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SUPREME COURT OF INDIA
21st May, 1959.
B.P. SINHA, P.B. GAJENDRAGADKAR AND K.N. WANCHOO, JJ.
The Management Hotel Imperial, New Delhi and others, Appellants
Versus
Hotel Workers Union, Respondents.
Civil Appeals Nos. 31-33 of 1958.
Advocate Appeared
Mr. M. C. Setalvad, Attorney-General for India and Mr. Jai Gopal Sethi, Senior Advocate (M/s. J. B. Dadachanji, S. N. Andley, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co., with them), for Appellants; Mr. G. S. Pathak, Senior Advocate (M/s. V. P. Nayar and Janardan Sharma, Advocates, with him), for Respondents.
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 33 - SUSPENSION OF WORKMEN PENDING PERMISSION TO DISMISS - IMPLIED TERM IN CONTRACT OF EMPLOYMENT - INTERIM RELIEF - POWER OF INDUSTRIAL TRIBUNAL.
Fact of the Case:
Three hotels in Delhi faced labor disputes and strikes in October 1955. The management of Imperial Hotel issued notices to 22 workmen on October 4, 1955, informing them of their decision to dismiss them subject to obtaining permission under Section 33 of the Industrial Disputes Act, 1947 (the Act). A general strike ensued, leading to notices being issued to all workmen to rejoin their duties or face disciplinary action. Fresh notices were issued on October 7, 1955, informing the workmen of their dismissal and suspension pending permission under Section 33. Similar actions were taken by the management of Maiden's Hotel and Swiss Hotel, resulting in disputes involving 44, 14, and 14 workmen, respectively. Interim relief was granted by the Industrial Tribunal, but the hotels appealed, leading to a stay of the order by the Supreme Court on condition that the employers pay half the amount adjudged payable as interim relief. By July 15, 1956, most workmen were taken back in service.
Finding of the Court:
1. The ordinary law of master and servant does not imply a power to suspend an employee without pay, and such power can only arise from a statute or an express term in the contract of employment. 2. Section 33 of the Act introduced a fundamental change in the law of master and servant, barring the immediate dismissal of workmen without permission. 3. Industrial Tribunals have the power to go beyond the ordinary law of master and servant and imply terms in the contract of employment to ensure industrial peace and prevent unfair practices. 4. In the peculiar circumstances arising from Section 33, it is reasonable to imply a term in the contract of employment giving the employer the power to suspend a workman after a proper enquiry and a decision to dismiss, pending permission under Section 33. 5. Such implied term does not affect the power of the tribunal to grant interim relief if it has the power to do so under the Act. 6. Interim relief can be granted as a matter incidental to the main question referred to the tribunal without being itself referred in express terms. 7. An interim order granting relief need not be sent to the government for publication, as it is not an award within the meaning of Section 2(b) of the Act.
Issues: 1. Whether the ordinary law of master and servant applies to cases where an employer has decided to dismiss a workman but cannot do so immediately due to the requirement of permission under Section 33 of the Act. 2. Whether Industrial Tribunals can imply a term in the contract of employment giving the employer the power to suspend a workman in such circumstances. 3. Whether the power to grant interim relief is affected by the implied term giving the employer the power to suspend. 4. Whether an interim order granting relief must be sent to the government for publication.
Ratio Decidendi: 1. The ordinary law of master and servant does not apply to cases where an employer has decided to dismiss a workman but cannot do so immediately due to the requirement of permission under Section 33 of the Act. 2. Industrial Tribunals can imply a term in the contract of employment giving the employer the power to suspend a workman in such circumstances, as it is just and fair to relieve the employer of the obligation to pay wages during the period of suspension. 3. The power to grant interim relief is not affected by the implied term giving the employer the power to suspend, as interim relief is granted under the power conferred on the tribunal under Section 10(4) of the Act with respect to matters incidental to the points of dispute for adjudication. 4. An interim order granting relief need not be sent to the government for publication, as it is not an award within the meaning of Section 2(b) of the Act.
Final Decision: The appeals were partly allowed, and the order granting interim relief was modified to require the appellants to pay their respective workmen half the amount adjudged payable by the order dated December 5, 1955, for the period from October 1, 1955, to December 10, 1955, or July 15, 1956, whichever was applicable. The Industrial Tribunal was directed to dispose of the matter expeditiously.
Judgement
WANCHOO J.: These are three appeals by special leave from three decisions of the Labour Appellate Tribunal of India. We shall dispose of them by one judgment, as they raise common points. The three appellants are the management s of (1) Imperial Hotel, New Delhi (2) Maiden s Hotel, Delhi and (3) Swiss Hotel, Delhi, the respondents being their respective workmen represented by the Hotel Workers Union, Katra Shahanshahi, Chandni Chowk, Delhi.
2. 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 chargesheets were served on 22 workmen and an enquiry was held by the management which came to the conclusion that the workmen were guilty of misconduct and therefore decided to dismiss them. Consequently, notices were served on October 4,1955, upon these workmen informing them that the management had decided to dismiss them subject to obtaining permission under S. 33 of the Industrial Disputes Act, 194 ( herein-after called the Act). It seems that this action of the management of Imperial Hotel led to the general strike in all the three hotels on 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 issue 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 notices 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.
3. As the disputes between the hotels and their workmen were already under consideration of Government, 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 including 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, however, did not refer to the workmen whom the management 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 workmen had in the meantime applied under S. 33-A of the Act on the ground that they had been suspended without 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 reference of October 12, 1955, and the remaining 19 had filed an application under S. 33-A of the Act. It does not appear, however, that Imperial Hotel made any application under S. 33 of the Act for permission to dismiss these 19 workmen, though an application trader that section was made on October 22, 1955, with respect to 22 workmen whose dismissal was decided upon on October 4,1955.
4. So far as Maiden s Hotel is concerned, the case relates to 26 workmen whose dismissal was finally 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
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