Karnataka High Court
Management Of Bosch Ltd., vs State Of Karnataka on 14 August, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST,2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT PETITION No.26198/2011 (L-RES)
R
BETWEEN :
MANAGEMENT OF BOSCH LTD.,
(EARLIER KNOWN AS MANAGEMENT OF MOTOR
INDUSTRIES CO LTD)
REGISTERED.OFFICE,
POST BOX NO.3000, HOSUR ROAD,
ADUGODI, BANGALORE 560030
REPRESENTED BY ITS
GENERAL MANAGER. ...PETITIONER
(BY SRI: K KASTURI, SENIOR COUNSEL FOR
M/S.KASTHURI ASSOCIATES, ADVOCATES)
AND :
1 STATE OF KARNATAKA,
REPRESENTED BY THE SECRETARY CUM
PRESIDING OFFICER, TO GOVERNMENT,
LABOUR DEPARTMENT,
MULTISTORIED BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE-560001.
2 MICO EMPLOYEES ASSOCIATION
NO.33, SHRAMAJEEVI BHAWAN,
BANNERGHATTA ROAD,
2
BANGALORE-560030
REP. BY ITS GENERAL SECRETARY. ...RESPONDENTS
(BY SRI: M.C.NARASIMHAN, SENIOR COUNSEL FOR R2;
R1 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 02.04.2011, VIDE ANNEXURE-J, ISSUED BY THE
SECRETARY CUM PRESIDING OFFICER ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is by the Management, questioning the order of reference dated 02.04.2011 made by the State produced at Annexure-J.
2. By show cause notice dated 9.3.2009, the Management called upon the respondent - Union to show cause as to why an appropriate and disciplinary action should not be initiated against the workmen for alleged misconduct of resorting to slanderous behaviour being abetment by colleagues and creating discord amongst the employees, jeopardizing industrial peace, thereby 3 affecting the business of the Company, which would in the long run affect the interest of all employees, interalia for the reason that, the workman on 3.3.2009, he along with his colleague distributed pamphlets near the factory gate wherein, apart from other issues, he made certain baseless allegations pertaining to the service conditions of the Managerial and Supervisory staff, by making derogatory and defamatory statement against the Management of the Company.
3. As against the show cause notice, the workman gave his reply on August 07, 2009. He admitted that, he had distributed pamphlets, but stated that it was outside the factory premises and as a leader of the Union for the benefit of the workmen, he had distributed the pamphlets, hence, it is not a misconduct. The distribution of pamphlets outside the factory premises does not amount to misconduct nor it is violative of Standing Order.
4. The Management unsatisfied with the reply issued charge 4 sheet-cum-suspension order dated 18.12.2009 interalia alleging willful insubordination or disobedience of the reasonable order of the superior; intimidating or interfering or attempting to intimidate and/or interfere in any way with any workman of the Company in discharge of Company affairs and distribution of pamphlets, resulting jeopardizing the industrial peace, resorting to slanderous behaviour to create discord among the employees and trainees alike, accordingly it ordered for keeping the workman under suspension with immediate effect and during suspension, the workman is entitled for subsistence allowance as per the rules. By issuing charge sheet-cum-suspension order, the Management called upon the workman for his explanation within three days. In response to the same, workman gave his reply dated 12.01.2010, denying that there was any misconduct committed by him and alleged that the distribution of pamphlets outside the gate does not amount to misconduct nor there is any violation of Standing Order, further, there is no disobedience of the reasonable orders of the 5 superior.
5. The workman unsatisifed with the order of suspension, submitted a representation to the Conciliation Officer for conciliation of the dispute as regard to the order of suspension. In response to the said representation, the Conciliation Officer issued a notice to the Management. However, the efforts of the Conciliation Officer failed to settle the issue, accordingly, Conciliation Officer submitted failure report to the State. In response to the failure report submitted by the Conciliation Officer, the State by the impugned order dated 02.04.2011 referred the issue to the Industrial Tribunal for adjudication. It is said order of reference has been called in question by the Management. The issue referred is as to 'whether the suspension of the workman with immediate effect for alleged misconduct is justified'.
