(1) The question that requires an answer in this revision petition is whether the Payment of Wages Authority has jurisdiction to award wages for the period during which the workman was suspended pending enquiry into the charges. The petitioner was employed by the respondent as a cashier on a monthly salary of Rs.100 in addition to free boarding etc. By an order dated 1-3-1961, the petitioner was suspended with effect from 3-3-1961, pending enquiry into certain charges against him, the details of which need not be set out here. But as no enquiry was started, the petitioner presented an application before the Payment of Wages Authority under S. 15(2) of the Payment of Wages Act (hereinafter referred to as the Act) for an order directing the respondent to pay a sum of Rs. 1,680 as representing his wages upto that date. The Payment of Wages Authority, while rejecting the petitioner's claim for some months on the ground of limitation, directed the respondent to pay the petitioner Rs. 1,100 at Rs. 160 per month for seven months as wages and cost of free food.
(2) The respondent carried an appeal to the Chief Judge of the Court of Small Causes, contending that it was not within the powers of the Payment of Wages authority as the claim does not fall within the ambit of S. 15 of the Act. The submission found favour with the appellate tribunal with the result that the order of the payment of wages authority was reversed and the application of the petitioner dismissed. In his opinion the payment of wages authority could not decide as to the validity of the suspension of the petitioner by the respondent. It is this judgment of the Chief Judge of the Court of Small Causes that is the subject-matter of this revision case.
(3) The point taken by Sri Ramaswami in this revision petition is that the appellate Tribunal failed to appreciate that S. 15(2) of the Act is attracted to all cases where the wages are withheld for some reason or other and is not confined to cases of withholding of wages for the actual work done by the employee. We are disposed to accede to this proposition.
(4) Before we address ourselves to this question it is convenient to look at the terms of S. 15.
"1. The State Government may, by notification in the official Gazette, appoint any Commissioner for workmen's compensation, or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of wages.........
2. Where contrary to the provisions of this Act, any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act or any other person acting with the permission of the authority appointed under sub-section (1) may apply to such authority for a direction under sub-section (3);
Provided that every such application shall be presented within six months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be."
We are not concerned with the other provisions of S. 15. We may also mention here that some changes have been introduced into the section but it is unnecessary for the purpose of this enquiry to refer to them as our decision turns upon S. 15(1) as it stood at the time of the presentation of the application.
(5) Could it be posited that the payment of wages has been delayed as contemplated by sub-section (2). In our opinion, the non-payment of wages for a number of months on the ground of suspension would amount to delaying payment of wages. It is true there is some support for the view taken by the Chief Judge of the Court of Small Causes that so long as the suspension is in operation, it could not be postulated that there has been withholding or delaying payment of wages and it is not for the payment of wages authority to decide whether the suspension was valid or not, videVenkatavaradan v. Sembiam Saw Mills, Madras, 68 Mad LW 360 and Arumugham v. Manager, Jawahar Mills Ltd., AIR 1956 Mad 79.
(6) In the first of these cases the employee was first suspended and subsequently discharged from service. He applied to the Commissioner under the Payment of Wages Act, for salary for the period during which he was suspended and also damages for wrongful termination of service. The learned Judge thought that the whole claim was in effect damages for wrongful termination of service without treating the claim for wages for the period of suspension as a distinct claim. He held that the proper course, if any, for the employee was to institute a suit for damages and not claim damages under the Act and the forum was not the Commissioner but a Civil Court.
(7) In AIR 1956 Mad 79 Ramaswami, J. held that wages for the period of suspension are not within the contemplation of S. 15(2) as they amount only to potential wages. Moreover, the decision in that case seems to have turned upon the standing orders governing the employment of workmen. As already remarked by us, the theory propounded by the two learned Judges seems to lend colour to the opinion expressed by the Appellate Tribunal.
(8) We feel that the language of S. 15 cannot sustain the conclusion arrived at by them. It should be remembered that the contract for service subsists between the employer and employee even during the period of suspension and in the absence of a term in the contract permitting the employer to suspend the employee pending enquiry against him, he must be deemed to be in service and entitled to remuneration, the fact that he was not allowed to work, not making any difference in this behalf. In the absence of a rule permitting the employer to suspend the employee for some reason or other, it is not within the powers of the employer to suspend the employee and refuse to pay him wages therefor.
(9) This decision of ours is reinforced by the pronouncement of the Supreme Court in Hotel Imperial v. Hotel Workers Union, . It was laid down there 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 the master and servant and that such a power can only be the creature either of statutory provision or a rule or standing order governing the employment or of an express term in the contract itself. The absence of such power either means that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension.
(10) Burn and Co. Ltd. v. Their Workmen, 1959-1 Lab LJ 450: (AIR 1959 SC 529) rendered by the Supreme Court is authority for the proposition that where one is placed under suspension, as a rule, his wages including allowances are withheld for the time being.
(11) The judgment of the Calcutta High Court in Union of India v. Arjun Singh, 1961-1 Lab LJ 454 (Cal), contains the principle that the wages payable to a workman suspended come under the purview of S. 15. It was held there that the employee could not work because the employer had not respected the contract that existed between the two and if the employee could not render service and actually earn the wages in question, the situation was "amenable to the Act".
(12) On the language of S. 15, and the decided cases, we feel that the wages payable to the employee in a case like the present one come within the range and scope of S. 15 in the absence of a term in the contract, or of a rule, statutory or otherwise, of a standing order in that behalf permitting the employer to do it. We are not persuaded that the absence of a term in the contract prohibiting the employer from suspending the employee enables the employer to suspend the employee as suggested by the learned counsel for the respondent. In our opinion, it is the presence of a term in the contract or any provision either in the statute or rule or standing order entitling the employer to suspend the employee that could be basis of suspension.
(13) In the result, we reverse the decision of the Chief Judge of the Court of Small Causes and restore that of the Payment of Wages Authority. This civil revision petition is allowed with costs.
(14) We are thankful to Sri Ghani who assisted us as amicus curiae for the respondent.
(15) Revision allowed.