Full Judgment Text
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PETITIONER:
THE MANAGEMENT OF HOTEL IMPERIAL, NEW DELHI & OTHERS
Vs.
RESPONDENT:
HOTEL WORKERS’ UNION
DATE OF JUDGMENT:
21/05/1959
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.
GAJENDRAGADKAR, P.B.
CITATION:
1959 AIR 1342 1960 SCR (1) 476
ACT:
Industrial Dispute-Employer seeking permission to dismiss
workmen as result of enquiry Suspension of workmen Pending
decision of such application by Tribunal-Validity-Workmen,
if entitled to wages during Period of suspension--Grant
of interim relief-Power of Supreme court-Industrial Disputes
Act, 1947 (14 Of 1947), ss. 10(4), 33.
HEADNOTE:
The appellants, who were the managements of the three
hotels, decided to dismiss some of their workmen who were
found guilty of misconduct as a result of enquiries held by
them and suspended them without pay pending the receipt of
the permission of the Industrial Tribunal under S. 33 Of the
Industrial Disputes Act, 1947. The workmen applied to the
Industrial Tribunal for the grant of interim relief pending
disposal of the applications and the Tribunal granted the
relief prayed for amounting to full wages and a sum of Rs.
25 per head per month in lieu of food. The managements
appealed against such grant, but the Labour Appellate
Tribunal dismissed the appeal---. The appellants came up to
this court by special leave. The two questions for-
,decision in the appeals were, (1) whether any wages were at
all payable to the suspended workmen pending permission
being sought under S. 33 to dismiss them and the decision of
the applications under S. 33 Of the Act, and, (2) whether
the Industrial Tribunal was competent to grant interim
relief except by an interim award that was published.
Held, that it was well settled that under the ordinary law
of master and servant the power to suspend the servant
without
477
pay could not be implied as a term in an ordinary contract
of service between the master and the servant but must arise
either from an express term in the contract itself or a
statutory provision governing such contract.
Hanley v. Pease & Partners, Limited, 1915 (1) K.B. 698;
Wallwork v. Fielding and Ors., 1922 (2) K.B. 66; Secretary
of State for India in Council v.Surendra Nath Goswami,
I.L.R. 1939 (1) Cal. 46 and Rura Ram v. Divisional
Superintendent, N. W. R., I.L.R. VII (1954) Punj. 415,
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referred to.
But S. 33 of the Industrial Disputes Act, 1947, which took
away the right of the employer to dismiss the employee
except with the permission of the Industrial Tribunal,
introduced a fundamental change in industrial law in
modification of the common law by empowering the employer by
implication to suspend the contract of employment and thus
relieve himself of the obligation to pay the wages and the
employee of rendering service, where, as a result of a
proper enquiry, he came to the conclusion that an employee
should be dismissed. In the peculiar circumstances created
by the enactment of s. 33 Of the Act it was just and fair
that Industrial Tribunals, which had the power to go beyond
the ordinary law of master and servant, should imply such a
term in the contract of employment. The result, therefore,
would be that if the Tribunal granted the permission, the
suspended contract would come to an end and there would be
no further obligation on the part of the employer to pay any
wages after the date of suspension. If on the other hand,
the permission was refused. the workmen would be entitled to
all their wages from the date of suspension.
Western India Automobile Association v. The Industrial
Tribunal, Bombay, [1949] F.C.R. 321 and Rohtas Industries
Ltd. v. Brijnandan Pandey, [1956] S.C.R. 800, referred to.
Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [1956]
S.C.R. 916; The Management of Ranipur Colliery v. Dhuban
Singh, C.A. 768/57, decided on 20-4-59, M/s. Sasa Musa
Sugar Works (P) Ltd. v. Shobrati Khan, C. As. 746 and
747/57, decided on 29-4-59 and Phulbari Tea Estate v. Its
Workmen, [1960] (1) S.C.R. 32 explained and relied on.
But the employer’s power of suspension could not take away
the power of the Tribunal to grant interim relief to the
workmen under the Act, the words " incidental thereto "
occurring in S. 10(4) of the Act made it clear that interim
relief, where admissible, could be granted as a matter
incidental to the main question under reference, although it
might not be expressly mentioned in the terms of the
reference.
