JUDGMENT
Mukul Mudgal, J.
1. This Letters Patent Appeal is directed against the order dated 10.2.2004 passed by the learned Single Judge dismissing the Writ Petition (C) No. 4251/1998. LPA No. 553/2004 is directed against another order dated 10.2.2004 passed by the learned Single Judge allowing the Writ Petition (C) No. 4614/1997 filed by the respondent workman (Hansraj-respondent No. 2 in LPA No. 551/2004). By this common judgment both the appeals are being disposed of.
2. The brief facts leading to filing of these appeals are that the respondent workman (Hansraj) was employed as Conductor with the appellant on 10.3.83. He was served with charge-sheet on 17.7.1992 and removed from service on 8.7.1994 by remitting one month’s wages by way of money order in terms of Section 33(2)(b) of the Industrial Disputes Act, 1947 (I.D. Act). Thereupon, the appellant filed an application being O.P. No. 116/94 before the Industrial Tribunal under Section 33(2)(b) of the I.D. Act seeking approval of the order dated 8.7.1994. The Tribunal by its order dated 26.5.1997 dismissed the said application on the ground that a sum of Rs. 20/-, constituting the ‘special pay’ given as an incentive to the respondent workman for having undergone sterilization, was not included in the one months’ wages paid by the appellant to the respondent workman in terms of Section 33(2)(b) of the I.D. Act. Following the decision of the Hon’ble Supreme Court in Bharat Electronics Ltd. v. Industrial Tribunal 1990 (II) LLJ 32, the Tribunal held that the ‘special pay’ being part of wages for the purposes of Section 33(2)(b) of the I.D. Act, ought to have been included wages payable and since the appellant had failed to do so it had not complied with the requirements of Section 33(2)(b) of the I. D. Act.
3. Thereafter the respondent workman filed Writ Petition (C) No. 4614/1997 in this Court seeking a direction to the appellant to take him back into service with full back wages. The appellant, on the other hand, filed Writ Petition (C) No. 4251/98 challenging the order dated 26.5.1997 of the Tribunal before the learned Single Judge. It was submitted on behalf of the appellant herein before the learned Single Judge that there was in fact no need for the appellant to have approached the Tribunal with an application under Section 33(2)(b) of the I.D. Act since in fact no industrial dispute was pending on the date of the order removing the respondent from service. It was submitted that the said application was filed only by way of abundant caution. After recording this submission, the following order came to be passed by the learned Single Judge on 10.2.2004 dismissing the appellant’s Writ Petition (C) No. 4251/1991:
The petitioner is aggrieved by an order passed under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (“the Act” for short) whereby approval of its decision dated 8th July, 1994 was quashed.
Learned counsel for the petitioner says that it was not necessary for the petitioner to have moved this application under Section 33(2)(b) of the Act because it has been mentioned in the grounds of the writ petition that there was no industrial dispute pending.
In view of the contention of learned Counsel for the petitioner, it appears that the entire excise taken by the petitioner was totally infructuous on the submissions made by learned Counsel. Consequently, the application filed by the petitioner under Section 33(2)(b) of the Industrial Disputes Act is quashed.
The Respondent will be entitled to the benefit and consequences thereof.
The writ petition is dismissed with costs quantified to Rs. 10,000/-
CM No. 8787/98, CM 7933/01, CM 10985/2001, CM 12275/2001 & CM 13109/2003 also stand disposed of.
The amount deposited in the Registry of this Court be handed over to the Respondent/workman.
Following the above order, the learned Single Judge allowed Writ Petition (C) No. 4614/97 filed by the workman and directed that he will be entitled to benefits as prayed for.
4. Mr. Vibhu Shankar, learned Counsel appearing for the appellant, submits that the learned Single Judge, while exercising the jurisdiction under Article 226 of the Constitution, could not possibly have quashed the appellant’s application before the Tribunal. He submits that the impugned order is anomalous in as much as the learned Single Judge quashed the appellant’s application before the Tribunal as well as its writ petition. The consequence of the quashing of the appellant’s application before the Tribunal according to him, would be that the order dated 8.7.1994 terminating the services of the respondent workman would be valid and enforceable as such.
5. We are afraid that interpretation sought to be placed by the learned Counsel on the impugned order of the learned Single Judge is not acceptable. The true purport of the impugned order appears to be that the learned Single Judge was upholding the order dated 26.5.1997 passed by the Tribunal and rejecting the appellant’s writ petition challenging the said order. That is why the learned Single Judge also allowed the workman’s writ petition directing that he would be entitled to all consequential benefits.
