The Management of New Cinema vs The Presiding Officer, Labour Court and Another

Sadasivam, J.—Petition for the issue of a writ of certiorari to quash the order of the first respondent, the Presiding Officer, Labour Court,

Madurai in C.P. No. 147 of 1966 on his file, preferred by the second respondent. The 2nd respondent, Vidyapoornachari, was engaged as a

booking clerk under the petitioner, a cinema theatre. Pending enquiry into certain charges the second respondent was suspended by the

management from 26.12.1965, and was eventually dismissed from service with effect from 29.3.1966, by order dated 27.3.1966. The worker

second respondent, claimed certain amounts under three heads, the first one being arrears of salary for ten days from 16.12.1965 to 25.12.1965.

This was not disputed The last item of claim was for leave salary for 26 days in the year 1965. But the worker did not want the same to be

adjudicated upon by the first respondent. In view of the same, no order was passed in respect of the same. The claim was considered only in

respect of the second item, which represents the wages for the period of suspension 3 months and 3 days, from, 26.12.1965 to 28.3.1966. This

was allowed by the first respondent. Hence this writ petition.

In Hotel Imperial v. Hotel Workers'' Union 1959 I.L.J. 544 , the Supreme Court has dealt with the extent of the power of the employer to

suspend an employee under the ordinary law of master and servant. It is pointed out by the Supreme Court that it is now well settled that the

power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant,

and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. In the present

case the petitioner does not claim that he has got a right to suspend the second respondent under any contract of service. But he relies on the

Articles of Association of the company; but they cannot be considered as terms of a contract of service between the management of the company

and its workers. The shareholders have given the management the power of suspension, but the management should have embodied it in the

contract of service entered into with the workmen. The Industrial Employment (Standing Orders) Central Rules, which have been framed in

exercise of the powers conferred by Section 15, read with Clause (b) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946,

refer to the power of suspension. But it is not claimed by the petitioner that the cinema theatre in this case is governed by the Industrial

Employment (Standing Orders) Act, 1946.

Learned advocate for the petitioner relied on the decision in Central Bank of India v. Rajagopalan 1963 I .L.J. 89. This decision refers to claims

which would not fall u/s 33C(2) of the Industrial Disputes Act hereinafter referred to as the Act. It is held that if an employee is dismissed or

demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for recovery of his salary or

wages u/s 33C(2a) of the Act. It is also pointed out in this decision that the worker''s demotion or dismissal may give rise to an industrial dispute,

which may be approximately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is

unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing

contract, cannot be made u/s 33C(2) of the Act. This decision has been followed in East India Coal Co. v. Rameshwar 1968 I.L.J. 6 . But the

workman in this case does not dispute the fact of suspension, His contention is that under the terms of his contract of service, he cannot be

deprived of his wages even dining the period of suspension, Learned advocate for the second respondent brought to my notice the decision of the

Supreme Court in New Taj Mahal Cafe (P) Ltd. v. Labour Court, Hubli and Anr. 1970 I.L.J. 51, which held that the Labour Court was

competent to arrive at a finding that the suspension of the workman did not extinguish his right to receive his wages for the period of suspension

because of the conditions of service and compute the amount claimed by him u/s 33C(2) of the Act, He has also referred to the decision of

Natesan, J. in C.R.P. 308 of 1968 (unreported) to the same effect.

There is no error apparent on the face of the record in the order of the first respondent. The writ petition is liable to be dismissed and it is hereby

dismissed. No order as to costs.