Judgment:
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records and quash the order dated 11.4.2006 in A.P.No.286 of 2004 passed by the first respondent herein Joint Commissioner of Labour (Conciliation), Chennai.
ORDER
1. The writ petition is filed by the petitioner State Express Transport Corporation at Chennai. In this writ petition, the petitioner sought to challenge an order passed by the first respondent Joint Commissioner of Labour (Conciliation), Chennai made in Approval Petition No.286 of 2004 dated 11.4.2006. By the impugned order, the first respondent had rejected the request of the petitioner management for the grant of approval of termination of the second respondent.2.The writ petition was admitted on 24.4.2008. Pending the writ petition, in the application for an interim injunction, only notice was ordered. On notice being served, the second respondent filed M.P.No.1 of 2010 seeking to vacate the alleged interim order dated 24.8.2009 and also for a direction to pay the last drawn wages in terms of Section 17-B of the I.D. Act in M.P.No.2 of 2010. But no orders have been passed in those applications.
3. It is seen from the records that the contesting second respondent was employed as a driver in the petitioner corporation. He remained absent unauthorisedly from 22.5.2003. A charge memo, dated 6.6.2003 was given to him. After conducting a domestic eqnuiry, a second show cause notice dated 1.12.2003 was issued was issued to him. After getting an explanation from the second respondent, by an order dated 14.10.2004, he was dismissed from service. Since at the relevant time, the conciliation proceedings were pending before the authority, the petitioner corporation filed an approval petition under Section 33(2)(b) of the I.D. Act which is a condition precedent. They have paid Rs.6069/- being the one month's pay and also filed simultaneously an application for the grant of approval. The one month pay was not calculated properly. There was a shortfall of Rs.305/- in calculating the one month pay. Long after the petition was filed, the said amount of Rs.305/- was sent to the workmen only on 23.3.2005. The approval petition was numbered as A.P.No.286 of 2004 and notice was ordered to the second respondent. The second respondent filed a counter statement dated 26.9.2005. The authority after considering the enquiry proceedings came to the conclusion that the enquiry was not conducted in accordance with the principles of natural justice. The order of dismissal was not based upon any legal evidence and the management had also not paid the exact one month's wages along with the petition for approval. The application was also not filed simultaneously.
4. In respect of the last two grounds, the authority held as follows :
"The next issue to be decided is whether the Applicant has paid or offered to pay wages for one month to the Opposite Party. In the application seeking approval the Applicant had stated that it had paid to the Opposite Party at the time of his dismissal a sum of Rs.6069/- as his one month's wages. In Exhibit A-15, which is a letter addressed to the Opposite Party, the Applicant states that he was already paid a sum of Rs.6069/- as his one month's wages and that the one month wages payable to the Opposite Party is Rs.6374/- and therefore the difference of Rs.305/- is sent along with the letter in the form of a cheque.
Exhibit A-15 is a tacit admission by the Applicant that it had not paid to the Opposite Party his exact one month's wages at the time of his dismissal."
5. In respect of not filing the application simultaneously, the authority held as follows :
"The next issue to be decided is whether the Applicant has simultaneously or within such reasonably short time as to form part of the same transaction applied to this authority before which the main industrial dispute was pending for approval of the action taken by him.
The Opposite Party was dismissed by an order dated 14.10.2004. The application seeking approval was filed before this Authority on 26.10.2004. The time gap between the dismissal of the opposite party and the filling of the Form T is almost 12 days. The time gap is so large that both these actions could neither be regarded as simultaneous nor forming part of the same transaction. Therefore I hold that the dismissal of the Opposite party and the filing of the application seeking approval is neither simultaneous nor part of the same transaction. Therefore on this ground also the approval sought for had to be refused."
6. In the light of the above, it has to be seen whether the order passed by the first respondent suffers from any irregularity or illegality?
7. The contentions raised by the petitioner has to fail both on grounds of merits as well as on the ground of non-compliance of Section 33(2)(b) of the I.D.Act. Even on merits, the petitioner is not entitled to succeed. The other limb of non-compliance under section 33(2)(b) of the I.D.Act cannot be revived. The courts have not accepted the theory of substantial compliance and it requires a strict compliance.
8. As it involves an interpretation of Section 33(2) of the Industrial Disputes Act, 1947, it is necessary to extract the said provision of law:
"Section 33 (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."
