Sasa Musa Sugar Works (P) Ltd v Shobrati Khan (1959)

Two propositions of daily importance come out of this case, and both are regularly examined.

First, suspension pending enquiry is not punishment. A management that suspends a workman while it investigates, and while proceedings are pending before a tribunal, has not inflicted a penalty — so it has not breached s. 33, and the workman has nothing to complain of under s. 33A. Whether a suspension is interim or punitive is a finding of fact about its character, not an inference from the wording of the notice.

Second, and more important as a matter of jurisdiction: on an application under s. 33 the tribunal's function is to grant or refuse permission, not to design a different punishment. It "was not open to the Industrial Tribunal to substitute some other form of punishment and give permission therefor." The tribunal here had been asked to permit dismissal and instead permitted a seven-day suspension. That was outside its power.

The appellant ran a sugar factory in District Saran, Bihar, established in 1932. Its industrial history is worth a sentence in an answer, because it explains the atmosphere: a union formed in 1942; discharges of office-bearers in 1943 followed by ordered reinstatement in 1944; mass dismissals in December 1944 followed by ordered reinstatement in August 1947; seventeen more discharges in June 1951, settled in December 1951 with twelve reinstated.

On 1 January 1952 the union served a notice listing forty demands, threatening that if they were not met within seven days it "would have to advise the workmen to adopt go-slow" and offer passive resistance. The Deputy Labour Commissioner asked for the status quo pending conciliation, the elections then being on. The union did not heed it. Go-slow ran from 9 to 12 January, was called off on the Labour Commissioner's persuasion, and conciliation began on 17 January producing agreement on some demands on 23 January. Go-slow resumed from 24 to 31 January regardless.

The Labour Commissioner then directed that no further conciliation would take place until the go-slow was called off, and the Labour Officer told the management it could take disciplinary action with the permission of the Industrial Tribunal. Note that a reference was already pending, which is what brought s. 33 into play at all.

The management suspended thirty-three workmen by notice on the night of 31 January, and fifteen more a few days later, and applied under s. 33 for permission to dismiss all forty-eight. The workmen applied under s. 33A alleging that the suspensions were themselves punishment imposed in breach of s. 33.

1. Were the suspensions punishment, or interim orders pending enquiry and pending the s. 33 proceedings?
2. On an application under s. 33 for permission to dismiss, may the tribunal instead permit a lesser punishment of its own choosing?
3. Could the Appellate Tribunal reverse the character of the suspension when the finding below stood confirmed?

The appeals by the management were allowed.

(1) The suspensions were interim, not punitive. The Industrial Tribunal had found that the suspension "was not by way of punishment" but was pending the management's enquiry and the proceedings before the tribunal, and that there had been "a deliberate resort to go-slow by the workmen which was unjustified". The workmen were allowed to withdraw their appeal against the s. 33A finding, "with the result that the finding of the Tribunal that the suspension was not a punishment but only pending enquiry by the management and proceedings before the Tribunal, stood confirmed."

The Appellate Tribunal nonetheless held the suspension to be substantive punishment because the notices did not say it was pending enquiry, and concluded that the later application for permission to dismiss was therefore mala fide. The Supreme Court held it "was clearly in error": the suspension was "an interim order pending enquiry and proceedings before the Tribunal under s. 33", and the Appellate Tribunal's view was "contrary to the finding of the Industrial Tribunal which stood confirmed by its own order permitting the withdrawal of the appeal against it by the workmen."

(2) The tribunal may not redesign the punishment. The material findings not having been upset, "the only possible order on the applications of the management under s. 33 of the Act was to permit it to dismiss the workmen provided there was evidence against them all. It was not open to the Industrial Tribunal to substitute some other form of punishment and give permission therefor."

(3) The finding of no evidence against sixteen of the workmen was held to be, "on the face of it, perverse", the evidence against them being of the same character as against the rest.

A suspension imposed while an enquiry and s. 33 proceedings are pending is an interim measure and not a punishment, and its character is decided by what it is, not by whether the notice recites that it is interim. On a s. 33 application the tribunal's jurisdiction is confined to granting or refusing permission for the action the employer proposes; it cannot substitute a different penalty and permit that instead.

• Pair this with Workmen of Motipur Sugar Factory v Motipur Sugar Factory and Firestone Tyre on the scope of the tribunal's enquiry under s. 33, and with Cooper Engineering Ltd v P.P. Mundhe on how the tribunal should proceed when the domestic enquiry is defective.
• On go-slow as misconduct, read with Bharat Sugar Mills Ltd v Jai Singh (1961), where go-slow is described as a serious form of misconduct — this case supplies the earlier factual setting and the s. 33 machinery.
• Problem question pattern: a reference is pending; the employer suspends and then applies for permission to dismiss; the tribunal permits a short suspension instead. Say that the tribunal exceeded its jurisdiction, and that the suspension pending enquiry was not itself a breach of s. 33 giving rise to a s. 33A complaint.
• Trap to name: the absence of the words "pending enquiry" in the notice does not convert an interim suspension into a punishment. The Appellate Tribunal's contrary reasoning is precisely what was reversed.