Bombay High Court
Air India Limited vs Libio Francisco Colaco And Anr. on 30 June, 2003
Equivalent citations: [2004(101)FLR249], 2004(2)MHLJ130
Author: A.P. Shah
Bench: A.P. Shah, D.Y. Chandrachud
JUDGMENT A.P. Shah, J.
1. The question which arises for determination in these Appeals is whether a dismissed employee against whom an application is filed by the employer under Section 33(2)(b) of the Industrial Disputes Act, 1947, hereinafter referred to as the "Act", seeking approval to the imposition of penalty of dismissal from service, is entitled to subsistence allowance pending the final disposal of the said application.
2. As the question raised before us is a pure question of law, it is not necessary to state the facts of each case in detail. Suffice it to point out that in all the above mentioned cases, the services of the employees had been terminated by the employers whereafter applications have been filed under Section 33(2)(b) of the Act. In these applications, prayers had been made for grant of subsistence allowance which had been allowed by the Tribunal relying upon the decision of Kochar, J. in Standard Chartered Grindlays Bank Ltd. v. Govind Phopale and Anr., 2003(2) Mh.LJ. 944 = 2002 (III) CLR 405. The said decision of Kochar, J. is under challenge in Appeal No. 1191 of 2002.
3. In the case of Standard Chartered Grindlays Bank Ltd., the appellant Bank had filed an application under Section 33(2)(b) of the Act seeking approval of the action of dismissal taken against the respondent-employee. The appellant-Bank had held domestic enquiry for alleged act of misconduct committed by the employee. After the domestic enquiry, the appellant-Bank passed an order of dismissal. As a part of the said transaction, the appellant-Bank filed the approval application before the Tribunal and it also appears to have offered wages in, lieu of one month's notice as prescribed in the said section. The approval application is pending as yet. During the pendency of the application, the respondent employee filed his written statement to oppose the approval application and also filed an application for grant of subsistence allowance during the pendency of the said application. The Tribunal decided the said application in favour of the respondent employee directing the appellant-Bank to pay an amount per month at the rate of subsistence allowance payable during the pendency of the enquiry from the date of the application. The order of the Tribunal was confirmed by Kochar, J. relying upon the decision of the Supreme Court in Fakirabhai Fulabai Solanki v. Presiding Officer and Anr., 1986 (I) CLR 44 and Ram Lakhan v. Presiding Officer, 2000 (II) CLR 563. The learned Judge observed that the nature of the application under Section 33(2)(b) is similar to the application under Section 33(1) and 33(3) and in both the cases jural relationship continued and it is not severed or snapped till the permission is granted or approval is accorded. The learned Judge was of the view that the Supreme Court has not confined the ratio of Fakirabhai's case only to the applications under Section 33(1) or 33(3) seeking permission to take action of dismissal or discharge of the workman concerned. It equally applies to every application under Section 33 of the Act. The learned Judge pointed out that in Jaipur Zila Sahakari Bhumi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Ors., 2002 (I) CLR 789 the Supreme Court has held that till the approval application is granted by the Tribunal, the jural relationship of master and servant continues. Therefore, according to the learned Judge where the employee is ready and willing to work for the employer, but is prevented by the employer from doing the work, he is entitled to monthly wages. Further, according to the learned Judge the ratio of Fakirabhai read with Jaipur Zila Sahakari Bhumi Vikas Bank Ltd. unequivocally declare that all such employees concerned under Section 33 of the Act shall be entitled to subsistence allowance.
4. The rival submissions were made on behalf of both the parties in support of their respective contentions referring to and relying upon the various decisions of the Supreme Court and the High Courts and the provisions contained in Section 33 of the Act.
