ORDER
Rama Jois, J.
1. In this batch of 41 Writ Petitions presented by the I.T.C. Limited, Bangalore, the following important question of law arises for consideration :
1.Whether the Labour Court, before whom an application is filed by a management of an industry under Section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking its approval to the imposition of penalty of dismissal from service against its workman, has the power to make an interim order against the applicant to pay full or part of the wages to the dismissed workman pending final orders on the application ?
2. The facts of the case, briefly, stated are these :
(i) The workman-respondent in each of the Petitions, was in the employment of the petitioner. Separate disciplinary proceedings were instituted against each of them on certain serious charges of misconduct set out in the Article of Charges. A domestic inquiry was held against each of them on various dates. The Inquiry Officer recorded a finding to the effect that each of them was guilty of the charge leveled against him. The said finding was accepted by the petitioner and orders were passed against each of them dismissing him from service. As an industrial dispute in Ref. No. 19 of 1980 with which the respondent-workmen were connected was pending before the Labour Court, Bangalore, the petitioner, simultaneous with the making of an order of dismissal against each of them and paying a month's wages to each of them, made an application, before the Labour Court seeking its approval to the order of dismissal, in obedience to the proviso to Section 33(2)(b) of the Act.
(ii)Before the Labour Court application for interim relief was filed by each of the workmen praying for a direction to the petitioner to pay full wages till the disposal of the main application. The Petitioner opposed the applications on the ground that the Labour Court had no jurisdiction to grant interim relief in a proceeding under Section 33(2)(b) of the Act. The objection was over-ruled by order Dt. 26-8-1982 (Annexure-J). However, no interim order was made on the ground that the prayer was premature. By a subsequent order, the Labour Court held that the domestic inquiry held in every one of the cases was defective for one reason or the other and the Petitioner was called upon to lead evidence. Those orders have been challenged by the Petitioner in separate Writ Petitions which are kept pending ; as even during the pendency of 33(2)(b) proceedings, the State Government had referred the same dispute for industrial adjudication under Section 10(1) of the Act and W. P. Nos. 31400/1981 and 3689/1982 filed by the Petitioner questioning the competence of the Government to make the reference when the same matter is pending under Section 33(2)(b) of the Act are required to be decided in the first instance.
(iii) After making the order on the validity of domestic inquiry, the Labour Court took up the application for consideration and allowed the application and has made an interim award . The operative portion of the award reads;
'INTERIM AWARD
The applications for interim relief are allowed. An interim award is passed directing the management to pay 50% of the last drawn wages per month to all the workmen in Miscellaneous Application Nos. 2, 3, 4 of 1980,1, 2,3, 6,7,9,10,11, 12,13,15, 17,18,19, 21,22,23,24,25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 41, 42 and 51 of 1981; in Reference No. 19/1980 with effect from 1st February 1984 till the disposal of the said application on or before 10th of every succeeding month.
There will be no order on costs of those applications.'
(iv) Questioning the jurisdiction of the Labour Court to make an interim award or order as above in a proceedings under Section 33(2)(b) of the Act, the Petitioner has preferred these Writ Petitions.
3(i). Shri Shantibhushan, Learned Counsel for the Petitioner, contended that the Labour Court had nojurisdiction to make any such interim award or order. Elaborating this contention, he states as follows : The power conferred under Section 33(2)(b) of the Act is a limited power. Under that Section the Labour Court or Tribunal or theConciliation Officer, as the case may be, before whom an application is required to be made under the proviso to Section 33(2)(b) of the Act seeking its approval to the order of dismissal made by the applicant-management, has only to find out whether a prima facie case has been made out by the management for the grant of approval to the imposition of penalty and if the authority is satisfied that proper procedure had been followed before inflicting the penalty, the authority is required to accord approval to the order of dismissal. The authority has no jurisdiction to make any award or any order in the nature of award directing the management to pay full or any part of the wages either in the event of dismissal of the application or on granting the application, whether after approving the validity of the inquiry or after holding the inquiry itself in case a finding had been recorded to the effect that the disciplinary inquiry held by themanagement was invalid. It is also well established that the authority has no final adjudicatory power and even after the final order is made on the application, it is open for the party concerned to raise an industrial dispute and if such an industrial dispute is raised by the party and is referred for adjudication by the Government under Section 10(1) of the Act, the order made and the findings recorded by the authority functioning under Section 33(2)(b) of the Act are not binding, and the findings recorded in Section 33(2)(b) proceedings do not operate as res judicata.
(ii) In support of the above submission, he relied on the following authorities :
1. Automobile Products -v.- Rukmaji 1955 (1) L.L.J. p. 346 2. Lord Krishna Textile Mills -v.- Its workmen, A.I R. 1961 (1) L.L.J. p. 211 @ 216 3. Tata Iron and Steel -v.-Modak, : (1965)IILLJ128SC 4. Delhi Transport -v.- Ram Kumar, 1982 (2) L.L.J. p. 191.
(iii) On the principle governing the interpretation of statutes which is apposite to the question arising for consideration, Sri Shantibhushan submitted as follows : It is well settled rule of construction that when the provisions of a statute confers power to pass a final order on the designated authority but does not expressly confer the power to pass an interim order, such power can be regarded as implicit in the provision if the existence of such power is essential for the effective exercise of the power vested in that authority. But if the non-existence of the power to make a particular type of interim order does not in any way affect the effective exercise of the power to pass final order, the power to grant such interim order cannot be read into the provision. In the present case, the power conferred under Section 33(2)(b) of the Act itself is not to decide the issue or dispute coming before it finally, but only to lift the ban imposed by the said provision on the power of the management to dismiss its workmen under circumstances indicated in the said provision. Therefore, the power to grant interim order cannot be regarded as having been conferred on the authority functioning under Section 33(2)(b) of the Act even by necessary implication.