6. Sri Kasthuri, learned Senior Counsel for the Management submitted that, the order of reference by the State is in exercise of 6 administrative power, but such exercise of power must be only in respect of the industrial dispute. The issue raised by the respondent does not constitute any industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act (in short referred to as 'Act'). Keeping the workmen under suspension pending enquiry and suspension pending enquiry being not discontinuation of an employment, not being a punishment and being a consequence of initiation of a domestic enquiry, it will not amount to industrial dispute, as such, the reference of such issue per se is without jurisdiction under Section 10(1) of the Act. He referred to the terms of the settlement between the Union and the Management and submitted that, the terms of settlement provides for suspension of employee pending enquiry and during this period, workman is paid the subsistence allowance as per rules. Further, same has been paid to the workman regularly.
7. He also referred to the provisions of the Payment of Subsistence Allowance Act, and pointed out that, pending enquiry, 7 an employee could be kept under suspension, however, the employee is entitled for subsistence allowance during the said period. When there is no industrial dispute, the State Government has erroneously referred the issue to the Industrial Tribunal. Further, even before the issue was referred, the Enquiry Officer has submitted his report to the Disciplinary Authority and the Disciplinary Authority has passed an order of dismissal and further sought for permission for approval of the same under Section 33(2) of the Act. Further submitted that, the reference sought by the respondent - workman is only with intention to over come the order of dismissal. By keeping the issue of suspension pending, the workman wants to prevent the Management from taking any action against the workman. He relied on the judgment reported in 1972-II-LLJ 143 in the matter of Awadesh Kumar Bhatnagar -vs- The Gwalior Rayon Silk Mfg. Weaving Ltd. And another to submit that, the suspension can be either based on a contract of service or on the basis of the statute or it can be implied part of the 8 contract of service. Holding an enquiry against the workman for the misconduct and keeping him under suspension during the pendency of enquiry is also part of collective bargain, and the same is part of the settlement. Though there was no dispute at all, still, without even noticing as to the nature of dispute, has mechanically referred the dispute and submitted that, though Section 10 sub- section (1) of the Industrial Disputes Act confers power on the State to refer the dispute to the Industrial Tribunal for adjudication, but such reference would be only in respect of the industrial dispute. The State cannot mechanically refer any issue without understanding the nature of dispute and without considering as to whether the issue sought to be referred is an industrial dispute or not.
8. On the other hand, Sri.M.C.Narasimhan, learned Senior Counsel for the respondent - Union submitted that, the State cannot enter into the merits of the issue to find out whether there exists industrial dispute or not. The State exercises administrative 9 power, there is no scope to enquire as to whether the dispute arises or not. Industrial dispute or incidental to industrial dispute are all the issues, which have to be adjudicated only by the Labour Court / Industrial Tribunal, as the case may be. The State exercises only an administrative function and not an adjudicatory function.
9. He further submitted that, the validity of the suspension order is also a matter for reference to the Industrial Tribunal for adjudication, as to whether the suspension is based on test of fairness and reasonableness.
10. To support his contention, he relied on the decision reported in AIR 1987 SC 2257 in the matter of O.P.Gupta -vs- Union of India and others and submitted that, longer suspension deprives the person of this liberty and such suspension is also an issue arises in an industrial dispute, which can be referred to, under Section 10(1) of the Act. He further relied on the decisions reported in:
10
1. 1999-II-L.L.J. Page 423 in the matter of Mallesha P.
-vs- Union of India and others;
2. (1995) 5 SCC 75 in the matter of Rajasthan State Road Transport Corporation and Another -vs-
Krishna Kant and others;
3. (1989) 3 SCC 271 in the matter of Telco Convoy Drivers Mazdoor Sangh and another -vs- State of Bihar and others;
4. AIR 1953 SC 53 (Head Note-C) in the matter of State of Madras -vs- C.P.Sarathy and another;
5. 2004-III-LLJ page 1123 in the matter of E.I.H Limited
-vs- National Capital Territory of Delhi and others;
6. 1966-II L.L.J. Page 430 in the matter of Kalyanasundaram (B) -vs- Labour Court, Madras and another;
and submitted that, the suspension contrary to the Standing Order, contrary to the settlement, is nothing but the punishment and such matter requires an adjudication by the Industrial Tribunal.
