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Secretary, Multi-purpose Co-operative Society Vs. Presiding Officer, Labour Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1979)ILLJ29Mad
AppellantSecretary, Multi-purpose Co-operative Society
RespondentPresiding Officer, Labour Court and ors.
Cases ReferredSales Society v. Presiding Officer
Excerpt:
.....the suspension of these five workmen did not extinguish their right to receive their wages for the period of suspension because of the conditions of service, and thereafter, compute the amount claimed by them, it is, therefore, clear that merely because the right claimed in the petition is denied by the employer, the jurisdiction of the labour court is not taken away and in a matter which could not from the subject-matter of an industrial dispute the labour court will have jurisdiction to decide the right of the employee as well. presideing officer, nagpur (1970)iillj306sc ,it was held in these cases that the claim under section 33c(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an..........one pending an enquiry, no charges were framed, no enquiry was held and the second respondent was held in suspension for an indefinite period. normally if there is an enquiry pending and the suspension is pending such an enquiry, the employee concerned may not be in a position to invoke the jurisdiction of the labour court under section 33c(2) as he will have to await the decision in the enquiry. even if the enquiry is delayed his only remedy would be to file a petition for mandamus to direct the completion of the enquiry at an earlier date and cannot invoke jurisdiction under section 33c(2) but when no enquiry is pending and the employee is kept in suspension indefinitely, certainly he will be entitled to invoke the provisions of section 33c(2) for determination of the amount payable.....
Judgment:
ORDER

V. Ramaswami, J.

1. In this writ petition an important question relating to the scope and applicability of Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter called the Act) is involved. The second respondent was impleaded as a clerk under the petitioner-co-operative society on a monthly pay of Rs. 95. The Executive Officer of the District Co-operative Society who is an inspecting authority, during inspection in May, 1972 noticed a collection of a sum of Rs. 4,485 by the Society from various members without actually issuing receipts. In certain cases, the moneys realised were not also brought into accounts maintained by the Society. The Executive Officer considered that the second respondent was responsible for these irregularities and there was a temporary misappropriations. The Executive Officer appears to have written a letter to the President of the registered Society asking him to take appropriate disciplinary action against him. On 13-7-1972, the President of the Society suspended the second respondent from service pending further investigation and enquiry. But no further action was taken either to frame charges against the second respondent or to conduct an enquiry into the alleged irregularities and temporary misappropriation. The second respondent waited for more than a year and ultimately finding that the petitioner has indefinitely suspended him from service and is not taking any action on the proposed investigation and enquiry, filed an application before the Labour Court, Madurai under Section 33C(2) of the Industrial Disputes Act claiming that he be paid wages for the period of his suspension between 13-7-1972 to 13-6-1973 when he filed the petition amounting to Rs. 1,045. He alwo claimed in that petition that he is entitled to bonus for 1969-70 in the sum of Rs.140 as per the decision of the Board and General Body of the petitioner-Society. The Society filed a counter to this claim petition raising certain legal objections in addition to challenging the claim on merits. It was contended by the Society that it had a right to keep the second respondent under suspension and that the second respondent has no right to claim wages for the period of suspension. The Labour Court held that though two years had lapsed, no domestic enquiry was held in respect of the alleged misappropriation and that, therefore, the suspension was illegal and not bona fide. The Labour Court also held that the workman is entitled to be paid salary at the rates claimed by him for the period for which he was kept under suspension. Since there was no dispute that in the General Body, the Board's recommendation relating to payment of bonus was accepted, the second respondent was also held to be entitled to bonus. Accordingly the Labour Court computed the value of the benefits due to the second respondent at Rs. 1,185 as claimed. It is against this order the Society has filed this writ petition.

2. Mr. Somayaji, the learned counsel for the petitioner, contended that the Labour Court had no jurisdiction to hold the suspension as illegal and the question whether the suspension is legal or not would only be a basis of an industrial dispute and could not be decided in an application under Section 33C(2) of the Act. In this connection he cited a number of decisions.

3. 'Industrial dispute' is defined in Section 2(k) of the Act. It has been held by the Supreme Court in General Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan : (1957)ILLJ27SC ; that a dispute which concerns the right of individual workers cannot be held to be an industrial dispute per se but it may become one if it is taken up by the union or a number of workers. In the words of the Supreme Court:

Notwithstanding that the language of Section 2(k) is wide enough to cover a dispute between an employer and a single employee the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion to settle only dispute which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the union or a number of workmen.

