Bombay High Court
Municipal Corporation Of Greater ... vs Laxman Saidoo Timmanepyati And Ors. on 21 December, 1990
Equivalent citations: 1991(2)BOMCR353
JUDGMENT M.F. Saldanha, J.
1. This is a writ petition filed by the Municipal Corporation of Greater Bombay directed against an order dated 6-1-1989 passed by the Member of the Industrial Court, Bombay, in Complaint (ULP) No. 558 of 1988. In the month of March 1988, the three respondents, who are employees of the Municipal Corporation, were placed under suspension pursuant to the loss of a certain amount of money which was kept in one out of three bags and which had been entrusted to them for the purpose of disbursement of wages to municipal employees. The Bombay Municipal Corporation, prima facie, held the three respondents responsible for the loss in question and they were, therefore, placed under suspension on 23-3-1989, pending disciplinary proceedings. A complaint came to be filed in the month of April 1988 by these employees under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the M.R.T.U. and P.U.L.P. Act"), the grievance being that the three applicants namely, the present respondents Nos. 1 to 3, had already been transferred to different jobs and that there was neither warrant nor justification for placing them under suspension, the consequences of which were serious and far-reaching. Relying on the Rules framed by the Bombay Municipal Corporation, the applicants namely, the present respondents Nos. 1 to 3, contended that there was total non-application of mind and that they had been mechanically suspended without there being justification either on fact or in law and that they were virtually victimised. It was their case that a theft had occurred in respect of the cash; and as a face-saving device in order to cover up the lack of proper security on the part of the Bombay Municipal Corporation, that they had been placed under suspension and to this extent it was contended that the act of the Bombay Municipal Corporation constituted an unfair labour practice under item (9) of Schedule IV to the M.R.T.U. and P.U.L.P. Act. The Court, after hearing the parties, passed an interim order dated 6-1-1989, which order has been challenged by the Bombay Municipal Corporation through the present writ petition. The Court, inter alia, came to the conclusion that the Bombay Municipal Corporation had the right to suspend the three employees under the provisions of Rules 8 and 9 of the Municipal Servant Conduct and Disciplinary Rules framed under the Municipal Services Regulations.
2. The Court, however, went into another aspect of the case because by that time a period of more than 9 months had elapsed since the employees were placed under suspension without the disciplinary proceedings making much progress. The Court, therefore, noted that the Rules in question do not make a provision for any outer limit with regard to the duration for which an employee can be kept under suspension and, therefore, observed that this period of suspension should not be unlimited and that there should be some restrictions put on the period of suspension, as it is extremely difficult for an employee to survive on the subsistence allowance that he receives. As regards these observations made by the learned Member of the Industrial Court, there can be no two opinions about the fact that in the course of the last few years, Courts have been repeatedly required to come down heavily on the action of the Authorities and employers who resorted to the use of the power of suspension and thereafter did not proceed with or complete the disciplinary proceedings with the degree of urgency that is necessary. This court has, in a number of cases ,set aside the suspension orders on the ground that it was not in the public interest that an employee should be paid the whole or any part of his salary and should be kept away from his work station unless there are very grave and very compelling reasons to do so. In the absence of those reasons, this court has taken the view that, if necessary, the employee can even be transferred to another department or to another place , but that the continuance of a suspension order except in few instances where there is no other option is contra-indicated. Similarly, even as far as the Government employees are concerned, there are specific directions and guidelines issued to the effect that if the disciplinary proceedings are not proceeded with or completed within the prescribed time period, the employee ought to be reinstated in service and that the suspension order should be revoked. In the light of these provisions, the observations made by the learned Member of the Industrial Court are perfectly valid, correct and require to be not only commended, but they must be upheld.
