Allowed

M/S Permanet Hangets Ltd. v. Shri Gajanan L.Borkar and Anr.

Bombay HC13 Dec 2006APP/149/2004

Case brief

AI extract

What is this about?

The High Court set aside lower orders rejecting an application for approval of dismissal under Section 33(2)(b) of the Industrial Disputes Act. Due to lack of evidence on payment of wages, the Court restored the matter to the Industrial Tribunal for a fresh decision after recording evidence from both parties.

What did the court decide?

The appeal was allowed; orders of the single judge and Industrial Tribunal were set aside; the application under Section 33(2)(b) was restored to the Industrial Tribunal for fresh disposal after recor

M/S Permanet Hangets Ltd. Vs Shri Gajanan L.Borkar and… — Service and Employment | Bombay HC (2006)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 APPEAL NO.149 OF 2004
 In
 WRIT PETITION NO.2950 OF 2003
 Permanent Magnets Ltd.
 Dattapada Road, Borivli (E)
 Mumbai--400 066. : Appellant
 (Orig.Petitioner)
 V/s.
 1. Shri Gajanan L. Borkar
 "Aashadeep" Co-op. Hsg. Soc.
 Plot No.46, Room No.C-16,
 Gorai, Borivli (W),
 Mumbai--400 092.
 2. Hon’ble Member
 Industrial Tribunal
 New Administrative Bldg.
 Bandra (E)
 Mumbai--400 051. : Respondents
 (Orig.Respondents)
 ...
 Mr.S.K.More i/b. Mr.S.M.Naik for the appellant.

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 Mr.A.D.Shetty with Ms Rita K. Joshi i/b.Mr.R.D.Bhat for
 respondent no.1.

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CORAM : R.M.LODHA & S.A.BOBDE,JJ.

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 DATE : DECEMBER 13, 2006.

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ORAL JUDGEMENT(Per R.M.Lodha,J.)

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 1. On 24.11.2006, we passed the following order:-

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 "1. Section 33 of the Industrial Disputes Act,
 1947 reads thus:-

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 "33. Conditions of service, etc., to remain
 unchanged under certain circumstances during
 pendency of proceedings.--(1) During the
 pendency of any conciliation proceeding before
 a conciliation officer or a Board or of any
 proceeding before an arbitrator or a Labour
 Court or Tribunal or National Tribunal in
 respect of an industrial dispute, no employer
 shall--

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 (a) in regard to any matter connected with the
 dispute, alter, to the prejudice of the
 workmen concerned in such dispute, the
 conditions of service applicable to them
 immediately before the commencement of such
 proceeding; or

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 (b) for any misconduct connected with the
 dispute, discharge or punish, whether by
 dismissal or otherwise, any workman
 concerned in such dispute,

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 save with the express permission in writing of
 the authority before which the proceeding is
 pending.

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 (2) During the pendency of any such proceeding
 in respect of an industrial dispute, the
 employer may, in accordance with standing
 orders applicable to a workman concerned in
 such dispute or, where there are no such
 standing orders, in accordance with the terms
 of the contract, whether express or implied,
 between him and the workman--

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 (a) alter, in regard to any matter not
 connected with the dispute, the conditions
 of service applicable to that workman
 immediately before the commencement of such
 proceeding; or

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(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

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 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 approval of the action taken by
 the employer.

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 (3) Notwithstanding anything contained in
 sub-section (2), no employer shall, during
 the pendency of any such proceeding in
 respect of an industrial dispute, take any
 action against any protected workman
 concerned in such dispute--

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 (a) by altering, to the prejudice of such
 protected workman, the conditions of
 service applicable to him immediately
 before the commencement of such proceeding;
 or

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(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman,

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 save with the express permission in writing of
 the authority before which the proceeding is
 pending.

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 Explanation.--For the purposes of this
 sub-section, a "protected workman", in relation
 to an establishment, means a workman who, being
 a member of the executive or other office
 bearer of a registered trade union connected
 with the establishment, is recognised as such
 in accordance with rules made in this behalf.

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 (4) In every establishment, the number of
 workmen to be recognised as protected workmen
 for the purposes of sub-section (3) shall be
 one per cent of the total number of workmen

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 employed therein subject to a minimum number of
 five protected workmen and a maximum number of
 one hundred protected workmen and for the
 aforesaid purpose, the appropriate Government
 may make rules providing for the distribution
 of such protected workmen among various trade
 unions, if any, connected with the
 establishment and the manner in which the
 workmen may be chosen and recognised as
 protected workmen.

