The Management, Udipi Hindu Restaurant vs The Presiding Officer, Labour Court and Another

A. Alagiriswami, J.—The second respondent was working as a server under the petitioner. On 3rd June, 1965, he was suspended from

service pending enquiry. An enquiry was held on 23rd June, 1965 and the second respondent was dismissed from service with effect from 30th

June, 1965. On 9th April, 1966, the second respondent applied to the Labour Court u/s 39-C (2) of the Industrial Disputes Act for computation

of the benefits due to him and the Labour Court has held that a sum of Rs. 74-25 is payable to him. This writ petition has been filed to quash the

order of the Labour Court.

The point taken by the petitioner is that when once an employee has been either suspended or removed from service, such action might give rise

to an industrial dispute which may be appropriately tried, but there can be no question of the benefits due to him to be computed u/s 33-C (2). In

Central Bank of India v. Rajagopalan (1963) 2 L.L.J. 89 , the Supreme Court observed as follows:

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 the recovery of his salary or wage u/s 33-C (2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately

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

33-C (2).

This decision was brought to the notice of the Labour Court, but it considered that it was not concerned with a question of dismissal but only

with a case of the benefits due to the second respondent during the period of his suspension and that therefore that decision did not apply. This is

not correct. Suspension is suspension of the contract of service and therefore it does not stand on a different footing from the termination of

contract of service. In B. Kalyanasundara v. Labour Court, Madras (1965) 29 F.L.R. 24, Srinivasan, J. held:

Even the suspension of a workman amounts to non-employment of the workman and an industrial dispute can be raised in regard to such a non-

employment which is alleged to be devoid of any valid reasons. In order to acquire the character of an '' industrial dispute,'' it is not necessary that

an allegation of victimisation should form the foundation of the dispute. Victimisation may be alleged in proper cases, but it is not a necessary

incident to each and every industrial dispute which an employee raises against the employer.

This would show that suspension also is a matter which can be made the subject matter of an industrial dispute in respect of which resort u/s 33-

C (2) would not be open to the suspended employee. It may also be noticed here that the dismissal of the second respondent, was itself before the

Labour Court subsequently and the Labour Court set aside the order of the petitioner terminating the the services of the second respondent. A writ

petition filed by the petitioner against the order of the Labour Court has since been allowed. It follows, therefore, that the Labour Court had no

jurisdiction to go into the question of the benefits payable to the second respondent and the order of the Labour Court is liable to be set aside on

that ground. This writ petition is allowed and the order of the Labour Court is quashed. As neither of the respondents have appeared before this

Court, there will be no order as to costs.