V. Khalid, J.
1. These two writ petitions arise from the same award of the Industrial Tribunal, Calicut. They are being disposed of together. I shall deal with O.P. No. 5967 of 1975 first.
2. The petitioner is an electricity worker of the K.S.E. Board. He commenced his service as C.L.R. from 16-124966. Under orders of the Board, C.L.R. hands who had put in 240 days of work before 1-7-1968 were entitled to be treated as N.M.R. from that date.
3. The petitioner was arrested in connection with a criminal case on 24-6-1968. He was acquitted in that case. During the pendency of the said case, the Board did not employ him. He was reinstated on 18-11-1970 as C.L.R. and was treated as N.M.R. only from 1-7-1971.
4. An Industrial dispute was raised regarding the claims of the petitioner for wages from 24-6-1968 to 18-11-1970. By award dated 30-5-1975 the Tribunal held that the petitioner was entitled to be treated as N.M.R. from 1-7-1968, but the wages for the period in question was disallowed. It is this portion of the award that is under challenge in this writ petition.
5. The Industrial Tribunal while disallowing the claim of the petitioner for the period from 24-6-1968 to 18-11-1970 directed the management to categorise the petitioner as N.M.R. worker with effect from 1-7-1968 and all benefits to be given to him on such categorisation. It was also directed that he should be treated as a worker and his grades of pay and increment, etc., could be fixed on that basis. This part of the award is challenged in O.P. No. 5035 of 1975 on the ground that it is beyond the scope of the reference to the Industrial Tribunal.
6. The petitioner's contention in O.P.No. 5967 of 1975 is that the denial to him of the wages for the period in question is solely on the ground that he was a casual worker. There is nothing in law which disentitles a casual worker illegally kept out of employment from claiming wages or other compensation. In Ext. P1 there are indications to the effect that the petitioner was kept out of employment without sufficient justification. There is a direction that he should be treated as having become N.M.R. worker from 1-7-1968.
7. The only ground on which employment was denied to the petitioner was the pendency of a criminal case. It is not the case of the Board or the State that he was under arrest for the entire period. I have no materials in this case to show that the criminal case related to anything connected with the petitoner's employment. He was available for work. There is no material to show that the service of the worker concerned was terminated. This is because after the acquittal in the criminal case the petitioner was reinstated which is proof of the fact that he continued to be a worker with the Board. No standing orders or service rules have been produced to show that the employee could be kept out of employment without paying wages.
8. In Hotel Imperial v. Hotel Workers' Union 1959-II L.L.J. 544 at 548, the scope of an employer's right to keep the employee out of service is discussed. The relationship between master and servant untrammelled by legislations is that the master can at any time terminate the service of the servant. The rule in ancient times was hire and fire. This power was curtailed by legislations. This power did not take along with it any power of suspension. A master gets the right to suspend a worker only when there is specific authorisation in this behalf either embodied in a contract or any other statutory provisions. In this case it cannot be said that the petitioner was under suspension for the period for which wages are claimed. If he is not under suspension, the petitioner should be deemed to be in service. The following extract from the above judgment makes the position clear :
The first question, therefore, that falls for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. 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 farbids 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 hound to pay. These principles of the ordinary law of master and servant are well settled and have been not disputed before us by either party.
This position is reiterated by a Division Bench of the Andhra Pradesh High Court in Amanhalur Co-op. Rural Bank Ltd. v. Ponnuru Nageswara Rao and Anr. 1977-II L.L.J. 401 para 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 Section 33C(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 or bye-law with a power to suspend a workman pending an enquiry. Under these circumstances it cannot be said that the Labour Court erred in holding that the employee was entitled to receive the wages for the 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 show 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...
From the foregoing it is clear that the petitioner was denied employment solely for the reason that a criminal case was pending against him. The respondents have no case that the petitioner was disentitled from claiming wages either under any provision of law, under the terms of the contract or under any standing Orders or bye-laws. The Industrial Tribunal has founded its decision on the fact that the petitioner was a casual worker who was not assigned any work and who did not do any work during the relevant period and, therefore, was not entitled to claim wages. Being a casual worker he will not be entitled to get wages for this period.
9. This finding of the Tribunal cannot stand unless the matter is further clarified. The question for consideration is whether the petitioner is disentitled to wages for the reason that he is a casual labourer. If the petitioner was willing to do any work assigned to him and if no work was given to him the question arises whether the petitioner is not entitled to wages. The management cannot keep him under suspension for this period in the absence of any authority sanctioning to do so. The matter will have to be re-examined by the Tribunal and appropriate orders passed in the light of the observations made above. I would like to make it clear that the denial of wages to the petitioner simply because no work was assigned to him or no work was done by him is not sustainable. I, therefore, quash Ext. P1 and direct the Industrial Tribunal to take the case back on its file and to decide the dispute afresh after giving the parties an opportunity, if so desired, for being heard.
10. In O.P. No. 5035 of 1975 the attack as indicated above is that the direction contained in the last sentence at page 7 of the printed award while discussing Issue No. 1 is beyond the scope of the reference. The 1st issue is the relevant issue which reads :
Wages to Sri K.R. Parameswaran Nair for the period from 24-6-1968 to 18-11-1970.
The direction under attack reads as follows :
So the management shall categorise him as N.M.R. worker with effect from 1-7-1968 and all benefits are to be given to him. But this does not include any wages for the period for which he has not worked. It is made clear that he should be treated as a worker categorised as N.M.R. worker from 1-7-1968 and his grades of pay and increments, etc., could be fixed on that basis.
The question is whether the direction contained in the award is something ' incidental to this issue'. It was contended by the petitioner's counsel with reference to Delhi Cloth & General Mills Co. v. Their Workmen 1967-I L.L.J. 423] and also with reference to the second and third schedules, that this direction is beyond the scope of Issue No. 1, The respondents' counsel, however, relied upon Section 10(4) and contended that the Tribunal has authority to consider the points referred and matters, ' incidental thereto ' and what is decided in this case is a matter incidental to the issue referred for adjudication. Since I have allowed the other original petition and set aside the award to the extent challenged therein and since the above question has a direct impact on the question involved in this writ petition, I quash the direction contained in the award which is under challenge in this writ petition. The Tribunal will be at liberty to examine afresh whether the direction contained in the award can be brought within the purview of matters incidental thereto referred in Section 10(4). This writ petition also is allowed and the award to the extent it is challenged is set aside. However, the parties will be at liberty to reagitate the question when the matter goes before the Tribunal and the Tribunal will be at liberty to decide afresh all the questions raised before it.
11. These writ petitions are disposed of as above. Parties are directed to bear their costs.