(iv) In support of the above submission, the learned Counsel relied on the following authorities : (1) Sub-Divisional Officer, Sardar, Faizabad -v.- Shamboo Narain : [1970]1SCR151 (2) Lingamma -v.- State of Karnataka 1981 (2) Kar L.J. p. 177 (F.B) (3) Punjab National Bank -v.- Sri Ram Kumar A.I.R. 1957 S.C. 276
4. Per contra, Sri K. Subba Rao, Learned Counsel for the workmen submitted as follows : The power to grant interim order is expressly conferred on the Labour Court / Tribunal under sub-section (5) of Section 33 of the Act as also Section 11(1) of the Act. The expression 'such order in relation thereto' incorporated in Section 33(5) empowers the Tribunal not only to pass a final order but also any interim order which it considers expedient. As far as Section 11(1) is concerned, it empowers the Labour Court Tribunal to follow such procedure as it thinks fit and this includes the power to grant interim order. Even on the basis that these provisions do not confer the power to pass interim order expressly, the power to decide an application presented by the management under Section 33 either by dismissing it or according approval to the order of dismissal, conferred under that provision includes the power to grant an interim order directing the applicant to pay wages to the dismissed workman, as the existence of that power is absolutely essential for the effective exercise of the main power and therefore the power to pass interim order must be considered to have been included in the main power. He relied on the following authorities :
(1) Grindlayas Bank Limited -v.- Central Government Industrial Tribunal 1981 (1) L.L.J. p. 327 S.C. : (1981)ILLJ327SC (2) N.K. Dharmadas -v.- S.T.A. Tribunal 1963 Kerala p. 73 (F.B)
5. In view of the submission made for the parties, the following related questions arise for consideration:
1. Whether the power to make interim order is expressly conferred by Section 33(5) and/or Section 11(1) of the Act?
2. If the answer to the first quest ion is in the negative, whether the power to pass interim order is implicit in the power conferred under Section 33 of the Act ?
For finding out the answer to both the questions, it is necessary in the first instance to ascertain the scope of the power conferred under Section 33 of the Act.
6. The first three sub-sections of Section 33 are intended to afford protection to the classes of workman indicated in each of them against arbitrary removal from service during the pendency of a dispute in conciliation proceedings or reference.
(i) In cases of workmen concerned with a pending dispute who come within the purview of sub-section (1), the management concerned is required to seek permission of the authority concerned before terminating the service of a work-man for a misconduct connected with the dispute pending before that authority.
(ii) In the case of 'Protected Workman' concerned in a dispute, sub-section (3) requires the management to seek the permission of the authority concerned to its proposal to terminate his service, whether it be for misconduct or for any other reason. The protection given under this Section is limited to a few who are protected workman but is wider and covers every kind of termination of service.
(iii) Sub-section (2) requires that in the case of workman falling within the said provision, if the management were to dismiss or discharge the workman for misconductunconnected with the dispute pending before authorities under the Act, it is required to pass the order of dismissal, give one month's wages to the concerned workman and to make an application before the authority concerned seeking itsapproval to the order of dismissal, simultaneously.
(iv) Sub-section (5) which applies only to sub-section (2) requires the authority exercising power under that sub-section to pass an order in relation to the application made by the management expeditiously.
7. As far as the scope of power to pass orders under Section 33 of the Act and its effect is concerned, there is no doubt at all as the Section has been interpreted by the Supreme Court in number of cases. In the case of Automobile Products, the Supreme Court considered the scope of the power of Section 33 of the Act and Section 22 of theIndustrial Disputes (Appellate Tribunal) Act, 1950, which was in pari materia with Section 33 of the Act. Analysing the scope of these Sections, the Supreme Court said thus at para 13:
'13. The object of Section 22 of the 1950 Act like that of Section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject matter of pending proceedings againstvictimisation by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. It is further the object of the two Sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a determination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the Sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen.
To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment. Section 22 of the 1950 Act and Section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein. The purpose of these two Sections being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these Sections is to accord or withhold permission. And so it has been held - we think rightly - by the Labour Appellate Tribunal in - 'Carlsbad Mineral Water Mfg. Co. Ltd. -v.- Their workmen' [1953] 1 Lab LJ 85 [E], which was a case under Section 33 of the 1947 Act. Even a cursory perusal of Section 33 of the 1947 Act will make it clear that the purpose of that Section was not to confer any general power of adjudication disputes.
It will be noticed that under Section 33 of the 1947 Act the authority invested with the power of granting or withholding permission is the Conciliation Officer, Board or Tribunal. The Conciliation Officer, or the Board normally has no power, under the 1947 Act, to decide any industrial dispute but is only charged with the duty of bringing about a settlement of dispute. it is only the Tribunal which can by its award decide a dispute referred to it. Section 33 by the same language confers jurisdiction and power on all the three authorities. Power being thusconferred by one and the same Section, it cannot mean one thing in relation to the Conciliation Officer or the Board and a different and larger thing in relation to the Tribunal.
There is no reason to think that the Legislature, by a side wind as it were, Tested in the Conciliation Officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not posts and which they may not be competent or qualified to exercise. Further, if the purpose of the Section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enablingterm to make and submit an award to which the provisions of the Act would apply such as is provided in Section 33-A of the 1947 Act or section 23 of the 1950 Act.
There is no machinery provided in Section 33 of the 1947 Act or Section 23 of the 1950 Act for enforcing the decision of the authority named in those Sections. This also indicates that those Sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban. And so it has been held by this Court in - 'Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union'., : (1953)IILLJ321SC (F) which was a case under Clause 23 of the U.P. Government Notification quoted on p. 243. Section 22 of the 1950 Act is in'pari materia' with Section 33 of the 1947 Act and the above Clause 23 of the U. P. Government Notification and most of the considerations noted above in connection with these provisions apply 'mutatis mutandis' to Section 22 of the 1950 Act. Imposition of conditions is wholly collateral to this purpose and the authority cannot impose any condition. And it has been so held - we think correctly - in - 'G.C. Bhattacharji -v.- Parry & Co- Ltd., Calcutta', (1954) 2 Lab LJ 635 (G).
