E.I.H. Limited vs National Capital Territory Of ...
2004 Latest Caselaw 594 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The three captioned petitions have a common back drop and hence are being decided together.

2. Prayers made in W.P(C) No.4361/1997 filed by the management are as under:-

"(i) issue appropriate writ, order or direction in the nature of writ of certiorari or mandamus quashing the impugned award dated 13.6.97 (Annexure P-1) of Industrial Tribunal-II, Tis Hazari, Delhi.

(ii) issue appropriate writ, order or direction in the nature of writ of certiorari or mandamus quashing the impugned terms of reference dated 17.11.95 (Annexure P-2) passed by the Secretary (Labour), Government of NCT Delhi.

(iii) issue appropriate writ, order or direction to Industrial Tribunal-II, Tis Hazari, Delhi for forwarding the file relating to the impugned award dated 17.11.1995 in ID No. 38/95, 2/96.

(iv) Issue appropriate writ, order or direction to Secretary (Labour, Government of NCT Delhi to forward the file on the basis of which terms of reference No. F.24 (3383)/95-Lab/13628388 dated 17.11.1995 impugned in the present writ petition has been passed to the Hon'ble Court for perusal."

3. Prayers made in W.P(C) No.2736/1998, filed by the management are as under:

"(i) issue appropriate writ, order or direction in the nature of writ of certiorari or mandamus quashing the impugned order dated 15.5.98 (Annexure P-1) of Tribunal-II, Tis Hazari, Delhi.

(ii) issue appropriate writ, order or direction to Industrial Tribunal-II, Tis Hazari, Delhi for forwarding the file relating to the impugned order dated 15.5.98 in OP No.1/97, 2/97, 3/97 & 4/97."

4. Prayers made in W.P(C) No.3115/1998, filed by the workmen are as under:

a) Call for the records of the case,

b) Declare that the 'Right of Life' guaranteed under Article 21 of the Constitution includes the right not to be exploited and not subject to penury,

c) consequently declare that the failure of the management, the respondents 3 to 7, herein in not obtaining the prior permission of the Hon'ble Tribunal before dismissing the petitioner workmen is arbitrary, illegal and violative of articles 14 and 21 of the Constitution.

d) Issue a writ of mandamus or any other appropriate writ, order or direction directing the appropriate Government to initiate the prosecution proceedings against the respondents 3 to 7 for violating and contravening the Section 33 of the Industrial Disputes Act, 1947."

5. EIH Ltd is a company incorporated under the Companies Act, 1956. It runs a hotel known as 'The Oberoi' at Dr.Zakir Hussain Marg, New Delhi. Sh.D.S.Teja, Sh. L.K.Shandilya, Sh.Ram Charan and Sh. Rohit Sharma (hereinafter referred to as the 'workmen') were employed at the hotel `The Oberoi'.

6. The workmen were members of Hotel Oberoi Inter Continental Employees Union (Regd.) They claim to be Union activist. Management was recognising 'Hotel Oberoi New Delhi Employees Union' as the union of its workmen. The management had entered into a settlement with said Union. Hotel Oberoi Inter Continental Employees Union was not recognising said settlement as it claimed that Hotel Oberoi New Delhi Employees Union was a stooge union of the management. There was a dispute and unrest. The management had obtained an injunction against Hotel Oberoi Inter Continental Employees Union and its office bearers from holding dharnas within the hotel premises or in a manner which obstructed ingress and egress to the hotel premises.

7. Management received two reports that firstly at about 12.15 P.M on 30.5.1994 the workmen and a few others, unauthorisedly entered one of the restaurants in the hotel, namely 'Baan Thai' Restaurant. They assaulted the restaurant manager Mr. Javed I.Baig. He was abused verbally and physically thrown out of the restaurant. Cause of the assault was that he had marked one Mr. David Sherpa, a steward, as being absent on 29.5.1994. In view of the seriousness of the misconduct, the management, pending disciplinary action, suspended the workmen on 30.5.1994 itself. Identical suspension orders were issued. The suspension order reads as under:-

"On 30th May, 1994, at about 12.15 p.m charges of gross misconduct have been reported against you. In view of the seriousness of the charges reported against you, you are hereby suspended with immediate effect, pending disciplinary action. A detailed charge-sheet will follow.

For the period of suspension, you will be paid subsistence allowance as per the rules of the company."

8. Second incident allegedly took place on 10.15 p.m, the same day. Workmen were reported to have forcibly trespassed into the main kitchen and occupied the tables therein. They shouted and interfered with the working of the kitchen.

