Appeal No 768 of 1957
Appeal by special leave from the judgment and order dated September 21 1956 of the Labour Appellate Tribunal of India at Calcutta in Appeal No Cal
101 of 1956
M C Setalvad Attorney General for India section N Mukherjee and B N Ghosh for the appellants
Dipak Dutta Choudhri for the respondents
April 21
The Judgment of the Court was delivered by WANCHOO J
This is an appeal by special leave against the decision of the Labour Appellate Tribunal of India in an industrial matter
The appellant is the Ranipur Colliery hereinafter called the company which carries on the business of coal mining in Dishergarh West Bengal
The respondents are six workmen employed by the company
They along with another person were working as tub checkers
It was found that they were making false reports both as to quality and quantity of coal which it was their duty to check with the result that the company suffered loss
Consequently the company served charge sheetS on them and a regular enquiry was held on April 13 1955 at which they were present and bad full opportunity to give their explanation cross examine witnesses and generally contest the charge
The company came to the conclusion after the enquiry that the workmen were guilty of the misconduct with which they were charged and should be dismissed
As how ever an industrial dispute between the company and its workmen was pending before the Industrial Tribunal the company applied under section 33 of the hereinafter called the Act for permission to dismiss the workmen
It appears that five out 721 of seven workmen filed two applications under section 33 A of the Act before the Industrial Tribunal on the ground that they had been suspended without pay from May 4 1955 and that this was against the provision of the Standing Orders governing their conditions of service
These three applications were heard together by the Industrial Tribunal which came to the conclusion that the permission should be granted to the company to dismiss the seven workmen and accordingly did so
Having granted this permission the Industrial Tribunal in consequence dismissed the applications under section 33 A Six of the workmen then went up in appeal to the Labour Appellate Tribunal against the grant of permission to dismiss and the dismissal of their applications under section 33 A
Their case was i that no permission to dismiss should have been granted and ii that five of them had been placed under suspension without wages for an indefinite period in violation of the express provision of the Standing Orders and therefore they were entitled to relief
The Appellate Tribunal dismissed the appeal with respect to the grant of permission to dismiss
It however came to the conclusion that there was a breach of cl 27 of the Standing Orders and therefore allowed the appeal of five workmen other than Akhey Roy who had applied under section 33 A and ordered that they should be paid their wages from the date of suspension without pay to the date of the Industrial Tribunal s order less ten days as provided in cl 27 of the Standing Orders
Thereupon the company applied to this Court for special leave which was granted and that is how the matter has come before us
It appears that Akhey Roy has been unnecessarily joined as a respondent for the order of the Appellate Tribunal does not show that any relief was granted to him and his appeal to the Appellate Tribunal must therefore be taken to have been dismissed
Thus the only point that falls for consideration is whether suspension without pay pending permission of the Industrial Tribunal under section 33 of the Act is a 91 722 breach of cl 27 of the Standing Orders
The brief facts necessary in this connection are these Seven workmen were served with charge sheets on April 1 1955
After their replies had been received an enquiry was held on April 13 1955 and they were found guilty of misconduct
It was decided thereupon to apply for permission for their dismissal under section 33 of the Act
The application was made to the Tribunal on April 29 1955
Thereafter the workmen were suspended on May 4 1955 without pay pending orders of the Industrial Tribunal
Clause 27 of the Standing Orders on which reliance has been placed reads thus  An employee may be suspended fined or dismissed without notice or any compensation in lieu of notice if he is found to be guilty of misconduct provided suspension without pay whether as a punishment or pending enquiry shall not exceed ten days The contention on behalf of the workmen is that the words  pending enquiry  appearing in cl 27 include enquiry under section 33 of the Act before the Industrial Tribunal also
Therefore if the Industrial Tribunal takes longer than ten days to decide the application under section 33 and the workman is suspended without pay there would be a breach of cl 27 of the Standing Orders after ten days are over
On the other hand it is contended on behalf of the company that the words  pending enquiry  in el
27 refer only to the enquiry by the employer and not to the proceedings before the Industrial Tribunal under section 33
The Appellate Tribunal has come to the conclusion that the words  pending enquiry  in cl 27 include proceedings before the Industrial Tribunal under section 33 and therefore if suspension without pay is for more than ten days even though it may be pending orders of the Industrial Tribunal under section 33 there is a breach of el
