Madras High Court
Tamil Nadu State Transport Corporation ... vs Joint Commissioner Of Labour ... on 14 February, 2006
Equivalent citations: (2006)IIILLJ832MAD
Author: Prabha Sridevan
Bench: A.P. Shah, Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The writ petitioner is the appellant. They filed a petition under Section 33(2)(b) of the Industrial Disputes Act, 1947 for approval of the order of dismissal of the second respondent. According to the petitioner, the second respondent was unauthorisedly absent, from March 21, 2002 and hence, a chargememo was issued and explanation was called for. Though the chargememo was acknowledged, no explanation was given by the second respondent. A domestic enquiry was conducted. The enquiry officer held that the charges were proved, since the past record of the second respondent was not satisfactory, a provisional conclusion was arrived at to remove him from service and therefore, a show-cause notice was issued on December 21, 2002. An explanation sent to this show-cause notice was not satisfactory and therefore, the second respondent was removed from service and a cheque for Rs. 7,365 was issued as one month's wages and sent along with the removal order. The petitioner applied to the first respondent/ Joint Commissioner of Labour seeking approval of the order of dismissal. The second respondent contended that the order was illegal and raised an industrial dispute. He also preferred an appeal against his dismissal. According to him, the domestic enquiry was not conducted by adopting the proper procedure. Pending the application, the petitioner made a subsequent payment of Rs. 382 to the second respondent. The Joint Commissioner dismissed the application on the ground that the subsequent payment will not cure the failure on the part of the petitioner to pay one month's wages to the second respondent and since the sum of Rs. 7,365 paid at the time of dismissal was less than one month's wages, the petitioner had not complied with the mandatory conditions of Section 33(2)(b) and therefore, the approval was not granted. The Joint Commissioner further went on to hold that the petitioner had not conducted the enquiry in accordance with the principles of natural justice and that a prima facie case had not been made out against the second respondent. As against this order, the writ petition was filed seeking to quash the order of the Joint Commissioner of Labour and pending writ petition, interim injunction was sought for to restrain the second respondent from claiming 3 the benefits. The application for injunction was dismissed and therefore, the writ appeal has been filed.
2. Learned Counsel appearing for the . appellant would submit that the shortfall in the payment of monthly wages was under four heads:
(i) Health allowance,
(ii) S.B.P.A.,
(iii) Laundry Allowance and
(iv) Tendar Benefit Allowance, aggregating to Rs. 382. While the Joint Commissioner rejected the inclusion of Tendar Benefit amount of Rs. 50 for computing the wages payable under Section 33(2)(b) on the ground that an allowance which flows from the term of employment and not contingent on the actual working of the workman is part of his wages, the allowance which is earnable only by active serving is not an allowance which will form part of the wages. According to the learned Counsel, the laundry allowance and the attendant benefit allowance cannot be included while computing the wages under Section 33(2)(b). Learned Counsel also submitted that the disputed difference amount of allowance had also been paid to the second respondent. Finally, the learned Counsel submitted that when the shortfall forms a negligible part of the total wages payable to the employee, then, that will not constitute the breach of mandatory provisions under Section 33(2)(b) for denying approval of the dismissal.
3. Learned Counsel appearing for the second respondent, on the other hand, would submit that when the Section mandates the payment of wages, no workman can be dismissed unless he has been paid the wages for one month.
4. In Bharat Electronics, Ltd. v. Industrial Tribunal Karnataka, Bangalore and Anr. the Supreme Court held that the night shift allowance is earnable by the workman by actually working in the night shift and that his claim was contingent upon his reporting to duty and being put to that shift and therefore found that the Tribunal had erred in declining the application for approval on the ground of short payment of Rs. 12 on account of the night shift allowance. In S. Ganapathi v. Air India and Anr. the Supreme Court held as follows, in Para. 22 at pages 159 and 160:
A clear reading of the provisions of Section 33(2)(b) of the said Act will indicate, as has been observed by the learned Judges of the Patna High Court, who have reproduced the observations of the Supreme Court in the case of Syndicate Bank, Ltd. v. U. Ramnath Bliat 1967-II-LLJ-745, that essentially the payment in question is to be made in order to 'soften the rigour of unemployment that will face the workman, against whom the order of discharge or dismissal has been passed.' This is a provision analogous to some of the requirements whereby termination of an employee is permissible on payment of equivalent of one or more months' salary. What was essentially intended by the Legislature is that one month's salary or wages were required to be paid to the employee concerned. Undoubtedly, this is a mandatory provision and, therefore, will have to be strictly construed, but the enforcement cannot be carried to unreasonable limits and . that too in border-line cases, we, are in a much stronger footing in this case where admittedly there has been substantial compliance with the requirements of the Section even according to the case of the appellants. All that the law has provided for is that the employee should not be sent away 'empty-handed'. This is only one of the procedural requirements which must be conformed to and as has been rightly observed by the earlier judgment of this Court referred to (supra), that if there is a marginal shortfall and if it is demonstrated in a given case that it was a bona fide error that the defect is certainly curable. In substance and in principle, therefore, it will have to be held that such a situation cannot be construed as constituting a breach of the mandatory provisions of the Act sufficient to deny approval on this ground alone.