5. Section 33 occurs in Chapter VII of the Act which contains miscellaneous provisions. The object of Section 33 is to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute: that is why the plain object of the section is to maintain status quo as far as is reasonably possible during the pendency of the said proceedings. Prior to its amendment by Act 36 of 1956, Section 33 applied generally to all cases where alteration in the conditions of service was intended to be made by the employer, or an order of discharge or dismissal was proposed to be passed against an employee without making a distinction as to whether the said alteration or the said order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. The effect of the unamended section was that pending an industrial dispute the employer could make no order of discharge or dismissal against any of his employees even though the proposed alteration or the intended action had no connection whatever with the dispute pending between him and his employees. This led to a general complaint by the employers that several applications had to be made for obtaining the permission of the specified authorities in regard to matters which were not connected with the industrial dispute pending adjudication; and in many cases where alteration in conditions of service were urgently required to be made or immediate action against an offending workman was essential in the interest of discipline the employers were powerless to do the needful and had to submit to the delay involved in the process of making an application for permission in that behalf and obtaining the consent of the Tribunal. That is why, by the amendment made in Section 33 in 1956 the Legislature has made a broad division between action proposed to be taken by the employer in regard to any matter connected with the dispute on the one hand, and action proposed to be taken in regard to a matter not connected with the dispute pending before the authority on the other. On the backdrop this legislative history we shall now examine the provisions of Section 33.
6. Section 33(1) provides that during the pendency such industrial proceedings no employer shall (a) in regard to any matter connected with dispute alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings, or (b) for any misconduct connected with the dispute, discharge or punish whether by dismissal or otherwise any workman connected with such dispute, save with the express permission in writing of the authority before which the proceeding is pending. Thus the original unamended section has now been confined to cases where the proposed action on the part of the employer is in regard to a matter connected with a dispute pending before an industrial authority. Under Section 33(1) if an employer wants to change the conditions of service in regard to a matter connected with a pending dispute he can do so only with the express permission in writing of the appropriate authority. Similarly, if he wants to take any action against an employee on the ground of an alleged misconduct connected with the pending dispute, he cannot do so unless he obtains previous permission in writing of the appropriate authority.
7. Section 33(2) with which we are concerned in the present matter, deals with the alterations in the conditions of service as well as discharge or dismissal of workmen concerned in any pending dispute where such alteration or such discharge or dismissal is in regard, to a matter not connected with the said pending dispute. This class of cases where the matter giving rise to the proposed action is unconnected with the pending industrial dispute has been taken out of the scope of Section 33(1) and dealt with separately by Section 33(2). Section 33(2) reads thus:--
"During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the pending orders applicable to a workman concerned in such dispute, --
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer".
8. The proviso to Section 33(2)(b) creates two steps that unless a workman is paid wages for one month and application as contemplated is made by the employer to the Tribunal for approval of his action, no such workman could be discharged or dismissed. The intention of the Legislature in providing for such contingency was as pointed out by the Supreme Court in Syndicate Bank Ltd. v. Ramanath Bhat, 1967 (2) LLJ 745 "to soften the rigour of unemployment that will face a workman, against whom the order of discharge or dismissal was passed". Section 33(3) is in a way similar to Section 33(1). Section 33(3) deals with cases of protected workmen and it assimilates cases of alterations of conditions of service or orders of discharge or dismissal proposed to be made or passed in respect of them to cases falling under Section 33(1). In other words, where an employer wants to alter conditions of service in regard to a protected workman, or to pass an order of discharge or dismissal against him, a ban is imposed on his rights to take such action in the same manner in which it has been imposed under Section 33(1). Sub-section (4) provides for the recognition of protected workmen, and limits their number as therein indicated: and Sub-section (5) requires that where an employer has made an application under the proviso to Sub-section (2), the authority concerned shall without delay hear such application and pass as expeditiously as possible such orders in relation thereto as it deems fit.
