ivil Appeal No 744 of 1987
From the Judgment and Order dated 9101986 of the Industrial Tribunal Karnataka in Serial No 180 in ID No 26 of 1979
Narayan B Shetye Vineet Kumar and Vinay Bhasin for the Appellant
MC Narasimhan and Jitender Sharma for the Respondent No 2
The Judgment of the Court was delivered by PUNCHHI J
Whether night shift allowance forms part of wages in the context of section 322b of the Indus trial Disputes Act 1947 hereinafter referred to as the Act  is the issue which crops up for decision in this appeal by special leave against the order dated October 9 1986 of the Industrial Tribunal Karnataka at Bangalore in Serial No 1 of 1980 in ID No 26 of 1979
It arises on these facts
Bharat Electronics Limited Bangalore the appellant herein is the management and the respondent Shri B Sridhar workman 973 was in employment with the management as a bus driver
The establishment of the management at the relevant time had about 13500 employees out of whom about 2800 were females
The management provided transport facilities for picking up and dropping down its employees from and at stipulated official stops
The driver plying buses of the establish ment on a rotational basis working on night shifts used to get a variable night shift allowance
On May 1 1979 the workman was detailed to work in the first shift for picking up certain employees of the second shift and general shift and for drop
ping school children at various scheduled points
He was also detailed to pick up female employees who were to report for the shift commencing from 1030 am to 700 pm from the stipulated official stops
En route the workman did not park his vehicle at one of the stipulat ed establishment bus stops but rather quite away from it which caught the attention of Shri KL Balasubramaniam a senior Engineer in the employment of the Management wanting to go the factory
Shri Balasubramaniam went there and in the process of boarding the bus enquired whether he could go to the factory in the same bus
He was in for a shock to see the workman indulging in sexual act with a woman in the gang way of the bus
The sudden appearance of Shri Balasubramani am surprised the workman and he abruptly and falsely replied in the negative
The matter was reported to the high offi cials of the Management
He confessed his guilt before Shri MV Subbarayappa Deputy Manager Transport
The misconduct committed by the workman became the subject matter of a domestic enquiry
At the enquiry SShri Balasubramaniam and Subbarayappa appeared for the management and deposed to the aforesaid facts
The Enquiry Officer found the workman guilty of the misconduct imputed under Standing Orders 151h and 151r of the Standing Orders of the Company
The workman was thereafter dismissed from service with effect from December 31 1979
On that very day the management sought approval from the Industrial Tribunal Karnataka at Bangalore under section 332b of the Act of the action taken and towards meeting the requirement of the provision paid to the workman before hand a sum of Rs60790 as wages for one month Before the Industrial Tribunal the workman filed an objection statement raising various contentions denying inter alia the allegations made against him and challenging the validity of the domestic enquiry
It somehow kept pend ing for over six years though under the unamended section 325 it was required of the Tribunal to without delay hear the application and pass such order in relation thereto as it deemed fit
Now with effect from 21 8 1984 three months time limit is 974 fixed though extendable by an order in writing
Anyway while that was in progress he made an application on July 13 1986 before the Tribunal seeking amendment of the objection petition enabling him to urge an additional ground to the effect that one month s wages paid to him were short by Rs 12 the monthly sum due for night shift  allowance
The additional objection was based on the premises that since the workman was ordinarily expected to work on night shift on a rotational basis as per the Standing Orders of the Company such allowance should have formed part of the wages
On that basis it was urged that since full wages had not been paid to the workman there was a serious infraction of the provisions of section 332b warranting the sought for approval to be declined
The management could not and did not deny that factu ally the night shift allowance had not been included in one month s wages as paid to the workman
The management however maintained that the question of the validity of the domestic enquiry which the Tribunal had already undertaken should first be settled and that in any case the additional objec tion raised by the workman required leading evidence
The management further contended that the night shift allowance was neither paid nor was payable to the workman as he could not be said to have earned it automatically as part of wages unless he had actually worked on the night shift
It was pointed out that the said allowance was variable in nature depending upon the number of shifts in which the workman had actually performed work
It was asserted that the night shift allowance is not payable to the workman when he does not come for work for any reason and thus was not such allowance which would automatically flow even without work ing
Lastly it was projected that since during the pendency of the domestic enquiry the workman was under suspension there could otherwise arise no occasion for his coming on duty to earn the night shift allowance
The Presiding Officer Industrial Tribunal Bangalore relying on the views expressed by an Hon ble Single Judge of the Karnataka High Court in Writ Petition No 6607 of 1985 decided on August 28 1986 titled Ramakrishnappa vs The Industrial Tribunal  Another sustained the objection of the workman taking the view that night shift allowance should have formed part of one month s wages and on that score went alongwith the workman in abandoning giving any finding the validity of domestic enquiry