11. He further submitted that, in this case, as against the show cause notice, a reply was given admitting that the workman has distributed the pamphlets outside the factory gate, when he has 11 admitted that, he has distributed the pamphlets and contended that there exists no industrial dispute, there was no reason for holding an enquiry, as such, it is on the basis of the workman's representation, Conciliation Officer had submitted a failure report, once failure report is submitted to the State, the State has no jurisdiction to reject the same except to refer the dispute to the competent Industrial Tribunal or Labour Court. When the allegations in the charge sheet do not show any misconduct holding an enquiry, on the basis of the same and keeping the employees under suspension is nothing but denial of an employment, as the workman will not be benefited with all the service benefits while he was on suspension and submitted that, the State having a limited jurisdiction, rightly in exercise of the administrative power, has referred the issue. He also relied on another judgment reported in 2011(128) FLR 121 in the matter of Kuldeep Singh -vs- G.M., Instrument Design Development and Facilities Centre and another and submitted that, not only the industrial dispute but also 12 the matter connected with industrial dispute also can be referred for adjudication. The suspension is a matter connected with the enquiry, being an incidental to it, as such, the reference is justified and there is no reason to interfere with the same.
12. By way of reply, Sri.Kasthuri, learned Senior Counsel submitted that, every dispute cannot become an industrial dispute, only an industrial dispute, which can be referred to the Tribunal or the Labour Court, he also relied on the judgment reported in 1970- II-LLJ 256 in the matter of M/s.Western India Match Company Limited -vs- The Western India Match Co. Workers' Union. He also relied on another judgment reported in 1963-I-L.L.J Page 665 in the matter of Khem Chand and Union of India and others to submit that, the suspension does not put an end to the service or employment of the workman, it does not partake the character of unemployment. Further submitted that, in this case itself, as per the wage slip produced by the workman, workman is paid 90% of wages by way of subsistence allowance. Hence, without there 13 being any dispute much less industrial dispute, unnecessarily the State has made a reference of the dispute to the Tribunal. Such reference is one without jurisdiction.
13. In the light of the contentions raised by both the Counsel, the points that arise for consideration in this petitions are:
(i) Whether the State in exercise of its power under Section 10 sub-section (1) of the Industrial Disputes Act can refer all the disputes to the Tribunal or the Labour Court any because of the failure report?
(ii) Whether the issue relating to suspension pending enquiry amounts to industrial dispute?
14. Facts, which are not in dispute are that, the respondent - workman was issued with a show cause notice dated 09.03.2009, alleging that the workman has committed a misconduct. It is also not in dispute that, the workman has caused his reply to the same, admitting some and disputing other allegations. It is also not in dispute that the charge sheet was issued on 05.05.2009. 14
The allegation against the workman was that, he was distributing the pamphlets making serious allegation against the managerial staff and particularly making derogatory statement. It is in these circumstances, a charge sheet along with the suspension order was issued to the workman. The relevant portion of the suspension order reads as under:
"Considering the grave and serious nature of the misconduct, you are hereby placed under Suspension with immediate effect. You will be paid subsistence allowance as per rules. You are required to submit your explanation in writing within three (3) days from the date of receipt of this charge sheet, failing which, it will be presumed that you have no explanation to offer and further action will be initiated as deemed fit".
It is also not in dispute that, for this charge sheet, the workman submitted his explanation dated 12.01.2010. The Enquiry Officer was appointed and enquiry was held as per at Annexure-R8. Further, it is submitted that, the Enquiry Officer 15 has submitted a report holding the charge is proved and thereafter the Disciplinary Authority has also passed an order of dismissal. In the meanwhile, the workman approached the Conciliation Officer for conciliation of dispute as to whether the Management could keep the workman on suspension on alleged misconduct.
It is also not in dispute that the conciliation failed and failure report was submitted to the State Government. It is thereafter the State Government has passed an order for reference of an issue for adjudication to the Tribunal.