9. On 6.6.1994, a charge-sheet, alleging misconduct for the acts of the workmen pertaining to the incident of 12.15 p.m was issued and on 14.6.94 another charge-sheet, alleging misconduct for the acts of the workmen pertaining to the incident of 10.15 p.m was issued.

10. Finding the reply to the charge-sheets inadequate management instituted on enquiry. Workmen filed a writ petition, being W.P. (C) No.861/1995 praying that management be directed to permit them to have a defense assistant of their choice. Management conceded to the prayer. Vide order dated 27.4.1995 the writ petition aforesaid was disposed of, recording the concession made by the management.

11. In the meanwhile, on 30.12.1994 the workmen lodged a complaint under Section 25T of the I.D.Act, 1947 alleging unfair labour practice by the management. They complained qua suspension.

12. On 17.11.1995, vide reference No.F.24(3383)/ 95-Lab/ 13628388, made in exercise of power vested in the appropriate government under Section 10(1)(c), 10(1)(d) and 12(5) of the I.D. Act, 1947, following reference was made to the Industrial Tribunal:-

"Whether the continuance of suspension of S/Sh. D.S.Teja, Ram Charan, Lalit Kumar Shandilya and Romi Sharma is illegal and/or unjustified and if so, to what relief are they entitled and what directions are necessary in this respect."

13. In the reference before the Industrial Tribunal, the management, apart from justifying the suspension, took a plea that right to suspend being the inherent right of every employer, even under Section 10A of the Industrial Employment (Standing Order) Act, 1946 a workman could be suspended pending investigation or inquiry into complaints of charges of misconduct. Additionally reliance was placed on the Standing Orders for the Employees of the Hotel Oberoi Inter Continental, New Delhi. Clause 3 of Chapter VII stipulates:-

"A workman against whom any action is proposed to be taken for misconduct may be suspended pending the inquiry or for the period, if any, allowed to him for giving his explanation. . . .. . . . ."

In other words, management took a plea that suspension could not be an industrial dispute and therefore, reference itself was bad in law.

14. In the words of the management, preliminary objection to the reference itself was:

"The suspension of the employees by an employer is well recognised inherent right and further the power of suspension is categorically provided in Section 10A of the Standing Orders Act as well as the Certified Standing Orders of the petitioner Hotel. Inasmuch as the power of suspension pending enquiry is with the employer, the petitioner is entitled to suspend the respondents. In any event, the terms of reference were regarding continuation of suspension. . . . . . . . . . . . . . . . . . . suspension pending enquiry or continuation of suspension pending enquiry is not an Industrial Dispute under Section 2(k) or Section 2A of the I.D. Act, 1947."

15. During the pendency of the proceedings before the Industrial Tribunal, enquiry pursuant to the charge-sheet dated 6.6.1994 was completed. The workmen were found guilty. Order dismissing them from service was passed on 31.5.1996.

16. Application under Section 33(2)(b) of the I.D Act 1947 for approval of the action taken for dismissing the workmen was filed. Management claims that said application was filed by way of abundant precaution, for if the reference was held to be invalid, there would be no occasion to even seek approval. Said application was filed on 31.5.1996. The workmen opposed the application alleging that termination was malafide. A preliminary objection was raised. It was alleged that since issue of suspension was pending adjudication before the tribunal, dismissal related to a matter connected with the dispute and hence dismissal could not be effected without prior permission of the Tribunal. In other words workmen pleaded that application under Section 33(2)(b) was not maintainable.

17. In respect of the reference pertaining to the suspension of the workmen as per reference dated 17.11.1995, the Industrial Tribunal framed two issues vide order dated 9.9.1996. The issues framed read as under:

"1. Whether the reference is bad in law for the reasons stated in the preliminary objection No.3, 4 and 5 in the written statement of the management?

2. As in terms of reference."

18. Alleging that the dismissal altered their service condition and since it was effected during pendency of proceedings before the Industrial Tribunal vide reference dated 17.11.1995 and since it was regarding a matter connected with the dispute, the workmen filed an application under Section 33A of the I.D. Act 1947 before the Industrial Tribunal. On 20.3.1997, the Tribunal framed the following issues on the pleadings pertaining to the application of the workmen under Section 33A:

1. Whether the respondent/ management contravened the provisions of Section 33 of the I.D Act? OPC

2. If issue No.1 is decided in favor of the complainants, whether the enquiry held against the complainants was not fair and proper as claimed by them? OPC

3. To what relief, if any, are the complainants entitled."

19. On 13.6.1997, the Industrial Tribunal made an award pursuant to the reference dated 17.11.1995. The Tribunal decided the two issues framed on 9.9.1996 (noted in para 17 above). Issue No.1 was decided against the management. It was held that right to suspend a workman flowed out of the Industrial Employment (Standing Order) Act 1946 and the `Standing Orders for the Employees of the Hotel Oberoi Inter Continental, New Delhi' and therefore, suspension would fall within the definition of industrial dispute as defined in Section 2k of the I.D. Act 1947 since it is connected with the employment or non-employment or the terms of employment or with the conditions of labour. Since Union was espousing the cause of the workmen, it was held that reference was valid.