3. Suspension is a preventive measure or a check aimed at minimising further loss or damage to an employer at the hands of an employee who has, prima facie, been involved in serious misconduct and can also be justified in cases where the conduct of the disciplinary proceedings can be demonstrably affected. Unless these factors are present, mechanical resort to this power is contraindicated and is liable to be struck down. Apart from the intense hardship caused to the employee, it leads to economic waste, whereby the employer is paying a part or the greater proportion of the salary without corresponding work being performed . Suspension is not to be misunderstood as being a punitive measure, and in order to avoid the obnoxious practice of unjustified suspension for indefinite periods, it would be a healthy practice to insist on the suspending authority passing a reasoned order in which the grounds for suspension are spelt out. In the absence of such an order, the Courts would find it difficult to assume that here was due application of mind and that the authority has not acted capriciously and arbitrarily. It will also guard against the much prevalent practice of squandering public funds in cases where employees are improperly continued on suspension; for years and then paid full wages after decision of their cases.
4. It is against the concluding part of the order that the essential challenge in this writ petition has been directed. The learned Member of the Industrial Court has held that in view of the provisions of the Model Standing Orders and since there is no specific comparable provision in the Rules framed by the Bombay Municipal Corporation with regard to the payment of full wages after 6 months of the suspension that the provisions contained in the Model Standing Orders be treated as the statutory provisions and that in keeping with these provisions, the applicants, namely the present respondents Nos. 1 to 3, be paid their full salary and allowances as prescribed therein.
5. Mr. Anil Kumar, the learned Advocate appearing on behalf of the petitioners, has, at the very outset, challenged the jurisdiction of the Industrial Court as far as the entertainment of the present complaint is concerned. To start with, he has pointed out that as far as the facts are concerned, the applicants, namely, the present respondents Nos. 1 to 3 , have challenged the suspension order, and even if the incidental question regarding subsistence allowance is to be taken into account, that the Bombay Municipal Corporation has acted in keeping with its Rules. There is no dispute about the fact that the relevant Rules do invest the Bombay Municipal Corporation with the powers of suspending an employee pending disciplinary proceedings in serious cases. He has pointed out that a large amount of money was involved and that, consequently, the Bombay Municipal Corporation had come to the, prima facie, conclusion that the employees concerned were responsible for the heavy loss to the Bombay Municipal Corporation and were liable to be proceeded against and there is no reason why the Court should assume at that point of time that for an offence of this seriousness that the employees could not have been dismissed. Furthermore, he contends that as regards the second part of the cause of action, namely, the payment of subsistence allowance on the date when the employees had approached the Court is concerned, they were receiving the subsistence allowance in keeping with the Rules about which there is no compliant. Regarding the subsistence allowances payable after the period of 9 months , the question was yet to come up and had not arisen on the date when the employees approached the Court. This was not a case where the Bombay Municipal Corporation had refused to revise the subsistence allowance after a certain period had elapsed and, therefore, it cannot be contended that the reliefs which the Court has granted to the employees at the stage of the hearing of the application, which was nearly 10 months after the same was filed, related to any cause of action that was in existence when the complaint was filed. He, therefore, contends that, on facts, the complaint ought not to have been entertained at all.
6. The second submission canvassed by Mr. Anil Kumar is on the point of law. He has drawn my attention to the judgement delivered by my brother A.A. Desai, J., reported in the case of The Div. Commi. M.S.R.T.C. v. Presiding Officer, Ind. Courts & Ors., 1989(II) C.L.R. 132. In that case, an employee had moved the Industrial Court at Nagpur by way of a complaint under sections 28 and 30 of the M.R.T.U. and P.U.L.P. Act in the course of certain disciplinary proceedings whereby the contention raised was that the Corporation was about to dismiss him or terminate his services and the Court passed an order directing the Corporation not to implement the same until further orders. The contention raised was that the contemplated action that was complained about had not yet taken place and that under the scheme of the Act, it was not competent to maintain a complaint by way of an anticipatory proceeding on the ground of an anticipatory breach A.A. Desai, J., in a considered judgement, after analysing the provisions of the M.R.T.U. and P.U.L.P. Act, came to the conclusion that this contention was liable to be upheld in so far as the remedy provided under the Act can only be availed of after the legal injury complained about has taken place and not at the point of time prior to such an eventuality having occurred. This view has been reiterated and followed in a recent judgement of this Court wherein Dhanuka, J., in Writ Petition No. 2521 of 1989 Indian Metals Co. Ltd. v. D.T. Pandey and another, by judgement dated 5-12-1990, has further observed that in the light of the law as laid down by this Court in the earlier judgement referred to above, any such proceedings would be non est in so far as the Court would have no jurisdiction to entertain the same. Placing heavy reliance on these two judgements, Mr. Anil Kumar contended that the present complaint could not have been at all entertained by the Member of the Industrial Court and, consequently, that the order passed thereon is liable to be quashed.
