=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.621 NO.621 NO.621 OF 2004 OF 2004 OF 2004 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.1116 OF 2004 NO.1116 OF 2004 NO.1116 OF 2004 Libio F. Colaco ...Appellant v/s Air India Ltd. and anr. ...Respondents Mr N.M. Ganguli for Appellant. Mr S.K. Talsania, Sr. Advocate with Mr S.K. Chari i/b M/s M.V. Kini and Co. for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 31ST MARCH 2009 31ST MARCH 2009 31ST MARCH 2009 =2= P.C. :- 1. By this appeal, the appellant challenges the order dated 9th July 2004 passed by the learned single Judge of this Court in writ petition No.1116 of 2004. The facts which are relevant for deciding this appeal are that the appellant was in service of the respondent - Air India Ltd. The departmental enquiry was initiated against him. Because there was a reference pending before the Industrial Tribunal, an application under section 33 of the Industrial Disputes Act 1947 was made seeking approval to the dismissal order issued against the appellant. That application was opposed by the appellant. One of the grounds on which the application was opposed is that the appellant has not been paid wages as per the requirement of section 33(2)(b). The Industrial Tribunal decided the application by its judgment dated 24th December 2003 and the Industrial Tribunal came to the conclusion that condition of payment of wages included in section 33(2)(b) of the said Act has not been complied with by the respondents inasmuch as increments that should have been released to the appellant from 1991 onwards have not been paid. Because of that, the payment was short by Rs.1769/- per month and therefore the Industrial Tribunal declined to =3= approve the order of dismissal. That order was challenged before the learned Single Judge of this Court in writ petition No.1116 of 2004. The learned Single Judge of this Court by his order dated 9th July 2004 held that the Industrial Tribunal was not justified in going into the question whether there is a shortfall in wages paid to the appellant. The learned Single Judge has held that even assuming that the increments were withheld, in the absence of producing any evidence by the appellant, the withholding of the increments cannot be termed as deliberate act. The learned Single Judge therefore allowed the petition, set aside the order passed by the Industrial Tribunal and remanded the application back to the Tribunal for its consideration on merits. The present appeal is against that order of the learned Single Judge. 2. The learned counsel appearing for appellant submits that it is now common ground that increments to which the appellant was entitled were not released to the appellant and therefore, the amount that was paid to the appellant alongwith the dismissal order cannot be termed as wages within the meaning of the Act. The learned counsel therefore relying on the judgment of the learned Single Judge of Karnataka High Court in the case of Karnataka Agro Industries Corporation Ltd. v/s Presiding Officer, Industrial Tribunal, Bangalore and =4= anr., reported in 1984 Lab.I.C. 1358 and the judgment of the Division Bench of this Court in the case of Airoplast Pvt.Ltd. v/s D.N. Gawade and others, reported in 1995 All I.I.J. 571 submits that if it is established that the wages that were tendered were short, then no approval can be granted because of non-compliance of the provisions of section 33(2)(b) of the said Act. The learned counsel also relies on the Constitution Bench judgment of the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v/s Shri Ram Gopal Sharma and ors., reported in 2002(1) CLR 789 to contend that the conditions contained in section 33(2)(b) of the said Act are mandatory in nature and therefore strict compliance thereof is necessary. On the other hand, the learned counsel appearing for respondents submits that admittedly the appellant was placed under suspension and departmental enquiry was initiated. During the period of suspension, he was initially paid 50 % of the wages and thereafter 75 % of the wages as subsistance allowance. He was reinstated in service on 2nd September 1991. At that time, a letter was written to him dated 20th September 1991 and he was informed that on his reinstatement for the purpose of fixation of his pay, his basic salary would be taken as Rs.1805/- and he did not raise any objection. He was being paid on the basis of that basic salary till there was revision of wages in the year =5= 1996. When the wages were revised, in the case of appellant, they were revised on the basis of basic pay as Rs.1805/-. From 1991 till 1997 i.e. when he filed his reply before the Industrial Tribunal, the appellant at no point of time protested in writing to the employer regarding non-release of his increments to which he was entitled. The learned counsel submits that it is an admitted position that alongwith dismissal order, he was paid the same amount which he was receiving as monthly wages during the months prior to the issuance of the dismissal order. The learned counsel further pointed out that in the written statement, though the grievance was made that the dismissal order is invalid because the payment of wages made to him is short, it was not even indicated as to on what count the appellant claims that the payment is short. Therefore, an objection was raised that in the absence of any pleading, evidence cannot be laid. The learned counsel submits that had it been pointed out in the written statement that the appellant claims that payment of wages is short because of non-release of increments, the respondents could have deposited the amount in the Industrial Tribunal pending adjudication of the amount that the appellant is really entitled. The learned counsel submits that short payment was made to the appellant not deliberately but it was a bonafide mistake committed by the employer and therefore it will not be fair to blame the employer. =6= The learned counsel relies on the judgment of the Supreme Court in the case of Bharat Electronics Ltd. v/s Industrial Tribunal, Karnataka, Bangalore and anr., reported in (1990) 2 SCC 314 and the judgment of the Supreme Court in the case of S. Ganapathy and ors. v/s Air India and anr., reported in (1993) 3 SCC 429. The learned counsel submits that the law laid down by the Supreme Court in these two judgments is that if there is short payment per se, that does not vitiate the order. If the short payment was not deliberately made or it was a bonafide mistake, the short payment of wages will not be enough to deny approval. Therefore, according to the learned counsel, there is no room to interfere with the order of the learned Single Judge. 