20. On issue No.2, it was held:

"Clause No.3(1) in Chapter VII of the Standing Orders for the employees of The Oberoi Hotel (Ex.MW-1/7) provides that the management can suspend any workmen pending inquiry and under clause 3 (v) it is provided that during suspension period the workmen concerned shall be entitled to 50% wages. This clause in the Standing Orders of the management company no doubt provides that the management can suspend any workmen during the pendency of enquiry against him for some misconduct but in my view this clause in the facts and circumstances of the present case is no help to the management in view of the fact that on 30th May, 1994, when the workman concerned were suspended, no enquiry against them had been ordered to be conducted and in fact they were not even charge-sheeted on that date. All that the management had mentioned in the suspension order dated 30th May, 1994, copy of which is Ex.WW-1/18, was that on that date charges of gross misconduct had been reported against the workmen. Even the charges were not mentioned in the suspension order. It is thus clear that the workmen were suspended simply on receipt of certain complaint against the workmen. The management has not placed on record any material to show that there was any application of mind before taking a decision for the suspension of the workmen. As already noticed, the management under its Standing Orders has a right to suspend any workman only pending enquiry and therefore since on 30th May, 1994 the workmen had neither been charge sheeted nor any enquiry was pending, the impugned order of suspension cannot be said to be legal and justified."

21. Holding initial suspension to be bad, Tribunal considered the events after 30.5.1994. In light of the charge-sheet served on 6.6.1994, the allegations contained therein, it was held that there existed material to justify suspension and in that view of the matter, reference was answered as under:

"In the result, it is held that the suspension of the workmen ordered on 30th May, 1994 was not legal and justified and consequently they would be entitled to only full wages from that date till the issuance of the charge-sheets against them. Their suspension from the date of issuance of charge-sheet till the conclusion of the disciplinary proceedings was however not illegal. Award is passed accordingly."

22. It be noted that the workmen have not challenged the award. Only the management, by and under W.P(C) No.4361/1976 has challenged the award as per prayers in para 2 above.

23. Proceedings continued before the Tribunal in respect of the application filed by the management seeking approval for the dismissal of the services of the workman, under Section 33(2)(b) of the I.D. Act 1947. Vide order dated 15.5.1998 the application was dismissed as not maintainable. It was held that since dispute pertaining to suspension arose out of some incident which formed the basis of termination, management was required to file an application under Section 33(1)(b) for permission. Application for approval under Section 33(2)(b) was held not maintainable.

24. Management has challenged order dated 15.5.1998 by and under W.P(C) No.2736/1998, prayers whereof have been noted in para 3 above.

25. Matter before the Industrial Tribunal did not rest here. Complaint of the workmen under Section 33A had to be decided. Proceedings, therefore, continued. As noted in para 18 above, 3 issues had been framed on the application aforenoted.

26. In view of order dated 15.5.1998 wherein it was held that management was obliged to seek permission by filing an application under Section 33(1)(b) of the I.D Act 1947 and consequently the application seeking approval under Section 33(2)(b) was not maintainable, issue No.1 was held against the management.

27. Tribunal held that since issue No.1 was decided against the management and in favor of the workman, issue No.2 had to be decided on merits. On merits the Tribunal held that enquiry was held as per procedure. There was no infirmity or illegality in the enquiry. Complete and effective opportunity of defense was given. Pertaining to the incident of 30.5.1994 at12.15 P.M at Baan Thai Restaurant, it was held that it stood proved that workmen raised an issue with Mr. Javed Baig, the restaurant manager, pertaining to their colleague Mr. David Sherpa being marked absent. It was held that it stood proved that Ditar Singh Teja pushed and abused Mr. Javed Baig. He exhaulted others to assault Mr. Baig. Exhaultation being 'Slap him, go right ahead'. 'Ye Saala Kutta Aisa Nahin Jaayega Ise Uthakar Phenk Do'. It was held that it stood established that the workmen, holding the jacket of Mr. Javed Baig pushed him hard on his face. He was kicked. All the 5 charged workmen finally physically lifted Mr. Javed Baig and dumped him in the kitchen and asked him to get lost.