9. A bare comparison of Sub-section (2) with Sub-sections (1) and (3) of Section 33 reveals that under the provisions of Section 33(1) and (3) prior permission before the action of dismissing an employee is required to be taken and the employee continues under suspension. Dismissal of such an employee takes effect from the date of permission granted by the Tribunal and it is not related back to the date of application preferred by the employer under Section 33(1) or (3). Whereas in the cases falling under Section 33(2)(b) the requirement is that the employer must obtain approval as distinct from the requirement that he must obtain previous permission and the grant of such approval relates back to the date of dismissal and/or discharge. This distinction between Section 33(1) and (3) and Section 33(2) was particularly highlighted in The Lord Krishna Textile Mills v. Its Workmen , . Gajendragadkar J., as His Lordship then was, speaking for the Bench observed that:--
"(10) It would be noticed that even during the pendency of an industrial dispute the employer's right is now recognised to make an alteration in the condition's of service so long as it does not relate to a matter connected with the pending dispute, and this right can be exercised by him in accordance with the relevant standing orders. In regard to such alteration no application is required to be made and no approval required to be obtained. When an employer, however, wants to dismiss or discharge a workman for alleged misconduct not connected with the dispute he can do so in accordance with the standing orders but a ban is imposed on the exercise of this power by the proviso. The proviso requires that no such workman shall be discharged or dismissed unless two conditions are satisfied; the first is that the employee concerned should have been paid wages for one month, and the second is that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer. It is plain that whereas in cases falling under Section 33(1) no action can be taken by the employer unless he has obtained previously the express permission of the appropriate authority in writing, in cases falling under Sub-section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtained approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by Section 33(2) is not as rigid or rigorous as that imposed by Section 33(1). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval."
10. The Court in L. K. Textiles Mills's case explained the scope of jurisdiction under Section 33(2)(b) in the following terms :
"In dealing with cases falling under Section 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employee concerned has been paid wages for one month and whether an application has been made for approval as prescribed by the said sub-section. It is obvious that in cases of alteration of conditions of service falling under Section 33(2)(a) no such approval is required and the right of the employer remains unaffected by any ban. Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under Section 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under Section 33(1), and in exercising its powers under Section 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating, the two classes of cases falling under the two sub-sections, and in providing for express permission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for Section 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to Section 33(2)(b) as it may deem fit; it may either approve or refuse to approve, it can, however, impose no conditions and pass no conditional order.
(12). .........The Legislature has indicated that there should be no time lag between the making of the application and its final disposal, and so by Sub-section (5) it has specifically and expressly provided that such application should be disposed of as expeditiously as possible. This view proceeds on the assumption that the work "unless" "really means "until" and introduces a condition precedent,"
The Court observed that in view of the limited nature and extent of the enquiry permissible under Section 33(2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by Section 33(2)(b) and the proviso are satisfied or not.
11. We shall now refer to the decisions in Fakirabhai Fulabhai Solankhi v. Presiding Officer and Ram Lakhan v. Presiding Officer which were heavily relied upon by the learned Judge in Standard Chartered Grindlays Bank's case. In Fakirabhai's case, the workman was found guilty of the act or misconduct alleged to have been committed by him by the Inquiry Officer and it was decided by the management to dismiss him but because the appellant was a protected workman as defined in the Explanation to Sub-section (3) of Section 33 of the Act and the permission of the Tribunal had to be obtained before dismissing him as required by Sub-section (3) of Section 33 of the Act, the management made an application before the Tribunal for such permission. The employee was, however, suspended from service pending disposal of the application before the Tribunal after he had been found guilty at the domestic enquiry but without any wages or allowances. The employee also filed an application before the Tribunal under Section 33A of the Act complaining violation of Section 33 of the Act by the management. The Tribunal granted permission to the management to dismiss the employee and rejected the complaint filed by him. The main submission which was made before the Court on behalf of the the employee was about the effect of non-payment of any subsistence allowance on the decision of the Tribunal under Section 33(3) of the Act. It was urged that since the workman was denied the subsistence allowance, it was not possible for him to defend himself effectively before the Tribunal in the proceedings relating to the permission prayed for by the management under Section 33(3) of the Act and, therefore, the permission accorded by the Tribunal was vitiated. The Court referred to its earlier decisions in Management of Hotel Imperial, New Delhi v. Hotel Workers Union, 1959-I LLJ 544 and Ranipur Colliery v. Bhuban Singh, holding that an employer would be justified in suspending an employee without paying as the time taken by the Tribunal to accord permission under Section 33 of the Act was beyond the control of the employer. The Court noted that in neither of the above two decisions the Court had the occasion to consider whether the denial of payment of subsistence allowance during the pendency of the proceedings under Section 33(3) of the Act would amount to violation of principles of natural justice. Venkataramiah, J., as His Lordship then was, speaking for the Bench observed :
"8....... They approached the question from the angle of the common law right of a master to keep a workman under suspension either during the pendency of a domestic enquiry into an act of misconduct alleged to have been committed by a workman or during the pendency of an application under Section 33 of the Act. These were perhaps halcyon days when such applications were being disposed of quickly. If the Court had realised that such applications would take nearly six years as it has happened in this case their view would have been different. An unscrupulous management may by all possible means delay the proceedings so that the workman may be driven to accept its terms instead of defending himself in the proceedings under Section 33(3) of the Act. To expect an ordinary workman to wait for such a long time in these days is to expect something which is very unusual to happen. Denial of payment of at least a small amount by way of subsistence allowance would amount to gross unfairness.