7. As against this position, Mr. Gokhale, the learned advocate appearing on behalf of the respondents, has very vehemently contended that the entire submission advanced against his clients is totally misconceived. He states that the power of the Bombay Municipal Corporation to suspend an employee in a serious or appropriate case has not been questioned. What has been found fault with by him is the misuse of that power. According to Mr. Gokhale, where the rules enjoined upon an employer the duty to function strictly in accordance with these rules and if the employer disregards the express provision contained therein and mechanically and recklessly breaches the career of an employee by suspending him in total disregard of those provisions, that the employee is fully entitled to move the Industrial Court for a relief under section 28 of the M.R.T.U. and P.U.L.P. Act, because the action in question would constitute an unfair labour practice under Item 9 of the IV Schedule to the M.R.T.U. and P.U.L.P. Act has been interpreted by the High Court and by the Supreme Court to cover a case of the breach of the provisions of the present type. Mr. Gokhale has relied in this behalf on a decision of the Supreme Court in the case of S.G. Chemicals and Dyes Employees' Union v. Management, , wherein Madon, J., had very clearly indicated that it is an implied condition of every agreement, including a settlement, that the parties thereto will act in conformity with law. He, therefore, submits that the argument canvassed against him that his complaint was anticipatory and that the cause of action had not taken place on the date when he approached the Industrial Court is wholly misconceived and incorrect. To this extent, as far as the factual position is concerned, Mr. Gokhale is justified because the employees had, in fact, been suspended on the date when they approached the Court though they had prayed that the impugned suspension should be stopped and that it was, therefore, not an anticipatory action.
8. The learned advocate appearing on behalf of the Bombay Municipal Corporation has drawn my attention to the fact that on a strict construction of the wording of the complaint and the prayer clause thereto, an impression is created that the applicants, namely, present respondents Nos. 1 to 3, approached the Industrial Court prior to any order of suspension being served on them. This fully justifies the filing of the present writ petition and the challenge to the inherent jurisdiction of the Court to entertain the complaint as an anticipatory measure. As against this, Mr. Gokhale has contended that it is now common ground as emerges from the record that even though the complaint may have been drafted in this fashion and even though the wording may create this impression, admittedly, it was filed in the month of April 1988 after the employees, in fact, had been suspended and the suspension order had already been passed on 23-3-1988. He admits that it would have been more correct to have amended the complaint before it had been filed, but that this error should not make any difference to the facts of the present case inasmuch as the submissions on subsistence allowance have been effectively dealt with by the petitioners before the Industrial Court. To this extent, on facts, the case is distinguishable from the two cases that have been cited by Mr. Anil Kumar. I shall presently deal with the submission made by Mr. Gokhale concerning the law as laid down in those cases.