Consequentially for the view so taken the management was declined approval to the dismissal of the workman
So the order of the Tribu nal taking that view is directly under attack in this appeal by special leave and indirectly at issue is the 975 correctness of the decision of the Karnataka High Court in Ramakrishnappa s case aforementioned
Two provisions of the Act which would require being adverted to are these
Section 2rr provides the definition to the word wages
It reads as follows 2 DEFINITIONS In this Act unless there is anything repugnant in the subject or context rr wages  means all remunerations 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 food grains 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 em ployer 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 Section 332b as extracted reads as follows 976 33
CONDITIONS OF SERVICE ETC
TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTANCES DURING PENDENCY OF PROCEEDINGS 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 for where there are no such stand ing orders in accordance with the terms of the contract whether express or implied between him and the workman b for any misconduct not connected with the dispute discharge or punish whether by dismissal or other wise 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 approv al of the action taken by the employer
 It is not disputed that section 332b was attracted to the facts of this case
The only point as said before is whether night shift allowance was to be paid to the workman as part of wages even though he had not factually worked on the night shift
The definition of the word wages as given in clause rr of section 2 is comprehensive enough to include vide inclusion 1 such of the allowances as the workman is for the time being entitled
Yet despite such comprehension the inclusive meaning is subject to a meaningful change if there is anything repugnant in the subject or context
The proviso to section 332b mandates that unless the workman is paid wages for one month and an application as contem plated is made by the employer for approval of his action no such workman can be discharged or dismissed
The inten tion of the legislature in providing for such a contingency is not far to seek and as was pointed out by this Court in the case of Syndicate Bank Limited vs Ram Nath Bhat 1967 68 XXXII FJR 490 at 497 was to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been passed
One month s wages as thought and provided to be given are con ceptually for the month to 977 follow the month of unemployment and in the context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dis missal
If the converse is read in the context of the provi so to section 32b it inevitably would have to be read as double the wages as earned in the month previous to the date of dismissal and that would in our view be reading in the provision something which is not there either expressly or impliedly
We have thus to blend the contextual interpreta tion with the conceptual interpretation to come to the view that night shift allowance could never be part of wages and those would be due only in the event of working
This Court in Ms Podar Mills Ltd vs Bhagwan Singh and Another ruled that the date of dismissal under section 332b is the date when the approval application is filed after dissmissal With effect from that date the occasion to earn night shift allowance cannot and will not arise
This Court in Bennett Coleman  Co P Ltd vs Punya Priya Das Gupta  was called upon to rule whether car allowance and benefit of free telephone and newspaper were such allowances includable in wages under section 2rr of the Act in order to determine a claim of gratuity of a journalist
This Court held as follows Since wages has not been defined in the Act its meaning is the same as assigned to it in the 
Under section 2rr of that Act 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 employ ment or of work done in such employment and includes i such allowances including dearness allowance as the work man 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 food grains or other articles iii any travelling concession but does not include any bonus and other items mentioned therein
Mr Ramamurthi s argument was that the car allowance as also the benefit of the free telephone and newspapers would fall under the first part of the definition as they are remuneration capable of being expressed in terms of money
The argument however cannot be accepted as neither of them can be said to be remunera tion payable in respect of emp 978 1oyment or work done in such employment
Neither the car allowance nor the benefit of the free telephone was given to the respondent in respect of his employment or work done in such employment as the use of the car and the telephone was not restricted to the employment or the work of the re spondent as the special correspondent
There was no evidence that the car allowance was fixed after taking into consider ation the expenses which he would have ordinarily to incur in connection with his employment or the work done in such employment
Even if the respondent had not used the car for conveying himself to the office or to other places connected with his employment and had used other alternative or cheap er means of conveyances or none at all the car allowance would still have had to be paid
So too the bills for the telephone and the newspapers whether he used them or not in connection with his employment or his work as the special correspondent
Therefore we have to turn to the latter part of the definition and see if the two items properly fall under
So far as the car allowance is concerned there was as aforesaid nothing to suggest that it was paid to reim burse him of the expenses of conveyance which he would have to incur for discharging his duties as the special corre spondent or that it was anything else than an allowance within the meaning of section 2rr of that Act
It would there fore fall under the inclusive part i of the definition
