A. Varadarjan, J.
1. This writ petition is under Article 226 of the Constitution of India for the issue of a writ of certiorari or any other appropriate writ or order calling for records of the second respondent, vis., the Presiding Officer, Additional Labour Court, Madras, relating to Claim Petition No. 290 of 1978 and quashing the order, dated 10th June, 1976 passed in that petition computing the benefits claimed by the first respondent under Section 33-C (2) of the Industrial Disputes Act, 1947.
2. The first respondent was working as a Clerk under the petitioner on a salary of Rs. 300 per mensum. According to the petitioner, there was an internal audit and it disclosed that the first respondent had misappropriated monies to the extent of Rs. 9,160.50 by making false entries and preparing false vouchers. According to the petitioner, when confronted with the internal audit report, the first respondent stayed away from work from 25th April, 1974. Thereupon, the petitioner called upon the first respondent by Exhibit P-3, dated 29th April, 1974 to explain as to why he stayed away from work. On 9th May, 1974 the first respondent sent a reply, Exhibit P-5, saying that on 25th April, 1974 he took ill suddenly and requesting for extension of leave till 11th May, 1974. Nothing was heard from the first respondent thereafter. The petitioner asked the first respondent by the letter, Exhibit P-6, dated 24th May, 1974 to submit his explanation. The first respondent sent the explanation, Exhibit P-7, dated 3rd June, 1974. On 10th September, 1974 the first respondent sent a lawyer's notice, Exhibit P-8, claiming subsistence allowance on the ground that he had been suspended from service. The petitioner sent a reply, Exhibit P-9, dated 16th October, 1974 saying that there was no suspension and that the first respondent himself stayed away from work and was not entitled to any subsistence allowance. On 6th June, 1975, the first respondent filed Claim Petition No. 290 of 1975 under Section 33-C (2) of the Industrial Disputes Act claiming salary for May, 1974, and subsistence allowance for the subsequent period at 50% of the wage and bonus at 20% of the wages, aggregating to Rs. 2,970. Subsequently the first respondent filed I.A. No. 24 of 1976 for amendment of the Claim Petition No. 290 of 1975 by claiming full wages for the period subsequent to May, 1974, instead of subsistence allowance.
3. The petitioner filed a counter-affidavit in the claim petition denying that there was any suspension of the first respondent and contending that the petitioner had stayed away from work and was not entitled to any subsistence allowance or any other amount. He filed a counter-affidavit opposing I.A. No. 24 of 1976 saying Inter alia, that it is not maintainable.
4. The Labour Court allowed the interlocutory application and treated the claim petition as one claiming full wages from May, 1974 and bonus at 20% of the wages. Subsequently the Labour Court allowed the claim petition as prayed for by any order, dated 10th June, 1976 holding that there was suspension and that there was no provision for suspension and, therefore, the first respondent was entitled to full wages for the entire period as well as bonus.
5. It is stated that there was a criminal case against the first respondent. Subsequently the first respondent was found guilty of the charge framed against him in domestic enquiry and he was dismissed from service with retrospective effect from 29th April, 1974 by an order, dated 5th April, 1977. The petitioner thus contends that the impugned order, dated 10th June, 1976 of the Labour Court is liable to be quashed.
6. In the writ petition, the first respondent contends that he had been suspended from service and that since there is no standing order or any contract between the parties providing for the petitioner to suspend the first respondent, the first respondent is entitled to full wages and the bonus claimed in the claim petition.
7. The only argument advanced by the learned Counsel for the petitioner is that the order of dismissal dated 5th January, 1977 is with retrospective effect from 29th April, 1974 and, therefore, the first respondent has to be held to be not entitled to claim the benefit, which has been computed in the claim petition by the Labour Court by order, dated 10th June, 1976. In support of this contention, reliance is placed by the learned Counsel for the petitioner on the decision of a Division Bench of this Court in the Secretary, Multi-purpose Co-operative Society; Malayadi Vanniyur P. O., Kanyakumari District v. Presiding Officer, Labour Court, Madurai and Anr (1979) 1 L.L.J. 29 and also on the decision of a Full Bench of this Court in the Secretary, Palani Co-operative Sales Society, Palani and Anr. v. The Presiding Officer, Labour Court, Madurais and Anr. : AIR1975Mad241 In the Full Bench case there was a claim petition for computing the benefit claimed by a workman and subsequently there was an order of dismissal. The learned Judges, while remanding the matter for fresh disposal by the Presiding Officer, Labour Court, had observed that the Presiding Officer would also take into account the subsequent dismissal of the employee concerned on the question whether in view of it his claim would be tenable and if so, to what extent. In the Division Bench case V. Ramaswami and S. Ratnavel Pandian, JJ., have observed that it has been held in a number of decisions by the Supreme Court 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 the other portion of the judgment the learned Judges have observed as follows:
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 33-C (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 early date and cannot invoke jurisdiction under Section 33-C (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 33-C(2) for determination of the amount payable to him for the period of suspension.