5. In the instant case, the appellant had paid Rs. 7,365 to the second respondent. The alleged shortfall was Rs. 382, out of which Rs. 94 cannot be reckoned for the purpose of computing the wages since that amount represents the laundry allowance and attendant benefit allowance. As regards the payment to be made under the other two heads, namely the arrears of health allowance and variable dearness allowance, they had not been declared when the dismissal order was passed and after they were declared, the same was paid unilaterally even before the second respondent filed the counter-statement.
6. The Joint Commissioner had refused to grant approval on three grounds:
(i) that the sum of Rs. 7,365 given to the workman at the time of his dismissal was less than his one month's wages;
(ii) that there was a serious lacuna in the enquiry proceedings and therefore, the enquiry was not conducted according to the principles of natural justice; and
(iii) that since he had already held that the enquiry is defective, it flows as a consequence that prima facie case has not been made out.
7. In Lalla Ram v. D.C.M. Chemical Works, Ltd. the Supreme Court, after considering several earlier decisions, gave guidelines regarding the manner in which the Industrial Tribunal should exercise its jurisdiction in proceedings under Section 33(2)(b):
The position that emerges from the above ' quoted decisions of this Court may be stated thus: in proceedings under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to-
(i) whether a proper domestic enquiry in accordance with the relevant Rules/Standing Orders and principles of natural justice has been held;
(ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out;
(iii) whether the employer had corns to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Company v. Ram Prakash Singh AIR 1964 SC 486 : 1963-I-LLJ-291, Titaghur Paper Mills Company Ltd. v. Ram Naresh Kumar 1961-I-LLJ-511 (SC) Hind Construction and Engineering Company. Ltd. v. Their Workmen , Workmen of Firestone Tyre and Rubber Company of India (Private), Ltd. v. Firestone Tyre and Rubber Company of India (Private), Ltd. and Eastern Electric and Trading Company v. Baldav Lal , that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or to severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment;
(iv) whether the employer has paid or offered to pay wages for one month to the employee and
(v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.
If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the, dismissal. If, however, the domestic' enquiry suffers from any defect or infirmity, the labour, authority will have to find out on, its own assessment of the avoidance adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.
The Supreme Court in that case held that the Industrial Tribunal refused to accord its approval of the action taken against the worker by holding not on the basis of any legal evidence, but purely on the basis of conjectures and surmises that the present case was one of victimisation.
8. It is submitted on behalf of the appellant herein that the workman himself did hot raise a grievance regarding the opportunity to cross-examine. In fact, the case of the workman before the Tribunal is only that his witness was not cross-examined by the management. Therefore, the conclusion of the Joint Commissioner of Labour that the enquiry is vitiated because the enquiry officer did not permit the workman to let in evidence does not appear to have any basis. In view of the above, (the consequential conclusion of the Joint Commissioner that a prima facie case has not been made out is also baseless.
9. In these circumstances, since we hold that the appellant has substantially complied with the mandatory requirement of payment of one month's wages to the workman, we send back the matter to the Joint Commissioner of Labour to consider the question of grant of approval in the light of the judgment of the Supreme Court referred to above and examine:
whether a proper domestic enquiry in accordance with the relevant rules and Standing Orders has been held;
whether the principles of natural justice have been followed;
whether a prima facie case has been made out;
whether the conclusion that the workman is guilty is bona fide;
whether it does not amount, to unfair labour practice or victimisation.
The other condition, namely payment of one month's wages, has been complied with. The Joint Commissioner has also held that the application before the authority has been made simultaneously or within such reasonably short time as to form part of the transaction. If the conditions above are satisfied, the Joint Commissioner may grant approval of the dismissal order of the workman; if not, the Joint Commissioner may refuse approval.
10. The writ appeal and the writ petition are disposed of accordingly. No costs. Consequently, W.A.M.P. No. 4062 and W.P.M.P. No. 30214 of 2005 are closed.