Likewise the benefit of the telephone and newspapers was allowed to the respondent and merely for the use thereof in connection with his employment or duties connected with it
Both the car allowance and the benefit of the free telephone and newspapers appear to have been allowed to him to direct ly reduce the expenditure which would otherwise have gone into his family budget and were therefore items relevant in fixation of fair wages
See Hindustan Antibiotics Ltd vs Workmen That being the position the two items could on the facts and circumstances of the present case be properly regarded as part of the respondent s wages and had to be taken into calculations of the gratuity pay able to him Emphasis supplied The above extract and more so the emphasised words are significant to convey that the car allowance and the bene fits of free telephone and newspapers were held allowances includable in wages in the 979 facts and circumstances of that case
These allowances were held part of the wages of the journalist on the finding that he was entitled to them not as remuneration capable of being expressed in terms of money but as allowances within the meaning of the First inclusion
In Dilbagh RaiJarry vs Union of India  Ors  this Court was required to determine whether run ning allowance formed part of wages for the purpose of 
That was a case in which a railway guard who was convicted in a criminal case but later acquitted and who in the meantime had been dismissed from service but his dismissal too had been upset by the High Court followed by his reinstatement had asked for back wages for the period between the date of his dismissal and the date of reinstatement
Finally he was let to this Court reiterating his claim that a running allowance was part of his wages which he would have earned while on duty
This Court in that context observed as follows Mr Bishan Narain further contends that Running Allowance was a part of the pay or substantive wages
In support of this argument he has invited our attention to rule 2003 of the Railway Establishment Code clause 2 of which defines average pay 
According to the second proviso to this clause in the case of staff entitled to running allowance average pay for the purpose of leave salary shall include the average running allowance earned during the months immediately preceding the month in which a Railway servant proceeds on leave subject to a maximum of 75 per cent of average pay for the said period the average running allow ance once determined remaining in operation during the remaining part of the financial year in cases of leave not exceeding one month
The crucial words which have been underlined show that such Running Allowance is counted towards average pay  in those cases only where the leave does not exceed one month
It cannot therefore be said that Running Allowance was due to the appellant as part of his wages for the entire period of his in active service
Travelling allowance or running allowance is eligible if the officer has travelled or run not otherwise
We therefore negative this contention
 Emphasis supplied It is noteworthy that running allowance or travelling allow ance as the 980 case may be had to be earned by actually travelling or running and not otherwise as held in Dilbagh Rai Jarry s case supra
Only a fiction was available for a limited period as per Clause 2003 of the Railway Establishment Code
The average running allowance once determined in accordance with the Clause afore quoted was to remain operative during the remaining part of the financial year only in those cases where the employee had taken leave not exceeding one month and not otherwise
In cases of leave exceeding one month the fiction on its own dropped
Now confluencing the two legal thoughts expressed in Bennett Coleman s case supra and Dilbagh Rai Jarry s case supra the stream of thought which inevitably gurgles up is that an allowance which from the term of employment flows as not contingent on actual working is part of wages for the purposes of section 332b but an allowance which is earnable only by active serving is not an allowance which will form part of wages within the meaning of the said provision
In Ramakrishnappa s case Hon ble Single Judge of the Karnataka High Court employed Bennett Coleman s case to come to the conclusion that night shift allowance was part of the wages by observing as follows Therefore I find it difficult to accede to the contention of the management that conveyance allowance night shift allowance and turnout allowance were not wages as defined in section 2rr of the Act and therefore they were not required to be included in computing the wages of the petitioner for one month
The decision of the Supreme Court in Bennett Coleman and Co 1970 37 FJR 498 AIR 1970 SC 427 though it arose in the context of quantification of gratuity the view taken therein that the allowances given for purchase of newspapers towards telephone and conveyance also should be calculated in computing one month s wages for the purpose of computing gratuity sup ports the construc tion placed on section 2rr of the Act for the petitioner for the Supreme Court invoked the said definition as the word wages had not been defined in the Working Journalists Conditions of Service and Miscellaneous Provisions Act 1955
In the Case of Jarry   on which the learned counsel for the second respondent relied the ques tion decided was whether 981 wages payable to a railway guard for the period he was kept out of service consequent on his dismissal from service till he was reinstated included the amount of running allowance which was under the rules payable only if the railway serv ant had gone on duty and the Supreme Court held that it was not in view of the condition
Section 2rr of the Act did not come up for consideration in that case and therefore not apposite to this case
 This view as said before was adopted by the Tribunal to decline approval to the management
But for reasons set out before we are of the view that the Hon ble Single Judge fell into an error in enlarging the scope of Bennett Cole man s case and dwarfing that of Dilbagh Rai Jarry s case
