JUDGMENT
V.P. Mohan Kumar, J.
1. The short question that arises for consideration is, at what stage interim relief can be awarded to a dismissed employee while a labour dispute is pending adjudication before the Labour Court/Industrial Tribunal as the case may be. The following observation made by this Court in T. T. Ltd., v. R. Subramanian and Anr. 77 FJR 153 is the foundation for the said contention:
“The management contended before the Tribunal that the ratio of the decision in Mysore Cements’ case, 1985 (67) FJR 136 was that the Labour Court had the jurisdiction to grant interim relief only from or after the date on which the domestic inquiry was held to be invalid. The learned Judge rejected this contention holding that that was not the ratio in Mysore Cements’ case, (supra). We are in respectful agreement with the view taken by the learned Judge. In the Mysore Cements’ case (supra), this Court held that when an application for interim relief is made by a workman during the pendency of an industrial dispute, the Labour Court, in the first instance, should consider as to whether the domestic inquiry was valid or invalid and thereafter proceed to grant the relief if the domestic inquiry was invalid according to the said decision, interim relief should be granted after recording a finding that the domestic inquiry was invalid.”
The facts in this case are not in dispute. The workers in question were dismissed from service. A Charter of Demand was submitted by the workers union demanding certain benefits such as revision of pay etc., etc. pending the adjudication of that dispute, the Workers in question were dismissed. Validity of the dismissal became subject matter of adjudication. The management contended inter alia that the workers were dismissed after a fair and proper domestic enquiry. Thereupon the workers disputed the validity of the domestic enquiry and an issue was raised as to whether the domestic enquiry is fair and proper. Before adjudication of the said question an application was made by the Union for payment of interim relief to the dismissed workers. The management contended inter alia that unless and until the Tribunal held that the domestic enquiry to be invalid, interim relief cannot be granted. Tribunal considered the said application and over ruling the objection passed the order awarding interim relief which is impugned in the present proceedings. It held that the workers are entitled for interim relief. That order was unsuccessfully challenged before the learned single Judge. The learned single Judge, by a considered order, dismissed the W.P. Hence the appeal.
2. The question that has been urged is that before the validity of the domestic enquiry is considered and decided and unless the same has been held to be invalid an application for interim relief could not be entertained nor awarded. The adjudication of the question of domestic enquiry in favour of the worker is a prerequisite for the award of any interim relief, it is contended. The argument in other words is that the award of interim relief is dependant on the finding on the validity of the domestic enquiry. The learned Judge rejected the argument and affirmed the order of the Industrial Tribunal.
3. We have heard Mr. B.C. Prabhakar, learned counsel for the appellant at length as also Mr. M.C. Narasimhan, learned counsel appearing for the first respondent Union. We are not in any way persuaded to hold that the judgment under challenge calls for interference in any manner.
4. Mr. Prabhakar, learned counsel formulated the following questions for our consideration.
“(1) Stage at which the Interim Relief Application should be taken up for consideration?
(2) When an Application for Interim Relief is made by a workman during the pendency of an Industrial Dispute, the Labour Court, in the first instance, should consider as to whether the Domestic Enquiry was valid or invalid and thereafter proceed to grant the relief only if the Domestic Enquiry was invalid.
(3) The specific contention is that the Application for Interim Relief could be taken up for consideration only after recording a finding that the Domestic Enquiry was invalid.”