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 (5) Where an employer makes an application to a
 conciliation officer, Board, an arbitrator a
 Labour Court, Tribunal or National Tribunal
 under the proviso to sub-section (2) for
 approval of the action taken by him, the
 authority concerned shall, without delay, hear
 such application and pass, within a period of
 three months from the date of receipt of such
 application, such order in relation thereto as
 it deems fit:

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 Provided that where any such authority
 considers it necessary or expedient so to do,
 it may, for reasons to be recorded in writing,
 extend such period by such further period as it
 may think fit:

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 Provided further that no proceedings before
 any such authority shall lapse merely on the
 ground that any period specified in this
 sub-section had expired without such
 proceedings being completed."

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 2. It is not disputed that section 33(2)(b)
 was attracted to the facts of the present case.
 The only question in the appeal is as to
 whether the workman was paid one month’s wages
 at the time of the order of dismissal. The
 legal position is no more res integra. To
 satisfy the condition as provided in the
 proviso appended to section 33(2)(b), the
 employer is required to pay or tender the wages
 to the workman. In Strawboard Manufacturing
Company v. Gobind, 1962 I L.L.J. 420, the
 Supreme Court stated that though section 33
 speaks of payment of one month’s wages, it can
 only mean that the employer has tendered the
 wages and that would amount to payment.

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 3. In the approval application made by the

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 appellant (employer), it is stated that the
 employer has simultaneously sent by money order
 one month’s wages as required under section
 33(2)(b) of the Industrial Disputes Act, 1947.
 In his reply, the respondent no.1 (workman)
 denied the compliance of the mandatory
 provisions contained in section 33(2)(b) and
 stated that the employer has not paid wages for
 one month, as required in law.

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 4. That the burden is on the employer to prove
 the compliance with the mandatory provisions
 contained in the proviso appended to section
 33(2)(b) is not denied.

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 5. It is true that the employer did not lead
 any evidence before the Industrial Tribunal to
 prove the factum of payment/tender of one
 month’s wages to the workman simultaneous to
 the order of dismissal. The cross-examination
 of the workman, however, shows that the
 Advocate for the employer reserved his right to
 cross-examine the workman on points other than
 the manner of inquiry.

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 6. The Industrial Tribunal, after hearing the
 parties, by its order dated 17.6.2002 dismissed
 the approval application by holding that the
 pre-requisite condition of payment of one
 month’s wages to the workman has not been
 proved.

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 7. The employer immediately thereafter made
 the application for review of the order dated
 17.6.2002. The following statement made in the
 review application is pertinent to be noticed:-

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 "................ The applicant submits
 that admittedly the money order receipt are
 annexed to the main application and there to
 some extent public documents which do not
 requires any further proof. ............."

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 The review application was, however, dismissed
 by the Industrial Tribunal on 21.4.2003 holding
 that the order dated 17.6.2002 did not require
 review.

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 8. The employer filed Writ Petition before
 this Court. The said Writ Petition was
 dismissed by the learned single Judge by the

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 impugned order dated 18.12.2003 by holding
 thus:-

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 "The approval was rejected on the footing
 that one month’s salary was not tendered.
 In the application there was averment that
 the amount had been tendered by a money
 order. In the reply the contention of the
 workman was that mandatory requirement of
 Section 33(2)(b) had not been followed. I
 am informed that the original money order
 receipt was annexed with the original
 approval application. Perusal of the
 application does not indicate that in fact
 it was so annexed. Though the approval
 application was made by the employer, the
 employer did not commence evidence or did
 not in fact lead any evidence. The
 respondent-workman stepped into the witness
 box. In his evidence he has stated that he
 has not received his pay. There is no
 cross examination on this point and the
 Advocate for the Petitioner claimed to
 reserve his cross examination. It is
 argued to the bar that cross examination
 was reserved as only the issue regarding
 fairness of the enquiry was being
 considered. He is not able to point out
 any order of the Court by which the said
 issue was framed as preliminary issue.
 There cannot be any adjudication by parts.
 Though there might be presumption arising
 out of postal documents, that presumption
 is rebuttable. In the present case, no
 efforts have been made by the Petitioner to
 firstly tender the money order receipt by
 way of evidence. He could have examined an
 officer to show that the money order was
 sent. He could have examined postal
 authority. The Respondent workman was
 entitled to cross-examine any such person.
 In the absence of any efforts made by the
 Petitioner and in the absence of any
 material before the Court, it cannot be
 said that the order passed is erroneous."

