(1) Shri Ram Lubhaya Mal was employed as a clerk with Shri Gopal Paper Mills Limited. On 6-10-1956 the management terminated his service but, as an industrial dispute was at that time pending this order could not legally take effect unless permission from the Industrial Tribunal concerned was obtained, and for this purpose the management made an application to the Industrial Tribunal on 6-10-1956. That application remained pending before the Tribunal and was finally granted on 17-6-1957; meanwhile on 16-1-1957 Ram Lubhaya Mal filed an application before the authority for the payment of wages under S. 15 of the Payment of Wages Act, 1936, for a direction that his wages of three months of October, November and December, 1956 should be paid.
By the time his application came up for decision, which was in August 1957, the Industrial Tribunal had accorded its permission to the dismissal of Shri Ram Lubhaya Mal, and it was, therefore, contended on behalf of the management that the Industrial Tribunal having accorded permission to the dismissal of Shri Ram Lubhaya Mal, no wages were due to him for October, November and December, 1956, and he must be deemed to have been dismissed with effect from the order terminating his service, that is, the 6th or 8th of October, 1956. This objection did not find favour with the authority and a direction was made for the payment of wages for those three months-amounting in all to Rs. 446-6-0. Against this order the management appealed, but the District Judge affirmed the view of the lower authority and dismissed the appeal. The management, thereupon, filed a revision petition in this Court which, in the first instance, came up before me sitting alone but which I thought it proper to refer to a Division Bench.
(2) A preliminary objection to the present petition is taken on the ground that the petition purports to be under S.115 of the Code of Civil Procedure and is not as such competent because the order, against which is has been filed, is not the order of any Court. Mr. Bhagirath Dass for the management does not seriously dispute the correctness of that contention as the question is largely academic, because this Court has, apart from S. 115 of the Code of Civil Procedure, power to examine the legality of the impugned order under Art. 227 of the Constitution. The matter before us has thus been argued on the footing that the present petition is one under Art. 227 of the Constitution, and, if it be shown that the order in dispute could not have been legally made and was outside the jurisdiction of the authority concerned, then clearly this Court is competent to interfere.
(3) The facts are not in dispute. Shri Ram Lubhaya Mal was found by the employer as unfit to be retained in service and he was told on 6-10-1956 that his services were terminated. That was, of course, subject to permission being obtained form the Industrial Tribunal because a dispute was at that time pending before that Tribunal. It is also clear that the Tribunal did accord permission. Till then, of course, Shri Ram Lubhaya Mal was virtually under suspension without pay. The question is whether he can claim wages for that period, that is, till the Industrial Tribunal accorded sanction to his dismissal. Such a matte was considered by the Supreme Court in Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup, (S) AIR 1957 SC 82, and the view expressed was this:
'If the permission was accorded the workman would not be paid during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension. There is nothing like a contingent punishment of a workman and therefore such suspension could not be deemed to be a punishment of the workman at all.'
The authorities below appear to have been of the view that these observations of the Supreme Court were in the nature of obiter and the question was not directly before the Court at that time. There is, however, no doubt about the opinion of the Supreme Court in such a contingency and such clear observations ought not to have been ignored in this manner. Actually, however, this very question directly came before the Supreme Court in a later case, Management of Ranipur Colliery v. Bhuban Singh, AIR 1959 SC 833, and the same view was taken. Wanchoo J. observed:
'Section 33 of the Act (Industrial Disputes Act), as already stated, imposes a ban on the employer, thus preventing him from dismissing an employee till the permission of the tribunal is obtained. But for this ban the employer would have been entitled to dismiss the employee immediately after the completion of his enquiry on coming to the conclusion that the employee was guilty of misconduct. Thus if S. 33 had not been there, the contract of service with the employee would have come to an end by the dismissal immediately after the conclusion of the enquiry and the employee would not have been entitled to any further wages. But S. 33 steps in and stops the employer from dismissing the employee immediately on the conclusion of his enquiry and compels him to seek permission of the Tribunal, in case some industrial dispute is pending between the employer and his employees.