27 of the Standing Orders
In this connection it has relied on an earlier decision of its own in Rampalat Chamar vs The Assam Oil Co Ltd 1 where the words were  pending full enquiry 
It was of opinion that there was no difference between  pending 1 723 enquiry  and  pending full enquiry  and that the proceedings before the Industrial Tribunal under section 33 are also included in these words
We agree that there is no real difference between pending enquiry  which appears in cl 27 of the Standing Orders and  pending full enquiry  which appeared in the Standing Orders in The Assam Oil Company case 1
But we are of opinion that the view taken by the Labour Appellate Tribunal both in The Assam Oil Company case 1 and in this case is incorrect
This Court has held in The Automobile Products of India Ltd vs Rukamji Bala 2 that section 33 imposes a ban on the employer to dismiss a workman and it gives power to the Industrial Tribunal on an application made to it to grant or withhold the permission to dismiss ie to lift or maintain the ban
So far however as the employer is concerned his enquiry is or at any rate should be over when he comes to the finding that the case against the employee is proved and that the punishment of dismissal is the proper punishment
It is only then that the employer applies under section 33 for permission to dismiss the employee
Further the proceedings under section 33 are not an enquiry by the Industrial Tribunal into the rights or wrongs of the dismissal all that it has to see is whether a prima facie case has been made out or not for lifting the ban imposed by the section and whether a fair enquiry has been made by the employer in which he came to the bona fide conclusion that the employee was guilty of misconduct
Once it found these conditions in favour of the employer it was bound to grant the permission sought for by him
It is thus clear that proceedings under section 33 are not in the nature of an enquiry into the conduct of the employee by the Industrial Tribunal see Lakshmi Devi Sugar Mills Ltd vs Pt
Ram Sarup 3
The proceedings therefore before the Industrial Tribunal cannot be called an enquiry into the conduct of the employee
On the other hand the enquiry which is contemplated by cl 27 is an enquiry into the conduct of the employee
That enquiry could 1 2  3  724 only be by the employer
Therefore when cl 27 uses the words  pending enquiry  these words can only refer to the enquiry by the employer into the conduct of the employee
It is in our opinion entirely unnecessary that the words  pending enquiry  should have been qualified by the words  by the employer before they can be interpreted as referring to the enquiry by the employer
Standing Orders are concerned with employers and employees and not with tribu nals
Therefore when an enquiry is mentioned in cl 27 it can in the context only refer to the enquiry by the employer and not to a proceeding under section 33 before the tribunal
We are therefore of opinion that in the context in which these words have been used in cl 27 they mean an enquiry by the employer and are not referable to the proceedings under section 33 of the Act before the Tribunal
The scheme and object of section 33 also show that this conclusion is reasonable
Section 33 of the Act as already stated imposes a ban on the employer thus preventing him from dismissing an employee till the permission of the tribunal is obtained
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
Thus if section 33 had not been there the contract of service with the employee would have come to an end by the dismissal immediately after the conclusion of the enquiry and the employee would not have been entitled to any further wages
But section 33 steps in and stops the employer from dismissing the employee immediately on the conclusion of his enquiry and compels him to seek permission of the Tribunal in case some industrial dispute is pending between the employer and his employees
It stands to reason therefore that so far as the employer is concerned he has done all that he could do in order to bring the contract of service to an end
To expect him to continue paying the employee after he had come to the conclusion that the employee was guilty of misconduct and should be dismissed is in our opinion unfair simply because of the accidental 725 circumstance that an industrial dispute being pending he has to apply to the tribunal for permission
It seems to us therefore that in such a case the employer would be justified in suspending the employee without pay after he has made up his mind on a proper enquiry to dismiss him and to apply to the tribunal for that purpose
If this were not so he would have to go on paying the employee for not doing any work and the period for which this will go on will depend upon an accidental circumstance viz how long the tribunal takes in concluding the proceedings under section 33
In the present case the application for permission was made on April 29 1955 and the Tribunal s award was given on March 10 1956 more than ten months later
