S.A. Bobde, J.
1. This is a writ petition by the employer challenging the order of the National Industrial Tribunal, Mumbai, dated August 19, 2004 rejecting their application under Section 33(2)(b) of the Industrial Disputes Act, 1947.
2. The petitioner-employer sought approval of its order dated June 24, 2002 whereby respondent-workman was removed from service. The workman was served with charge sheet dated April 4/May 1, 1996 for allegedly unauthorisedly opening the Short Haul Operations Department (S.H.O.D.) office with a view td disposal of the old vehicles of the office. According to the charge sheet he was apprehended in the process of removing one jeep with the help of two other persons. He had already removed six vehicles, i.e. two Maruti 800, one Ambassador car, one Matador and two jeeps. Since the dispute pertaining to conditions of service of workmen of Indian Airlines was pending before the National Tribunal, the petitioner applied under Section 33(2)(b) for removing the respondent in pursuance of an enquiry. This application was contested by the workman. The Tribunal dismissed this application on the ground that the petitioner had not paid full wages for one month to the workman as required by proviso to Section 33(2)(b) of the I.D. Act. The Tribunal is of opinion that it would have given an opportunity to prove its case afresh on the issue of perversity and violation of principles of natural justice, if this shortfall was not there. Hence the question whether the respondent was paid full wages for one month as required by Section 33(2) assumes significance.
3. Mr. Dixit, the learned Counsel for the petitioner submitted that the special allowance of Rs. 195/-, which has admittedly not been paid to the respondent, cannot be treated as wages. However, there is no merit in this contention in view of the definition of Wages under Section 2rr of the I.D. Act, which reads as follows:
2rr. 'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes-
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;
(iii) any travelling concession;
((iv) any commission payable on the, promotion of sales or business or both;) but does not include-
(a) any bonus
(b) any contribution paid or payable by the? employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his service;
It was next contended on behalf of the petitioner that finding of the Tribunal that the respondent was not paid a special allowance of Rs. 195/- is completely unsustainable because the Tribunal has failed to appreciate that the respondent was not entitled to payment of the special allowance of Rs. 195/-. According to the petitioner special allowance of Rs. 195/- was payable only to such employees in certain categories who had been granted special allowance of Rs. 45/- per month under an earlier settlement dated April 11, 1996, and the respondent was not one of them.
4. The special allowance to which the respondent claims entitlement is admittedly allowance provided for in the Memorandum of Settlement between Indian Airlines Limited and the Air Corporation Employees Union; dated February 9, 2001, which reads as follows:
Special Allowance of Rs. 45/- per month paid to workmen in the applicable categories shall be increased to Rs. 195/- per month with effect from January 1, 1996. This allowance will not be counted as pay for any purpose, whatseover.
It is obvious that only workmen who are entitled to a special allowance of Rs. 45/-became entitled to the allowance of Rs. 195/- by way of an increase.
5. Therefore, any person claiming that he was not paid Rs. 195/- though entitled to must establish that he was entitled to Rs. 45/- per month under the earlier settlement. Clearly, before the Tribunal the respondent did not lead any evidence to establish that he was entitled to Rs. 195/- with effect from January 1, 1996. However, the Tribunal held that he was not paid the mandatory one month's wages merely because it was established that he was not paid the special allowance of Rs. 195/-. The Tribunal has rendered this finding inspite of an admission by the respondent that he was not paid Rs. 45/- per month. Apparently, the Tribunal merely considered the settlement and came to the conclusion that Item No. (iv)(4) granted a special allowance and every allowance was therefore to be treated as wages.
6. As to whether the respondent - workman was at all entitled to the special allowance of Rs. 195/- because he had never been paid Rs. 45/- under the earlier settlement, the Tribunal ignored the issue by observing that the petitioner has not led any evidence to show that the respondent was not entitled to special allowance. Apparently, the Tribunal cast a negative burden on the petitioner to show that it had not done something. Clearly if the respondent had pleaded that he was not paid full wages because he was not paid the special allowance to which he was entitled, burden was upon him to establish that he was entitled to special allowance and yet was not paid that allowance.
7. Mr. Singh, the learned Counsel for the respondent however relied on a decision of the Supreme Court in the case of Bharat Electronics Limited v. Industrial Tribunal, Karnataka, Bangalore and Anr. : (1990)IILLJ32SC , where the Supreme Court observed as follows at p. 38 of LLJ:
18. ...But at the same time it needs to be clarified that it is for the management to establish, when questioned, that the sum paid to the workman under Section 33(2)(b) represented full wages of the month following the date of discharge or dismissal, as conceived of in the provision and as interpreted by us in entwining the ratios in Bennett Coleman case (supra) and Dilbagh Rai Jarry case and adding something ourselves thereto.
8. The observations do not apply to the present case. In the present case the management has established by evidence that it had paid what according to it was a full wages. It was workman who had pleaded that he has not been paid something to which he was entitled. In the circumstances the burden was on him to establish that he was entitled to that which has not been paid to him.
9. In this view of the matter, I am of the view that the petition must succeed. The impugned order is therefore set aside. The matter is remanded back to the National Tribunal to decide the entire matter afresh except the question whether the respondent has been paid wages for one month. All other questions are left open before the Tribunal. Pending decision of the Tribunal, the petitioner shall pay to the respondent a sum of Rs. 10,955/- per month as last drawn wages under Section 17-B of the I.D. Act. Rule made absolute in the above terms.