Introduction
In the instances wherein the employer discharges an employee while there is a pending industrial dispute, it is mandatory to adhere to specific requirements in the form of the payment or promise of one month’s wages along with the approval from the competent authority under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as Act). However, the question arises for instances wherein the wrongful conduct of the worker with respect to technical defect in the calculation of the wages is proved.
This issue was raised before the Hon’ble Bombay High Court in the case of Dr. Satish Bhide vs. Ravindra M. Pande, in which the Hon’ble HC clarified that Section 33(2)(b) is meant to prevent the arbitrary termination of employment by the employers but not as an escape route for reinstating guilty employees of grave misconduct such as corruption and forgery.
Background of the Case
The accused had been working as a Clerk in the Octroi Department of the Municipal Corporation of Greater Mumbai since October 24, 1996. Chargesheet was filed against him for conspiring with other employees of the Corporation, an Octroi agency employee, employees of a private construction firm and a bank account holder in defrauding an Octroi refund cheque in the sum of Rs. 4,10,885 in favor of an altogether different party. This cheque was received from the Office of the Deputy Chief Accountant (Octroi) and deposited on the very day in a third-party bank account from where Rs. 1,50,000 was withdrawn and handed over to the respondent. It was discovered only when the concerned party who had to receive the refund approached the corporation for the refund.
Following a departmental inquiry conducted by the Enquiry Officer in which the accused also took part, the Enquiry Officer held him guilty of the charges and imposed a penalty of dismissal. Upon receiving his show cause notice and his response thereto, the Disciplinary Authority ordered him to be dismissed.
The Corporation made an application for the same matter under Section 33(2)(b) of the Act. Further, an attempt was made to issue the removal order along with one month’s wages amounting to Rs. 14,468 to the respondent personally, but the latter did not accept either of the two. Later, the removal order was sent by registered post while Rs. 14,468 was sent to him through money order.
Subsequently, the Industrial Tribunal found the disciplinary proceeding as a fair process and the accused being guilty of the misconduct charged against him. However, it did not approve the approval application of the Corporation on the ground that there was no compliance with Section 33(2)(b) as deductions such as provident fund, LIC premium and income tax were deducted from the salary of November 2006 along with the annual increment of the accused employee. Furthermore, even the review application of the Corporation, which had sought the attention of the Tribunal that a sum of Rs. 14,468 had been paid separately as per Section 33(2)(b), was also rejected for the lack of jurisdiction to review its order on merits.
Decision of the Bombay High Court
The writ petition was allowed by the HC, setting aside the orders of the Industrial Tribunal.
The Court observed that there was a basic error on the part of the Tribunal in looking into the remuneration for the month of November 2006 rather than going into the issue about the separate payment of Rs. 14,468 being offered in connection with Section 33(2)(b). Wages normally received by the worker in the month of dismissal cannot be considered as payment referred to in the proviso to Section 33(2)(b), which requires that one more month’s wage should be paid apart from the regular remuneration. It has been pleaded by the Corporation and proved with the help of the postal receipt of money order that the amount was offered personally and then sent through money order, and nothing denying this fact was put forth by the respondent.
Additionally, Section 33(2)(b) was not to be construed too technically. In spite of the assumption of a slight deficiency in the calculation of the wages of the workmen, the Court held that this would not lead to automatic nullification of the dismissal of a workman who was guilty of serious misconduct. As per the judgment of the Court, once the employer pleads and establishes payment of the sum towards the one month’s wages, it becomes the onus of the employee to prove that this does not amount to full wages, which in the instant case had not been pleaded and proved by the respondent for the particular amount of Rs. 14,468.
It was further observed by the Court that any controversy regarding non-payment of increments or deductions amounted to a separate service dispute and not be equated with Section 33(2)(b) requirement of the employer. It simply calls for payment of ordinary wages and its purpose was procedural protection to the workman.
Outcome for the Employers
This judgment works as a guidance to employers facing disciplinary issues while an industrial dispute is pending. It further lays emphasis on a strict compliance with the provisions of the Act. Employers who make or send one month’s pay concurrently with the dismissal order and approval application are substantially complying with the statutory obligation. Such minor computational disputes should not invalidate disciplinary action.
The Court has laid emphasis on documentary evidence and therefore, it will be imperative for employers to have documentary proof of offering or sending one month’s wages. Such evidence includes copies of dismissal orders, money orders, receipts from post offices, and approval applications.
Additionally, disputes on service will be separate from those on approval. Issues arising out of increment, allowance, and salary computations will generally be settled separately from Section 33(2)(b). Court has further observed that although procedural requirements must be adhered to, they cannot be given an interpretation that will enable employees found to be guilty of grave acts of corruption, fraud, or forgery to reinstate themselves purely by virtue of miscalculations.
The Industrial Tribunal ought to be pragmatic in its approach. If there is a genuine shortfall in the remuneration being paid to the employee, the correct remedy might be for the employer to pay the difference.
AMLEGALS Remarks
This judgment reiterates the basic principle in industrial law which states that procedural protections are intended for ensuring justice in the procedure of disciplinary action and not for frustrating it using technicalities.
The judgment maintains a balance between the interests of both the employee and the employer. Though it is reiterated that compliance with Section 33(2)(b) is necessary, the Hon’ble Bombay HC made clear that the question of compliance with this section had to be viewed pragmatically and with regard to the objective of this section itself. It has been clarified that a strict and technical construction of the law would make it impossible for any employer to impose any form of discipline on employees because an employee indulging in gross misconduct would escape the punishment of his act by raising procedural objections.
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