9. .................. The case falling under Section 33(1) of the Act is not in any way different from a case falling under Sub-section (3) of the Section 33 and in both these cases previous permission of the authority concerned should be obtained before any action is taken against the workman concerned unlike a case falling under Section 33(2)(b) of the Act where only its approval to an action already taken is required to be sought. This Court further observed in the above decision that the management could relieve itself of the obligation to pay wages during the period of such suspension. Now what is the effect of suspension? Does it put an end to the relationship of master and servant altogether? It does not..............
10. If the order passed at the conclusion of domestic enquiry is only one of suspension (even though the management has decided to dismiss him) where the workman has a chance of being reinstated with backwages on the permission being refused under Section 33(3) of the Act, it cannot be said that the workman is not entitled to any monetary relief at all. In such a case the right of the workman to receive some reasonable amount which may be fixed either by the Standing Orders or in the absence of any Standing Order by the authority before which the application is pending by way of subsistence allowance during the pendency of the application under Section 33(3) of the Act with effect from the date of suspension should be implied as a term of the contract of employment having regard to the observations made in Khem Chand's case (supra). In the two earlier decisions referred to above this aspect of the matter has been considered.
11. It is likely that in some cases filed under Section 33(1) or Section 33(3) of the Act (which are 'permission' clauses and not approval clauses) pending before any authority, the management may not be paying any subsistence allowance to the workman concerned. We, therefore, clarify that in such cases it shall be open to the management to pay within a reasonable time to be fixed by the authority, the subsistence allowance for the period during which the workmen is kept under suspension without wages and to continue the proceedings. Such subsistence allowance shall be the amount fixed under the Standing Orders, if any, which the management is liable to pay to the workman if he is kept under suspension during the pendency of such application or in the absence of any such Standing Order by the authority before which such application is pending. In a case where the proceedings are completed and the order of dismissal is successfully challenged on the ground of non-payment of subsistence allowance for the period of suspension during the pendency of the application under Section 33(1) or Section 33(3) of the Act, it shall be open to the management to ask for the permission of the authority again under Section 33(1) or Section 33(3) of the Act after paying or offering to pay to the workman concerned within a reasonable time to be fixed by the authority concerned the arrears of subsistence allowance at the rate stated above."
12. It is clearly seen from the above observations that the Court noted the distinction between Section 33(1) and 33(3) and Section 33(2)(b). The Court further noted that under Section 33(1) and (3), previous permission of the authority concerned should be obtained before any action is taken against the workman concerned unlike a case falling under Section 33(2)(b) of the Act where only its approval to an action already taken is required to be sought. This is also apparent from para 11 where the Court has emphasised that the cases filed under Section 33(1) or Section 33(3) of the Act are 'permission' clauses and not approval clauses. In short, Fakirbhai's case proceeds on the basis that the suspension of the employee does not amount to severance of employer employee relationship and, therefore, the management is obliged to pay such workman service and to pay him all the wage's and subsistence allowances during the period of suspension.