So if the view taken by the Appellate Tribunal is correct the employer has to pay the employee for this period of more than ten months even though the employer had completed his enquiry and made up his mind to dismiss the employee long before and would have done so but for the ban imposed by section 33
The purpose of providing ten days as the maximum period of suspension without pay pending enquiry in cl 27 obviously is that the employer should not abuse the provision of suspension pending enquiry and delay the enquiry inordinately thus keeping the employee hanging about without pay for a long period
The object further seems to be to see that the employer finishes his enquiry promptly within ten days if the suspension of the employee is without pay
But it could not have been intended that the Industrial Tribunal should also conclude the proceedings under section 33 within ten days and if that was not done there would be a breach of cl 27
In any case the time taken by the proceedings before the tribunal under section 33 is beyond the control of the employer and as the provisions of el
27 would be inappropriate and inapplicable to the said proceedings
 We are therefore of opinion that the words  pending enquiry  in cl 27 both in the context and in justice and reason refer only to the enquiry by the employer and not to the proceedings before the tribunal under section 33
This interpretation would not cause any serious 726 hardship to the employee for if the tribunal grants permission to the employer to dismiss the employee he will not get anything from the date of his suspension without pay  on the other hand if the tribunal refuses to grant the permission sought for he would be entitled to his back wages from the date of his suspension without pay
We may in this connection refer to the case of Lakshmi Devi Sugar Mills Ltd 1 where a similar point arose for decision
In that case the Standing Orders provided suspension without pay only for four days
It was there held that suspension without pay pending enquiry as also pending permission of the tribunal could not be considered a punishment as such suspension without pay would only be an interim measure and would last only till the application for permission to punish the workman was made and the tribunal had passed orders thereon
It was also held that if the permission was accorded the workman would not be entitled to payment during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension
The principle laid down in that case applies to this case also
We would only like to add that that principle will apply only to those cases where there is a ban under section 33 and the employer has to apply under that section for lifting the ban after completing the enquiry
The matter will be different if there is no question of applying under section 33 and under the relevant Standing Orders the employer is competent to dismiss the employee immediately after his enquiry is complete
In such a case if the Standing Orders provide that suspension without pay will not be for more than a certain number of days the enquiry must either be completed within that period or if it goes beyond that period and suspension for any reason is considered necessary pay cannot be withheld for more than the period prescribed under the Standing Orders
In the present case the suspension without pay took place even after the application under section 33 had been made and was pending permission under that section
As the Industrial Tribunal has accorded permission to dismiss the employees in this case and 1  727 as that part of the award has been upheld by the Appellate Tribunal there is no question of the employees being paid during the period of suspension without pay
We therefore allow the appeal set aside the order of the Labour Appellate Tribunal and restore the order of the Industrial Tribunal dismissing the two applications under section 33 A
In the circumstances we pass no order as to costs
Appeal allowed


Summary:
Sanction was given under section 6 of the Prevention of Corruption Act 1947 for the prosecution of the appellant for having received illegal gratification from one Pal Singh
He was charged with and tried for two offences under section 51a of the Act for habitually accepting or obtaining illegal gratification and under section 51d for receiving illegal gratification from Pal Singh
The Special judge found both charges proved and convicted the appellant
On appeal the High Court held that the appellant could neither be tried nor convicted of the offence under section 51a as no sanction had been given in respect of it but upheld the conviction for the offence under section 51d for which sanction had been given
It was argued that the conviction even for the offence under section 51d was illegal as the trial was wholly void and without jurisdiction  Held that the contention that the trial for two offences requiring sanction is wholly void where the sanction is granted for only one offence and not for the other is unsustainable
The want of sanction for the offence of habitually accepting bribes does not make the taking of cognizance of the offence of taking a bribe from Pal Singh void nor the trial for that offence illegal and the Court a Court without jurisdiction
Hori Ram Singh vs The Crown and Basirul Huq vs The State of West Bengal   referred to