15. The issue refereed by the State reads as under:
"CqÀ½vÀ ªÀUÀðzÀªÀgÁzÀ d£ÀgÀ¯ï ªÀiÁå£ÉÃdögï, ªÀÄB¨Áµï °., ¥ÉÇöøïÖ ¨ÁPïì £ÀA.3000, ºÉÇöÊÆgÀÄ gÀ¸ÉÛ, DqÀÄUÉÆöÃr ¨ÉAUÀö¼ÀÆgÀÄ -30, EªÀgÀiÀ ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ð, ªÉÄöÊöPÉÆöà JA¥Áè¬Äøï C¸ÉÆöùAiÉÄÃöµÀ£ï, £ÀA.33, ±ÀæªÀÄfë ¨sÀªÀ£À, §£ÉßÃögÀÄ¥üÀlÖ gÀ¸É öÛ, ¨ÉAUÀö¼ÀÆgÀÄ - 560 030, EªÀjAzÀ ¥Àæw¤¢ü¸À®àqÀÄwÛgÀĪÀ PÁ«ÄðPÀgÁzÀ ²æÃ.«dAiÀĨsÁ¸ÀÌgï E., JA¥Áè¬Äà £ÀA.19486, 30 ªÀµÀðUÀ¼ÀÄ, EªÀjUÉ CªÀgÀ zÀÄ£ÀðqÀvÉUÁöV vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ EvÀåxÀð ¥ÀǪÀð CªÀiÁ£ÀwÛ£À°è EnÖgÀĪÀÅzÀÄ £ÁåAiÀÄ ¸ÀªÀÄävÀªÉÃ?16
16. The reading of this issue shows that, the issue referred is as to "whether the Management is justified in keeping the workman under suspension for the alleged misconduct?"
17. It is nobody's case that only the suspension order is passed and no enquiry is initiated to enquire as to whether the workman has committed misconduct or not. Annexure-J - charge sheet-cum-suspension shows that the order of suspension is pending enquiry. Under the general service rules, the employer has the power to keep the employee under suspension pending enquiry of misconduct.
18. In this case, the terms of settlement provides for payment of subsistence allowance as per the provisions. If the enquiry is get prolonged for more than 90 days, the workman is entitled for subsistence allowance equal to the 3/4th of the workman's salary/wages. The Certified Standing Order Clause-22 relating to misconduct also provides for punishment of an employee by 17 suspending him for a period not exceeding four days. However, the Standing Order also clarifies that the order of suspension shall be in writing and may take effect immediately on communication thereof to the employee. Such order shall set out the details of alleged misconduct and the employee shall be given an opportunity of explaining the facts and circumstances alleged against him. If on enquiring, the order is confirmed and modified, the employee shall be deemed to be absent from duty for the period of suspension and shall not be entitled to any remuneration whatsoever for such period. If, however, the order is rescinded, the employee shall be entitled to the same wages as he would have received if he had not been suspended. A reading of this provision also makes it clear that, the suspension referred to other than the punishment by way of punishment is pending enquiry and in case the enquiry is held against the Management, the workman is entitled for subsistence allowances. The suspension of an employee pending enquiry is subject to the final order by the 18 Disciplinary Authority. Such suspension cannot be termed as punishment. Under the provisions of Section 3 of the Payment of Subsistence Allowance Act, 1988, the employee can be kept under suspension pending enquiry. The issue under reference only relates to an order of suspension pending enquiry. Insofar as the allegation as to the misconduct is concerned, it is a matter, which has to be enquired by the Enquiry Officer and the Disciplinary Authority and it is stated that Enquiry Officer has submitted a report as regard to the misconduct.
19. There are three kinds of keeping the employee or workman away from the employment, namely:
(1) Suspension by way of punishment, in such case, there is no further enquiry, that itself is punishment;
(2) Keeping the employee away from the employment, by prohibiting from employment, this also results in punishment, as there would be no enquiry;
(3) Suspension during the pendency of the enquiry, the 19 employee will not lose his employment, but may be prevented from working, but would be entitled for subsistence allowance during this period. If the period is extended beyond 90 days, he is entitled for allowance up to 90% of his wages. Apart from the same, it is subject to the final order from the Disciplinary Authority, if the misconduct is not passed, the employee is entitled for treating the entire period of suspension as on duty and also for consequential benefits. In such case, the employee/workman does not lose his employment or the service benefit. Only if the misconduct is proved, he loses the benefit of treating the period of suspension on duty. However, he is not liable to repay the allowance he had received during the period of suspension.20
20. Hence, the order of suspension pending enquiry itself would constitute an industrial dispute. It is appropriate to refer the definition of "Industrial Dispute" as contemplated under Section 2 clause (k) of the I.D.Act, which reads as under:
"industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person."
