the wages for the period of suspension and so an application under Section33C(2) is not maintainable. It may be mentioned here that the learned Counsel for the petitioner conceded that, the management is not clothed under any rule of bye-law with a power to suspend a workman pending an enquiry. Under these circum stances it cannot be said that the Labour Court erred in holding that the employee was entitled to receive the wages for tae period of suspension as the conditions of service do not disentitle him to receive such wages. He then contends that the very fact that the management has inherent power to suspend the workman would go to snow that the suspension was valid and when once the workman is disputing that suspension, the Labour Court cannot decide that in an application under Section 33C(2) as it is in the nature of an executing Court. In Hotel imperial v. Hotel Worker's Union : (1959)IILLJ544SC , the Supreme Court held thus:
The power of the employer to suspend an employee under the ordinary law of master and servant 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 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 such statute would mean that the master would have no power to suspend a workman and even if he does so he will have to pay wages during the so called period o 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 consequences that the servant is not bound to render service and the master is not bound to pay.
The same view was taken by the Supreme Court in another case in V.P Gindroniya v. State of Madhya Pradesh : (1970)IILLJ143SC . In the instant case, as already mentioned, there is no rule or any bye law framed which empowers the management to suspend the first respondent. So we are unable to see any illegality in the order of the labour Court.
8. The learned Counsel for the petitioner brings it to our notice that the 1st respondent was ultimately convicted by a criminal Court under Section 408 of the Code of Criminal Procedure for the offence of misappropriation of about Rs. 45,000 and the same has to be adjusted towards the amount misappropriated. We cannot give any direction in this writ petition in this regard. It is open for the management to take suitable steps, if any, to get this amount adjusted before the order passed under Section 33C(2) is enforced.
I agree. I have nothing to add.
By the Court.-In the result, the writ petition is dismissed, bit, in the circumstances of the case, we make no order regarding costs.