R.N.BISWAL, J. W.P.( C) NO.5017 OF 2011 (Decided on 13.09.2011) MANAGEMENT OF SYNERGY INSTITUTE OF ENGINEERING & TECHNOLOGY DHENKANAL .. …….Petitioner. .Vrs. PRESIDING OFFICER & ANR. .. …….Opp.Parties. INDUSTRIAL DISPUTES ACT, 1947 (ACT NO.14 OF1947 ) – S. 25-F.33. For Petitioner - M/s. Narendra K. Mishra, D.K.Pani, A.K.Ray & A.Mishra For Opp.Parties - M/s. Sanjay Ku. Mishra, S.Dash & T.Lenka R.N.BISWAL,J. The 1st party is the management of a Technical Educational Institution having been established by Shivani Educational and Charitable Trust, Cuttack in the year 1999 at Dhenkanal. It offers B. Tech. Course in different Engineering disciplines. The 2nd party-workman was engaged as a driver under the said institution.It is alleged that he along with one Hiran Lenka took away two bags of cement stealthily from the cement stock-yard of the institution in a red Maruti Van. The Security Officer of the institution was instructed by the Administrative Officer to conduct a fact finding enquiry of the matter and to submit report. It is alleged by the management of the institution that the 2nd party-workman admitted his guilt before the Security Officer in course of enquiry and accordingly on 16.2.2008 the latter submitted his report to the Administrative Officer for taking suitable action in the matter. As per the case of management charge sheet being prepared it was sent to the 2nd party-workman to show cause who submitted his reply clearly admitting to have taken the college vehicle without permission and by maintaining silence as regards the other specific charges. So on 20.2.2008 his services were terminated with immediate effect. 2. The 2nd party-workman raised an industrial dispute before the District Labour Officer, Dhenkanal challenging the order of termination of his service. It having been admitted for conciliation, the management were noticed and they filed reply to it. As the conciliation could not be materialized, the Labour Officer submitted a failure report to the State Government. In turn the State Government in their Labour and Employment Department, in exercise of power conferred under Section 12(5) read with Section 10(1) (c) of the Industrial Disputes Act,1947 (hereinafter referred as ‘I.D.Act’) made the following reference to the Industrial Tribunal, Bhubaneswar. “Whether the termination of services of Shri Sumanta Kumar Mohapatra, driver w.e.f. 20.2.2008 by the management of Synergy Institute of Engineering & Technology, Dhenkanal is legal and/ or justified ? If not to what relief the workman is entitled to? 3. The 2nd party-workman in his written statement, filed before the Industrial Tribunal, inter-alia denied to have admitted his guilt and took the plea that since there was no enquiry after charge was framed, order of termination of his services was illegal. On the other hand, the management contended that since the 2nd party workman admitted his guilt, there was no need of conducting a regular enquiry. 4. The Presiding Officer, Industrial Tribunal directed the management to prove the charge by adducing positive evidence. However, instead of adducing evidence they filed a petition for taking up the issue relating to fairness and propriety of the domestic enquiry at the first instance which was granted by the Tribunal on 17.8.2010. While the matter stood thus, on 29.11.2010 the 2nd party- workman filed an application praying for payment of subsistence allowance till disposal of the I.D.case. The management filed objection thereto stating that since the 2nd party-workman had never been suspended prior to termination of his service, the prayer for subsistence allowance could not be granted. 5. After hearing learned counsel for the parties, the Tribunal vide order dated 27.1.2011 has held that there is a prima facie case in favour of the 2nd party-workman, balance of convenience leans in his favour and he would face much hardship if the petition for payment of subsistence allowance is not allowed, since it would take a long time for disposal of the I.D. Case and accordingly relying on the decision, in the case of Hotel Imperial, New Delhi, and others –v- Hotel workers’ Union, 1959 STPL (LE) 1309 SC allowed the petition and directed the management to pay him Rs.700/- per month with effect from December 2010 till final disposal of the I.D. Case. Being aggrieved with the said order, the management have preferred the present writ petition. 6. Learned counsel appearing for the petitioner mainly contends that the learned Industrial Tribunal has given undue weightage to the decision in the case of Management Hotel Imprerial (supra), which has least relevance to the facts and circumstances of the present case. The ratio in the said case at best be applicable to a case seeking permission for dismissal under Section 33 of the I.D. Act ,where the workman was put under suspension and no subsistence allowance has been paid to him. Learned counsel appearing for the opp.party-management on the other hand, submits that the aforesaid decision would be squarely applicable to the present case. 7. In the case of Management Hotel Imperial (supra) since the workmen therein were concerned workmen in terms of Section 33 of the I.D. Act, after suspending them the management sought for permission under Section 33 of the I.D. Act from the Industrial Tribunal for their dismissal, wherein the apex Court held that the Industrial Tribunal can grant interim relief till permission is granted or refused. In the present case, as it appears the 2nd party workman is not a concerned workman as such there is no question of seeking permission for his dismissal or approval of the dismissal order. The 2 moment the order of dismissal was passed against him, the relationship of master and servant between the parties ceased, whereas in the case of suspension, as in the case cited above, such relationship ceased for the time being. As it appears when it was argued on behalf of the management before the Tribunal that interim relief should not be granted to the 2nd party-workman, relying on the aforesaid decision, the Tribunal refuted the argument advanced. Interim relief, where it is permissible can be granted as a matter incidental to the main question referred to the Tribunal, but, where it is not permissible it cannot be granted. 8. In the case at hand, in the considered opinion of this Court the interim relief granted in favour of opp. party-workman is not permissible, since from the date of his dismissal, i.e,20.2.2008, his relationship with the petitioner as master and servant ceased. If the impugned order is allowed to stand, it would lead to miscarriage of justice. However, if the reference is answered in favour of the opp. party-workman, he will get back his wages from the date of his dismissal. Accordingly, the writ petition is allowed and the order dated 27.01.2011 passed by the Industrial Tribunal in I.D. Case No.09 of 2009 is hereby quashed. No cost. Writ petition allowed. 3