In view of the scheme of these Acts summarised above and the language of these Sections the general principle laid down in the case of -'The Queen -v.- County Council of West Riding (D)' supra can have not application to a case governed by these Sections, In our judgment the Labour Appellate Tribunal was in error in holding that it had jurisdiction to impose conditions as a prerequisite for granting permission to the company to retrench its workmen and the first question must be answered in the negative.'
(Underlined by me)
The Supreme Court held that the power under Section 33 was a limited one in that either to lift the ban imposed by the provision and approve the dismissal order or to refuse to lift the ban and dismiss the application. The Supreme Court also held that powers of adjudication was not vested in the authorities named in the provision. The paragraph concluded that the provision conferred no jurisdiction to impose any condition.
8. Again the matter was considered by the Supreme Court in Lord Krishna Textile Mill's case A.I.R. 1961 (1) L.L.J. 211. In the said case, the Supreme Court observed that the authority invested with the power under Section 33 of the Act had no power to pass a conditional order. Relevant portion of the judgment reads :
'It is is true that it would be competent to the authority in a proper case to refuse to give approval, for Section 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to Section 33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order.'
(Underlined by me)
9. In the case of Workmen of the Mysore Lamp Works -v.- The State of Karnataka I.L.R. 1984 (2) KAR-778, the question as to whether the Government could refuse a dispute relating to the dismissal of a workman, merely on the ground that the dismissal had been approved by the authority concerned, under Section 33 of the Act, came up for consideration before this Court. On a consideration of several pronouncements made by the Supreme Court on the interpretation of Section 33 of the Act, the question was answered as follows :
'21-A. It is well settled, that an order made under Section 33 of the Act, according approval or permission to the dismissal of a workman is no bar for a reference for adjudication of the same dispute, and further the findings recorded in an order made under Section 33 of the Act do not operate as resjudicata if the same dispute is referred for adjudication under Section 10 of the Act. (See : G. Mckenzie & Co. Ltd -v.- Its Workmen (12 : (1959)ILLJ285SC ) Remirgton Pand -v.- T.R. Jambulingam (13 : (1975)ILLJ450SC ) and Management of Amalgamated Ele. Co. Ltd., -v.- Its Workmen (14 = 1975 (1) Kar. L.J. 137).
Even so, I am unable to agree with the contention urged for the Petitioners, for, in my opinion, an order passed under Section 33 of the Act, constitutes a very relevant basis for the Government in taking a decision under Section 10 read with Section 12(5) of the Act. Long line of decisions including those cited supra indicate that now there is hardly any difference between the scope of an inquiry held by a Labour Court or Tribunal under Section 33 and under Section 10 of the Act. The only difference is in respect of additional powers conferred under Section 11-A of the Act in deciding a reference. Therefore if matters other than those falling under Section 11-A of the Act have been thoroughly examined and a finding recorded in a proceeding under Section 33, I fail to see why it would not constitute a relevant basis for the Government, not to allow a second innings on those very matters. Therefore, if the Government on consideration of the order made under Section 33, holds that there is no justification to allow the same pleas to be inquired into once again, and, therefore inexpedient to make a reference covering the matters already decided in a proceeding under Section 33,I am unable to agree that the basis for the decision was not relevant.
22. (1) However, I do agree that an order made under Section 33 of the Act cannot constitute relevant basis for refusing to refer the two aspects which fall under Section 11-A of the Act. '
10. From the ratio of the aforesaid decisions, the following points emerge :
(i) Under Section 33 of the Act, the Labour Court or Industrial Tribunal or Conciliation Officer has the power -
(a) either to accord approval to the application, if the misconduct of the workman is found proved; or
(b) to reject the application if the misconduct is not proved.
(ii) The authority, even if it rejects the application has no power to make any award for reinstatement or for payment of back wages, though as a result of the rejection of the application the workman must be deemed to be continuing in service as if the order of dismissal was not made.
(iii) The authority has also, no power, after according approval, to make direction or impose a condition to the effect that either on the ground that the domestic inquiry held by the management was found to be invalid or for any other reason, that the management should pay salary to the concerned workman from the date of dismissal till the date of according approval.
(iv) Further the order of the Labour Court is not 'final order'. It is open to the parties to raise an industrial dispute in respect of the same dismissal under Section 10 of the Act and it is open to the Government to refer such dispute for adjudication and when such dispute is referred for adjudication under Section 10(1) of the Act, the findings recorded in the final order under Section 33 do not operate as resjudicata. It is competent for the Tribunal or Labour Court to take a view different from the one taken in respect of the same order of dismissal. It can hold that the order of dismissal was not justified notwithstanding the fact that such dismissal was approved by au order made under Section 33[1] or 33(3) or 33(2)(b) of the Act, as the case may be.
(v) The Section does not expressly confer any power to make an interim order directing payment of full or part of the wages to a dismissed workman.
11. Learned Counsel for the workmen however relied on the judgment of the Supreme Court in Hotel Imperial -v.-Hotel Workers' Union : (1959)IILLJ544SC in support of his submission that power is available to a Labour Court/Tribunal under Section 33(5) of the Act to make an interim order directing payment of wages to a dismissed workman.
