I959

Kamarhatty

Co., Ltd.

••

U shnath Pakrashi

Wanehoo ].

I959

Mayaz

476 SUPREME COURT REPORTS [1960(1)]

Learned counsel for the appellant wanted to argue

that this was not a case of discharge or dismissal but

of lay-off. We did not permit him to raise this argu­

ment because the special leave was limited only to the

question set out above. The answer to that question

has already been indicated above and on that answer

the appeal must fail. We therefore dismiss the

appeal, but in the circumstances we make no order as

to costs of this Court.

Appeal dismissed.

THE MANAGEMENT OF HOTEL IMPERIAL,

NEW DELHI & OTHERS

v.

HOTEL WORKERS' UNION

(B. P. SINHA, P. B. GA.JENDRA.GADKA.B and

K. N. w A.NOHOO, JJ.)

Industrial Dispute-Employer seeking permission to dismiss

workmen as result of enquiry-Suspension of workmen pending

decision of such application by Tribunal-Validity-Workmen, if

entitled to wages during period of suspension-Grant of interim

relief-Power of Supreme Court-Industrial Disputes Act, r947 (I'f'

of r947), ss. I0(4), 33.

The appellants. who were the managements of the three

hotels, decided to dismiss some

of their workmen who were found

guilty of misconduct as a result of enquiries held by them and

suspended them without pay pending

the receipt of the

permis­

sion of the Industrial Tribunal under s. 33 of the Industrial

Disputes Act, 1947. The workmen applied to

the Industrial

Tribunal for

the grant of interim relief pending disposal of the

applications and the Tribunal granted the relief prayed for

amounting

to full wages and

.a sum of Rs. 25 per head per month

in lieu of food. The managements appealed against such grant,

but the Labour Appellate Tribunal dismissed the appeals. The

appellants came up to this court by special leave. The two

questions for decision in the appeals were,

(r) whether any wages

were

at all payable to the suspended workmen pending permission

being sought under

s. 33 to dismiss them and the decision of the

applications under

s. 33 of the Act, and, (2) whether the Industrial

Tribunal was competent to

grant interim relief except by an

interim award

that was published.

H e!d, that it was well settled that under the ordinary law of

master

and servant the power to suspend the servant without

S.C.R. SUPREME COURT REPORTS 477

pay could not be implied as a term in an ordinary contract of z959

service between the master and the servant but must arise either

from an express term in the contract itself or a statutory provi-The Management of

sion governing such contract. Hotel Imperial

Hanley v. Pease & Partners, Limited, 1915 (1) K.B. 698; v.

Wallwork v. Fielding and Ors., 1922 (2) K.B. 66; Secretary of State Hotel Workers'

for Itidia in Council v. Surendra Nath Goswami, I.L.R. 1939 (1) Cal. Union

46 and Rura Ram v. Divisional Superintendent, N. W.R .. I.L.R.

VII (1954) Punj. 415, referred to.

Buts. 33 of the Industrial Disputes Act, 1947, which took

away the right

of the employer to dismiss the employee except

with

the permission of the Industrial Tribunal, introduced a

fundamental change in industrial law in modification of the

common law

by empowering the employer by implication to

suspend the contract of employment and thus relieve himself

of

the obligation to pay the wages and the employee of rendering

service, where, as a result of a proper enquiry, he came to the

conclusion

that an employee should be dismissed. In the peculiar

circumstances created by the enactment

of s. 33 of the Act it was

just and fair

that Industrial Tribunals, which had the power to

go beyond the ordinary law

of master and servant,

s110uld imply

such a term in the contract of employment. The result, there­

fore, would be

that if the Tribunal granted the permission, the

suspended contract would come to an end

and there would be no

further obligation on the part of the employer to pay any wages

after the date of suspension. If on the other hand, the permis­

sion was refused,

the workmen would be entitled to all their

wages from the

date of suspension.

Western India Automobile Association v. The Industrial

Tribunal, Bombay, [1949] F.C.R. 321 and Rohtas Industries Ltd. v.

Brijnandan Pandey, [1956] S.C.R. Boo, referr~d to.

Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [1956]

S.C.R. 916; The Management of Ranipur Colliery v. Dhuban Singh,

C.A. 768/57, decided on 20+59, M/s. Sasa Musa Sugar Works

(P) Ltd. v. Shobrati Khan, C. As. 746 and 747/57, decided on

29-4-59 and Phulbari Tea Estate v. Its Workmen, [1960] (1) S.C.R. 32

explained and relied on.