13. The decision in Fakirbhai's case was considered in Ram Lakhan's case by a larger Bench of three Judges which reiterated the legal position that an employee who has been under suspension pending the grant or permission under Section 33(1) should be entitled to subsistence allowance. The Court observed as under:
"9. This Court in Hotel Imperial's case (supra) was thus concerned with the preliminary question whether the Management during the pendency of its application under Section 33(1) of the Industrial Disputes Act can legally suspend the employees after holding a proper departmental enquiry. The question whether an employee would be entitled to subsistence allowance during the period of suspension was not directly involved in that case, in which it was held that if the master had held a proper enquiry did come to the conclusion that the servant was to be dismissed and in consequence thereof suspends him pending the permission required under Section 33, he could legally do so with the result that the contract of employment would stand suspended temporarily so that "there would be no obligation on him to pay wages and no obligation on the servant to work". This observation reflects the well recognised rule that when an employee is suspended, he does not get full wages and he is also not put on duty. He gets only reduced salary (subsistence Allowance), prescribed by the rules,
14. The Court again observed in paragraph 13 that the right to life, guaranteed to workman under Article 21 of the Constitution, was read into the service rule relating to payment of subsistence allowance and it was for this reason that this Court State of Maharashtra v. Chanderbhan Tale, 1983 (II) LLJ 2561, struck down a service rule which provided for payment of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. The Court further observed that:
"In such a situation, if the Management makes an application under Section 33(1) of the Industrial Disputes Act for permission of the Tribunal to dismiss such employee from service, the Management can, pending disposal of his application under Section 33(1), place that employee under suspension. Once the employee is placed under suspension, the Management cannot take any work from the suspended employee nor can the employee claim full salary from the Management. But the Management has to pay the Subsistence Allowance to the employee so that he may sustain himself till the application under Section 33(1) is finally disposed of."
15. In Strawboard Manufacturing Co. v. Gobind, 1962 Supp. (3) SCR 618 and Tata Iron & Steel Co. Ltd. v. S. N. Modak, , the Supreme Court took the view that if the approval is not granted under Section 33(2)(b) of the Act, the order of dismissal becomes ineffective from the date it was passed and, therefore, the employee becomes entitled to wages from the date of dismissal to the date of disapproval of the application. The Court observed :
"It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge' or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law."
In the same judgment, it was also stated that order of dismissal or discharge being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and employee and that if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and paying his full wages for the period even though the employer may subsequently proceed to terminate the services of the respondent. The ratio of the judgment in Tata Iron and Strawboard Manufacturing Company was approved by the Constitution Bench in Jaipur Zila's where the Court observed as follows :
"The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal, or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval."
16. Relying upon the above observations in Jaipur Zila the learned single Judge has held that there is no distinction between the provisions of Section 33(2)(b) and Section 33(1) and (3). It was therefore, held that the decisions in Fakirabhai and Ram Lakhan would apply with equal force to the cases under Section 33(2)(b). We are unable to agree with the view expressed by the learned single Judge. In Fakirabhai and Ram Lakhan the Court has confined its ratio only to the cases under Section 33(1) and (3) of the Act. In fact, in Fakirabhai a clear distinction is made between the two types of cases. In the former, the employee cannot be dismissed from service without obtaining the permission from the Tribunal. Therefore, obtaining a permission is condition precedent before the employee could be dismissed from service. However, under Section 33(2)(b), an employer can dismiss the employee from service on payment of one month's wages and such an employer has to apply for approval under Section 33(2)(b). Once the employee is dismissed from service, the question of putting him under suspension does not arise. Therefore, the ratio in Fakirbhai and Ram Lakhan is clearly inapplicable to proceedings under Section 33(2)(b).