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 9. The counsel for the parties agreed that
 the original record of the Industrial Tribunal
 was not before the learned single Judge at the
 time of consideration of the Writ Petition.

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 The learned counsel for the employer also
 invited our attention to the xerox copy of the
 receipts from Borivli post office indicating
 that the amount mentioned therein was received
 by the post office, being the amount of money
 order payable to the workman Gajanan L.
 Borkar. These receipts also prima facie lead
 to the presumption that money, as mentioned in
 the receipts, was tendered to Borivli post
 office for being paid to the workman through
 money order. In ordinary course, from this
 fact, the presumption could also be drawn that
 the said amount must have been tendered by the
 employer to the postal authorities for the
 workman. Be that as it may, before we deal
 with the matter further, we are of the view
 that the record and proceedings of Application
 (IT) No.15 of 1999 in Reference (IT) No.97 of
 1992 and Review Application (IT) No.3 of 2003
 in Application (IT) No.15 of 1999 in Reference
 (IT) No.97 of 1992 (M/s.Permanent Magnets Ltd.
 v. Mr.Gajanan L. Borkar) be called for by
 the office from the Industrial Tribunal
 Maharashtra at Mumbai. The requisition may be
 handed ‘dasti’ to Mr.R.D. Bhat, the counsel
 for the respondent no.1, by the office as
 early as possible and positively within five
 days from today. The Industrial Tribunal
 Maharashtra at Mumbai is directed to send the
 record pertaining to the aforesaid
 applications within three days of the receipt
 of the requisition.

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 10. Let the appeal be posted for final
 hearing on 6.12.2006."

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 2. Pursuant thereto, the original record of the

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 Industrial Tribunal pertaining to Application (IT) No.15
 of 1999 in Reference (IT) No.97 of 1992 and Review
 Application (IT) No.3 of 2003 in Application (IT) No.15
 of 1999 in Reference (IT) No.97 of 1992 was sent by the
 Industrial Tribunal. The record contains xerox copy of
 the receipts from Borivli post office indicating that the
 amount mentioned therein was received by the post office

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 being the amount of money order payable to Mr.Gajanan L.

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 Borkar. The counsel for the parties agreed that the
 matter may be sent back to the Industrial Tribunal,
 Maharashtra at Mumbai for fresh decision of the
 application under section 33(2)(b), after recording the
 evidence of the appellant on the aspect that the amount
 was sent by money order to the workman Mr.Gajanan L.
 Borkar and the evidence of the respondent no.1 in
 rebuttal.

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 3. We, accordingly, dispose of the appeal by the
 following order:-

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 (i) The order of the learned single Judge dated

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 18.12.2003 and the orders dated 17.6.2002 and
 21.4.2003 passed by the Industrial Tribunal

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 Maharashtra at Mumbai are set aside.

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 (ii) Application (IT) No.15 of 1999 in Reference (IT)
 No.97 of 1992 (M/s.Permanent Magnets Ltd. v.
 Gajanan L. Borkar) is restored to the file of the
 Industrial Tribunal Maharashtra at Mumbai for fresh
 consideration and disposal, in accordance with law.

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 (iii) Since the matter is quite old, we request the
 Industrial Tribunal to hear and decide the said

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 application expeditiously, after permitting the

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 employer (appellant) to lead evidence in support of
 its case that the wages for one month were sent by
 money order to the workman (respondent no.1) as
 required under section 33(2)(b) of the Industrial
 Disputes Act, 1947, and evidence by the respondent
 no.1 in rebuttal.

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 (iv) No order as to costs.

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 Sd/-

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 R.M. LODHA, J.

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 Sd/-

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 S.A. BOBDE, J.

M/S Permanet Hangets Ltd. v. Shri Gajanan L.Borkar and Anr.

Case brief

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M/S Permanet Hangets Ltd. v. Shri Gajanan L.Borkar and Anr.

Case brief

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