6. In any event, we have heard the submissions of the learned Counsel for the appellant on the merits of the matter. Relying on certain observations of the Hon’ble Supreme Court in the Bharat Electronics Ltd. (supra), he submits that the non-inclusion of the ‘special pay’ in the one month’s wages paid to the respondent/workman would not constitute contravention of Section 33(b)(c) of the I.D. Act. In particular, he relies on the following passage in the said decision:
10. 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 work man 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 33(2)(b) mandates that unless the workman is paid wages for one month and an application as contemplated is made by the employer 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 Syndicate Bank Limited 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.” One month’s wages as thought and provided to be given are conceptually for the month to 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 dismissal. If the converse is read in the context of the proviso to Section 33(2)(b), it inevitably would have to be read as double the wages as earned in the 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 interpretation 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 Podar Mills Ltd. v. Bhagwan Singh ruled that the date of dismissal under Section 33(2)(b) is the date when the approval application is filed after dismissal. With effect from that date, the occasion to earn night shift allowance cannot, and will not, arise.
He submits that since in any event the workman would not be entitled to the ‘special pay’ in the month following the termination of his services, there was no illegality committed in withholding that component while making payment of the month’s wages in terms of Section 33(2)(b) of the I.D. Act.
7. We are unable to agree with the submission of the learned Counsel for the appellant. The following further passages from the same decision make it clear that the nature of the allowances, i.e., withholding will have to be examined on the facts of each case in order to determine whether it constitutes an integral part of the wages payable to the workman. This is apparent from the following paragraphs of the said decision:
12 The above extract and more so the emphasised words are significant to convey that the ear allowance and the benefits of free telephone and newspapers were held allowances includible in wages in the 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.
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17. Before concluding, the judgment the observations in Syndicate Bank’s case AIR 1968 SC 231 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 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’s case AIR 1970 SC 426 (supra) and adding something ourselves thereto.
8. In light of the above settled position, we are of the view that in the instant case the ‘special pay’ granted to the respondent workman for undergoing the sterilization operation was integral to his wages and could not have been withheld while paying one month’s wages to him in terms of Section 33(2)(b) of the I.D. Act. The argument that the workman need not be paid ‘special pay’ after the termination, and therefore, he was only paid one month’s wages minus the special pay needs only to be noticed to be rejected. If such an interpretation were to be adopted, then the logical consequence would be that the workman was not even entitled to one month’s pay after the termination. What Section 33(2)(b) of the I.D. Act does is to introduce a legal fiction requiring the payment of wages, for one more month after the termination, calculated on the basis of what the workman was entitled to on the date of his termination. On this basis, it can hardly be disputed that the workman in the instant case was also entitled to the ‘special pay’ as part of the monthly wages. It is really the principle that matters not so much the quantum involved.
9. We have examined the impugned order dated 26.5.1992 of the Tribunal. We are of the view that the Tribunal took the correct view in holding that the withholding of the special pay amounted to a contravention of Section 33(2)(b) of the I.D. Act. The learned Tribunal has correctly applied the decision of the Hon’ble Supreme Court in Bharat Electronics Ltd. (supra) to arrive at such a conclusion.
10. In any event, we find that the very issue that arises in the present appeal was the subject matter of the order dated 17.5.2004 by the Division Bench of this Court in WP (C) 530/2004 (DTC v. Presiding Officer). In the said order this Court held as follows:
We are required to answer the question whether the workman was entitled to get Rs. 20/- by way of special pay in regular course. can it be said that it was not necessary to include it in wages in view of the fact that the respondent workman was entitled to get Rs. 20/- by way of a policy every month? Unlike in the case of special allowance for “night shift”, the employee in this case had already done what he had to do be to be eligible for the special pay. It had already assumed the character of wages and no further act was required on his part. It is in this view of these facts that we are of the opinion that no error has been committed by the learned Single Judge and therefore, this appeal is required to be dismissed.
11. We are informed that the above order of the Division Bench has since been implemented and has therefore attained finality. We respectfully agree with the said reasoning and are of the view that it covers the present case on all fours. Therefore, we find no ground to interfere with the impugned order of the learned Single Judge.
12. However, in the facts and circumstances of the case, we think it appropriate to modify the impugned order only to the extent it requires the appellant to pay costs of Rs. 10,000/-. We direct that the said costs be waived. Subject to this modification the appeal is dismissed. All pending applications stand disposed of.