But the employer's power of suspension could not take away

the power of the Tribunal to grant interim relief to the workmen

under

the

Act, the words " inciden ta! thereto " occurring in

s. 10(4) of the Act made it clear that interim relief, where admis­

sible, could be granted as a matter incidental to the main question

under reference, although

it might not be expressly mentioned in

the terms of.the reference. It is not necessary to decide whether an interim relief of this

nature amounted to an interim award. Even assuming that the

Industrial Tribunal could not

grant interim relief except by an

interim award which required publication

that could not preclude

478 SUPREME COUI~T REPORTS [1960(1)]

z959 this Court from granting interim relief in the same manner as the

Industrial Tribunal could and ss. 15, 17 or 17A could have no

The Manag,,nent of application to such an order passed by this Court.

Hotel Imperial Ordinarily interim relief could not be the whole relief the

v. w0rkn1en would get in case of final success and the appellants

Hotel Workers' should not be made to pay more than half the amount adjudged

Union by the Industrial Tribunal as interim relief in these cases.

Wamhoo ].

CIVIL APPELI,ATE JURISDICTION: Civil Appeals

Nos.

31-33 of 1958.

Appeal by special leave from the decision dated May 28, 1956, of the Labour Appellate Tribunal,

Lucknow (Delhi Branch), in Appeals Nos.

III. 313-315

of 1955.

M.

C. Setalvad, Attorney-Gener<ilfor India, Jai Gop<il

Sethi, J.B. Dadachanji, S. N. Andley, Rameshwar Nath

and P. L. Vohra, for the appellants (in all appeals).

U.S. Pathak, V. P. Nayar and Janardan Sharma, for

the respm1.dents (in all appeals).

.

l!J59. Mav 21. The Judgment of the Court was

delivered by·

WANCHOO J.-The8e arc three appeals by special

leave from three decisions

of t.he Labour Appellate

Tribunal of India. We shall dispose of them by one

judgment, as

thc>y raise common points. The three

appellants arc the managements of (1) Imperial Hotel,

New Delhi,

(2)

Maiden's Hotel, Delhi and (3) Swiss

Hotel, Delhi, the respondents being their respective

workmen repre&ented by the Hotel Workers' Union,

Katra Shahanshahi, Chandni Chowk, Delhi.

It seems that disputes were going on between these

hotels

and their workmen for some time past about the

conditions of labour of the workmen employed therein.

Matters seem to

have come to

a head about the end of

September, 1955 and a strike of all the workmen in all

the three hotels took place on October 5, 1955. Before

this general strike in the three hotels, there had been

trouble

in Imperial Hotel only in August, 1955. In

that connection charge-sheets were served on 22 work­

men

and

an enquiry was held by the management

which came

to the conclusion that the workmen were

S.C.R. SUPREME COURT REPORTS 479

guilty of misconduct and therefore decided to dismiss z959

them. Consequently,. notices were served on October 4,

1955, upon these workmen informing them that the The Managem~t of

h d d

'd d t d' . th b' t Holel lmperial

management a em e o ism1ss em su 1ec to v.

obtaining permission under s. 33 of the Industrial Hotel workers'

Disputes Act, 1947 (hereinafter called the Act). It Union

seems that this action of the management of Imperial

Hotel led to

the general strike in all the three hotels

ori Wanchoo f.

October 5, 1955. Thereupon the three managements

issued notices

to the workmen on

October 5, 1955,

directing them to re-join their duties within three

hours failing which action would be taken against

them. As the workmen did not join within this time,

fresh notices were issued

the same day asking them to

show cause why disciplinary action should not be

taken against them. In the meantime they were

informed

that they would be under suspension.

On

October 7, 1955, the three managements issued notice~

•to the workmen informing them that it had been

decided

to dismiss them and that they were being

suspended pending

the obtaining of permission under

s. 33

of the Act.

As

the disputes between the hotels and their

work­

men were already under consideration of G.overnment,

an order of reference was made on October 12, 1955,

relating to Imperial Hotel. In this reference a large

number

of matters were referred to adjudication

inclu­

ding the case of 22 workmen whom the management

of the hotel had decided to dismiss on October 4, 1955.

This reference with respect to_ Imperial Hotel, how­

ever, did not refer to the workmen whom the manage­

ment had decided to dismiss on October 7, 1955,

Further enquiries seem to have been made by the

management in this connection and eventually it was

decided to confirm the action taken on October 7 with

respect to nineteen workmen. These nineteen work­

men had in the meantime applied under s. 33-A of the

Act on the ground that they had bee:Q. suspended with­

out pay for an indefinite period and had thus been

punished in breach

of s.