28. Issue No. 2 was decided against the workmen. Enquiry was held to be legal and valid. Charge as proved was upheld.

29. It be noted that the workmen have not challenged the order dated 2.12.2000.

30. Curtains were still not down before the Tribunal. Issue No.3: 'To what relief, if any, are the complainants entitled' was not decided. It was noted that parties had agreed to have decision of issue No.3 after decision was rendered on issues No.1 and 2.

31. Vide order dated 3.7.2001, the Industrial Tribunal decided issue No.3. Issue was decided in favor of the management. Application under Section 33A was dismissed.

32. Before the Tribunal, the workmen argued that since the application filed by the management under Section 33(2)(b) of the I.D.Act 1947 was dismissed as not maintainable, necessary consequences had to flow. Management contended that workmen having filed the complaint under Section 33A of the I.D Act 1947 had sought a determination, on the validity of the enquiry and termination order, by the Tribunal. Result of said determination as per order dated 2.12.2000 being against the workman, necessary consequence to flow was that complaint had to be dismissed without any orders for reinstatement being passed. In holding in favor of the management, Tribunal held:

"The case of the complainant is not covered within the four corners of the latest decision given by Hon'ble Supreme Court. Firstly, the application of the management filed u/s 33(2)(b) of I.D.Act was not decided by the Tribunal on merit. Secondly, if the approval is rejected on merit even then the employee has right to approach the Hon'ble High Court by way of petition in article 226 of the Constitution. In the present case, the workers themselves have filed the complaint u/s 33A of the I.D. Act to seek reinstatement in service by a pleading that they did not commit any misconduct to invite the punishment of dismissal from service. The Tribunal has already observed that enquiry was conducted properly and that report of the enquiry officer was not perverse. The complainants/workers committed misconduct as alleged against them. Hence, I find no merit in the case of the workers that since the petition of the management u/s 33(2)(b) of I.D. Act has not been approved by the Tribunal and, therefore, they are straightway entitled for reinstatement in service. The contention of the workers in that regard is without any merit."

"The misconduct alleged against the complainants/workmen was established during the enquiry, which was held properly and fairly. The allegations/misconduct are of serious nature. The acts on the part of the workers were not of the standard of an employee working in a Five Star Hotel. The punishment awarded by the management i.e. dismissal from service is not disproportionate to the misconduct on the part of the employees. I find no reason to interfere in that punishment by exercising power as given u/s 11 of I.D. Act. Consequently, the complainants/workmen are not entitled for any relief. Their complaint filed u/s 33A of I.D. Act is devoid of merit and the same is rejected. Award is passed accordingly.

File be consigned to record room."

33. It be noted that the workmen have not challenged the order dated 3.7.2001.

34. In Re: relief prayed for in W.P(C) No.4361/97, learned counsel for the management Sh. Raj Birbal, Senior Advocate stated that though final relief hardly affects the management but decision thereon has a material bearing on issues raised in W.P(C) No.2736/98 and hence urged that this court should decide the two central issues raised in W.P(C) No.4361/97. Counsel contended that if this court would hold that dispute pertaining to suspension of an employee was not an industrial dispute, reference dated 17.11.1995 itself would be struck down as being void ab-initio. If that be so, in law, there would be no industrial dispute pending before the Industrial Tribunal. Section 33 or Section 33A would not be attracted. This would therefore have a material bearing on W.P(C) No.2736/1998.

35. Confronted with the query from the court, what would be the impact of `de-facto' pendency of proceedings before the Industrial Tribunal vis-a-vis `de-jure' proceedings before the Tribunal, Sh. Raj Birbal learned Senior Counsel for the management stated that if it was held that if at a given point of time, as a matter of fact (de-facto) proceedings were pending adjudication before the Tribunal, and Section 33 would be attracted, issue whether suspension was a matter connected or not with the dispute relating to dismissal be decided, de-hors the issue whether dispute pertaining to suspension was per-se not an industrial dispute.

36. Section 2(k) of the I.D. Act 1947 defines:

'Industrial dispute' means any dispute or difference between employees and employers, or between employers and workmen, or between workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any process."