3. Now, if we go through the record in the light of these rival submissions, it is clear that the appellant’s suspension was revoked in the month of September 1991. By letter dated 20th September 1991, he was informed that his basic salary on the revocation of suspension would be taken as Rs.1805/-. The appellant did not object to this. In the absence of any objection, the respondents continued to draw payment of the appellant from month to month on the basis of the same basic salary. As the departmental enquiry was pending, the employer did not release the increments and the appellant at no point of time raised any objection =7= in writing to the withholding of the increments. The appellant has also not been able to prove that he has raised any objection. Thus, without there being any written or oral objection, the employer continued to pay wages to the employee as per letter dated 20th September 1991. When the revision of wages was done in the year 1996, again with due intimation to the employee for the purpose of revision of wages, the same basic salary was taken into consideration. Again the appellant did not protest. It is also an admitted position that for complying with the requirement of section 33(2)(b) of the said Act, the same amount of wages was tendered which was paid to the appellant employee in the previous month. It is therefore clear that the learned Single Judge was perfectly justified in holding that making short payment was not deliberate act of the employer but it was as a result of bonafide mistake. The question whether mere shortfall in the amount to be tendered for complying with the requirement of section 33(2)(b) of the said Act can be fatal was considered by the Supreme Court in its judgment in the case of Bharat Electronics Ltd. The Supreme Court held that the requirement of tendering of wages is included in section 33(2)(b) of the Act to soften the rigour of unemployment that will have to be faced by the workman against whom an order of discharge or dismissal has been passed and if that is the purpose, then the mere fact that the payment =8= tendered is short because of some bonafide mistake will not amount to non-compliance with the requirement of the provisions. The observations of the Supreme Court in this regard found in paragraph 17 are relevant, they read as under :- "17. Before concluding the judgment the observations in Syndicate Bank case aforequoted, are again to be borne in mind. In the facts and circumstances of this case the management paid to the workman a sum of Rs.607.90 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 softening of such rigour is thought stirring. Viewed in the context, 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 paisa less than the month’s wages due under section 33(2)(b), 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 33(2)(b) represented full wages =9= of the month following the date of discharge or dismissal, as conceived of in the provision and as interpreted by us in entwining the ratios in Bennett Coleman case (supra) and Dilbagh Rai Jarry case and adding something ourselves thereto." . The judgment of the Supreme Court in Bharat Electronics Ltd.’s case was taken into consideration by the Supreme Court while deciding the case of S. Ganapathy and others referred to above and the Supreme Court in that judgment has reiterated the view taken by it in the case of Bharat Electronics Ltd. The Supreme Court in paragraph 8 has reiterated the purpose for which according to the Supreme Court the requirement of tendering of wages is incorporated in section 33(2(b) of the said Act. Paragraph 8 reads as under :- "8. The proviso to section 33(2)(b) mandates two steps, that unless the workman is paid wages for one month and an application as contemplated is made by the employer to the Tribunal for approval of his action, no such workman can be discharged or dismissed. The intention 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 =10= Syndicate Bank Ltd. v. Ram Nath Bhat was ’to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal has been passed." . The Supreme Court has specifically observed that if deduction made from the wages to which employee is entitled is deliberate and not because of bonafide mistake, then it is fatal. The Supreme Court has quoted observations from its judgment in the case of Bharat Electronics Ltd. in paragraph 14 of that judgment. Perusal of the judgment of the Constitution Bench in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. shows that the law laid down by the Supreme Court in S. Ganapathy’s case has ben approved by the Constitution Bench. The Constitution Bench while holding that the requirements included in section 33(2)(b) are mandatory has held that they are essentially to be complied with and while considering the question whether the requirements are essentially complied with or not, the Court has to consider whether the employer is trying to take advantage of its own wrong. In other words, if short payment because of bonafide mistake is made, then it will not vitiate the action. So far as the judgment of the Division Bench of this Court is concerned, it appears that in that judgment also, the Division Bench has considered that the bonafides of the employer are =11= important. In any case, the law laid down by the Supreme Court in the case of Bharat Electronics Ltd., which is a judgment subsequent to the judgment of the Division Bench, it is not necessary for us to consider the judgment of the Division Bench of this Court. Taking overall view of the matter, in our opinion, no exception can be taken to the view taken by the learned Single Judge. Appeal fails and is dismissed with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)