33. Thus the dispute so far

as Imperial Hotel is concerned was with respect to 44

workmen

in all, 25 of whom were included

in· the

480 SUPREME COURT REPORTS [1960(1)]

r959 reference of October 12, 1955, and the remaining 19

The Management of had filed an application under s. 33-A of the Act. It

Hotel Imperial does not appear, however, that Imperial Hotel made

v. any application under s. 33 of the Act for permission

Hotel wo,km' to dismiss these 19 workmen; though an application

Union under that section was made on October 22, 1955, with

Wanchoo J. respect to 22 workmen whose dismissal was decided

upon on October 4, 1955.

So far as Maiden's Hotel is concerned, the case

relates

to 26 workmen whose dismissal was

finl!-lly

considered by the management to be necessary on

further enquiry after October 7, 1955. An order of

reference was made in the case of this hotel on

November 23, 1955, in which the case of 26 workmen

was referred

to the tribunal along with other matters.

Later, however, 12 of these workmen were re-employed

on December

10, 1955, and the real dispute therefore so

far as this hotel is concerned related to 14 workmen.

In the case of Swiss Hotel also there were further

enquiries after the notices of October 7. In the mean­

time, an application was made under s. 33-A of the

Act by the union to the conciliation officer. Even­

tually, it appears that on November 10, 1955, reference

was made

with respect to 14 workmen to the tribunal

for adjudication.

We now come

to the proceedings before the

Indus­

trial Tribunal. In all three cases, applications were

filed

on behalf of the workmen for interim relief, the

date of the application being October 22 in case of

Imperial Hotel and November 26 in case of Maiden's

Hotel and

Swiss Hotel. Replies to these applications

was filed

by the managements on December 5, 1955. On the same day, the Industrial Tribunal passed an

order granting interim relief. In the case of Imperial

Hotel, it ordered that 43, out of 44 workmen, who had

applied for interim relief should be paid their wages

plus a sum of Rs. 25 per month per head in lieu of

food till final decision in the matter of the dismissal of

these workmen. In the case of Maiden's Hotel; the

management was prepared to take back 12 workmen

and they were ordered to report for duty or or before

December 10, 1955.

It was also ordered that these 12

-

"

S.C.R. SUPREME COURT REPORTS 481

workmen till they were re-employed and the "remain- r959

ing" 13 workmen till the decision of their case would Th M -

1 1

b

"d b f . t . 1. f th . f e anagemen o

e pa1 y way o m er1m re ie e1r wages rom Hotel Imperial

October 1, 1955, ;plus Rs. 25 per month per head in v.

lieu of food. No order was passed with respect to the Hotel Workers'

26th workman, namely, Chiranjilal sweeper. In the Union

case of Swiss Hotel, the management was prepared to

k f h d d

Wanchooj.

ta e back six o the workmen and t ey were or ere

to report for duty on or before December 10, 1955. In

other respects, the order was in the same terms as in the

case of Maiden's Hotel.

Then followed three appeals

by the three hotels

against

the three orders granting interim relief.

These appeals were dismissed

by the Labour Appellate

Tribunal on

May 28, 1956. Thereupon the three hotels

applied for special leave

to appeal to this Court, which

was granted. They also applied for

stay of the order

of the Industrial Tribunal relating to payment of wages

plus Rs. 25

per month per head in lieu of food. Stay

was granted by this

Court on June 5, 1956, on condi­

tion that the employers would pay to the employees a

sum equal to half of the amount adjudged payable by

the orders dated December 5, 1955, in respect of the

arrears accrued due till then and continue to pay in

the same proportion in future until determination of

the dispute betweenj;he parties. It appears that after

this order of June 5, 1956, even those workmen who

had not been re-employed after the order of Decem­

ber 5, 1955, were taken back in service on July 15, 1956,

by the three hotels. Thus, 2 workmen in the case of

Swiss Hotel, 13 workmen in the case of Maiden's Hotel

and 43 workmen in the case of Imperial Hotel were

taken back in service.

The main contentions on

behalf of the hotels

a.re two,

namely,

(1) are any wages payable at all to workmen

who are suspended pending permission being sought

under

s. 33 of the Act for their dismissal ? and (2) is an

industrial tribunal competent to grant interim relief

without making

an interim a.ward which should have

been published ?