11 A. The said decision, on the other hand, shows that in the absence of specific power conferred on the authority, no such order could be made. In that case, the Supreme Court was considering as to whether the Labour Court/ Tribunal had the power to make an interim order directing the management to pay wages to a dismissed workman during the pendency of the dispute referred under Section 10(1) of the Act for adjudication. The Supreme Court held that under the Law, the management was not liable to pay wages to such dismissed workmen. On that point, the Supreme Court held as follows :
'20. This, however, does not conclude the matter so far as the grant of interim relief in these cases is concerned. Even though there may be an implied term giving power to the employer to suspend a workman in the circumstances mentioned above, it would not affect the power of the Tribunal to grant interim relief, for such a power of suspension in the employer would not, on the principles already referred to above, take away the power of the Tribunal to grant interim relief if such power exists under the Act. The existence of such an implied term cannot bar the Tribunal from granting interim relief if it has the power to do so under the Act. This brings us to the second point which has been canvassed in these appeals.'
(Underlined by me)
In the aforesaid paragraph, the Supreme Court laid down two aspects in clear terms :
(i) The employer was not liable to pay any wages from the date on which the employer decided to dismiss the workman and kept him under suspension pending seeking approval under Section 33(1) of the Act.
(ii) The Labour Court or the Industrial Tribunal would be entitled to grant interim relief by way of directing the management to pay whole or part of the wages to a dismissed workman, if only the statute conferred power on it to do so.
In the next paragraph, the Supreme Court proceeded to consider whether such power was conferred on the Tribunal under the Act. It reads :
'21. After a dispute is referred to the Tribunal under Section 10 of Act, it is enjoined on it by Section 15 to hold its proceedingexpeditiously and on the conclusion thereof submit its award to the appropriate Government. An 'award' is defined in Section 2(b) of the Act as meaning 'an interim or final determination by an Industrial Tribunal of anyindustrial dispute or of any question relating thereto.' Where an order referring an industrial dispute has been made specifying the points dispute for adjudication, the Tribunal has to confine its adjudication to those points and matters incidental thereto; ((Section 10(4)). It is urged on behalf of the appellants that the Tribunal in these cases had to confine itself to adjudicating on the points referred and that as the question of interim relief was not referred to it, it could not adjudicate upon that. We are of the opinion that there is no force in this argument, in view of the words 'incidental thereto', appearing in Section 10(4). There can be no doubt that if, for example, question of reinstatement and / orcompensation is referred to a Tribunal for adjudication, the question of granting interim relief till the decision of the Tribunal with respect to the same matter would be a matter incidental thereto under Section 10(4) and need not be specifically referred in terms to the Tribunal. Thus interim relief where it is admissible can be granted as a matter incidental to the main question referred to the Tribunal without being itself referred in express terms.'
(Underlined by me)
As can be seen from the above paragraph, the Supreme Court held that such power had been expressly conferred by sub-section (4) of Section 10 of the Act. The Supreme Court pointed out that the words 'incidental thereto' found in Section 10(4) of the Act showed that the power to adjudicate on all the points referred for decision as also pointsincidental thereto had been expressly conferred on the Industrial Tribunal Labor Court and therefore the Tribunal labor Court could consider the incidental point namely whether the workman was entitled to any interim payment, and to pass an order either granting or rejecting it.
12. The decision of this Court in Workmen of Sujata Tex-tiles v. - Industrial Tribunal 1983 (63) FJR p. 190, on which the Learned Counsel relied was also a case of dispute referred under Section 10(1) of the Act to which Section 10(4) applied. There is no dispute that Section 10(4) of the Act does not apply to proceedings. Under Section 33 of the Act which could, unlike under Section 10(1), be either before a Labour Court or Tribunal, or before a Conciliation Officer. There is no other provision which confers power on the authorities under Section 33 of the Act to grant interim relief.
13. Learned Counsel for the workmen contended that sub-section (5) of Section 33 of the Act was a provision corresponding to Section 10(4) of the Act and that gives the power to make such an interim order. A reading of the two sub-sections at once shows the difference between them and the fallacy in the argument of Counsel. Sub-section (5) of Section 33 of the Act requires the Tribunal to pass such orders in relation thereto as it deems fit, on the application presented by the management under Section 33(2)(b) of the Act expeditiously. The expression 'such order in relation there-to', as pointed out earlier, means either an order granting the application or rejecting it and nothing more. Section 10(4) empowers the Labour Court/Tribunal to decide all matters incidental to the point of dispute referred for adjudication and the Supreme Court pointed out that a dispute regarding the justification for payment of wages during the pendency of reference could be tried as an incidental point, and an interim order could be made granting such relief. That sub-section has no application to Section 33 proceedings and sub-section (5) is not in pari materia with Section 10(4) of the Act. Section 11(1) on which also the Learned Counsel relied, only empowers the Labour Court/Tribunal to follow such procedure as it might think fit. This power is conferred for regulating the procedure for the exercise of substantive power conferred under Section 33 and other provisions of the Act and is by itself no source of substantive power.
14. Learned Counsel for the workmen, however, maintained that the expression 'in relation thereto' used in Section 33 of the Act should be construed as enabling the Labour Court/Tribunal to pass any order including an interim order considered necessary by it. He also submitted that Section 11(1) could also be construed as conferring power to make any interim order as it might think fit. In support of these submissions, he relied on the judgment of the Supreme Court in Grindlays Bank's case. The relevant portion of the judgment reads :
'5. In dealing with these contentions, it must be borne in mind that the Industrial Disputes Act, 1947, is a piece of legislation calculated to ensure social justice to both employers and the employees and advance progress of industry by bringing harmony and cordial relations between the parties. In other words, the purpose of the Act is to settle disputes between workmen and employers which if not settled, would result in strikes or lock-outs and entail dislocation of work, essential to the life of the community. The scheme of the Act shows that it aims at settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation, arbitration and if necessary, by approaching the Tribunals constituted under the Act. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both the parties.
6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder givingthe Tribunal jurisdiction to do so. But it is well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purposes of doing justice betweenthe parties. In a case of this naturer, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary.
