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2001 DIGILAW 381 (KER)

V. K. Raveendran v. The Labour Court

2001-07-18

K.A.ABDUL GAFOOR

body2001
Judgment :- K.A. Abdul Gafoor, J. An employer has come up with this Original Petition challenging Ext.P1 order whereby an application filed by a workman, the second respondent under Sec.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 worman. That was of course with retrospective effect from the date of suspension. The subsistence allowance at the rate of 50% of the wage drawn by the workmen 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 sence of right to forbid the servant to work, is not an implied term in an ordinary contract between mater and servant and that such a term can only be created either 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 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. 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 term in the contract for employment, the employer cannot place an employee under suspension, because that will be variation of condition 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. 4. I am unable to agree with the contention of the workman that suspension is not covered by the Payment of Subsistence Allowance Act. The Kerala Payment of subsistence Allowance Act itself is intended to provide payment of subsistence allowance to the employees of certain establishment during the period of suspension and that Act is applicable to the whole of the State of Kerala. The Second respondent squarely falls within the definition of "employee" in Sec.2 (a). Every employer is not always liable to detain the employee for work. Even going by the decision Hotel Imperial V. Hotel Workers Union (1959(II) LLJ 544 SC) referred supra, even if employer "forbids the employee to work, he will have to pay wages during the so called period of suspension, " it is possible for the employer, paying the due wages, to keep away an employee from work; because by reason of that no prejudice is caused to the workman concerned. The entitlement of the workman under the contract of service is to get the wages for the day. So that decision does not in any way help the workmen. The only protection is that the workman shall not be deprived of his entitled wages or remuneration as the case may be. If there is no law providing for any subsistence allowance the employee or workman as the case may be is entitled to the full wages. So that decision does not in any way help the workmen. The only protection is that the workman shall not be deprived of his entitled wages or remuneration as the case may be. If there is no law providing for any subsistence allowance the employee or workman as the case may be is entitled to the full wages. But when there is any law or provision in the contract of employment regulating the payment of remuneration during the period of suspension, it shall be at the rate specified in such law of contract as the case may be. 5. When the Kerala Payment of subsistence Allowance Act, 1972 is enforced in Kerala regulating payment of subsistence allowance during the period of suspension to the employees in certain establishments, necessarily the employees under suspension will be entitled only to the rate of emoluments as provided in the said Act as subsistence allowance. That was admittedly paid to the petitioner in such circumstances the Labour Court went wrong in ordering payment of wages for the period of suspension. In the light of this consideration, I need not go into the further contentions urged.