482 SUPREME COURT REPORTS (1960(1)]

z959 Re. (1).

Th M I

·' The contention of the appellants under this head is

' anagemen °' th t ' f h k d' · '

Hotel Imperial a suspens10n o t e wor men pen mg perm1ss10n

v. under s. 33 of the Act imposes an absolute bar to the

Hotel Workers' payment of any wages to the suspended workmen. On

Union the other hand, it is contended on behalf of the

respondents that susp'ension of workmen involving

n-·anchoo ].

non-payment of wages is not contemplated at all under

the ordinary law of master and servant in the absence

of an express term in the contract of employment to

that effect; and as in these cases there were admittedly

no

standing orders providing suspension without pay­

ment of wages, it was not open to the appellants to

withhold wages as the orders of suspension made in

these cases merely amounted to this that the employers

were

not prepared to take work from the workmen.

Even so, the right of the workmen to receive wages

remained

and the employer was bound to pay the

wages during the period of so-called suspension. The

Industrial Tribunal as well as the Appellate Tribunal

took the view that in the absence of an express term

in the contract of employment, wages could not be

withheld, even though

the employer might suspend

the workman in the sense that he

was'not prepared to

take any work from them.

The first question therefore

that falls for considera­

tion is

the extent of the power of the employer to

suspend an employee under

the ordinary law of master

and servant. It is now well settled that the power to

suspend, in the sense of a right to forbid a servant to

work, is not· an implied term in an ordinary contract

between master and servant, and that such a power

can only be

the creature either of

a statute governing

the contract, or of an express term in the contraet

itself. Ordinarily, therefore, the absence of such power

either as

an express term in the contract

or in the rules

framed under some

statute

would mean that the master

would have no power to suspend a w_ork,man and even

if he does so in the sense that he forbids the employee

to work, he will have to pay wages during the so-called

period

of suspension. Where, however,

there is power

to suspend either in the contract of employment or in

S.C.R. SUPREME COURT REPORTS 483

the statute oi.vthe rules framed thereunder, the suspen- z959

sion has the effect of temporarily suspending the M -

1

· f d · h h The anagement of

re ation o master an servant wit t e consequence H tel Imperial

that the servant is not bound to render service and

0

v.

the( master is not bound to pay. These principles of the Hotel workers'

ordinary law of master and servant are well settled Union

and have not been disputed before us by eithel' party.

Reference

in this connection may be made to Hanley

Wanchoo l·

v. Pease and Partners, Limited(

1

), Wallwork v. Field-

ing (

9

), Secretary. of State for India in Council v.

Surendra Nath Goswami (

8

)

and Rura Ram v. Divisional

Superintendent:

N. W. Railway(').

The next question that falls for consideration is

whether these principles also apply to

a case. where

the master has decided

to dismiss a servant, but

cannot do so at once as he has to obtain

th11 permission

necessary under

s. 33 of the Act and therefore suspends

the workman till he gets such permission. This brings

us to

the sphere of industrial law.

Ordinarily, ifs. 33

of the Act did not intervene, the master would be

entitled to exercise his power

of dismissing the servant

in accordance with the

law of master and servant and

payment of wages would immediately cease as the

contract would come to an end. But s. 33 of the Act

has introduced a fundamental change ill the law of

master and servant so far as c:ases which fall within

the Act are concerned; It has therefore to be seen

whether Industrial 'l'ribunals which· are dealing with

the

matter

under the Act must follow the ordinary law

of master and servant as indicated above or can imply

a term in the contra.ct in the peculiar .circumstances

supervening under s.

33 of the Act, to the effect that

where the master has concluded his enquiry and come

to the decision that the servant should be dismissed

and thereupon suspends him pending permission

under's.

33, he

has the power to order suoh suspension,

which would result in temporarily suspending the rela­

tion of master and servant, so that the servant is not

bound to render service and the master is not bound

to

pay wages. The power of Industrial Tribunal in

(1) [1915] 1 K.B.

6g8. (3) I L.R. [1939] 1 Cal. 46.

(2) [1922] 2 K.B. 66. (4) I.L.R. VII (1954) Punj~ 415.

484 SUPREME COUR'l' REPORTS [1960(1)]

1

959 matters of this kind arising out of industrial disputes

h

- 1

was considered

by the

Federal Court in Western India

TeManagementoA b'l A • • Th Ind ·z T'b a},

H

01

,

1 ImpeYial utomo i e ssociation v. e ustria ri un ,

v. Bombay(') and the followiug observations of Mahajan, J.