Thus the conclusion is inescapable that the workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift
The night shift allowance automatically did not form part of his wages and it was not such an allowance like in Bennett Coleman s case which flowed to him as his entitlement not restricted to his service
Thus we hold that the Tribunal fell into a grave error in declining the application of the management for approval on the ground of short payment of Rs 12 on account of night shift allowance which the workman suppos edly would have earned had he gone to report on duty which in the circumstances he could not or having worked rota tionally at night which he did not and that too fictional ly in the month following the month and the date of the application on which date the dismissal was to be effec tive
We cannot refrain from expressing our concern to the manner in which the other issue before the Tribunal regard ing the validity of the domestic enquiry was side tracked
Had there been a finding on the same one way or the other we could have easily finalised the matter
For over six years the matter on that count was kept pending and the additional objection being permitted to be raised was unac countably abandoned
The matter could have in this situation been sent back to the Tribunal but at this late stage we do not propose to do so and are inclined to close the matter as we are otherwise satisfied that plea about the validity of the domestic enquiry was without merit and even though raised was by conduct abandoned
Before concluding the judgment the observations in Syndicate Bank s case afore quoted are again to be borne to mind
In the facts and circumstances of this case the management paid to the workman a 982 sum of Rs60790 as a month s salary to soften the rigour of unemployment that will face the workman
How could a short payment of Rs 12 be said to have lessened the soften ing of such rigour is thought stirring
Viewed in the con text there could genuinely be a dispute as in the present case as to whether a particular sum was due as wages
It is of course risky for the management to raise it as to pay even a paise less than the month s wages due under section 332b would be fatal to its permission sought
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 332b represented full wages of the month following the date of discharge or dis missal as conceived of in the provision and as interpreted by us in entwining the ratios in Bennett Coleman s case supra and Dilbagh Rai Jarrv s case supra and adding something ourselves thereto
Thus for the foregoing reasons we allow this appeal set aside the judgment and order of the Industrial Tribunal Karnataka at Bangalore and allow the application of the management under section 332b of the without any order as to costs
RNJ Appeal allowed


Summary:
This petition under Article 32 of the Constitution of India was filed by the wife of the detenu challenging the validity of the Detention Order dated 1581989 passed against her husband by the Collector and District Magistrate of Kamarajar District Virudhunagar Tamil Nadu on allega tions inter alia that the District Magistrate had issued the impugned order for detention of her husband who is an active member of the All India Anna Drayida Munnetra Kazha gam party an active social and political worker and ex member of the Tamil Nadu Legislative Assembly at the behest of Respondent No 3 a Minister in the present DMK Govern ment on account of personal and political animosity between the two
Counsel for the Detenu urged two grounds to attack the order of detention
Firstly that the order did not specify the period of detention and secondly that the sole ground of detention as reflected in the Grounds of Detention has no relevance to the maintenance of Public Order  as the facts mentioned therein donot make out any case of violation of public order
At best it may be a case of law and order only which exhibits non application of mind by the detaining authority
837 Allowing the writ petition and quashing the impugned order of detention on the ground of non application of mind by the Detaining Authority in passing the Detention order this Court HELD 1 Since the Act does not require the detaining authority to specify the period for which a detenu is re quired to be detained the order of detention is not rendered invalid or illegal in the absence of such specification in the Detention order
843E Commissioner of Police  Anr
vs Gurbux Anandram Birya ni 1988 Supp
SCC 568 Over ruled
Ashok Kumar vs Delhi Administration  Ors  Ujagar Singh vs The State of Punjab  Suna Ullah Butt vs State of Jammu  Kashmir   Suresh Bhojraj Chelani vs State of Maharashtra and AK Roy vs Union of India  Ors   approved
2 In a case where the detaining authority may not be present at the place of the incident or the occurrence he has to form the requisite opinion on the basis of materials placed before him by the sponsoring authority but where the detaining authority was himself present at the scene of occurrence he should have relied more on his own knowledge and observation then on the report of the sponsoring author ity
853H 854A In the instant case the detaining authority though present at the scene of occurrence does not support the incident as presented to him by the sponsoring authority and yet he issued the detention order on the report of sponsoring authority
In these circumstances there was nonapplication of mind by the detaining authority in making the order of detention
854B Dr Ram Manohar Lohia vs State of Bihar   Pushkar Mukheree  Ors
vs The State of West Bengal   Shyamal Chakraborty vs Commissioner of Police Calcutta  Anr   Arun Ghosh vs State of West Bengal  Nagendra Nath Mondal vs State of West Bengal   Sudhir Kumar Saha vs Commissioner of Police Calcutta   SK Kedar vs State of West Bengal  Kanu Biswas vs State of West Bengal   Kishori Mohan vs State of West Bengal  Amiya Kumar Karmakar vs State of West Bengal and Manu Bhusan Roy Prodhan vs State of West Bengal  Ors
   referred to 838