It is not necessary to decide whether an interim relief of
this nature amounted to an interim award. Even assuming
that the Industrial Tribunal could not grant interim relief
except by an interim award which required publication that
could not preclude
478
this Court from granting interim relief in the same manner
as the Industrial Tribunal could and ss. 15, 17 or 17A could
have no of application to such an order passed by this
Court.
Ordinarily interim relief could not be the whole relief the
workmen would get in case of final success and the
appellants should not be made to pay more than half the
amount adjudged by the Industrial Tribunal as interim relief
in these cases.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 31-33 of
1958.
Appeal by special leave from the decision dated May 28,
1956, of the Labour Appellate Tribunal, Lucknow (Delhi
Branch), in Appeals Nos. Ill. 313-315 of 1955.
M. C. Setalvad, Attorney-General for India, Jai Gopal Sethi,
J. B. Dadachanji, S. N. Andley, Rameshwar Nath and P. L.
Vohra, for the appellants (in all appeals).
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G. S. Pathak, V. P. Nayar and Janardan Sharma, for the
respondents (in all appeals).
1959. May 21. The Judgment of the Court was delivered by
WANCHOO J.-These are three appeals by special leave from
three decisions of the Labour Appellate Tribunal of India.
We shall dispose of them by one judgment, as they raise
common points. The three appellants are the managements of
(1) Imperial Hotel, New Delhi, (2) Maiden’s Hotel, Delhi and
(3) Swiss Hotel, Delhi, the respondents being their
respective workmen represented by the Hotel Workers’ Union,
Katra Shahanshahi, Chandni Chowk, Delhi.
It seems that disputes were going on between these hotels
and their workmen for some time past about the conditions of
labour of the workmen employed therein. Matters seem to
have come to a head about the end of September, 1955 and a
strike of all the workmen in all the three hotels took place
on October 5,1955. Before this general strike in the three
hotels, there had been trouble in Imperial Hotel only in
August, 1955. In that connection charge-sheets were served
on 22 workmen and an enquiry was held by the management
which came to the conclusion that the workmen were
479
guilty of misconduct and therefore decided to dismiss them.
Consequently, notices were served on October 1955, upon
these workmen informing them that the management had decided
to dismiss them subject to obtaining permission under s. 33
of the Industrial Disputes Ac, 1947 (hereinafter called the
Act). It seems that this action of the management of
Imperial Hotel led to the general strike in all the three
hotels on October 5, 1955. Thereupon the three managements
issued notices to the workmen on October 5, 1955, directing
them to re-join their duties within three hours failing
which action would be taken against them. As the workmen
did not join within this time, fresh notices were issued the
same day asking them to show cause Why disciplinary action
should not be taken against them. In the meantime they were
informed that they would be under suspension. On October 7,
1955, the three managements issued notices to the workmen
informing them that it had been decided to dismiss them and
that they were being suspended pending the obtaining of
permission under s. 33 of the Act.
As the disputes between the hotels and their workmen were
already under consideration of Government, an order of
reference was made on October 12, 1955, relating to Imperial
Hotel. In this reference a large number of matters were
referred to adjudication including the case of 22 workmen
whom the management of the hotel had decided to dismiss on
October 4, 1955. This reference with respect to Imperial
Hotel, however, did not refer to the workmen whom the
management had decided to dismiss on October 7, 1955.
Further enquiries seem to have been made by the management
in this connection and eventually it was decided to confirm
the action taken on October 7 with respect to nineteen
workmen. These nineteen workmen had in the meantime applied
under s. 33-A of the Act on the ground that they had been
suspended without pay for an indefinite period and had thus
been punished in breach of s. 33. Thus the dispute so far
as Imperial Hotel is concerned was with respect to 44
workmen in all, 25 of whom were included in the
480
reference of October 12, 1955, and the remaining 19 in had
filed an application under s. 33-A of the Act. It does not
appear, however, that Imperial Hotel made any application
under s. 33 of the Act for permission -to dismiss these 19
workmen, though an application under that section was made
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on October 22, 1955, with respect to 22 workmen whose
dismissal was decided upon on October 4, 1955.