Hotel Workers' (as he then was) at p. 345 are apposite:

Union " Adjudication does not, in our. opinion, mean

wanchoo J. adjudication according to the strict law of master

and servant. The award of the tribunal may contain

provisions for settlement

of

a. dispute which no Court

could order if it was bound by ordinary Jaw, but the

tribunal is not fettered in any way by these 'limita­

tions. In Volume 1 of ' Labour Disputes and

Collective Bargaining' by Ludwig Teller, it is said

at p.,536 that industrial arbitration may involve the

extension of an existing agreement or the making of

a new one, or in general the creation of new obliga­

tion or modification of old ones, while commercial

arbitration generally concerns itself with interpreta­

tion of existing obligations and disputes relating to

existing agreements. In our opinion, it is a true

statement about the functions of an industrial

tribunal in la.hour disputes."

This Court in Rohtas Industries Ltd. v. Brijnandan

Pandey (') also recognised the correctnes's of the dictum

laid down in the a.hove :Federal Court decision and

observed that there was a. distinction between com­

mercial and industrial arbitration, and after referring

to

the same passage in

"Labour Disputes and Collective

Bargaining " by Ludwig Teller (Vol. 1, p. 536), pro­

ceeded to lay down as follows at p. 810 :-

" A Court of law proceeds on the footing that no

power exists

in the courts to make contracts for

people;

and the parties must make

their own con­

tracts. The Courts reach their limit of power when

they enforce contracts which the parties have made.

An

Industrial Tribunal is not so fettered and ma.v

create new obligations

or modify contracts in

the

interests of industrial peace, to protect legitimate

trade union activities and to prevent unfair practice

or victimisation."

(I) [1949] F.C.R. 3•1. (•) (1956] S:C.R. Boo.

S.C.R. SUPREME COURT REPORTS' 485

It is clear therefore that Industrial Tribunals have x959

the powe~ t~ go beyond th.e or?in?'ry law of master and Th• Management of

servant, if circumstances Justify it. In these cases the Hotel Imperial

decision of the Labour Appellate Tribunal has proceed- v.

ed strictly on the basis of the ordinary law of master Hotel Workers'

and servant-without regard to the fundamental change Union

introduced in that law by the enactment of s. 33 of the

Act. All the cases to which we have been referred Wamhoo J.

with respect to the ordinary law1ofmaster and servant

had no occasion to consider the impact of s. 33 of the

Act on that law as to the power of the master to sus-

pend. We have, therefore, to see whether

it would be

reasonable for an Industrial Tribunal where

it is

dealing

with a case to which s. 33 of the Act applies,

to imply a term in the contra.ct giving power to the

master .to suspend a servant when the master has come

to the conclusion after necessary enquiry that the

servant has committed misconduct and ought to be

dismissed,

but cannot do so because of s. 33. It is

urged on behalf

of the respondents that there

is nothing

in

the language of s. 33 to warrant the conclusion that

when an employer has to apply under it for permis-

sion he can suspend

the workmen concerned. This

argument, however, begs

the question because if there

were

any such provision in s. 33, it

w-ould be an ex-

press provision

in the statute authorising such suspen-

sion

and no further question of an implied term would

arise.

What we have to see is whether in the absence

of an express provision to that effect

in s. 33, it will

be reasonable for

an Industrial Tribunal in these

extraordinary circumstances arising. out

of the effect

of s. 33 to imply

a. term in the contra.ct giving power

to the employer to suspe,nd the contra.ct of employ-

ment,

thus relieving himself of the obligation to pay

wages and relieving the servant of the corresponding

obligation

to render service. We are of opinion that

in the peculiar circumstances which have a.risen on

account

of the enactment of s. 33, it is but just and

fair that Industrial Tribunals should imply such a

term in the contract of employment.

This Court had occasion to consider this matter in

four cases, though the point was not specifically argued

486 SUPREME COURT REPORTS [1960(1)]

z959

Th M

--

1

,,in the manner in which it has been argued before us

e anagemcn o 1 B 'd · f h '11

Hotelimperial now. ut a cons1 erat10n o t ese cases w1 show

v. that, though the point was not specifically argued,

Hotel workm' the view of this Court has consistently been that in

Union such cases a term should be implied giving power to

the master to suspend the contract of employment after

Wanchoo ].

he has come to the conclusion on a proper enquiry

that the servant should be dismissed and has to apply

to the tribunal for permission under s. 33.