17. The learned counsel appearing for the employees contended that even assuming that the ratio of the decisions in Fakirabhai and Ram Lakhan is not applicable to the proceedings under Section 33(2)(b) of the Act, the power to grant interim orders is expressly conferred on the Tribunal under Sub-section (5) of Section 33 of the Act as also Section 11(1) of the Act. The expression "such order in relation thereto" incorporated in Section 33(5) permits the Tribunal to not only pass final order but also any interim order which it considers expedient. As far as Section 11(1) is concerned it empowers the Tribunal to follow such procedure as it thinks fit and this includes power to grant interim order. Even on the basis that this provision does not confer power to pass interim order expressly, the power to decide an application presented by the management under Section 33 either by dismissing it or granting approval to the order of dismissal, conferred under that provision includes a power to grant interim order, directing an employer to pay wages to the dismissed employee, as the existence of that power is absolutely essential for the effective exercise of the main power and, therefore, the power to pass interim order must be considered to have been included in the main power. Reliance was placed on the decision of the Supreme Court in J. K. Iron and Steel Co. v. Mazdoor Union, 1956 (1) LLJ 227 where the Court while remitting the case to the Tribunal directed the Tribunal to make suitable orders for payment of what may be termed as some sort of subsistence allowance to the retrenched workmen during the pendency of the proceedings. Reliance was also placed on the decisions of the Gujarat High Court in Bharat Co-op Bank Ltd. and Anr. v. A.L. Baria, Judge, Labour Court, and Anr., 1998 (2) CLR 105, Sayaji Orpin Engineering Co. Ltd. v. D.C.V. Kinate and Ors., 1987 (1) CLR 520, where the Court held that holding a departmental inquiry is a rule and dispensing with it is an exception and, therefore, when an employer chooses to terminate the services of his employee for misconduct (summarily) without assigning any reason and without holding any inquiry, and when the employee challenges, the termination by raising a dispute in the Labour Court, the employee is entitled to receive the amount equivalent to the subsistence allowance during the pendency of the proceedings in the Labour Court. In this connection a reference was also made to the decisions in Management of MGMT of Am Ltd. v. Presiding Officer, 2001 (2) LLJ 1721, Mysore Cement Ltd. v. B. R. Sidramayya and Anr., Vol 67 FJR 136, MGMT of Kanoria Industries Ltd. v. B. C. C. Workers Union, 2000 I LLJ 1565. Reference was also made to the decision of the Full Bench of Calcutta High Court in B. G. Sampat v. State of West Bengal and Ors., 2000 2 CLR 563 where the Court has held that Industrial Tribunal as also Labour Court has incidental, power to grant interim relief's in industrial proceedings in exercise of its powers under Section 10(4) of the Industrial Disputes Act.
18. On the other hand, on behalf of the employers it was contended that the Tribunal has no jurisdiction to make any such interim order. Elaborating this contention, it vas submitted that the power conferred under Section 33(2)(b) of the Act is a limited power. Under that section , the Labour Court or Tribunal or the Conciliation Officer, as the case may be, before whom an application is required to be made under the proviso to Section 33(2)(b) of the Act seeking its approval to the order has only to find out whether a prima facie case has been made out by the management for the grant of approval to the imposition of penalty and if the authority is satisfied that proper procedure had been followed before inflicting the penalty, the authority is required to accord approval to the order of dismissal. The authority has no jurisdiction to make any award or any order in the nature of an award directing the management to pay full or any part of the wages either in the event of dismissal of the application or on granting the application, whether after approving the validity of the inquiry or after holding the inquiry itself in case a finding had been recorded to the effect that the disciplinary inquiry held by the management was invalid. It was submitted that the authority has no final adjudicatory power and even after the final order is made on the application, it is open for the party concerned to raise an industrial dispute and if such an industrial dispute is raised by the party and is referred for adjudication by the Government under Section 10(1) of the Act, the order made and the findings recorded by the authority functioning under Section 33(2)(b) of the Act are not binding, and the findings recorded in Section 33(2)(b) proceedings do not operate as res judicata. It was further submitted that it is a well-settled rule of construction that when the provisions of a statute confer power to pass a final order on the designated authority but do not expressly confer the power to pass an interim order, such power can be regarded as implicit in the provision if the existence of such power is essential for the effective exercise of the power vested in that authority. But if the non-existence of the power to make a particular type of interim order does not in any way affect the effective exercise of the power to pass final order, the power to grant such interim order cannot be read into the provision. Reliance was placed on the decision of the Supreme Court in Automobile Products v. Rukmaji Bala, where the Court observed that "Section 33 by the same language confers jurisdiction and power on all the three authorities. Power being thus conferred by one and the same section, it cannot mean one thing in relation to the conciliation officer or the Board and a different and larger thing in relation to the Tribunal.... . It was held section only imposes a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission i.e. to lift or maintain the ban". The learned counsel for the employers also placed reliance on the decision of the Supreme Court in The Punjab National Bank Ltd. v. Its Workmen , where the Court held that it is not open to the Tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. Relying on the aforesaid decision, it is contended that the Tribunal exercises extremely limited jurisdiction in exercise of power under Section 33(2)(b) and it has no power to grant any interim order by way of subsistence allowance to the workmen.