It stands to reason therefore that so far as the employer is concerned he has done all that he could do in order to bring the contract of service to an end. To expect him to continue paying the employee after he had come to the conclusion that the employee was guilty of misconduct and should be dismissed, is, in our opinion, unfair, simply because of the accidental circumstance that an industrial dispute being pending he has to apply tot he tribunal for permission. It seems to us therefore that in such a case the employer would be justified in suspending the employee without pay after he has made up his mind on a proper enquiry to dismiss him and to apply to the tribunal for that purpose'
and later on-
'As the Industrial Tribunal has accorded permission to dismiss the employee in this case and as that part of the award has been upheld by the Appellate Tribunal, there is no question of the employee being paid during the period of suspension without pay.'
The position in law, thus seems clear. If the employer decides to dismiss an employee but an industrial dispute is pending, the employer is competent to suspend the employee without pay and apply for permission to the tribunal, and, if permission is accorded, the dismissal becomes effective from the date the employer had intimated to the employee that his services were no longer required, and not question of payment of wages during the suspension period arises.
(4) Shri Ram Lubhaya Mal referred to certain decisions, but only one of them is at all relevant, that is, Sasa Musa Sugar Works Ltd. v. Shobrati Khan, AIR 1959 SC 923. In that case, however, the fact were different, for certain workmen were suspended by the management pending an enquiry and the enquiry was actually held by the Industrial Tribunal and permission to dismiss those workmen granted. The Supreme Court found that the workmen had been suspended pending the enquiry and the only order terminating their services was made by the Industrial Tribunal and the workmen were, therefore, entitled to their wages till the Industrial Tribunal had made that order. The previous case decided by the Supreme Court, AIR 1959 SC 833, was expressly mentioned and followed, so that the principle was the same.
In the present case the facts ale like those in the earlier case, that is, Ranipur Colliery's case, AIR 1959 SC 833, for here the management did all that was possible to do in respect of Shri Ram Lubhaya Mal's services and they firmly told him in October 1956 that his services were no longer required and, in the circumstances, the permission subsequently granted by the Industrial Tribunal merely confirmed that decision. It is, therefore, difficult to see how in view of the Supreme Court decisions it is at all possible to allow the present respondent wages for October, November and December, 1956.
(5) Shri Ram Lubhaya Mal then attempted to suggest that Section 33 of the Industrial Disputes Act, as it now stands and which provides for permission to be obtained from the Industrial Tribunal, is not application to his case. The argument is that the particular section was amended by virtue of the Industrial Disputes (Appellate Tribunal) Act XLVIII of 1950) and that Act, that is, the amending Act XLVIII of 1950 was itself repealed by the Industrial Disputes (amendment and Miscellaneous Provisions) Act (XXXVI of 1956) which came into force on the 1st September 1956, and in this manner the amendment ceased to exist, and we must go back to the law as it was before the amendment. There is no force in this contention, as the repeal of an amending Act does not have the effect of destroying the amendment. This is made clear by Section 6A of the General Clauses Act which says-
'6A. Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall no affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.'
It follows, therefore, that the amendment made by the statute, which was subsequently repealed, continued to operate and Section 33 of the Industrial Disputes Act, as amended, remained the law.
(6) No other question arises in this case. It is clear in view of the decisions of the Supreme Court that Shri Ram Lubhaya Mal was not entitled to payment of wages during the time the question of his dissimilar examined pending before the Industrial Tribunal and the authority under the Payment of Wages Act was thus not competent to make a direction for the payment of wages for the months of October, November and December, 1956. I would, therefore, allow this petition under Art. 227 of the Constitution and set aside the order made for the payment of such wages tot he respondent. In view of the circumstances of the case, however, there will be no order as to costs.
(7) I agree.
(8) Petition allowed.