J.K. Mohanty, J.
1. The petitioner, the Orissa Road Transport Company Limited is a company registered under the Indian Companies Act carrying on business of transport having its head office at Berhampur, Ganjam. Opposite party No. 1 was working as a Conductor under the petitioner-company. On 30th March, 1975 while he was the Conductor of bus No. ORC 3690, the bus was checked by the enforcement staff and it was found that opposite party No. 1 had allowed thirteen passengers to travel in the bus without issuing tickets to them, Similarly, on 6th April, 1975 while he was the Conductor of bus No. ORC 2823, in the course of checking it was found that he had allowed thirty-three passengers to travel in the said bus bus without issuing tickets to them. Departmental proceeding was started against opposite party No. 1. Ultimately, on completion of the inquiry, he was found guilty and was discharged from service by order dated 23rd January, 1976. As opposite party No. 1 was a concerned workman in an industrial dispute case pending before the Industrial Tribunal (for short 'the Tribunal) the petitioner-company made an application u/s. 33(2)(b) of the Industrial Dispute Act (for short the Act') seeking approval of the action taken against opposite party No. 1 One month's wages of opposite party No. 1 were remitted to him by postal money order. The learned Tribunal after hearing the parties held that prima facie case has been established against opposite party No. 1 for misconduct specified in Clause 15(1)(L) of the Standing Order of the petitioner company and the punishment of discharge has been legally passed by the authorities. The Tribunal, however, held that the deduction of Rs. 2/- made by the management while remitting the house rent allowance to opposite party No. 1 was not justified. So it cannot legally be said that his one months wages as required by proviso to Section 33(2)(b) of the Act have been remitted to him. It was held that opposite party No. 1 was entitled to Rs. 69.73 as subsistence allowance and Rs. 26.52 as house rent, the total amount being Rs. 96.25. But a sum of Rs. 94.25 was remitted to him by postal order after deducting Rs. 2/- as money order commission. So the Tribunal held that the requirement of proviso to Section 33(2)(b) of the Act has not been complied with. Reliance was placed on a decision reported in Muzaffarpur Electric Supply Co. Ltd, v. S.K. Dutta and Anr. 1970-II L.L.J. 547. The plea of the management that Rs. 2/- was deducted towards money order commission from the subsistence allowance and not from the house rent allowance was not accepted and the action of the management in discharging opposite party No. 1 was not approved.
2. Mr. Murty, learned Counsel appearing for the petitioner, submitted that there is no illegality in deducting Rs. 2/- as money order commission. According to him, the deduction was made out of the subsistence allowance of Rs. 69.73 and not from the house rent allowance of Rs. 26.52. This claim on behalf of the management should have been accepted. The learned Tribunal has misconstrued the decision reported Muzaffarpur Electric Supply Co. Ltd. v. S.K. Dutta and Anr. (supra).
The above submissions have been strongly refuted by the learned Counsel appearing for opposite party' No. 1.
3. Section 33(2) of the Act reads as follows: -
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings -
(1) xxx xxx
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the Standing Orders applicable to a workman concerned in such dispute, or, where there are no such Standing Orders, in accordance with the terms of the contract, whether express or implied, between him and the workman, -
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
The proviso makes it clear that no workman shall be discharged or dismissed unless he has been paid wages for one month. 'Wages' has been defined in Section 2(rr) of the Act which is as follows:
2. In this Act, unless there is anything repugnant in the subject or context, -
xxx xxx xxx(rr) 'wages' means all remuneration capable of being expressed in terms of money, which would, if the term 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; but dies 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
(iv) any commission payable on the promotion of sales or business or both.
From the above, it is clear that subsistence allowance does not come under the purview of wages In this case, subsistence allowance was Rs. 69.73, which was much more than the house rent allowance of Rs. 26.52 Admittedly Rs. 2/- has been deducted towards money order commission. The management claims that Rs. 2/-deducted towards money order commission was from the subsistence allowance and not from the house rent allowance. No doubt, house rent allowance is included in the definition of 'wages'.
4. It is argued that the finding of the Tribunal, 'It cannot reasonably be said that this deduction of Rs. 2/-'. towards money order commission had been deducted only from the subsistence allowance and not from the house rent allowance' is not correct and the claim of the management that Rs. 2/- was deducted out of the subsistence allowance should have been accepted.Learned Counsel for the petitioner urged that in the decision reported in Muzzafarpur Electric Supply Co. Ltd. v. S.K. Dutta (supra) it has not been held that money order commission cannot be deducted out of the wages. In that decision the Patna High Court observed at p. 549 of 1970-II L.L.J. 547:
Even assuming that the management was justified in deducting the money order commission, we see no justification in law to take the view that the management, in payment of one month's wages, had any right to deduct the amount on account of the balance famine loan or any such or similar loan It has to be pointed out here that the requirement of payment of one month's wages as pointed out by the Supreme Court in the case of syndicate Bank Ltd v. V. Ramnath Bhat 1968 (16) F.L.R. 39, 'to soften the rigour of unemployment that will face the workman, against whom the order of discharge or dismissal has been passed'. If it were to be held that payment of one month's wages. can be made after deducting the previous dues due to the management from the workman, the very purpose of the mandatory requirement will be frustrated or is likely to be frustrated in many cases.
Thus, from the above it is clear that the Patna High Court was of the view that deduction of any dues of the management from the one month's wages is not permissible and if such deduction is made, it will mean that one month's wages have not been paid. But it is not so in the present case. So the above decision has no application to the facts and circumstances of the present case.
5. After hearing the argument of both sides and in the facts and circumstances of the case we are of the view that the claim of the management that Rs 2/- has been deducted out of the subsistence allowance, which is a larger amount, and not from the house rent allowance appears to be justified The writ petition is, therefore, allowed The Tribunal directed to accord approval to the order of discharge of opposite party No. 1. There shall be no order as to costs.