5. Before proceeding further, we may advert to the decision of this Court in Mysore Cement Ltd. v. B.R. Siddaramaiah, 1985 (67) FJR 136 the basis for the above said observation and see whether there is any basis for the contention urged by the petitioner’s counsel relying on the said decision. Admittedly that case called in question the award of interim relief after there was already a finding that the Domestic Enquiry was invalid. As such the question presently raised did not arise directly. We may advert to the following paragraph therein to indicate this fact:
“The learned counsel for the petitioner contended that there was no justification for granting interim relief. It is on record that on a preliminary issue, the Tribunal by its order dated July 12, 1984 (Annexure-F), the domestic inquiry held by the management was invalid. Once the domestic inquiry is held invalid, the Industrial Tribunal is required to hold a fresh inquiry. In other words, whether the workman is guilty or not has to be inquired into de novo by the Tribunal. The situation, therefore is equal to the pendency of a de novo inquiry against a civil servant during which period he is deemed to have continued under suspension and becomes entitled to receive subsistence allowance. Therefore, the awarding of interim relief which really is in the nature of granting subsistence allowance payable during the pendency of the inquiry is justified after the domestic enquiry is set aside.”
As such this Court was not called upon to, nor had to address the question whether a finding on domestic enquiry is sine qua non for awarding interim relief. That question was not examined nor adjudicated therein as there was no need to do so. Now, if we carefully examine the later decision reported in T. T. Ltd. v. R. Subramaniam and Anr. (supra), find from the following sentence occurring in the said judgment that the said contention was in fact rejected by this Court. Namely:
“The management contended before the Tribunal that the ratio of the decision in Mysore Cements’ case, (supra), was that the Labour Court had the jurisdiction to grant interim relief only from or after the date on which the domestic inquiry was held to be invalid. The learned Judge rejected this contention holding that that was not the ratio in Mysore Cements’ case, (supra). We are in respectful agreement with the view taken by the learned Judge (Italicized for emphasis)
If that be the correct position, we fail to see why the learned counsel is repeating an over ruled proposition. But, the following sentence occurring at the later part of the said judgment may have given rise to the present arguments. Namely:
“In the Mysore Cements’ case, (supra), this Court held that when an application for interim relief is made by a workman during the pendency of an industrial dispute, the Labour Court, in the first instance, should consider as to whether the domestic inquiry was valid or invalid and thereafter proceed to grant the relief if the domestic inquiry was invalid. According to the said decision, interim relief should be granted after recording a finding that the domestic inquiry was invalid.”
We are afraid, Mysore Cements’ Ltd. v. B.R. Siddaramaiah (supra), did not state so and the statement is apparently not correct. This is clear from what we have stated in the preceding paragraph referring to Mysore Cements’ Ltd. (supra).
6. Fundamentally it may be noticed that a dispute is referred to Labour Court/Industrial Tribunal as the case may be, with respect to an employee who has been dismissed from service. The relationship between master and servant has been brought to an end by the employer. The question is whether such cessation of relationship is proper or not. As noticed in the judgment of the Supreme Court in Workmen of Firestone Tyre & Rubber Co. of India Pvt. Ltd. v. Management case there is no impediment against the management in dismissing the employee without even an enquiry. See the following observation of the Supreme Court in the said decision at p. 297 of LLJ:
“42………But there is no provision either in this statute or in the Act which states that an order of dismissal or discharge is illegal if it is not preceded by a proper and valid domestic enquiry. No doubt it has been emphasised in the various decisions of this Court that an employer is expected to hold a proper enquiry before dismissing or discharging a workman. If that requirement is satisfied, an employer will by and large escape the attack that he has acted arbitrarily or mala fide or by way of victimisation. If he has held a proper enquiry, normally his bona fides will be established.”
