ORDER
1. This petition is by the Management of Messrs. Karnataka Agro Industries Corporation Limited (‘the Corporation’ for short) praying for quashing the order of the Industrial Tribunal, Bangalore, by which the application of the petitioner made under S. 33(2)(b) of the Industrial Disputes Act (‘the Act’ for short) has been dismissed.
2. The petition is in the orders list. By consent of both the Counsel, it is taken up for final hearing.
3. The facts of the case, in brief, are as follows : The Second Respondent was an employee of the petitioner. Disciplinary proceedings were instituted against him and simultaneously an order placing him under suspension during the pendency of the inquiry was made on 5th August, 1979. On 25th April, 1980 the order of suspension was revoked, but without prejudice to the continuance of the disciplinary proceedings. Ultimately, the Second Respondent was found guilty of the charges framed against him and the penalty of dismissal from service was imposed by an order made by the petitioner on 9th December, 1980. As an Industrial Dispute with which the Second Respondent was connected was pending before the Industrial Tribunal, Bangalore, the petitioner was obliged to comply with the mandatory conditions prescribed under S. 33(2)(b) of the Act. Accordingly, simultaneous with the passing of the order of dismissal on 9th December, 1980, the petitioner made an application before the Industrial Tribunal seeking its approval for the order of dismissal and also paid one month’s salary of Rs. 606.10, the salary which the Second Respondent was getting prior to the date of his dismissal.
4. Before the Tribunal, an objection was raised on behalf of the Second Respondent to the effect that as suspension had been revoked on 25th April, 1980, it was obligatory on the part of the petitioner to have added the two increments which fell due on 1st January, 1979 and 1st January, 1980 respectively and consequently the one month’s salary which the petitioner was required to pay in compliance with the provisions of S. 33(2)(b) of the Act, was Rs. 606.10 plus the amount of two increments which were due on 1st January, 1979 and 1st January, 1980 and as only Rs. 606.10 was paid there was non-compliance with the condition prescribed under S. 33(2)(b) of the Act and therefore the application was rightly rejected.
5. The objection of the Second Respondent was upheld by the Industrial Tribunal and it rejected the application of the petitioner. Aggrieved by the said order, the Corporation has presented this Petition.
6. The question ‘whether an amount equal to two increments was due to the Second Respondent and therefore it should have been added to the one month’s wages payable in complaince with S. 33(2)(b) of the Act ?’ depends upon the conditions of service which were applicable to the petitioner. The relevant regulation is 3.11 of the Regulations of the Corporation. It reads :
“3.11. INCREMENTS :
1. 11. a) Increment in the time scale of the post to which the person is appointed shall be drawn as matter of course except where such increments have been withheld as a result of penalty imposed under these regulations. On an order, withholding increments the withholding authority shall state the period for which it is withheld, whether the postponement shall have the effect of postponing future increments.
11. b) In all cases of suspension pending enquiry the increment of the employee under suspension who holds a time scale of pay shall be postponed for the duration he is under suspension, in case the employee is reinstated with punishment.
‘Provided, however, this shall not apply if the employee is reinstated after being exonerated of the charges levelled against him.”
7. According to Regulation 11-a, an employee of the Corporation is entitled to get increments as a matter of course. According to Regulation 11-b the increments due to an employee stands positioned during the period of suspension even if he is reinstated into service with some punishment other than dismissal, removal or compulsory retirement. In view of the proviso to the said Regulation, the period of suspension has to be treated as ‘duty’ if the concerned employee is exonerated in the disciplinary proceedings instituted against him during the pendency of which he was placed under suspension. The clear implication of the above Rule is that if the suspension is followed by the imposition of penalty of removal from service there is no question of the employee getting any increments during the period of suspension, for, even in the case of imposition of minor penalty, according to the Regulations, the employee’s increments stands postponed for the period of suspension.
8. Learned Counsel for the Second Respondent, however, submitted that as the Second Respondent was reinstated consequent on revocation of suspension, the increments which were due to him as on 1st January, 1979 and 1st January, 1980 should have been added to his salary and from 1st May, 1980 onwards he should have been given a monthly pay of Rs. 606.10 plus the two increments and the same amount should have been paid as one month’s wages on 9th December, 1980, and, as the same had not been done, the order of the Industrial Tribunal was correct.
9. I find it difficult to agree with the submission made for the Second Respondent. The contents of the order dated 25th April, 1980 by which the suspension was revoked reads :
OFFICE ORDER
Without prejudice to the right of the Management to take further action and pending further disciplinary proceedings the order suspending Sri. C. O. Bette Gowda, Sales Clerk, vide office order No. ADM/DIS/D-08/70/78-79 dated 5th August, 1978 is hereby revoked.
He shall report for duty within 3 days of the receipt of this order in the office of the Regional Manager, ASD, Bangalore – 560 052.
As can be seen from the aforesaid order, the revocation of suspension was without prejudice to the continuation of the disciplinary proceedings. This clearly means that as to what should happen to the period of suspension must necessarily depend upon the nature of the final order passed in the inquiry. If on 9th December, 1980 instead of imposing the penalty of dismissal from service, even if any other minor penalty, for instance punishment of censure, was imposed against the petitioner his increments would have nevertheless stood postponed for the period commencing from 5th August, 1978 to 25th April, 1980 and he would have become eligible to earn increments only on and after 25th April, 1980. But as the penalty of dismissal was imposed against the petitioner, there was not only no question of reinstatement into service with punishment, but also he become disentitled to any increments during the period of suspension. The revocation of suspension cannot be equated to that of reinstatement on exoneration. All that can be said is, the Corporation considered inexpedient to continue the suspension of the petitioner as the inquiry had prolonged for more than 1 1/2 years.
10. It is true that after revocation of suspension and reporting for duty on 25th April, 1980, if one year had elapsed notwithstanding the question as to what should happened to the period of suspension, the Second Respondent would have become entitled to an increment by virtue of one year of service rendered after revocation of suspension. But, in the present case, as on the date of the order of dismissal one year had not elapsed from the date of revocation of suspension.
11. Learned Counsel for the Second Respondent submitted that the petitioner had not relied upon the Rules before the Labour Court and therefore should not be permitted to rely upon the Rules in this Petition.
12. As it was the Second Respondent who was contending that two increments should have been added to his salary, it was for him to produce the Rules and to make out a case that it was obligatory on the part of the Corporation to add two increments before giving one month’s wages. In any event as this is a pure question of law based on the Regulations framed by a Statutory Corporation, the mere fact that no reliance was placed on the Regulations before the Tribunal is no ground to refuse to look into the Rules.
13. In the result, I make the following order :
(i) The Writ Petition is allowed.
(ii) The impugned order of the Industrial Tribunal dated 30th October, 1982 (Annexure-E) is set aside.
(iii) The case is remitted to the Industrial Tribunal for proceeding with the case in accordance with law.