Having regard to the facts and circumstance of that case 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 learned Judges held that the application before the Labour Court was maintainable and the Labour Court was right in going into the question as part of the enquiry, for determination of the amount payable and the legality of the suspension itself.
8. In the present case only the employee's explanation was asked for by the petitioner's letter, dated 24th May, 1974 and no charge memo, at all was issued to the first respondent, who had been suspended by the letter, Exhibit P-3, until the Labour Court passed the impugned order in the claim petition. The petitioner had confirmed by the subsequent letter Exhibit P-6 the fact that the first respondent had been suspended. The Labour Court was, therefore, justified in inferring from Exhibits P-3 and P-6 that the petitioner had placed the first respondent under suspension with effect from 29th April, 1974. It is seen from the records produced by the learned Counsel for the petitioner for my perusal that a charge memo, was issued to the first respondent for the first time only on 11th September, 1976 and that in the enquiry held in respect of that charge, the first respondent had been found guilty and dismissed on 5th January, 1976 retrospectively from the date of the suspension. It is curious to note that the petitioner who had all along been denying the very factum of suspension, has woken up and found after the order in the claim petition had been passed that there had been a suspension and come forward with a case in the order of dismissal that there was a suspension and has dismissed the first respondent with retrospective effect from the date of suspension. Since no charge memo, was issued until 11th September, 1976, though the first respondent has been suspended on 29th April, 1974 itself for nearly 21/2 years, the observation made by the learned Judge of the Division Bench in the Secretary, Multipurpose Co-operative Society, Matayadi Vanniyur P.O., Kanyakumari District v. Presiding Officer, Labour Court, Madurai and Ors. (1979) 1 L.L.J. 29 that when no enquiry is pending and the employee is kept in suspension indefinitely certainly he will 'be entitled to invoke the provisions of Section 33-C (2) for determination of the amount payable to him for the period of suspension would apply to the facts of this case. Therefore, the petition under Section 33-C (2) of the Industrial Disputes Act was clearly -maintainable before the Labour Court.
9. Now, going to the decision of the Full Bench, it is seen that in the present case the domestic enquiry was started only on 11th September, 1976 by the issue of the charge memo, nearly 3 months after the order in the claim petition granting the benefits due to the first respondent under Section 33-C (2) of the Industrial Disputes Act had been passed. The dismissal order which has come into existence after the date of the order in the claim petition could not be allowed to have the effect of effacing the order passed validly by the Labour Court under Section 33-C (2) of the Industrial Disputes Act. It is not possible to agree with the learned Counsel for the petitioner that the order could not be construed as taking away the right of the management to dismiss the worker with effect from the date of suspension on his being found guilty of the charge framed against him if he had already been suspended pending enquiry into the charge. If the claim is made for the subsequent period, the order of dismissal may be a bar and it has to be got over before the claim could be made. That is not the case here. I am of the opinion that the order passed by the lower Court validly under Section 33-C (2) of the Industrial Disputes Act could be got over only by challenging the same in proceedings taken under Article 226 of the Constitution of India or by any petition for review or other process known to law. In the circumstances of the case it could not be held that the impugned order has ceased to exist by reason of the dismissal of the first respondent with retrospective effect from the date of suspension on the basis of the order, dated 5th November, 1976 in which he had been found guilty of the charge framed against him only on 11th September, 1976.
10. No other submission was made by the learned Counsel for the petitioner in this case. There is no reason to interfere with the impugned order of the Labour Court for the reasons mentioned above. The writ petition is dismissed with costs. Advocate's fee Rs. 100.