So far as Maiden’s Hotel is concerned, the case relates to
26 workmen whose dismissal was finally considered by the
management to be necessary on further enquiry after October
7, 1955. An order of reference was made in the case of this
hotel on November 23, 1955, in which the case of 26 workmen
was referred to the tribunal along with other matters..
Later, however, 12 of these workmen were re-employed on
December 10, 1955, and the real dispute therefore so far as
this hotel is concerned related to 14 workmen.
In the case of Swiss Hotel also there were further
enquiries after the notices of October 7. In the meantime,
an application was made under s. 33-A of the Act by the
union to the conciliation officer. Eventually, it appears
that on November 10, 1955, reference was made with respect
to 14 workmen to the tribunal for adjudication.
We now, come to the proceedings before the Industrial
Tribunal. In all three cases, applications were filed on
behalf of the workmen for interim relief, the date of the
application being October 22 in case of Imperial Hotel and
November 26 in case of Maiden’s Hotel and Swiss Hotel.
Replies to these applications was filed by the managements
on December 5, 1955. On the same day, the Industrial
Tribunal passed an order granting interim relief In the case
of Imperial Hotel, it ordered that 43, out of 44 workmen,
who had applied for interim relief should be paid their
wages plus a sum of Rs. 25 per month per head in lieu of
food till final decision in the matter of the dismissal of
these workmen. In the case of Maiden’s Hotel, the
management was prepared to take back 12 workmen and they
were ordered to report for duty or before December 10, 1955.
It was also ordered that these 12
481
workmen till they were re-employed and the "remaining" 13
workmen till the decision of their case would be paid by way
of interim relief their wages from October 1, 1955, plus Rs.
25 per month per head in lieu of food. No order was passed
with respect to the 26th workman, namely, Chiranjilal
sweeper. In the case of Swiss Hotel, the management was
prepared to take back six of the workmen and they were
ordered to report for duty on or before December 10, 1955.
In other respects, the order was in the same terms as in the
case of Maiden’s Hotel.
Then followed three appeals by the three hotels against the
three orders granting interim relief These appeals were
dismissed by the Labour Appellate Tribunal on May 28, 1956.
Thereupon the three hotels applied for special leave to
appeal to this Court, which was granted. They also applied
for stay of the order of the Industrial Tribunal relating to
payment of wages plus, Rs. 25 per month per head in lieu of
food. Stay was granted by this Court on June 5, 1956, on
condition that the employers would pay to the employees a
sum equal to half of the amount adjudged payable by the
orders dated December 5, 1955, in respect of the arrears
accrued due till then and continue to pay in the same
proportion in future until determination of the dispute
between the parties. It appears that after this order of
June 5, 1956, even those workmen who had not been re-
employed after the order of December 5, 1955, were taken
back in service on July 15, 1956, by the three hotels.
Thus, 2 workmen in the case of Swiss Hotel, 13 workmen in
the case of Maiden’s Hotel and 43 workmen in the case of
Imperial Hotel were taken back in service.
The main contentions on behalf of the hotels are two,
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namely, (1) are any wages payable at all to workmen who are
suspended pending permission being sought under s. 33 of the
Act for their dismissal ? and (2) is an industrial tribunal
competent to grant interim relief without making an interim
award which should have been published ?
61
482
Re. (1).
The contention of the appellants under this head is that
suspension of the workmen pending permission under s. 33 of
the Act imposes an absolute bar to the payment of any wages
to the suspended workmen. On the other hand, it is
contended on behalf of the respondents that suspension of
workmen involving non-payment of wages is not contemplated
at all under the ordinary law of master and servant in the
absence of an express term in the contract of employment to
that effect; and as in these cases there were admittedly no
standing orders providing suspension without payment of
wages, it was not open to the appellants to withhold wages
as the orders of suspension made in these cases merely
amounted to this that the employers were not prepared to
take work from the workmen. Even so, the right of the
workmen to receive wages remained and the employer was bound
to pay the wages during the period of so-called suspension.
The Industrial Tribunal as well as the Appellate Tribunal
took the view that in the absence of an express term in the
contract of employment, wages could not be withheld, even
though the employer might suspend the workman in the sense
that he was not prepared to take any work from them.