37. Suspension is a state of being debarred. When suspended, the employee is debarred from the privileges of the post held by him. He does not loose the post. He only ceases to exercise powers and discharge duties of his post and therefore, suspension has been held as not punitive. (See P.L.Shah vs. U.O.I.). In the decision reported as 1959(2) LLJ 544, Hotel Imperial New Delhi Vs. Hotel Workers Union, it was held:

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 contract 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 workman 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 the statute or the rules framed there under, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. These principles of the ordinary law of master and servant are well settled and have been not disputed before us by either party. Reference in this connexion may be made to Hanley v.Pease and Partners, Ltd [(1915) 1 K.B.698)], Wallwork v. Fielding [(1922) 2 K.B 66] Secretary of State for India in Council v. Surendra Nath Goswami [I.L.R. (1939) Cal.46] and Rura Ram v. Divisional Superintendent, N.W. Railway [I.L.R. VII (1954) Pun.415]"

38. A Division Bench of this court in the decision reported as , D.T.C v. D.D.Gupta & Ors. held:

"Coming now to the question as to whether the validity of suspension /termination could or could not be enquired into be the Labour Court in computation proceedings whether under Section 33-C(2) of the Industrial Disputes Act or under Section 15 of the Payment of Wages Act, in our view, it will all depend upon the circumstances of a case. No doubt, this question can be gone into specifically in a reference under Section 10 of the Industrial Disputes Act, all the same if the suspension/termination is void abinitio, then the claim of the workman for computation on the assumption that he continues to be in service all through, there being no valid order of suspension/termination, can be preferred and the enquiry into the validity of the suspension/termination would become incidental to the main question of computation. We are in respectful agreement with our brother S. Ranganathan, J. in the view that he has taken on this point. We need not dilate further."

39. A Division Bench of the Calcutta High Court, in the decision reported as 1980 Lab I.C.466, Siten Bose v. Ananda Bazar Patrika dealt with the issue whether a suit was maintainable by a workman challenging his suspension or whether remedy was by raising an industrial dispute under the I.D.Act 1947. It was held:

"12. In this case the question whether the alleged order of suspension was legal or valid rested on the interpretation of certain documents or papers. Such a controversy in our opinion, could not be referred to an industrial tribunal. Again the question whether an order of suspension is valid or not, is not apparently an industrial dispute."

40. A learned single Judge of the Madras High Court in the decision reported as 1995 (70) FLR 973 Virudhunagar Sarvodaya Sangh v. S. Sathiyathinakaran took a view similar to the one taken by the Division Bench of the Calcutta High Court it was held:

"A suspension will not amount to non-employment. It is only keeping away the employee from work during the time of investigation. It is also not a case where any condition of labour is violated. It is within the power of the master to suspend an employee for any alleged misconduct. There is no condition of service that an employee shall not be suspended during enquiry."

41. With respect to the learned judges of the Calcutta High Court and Madras High Court, proposition of law that dispute pertaining to suspension can never be the subject matter of an industrial dispute is too widely stated and I express my respectful disagreement with the same. Where suspension is controlled and regulated by the Standing Orders in an industrial undertaking or is covered by an agreement with the Union, it is possible to conceive of a wide range of issues pertaining to a challenge qua a suspension. As in the present case, Standing Orders contemplate payment of subsistence allowance, a sum far less than the actual wage. Standing Orders embody terms of employment. A suspension contrary to the Standing Orders attracts industrial dispute as it relates to 'the terms of employment'. Section 2k is clearly attracted.

42. But that would not mean that every kind of challenge under the sun, to an order of suspension would be maintainable as an industrial dispute. The Division bench of this Court in D.D.Gupta's case (supra) has correctly held that whether the validity of a suspension can be gone into by the Labour Court will depend upon the circumstances of the case.

43. Where Standing Orders, regulate suspension, an order of suspension can be challenged on 3 grounds:

1.Officer passing the order is not competent to pass the same.

2. Act alleged and forming basis of suspension order do not attract misconduct as defined in service rules and hence no disciplinary proceedings or inquiry can be initiated, therefore, suspension cannot be resorted to.

3. Malice.

44. Truth or correctness of the facts constituting misconduct cannot be questioned while challenging a suspension for that would be a decision to be taken in the future by the disciplinary authority after holding an enquiry.

45. If a dispute qua suspension is raised on any of the three grounds noted in para 43 above, it is referable for adjudication to the Industrial Tribunal under Section 10 of the I.D. Act 1947. A dispute predicated on the truth or correctness of the facts constituting misconduct requires decision to be taken by the employer post enquiry after evidence is led and such dispute cannot form the basis of a reference to an Industrial Tribunal under Section 10.

46. In the present case, workmen questioned the suspension on two counts. Firstly that till charge-sheet was issued no order of suspension could be passed. Secondly, challenge was based on merits i.e that they did not indulge in the acts alleged to have been committed by them.

47. The Industrial Tribunal while answering the reference, and rightly so, did not adjudicate upon the second ground of challenge. It was correctly held by the Tribunal that this was an issue which related to the merits of the enquiry.

48. The Tribunal had the jurisdiction to decide the challenge predicated on the first ground. Since field of suspension was covered by the Standing Orders, the Tribunal had the jurisdiction to decide the issue, 'At what point of time could the suspension order be passed'.