In general law, if it be a breach of Contract, all that the aggrieved party is entitled to, is to claim damages for the breach of contract on showing that the termination of this contract is illegal. But by the intervention of industrial law, the aggrieved party is conferred with a larger right of reinstatement. Hence, when the dispute reaches the Tribunal/Labour Court for adjudication of the breach, a duty is cast on the management as in any other case for a breach of a Contract to lead evidence to justify the termination of this Contract which is in present situation, the dismissal. That is to say that burden is on the management to justify the dismissal. For justification of the said dismissal, the management adopts two courses. Firstly, it attempts before the Tribunal to establish that it had been fair before dismissing the employee, in that it had given the employee a reasonable opportunity of being heard and that the charges have been established. In examining the issue, the Tribunal would not assess whether on the evidence led, the particular finding on this charges can be arrived at. That may be outside the purview of inquiry at that stage. Thereafter if it fails to establish that a fair enquiry has been held or the enquiry is declared invalid for any other reason, then, the management attempts to establish that it is justified in dismissing the employee on the charges framed by proving the accusation against the employee before the Tribunal. The enquiry does not end here. Merely because, the management was fair before dismissing the employee and it had conducted a fair and proper domestic enquiry, it does not follow that the punishment should be an order of dismissal. The Tribunal/Labour Court has been given power by virtue of Section 11-A of the Industrial Disputes Act, to consider whether management was justified in imposing the punishment imposed and whether it is proportionate to the charges framed against the worker or whether the findings are perverse. In other words, mere finding by the Labour Court/Tribunal that the dismissal is after a fair and proper domestic enquiry, it does not automatically follow that the punishment imposed is proportionate to the charges. This is so because, the Tribunal has arrogated the function of the Civil Court in the adjudicating of the dispute and granting relief to the parties. By virtue of Section 10 of the Industrial Disputes Act, the Industrial Tribunal replaces the Civil Court in adjudicating the dispute regarding the dismissal of the worker. The Supreme Court in Premier Automobiles Ltd. v. Kamalakar Shantaram Wadke and Ors. stated thus in at p. 451 of LLJ:
“9. It would thus be seen that through the intervention of the appropriate Government, of course, not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redressal of his grievance without the intervention of the Government, it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning Section 2-A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative fora are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the Civil Court. It is plain that he can’t have both. He has to choose one or the other. But we shall presently show that the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event Civil Court will have no jurisdiction even to grant decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognised by and enforceable under the Act alone.”
Therefore the Industrial Tribunal or the Labour Court, in substance is adjudicating the dispute coming with the ambit of Section 2-(k) or Section 2-A of the Industrial Disputes Act as a whole and the dispute comes to an end only when it is answered completely. In such a situation the Labour Court/Tribunal as the case may be has power under Section 11-A of the Act to mould the relief to be granted and in which even it can interfere with the quantum of punishment as well and pass appropriate orders substituting the same. Therefore, the finding of the Tribunal/Labour Court regarding the fairness of the dismissal of the employee does not ipso facto lead to the conclusion that dismissal is justified as the dispute does not terminate with the finding. To say that the intermediate finding of the Tribunal/Labour Court is the last word on the issue regarding justification of the dismissal, is not at all justified in view of the various binding authorities. See the following passage in Workmen of Firestone Tyre & Rubber Co. Pvt. Ltd. (supra).
“31. This will be a convenient stage to consider the contents of Section 11-A. To invoke Section 11-A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an industrial Tribunal for adjudication. In the Course of such adjudication, the Tribunal has to be satisfied that the order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to a workman including the imposing of the lesser punishment having due regard to the circumstances. (Emphasis supplied)
If that be the power of the Tribunal, then what would be the status of a workman who has been dismissed and the domestic enquiry conducted by the management preceding the dismissal has been found fair and proper? By virtue of Section 11-A of the Act, the Tribunal has still to pronounce on the propriety of the quantum of punishment imposed. As noticed by this Court in Mysore Cements’ case referred to (supra), a dismissed employee pending adjudication of the question of validity of his dismissal, occupies the status of an employee suspended pending inquiry. If that be so, interim relief that is being awarded will partake the character of wages being paid to subsist during the inquiry. An employee suspended pending enquiry is entitled to receive subsistence allowance as well.
7. Is there a right in an employee suspended pending inquiry to receive an allowance? This question has been answered by the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. in the following manner at pp. 1101, 1102 of LLJ:
“26. To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Government of India and the State Governments. (See for example, Rule 10 of Central Civil Services (Classification, Control and Appeal)) Rules Even under the General clauses Act, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss.