21. Reading of the definition of the "industrial dispute"
shows that, it is a dispute between the employer and the workmen.
No doubt, there is a dispute between the employer and employee, but it is in regard to the alleged misconduct alleged against the workman. The misconduct is charge for which an enquiry is held.
But suspension is pending enquiry for the alleged charge of misconduct. The dispute is in regard to the misconduct and not as to the suspension. The order of suspension is consequence of initiation of an enquiry and independent of the enquiry. Such 21 orders of suspension are subject to the final result of the enquiry into the allegation of misconduct. However, if order of suspension is issued pending enquiry, and no enquiry is held for long time, such act may amount to punishment, but not in all cases.
22. In the matter of O.P.Gupta (supra), the Apex Court considering the order of suspension pending enquiry has treated it as a punishment. But the facts in the said case were very clear that the suspension of Government servant pending departmental enquiry is not by way of punishment, so also the withholding of increments at the efficiency bar pending such enquiry. But when the departmental proceedings which were pending for over 20 years with little or no progress as being wholly invalid and unfair, in such case, keeping an employee under suspension for a period of 11 years tantamounts to imposition of penalty, which is manifestly repugnant to the principles of natural justice and fairplay in action. It is in this context, the Apex Court found that the person, who was under suspension for a period of 11 years and without the 22 departmental enquiry being in progress, held that it is a punishment. However, in this case, such is not the case as pending enquiry, the workman was kept under suspension and has been paid subsistence allowance and the enquiry report is culminated in the order of dismissal passed by the Disciplinary Authority. The issue as to whether the misconduct alleged is held proved or it is victimization or not, is also a matter, which has to be gone into in a dispute, which may be decided by the Tribunal against the order of dismissal. But the issue as to the order of suspension during the pendency of enquiry itself cannot be a dispute to be adjudicated, as it always dependent on the decision on the dispute as to the order of dismissal of alleged misconduct is justified or not.
23. The power of the Government under Section 10 sub- section (1) of the Industrial Disputes Act is concerned, the said provision reads as under:
"10. Reference of disputes to Boards, Courts or Tribunals:-(1) Where the appropriate Government is of opinion that any industrial dispute exists or is 23 apprehended, it may at any time, by order in writing,-
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry;
or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication.
Provided that where the dispute relates to any matters specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c);
Provided further that, where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that nay other proceedings under this Act, in respect of the dispute may have commenced; 24
Provided also that where the dispute in relating to which the Central Government, is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government."
This provision clearly refers to the existence of industrial dispute. No doubt, it is well settled law that the Government will not enter into the merits of the allegations while making the order of reference of an issue for adjudication. However, Section 10 itself stipulates that the Government must be of the opinion that, there exists an industrial dispute, it is only when it forms an opinion that there exists the industrial dispute, it refers the issue for adjudication to the Tribunal or Labour Court. . This aspect of the matter has been considered by the Apex Court and several other judgments. In a decision reported in 1999 II L.L.J. 423 in the matter of Mallesha P. (supra), the Apex Court has observed that the Government cannot delve into the merits of the dispute and take upon itself determination of lis. such task will exclusively fall 25 within the domain of the Industrial Tribunal. The Apex Court in the said judgment while considering the issue as to the failure on the part of the State to refer the issue has relied on the decision reported in 1985(2) LLJ 187 wherein the Apex Court on interpretation of Section 10 has observed that, the Government cannot delve into the merits of the dispute and take upon itself the determination of lis. The power conferred under Section 10 requires the appropriate Government to be satisfied with the industrial dispute existed or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or putforth for extraneous and irrelevant reasons not for justice or industrial piece and harmony. The relevant paragraph reads as under:
"If the Government performs an administrative act while either making or refusing to make a reference under Sec. 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Sec.10. Sec.10 26 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or putforth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on grounds irrelevant, extraneous or not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. Therefore, the Court may not issue writ of mandamus, directing the Government to make a reference but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter".
