SBCWP828/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.828/1997 National Engineering Industries Limited, Khatipura Road, Jaipur Vs. Chhotu Ram and Another Date of Order ::: 10th March, 2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri A.K. Sharma, Counsel for petitioner Shri Mukesh Agarwal, Counsel for workman- respondent #### //Reportable// By the Court:- Petitioner National Engineering Industries Limited, Khatipura Road, Jaipur, has approached this Court by way of present writ petition assailing the order dated 26.11.1996 passed by Industrial Tribunal, Jaipur, whereby its application filed under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short, 'the ID Act') seeking approval of removal of respondent-workman Chhotu Ram, was rejected. Factual matrix of the case is that petitioner filed an application under Section 33 (2)(b) of the ID Act before Industrial Tribunal, Jaipur, inter-alia, with pleading that respondent-workman Chhotu Ram was served with a charge-sheet on 04.04.1990 for remaining SBCWP828/1997 // 2 // willfully absent from 1st to 4th, 6th to 9th of November, 1989, on 13th, 15th, 20th to 23rd and 27th to 30th of December, 1989, for whole of the month of January, 1990, on 1st, 2nd, 12th to 16th, 19th to 24th and 26th to 28th of February, 1990 and on 1st to 15th, 17, 19th to 24th and 25th of March, 1990. Earlier also he was given warning and on three occasions was placed under suspension on account of willful absence respectively for the period of 4, 7 and 10 days. Willful absence is described as misconduct as per Schedule D-2 of the Standing Orders. Despite having received charge-sheet on 15th April, 1990, respondent-workman did not file any reply thereto. The factory management sent to him a notice dated 19th April, 1990 fixing 24th April, 1990 as the date on which proceedings of enquiry were to be held. Place where the enquiry proceeding was to be held was also indicated therein and it was also informed that enquiry officer had been appointed. The respondent personally received such notice on 22.04.1990, but even then he did not appear in enquiry proceedings on 24th April, 1990. The enquiry was ordered to proceed ex-parte against him and 26th June, 1990 was fixed therefor. A separate notice was issued by registered post about the next date. Envelope containing notice was received SBCWP828/1997 // 3 // unserved with the remark that addressee was not found at the address. When respondent-workman failed to appear before enquiry officer on 26th June, 1990, ex-parte enquiry against him was concluded and enquiry officer submitted his report on 27th June, 1990 wherein all the charges were found proved against him. In the application filed by the petitioner under Section 33(2)(b) it was submitted that domestic enquiry was held in fair and proper manner and, as per provisions of clause (b) of Section 33(2) of the ID Act, Cheque No.984244, representing one month's wages was sent to respondent-workman by post, thus the payment was tendered. It was therefore prayed that removal of respondent be approved. Respondent-workman contested application and filed reply thereto. In reply, it was stated that he was a semi-literate person. He denied that he was served with charge-sheet on 04.04.1990 and that notice of that charge-sheet was given to him on 06.06.1990. He also denied having received notice of enquiry proceedings on 22.06.1990. It was denied that respondent was habitual of remaining absent. On certain dates when he fell sick he could not attend duty but while joining back he produced medical certificate. It was stated that if notice dated SBCWP828/1997 // 4 // 19.04.1990 was served upon respondent on 22.04.1990, as alleged by petitioner, there was no justification for enquiry officer to proceed ex-parte against him, and when on 24.04.1990 respondent was not available and 26.06.1990 was fixed as the next date he should have been given notice for said date but no such notice was given. It was submitted that assertion made by petitioner in Para 11 of application that payment equivalent to one month wages was made to respondent in terms of Section 33(2)(b) of the Act, was factually incorrect. No such payment was ever made. Even date of Cheque has not been indicated. The amount for which Cheque was given has also not been indicated. Respondent prayed for dismissal of application. The Industrial Tribunal, vide its order dated 13th July, 1990, held domestic enquiry to be fair and reasonable. Finally the Tribunal by impugned order dated 26.11.1996 rejected application on the ground that petitioner did not comply with requirement of paying one month's wages in terms of Section 33(2)(b) of the Act. Hence this writ petition. Shri A.K. Sharma, learned counsel for the petitioner, has argued that impugned order suffers from errors apparent on the face of SBCWP828/1997 // 5 // record inasmuch as finding of Tribunal that there is no material on record to show that order of dismissal and one month's wages were sent to respondent-workman on 16.10.1990 itself is based on misreading of evidence as well as non-consideration of relevant material produced by respondent-workman. Learned counsel in this connection referred to affidavit filed by Shakal Dev Prasad Singh, Assistant Time Keeper of the Company, wherein it was stated that dismissal order was sent to respondent-workman through registered letter on 16.10.1990 vide Receipt No.1818. It was submitted that envelope containing registered letter was returned back to petitioner by postal authority on 26.10.1990 with the endorsement that efforts were made by postman to deliver said letter on 17th, 19th, 20th, 23rd and 24th of October, 1990 but addressee was not available and, therefore, it could not be delivered. Envelope in original was submitted before Tribunal in evidence. Therefore, substantial