9. As far as the second limb of the argument is concerned, it is the contention of Mr. Gokhale that for good reason the Act in question does not circumscribe the limits and powers of the Industrial Court while dealing with a complaint under the M.R.T.U. and P.U.L.P. Act. He contends at the Bar that by the time the order came to be passed, a formal amendment had not been carried out to the complaint claiming full wages after six months of suspension. He has pointed out that effectively, however, the Bombay Municipal Corporation has dealt with the point concerning the payment of subsistence allowance. He submits very rightly that the payment of subsistence allowance is a necessary and natural fall-out of the act of suspension and that it is virtually inseperable and to this extent it comes within the Court's jurisdiction under section 32 of the M.R.T.U. and P.U.L.P. Act whereby the Court is invested with the power of dealing with the connected and incidental issues to the ones which are the direct subject-matter of the complaint. It would certainly be far-fatched to argue that if the Court was empowered to adjudicate on the correctness or otherwise of the complaint, which dealt with the acts of suspension, that the Court was barred from dealing with the interconnected and virtually intertwined issues in this case pertaining to the payment of subsistence allowance. Consequently, it will have to be held that the Court acted within its jurisdiction while passing the order in question.
10. Dealing with the two judgements referred to above, it is the basic submission of Mr. Gokhale that the facts in the present case are distinguishable and that the ratio in those judgements would not apply. He however, contends, with utmost respect, that the ratio of the two judgments, particularly the judgement of Dhanuka, J., wherein it has been conclusively held that unless a cause of action has, in fact, arisen when the aggrieved party approaches the Court, that in no case could the Court entertain a complaint under the Act in respect of an imminent breach or transgression, is an interpretation that goes against the clear provisions of the Act. It is the submission of Mr. Gokhale that whereas the principle laid down by A.A. Desai, J., to the effect that in a majority of cases and as far as possible there should be no interference with a disciplinary proceeding until its culmination would be a salutary principle, but he finds fault with the view expressed in this judgement as also by Dhanuka, J., wherein a total bar has been placed on the jurisdiction of the Court to entertain a complaint in any case.
11. Though, as indicated by me, the facts of the present case are distinguishable and the point does not fall for decision since the issue has been urged before me and since the same has been argued, it is necessary to observe, with utmost respect to the views expressed by my brother Judges, that there could be a small class of cases wherein the Court would be within its right to entertain a complaint in respect of an imminent breach. The title of the Act itself indicates that the whole object of the Act is to take preventive action and, therefore, it has been styled as "Prevention of Unfair Labour Practices Act". "Prevention" presupposes necessary steps for stopping the commission of an unfair labour practice. The Oxford English Dictionary explains the word "prevent" as "to stop", keep or hinder (a person or other agent from doing something), to frustrate, defeat, bring to naught, render void or nugatory. In Webetsr's 3rd New International Dictionary, the meaning given to the term is "frustrate, circumvent, to keep from happening or existing especially by precautionary measure; hinder the progress, appearance or fulfilment of". See Krishna Lal v. State of Haryana, 1978 Cri.L.T. 235. The word "prevent" as appearing in Stroud's Judicial Dictionary, 4th Edition, does not mean only an obstruction by physical force. See Madhusudan Mistri v. Assistant Registrar of Co-operative Societies, 1978 Cri.L.J. 570. Black's Law Dictionary defines "prevent" as meaning to hinder, frustrate, prohibit, impade, or preclude, to obstruct; to intercept, to stop or intercept the approach, access, of performance of a thing.
12. There can be little doubt, therefore, that when the Legislature placed the present enactment on the statute book that the primary purpose behind such an Act was intended to check or intercept the commission of an unfair labour practice. There already existed at that time sufficient legal provisions for the purposes of undoing the damage that had taken place or for that matter stopping its continuance in appropriate cases, but those were all post-injurial remedies. Experience had shown that neither of these remedies was sufficiently efficacious, particularly where the time-frame question was involved because the employee concerned had to suffer the injustice until the relief was granted. In keeping with the old adage that prevention is better than cure, the Legislature provided for a means whereby an unfair labour practice could be averted.