10 When sub-section (1) of Section 11 expressly and in clear terms confers power upon the Tribunal to regulate its own procedure, it must necessarily be endowed with all powers which bring about an adjudication of an existing industrial dispute, after affording all the parties an opportunity of a hearing. We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with anexpert award, it is as if the party is visited with an award without a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the exparte award and to direct the matter to be heard afresh.'
Learned Counsel for the Petitioner maintained that the object and purposes of sub-section (5) was only to impress the Labour Court/Tribunal/Conciliation Officer, as the case may be, that an application under Section 33(2)(b) of the Act should be disposed of expeditiously and was not intended to confer power to pass an interim order and that the power conferred under Section 11(1) was only for regulating its procedure and cannot be read as a source of substantive power to make an interim award or order. He also pointed out that in the case of Hotel Imperial, the Supreme Court traced such conferment of power to Section 10(4) of the Act and not Section 11(1) of the Act.
15. As far as Section 33(5) is concerned, he also pointed out that his submission that the intention of the Legislature in incorporating sub-section (5) was only to ensure speedydisposal of an application under Section 33(2)(b) of the Act stands reinforced by the amendment made to the saidprovision under the Industrial Disputes (Amendment) Act, 1982, which has already become the law, though has not been brought into force by the executive. It reads :
'Amendment to Section 33.
17. In Section 33 of the principal Act, in sub-section (5), -
(a) for the words as 'expeditiously as possible' the words 'within a period of three months from the date of receipt of such application' shall be substituted ;
(b) the following provisos shall be inserted namely: -
'Provided that where any such authority considers it necessary of expedient so to do, it may, for reasons to be recorded in writing extend such period by such further period as it may think fit:
Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section bad expired without such proceedings being completed.'
(Underlined by me)
Learned Counsel pointed out that whereas unamended sub-section (5) called upon the Tribunal or the Labour Court to dispose of an application under Section 33(2)(b) mostexpeditiously, the Legislature, having regard to the past experience thought fit to fix a time limit, and that being the position it is impermissible to read into the provision a power to grant interim relief. He submitted that the decision in Grindlays Bank's case, in which the Supreme Court held that power to set aside an earlier exparte order, which itself was illegal, could be found in Section 11 of the Act which applied to Section 33 proceedings also, furnished no basis to take the view that power to make an interim order also could be traced in that provision of Section 33(5) of the Act. He pointed out that the power to set aside an exparte order was a matter of procedure, whereas the power to make an interim award was a matter of jurisdiction and power.
16 On careful examination of the rival contentions, I am inclined to agree with the contention of the Petitioner. In my view the decision in Grindlays Bank's case does not in any way advance the case of the workmen. That was a case in which the Supreme Court was interpreting the power of the Labour Court to set aside an exparte order, which depended on its power to pass an exparte order. The statutory provision, as pointed out by the Supreme Court, empowered the Labour Court to proceed exparte, if the party concerned remained absent without sufficient cause. Therefore, the Supreme Court held that when sufficient cause was shown by the party for his absence, the exparte order made earlier, itself would be without jurisdiction and therefore there was jurisdiction to set aside the earlier order made without jurisdiction. The Supreme Court also pointed out that any other view would defeat the object of the Act, namely, the resolution of the dispute. That being a matter of procedure, the power was also traced to Section 11 of the Act. The power to grant an interim order is no matter of procedure, Therefore, I am unable to agree that either Section 33(5) or Section 11(1) confers power on the Labour Court/Tribunal to pass an interim order to pay wages in a proceeding under Section 33.
17. The next question is : Whether the power to grant interim order can be regarded as implicit in the powerconferred under Section 33 For the purpose of answering this question, I shall first set out the principle governinginterpretation of statutes in order to find out as to whether the authority on whom a statutory power is conferred to pass a final order, without any express provision conferring power to pass a particular type of interim order, has by necessary implication the power to make such an interim order. The Supreme Court has laid down the principle in the case of Shamboo Narain Singh. In that case the question forconsideration was whether the power conferred on a designated authority under the U.P. Panchayat Raj Act to remove a Pradhan of a Panchayat from his office included the power to place him under suspension pending inquiry. The Supreme Court answered the question in the negative. Relevant portion of the judgment reads :
'8. It is well recognised that where an Act confers a jurisdiction, it impliedly_ also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the Court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power. We are not satisfied that the power to place under suspension an officer is absolutely essential for the proper exercise of the power conferred under Section 95(I) (g). It cannot be said that the power in question cannot be properly exercised without the power to suspend pending enquiry. The mere possibility of interference with the course of enquiry or of further misuse of powers are net sufficient to enlarge the scope of a statutory power. If it is otherwise the mere power to punish an offender would have been held sufficient to arrest and detain him pending enquiry and trial. There would have been no need to confer specific power to arrest and detain persons charged with offences before their conviction.'
(Underlined by me)
18. From the above observations it is clear that the existence of a particular power can be regarded as part and parcel of the main power, if only, in the absence of such power the main power gets frustrated at least in certain situations. The power of the appellate authority to stay the execution of the order under appeal is one such instance. Therefore, if a statute confers appellate power, but does not specifically confer power to stay the order under appeal, such power must be deemed to be included in the main power, otherwise, if the order under appeal is executed during the pendency of the appeal in many cases even if the appeal succeeds the party succeeding might not be in a position to , secure full or at least part of the benefit of the appellate order. In the case of I.T.O , Cannanore -v.- Mohammed Kunhi the Supreme Court held that the appellate power under Section 254 of the Income Tax Act included the power to stay the order under appeal on the ground, existence of such power was essential for the effective exercise of the appellate power for the reason that if during the pendency of income-tax appeal the order of assessment is executed and the property of theassesses is sold even if the assessee were to succeed in the appeal, he would have, in the meanwhile, suffered irreparable loss.
