BOMBAY TYRES INTERNATIONAL LIMITED Vs. B P TALATHI

JUDGEMENT

(1.) THIS petition, though purported to be filed under Articles 226 and 227 of the Constitution of India, on the Appellate Side of this Court, can conveniently be disposed of by treating it substantially as a petition under Article 227 of the Constitution. Since the reliefs claimed in the petition can be granted by treating it substantially as a petition under Article 227, I have done so.

(2.) THE petitioner filed an application for approval of the action of dismissal taken against the second respondent-workman by an Order dated 4th April, 1978. The application for approval of the action became necessary, as, at the relevant time, an industrial dispute vide Reference (IT) No. 523 of 1975 was pending before the Industrial Tribunal. As required by section 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"), as parts of the same transaction, the petitioner issued the Order of Dismissal dated 4th April, 1978, despatched to the workman a sum of Rs. 707. 20, purported to be a months wages as payable under section 33 (2) (b) of the Act, and simultaneously filed an application for approval of the action as contemplated under the proviso to section 33 (2) (b) of the Act. The application was opposed by the respondent-workman on several grounds, including, inter alia, on the ground that it was in contravention of the provisions of section 33, in that the petitioner had neither unconditionally tendered nor paid the full sum of the one months wages due to the workman, inasmuch as an amount of Rs. 40, which represented the House Rent Allowance, had not been included in the amount sent to him by money order. The respondent-workman also contended that the application made by the petitioner was barred by the principle of res judicata, as an earlier application made by the petitioner for permission to discharge or dismiss the respondent-workman under the provisions of section 33 (2) (b) of the Act had been dismissed. The application was also opposed on merits by contending that the order of dismissal passed was in contravention of the Standing Orders, the inquiry was bad in law and did not comply with principle of natural justice, the punishment was disproportionate etc.

(3.) THE application for approval was filed on 4th April, 1978. On 19th August, 1981, the petitioner made an application to the Tribunal, in which the petitioner took up the stand that, though Canteen Subsidy, House Rent Allowance and Leave Travel Assistance had not been included in one months wages, as, according to it, these were not properly includible, without prejudice to the said contention, the petitioner stated that it was unconditionally prepared to pay the said amount by deposit of the shortfall in Court, if so ordered by the Tribunal. On 20th August, 1981, the petitioner filed another application before the Tribunal quantifying the various amounts which would have to be included in one months wages, if the workmans contentions were upheld. I shall ignore the Leave Travel Assistance and Canteen Subsidy (as even the tribunal has held that these were not legally includible in the one months wages payable under section 33 (2) (b) of the Act) and concentrate upon the quantum of House Rent Allowance, which was indicated to be Rs. 40/- as on the date of the dismissal of the second respondent, and Rs. 70/-, as on the date of application. The Tribunal passed no order on either of these applications.