9. The Supreme Court vide its judgment in Strawboard Manufacturing Company Vs. Gobind reported in 1962 Vol (I) LLJ 420 = AIR 1962 SC 1500 had an occasion to consider the scope of Section 33(2)(b) of the Industrial Disputes Act, 1947. The Supreme Court had explained the proviso to Section 33 (2)(b) of the Act. In pages 425 and 426 of the Report it was observed as follows:-
"The next question is as to when should an application be made. In this connection, our attention was drawn to Section 33A of the Act which gives a right to the employer to apply for redress in case an employer contravenes the provision of S.33 and there is no doubt that the proviso to Section 33(2)(b) should be so interpreted as not to whittle down the protection provided by S.33A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely,
(i) dismissal or discharge ;
(ii) payment of wages ; and
(iii) making of an application for approval,
to be simultaneous and to be part of the same transaction, so that the employer when he takes action under Section 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also makes an application to the tribunal for approval at the same time. When, however, we say that the employer must take action simultaneously or immediately, we do not mean that literally, for when three things are to be done, they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely,
(i) dismissal or discharge ;
(ii) payment of wages ; and
(iii) making of the application
are parts of the same transaction. If that is done, there will be no occasion to fear that the employee's right under S.33A would be affected. The question whether the application was made as part of the same transaction, or at the same time when the action was taken, would be a question of fact and will depend upon the circumstances of each case.
We may now refer to certain cases which have been relied upon by either side. The main case on which learned counsel for the respondents relies is Premier Automobiles Limited Vs. Ramachandra Bhimayya Polkam and another (1960-I LLJ 443). In that case, the Bombay High Court held that the application should be made before the action has been taken by the employer and that it was not correct to infer from the use of the word "approval" in the proviso that the legislature intended that such an application should be made after the action had been taken. The High Court has pointed out that there is apparent conflict between the first and last part of the proviso and the view it took was with the object of harmonizing the two parts. This view has been followed by the Gujarat High Court in Indian Extractions (Private) Limited Vs. A.V.Vyas, Conciliation Officer (AIR (1961) Guj.22) though with some hesitation. With respect we feel that it is not necessary to read the words "action taken" in the proviso as equal to "action proposed to be taken" as the Bombay High Court has done and that the apparent conflict between the two parts of the proviso can be harmonized, as we have indicated above, leaving it open to the employer to dismiss or discharge the employee and at the same time pay him the necessary wages and make an application to the authority concerned for approval of the action taken. The contrary view has been taken by the Calcutta High Court in Metal Press Works Limited Vs. Deb(N.R) and others (1962-I LLJ 75) where it has been held that payment of wages and the making of the application should be simultaneous with the order of discharge or dismissal. It has further been pointed out that
: the word "simultaneously" must of course be taken reasonably and a motion of split-second timing should not be imported. It should be done at once and without delay."
and it will depend upon the facts of each case whether the application had been made at once or without delay. This, we think, is the correct view to take.
Let us, therefore, see what has happened in this case. The appellant concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on 1 February 1960. On the same day, he sent two applications by post addressed to the two tribunals. The application at Meerut was received on 3 February and the application at Allahabad on 4 February 1960. In these circumstances, we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was, therefore, in accordance with the proviso. The view taken by the labour Court that the application must be made before dismissing the respondent, is not correct. The appellant in this case had complied with the proviso to Section 33(2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it. "
(Emphasis added)
10. On the question of payment of wages, subsequent to the Supreme Court, several High Courts have taken a definite stand on the question of shortfall in the payment of one month pay. It is necessary to refer to one or two cases. The High Court of Karnataka vide its judgment in Karnataka Agro Industries Corporation Ltd., vs. Industrial Tribunal and another reported in 1984 (64) FJR 179 has held that in the offering of one month pay even if the increment accrued to the workman was not included, then it would not amount to the compliance under section 33(2)(b) of the I.D.Act.
11. The same view was taken by this Court in Palaniswami vs. Indian Hume Pipe Co., reported in 1965 (2) LLJ 541 that if the calculation of one month pay is not in accordance with law, the approval need not be granted by the authorities.
12. In the present circumstances, there was no explanation for the shortfall of one month's pay. The very idea of Parliament introducing Section 33 of the I.D.Act was to clothe the Conciliation Officer the power to supervise the action of the employer pending conciliation of dispute raised by the workman. The petitioner cannot seek approval of their action by not complying with the statutory conditions of precedent found under the Act.
13. In the light of the same, the writ petition stands dismissed. No costs. Consequently, connected Miscellaneous Petitions stand closed.