49. I may note that term of reference was whether the continued suspension of the workmen was justified or not.

50. To decide upon the justification of the continued suspension it is inherently necessary to decide upon the validity of the suspension order at the point of time it was passed.

51. Claim of the workmen would reveal that challenge to the suspension under the first ground was that till charge-sheet was issued, no order of suspension could be passed.

52. Tribunal held in favor of the workmen. It held:

"As already noticed, the management under its Standing Orders has a right to suspend any workmen only pending enquiry and therefore since on 30th May 1994 the workman had neither been charge-sheeted nor any enquiry was pending, the impugned order of suspension cannot be said to be legal and justified."

53. However, as noted in para 21 above, the tribunal, taking note of the charge-sheet dated 6.6.1994, while answering the reference held the suspension illegal only up to 6.6.1994. Though, while holding that suspension was invalid when passed on 30.5.1994, the Tribunal has rested its finding on the interpretation of the Standing Order, but since there is a finding that since apart from the complaint there was no other material before the competent authority, it was a case of non application of mind. Sh. Raj Birbal, learned Senior Counsel challenged both findings.

54. Relevant Standing Order certified under Section 5(3) of the Industrial employment (Standing Orders) Act 1946 pertaining to Hotel Oberoi reads as under:

"A workman against whom any action is proposed to be taken for misconduct may be suspended pending the inquiry or for the period if any, allowed to him for giving his explanation."

55. Reasons of the Tribunal are as noted in para 20 above. Tribunal has interpreted the Standing Order to mean that till an enquiry is ordered to be held pertaining to the misconduct, the said clause of the Standing Order does not come into operation.

56. The Tribunal has acted with material irregularity and there is patent illegality in the finding of the Tribunal. The words 'action is proposed to be taken' have been totally ignored by the Tribunal. The Standing Order clearly contemplates two situations:

a) Action being proposed to be taken.

b) Pending the inquiry.

57. Tribunal has faulted the suspension on the ground that on 30.5.1994 only compliant was received. From this fact, Tribunal has opined that there was no material to show that there was an application of mind. Tribunal has clearly misdirected itself. Tribunal appears to have been coloured by the fact that there was no material other than the complaint.

58. The complaint in question was lodged by Mr. Javed J.Baig, Manager of the restaurant 'Baan Thai'. He was assaulted. Graphic details of the assault with names of the assailants were contained in the complaint. No rule of law requires that while invoking power of suspension the competent authority must seek corroboration. There is no rule of law that based on a complaint alone, suspension cannot be resorted to. Here the complaint was from a responsible officer who was assaulted. If true, incident was serious enough, truth had yet to be established. Employer had to decide, whether action was being proposed to be taken and pending enquiry, workmen be suspended. Employer was only to decide whether action was required pursuant to the complaint. Employer was to decide whether proposed action being taken, should the workmen be suspended. In my considered opinion, complaint was material sufficient by itself to pass the order of suspension.

59. While challenge to the reference dated 17.11.1995 by and under W.P(C) No.4361/1997 is rejected, challenge to the award dated 13.6.1997 succeeds. The award is quashed. Suspension orders dated 30.5.1994 are held to be valid.

60. Before proceeding further, which onward march takes us to the issues arising out of and pertaining to the order dated 15.5.1998 passed by the Tribunal on the application filed by the management under Section 33(2)(b) of the I.D. Act 1947, an incidental question may be dealt with.

61. Challenge to the reference notification dated 17.11.1995 failed before the Tribunal, which finding has been affirmed by me. Assuming that the finding is wrong, would it have any bearing on the application filed by the management under Section 33(2)(b) of the I.D. Act 1947.

62. Mr. Raj Birbal, learned Senior Counsel for the management would contend that the proceedings before the Tribunal would be rendered non-est and there would neither be need for approval nor a permission and the proceedings leading to the passing of the order dated 15.5.1998 would have to be treated as superfluous as also the order dated 15.5.1998.

63. Law recognises the existence of a fact 'de-facto' as distinct from its existence 'de-jure'. If as a matter of fact an industrial dispute was pending when the management passed the order of dismissal it was incumbent for the management to have filed an application under Section 33(1)(b) or 32(2)(b) as the case may be. Adjudication of the said application had to await the decision in the reference. If the Tribunal held the reference to be invalid it would have terminated the proceedings which would per force have resulted in the application filed by the management as being otiose. The workmen would have been relegated to their remedy of challenging their termination by seeking a reference under Section 10 of the I.A. Act 1947.

64. I need proceed no further on this issue as it has arisen incidentally and in view of my finding that reference was valid, on facts, the issue is purely academic.