19. In the case of Dharmadas 1963 Kerala 73, the question for consideration was whether the appellate authority under Section 64 of the Motor Vehicles Act had the power to remand the case. The answer was in the affirmative. The reason was that non-existence of power of remand certainly renders the appellate power totally ineffective in certain cases in which record is13. A. I. R. 1969 S. C. 430insufficient to pass an order either way and further recording of evidence by the lower court or authority is essential.
20. A Full Bench of this Court in the case of Lingamma 1981 (2) K.L.J. 177;, applied the principle laid down in Shambu Narayan's case : [1970]1SCR151 In that case the question for consideration was whether Section 55 of the Karnataka Land Revenue Act, 1964 which conferred appellate jurisdiction on the Karnataka Appellate Tribunal against orders of the revenue authorities made under the Act included the power to pass an interim order like appointment of receiver, interim injunction, etc. The Full Bench following the ratio of the judgment in Shambu Narain's case, stated thus :
'An order appointing an interim Receiver cannot be regarded as absolutely essential for the discharge of the appellate power. At best, it can be said that it is convenient to have such a power. But as the Supreme Court has pointed out that the power can be implied only if it is absolutely essential for the discharge of the power conferred and not merely because it is convenient to have such a power. So far as granting stay of order appealed against is concerned, the same can be regarded as absolutely essential for the discharge of the power conferred on the appellate authority and so can be implied even in the absence of an express confirmation of such a power on the appellate authority. It is not possible to accede to the contention that the Supreme Court has taken the view that conferment of an appellate power implies the power in the appellate authority to make an interim order appointing a Receiver.'
(Underlined by me)
From the aforesaid Full Bench decision it is clear that the power to grant an interim order when the same is not expressly conferred, can be deemed to have been granted if only the want of that power adversely affects the efficacy of the order made in the exercise of the main power or renders such order futile.
21. Again a similar question came up for consideration in Mysore Riyasat Hindi Prachar Samiti -v.- Thimmaiah 1981(1) Kar. L.J. 240.
In that case the question for consideration was whether the appellate jurisdiction conferred on the Educational Appellate Tribunal constituted under the provisions of the Karnataka Private Educational Institutions (Discipline and Control) Act included the power to grant an interim order other than stay. Following the ratio of the Full Bench in Lingamma's case, it was held that the Tribunal had no such power.
22. In view of the principle laid down in the above cases, in order to find out the answer to the question arising for consideration in these cases, it is necessary to ascertain whether the non-existence of that power renders the order made in exercise of the main power futile or less effective. It may be seen that non-existence of the power to make an interim order does not to any extent render the powerconferred under Section 33(2)(b) of the Act read with Section 33(5) ineffective or less effective and does not in any way frustrate a final order favourable to workmen made under that provision. A final order refusing permission to dismiss or disapproving the dismissal, under no circumstance becomes futile or less effective. Learned Counsel for the workmen was unable to point out as to how a final order in favour of the workman stands frustrated if no interim order to pay wages is granted. Therefore, it is impermissible to hold that such power exists.
23. Moreover, as pointed out earlier, the Supreme Court in the case of Tata Iron and Steel has considered the scope of Section 33 of the Act and has held that the power under Section 33 of the Act is either to grant or to reject an application for approval and no other condition could be attached to a final order. When the authorities named in Section 33 of the Act have no power to make any positive final order directing the applicant to pay, back wages to the workmen concerned, it would be incongruous to hold that there is power to make such an interim order. Certainly a power to make an interim order cannot be wider than the power to make a final order. This is another strongindication to take the view that power to make an interim order is not implicit in Section 33 of the Act.
24. Similarly, when the object of sub-section (5) Section 33 is to require an expeditious disposal of the application, it is reasonable to infer that making of an interim order in the meanwhile was not intended.
25. It is also pertinent to note that Section 33(2)(b) proceedings concerns a workman who has been dismissed for misconduct after complying with the mandatory requirements imposed by the provision. If a workman has been dismissed in disobedience of the provision, the Act gives him the right to lodge a complaint under Section 33-A of the Act and such a complaint is required to be dealt with as if it is a reference. In such a case the authority would have the power, if the case is a deserving one, to grant interim relief under Section 10(4) as that provision would be attracted. For these reasons, I find it impermissible to read into Section 33(2)(b) read with sub-section (5), a power to make an interim award or order requiring an employer to pay full or part of the wages to a workman dismissed for misconduct, after complying with the mandatory requirements of Section 33(2)(b) proviso.
26. Learned Counsel for the workmen said that it is the obligation of the employer to pay at least subsistence allowance until his conduct with which he is charged is confirmed and his dismissal is approved. In support of this submission, Learned Counsel relied on the judgment of the Supreme Court in Ghanashyam -v.- State of M.P. : (1973)ILLJ411SC That was a case of Government servant in which it was held that non-payment of subsistence allowance amounted to denial of reasonable opportunity to the Government servant to defend himself.
27. The submission is devoid of merit and the analogy is inapposite. There can be no doubt that when disciplinary proceedings are instituted against an employee and he is kept out of duty, during the inquiry, by ordering his suspension, there should be a provision in the service rules for payment of subsistence allowance. In fact, such provisions are generally found in all the standing orders and also the rules framed by the Union and the States applicable to their employees. In the present case also admittedly such a provision is there in the standing orders of the Petitioner and in fact the workmen concerned in these cases were paid subsistence allowance until they were dismissed. But the question here is, whether the employer can be asked to pay subsistence allowance to the workmen concerned even after their dismissal after complying with the mandatory requirements of Section 33(2)(b) proviso. In respect of civil servants also there is no provision to pay subsistence allowance after their dismissal from, service, during pendency of appeals. Existence of such power cannot be easily assumed. It is for the Legislature to enact such a provision, if it considers expedient and valid to do so.