13. Undoubtedly, it is true that normally a Court would not interfere in disciplinary proceedings unless they are concluded, but even the object and scope of the Act indicates that it has not been put on the statute book only for the purpose of providing a remedial or a curative therapy after the damage has already occurred. It would have to be held that in selective cases or in appropriate ones, the Court can exercise its power though it should do so very sparingly. Both from the point of view of an employer and an employee, it is conceivable that a situation would arise whereby a gravely unfair labour practice requires to be stopped from taking place because the consequences would be extremely serious. Under the jurisdiction invested under Articles 226 and 227 of the Constitution, though the High Court would invariably not exercise its jurisdiction in respect of a grievance made in the course of disciplinary proceedings where mala fides are patent, the courts do make exceptions. Similarly, it would have to be held that where the object and the scope is to take preventive action that in cases which genuinely warrant, the Court would be justified in acting.
14. In support of his argument, Mr. Gokhale has relied on the wording of sub-section (1) of section 30 of the M.R.T.U. and P.U.L.P. Act, which uses the words "has engaged in, or is in engaging in, any unfair labour practice". Mr. Gokhale pointed out that if the intention of the Legislature was merely that the Court acting under this Act should be limited to provide relief after an unfair labour practice has been indulged in that the second clause "or is engaging in" would be redundant because in that case even if it were to be taken that the unfair labour practice is actually one, the word "and" would have appeared in the section. According to Mr. Gokhale, the use of the word 'or" clearly indicates that it covers a different category of cases, namely, that a person is set on a course of action that is inevitable going to result in an unfair labour practice or that the breach is imminent. To my mind, this view is justified and it will have to held that in those cases where breach of a sufficiently serious gravity is virtually imminent and is about to take place that it would be open, if the facts and circumstances justify, to move the Court for appropriate orders. A classic situation that could arise would be in a case where an employer commences a so-called disciplinary proceeding against an employee with the sole object of dismissing him at any cost and where mala fides are patent and where it can justifiably be pointed out that the action is for an ulterior purpose. If the employee is required to wait until the order is actually passed, the inevitable result would be that on and from the date of the passing of that order, he would not be entitled even to receive his subsistence allowance and the severance of the employee with the organisation being complete , his status if he happens to be holding a position as an office-bearer of a trade union would automatically come to an end. If an application is required to be made only at this point of time, in these exceptional circumstances to the Court, an inevitable defence to the employer would be that an order for reinstatement could in relation thereto be passed at the final stage and that no interim order should be passed. As a result of this, until these final orders are passed after the conclusion of the proceedings, the prevention of the unfair labour practice or the stoppage cannot be achieved. In these exceptional circumstances, therefore, one would have to accept, as contended by Mr. Gokhale, that the provisions of the Act are wide enough to encompass an anticipatory application. With due respect to the views of the learned Judges in the two cases, since the reference is pending before the Division Bench, it would be necessary to re-examine the ambit and scope of the Act which appears to be wide enough to take into account certain exceptional cases.
15. Mr. Anil Kumar has also placed reliance on a judgement on Chandurkar, J., (as he then was) in the case of Premier Automobiles Ltd. v. Engineering Mazdoor Sabha, 1982 Lab.I.C 1759, wherein the Court has analysed the power of the Court under section 30 of the M.R.T.U and P.U.L.P. Act. In that decision, the Court has held that the Industrial Court had not given a finding that there was, in fact, any unfair labour practice for which the employer was guilty and that, consequently, the power under section 30 of the M.R.T.U. and P.U.L.P. Act could not have been exercised. Again, the case in question is distinguishable on facts because the issue raised there was as to whether in all an unfair labour practice had been committed and undoubtedly this is the very foundation for any subsequent relief under the provisions of the Act. Consequently, the view expressed by Chandurkar, J., would not, to my mind, in any way conflict with the observations made in this judgement.