In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram

Sarup (

1

), there was a provision in the standing orders

for suspension for four

days without pay. In actual

fact, however,

the employer in that case after having

come to the conclusion that the employees should be

dismissed suspended

them without pay pending

per­

mission of the tribunal and it was held that such sus­

pension was not punishment, even though it exceeded

four days. This was the main point which was under

consideration in that case; but it was further observed

that such a suspension was only an interim measure

and would last till the application for permission to

punish the workman was made and the tribunal had

passed orders thereon. If the permission was accorded

the workman would not be paid during thll period of

suspension : but if the permission was refused

1

he

woald

have to be paid for the whole period.

In The Management of Ranipur

Colliery v. Bhuban

Singh ('), it was pointed out.that but for this ban the

employer would have been entitled to dismiss the

employee immediately after the completion of his

enquiry on coming to the conclusion that the employee

was guilty

of misconduct. The contract of

·service

would thus be brought to an end by an immediate

dismissal

after the conclusion of the enquiry and the

employee would not be entitled to any further wages.

But s. 33 steps in and stops the employer from

dis­

missing the employee immediately on the conclusion

of his enquiry and compels him to seek permission of

the Tribunal. It was, therefore, reasonable that the

employer having done ·au that he could do to bring

the contract of service to an end should not be

(1) [1956] S.C.R. 916. (2f C.A. 768/57, decided on April 20, 19:;9.

S.C.R. SUPREME COURT REPOH.TS 487

expected to continue paying the employee thereafter. x959

It was pointed out that in such a case the employer T' --

1

Id b

· t'fi d · d' th 1 . h t '"Management o

wou . e JUS 1 e m suspen mg e emp oyee wit ou Hotel Imperial·

pay as the time taken by the tribunal to accord per- v.

mission under ·s. 33 of the Act was beyond the control Hotel Workers'

of the employer. Lastly, it was pointed out that this Union

would not cause any hardship to the employee; for if

h d

Wanchoo ].

t e tribunal grante permission, the employee would

not get anything from the date of his suspension with-

out pay, while

if the permission was refused he would

be entitled

to his back wages from such date. Lakshmi

Devi

Sugar Mills Ltd. (

1

)

was referred to and it was

explained

that the principle laid down in that case

would only apply

wheres. 33 would be applicable.

In Messrs.

Sasa Musa Sugar Works (P) Ltd. v.

Shobrati Khan (

9

), ethe view taken in the two earlier

cases was reiterated with

the rider that in case the

employer did not hold an enquiry and suspend the

workman pending permission, he

would have to

1 go on

paying

the wages till the proceedings under s. 33 were

concluded

and the tribunal granted permission to

dismiss

the·· workman.

In Phulbari Tea Estate v. Its Workmen (

3

), the rider

laid down in the case Messrs. Sasa Musa Sugar Works

(P) Ltd. (

9

)

was·

further extended to a case of an ad­

judication under s. 15 of the Act and it was pointed out

that if there was any defect in the enquiry by the

employer he could make good that defect by producing

necessary evidence before

the tribunal ; but in that

case he will have to pay the wages up to the date of

the

aW!lord of the tribunal, even if the award went in

his favour.

It is urged on behalf of the respondents that there

were

at any rate some Standing Orders, particularly in

Lakshmi Devi Sugar Mills LUJ. (1) and The Management

of Ranipur Colliery (') giving power to suspend for

some. period

of time

and therefore further suspension

might be justified on the basis of those Standing

Orders. In the case of Messrs. Sasa Musa Sugar

(1) [1956] S.C.R. 916.

(2) ~.As. 746 .t 747/57,

<Jecjded on April 29, 19,~.

(3) [Ig6o].I S.C.R. 32.

(4) C.A. 768/57 decided

l>!l April 20

1 19,59·

488 SUPREME COURT REPORTS (1960(1)]

'959 • Works (P) Ltd, ('), however, there were no Standing

Th M

-,, Orders till then in force. The ratio of the decision in

e anagement o, h

Hotel bnp<rial t ese cases was, however, not based on the presence or

v. absence of the Standing Orders; for there is very little

Hotel Workers' difference in principle between the cases where Stand-

Union ing Orders provided a few days suspension without pay

and the suspension was continued for a much longer

Wanchoo ]. . d d h d

per10 an w ere there were no Standing Or ers pro-

viding suspension without pay. We are of opinion

that though these cases did not expressly proceed on

the basis of an implied term in the contract of employ­

ment to suspend the employee and thus suspend the

relation of master and servant temporarily, that must

be the implicit basis on which these decisions were

given.