24. The above observation makes it clear that, no doubt, the Government exercises an administrate power, it will not delve into the merits of the dispute, but at the same time, it has to have a jurisdiction before ti can refer an issue to the Industrial Tribunal prima facie to know as to whether the dispute exists or not, or the dispute is frivolous or bogus or putforth for extraneous 27 circumstances. Merely because it is an administrative power, it is not a mechanical act of the Government to refer the matter to the Tribunal / Labour Court, only on the ground of failure reports.
25. The Apex Court even in its earliest judgment reported in AIR 1953 SC 53 in the matter of C.P.Sarathy (supra) also has observed that the Government must have sufficient knowledge of the nature of dispute to be satisfied that it is an industrial dispute within the meaning of the Act. However, beyond this, no obligation can be held to lie on the Government to ascertain the particulars of the dispute before making a reference. This judgment of the Apex Court is followed in subsequent judgment also in 1995(5) SCC page 75 in the matter of Rajasthan State Road Transport Corporation (supra) wherein the Apex Court having regard to the scope of Section 10 of the Industrial Disputes Act has found that, the dispute relating to right and obligation created by the Industrial Disputes Act Act can be adjudicated only by the forum creating under the Industrial Disputes Act namely, the 28 dispute must be an industrial dispute and in reference to employer and workman in particular. At para-20 and 21 on consideration of the definition of "industrial dispute" it is observed that, the dispute must be relating to rules and obligation, which alone could be adjudicated by the Tribunal.
26. The Constitutional Bench of the Apex Court in a judgment reported in 1963-I-L.L.J Page 665 in the matter of Khem Chand (supra) as regard to the rules providing for order of suspension pending enquiry,. has observed that, such rules will not in any way affect the rights of the workman. An order of suspension of a Government servant does not put an end to his service under the Government. The observation of the Apex Court shows that the workman kept under suspension pending enquiry, that will not put an end to the service of the workman or will effect his employment.
27. As such, if the order of suspension is not punishment, or 29 does not put an end to the employment or it does not deny the rights and obligations of the workman, mere suspension pending enquiry by itself does not constitute an industrial dispute.
28. In this case, the wage slip produced by the workman also shows, out of wages of Rs.22,000/-, 90% of wages i.e., Rs.20,000/- is paid by way of subsistence allowance.
29. On the contrary, as against the allegation of misconduc,t admittedly, an enquiry is initiated and enquiry report has been submitted. Suppose the issue as referred by the Government is to be adjudicated, necessarily adjudication has to be made as to the allegation of misconduct. There cannot be two enquiries, one on the misconduct on the basis of the charge memo and another to consider the suspension on the basis of misconduct.
30. But in case of suspension pending enquiry, the issue is referred to the Industrial Tribunal, necessarily, it will prevent the enquiry into the misconduct by the Enquiry Officer. It will prevent 30 the Management from passing the order of punishment, during the pendency of the adjudication of issue of suspension by the Tribunal. This may result in frustrating the enquiry itself and defeat the purpose of conducting the enquiry into the allegation of misconduct and punishing.
31. Hence, such reference not only are not industrial dispute but defeat the collective bargain of punishing the workman for his misconduct.
32. When a workman has an opportunity to contest the enquiry and challenge the order of disciplinary authority by raising the dispute, raising dispute as regard to the suspension pending enquiry cannot be construed as industrial dispute except if it is found to be punishment or penalty.
33. Hence, considering these circumstances, the Government though exercised its administrative power, but it requires prima facie to consider as to whether there exists an industrial dispute or 31 not. To this extent, the Government must apply its mind. In this case, the order of suspension referred being pending enquiry and enquiry simultaneously being held and concluded, it does not amount to punishment nor it would be industrial dispute. Hence, I find that there was no reason for the State to refer the issue. In these circumstances, this petition deserves to be allowed.
Accordingly, the writ petition is allowed. The order dated 2.4.2011 produced at Annexure-J, is hereby quashed.
Sd/-
JUDGE KNM/DP