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 forbid,% 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
483
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 bound to
pay. These principles of the ordinary law of master and
servant are well settled and have not been disputed before
us by either party. Reference in this connection may be
made to Hanley v. Pease and Partners, Limited(1), Wallwork
v. Fielding (2), Secretary of State for India in Council v.
Surendra Nath Goswami (3) and Bura Ram v. Divisional
Superintendent, N. W. Railway (4).
The next question that falls for consideration is whether
these principles also apply to a case where the master has
decided to dismiss a servant, but cannot do so at once as he
has to obtain the permission necessary under s. 33 of the
Act and therefore suspends the workman till he gets such
permission. This brings us to the sphere of industrial law.
Ordinarily, if s. 33 of the Act did not’ intervene, the
master would be entitled to exercise his power of dismissing
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the servant in accordance with the law of master and servant
and payment of wages would immediately cease as the contract
would come to an end. But s. 33 of the Act has introduced a
fundamental change in the law of master and servant so far
as cases which fall within the Act are concerned. It has
therefore to be seen whether Industrial Tribunals which are
dealing with the matter under the Act must follow the
ordinary law of master and servant as indicated above or can
imply a term in the contract in the peculiar circumstances
supervening under s. 33 of the Act to the effect that where
the master has concluded his enquiry and come to the
decision that the servant should be dismissed and thereupon
suspends him pending permission under s. 33, he has the
power to order such suspension, which would result in
temporarily suspending the relation of master and servant,
so that the servant is not bound to render service and the
master is not bound to pay wages. The power of Industrial
Tribunal in
(1) [1915] 1 K.B. 698. (3) I L.R. [1939] 1 Cal. 46.
(2) [1922] 2 K.B. 66. (4) I.L.R. VII (1954) Punj.
415.
484
matters of this kind arising out of industrial disputes was
considered by the Federal Court in Western India ’Automobile
Association v. The Industrial Tribunal, Bombay(1) and the
following observations of Mahajan, J. (as he then was) at p.
345 are apposite:
" Adjudication does not, in our opinion, mean
adjudication according to the strict law of
master and servant. The award of the tribunal
may contain provisions for settlement of a
dispute which no Court could order if it was
bound by ordinary law, but the tribunal is not
fettered in any way by these limitations. In
Volume 1 of ’Labour Disputes and Collective
Bargaining’ by Ludwig Teller, it is said at p.
536 that industrial arbitration may involve
the extension of an existing agreement or the
making Of a new one, or in general the
creation of new obligation or modification of
old ones, while commercial, arbitration
generally concerns itself with interpretation
of existing obligations and disputes relating
to existing agreements. In our opinion, it is
a true statement about the functions of an
industrial tribunal in labour disputes."
This Court in Rohtas Industries Ltd. v. Brijnandan Pandey (2
) also recognised the correctness of the dictum laid down in
the above Federal Court decision and observed that there was
a distinction between commercial and industrial arbitration,
and after referring to the same passage in " Labour Disputes
and Collective Bargaining " by Ludwig Teller (Vol. 1, p.
536), proceeded to lay down as follows at p. 810:-
" A Court of law proceeds on the footing that
no power exists in the courts to make
contracts for people; and the parties must
make their own contracts. The Courts reach
their limit of power when they enforce
contracts which the parties have made. An
Industrial Tribunal is not so fettered and may
create new obligations or modify contracts in
the interests of industrial peace, to protect
legitimate trade union activities and to
prevent unfair practice or victimisation."
(1) [1949] F.C.R. 321. (2) [1956] S.C.R. 800.
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485
It is clear therefore that Industrial Tribunals have the
power to go beyond the ordinary law of master and servant,
if circumstances justify it. In these cases the decision of
the Labour Appellate Tribunal has proceeded strictly on the
basis of the ordinary law of master and servant without
regard to the, fundamental change introduced in that law by
the enactment of s. 33 of the Act. All the cases to which
we have been referred with respect to the ordinary law of
master and servant had no occasion to consider the impact of
s. 33 of the Act on that law as to the power of the master
to suspend. We have, therefore, to see whether it would be
reasonable for an Industrial Tribunal where it is dealing
with a case to which s. 33 of the Act applies, to imply a
term in the contract giving power to the master to suspend a
servant when the master has come to the conclusion after
necessary enquiry that the servant has committed misconduct
and ought to be dismissed, but cannot do so because of s.