28. After giving my anxious consideration and bearing in mind that the provisions of the Act are incorporated for the benefit of the workmen and therefore it should be interpreted in their favour, if such an interpretation is also plausible, 1 am not convinced that there was any intention on the part of the Legislature to confer a power on the authorities named in Section 33 which, unlike Section 10(4) which confers power only on Labour Court/Tribunal, includes even the Conciliation Officer, to direct an employer to pay whole or part of the wages to a workman dismissed for misconduct after complying with mandatory requirements of Section 33(2)(b) proviso. It is true that Labour Court/Industrial Tribunal could impose obligation on the employer to the benefit of the workman, but they could do so only within their powers and could not exercise a power not vested in them. In this behalf, the observations of the Supreme Court in The New Maneck Chowk Spinning and Weaving Company Limited -v.- The Textile Labour Association A.I. R. 1961 S.C. 367 are apposite. They read :
'There is no doubt therefore that it is open to an Industrial Court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interest of industrial peace or give awards which may have the effect of extending existing agreement or making a new one. This, however, does not mean that an Industrial Court can do anything and everything when dealing with an Industrial Dispute. This power is conditioned by the subject-matter with which it is dealing and also by the existing Industrial Law and it would not be open to it while dealing with a particular matter before it to overlook the Industrial Law relating to that matter as laid down by the Legislature or by this Count.'
(Underlined by me)
29. At the best, it can be said that the existence of such power may be regarded as convenient to the workmen, but that circumstance, as pointed out by the Supreme Court in Shamboo Narayan's case and a Full Bench of this Court in Lingamma's case, is no ground to infer the existence of such power.
30. The above discussion is sufficient to answer the question arising for consideration in the negative.
31. However, I proceed to consider another aspect of the matter, as on that aspect considerable time was taken by the Learned Counsel on both sides. The said aspect is whether consequent on a finding recorded by the authority functioning under Section 33 of the Act to the effect that the domestic inquiry held by the management was defective in some respects and the management is called upon to lead evidence before the authority, as has happened in this case. even if the permission or approval is finally given to the dismissal of the workman concerned, such permission or approval would be effective from the date on which the application for permission was filed under Section 33(1) or 33(3) or from the date of the order of dismissal in a case falling under Section 33(2)(b) of the Act or from the date of the order of the Labour Court/Tribunal according permission or approval as the case may be ?
32. The contention of the workmen was that as the domestic inquiry held against them by the Petitioner was found to be defective and the Petitioner was called upon to prove the charge before the Tribunal, even if finally the finding is recorded against the workmen and approval is accorded to their dismissal, the dismissal would be effective only from the date of the order and consequently the workmen would be entitled to full back wages till that date and therefore even if it is held that the Labour Court had no jurisdiction to pass an interim order, this Court should decline to interfere with the impugned orders.
33. Learned Counsel for the Petitioner contested the above submission and argued that not with standing the finding that the domestic inquiry held was invalid, if ultimately the authority itself comes to the conclusion that the charges levelled against the concerned workman is proved and on that basis accords permission or approval under Section 33(1) or 33(3) or under 33(2)(b), as the case may be, to the dismissal of the workman, such permission or approval takes effect from the date when the management suspended the workman after finding him guilty of the charge and taking a decision that he should be dismissed from service in cases falling under Sections 33(1) and 33(3) of the Act or from the date of the order of dismissal in cases falling under Section 33(2)(b) of the Act.
34. The decisions of the Supreme Court and of this Court which were cited on both sides in which the above aspect have been considered were :
1. Automobile Products 1955 (1) L.L.J. 346 2. Hotel Imperial : (1959)IILLJ544SC 3. Phulbari Tea Estate -v.- Its Workmen : (1959)IILLJ663SC 4. Sasa Musa Sugar Works -v.- Shobrati : (1959)IILLJ388SC 5. Kalyani-v.- Air France 1963 (1) L.L.J p 679 6. D.C. Roy -v.- The Presiding Officer, Labour Court : [1976]3SCR801 ,7. Gujarat Steel Tubes -v.- Its Mazdoor Sabha : (1980)ILLJ137SC 8. Workmen of Y.T.X.M.C. -v.-Y.T.L.M.C. 1972(2) Mys. L.J. p. 388
35. As can be ascertained from the decisions aforementioned, the cases of imposition of penalty of dismissal coming up before the Labour Court or Tribunal either under Section 10(1) or 33 of the Act, as the case may be, come under the following four categories :
(i) Where the domestic inquiry held and finding recorded by the management is found to be valid,
(ii) Where the domestic inquiry had been held but it is found to be defective in some respects
(iii) Where there was only a facade of an inquiry, amounting to no inquiry.
(iv) Where no inquiry was held.
36. The law emerging from the aforesaid decision to the extent the apply to they aforesaid four categories, when they come up in Section 33 proceedings may be summarized as follows :
I. In the cases falling under the first category, the Labour Court or Tribunal exercising power under Section 33 has to accord permission or approval. There is neither the power to modify the penalty nor to award back wages though if the same type of case comes up under Section 10(1) for the first time or subsequent to approval, the Labour Court or the Tribunal has the power to modify the penalty, if there is justification to do so and pass appropriate orders including back wages if penalty of dismissal is substituted by any other penalty in exercise of its powers under Section 11-A of the Act.
II. In the second category of cases, the Labour Court or the Tribunal has to hold a de-novo inquiry itself to the extent necessary and to record a finding. If the workman is found guilty of the charge, the Labour Court or the Tribunal has to accord approval or permission. In such a case such permission or approval takes effect from the date of the decision of the management to dismiss the workmen if it comes under Section 33(1) or (3) and from the date of dismissal if the case comes under Section 33(2)(b) and as a consequence the workman would not be entitled to any back wages. The Labour Court or Tribunal has no power to issue any direction to pay full or any part of the back wages or make such payment a condition for the permission or approval.