The Act was amended by introducing Section 2A. Under this provision, where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between the workman and his employer connected with or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute not withstanding that no other workman for any union of workmen is a party to the dispute. Thus an individual dispute between an employer and an employee relating to discharge, dismissal, retrenetment or other termination of the service of the individual has now been made an industrial dispute by the deemed provision in Section 2A. Under Section 33C(2) where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and any question arises as to the amount of the benefit to be computed in terms of money, the question may be decided by such Labour Court as may be specified in this behalf by the appropriate Government. Thus the provision contemplates a right in the workman to receive from the employer any money or benefit which is capable of being computed in terms of money. The question for consideration is whether any dispute relating to the legality or validity, of the suspension order can be decided by the Labour Court in an application filed by the workman for computing the money payable for the period during which he was under suspension. Number of decisions have come up for consideration. It is only necessary to note a few of the decision which dealt with different aspects of this matter. Before dealing with these specific cases, it may be pointed out that in a number of decisions the Supreme Court has held that when a suspension pending enquiry is followed by a dismissal or termination of service in pursuance of an order made in the enquiry, the suspension order merges with the order of dismissal. It has also been held that if an employee was suspended pending an enquiry the order of dismissal could be given retrospective effect from the date of suspension but not otherwise. In view of these settled propositions, Ismail J., in V. Raju v. President, M.D.C. Co-op. Bank : (1975)IILLJ240Mad , held, that when an order of dismissal followed a suspension pending enquiry the dismissed employee cannot file a petition under Section 33C(2) claiming wages for the period of suspension as if the period of suspension stood separately, without getting itself merged in the order of dismissal. In the words of the learned Judge:

I have taken the view that once the order of dismissal takes effect from the date of suspension and that order has become final, there is no question of the suspension period susbsequently subsisting as an independent entity or separately and. therefore, there is no question of the employee claiming any wages separately for the period of suspension.

In view of the new provision Section 2A the dismissed workman can raise a dispute relating to the dismissal or termination of service as an industrial dispute. When such question is referred to the decision of the appropriate authority under Section 10 the said authority should not only decide as to whether the dismissal was wrongful or legal and even if the dismissal is wrongful. Whether the workman is entitled to be paid back wages including the amount to be paid for the period during which he was under suspension. In other words, when a dispute relating to the non-employment by reason of the dismissal is questioned as an industrial dispute, the entire dispute from the date of suspension till the date of dismissal forms the subject-matter of the dispute and the appropriate authority would have jurisdiction to decide not only the question whether the dismissal is wrongful or legal but also as to what relief he would be entitled to including the relief relating to the period of suspension as back wages or any other allowance. Therefore, when an order of suspension is merged in an order of dismissal or termination of service any relief relating to the period of suspension could only be raised as an industrial dispute and not otherwise. This is also the ratio of the judgment in V. Raju v. President, M.D.C. Co-op. Bank : (1975)IILLJ240Mad , with which we respectfully agree.

4. In the two decisions of this Court in The Management, Udipi Hindu Restaurant, Madurai v. The Presiding Officer, Labour Court, Madurai : (1970)IILLJ492Pat and The Management of New Cinema, Main Guard Square, Madurai v. The Presiding Officer, Labour Court, Madurai : (1970)IILLJ452Mad , there are certain observations which are susceptible to a wider interpretation. But having regard to the facts in those two cases, we are of the view that they will have to be treated as cases where the suspension is followed by an order of dismissal and the decision that Section 33C(2) is not applicable is only in consonance with the principle that if there is an order of dismissal, the period of suspension cannot be treated separately. To the extent the decision in Madurai District Co-operative Supply and Marketing Society Limited, Madurai v. Veerannan and Anr. 1972 I L.L.J. 20, held that in spite of the order of dismissal taking effect from the date of suspension the right of the employee to claim salary for the period of suspension is not affected and that period could be treated separately and a claim petition under Section 33C(2) could be entertained, we are of the view is contrary to the decision in V. Raju v. President, M.D.C.C.op. Bank : (1975)IILLJ240Mad , We are of the view that this view in Madurai District Co-operative Supply and Marketing Society Ltd.. Madurai V. Veerannan and another (supra), is not acceptable and we are in respectful agreement with Ismail, J., in V. Raju v. The President M.D.C. Co-op, Bank,(supra),

5. The next category of cases are those in which though an employee concerned was under suspension pending an enquiry ultimately after enquiry he was acquitted and reinstated in service. To such a case, since he could not raise the question of suspension pending enquiry as an industrial dispute under Section 2A if he is entitled to be paid any amount for the period of suspension, he should claim it by way of a petition under Section 33C(2) before the Labour Court . In our view this was the ration of the judgment of the Supreme Court in New Taj Mahal Cafe P. Ltd., Labour Court, Hubli 1970 II L.L.J. 51. In that case five workmen were suspended by the management on different dates by different orders pending domestic enquiry to be held against them for misconduct. The domestic enquiry was not held in any of those cases and the management recalled the order of suspension and called upon those workmen to resume duty. This, however, happened after the presentation of the application under Section 33C(2) of the Act before the Labour Court. In the application the workmen claimed that they were entitled to full wages from the date of suspension upto the date of filing of the application on the ground that the orders of suspension were illegal and unauthorised. It was contended on behalf of the management that the jurisdiction of the Labour Court is confined to be determined the amount claimed by workman and it does not extend to decide the existence of the right the workman to claim the amount in case the right is denied by the employer. After referring to an earlier decision reported in Chief Mining Engineer, East India Coal Co. Ltd., Dhanbad v. Rameshwar and Ors. : (1968)ILLJ6SC , the Supreme Court held:

This decision plainly lays down that if the money or the benefit is claimed by a workman on the basis that the right already exists and the existence of that right is denied, it is competent for the Labour Court in proceedings under Section 33C(2) to decide whether the right does or does not exist. In the presnet case the amount that was claimed by the five workmen was based on their admitted contract of employment and on the further plea that their suspension being unjustified, they were entitled to their wages in accordance with their conditions of service. It was not a case where the workman wanted a right to be granted to them by the Labour Court which is a relief that cannot be claimed in proceedings under Section 33C(2) and may be claimed by raising an industrial dispute. The Labour Court, in these circumstances was competent to arrive at the finding that the suspension of these five workmen did not extinguish their right to receive their wages for the period of suspension because of the conditions of service, and thereafter, compute the amount claimed by them,

It is, therefore, clear that merely because the right claimed in the petition is denied by the employer, the jurisdiction of the Labour Court is not taken away and in a matter which could not from the subject-matter of an industrial dispute the Labour Court will have jurisdiction to decide the right of the employee as well. The scope of Section 33C(2) came up for consideration before the Supreme Court in the decisions Central Bank of India v. P.S. Rajagopalan : (1963)IILLJ89SC , reported in Chief Engineer, East India Coal Co. Ltd. v. Rameshwar : (1968)ILLJ6SC and Ramakrishna Ramanath v. Presideing Officer, Nagpur : (1970)IILLJ306SC , It was held in these cases that the claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2). The question whether the suspension was illegal or without jurisdiction could, therefore, also be gone into by the Labour Court in an application under Section 33C(2) in all cases where the suspension was not followed by a punishment of discharge, dismissal or termination.

6. At this stage we may note a decision of this Court reported in B. Kalyanasundaram v. Labour Court, Madras, (29) Factories Journal Reports, 214. where a single Judge of this Court held that even a suspension of a workman amounts to non-employment of the workman and an industrial dispute can be raised in regard to such a non-employment which is alleged to be devoid of any valid reasons. But that is a case where the non-employment was taken up as an industrial dispute by the workers' union and, therefore, is no authority for the position that every case of suspension pending an enquiry amounts to non-employment of the workman and an industrial disputes within the meaning of the Section 2(k) of the Act. In the instant case, though the suspension order purported to be one pending an enquiry, no charges were framed, no enquiry was held and the second respondent was held in suspension for an indefinite period. Normally if there is an enquiry pending and the suspension is pending such an enquiry, the employee concerned may not be in a position to invoke the jurisdiction of the Labour Court under Section 33C(2) as he will have to await the decision in the enquiry. Even if the enquiry is delayed his only remedy would be to file a petition for mandamus to direct the completion of the enquiry at an earlier date and cannot invoke jurisdiction under Section 33C(2) but when no enquiry is pending and the employee is kept in suspension indefinitely, certainly he will be entitled to invoke the provisions of Section 33C(2) for determination of the amount payable to him for the period of suspension.

7. In the result, we are of the view that on the facts and circumstances of this case, in view of the fact that there was no enquiry at all till the date when the application was filed, for more than one year from the date of suspension the application before the Labour Court was maintainable and the Labour Court was right in going into the question as part of the enquiry, of determination of the amount payable of the legality of the suspension itself.

8. On facts it was conceded by the witness for the management that the suspension contemplated under the by-laws of the Society pending disciplinary enquiry could only be for a period of three months at a time. There is no evidence to show that for every period of three months there was an order of suspension. A Full Bench of this Court in Palani Co-op. Sales Society v. Presiding Officer : AIR1975Mad241 , construing a provision similar to the one of the by-laws of this Society, held that for every three months there should be a fresh order of suspension otherwise the suspension order will be illegal. The Labour Court was, therefore, right holding that the suspension order in the instant case was illegal. Even for the first three months, the second respondent will be entitled to salary as the power is to suspend pending an enquiry but no enquiry is held, in effect the suspension for the period of the first three months would amount to a substantative punishment and, therefore, even for the first three months he is entitled to salary as claimed. The order of the Labour Court is, therefore, not liable to be interfered with.

9. The writ petition accordingly fails and it is dismissed. Rule nisi is discharged. Since the second respondent has not appeared either in person or by counsel there will be no order as to consts.


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