33. It is urged on behalf of the respondents that there is
nothing in the language of s. 33 to warrant the conclusion
that when an employer has to apply under it for permission
he can suspend the workmen ’concerned. This argument,
however, begs the question because if there were any such
provision in s. 33, it would be an express provision in the
statute authorising such suspension and no further question
of an implied term would arise. What we have to see is
whether in the absence of an express provision to that
effect in s. 33, it will be reasonable for an Industrial
Tribunal in these extraordinary circumstances arising out of
the effect of s. 33 to imply a term in the contract giving
power to the employer to suspend the contract of employment,
thus relieving himself of the obligation to pay wages and
relieving the servant of the corresponding obligation to
render service. We are of opinion. that in the peculiar
circumstances which have arisen on account of the enactment
of s. 33, it is but just and fair that Industrial Tribunals
should imply such a term in the contract of employment.
This Court had occasion to consider this matter in four
cases, though the point was not specifically argued
486
in the manner in which it has been argued before us now.
But a consideration of these cases will show that, though
the point was not specifically argued, the view of this
Court has consistently been that in such cases a term should
be implied giving power to the master to suspend the
contract of employment after he has come to the conclusion
on a proper enquiry that the servant should be dismissed and
has to apply to the tribunal for permission under s. 33.
In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup (1),
there was a provision in the standing orders for suspension
for four days without pay. In actual fact, however, the
employer in that case after having come to the conclusion
that the employees should be dismissed suspended them
without pay pending permission of the tribunal and it was
held that such suspension was not punishment, even though it
exceeded four days. This was the main point which was under
consideration in that case; but it was further observed that
such a suspension was only an interim measure and would last
till the application for permission to punish the workman
was made and the tribunal had passed orders thereon. 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.
In The Management of Ranipur Colliery v. Bhuban Singh (2),
it was pointed out that but for this ban the employer would
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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. The contract of
service would thus be brought to an end by an immediate
dismissal after the conclusion of the enquiry and the
employee would not be entitled to any further wager,. 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. It was,
therefore, reasonable that the employer having done all that
he could do to bring the contract of service to an end
should not be
(1) [1956] S.C.R. 916. (2) C.A. 768/57, decided on April
20, 1959.
487
expected to continue paying the employee thereafter. It was
pointed out that in such a case the employer, would be
justified in suspending the employee without’ pay as the
time taken by the tribunal to accord permission under s. 33
of the Act was beyond the control of the employer. Lastly,
it was pointed out that this would not cause any hardship to
the employee; for if the tribunal granted permission, the
employee would not get anything from the date of his
suspension with out pay, while if the permission was refused
he would be entitled to his back wages from such date.
Lakshmi Devi Sugar Mills Ltd. (1) was referred to and it was
explained that the principle laid down in that case would
only apply where s. 33 would be applicable.
In Messrs. Sasa Musa Sugar’ Works (P) Ltd. v. Shobrati Khan
(2), the view taken in the two earlier cases was reiterated
with the rider that in case the employer did not hold an
enquiry and suspend the workman pending permission, he would
have to go on paying the wages till the proceedings under s.
33 were concluded and the tribunal granted permission to
dismiss the workman.
In Phulbari Tea Estate. v. Its Workmen (3), the rider laid
down in the case Messrs. Sasa Musa Sugar Works (P) Ltd. (2)
was further extended to a case of an adjudication under s.
15 of the Act and it was pointed out that if there was any
defect in the enquiry by the employer he could make good
that defect by producing necessary evidence before the
tribunal; but in that case he will have to pay the wages up
to the date of the award of the tribunal, even if the award
went in his favour.
It is urged on behalf of the respondents that there were
at any rate some Standing Orders, particularly in Lakshmi
Devi Sugar Mills Ltd. (1) and The Management of Ranipur
Colliery (4) giving power to suspend for some period of time
and therefore further suspension might be justified on the
basis of those Standing Orders. In the case of Messrs.
Sasa Musa Sugar
(1) [1956] S.C.R. 916. (3) [1960] 1 S.C.R. 32.