But for such a term being implied, it would

not be possible at all to

lay down, as was laid down in

these cases, that if a proper enquiry had been held

and the employer had decided to dismiss the workman

and apply for permission and in consequence had sus­

pended the workman, there would be no obligation on

him to pay wages from the date of suspension if per­

mission was accorded to him under s. 33. We are,

therefore,

of opinion that the ordinary

law of master

and servant as to suspension can be and should be held

to have been modified in view of the fundamental

change introduced

by s. 33 in that law

and a term

should be implied by Industrial Tribunals in the

contract of employment that if the master has held a

proper enquiry and come to the conclusion that the

servant should be dismissed and in consequence sus­

pends him pending the permission required under s. 33

he has the power to order such suspension, thus sus­

pending the contra.ct of employment temporarily, so

that there is no obligation on him to pay wages and

no obligation on the servant to work. In dealing with

this point the basic and decisive consideration intro­

duced dy s. 33 must be borne in mind. The undis­

puted common law right of the master to dismiss his

servant for proper cause has been subjected by s. 33 to

a ban; and that in fairness must mean that, pending

the removal of the said statutory ban, the master can

(1) C.As. 746 & 747/57, decided on April 29, 1959.

S.C.R. SUPREME COURT REPORTS

after holding a proper enquiry temporarily terminate I959

the relationship of master and servant by suspending -_,

1

.

h

.

1 d'

a· d 33 It£ll TheManagememo

is emp oyee pen mg procee mgs un er s. . o ows H tel Imperial

therefore that if the tribunal grants permission, the

0

v.

suspended contract would come to an end and there 'Hotel Workm'

will be no further obligation to pay any wages after Union_

the date of suspension. If, on the other hand, the

permission is refused, the suspension would be wrong Wanchoo J.

and the workman would be entitled to all his wages

from the date of suspension.

This, however, does not conclude the matter so far

as

the grant of interim relief in these cases is

con­

cerned. 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

lLway the power of the tribunal to grant interim relief

if such power exists under the Act. The existence of

such an implied term cannot bar the tribunal from

granting interim relief

if

it has the power to do so

under the Act. This brings us to the second point,

which has been canvassed in these appeals.

Re. (2).

After a dispute is referred to the tribunal under s.10

./

of the Act, it is enjoined on it by s., 15 to hold its pro­

ceeding expeditiously and on the conclusion thereof

submit its award to

the appropriate government. An "a.ward" is defined in s. 2(b) of the Act as meaning

" an interim or final determination by an Industrial

Tribunal

of any industrial dispute or of any question

relating

thereto." Where an order referring an industrial

dispute has been made specifying the points of dispute

for adjudication,

the tribunal has to confine its

adjudi­

cation to those points and matters incidental thereto;

(s. 10(4) ). It is urged on behalf of the appellants that

the tribunal in these cases had to confine itself to

adjudicating on the points referred and that a.s the

question of interim relief was not referred to· it, it

could not adjudicate upon that. We a.re of opinion

• 6a

490 SUPREME COURT REPORTS [1960(1))

r959 that there is no force in this argument, in view of the

TheMa:;.mentofwords "incidental thereto" appearing in s. 10(4).

Hotel Imperial There can be no doubt that if, for example, question of

v. reinstatement and/or compensation is referred to a tri-

Hotel Wo•kers' bunal for adjudication, the question of granting interim

Union relief till the decision of the tribunal with respect to

the same matter would be a matter incidental thereto

Wanchoo ].

under s. 10(4) and need not be specifically referred in

terms to the tribunal. Thus interim relief where it is

admissible can be granted

as

a matter incidental to the

main question referred to the tribunal without being

itself referred

in express terms.

The next question is as to how the tribunal should

proceed in

the matter if it decides to grant interim

relief.

The definition of the word

"award" shows that

it can be either an interim or final determination either

of the whole of the dispute referred to the tribunal or

of

any question relating thereto. Thus it is open to

the tribunal to give an award about the entire dispute

at the end of all proceedings. This will be final

deter­

mination of the industrial dispute referred to it. It is

also open

to the tribunal to make an award about

some of the matters

referred to it whilst some others

still remain

to be decided. This will be an interim

determination

of any question relating thereto. In

either case it will have to be published as required by

s. 17.