compliance of sub-section (2) of Section 33 of the ID Act was made. Envelope, which was produced, contained postal stamp and endorsement made by postman, therefore, there was sufficient compliance. Shri A.K. Sharma, learned counsel for petitioner submitted that it was not mandatory SBCWP828/1997 // 6 // requirement of law that payment should have actually been made. If payment was tendered or offered, that would be sufficient compliance of Section 33(2)(b) of the ID Act. It was argued that Tribunal was fully justified in applying ratio of the judgment of Supreme Court in Bharat Electronics Limited v. Industrial Tribunal – (1990) 2 SCC 314, and that judgment was rendered in the context of its own peculiar facts wherein issue was whether payment of wages made to workman was towards one month's wages following the date of discharge or dismissal. It was in that context that their Lordship held that burden to prove it was on management. No such case was set up by respondent before Tribunal that payment that was offered to him was short or that it did not represent the full wages of one month. Relying on judgment of the Supreme Court in Calcutta State Transport Corporation Vs. Md. Noor Alam – (1974) 3 SCC 70, learned counsel argued that it was not necessary for management to take all three steps envisaged in Section 33(2)(b) of the ID Act, namely, (i) to make payment for one month's salary, (ii) to serve copy of dismissal or discharge and (iii) to file application seeking approval of removal. Such actions have to be taken simultaneously in the sense that they form part of the same SBCWP828/1997 // 7 // transaction. Learned counsel for petitioner further argued that respondent-workman was earlier punished on four occasions by orders dated 29.10.1984, 22.04.1985, 09.09.1986 and 10.01.1990, whereby he was suspended respectively for 4, 6 and 10 days time, each time in lieu of removal. Absenting from duties willfully again clearly shows that he was habitual in remaining absent and thus it was a fit case in which approval of removal should have been granted. Shri Mukesh Agarwal, learned counsel appearing for respondent-workman, opposed writ petition and submitted that dismissal order and one month's wages were neither given to respondent nor were offered. In Para 11 of application filed before Industrial Tribunal, petitioner has not mentioned the fact that dismissal order and Cheque were sent to respondent-workman by registered post, not even the name of the Post Office has been given. Petitioner miserably failed to prove this fact before Tribunal that alleged letter was ever sent to respondent by registered post. Petitioner neither produced postman concerned who allegedly made endorsement on envelope nor did they procure any certificate of proof in SBCWP828/1997 // 8 // this regard from the post office concerned. Petitioner also did not even prove that the alleged registered envelope was sent to respondent-workman at the address mentioned in its office record. The alleged affidavit of Shakal Dev Prasad Singh was filed six years after filing of application. The story about dismissal order and Cheque representing wages of one month was subsequently concocted by petitioner. Learned counsel, in support of his argument, relied on Division Bench decision of this Court in Rajasthan State Road Transport Corporation Vs. Sohan Lal and Another – 1996 (74) FLR 2532. Shri A.K. Sharma, learned counsel for petitioner, rejoined and submitted that petitioner filed rejoinder to reply of respondent on 30.10.1992 before the Tribunal. In Para 11 of that rejoinder, the amount of one month wages was stated to be Rs.1804.88p. and it was clearly asserted that same was sent to respondent-workman by registered post on his last known address on 16.10.1990. Whether or not to receive Cheque, would be depended on the will of the workman whose presence could not be procured by management for obvious reason because he had been absenting even in disciplinary proceedings which had to conduct SBCWP828/1997 // 9 // ex-pate against him. It is, therefore, prayed that writ petition may be allowed in the terms prayed for. I have given my anxious consideration to rival submissions and perused the material available on the record. What is to be decided in present case is whether learned Tribunal was justified in holding that petitioner-management failed to prove before Labour Court that neither the dismissal order was served on respondent-workman nor one month's wages was paid to him on 16.10.1990. Judgment of the Supreme Court in Calcutta State Transport Corporation Vs. Md. Noor Alam (supra) relied by learned counsel for petitioner is an authority for proposition that passing an order of removal, payment of one month's wages and filing of application need not be done on the same date but it should be borne out from the facts that they were part of same transaction. That was a case in which order of removal was passed on 18.05.1967, notice dated 22.06.1967 was served on workman on 26.06.1967 that he was dismissed from 01.07.1967, one month's wages remitted to workman by money order were received by him on 01.07.1967 and an application for approval of dismissal order was made on 03.07.1967. The Supreme Court held that SBCWP828/1997 // 10 // conduct of employee that has to be considered on the point to find out whether dismissal or discharge, payment of wages and making of application for approval, form part of same transaction. The wages were received by workman on 01.07.1963 when removal order was to come into effect. It was wholly immaterial as to when money order was sent. In M/s. Podar Mills Limited Vs. Bhagwan Singh and Another – (1974) 3 SCC 157, workman was dismissed by appellant Company on 04.01.1968 and dismissal order was sent to him by registered post which was returned undelivered on 08.01.1968 on