VERY IMPORTANT POINT
Once an employee is placed under suspension pending final disposal of application under Section 33(1) of Industrial Disputes Act, 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.

Headnote:Industrial Dispute Act, 1947-Section 33(1)-Permission to dismissal of workman-Suspension to workman pending disposal of petition-Employer liable to pay subsistence allowance to workman.
       If the Management has held a departmental enquiry against an employee, it has the right to place that employee under suspension, if on the basis of the findings recorded at the departmental enquiry, the Management is, prima facie, of the opinion that the employee, on account of the charges having been proved was liable to be dismissed from service, but the final order of dismissal could not be passed on account of a Reference raised under the Industrial Disputes Act, 1947, which was already pending before the Tribunal. 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. (Para 18)
       Just as the employer has no control, over the disposal of the application under Section 33(1) of the Industrial Disputes Act, so also the employee has no control over the disposal of that application. Whether the employee would be retained in service or removed would be dependent upon the fate of the application. While the Management can afford to wait for the disposal of that application, it would be impossible for an employee who survives only on his salary to wait for the disposal of that application for an indefinite period. It would not be possible for him to sustain himself. It is in this light that the right to receive reduced salary (Subsistence Allowance) for the period of suspension has to be read along with the righ of the Management to place the employee under suspension pending disposal of the application under Section 33(1) of the Industrial Disputes Act. Thus, the right of Management to suspend and the right of the employee to receive Subsistence Allowance are intertwined and both must survive together. (Para 21)
       Held, further : The Subsistence Allowance shall be paid to the appellants for the whole of the period of suspension at such rates as is provided under the Standing Orders or the Service Rules and if there is no such provision, they would be entitled to be paid full salary even during the period of suspension. (Para 22)

ORDER

S. Saghir Ahmad, J.-Leave granted in all the Special Leave Petitions.

2. The appellants were the employees of the Swatantra Bharat Mill against whom charge-sheets were issued in the year 1986 and they were subsequently suspended.

3. Since an industrial dispute was already pending before the Industrial Tribunal vide Delhi Administration Notification No. F-24(798)/94-Lab dated 1.4.86, an application was filed by the Management under Section 33(1) of the Industrial Disputes Act, 1947 for permission to dismiss the employees on completion of enquiry. This application was opposed by the appellants who filed objections and claimed that they were entitled to be paid Subsistence Allowance during the pendency of the disciplinary proceedings for the period of suspension. On this, the Tribunal framed the following preliminary issue :-

"At what rate, if any, the Management is to pay the subsistence allowance to the workman".

4. The Presiding Officer, Industrial Tribunal, Tis Hazari, Delhi, relying upon the decision of this Court in The Management, Hotel Imperial, New Delhi & Ors. v. Hotel Workers Union1, dismissed the objections of the appellants and held that they were not entitled to any Subsistence Allowance. The appellants thereafter filed Writ Petitions in the High Court of Delhi which were dismissed by the impugned judgment reading as under:-

"In view of the decision of the larger Bench of the Supreme Court in the case of the Management, Hotel Imperial, New Delhi & Ors. v. Hotel Workers Union reported as AIR 1959 SC 1342, we are not inclined to interfere in this petition.

Dismissed."

5. It appears that the decision of this Court in Fakirbhai Fulabhai Solanki v. Presiding Officer & Anr.2, was cited before the High Court, but it did not follow the decision and preferred to follow the judgment in Hotel Imperial s case (supra).

6. This Court, while entertaining these appeals had passed the following order on 2.1.1996 :-

"In view of the fact that the judgment in Hotel Imperial s case was rendered by a three Judge Bench, we consider it appropriate that these petitions be listed before a three Judge Bench. Appropriate order from the Hon ble the Chief Justice may be obtained in this behalf.

In the event the special leave petitions cannot be listed within the next two weeks, the application for interim stay may be put up before the three Judge Bench within that period."

7. It is in these circumstances that the matter has come up before us.

8. In Hotel Imperial s case (supra), this Court had laid down as under:-

"We have, therefore, to see whether it would be reasonable for an Industrial Tribunal where it is dealing with a case to which Section 33 of the Act applies, to imply a term in the contract giving power to the master to suspend a servant when the master has come to the conclusion after necessary enquiry that the servant has committed misconduct and ought to be dismissed, but cannot do so because of Section 33. It is urged on behalf of the respondents that there is nothing in the language of Section 33 to warrant the conclusion that when an employer has to apply under it for permission he can suspend the workmen concerned. This argument, however, begs the question because if there were any such provision is Section 33, it would be an express provision in the statute authorising such suspension and no further question of an implied term would arise. What we have to see is whether in the absence of an express provision to that effect in Section 33, it will be reasonable for an Industrial Tribunal in these extraordinary circumstances arising out of the effect of Section 33 to imply a term in the contract giving power to the employer to suspend the contract of employment, thus relieving himself of the obligation to pay wages and relieving the servant of the corresponding obligation to render service. We are of the opinion that in the peculiar circumstances which have arisen on account of the enactment of Section 33, it is but just and fair that I

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1999 Supreme(SC) 1346

Cases Referred (12)