16. The last question which requires consideration is with regard to the direction issued by the learned Member of the Industrial Court to the effect that the applicants namely, the present respondents Nos. 1 to 3, should be paid subsistence allowance after period of 9 months had elapsed in keeping with the provisions of the Model Standing Orders. It is the submission of Mr. Gokhale that the relevant rules framed by the Bombay Municipal Corporation do not make any specific provision for the payment of full wages as subsistence allowance after the expiry of 6 months from the date of suspension. It was pointed out by Mr. Anil Kumar that the finding of the learned Member of the Industrial Court is incorrect and that the Amended Rules do make a provision for the payment of enhanced subsistence allowance. to nthis extent, the observations of the learned Member of the Industrial Court may require slight modification, but there is no dispute about the fact that no specific provision has been made to pay full wages after suspension of 6 months and it cannot be left to the mere discretion of the concerned authority in the Bombay Municipal Corporation to decide the extent at which the employee is entitled to enhancement when the Model Standing Orders very clearly prescribe that the employee is eligible to receive his full pay and allowances at this point of time. The foundation behind such a salutary provision is that suspension by virtue of its harsh consequences, when resorted to, must be for the shortest possible time and in those of the cases where more than 6 months had elapsed without the completion of an enquiry that the least which the law requires is that the employee be compensated to the full extent of his salary and allowances from this point of time onwards. There is, undoubtedly, a provision that if the employee is responsible for the delay, then he shall not get the benefit, but there is no such finding in the present case. Mr. Anil Kumar contended that suspension is not a punishment and that our High Court and the Supreme Court have laid down this principle in several decisions. Undoubtedly, suspension is not intended to act as a punishment and cannot be used for that purpose, but if the employee is kept in a state of animated suspension without sufficient progress as far as the disciplinary proceedings are concerned and he is virtually handicapped on the economic front by way of loss of emoluments, the suspension would turn into a punishment and it is in order to avoid these consequences that the provisions has been made for payment of full emoluments after the lapse of a reasonable period of time. It is in this view of the matter that the decision of the learned Member of the Industrial Court is supported by Mr. Gokhale and it is his contention that the order is not liable to be disturbed.
17. Mr. Gokhale has drawn my attention to a judgement of Daud, J., in the case of Kishore Jaikishandas Icchaporia v. M.R. Ghose, Presiding Officer, Labour Courts & Ors., 1987(II) C.L.R. 61, wherein this Court has taken the view that as between the Model Standing Orders and the Certified Standing Orders, the provisions of the Model Standing Orders would prevail. I am in respectful agreement with the view expounded in this judgement and on the same reasoning the Model Standing Orders will prevail over the Municipal Rules in the instance case. Mr. Gokhale, has thereafter placed strong reliance on a decision of the Supreme Court in the case of U.P.S.E. Board v. Hari Shankar, 1978 Lab.I.C. 1657, wherein Krishna Iyer, J., had occasion to hold that the Industrial Employment (Standing Orders) Act , 1946 is a special law in regard to the matters enumerated in the schedule and in that case the Regulations made by the Electricity Board under the Electricity Supply Act with respect to those matters were held to be of no effect. The learned Judge qualified that this would cover cases except those wherein a Notification under section 13-b of the Industrial Employment (Standing Orders) Act had been issued. Admittedly, in the present case, the learned advocate appearing on behalf of the Bombay Municipal Corporation has conceded the position that no such Notification has been issued.
18. Mr. Gokhale, has also pointed out that the order impugned in the present writ petition is an interim order and that , consequently, jurisdiction under Article 227 of the Constitution ought not to be exercised in such cases as it is well-settled law that the High Court would not interfere unless the order is demonstrated to be manifestly false and perverse. In Babhutmal v. Laxmibai, , as also in several other subsequent decisions, the Supreme Court has very clearly specified that the powers of the High Court under Article 227 of the Constitution ought to be sparingly exercised and that interference is justified only in cases where the order of the lower Court or Authority is so manifestly unjust that it can be categorised as perverse. The Courts have held that even where another view is possible that the High Court would not be justified in interfering under Article 227 of the Constitution. The order passed by the learned Member of the Industrial Court in this case can neither be categorised as being unjust nor can it be categorised as perverse. In this view of the matter, the same is liable to be upheld.
19. In the result, the writ petition fails and is dismissed. The rule is discharged accordingly. In the circumstances of the case, there shall be no order as to costs.