(2) C.As. 746 & 747/57, (4) C.A. 768/57
decided on April 29, 1959, decided on April 20, 1959,
488
Works (P) Ltd. (1), however, there were no Standing Orders
till then in force. The ratio of the decision in these
cases was, however, not based on the presence or absence of
the Standing Orders; for there is very little difference in
principle between the cases where Standing Orders provided a
few days suspension without pay and the suspension was
continued for a much longer period and where there were no
Standing Orders providing suspension without pay. We are of
opinion that though these cases did not expressly proceed on
the basis of an implied term in the contract of employment
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to suspend the employee an thus suspend the relation of
master and servant temporarily, that must be the implicit
basis on which these decisions were given. But for such a
term being implied, it would not be possible at all to lay
down, as was laid down in these cases, that if a proper
enquiry bad been held and the employer had decided to
dismiss the workman and apply for permission and in
consequence had suspended the workman- there would be no
obligation on him to pay wages from the date of suspension
if permission was accorded to him under s. 33. We are,
therefore, of opinion that the ordinary law of master and
servant as to suspension can be and should be held to have
been modified in view of the fundamental change introduced
by s. 33 in that law and a term should be implied by
Industrial Tribunals in the contract of employment that if
the master has held a proper enquiry and come to the
conclusion that the servant should be dismissed and in
consequence suspends him pending the permission required
under s. 33 he has the power to order such suspension, thus
suspending the contract of employment temporarily, so that
there is no obligation on him to pay wages and no obligation
on the servant to work. In dealing with this point the
basic and decisive consideration introduced by s. 33 must be
borne in mind. The undisputed common law right of the
master to dismiss his servant for proper cause has been
subjected by s. 33 to a ban; and that in fairness must mean
that, pending the removal of the said statutory ban, the
master can
(1) C.As. 746 & 747/57, decided on April 29, 1959.
489
after holding a proper enquiry temporarily terminate the
relationship of master and servant by suspending his
employee pending proceedings under s. 33. It follows
therefore that if the tribunal grants permission, the
suspended contract would come to an end and there will be no
further obligation to pay any wages after the date of
suspension. If, on the other hand, the permission is
refused, the suspension would be wrong and the workman would
be entitled to all his wages from the date of suspension.
This, however, does not conclude the matter so far as the
grant of interim relief in these cases is concerned. Even
though there may be an implied term giving power to the
employer to suspend a workman in the circumstances mentioned
above, it would not affect the power of the tribunal to
grant interim relief for such a power of suspension in the
employer would not, on the principles already referred to
above, take away the power of the tribunal to grant interim
relief if such power exists under the Act. The existence of
such an implied term cannot bar the tribunal from granting
interim relief if it has the power to do so under the Act.
This brings us to the second point, which has been canvassed
in these appeals.
Re. (2).
After a dispute is referred to the tribunal under s. 10 of
the Act, it is enjoined on it by s. 15 to bold its pro-
ceeding expeditiously and on the conclusion thereof submit
its award to the appropriate government. An " award " is
defined in s. 2(b) of the Act as meaning " an interim or
final determination by an Industrial Tribunal of any
industrial dispute or of any question relating thereto."
Where an order referring an industrial dispute has been made
specifying the points of dispute for adjudication, the
tribunal has to confine its adjudication to those points and
matters incidental thereto; (s. 10(4)). It is urged on
behalf of the appellants that the tribunal in these cases
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had to confine itself to adjudicating on the points referred
and that as the question of interim relief was not referred
to it, it could not adjudicate upon that. We are of opinion
62
490
that there is no force in this argument, in view of the
words " incidental thereto " appearing in s. 10(4). There
can be no doubt that if, for example, question of
reinstatement and/or compensation is referred to a tribunal
for adjudication, the question of granting interim relief
till the decision of the tribunal with respect to the same
matter would be a matter incidental thereto under s. 10(4)
and need not be specifically referred in terms to the
tribunal. Thus interim relief where it is admissible can be
granted as a matter incidental to the main question referred
to the tribunal without being itself referred in express
terms.
The next question is as to how the tribunal should proceed
in the matter if it decides to grant interim relief. The
definition of the word "award" shows that it can be either
an interim or final determination either of the whole of the
dispute referred to the tribunal or of any question relating
thereto. Thus it is open to the tribunal to give an award
about the entire dispute at the end of all proceedings.
