V K RAVEENDRAN Vs. LABOUR COURT

JUDGEMENT

(1.) An employer has come up with this Original Petition challenging Ext. P1 order whereby an application filed by a workman, the second respondent under S.33C(2) of the Industrial Dispute Act, 1997 had been allowed for payment of salary for the period from 8-7-96 to 18-1-97, the period during which the latter was placed under suspension. The suspension was pending a disciplinary action. The disciplinary action finally ended in dismissal of the workman. That was of course with retrospective effect from the date of suspension. The subsistence allowance at the rate of 50% of the wages drawn by the workman is not paid. After dismissal the workman filed an application, seeking wages, in the labour court on the ground that, the power of suspension in the sense of a right to forbid the servant to work, is not an implied term in an ordinary contract between master and servant and that such a term can only be created either by a statute governing the contract of service or by an express term in the contract itself. Therefore the employer did not have any power to place him under suspension and in which case employer was liable to pay the entire wages. The labour court upheld this conclusion relying on the decision of the Supreme Court in Hotel Imperial v. Hotel Workers Union (1959 (II) LLJ 544 (SC)).

(2.) It is contended by the management that every employer will have a right to proceed against the workman when misconduct is attributed. That is an implied condition in every contract of employment. During suspension the contract of employment is not terminated. The contract of employment is subsisting. In such circumstances the workman cannot insist that he shall work in the establishment during the period when disciplinary action is proceeded with, if the employer intends that he shall keep the workman away from work. It is further contended that when a workman is placed under suspension by the employer, the former will be entitled only to the subsistence allowance at the rate made mention of in the relevant Statute. That liability has been discharged by the petitioner employer. Therefore nothing further is liable to be paid.

(3.) On the other hand, it is contended by the counsel for the workman, the second respondent that, the suspension is a step taken by the employer as a part of condition of service. Therefore that has to be spelt specifically and distinctly out of the contract. In the absence of such terra in the contract for employment, the employer cannot place an employee under suspension, because that will be variation of conditions of service, based on which the workman is employed by the employer. There is no such provision in the standing orders or in the contract of employment. There is no standing order available in the establishment concerned. There is also no provision regarding that in the Kerala Payment of Subsistence Allowance Act. Therefore the employer cannot place him under suspension.