III. In the cases falling under the third and fourth categories, i.e., cases in which there was only a facade of an inquiry or no inquiry at all, also de-novo inquiry has to be held by the Labour Court or Tribunal. If it records a finding that the misconduct alleged against the workman is proved, it would have to accord permission or approval. But in these class of cases such permission or approval takes effect only from the date of such permission or approval. As a consequence, though the Labour Court or Tribunal functioning under Section 33 of the Act has no power to direct payment of back wages, the workman becomes entitled in law to recover back wages by resorting to appropriate legal proceedings, if the same is not paid by the management.
37. Thus it may be seen that though in the matter of holding a de-novo inquiry, there is no difference between the second category of cases (i. e. case of defective inquiry) and the third and fourth category of cases (i. e. cases where there was only a facade of an inquiry and no inquiry respectively), in so far it relates to the right of the workman for back wages, they are dissimilar, in that:
(A) In the second category there is no right for any wages after the date of the decision of the management to dismiss or the order of dismissal, as permission or approval would be effective from such anterior date itself.
(B) In the third and fourth category of cases, the workman has the right for wages between the date of the decision of the management and the date on which permission or approval is accorded.
38. As far as the cases of workmen in these Petitions are concerned, they fall under the second category and there-fore if finally approval is accorded to their dismissal it takes effect from the date of the orders of dismissal. Therefore, I find that there is no basis for the alternative contention put forward by the Petitioner, namely, that even if it were to be held that the Tribunal had no power to grant interim relief, this Court should not interfere with the impugned order on the ground that their dismissal if approved would be only prospective.
39. In the result, my answer to the question set out first is as follows :
The Labour Court before whom an application is filed by a management of an industry under Section 33(2)(b) of the Act seeking its approval to the imposition of penalty of dismissal from service against its workman, has no power to make an interim order against the applicant to pay full or part of the wages to the dismissed workman pending final orders on the application.
40. Before concluding, I consider it necessary to point out to the necessity of making a provision as part of condition of service either in the standing orders or the rules regulating the conditions of service of the industry concerned in the matter of payment of subsistence allowance to a workman in the categories of cases falling under 2, 3 and 4.
41. As far as the first category of cases are concerned, they are cases in which a workman is dismissed for misconduct after due inquiry and on scrutiny by the Labour Court or the Tribunal as the case may be, also the inquiry is found to be valid. In such cases, there would be no justification for providing payment of subsistence allowance to the workmen concerned.
42. But the cases of the type falling under 2, 3 and 4 categories stand on a different footing. They are cases in which either the domestic inquiry held by the management is set aside on the ground it was defective or there was only a facade of an inquiry or there was no inquiry at all. But for the procedure evolved by the decisions of the Court in the interest of speedy finalisation of the cases in which the workmen were dismissed from service, by requiring the Labour Court or the Tribunal itself to hold a de-novo inquiry the position would have been, the moment it is established that the domestic inquiry is invalid or there was no domestic inquiry at all, the penalty imposed would have had to be set aside, but without prejudice to the right of the management to hold a de-novo inquiry. In that situation, during the period of de-novo inquiry, the management would be required to give subsistence allowance to the workmen concerned in accordance with the standing orders or the rules regulating the condition of service. It is because of the procedure, namely, the holding of domestic inquiry by the Labour Court/Tribunal itself, evolved by the decision of the Courts, it has resulted in this situation, viz., even as the order of dismissal remains undisturbed a de-novo inquiry is held to find out as to whether dismissal was justified or not. This procedure which of course is advantageous to both the workmen and the management in the matter of final decision in the dispute, places the workmen at a disadvantage in the matter of subsistence allowance during de-novo inquiry to which they would have been entitled to if the dismissal was set aside and de-novo inquiry were to be held by the management. Therefore, during the period of de-novo inquiry required to be held by the Labour Court or the Tribunal in view of the decisions of the Court, the. same rules which governs the payment of subsistence allowance during the pendency of the inquiry instituted by the management must apply.
43. To illustrate, in the case of an appeal preferred by a civil servant under the Service Rules before the prescribed appellate authority, the moment the appellate authority comes to the conclusion that there has been a procedural defect, it has only the power to set aside the dismissal order and direct holding of a de-novo inquiry by the disciplinary authority. There is no power to retain the order of dismissal and for ordering a de-novo inquiry. As a result, the concerned civil servant becomes entitled to subsistence allowance under the rules, as in such a case unless he is taken back to duty he would be deemed to be placed under suspension as provided in the relevant rules regulating condition of service (See : Rule 10(4) of the Karnataka Civil Services (CCA) Rules and Rule 10(4) of the Central Civil Services (CCA) Rules, 1965). Therefore, it appears to me that in respect of a workman in whose case the Tribunal holds that the domestic inquiry held was invalid or that there was no domestic inquiry at all and proceeds to hold a de-novo inquiry itself, there must be a provision for payment of subsistence allowance until the date of the final order in the proceedings,
44. Now what is happening is that in every case application for interim order is filed and on that application considerable amount of time is spent both before the Tribunal and Labour Court and before the High Court. Instead of leaving the question of subsistence allowance during de-novo inquiry before the Labour Court or the Tribunal to its discretion and requiring the workman to make application there is every justification for making a provision either in the standing orders or the rules regulating the condition of service to the effect that the workman, in whose case the domestic inquiry is held invalid or there was no domestic inquiry and consequently an inquiry or de-novo inquiry is required to be held before the Labour Court or Tribunal, would be entitled to the prescribed rate of subsistence allowance during the pendency of such inquiry or de-novo inquiry.
45 For the reasons stated above, I make the following order:
(i) The Petitions are allowed.
(ii) The impugned order (Annexure-E) is quashed.
(iii). No cost.