RAMNIWAS Vs. THE INDUSTRIAL TRIBUNAL & ANR.

JUDGEMENT

(1.) BY this writ petition, a challenge is made to the order dated 13.09.2011 passed by Industrial Tribunal, Jaipur. It was on the application u/s. 33(2)(b) of Industrial Disputes Act, 1947 (for short "the Act, 1947") to seek approval of the order of punishment. Learned counsel submits that as per mandate of Section 33(2)(b) of the Act, 1947, one month's notice pay was not sent to the petitioner after calculating amount of salary admissible to him at the relevant time. Elaborating argument, it is submitted that a demand draft of Rs. 2341/ - was received. However, on presentation, a sum of Rs. 17/ - was deducted by the Bank thus it cannot be said to be salary of one month rather as per fixation, petitioner was entitled to receive Rs. 2530/ - towards one month's notice pay. Since it was not offered as per mandate of Section 33(2)(b) of the Act, 1947, application should have been dismissed. The Tribunal failed to consider the issue aforesaid while passing impugned order thus it deserves to be set aside. Other than aforesaid, no argument has been raised by learned counsel for petitioner to question the order dt. 13.09.2011.

(2.) I have considered the submission made and find that specific averment was made in Para 9 of reply to the application regarding one month's notice pay. It was stated that a draft of Rs. 2341/ - was deposited however Rs. 17/ - was deducted by the Bank. I find that as per impugned order at Annexure -2, amount of draft is of Rs. 2358/ - and not of the figure given by petitioner. The statement of facts in Para 9 goes contrary to document produced by petitioner himself. The first allegation is for deduction of Rs. 17/ - by the Bank. I do not find any material on record to prove the facts aforesaid. Mere making statement of facts are not enough unless evidence is led to substantiate it. The burden to prove aforesaid was on the workman. No document is produced along with writ petition to substantiate fact regarding deduction of Rs. 17/ - by the Bank. If same amount was deducted, it was incumbent upon petitioner to prove the fact. The further fact is regarding petitioner's entitlement for a sum of Rs. 2530/ - towards one month's salary. I find no material to substantiate the pleading or argument. How figure of Rs. 2530/ - arrived is not disclosed and no material is produced to show calculation. In the background aforesaid, it is nothing, but averment without proof. However, I find that Tribunal should have discussed aforesaid facts instead of giving sketchy order, but relevant facts have been considered by this court on limited argument and finding no material to prove and substantiate contents of Para 9 of the reply to the application before the Tribunal, I am not inclined to interfere in the impugned order. The burden to prove his case lies on the workman in view of the judgment in the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors., reported in : (2005) 5 SCC 100. Relevant paras of the aforesaid judgment are quoted hereunder:

(3.) IN the instant case, even amount of one month's salary was having additional amount of Rs. 200/ - as is coming out from the order of dismissal at Annexure -2, thus deficiency in the amount by Rs. 17/ -, though could not be proved by petitioner but even if deduction of Rs. 17/ - was made then also it was not less than one month's salary because Rs. 2358/ - is containing additional amount of Rs. 200/ - on monthly salary. In totality of the facts, I find no merit in the writ petition hence it is dismissed. However, the Industrial Tribunal is expected to pass reasoned orders instead of sketchy orders without discussion of the issues. The stay petition is also dismissed.