27. The order of the suspension does not put an end to an employee’s service and he continues to be a member of the service though he is not permitted to work and is paid only Subsistence Allowance which is less than his salary (See: State of M.P v. State of Maharashtra, 1977-II-LLJ-369 (SC).
28. Service Rules also usually provide for payment of salary at a reduced rate during the period of suspension. (See: Fundamental Rule 53). This constitutes the “Subsistence Allowance”. If there is no provision in the rules applicable to a particular class of service for payment of salary at a reduced rate, the employers would be liable to pay full salary even during the period of suspension.
29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by “suspension syndrome” and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee’s trivial lapse which has often resulted in suspension. Suspension Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of ‘Subsistence Allowance’, so that the employee may sustain himself. This Court in O.P. Gupta v. Union of India, made the following observations with regard to Subsistence Allowance:
“An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance generally called subsistence allowance which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression ‘subsistence allowance’ has an undeniable penal significance. The dictionary meaning of the word ‘subsist’ as given in SHORTER OXFORD ENGLISH DICTIONARY. Vol. II at p. 2171 is “to remain alive as on food to continue to exist”. “Subsistence” means of supporting life, especially a minimum livelihood.”
30. If therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow poisoning as the employee, if not permitted to sustain himself on account of non- payment of Subsistence Allowance, would gradually starve himself to death”.
We find that this is what was stated by the Supreme Court briefly earlier in Fakir Bhai Pulabhai Solanki v. The Presiding Officer and Ors. .
“5. Because it is difficult to anticipate the results of an application made before the Tribunal it is reasonable to hold that the workman against whom the application is made should be paid some amount by way of subsistence allowance to enable him to maintain himself and the members of his family and also to meet the expenses of the litigation before the Tribunal. And if no amount is paid during the pendency of such an application, it has to be held that the workman concerned has been denied a reasonable opportunity to defend himself in the proceedings before the Tribunal. Such denial leads to violation of principles of natural justice and consequently vitiates the proceedings before the Tribunal under Sub-section (3) of Section 33 of the Act and any decision given in these proceedings against the workman concerned.”
8. Hence, if the Tribunal or the Labour Court, is yet to pronounce on the propriety of the punishment imposed on the worker the worker is equated to the status of an employee suspended pending inquiry. If so. any payment in the form of interim relief is nothing but subsistence allowance contemplated under the Service jurisprudence. In such a situation, to contend that the finding on the domestic enquiry by the Tribunal/Labour Court is sine qua non for considering as to whether interim relief has to be granted or not is not a correct proposition of law.
9. The final outcome of the adjudication of the dispute referred to a Tribunal as regards the dismissal of an employee is not solely dependent on the question as to whether a domestic enquiry has been held and held validly. It depends on sufficiency of other circumstances such as fair play, fair enquiry, proportionality of punishment, perversity of finding, etc. etc.
10. Hence interim relief is being granted to the worker for the purpose of maintaining him during the period the Tribunal adjudicates the dispute and till the Court finally adjudicates on the issue. Though in other services, a final order of punishment would have visited the employee facing an enquiry, absence of that circumstance alone cannot make any difference. Due to the intervention of Section 11-A of the Industrial Disputes Act the punishment imposed on the employee would take effect only after the same has been upheld by the Tribunal, though no doubt, from the earlier date of its imposition of the punishment (See the judgment of the Supreme Court in. Thiruvirkolam v. Presiding Officer ; Punjab Dairy Development Corporation Ltd. v. Kala Singh . In these circumstances, we are of the view that the award of interim relief in an industrial adjudication is not dependent on the finding of the issue the validity or otherwise of the domestic enquiry. It is to be awarded notwithstanding the finding with reference to the validity of the domestic enquiry. Therefore there is no necessity for the Labour Court to defer consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry. If so, the learned Judge was correct in dismissing the Writ Petition. We do not find any grounds to interfere with the order in appeal. The W.A. is dismissed.