An employer does not have the implied power to suspend workmen during the pendency of a criminal case against them.

Narasimham, J.

1. These two writ applications have been heard together as they involve same questions of law and will be disposed of in one judgment.

2. The petitioner, who is the employer of some workmen governed by the provisions of the Bihar Shops and Establishments Act, 1953, suspended three of his workmen, namely, opposite parties Nos. 1, 2 and 3 in M. J. C. 996 of 1962, with effect from 27-1-1960 on the allegation that they were guilty of committing criminal breach of trust in respect of properties of the employer for which a regular police case was instituted against them. The order of the employer suspending them pending the police investigation was challenged as invalid. The original authority, namely, the Presiding Officer Labour Court, and the appellate authority namely, the Industrial Tribunal, Bihar, both held that such an order of suspension was invalid. The appellate authority has relied mainly on the principle laid down by their Lordships of the Supreme Court in Hotel Imperial, New Delhi V/s. Hotel Workers Union, (1959) 2 Lab LJ 544: (AIR 1959 SC 1342) where their Lordships pointed out that the power to suspend 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 contract itself. Here, admittedly, there was no statutory provision, nor an express term in the contract of service between the petitioner and their workmen authorising the employer to suspend them pending the termination of the criminal case or an enquiry against them. The two lower authorities held, following the aforesaid judgment of the Supreme Court, that the order of suspension was invalid.

3. Mr. Roy for the petitioner, however, urged that in the aforesaid judgment itself their Lordships further pointed out that where in consequence of the restrictions imposed by Sec.33 of the Industrial Disputes Act there is dismissal of a workman during the pendency of an industrial dispute, an implied term in the contract authorising such suspension can be reasonably inferred by virtue of the fundamental change brought about by the provisions of Sec.33 of that Act. According to Mr. Roy, the same principle would apply if there is a restriction on the employer to dismiss a workman arising not out of any statutory provision like Sec.33 of the Industrial Disputes Act, as in the Supreme Court Judgment, but by virtue of the law of contempt. According to Mr. Roy, during the pendency of the criminal case against the workmen for the offence of criminal breach of trust alleged to have been committed by them against their master, if the master dismisses them from service, such an order of dismissal may make the master liable for contempt of Court and it is this apprehension of proceedings for contempt that deters the master from passing an order of dismissal which he would otherwise have done. Mr. Roy, therefore, urged that the reasons given by their Lordships of the Supreme Court in the aforesaid judgment while construing the implied term of the contract in view of the provisions of Sec.33 of the Industrial Disputes Act may as well apply where the power of dismissal is very much restricted by the apprehension of transgression of the law of contempt.

4. This argument is undoubtedly very attractive, but I do not think the aforesaid judgment of the Supreme Court can be stretched so far. As their Lordships pointed out, under the general law of master and servant there is no right to suspend the servant. But they were concerned with a case under the Industrial Disputes Act and Sec.33 of that Act clearly prohibits the master from dismissing his employee without obtaining the previous permission of the competent authority. It is this express provision in the language of Sec.33 which was very much in the mind of their Lordships when they made the following observation:

"The undisputed common law right of the master to dismiss his s