65. Section 33 of the Industrial Disputes Act 1947 reads:

"33(1) During the pendency of any conciliation proceedings before a Conciliation officer or a Board or of any proceeding before (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall -

(a) - - - - - - - - - - - - -

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [ or, where there are no such standing order, in accordance with the terms of the contract, whether express or implied, between him and the workman]-

(a) - - - - - - - - - -

(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 discharge 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."

66. Pertaining to dismissal, mandate of Section 33 is clear. If during the pendency of proceedings of the authority concerned, for any misconduct connected with the dispute, if the employer seeks to dismiss the workmen, the employer is obliged to seek prior express permission from the authority before which the dispute is pending. If the dismissal pertains to a misconduct not connected with the dispute the employer may dismiss the workman but has to seek approval if the person is the workman concerned with the pending industrial dispute. The effect would be that the latter dismissal would have immediate effect and the former would have to await the prior permission.

67. What would be 'a matter connected with the dispute'. Sub-section (1) and (2) of Section 33 refers to pendency of proceedings in respect of an industrial dispute. The expression 'any misconduct with the dispute' in sub-clause (b) of sub-section 1 and the expression 'any misconduct not connected with the dispute' in sub-clause (b) of sub section 2 must mean that the 'dispute' contemplated under the two clauses is the 'industrial dispute' which is the subject matter of consideration before the authority.

68. Oxford Modern English Dictionary defines 'connect' to mean: join one thing with another, associate mentally or practically, write or associate with others in relationships, form a logical sequence.

69. Dispute, in its generic concept, is when one asserts the truth, correctness or validity of a statement, fact or right respectively and someone expresses disagreement. Under Section 33 we are concerned with a right. Before a right is asserted, it must be established. A set of facts would need to be proved before a right is established. A matter would be connected with an existing dispute where substratom of the two disputes i.e. the existing dispute already subject matter of the proceedings before the authority is same as the new dispute. Again, if connectivity is proximate, the two disputes would be connected.

70. In the decision reported as 1973 Lab I.C.1002, O.A.Oommen O.A.Abraham Banglore v. the Management of Hindustan Aeronautics Ltd., a Division Bench of the Mysore High Court held:

'17. No doubt the quantum of bonus each workmen gets, is related to amount of his pay or wages and that if increments are withheld in his case that would affect the size of his pay or wages which in turn would correspondingly affect the quantum of bonus he would get. But the main dispute before the Tribunal was not as to the amounts of bonus each individual workman should be paid but as the rate at which bonus should be paid to workmen in general, that is, what percentage of their pay or wages should be paid as bonus. Thus, between with-holding of increments in the case of an individual workman and the main point of dispute before the Tribunal, the nexus was too remote to hold that one was connected with the other.'

71. In , R.B.I v. C.T.Dighe & Ors, in the context of a reference made to the Tribunal under Section 10, the Supreme Court held:

"9. . . . . . . . . . . .We do not think it reasonable to suppose that the order of reference required the Tribunal to adjudicate on all possible matters relating to promotion. We, therefore, accept the contention of the appellants that the Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in circular No.6 could be said to be connected with the dispute."

72. In , The Bhavnagar Municipality v. Alibhai Karimbhai & Ors, the Supreme Court held that Section 33 (unamended) was attracted where the subject matter was directly connected with the industrial dispute. Industrial dispute pertaining to demand for permanent status by daily rated workers was pending adjudication before the Tribunal. During pendency, retrenchment was affected. It was held that retrenchment may not, ordinarily, under all circumstances amount to alteration of conditions of service, but where pending dispute pertained to a right of permanent absorption, dispute pertaining to retrenchment would be part of the direct issue already pending.

73. When can it be said that substratom of the two disputes is the same or connectivity is proximate between the two disputes.

74. From the same set of fact, can arise two different causes and hence two actions. Merely because they arise from same set of facts would not necessarily imply that that the two causes or actions are inter connected. What is relevant is to see what has to be established at the two enquiries.

75. As observed by me in 50 above, dispute pertaining to suspension would inherently encompass the adjudication whether the suspension was valid at the point of time it was passed. As held by me in para 44 truth or correctness of the facts constituting misconduct cannot be questioned while challenging a suspension for that would be a decision to be taken in the future by the employer after an enquiry. As held by me in para 43 above, suspension can be challenged on 3 grounds, namely:

(i) officer passing the order is not competent to pass the same;

(ii) act alleged and forming basis of suspension order will not attract misconduct as defined in the service rules and hence no disciplinary proceedings or inquiry can be initiated and therefore suspension cannot be resorted to, and

(iii) malice.