19. We have given our anxious thought to the submissions made at the Bar. In our opinion, the issue as to whether the Industrial Tribunal or Labour Court possesses power to grant interim order in proceedings under Section 33(b)(ii) is no more res integra in view of the decision of the Supreme Court in Hotel Imperial v. Hotel Workers Union (supra). In Hotel Imperial v. Hotel Workers' Union the power of the Labour Court/Tribunal to grant interim relief was clearly recognised. In that case the Supreme Court observed at page 551 of 1959-II LLJ 544 that "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 exist 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". We hasten to add that in that case the Court held that the employer was not liable to pay any wages from the date on which the employer decided to dismiss the workman and kept him under suspension pending seeking approval under Section 33(1) of the Act. However, this position has been altered in the light of the-decisions in Fakirbhais case and Ram Lakhan's case. Moreover, it is not disputed before us that the effect of not granting approval would inescapably revert the position of the workman vis-a-vis management to that of a servant and master and in such a case it will have to be construed that the power conferred on the Industrial Tribunal or Labour Court under Section 33(2)(b) will include power to grant interim relief in appropriate cases. In Jaipur Zila Bank's case, the Constitution Bench clearly held that the effect of refusal to grant approval has the effect of making an order of dismissal void ab initio and the worker would be deemed to be reinstated in service. Therefore, if the effect of the order of the Tribunal is to overturn the order of dismissal, then the Tribunal would have jurisdiction to grant interim relief in appropriate cases, though section does not expressly confer any power to make an interim order directing payment of full or part of the wages to a dismissed workman.
20. Broadly the cases in the Tribunal could be categorised in three categories. As far as the first category of cases is concerned, they are cases in which a workman is dismissed for misconduct after due inquiry and on scrutiny by the Labour Court or the Tribunal, as the case may be, also the inquiry is found to be valid. In such cases, there would be no justification for providing payment of subsistence allowance to the workmen concerned. The mandate of the statute is to complete the proceedings within a period of three months. If in every case application for interim order is filed and on that application considerable amount of time is spent both before the Tribunal and Labour Court and before the High Court, the legislative mandate of early hearing of the application would be completely defeated. In such cases, the Tribunal would be justified in taking up the main application for approval for hearing. But there are cases in which either the domestic inquiry held by the management is set aside on the ground that it was defective or there was only a facade of an inquiry or there was no inquiry at all. But for the procedure evolved by the decisions of the Court in the interest of speedy finalisation of the cases in which the workmen were dismissed from service, by requiring the Labour Court or the Tribunal itself to hold a de novo inquiry, the position would have been, the moment it is established that the domestic inquiry is invalid or there was no domestic inquiry at all, the penalty imposed would have had to be set aside, but without prejudice to the right of the management to hold a de novo inquiry. In that situation, during the period of de novo inquiry, the management may be asked to give subsistence allowance to the workmen concerned in accordance with the Standing Orders or the rules regulating the condition of service. It is because of the procedure, namely, the holding of domestic inquiry by the Labour Court/Tribunal itself, evolved by the decision of the Court, it has resulted in this situation viz., even as the order of dismissal remains undisturbed, a de novo inquiry is held to find out as to whether dismissal was justified or not. We are of the opinion that if de novo inquiry is ordered to justify the order of dismissal and the matter has been unduly protracted for no fault of the workmen, the Tribunal would be justified in awarding subsistence allowance to the workman in appropriate cases. We, however, hasten to add that the grant of interim relief is not a matter of course and the exercise of such power should be used sparingly and only in deserving cases.
21. In the light of the above discussion, we set aside the impugned orders passed by the Tribunal and the learned single Judge and direct the Tribunal to reconsider the applications afresh in the light of observations made in this judgment and pass appropriate orders in accordance with law within 3 months. Appeals and writ petitions are disposed of accordingly with no order as to costs.