Ub-Mac Batteries Ltd. vs T. Rajendran and Another

The petitioner has presented this petition praying for quashing the order of the Industrial tribunal, Bangalore dismissing the application presented by it u/s 33(2)(b) of the Industrial Disputes Act.

The petition has come up for preliminary hearing. Sri G. S. Rao who has filed caveat of R-I, appeared for the 1st respondent.

The facts of the case in brief are these : The 1st respondent was an employee of the petitioner. He was appointed on 1st September 1975. Disciplinary proceedings were instituted against him on the charge of committing theft of 13.5 Kgs. of lead grids belonging to the factory. The 1st respondent was placed under suspension on 9th December 1981. In the enquiry held by the petitioner, the 1st respondent was found guilty. The management imposed the penalty of dismissal from service against him on 29th August 1983. As certain industrial dispute attracting the provisions of Section 33(2)(b) of the I.D. Act was pending before the Industrial Tribunal Bangalore, the petitioner was obliged to file an application for obtaining the approval of the Tribunal to the order of dismissal made against the 1st respondent. Accordingly on 29th August 1983 itself after serving a copy of the dismissal order on the 1st respondent, an application was made by the petitioner before the Tribunal. As required by the said provision, according to the petitioner, one month''s salary amounting to Rs. 736-20 ps. was paid to the 1st respondent. Before the Industrial Tribunal, the 1st respondent raised several objections. One of them was that the amount of wages paid by the petitioner was short by Rs. 9/- which he was entitled to get as night shift allowance and therefore the application for approval should be rejected for non-compliance of the said mandatory requirement of section 33(2)(b) of the I.D. Act. The Tribunal by its order dated 28th September 1983 not only accepted the above contention of the 1st respondent but also accepted the two other grounds urged by the 1st respondent and dismissed the application of the petitioner. Aggrieved by the said order the petitioner has presented this petition.

Sri S. N. Murthy, learned counsel for the petitioner, contended that though there was no specific inclusion of night shift allowance of Rs. 9/- in calculating one month''s wages paid to the 1st respondent, the amount actually paid was more than one month''s wages by about Rs. 75/- and therefore the Labour Court was not justified in holding that the petitioner had not complied with the provisions of Section 33(2)(b) of the I.D. Act regarding payment of one month''s wages.

Sri G. S. Rao, learned counsel for the workman, however, pointed out that the amount of Rs. 736.20 ps. paid to the 1st respondent did not constitute one month''s wages which he was entitled to draw as on the date of dismissal and it fell short of Rs. 9/- namely the night shift allowance and therefore the finding recorded by the labour Court was correct.

On facts there is no dispute. On 9th December 1981, on which date the 1st respondent was placed under suspension, he was drawing the basic wages of Rs. 192/- He continued in suspension till 29th August 1983 on which date the order of dismissal was made. Therefore, there was no variation in basic pay for the reason, during the period of suspension the workman did not earn any increment. There is also no dispute that as on the date of suspension the D.A. which the workman was entitled to get was Rs. 463.80 and on account of increase in living index the V.D.A. payable to the first respondent as on 29th August 1983 was Rs. 544.20. Both these figures together comes to Rs. 736.20 ps. As far as night shift allowance is concerned, the finding recorded by the Labour Court was that the workman was, under the conditions of service, bound to work in night shift every month and on that account he was entitled to get Rs. 9/- as night shift allowance.

The question for consideration is whether the night shift allowance of Rs. 9/- is to be added to make one month''s wages or not. Section 33(2)(b) proviso expressly provides that one of the mandatory conditions to be complied with while making an application under that provision is, payment of wages for one month. The expression ''wages'' is defined in Section 2(rr) of the I.D. Act. It read :-

"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 time being entitled to;

(ii) the vale 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

As could be seen from the definition, ''wages'' includes all remuneration capable of being expressed in terms of money and also includes every type of allowance including D.A., i.e. the D.A. to which the workman is entitled for the time being. Therefore we have to ascertain as to what was the wages which the 1st respondent was entitled to draw on 29th August 1983. As stated earlier, there is no dispute regarding quantum of basic wages and D. A. Further, according to his condition of service he was entitled to night shift allowance of Rs. 9/- which was not added in the wages paid to the 1st respondent.

Sri Murthy learned counsel for the petitioner contended that according to the Model Standing Orders which was applicable to the petitioner, the dismissal order, though passed on 29th August 1983, should be deemed to have taken effect from the date of suspension and therefore one month''s wages should be calculated as if the 1st respondent was dismissed on 9th December 1981. The Model Standing Order on which the petitioner relies reads :

"Provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been absent from duty during the period of suspension and shall not be entitled to any remuneration for such period, and the subsistence allowance already paid to him shall not be recovered"

It is true that according to the above standing order whenever a workman placed under suspension pending disciplinary proceedings against him is finally dismissed from service, such a dismissal is deemed to have taken effect from the date of suspension. It is a legal fiction created for the purpose of the standing order. It is well settled that a legal fiction created under any statutory provision for a specific purpose cannot be extended to any other provision. (See Braithwaite and Co. (India) Ltd. Vs. The Employees'' State Insurance Corporation, In the present case the legal fiction on which the learned counsel for the petitioner relies is incorporated in the standing orders framed under the Standing Orders Act. It is impermissible to apply or extend that legal fiction, to the word ''Wages'' defined u/s 2(rr) of the I.D. Act an that definition as indicated earlier means the basic wages and all allowances which the workman concerned was entitled to draw for the time being i.e., the date on which the order of dismissal was passed and the application was made before the Industrial Tribunal u/s 33(2)(b) of the Act. Therefore, in my opinion the Labour Court was right in holding that the amount paid by the petitioner as one month''s wages fell short of Rs. 9/- and therefore the application of the petitioner was liable to be dismissed in limine on the ground of non-compliance with one of the mandatory requirements of section 33(2)(b) of the I.D. Act. As the petition has to fall on the above ground, it is unnecessary to go into the other grounds on which also the Labour Court held against the petitioner.

In the result, I make the following order. Petition is dismissed.