76. If an industrial dispute pertaining to suspension is brought before an Industrial Tribunal on ground (ii) above, the Tribunal would not adjudicate on the correctness or truth of the allegations. Treating them to be true, it would adjudicate whether misconduct as defined in service rules is attracted. If during these proceedings, for the same allegations an order of dismissal is passed, it would be a clear case of the action being connected with the industrial dispute which is pending. The connectivity being that in both proceedings, the issue whether the acts constitute misconduct, is common. Where however, the matter has to be adjudicated, predicated on the truth or correctness of the facts alleged, there is no connectivity as the Industrial Tribunal cannot adjudicate on the truth or correctness of the allegations while deciding a dispute of suspension, as indeed, truth or correctness of an allegation has to be determined as a result of the domestic enquiry. Matter connected with the dispute qua termination would be distinct qua matter connected with the dispute pertaining to suspension.

77. In the present case, it cannot be lost sight of that while adjudicating on dispute pertaining to suspension, the Tribunal had not decided on the issue whether incident alleged was established or not.

78. To interpret sub clause (b) of sub section (1) and (2) of Section 33 to mean that where-ever dismissal and suspension relate to the same incident it must mean that the matter connected with the dispute is the same would mean that either the employer looses the right to suspend, for if he resorts to suspension, the employee who challenges the same gets protection against dismissal till the Tribunal approves the same or termination is postponed till approval is granted. Such an interpretation would seriously impinge upon the right of the employer. After all, it is a settled principle of law that a statute must be read harmoniously and in a manner which achieves the object of the statute.

79. What is the object behind Section 33? The employer must not implement his decision on an issue which is the subject matter of the industrial dispute and must await the decision of the Industrial Tribunal before he implements his. For example, the issue whether a strike is legal or illegal is the subject matter of an industrial dispute. Pending said adjudication would law or sense of justice permit the employer to decide that the strike was illegal and as a consequence dismiss the employees who have resorted to, what the employee feels is an illegal strike. The answer would be no. The very legality of the strike being an issue connected with industrial dispute before the tribunal- employer hands off, must follow.

80. As held in C.T Dighe's case (supra), while considering the application filed by the management under Section 33(2)(b), the Tribunal had to define the area of the dispute referred to it for adjudication before proceeding to consider whether dismissal was or was not connected with the matter in dispute pending before the Tribunal. Had the Tribunal done so, it would have dawned on the Tribunal that it was to decide the dispute pertaining to suspension only on the limited area, being the right under the Standing Orders. Truth or correctness of the incident leading to suspension fell outside the area of dispute before the Tribunal. Indeed, while answering the reference, the Tribunal has not gone into the truth or correctness of the incident.

81. W.P(C) No.2736/98 is accordingly allowed. Order dated 15.5.1998 dismissing the application filed by the management under Section 33(2)(b) of the I.D. Act 1947 as not maintainable is set aside.

82. Issue could be looked at from another angle. The workmen had filed an application Under Section 33A of the I.D Act 1947. The Tribunal adjudicated upon the merits of the dismissal of the workmen and held in favor of the management. Vide order dated 2.1.2000, merits of the inquiry as sell as dismissal order was upheld. Vide order date 3.7.2001, application of the workmen under Section 33A was dismissed. The two orders dated 2.12.2000 and 3.7.2001 have attained finality. The workmen have not challenged the same. Consequences must flow. Res judicata applies to case of Industrial Law. See , Workmen of Cochin Port Trust vs. Board of Trustees; , The Punjab Co-operative Bank vs. R.S.Bhatia and 1993-II L.L.J 60 (P&H), The Punjab State Co-operative Bank Ltd vs. Presiding Officer.

83. The workmen, under the circumstances cannot seek any relief in view of the judgment of the Supreme Court on which they relied, being the decision reported as 2002(1) LLJ 834, Jaipur Zilla Sahakari Bhandar Vikas Bank Ltd vs. Ram Gopal Sharma & Ors. Had the workmen not filed an application under Section 33A of the I.D Act 1947 or had the same not been dismissed, issue would have to be determined in the light of the decision of the Supreme Court in Jaipur Zilla Sahakari Bhandar (supra) but having exercised their right by invoking Section 33A and having failed therein, the order against them not having been challenged, workmen would not be entitled to any relief as prayed for by and under W.P(C) No.3115/1998.

84. A declaration is accordingly issued that the dismissal of the workmen is legal, valid and has attained finality.

85. W.P(C) NO.3115/1998 filed by the workmen is dismissed. W.P(C) No.4361/1997 and W.P(C) No.2736/1998 are allowed as per the direction in para 59 and 81 above. No costs.