which date an application for approval was made to Industrial Tribunal. The Industrial Tribunal held that dismissal order became effective when posted and the approval application dated 08.01.1968 was not simultaneous and therefore dismissed the application. An appeal was filed before the Supreme Court by way of Special Leave contending that workman had come to the factory on 08.01.1968 when dismissal order was served upon him. It was held that if the workman was served with dismissal order and he received wages, there was no reason why this should not be mentioned in application filed before Tribunal and that there is admission only to the effect that he was served with the order of SBCWP828/1997 // 11 // dismissal but no admission that he was paid wages on the said date and such an application could not be relied on to validate the approval. In Indian Oxygen Limited Vs. Narayana Bhoumik – 1968 (17) FLR (SC) 214, it was held by their Lordships that condition as to payment of one month's wages in the proviso does not mean that the wages have to be actually paid; if the wages are tendered or offered, such a tender or offer would be sufficient compliance for the purpose of Section 33(2)(b) of the ID Act. In that case, it was held that if appellant Company sent one month's wages by money order with a registered letter containing removal order of respondent at correct address which respondent workman managed not to receive, it must be accepted that appellant tendered one month's wages to him and that all it could do to comply with the condition laid down in the said proviso. In the case of The Management of Delhi Transport Undertaking v. The Industrial Tribunal, Delhi & Another – AIR 1965 SC 1503, the Supreme Court held that proviso to Section 33 does not mean that the wages for one month would have to be actually paid because in many cases the employer can only tender the amount before dismissal but cannot force the employee SBCWP828/1997 // 12 // to receive the payment before dismissal becomes effective. The making of tender of the amount before the order of dismissal becomes effective would be sufficient compliance in this respect. In P.H. Kalyani Vs. M/s Air France, Calcutta – AIR 1963 SC 1756, a Constitution Bench of the Supreme Court held that proviso to Section 33 (2)(b) of the ID Act contemplates three things, namely,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 the action under Section 33(2) of the ID Act by dismissing or discharging an employee, should immediately pay him or offer to pay him, wages for one month and also make an application to the tribunal for approval at the same time. The employer's conduct should show that the three things contemplated under the proviso, are part of the same transaction and 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. In the present case, it is not that there were no pleadings with regard to payment of one month's wages to respondent-workman. In Para 11 SBCWP828/1997 // 13 // of application, petitioner had clearly mentioned the Cheque Number and, when respondent-workman disputed this fact in reply, it filed a detailed rejoinder giving particulars of Cheque, the amount of wages is also mentioned to be Rs.1804.88p., and stated that it was sent to workman at his last known address. Petitioner did not plead those facts by way of afterthought but at the first available opportunity and sufficiently proved them. Whether or not to receive the Cheque and envelope containing such Cheque and registered letter containing such removal order and Cheque, was upto respondent- workman as observed by the Supreme Court, in Para 11 of its judgment in M/s Poddar's Mills Limited (Supra). These averments were fully proved from the statement of Shakal Dev Prasad Singh, who was produced as a witness by petitioner management, who stated that he sent the removal order and Cheque representing one month's wages by registered AD to respondent but also stated that such AD was sent through RMS post office and that the Cheque and letter had to be sent by registered post because respondent workman was absent from duties in those days. The fact that the affidavit was filed and further that the envelope contained the stamp of the post office which is clearly legible and SBCWP828/1997 // 14 // also the endorsement made thereupon by the postman that despite his visting the given address on 17th, 19th, 20th 23rd and 24th of October, 1990, the addressee was not found available and thereafter the envelope was received back by petitioner on 26.10.1990. It is no doubt true that had petitioner produced concerned postman or procured proof of this fact from post office concerned, that would have further strengthen its case but in the face of all this evidence on record it cannot be said that there was no evidence to prove this stand that removal order and Cheque was tendered to the respondent by registered letter, which was dispatched on 16.10.1990, the date on which the removal order was passed and application for its approval was made to Industrial Tribunal. The said witness Shakal Dev Prasad Singh was not subjected to cross-examination by respondent workman. It is, therefore, amply proved from the conduct of petitioner that there was sufficient compliance of all the three requirements of proviso to Section 33(2)(b) of the Act. In the result, this writ petition deserves to be allowed and it is accordingly allowed. The impugned order passed by the Industrial Tribunal dated 26.11.1996 rejecting the application under Section 33(2)(b) of the ID SBCWP828/1997 // 15 // Act is set-aside. The application filed by petitioner before Industrial Tribunal is allowed and the removal of the respondent workman is approved. He shall however be entitled to collect one month's wages from the petitioner. No order as to costs. (Mohammad Rafiq) J. //Jaiman//