This will be final determination of the industrial dispute
referred to it. It is also open to the tribunal to make an
award about some of the matters referred to it whilst some
others still remain to be decided. This will be an interim
determination of any question relating thereto. In either
case it will have to be published as required by s. 17.
Such awards are however not in the nature of interim relief
for they decide the industrial dispute or some question
relating thereto. Interim relief, on the other hand, is
granted under the power conferred on the tribunal under s.
10(4) with respect to matters incidental to the points of
dispute for adjudication.
It is however urged on behalf of the appellants that even
if the tribunal has power under s. 10(4) of the Act to grant
interim relief of the nature granted in these cases it can
only do so by submitting an award under s. 15 to the
appropriate government. Reference in this connection is
made to sections 15, 17 and 17-A of the Act. It is
submitted that as soon as the tribunal makes a determination
whether interim or final, it must submit that determination
to government which has to publish it as an award under s.
17 and thereafter
491
the provisions of s. 17-A will apply. In reply the res-
pondents rely on a decision of the Labour Appellate Tribunal
in Allen Berry and Co. Ltd. v. Their Work. men(1), where it
was held that an interim award had not to be sent like a
final award to the government for publication and that it
would take effect from the date of the order. We do not
think it necessary to decide for present purposes whether an
order granting interim relief of this kind is an award
within the meaning of s. 2(b) and must therefore be
published under s. 17. We shall assume that the interim
order passed by the Tribunal on December 5, 1955, could not
be enforced as it was in the nature of an award and should
have been submitted to the government and published under s.
17 to become enforceable under s. 17-A. It is, however,
still open to us to consider whether we should pass an order
giving interim relief in view of this alleged technical
defect in the order of the Industrial Tribunal. We have the
power to grant interim relief in the same manner as the
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Industrial Tribunal could do and our order need not be sent
to government for publication, for ss. 159 17 and 17-A do
not apply to the order of this Court just as they did not
apply to the decision of the Appellate Tribunal which was
governed by the Industrial Disputes (Appellate Tribunal)
Act, 1950 (No. XLVIII of 1950), (since repealed). We have
already mentioned that this Court passed an order on June 5,
1956, laying down conditions on which it stayed the
operation of the order of December 5, 1955, made by the
Industrial Tribunal. We are of opinion that order is the
right order to pass in the matter of granting interim relief
to the workmen in these cases. Ordinarily, interim relief
should not be the whole relief that the workmen would get if
they succeeded finally. In fairness to the Industrial
Tribunal and the Appellate Tribunal we must say that they
granted the entire wages plus Rs. 25 per mensem per head in
lieu of food on the view that no suspension was possible at
all in those cases and therefore the contract of service
continued and full wages must be paid. Their orders might
have been different
(1) [1951] 1 L.L.J. 228.
492
if they had held otherwise. It seems to us just and fair in
the circumstances therefore to order that the appellants
shall pay to their respective workmen concerned half the
amount adjudged payable by the order dated December 5, 1955,
with respect to the entire period, as the case may be, from
October 1, 1955 to December 10, 1955 or July 15, 1956, by
which date, as we have already pointed out, practically all
the workmen were taken back in service. We, therefore,
order accordingly.
Lastly, it is urged on behalf of the respondents that as
all the workmen concerned were taken back in service they
should be paid full wages for the interim period as their
re-employment means that the decision to dismiss them and
the consequent order of suspension were waived. This is a
matter on which we do not propose to express any opinion.
The proceedings are so far at the initial stage and the
effect of re-empolyment, in the absence of full facts, on
the question of waiver cannot be determined at this stage.
It is enough to point out that the order we have passed
above is an interim relief and it will be liable to be
modified one way or the other, when the Industrial Tribunal
proceeds to make the final determination of the questions
referred to it in the light of the observations we have made
on the matter of suspension. The appeals are partly allowed
and the order dated December, 5, 1955, granting interim
relief is modified in the manner indicated above. In the
circumstances, we order the parties to bear their own costs
of this Court. As more than three years have gone by in
these preliminaries since the references were made, we trust
that the Industrial Tribunal will now dispose of the matter
as expeditiously as possible.
Appeals allowed in part.
493