Such awards are however not in the nature of

interim relief for they decide the industrial dispute or

some question relating thereto. Interim relief, on the

other hand, is granted under the power conferred on

the tribunal under s. 10(4) with respect to matters

incidental to the points of dispute for adjudication.

It is however urged on behalf of the appellants that

even if the tribunal has power under s. 10(4) of the

Act to grant interim relief of the nature granted in

• these cases it can only do so by submitting an award

under s. 15 to the appropriate government. Reference

in this connection is made to sections 15, 17 and, 17-A

of the Act. It is submitted that as soon as the tribu­

nal maks a determination whether interim or final, it

must submit that determination to government which

has to publish it as an award under s. 17 and thereafter

S.C.R. SUPREME COURT REPORTS 491

the provisions of s. 17-A will apply. In reply the res- z959

11ondents rely on a. decision of the Labour Appellate -

•r "b 1 · All B d C Ltd Th · W k The Management of

. ri una m en erry an o. . v. eir or -H,

1 1

P .

1

men (

1

), where it was held that an interim award had

0

e : ma

not to be sent like a final award to the government Hotel Workers·

for publication and that it would take effect from the Union

date of the order. We do not think it necessary, to Wanehoo f.

decide for present purposes whether an order granting

interim relief of this kind is an a.ward within the

meaning of s. 2(b) and must therefore be published

under s.

17. We shall assume that the interim order

passed

by the Tribunal on .December 5, 1955, could not

be enforced as it was in the nature of an award and

should have been submitted to the government

and

published under s. 17 to become enforceable under

s. 17-A. It is, however, still open to us to consider

whether we should pass

an order giving interim relief

in view

of this alleged technical defect in the order of

the Industrial Tribunal. We have the power to grant

interim relief in the same manner as the Industrial

Tribunal could do and our order need not be sent to

government for publication, for ss. 15, 17 and 17-A do

not apply to the order of this

Court just as they did

not apply to the decision of the Appellate Tribunal

which was governed

by the Industrial Disputes (Appel-late Tribunal) ~ct, 1950 (No. XLVIII of 1950), (since

repealed). We have already mentiQned that this Court

passed an order on June 5, 1956, laying down condi-

tions on which

it stayed the operation of the order of

December 5, 1955, ma.de by the Industrial Tribunal.

We

a.re of opinion that that order·is the right order to

pass in the matter of granting interim relief to the

workmen in these cases. Ordinarily, interim relief

should

not be the whole relief that the workmen would

get

if they succeeded finally. In fairness to the Indus-

trial Tribunal

and the Appellate Tribunal we must say

that they granted the entire wages plus Rs. 25 per

mensem per head in lieu of food on the view that no

suspension was possible a.t a.11 in those cases and there-

fore the contra.ct of service continued and full wages

must be pa.id. Their orders might have been different

(l) [l95l] I L.L.J. aa8.

492 SUPREME COURT REPORTS [1960(1))

z959 if they had held otherwise. It seems to us just and

- fair in the circumstances therefore to order that the

ThH• Ma

1

n

1

•c•mmt of appellants shall pay to their respective workmen con-

ote mpenal d h Jf h .

v. cerne a t e amount adjudged payable by the order

Hotel workm' dated December 5, 1955, with respect to the entire

Union period, as the case may be, from October 1, 1955 to

Wamhoo J. December 10, 1955 or July 15", 1956, by which date, as

we have already pointed out, practically all the work­

men were taken back in service. f\

7

e, therefore, order

accordingly.

Lastly, it is. urged on behalf of the respondents that

as all the workmen concerned were taken back in ser­

vice they should be paid full wages for the interim

period as their re-employment means that the decision

to dismiss them and the consequent order of suspen­

sion were waived. This is a matter on which we do

not propose to express any opinion. The proceedings

are so far at the initial stage and the effect of re­

empolyment, in the absence of full facts, on the ques­

tion of waiver cannot be determined at this stage. It is

enough to point out that the order we have passed

above is an interim relief and it. will be liable to be

modified

one way or the other, when the Industrial

Tribunal proceeds to make the final determination of

the questions referred to it in the light of the

observa­

tions we have made on the matter of suspension. The

appeals are partly allowed and the order dated Decem­

ber, 5, 1955, granting interim relief is modified in the

manner indicated above. In the circumstances, we

order

the parties to bear their own costs of this

Court.

As more than three years have gone by in these preli­

minaries since the references were made, we trust that

the Industrial Tribunal will now dispose of the matter

as expeditiously as possible.

Appeals aliotced in part.