Cema Electric Lighting Product ... vs Girishbhai Dashrathbhai Patel
2021 Latest Caselaw 6633 Guj

   C/SCA/8144/2021                                      ORDER DATED: 22/06/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO.                      8144 of 2021

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      CEMA ELECTRIC LIGHTING PRODUCT INDIA PVT LTD
                         Versus
             GIRISHBHAI DASHRATHBHAI PATEL
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Petitioner(s) No.
1
  for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                        Date : 22/06/2021

                             ORAL ORDER

[1.0.] Heard Mr. Prabhakar Upadhyay, learned advocate for the petitioner.

[2.0.] This petition is filed challenging the impugned judgment and order passed by the Presiding Officer, Industrial Tribunal, in Approval (IT) Application No.26 of 2016, dated 31.01.2020 refusing approval under Section 33(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act, 1947'), sought by the petitioner.

[3.0.] It is the case of the present petitioner that for a misconduct, departmental proceeding was initiated against the respondent workman and after conclusion of the inquiry and following the rules and regulations, the service of the respondent - workman came to be terminated.

C/SCA/8144/2021 ORDER DATED: 22/06/2021

[4.0.] Drawing attention to the communication dated 19.08.2016, at page 111, which refers about discharge order, it is submitted that the services of the respondent - workman came to be terminated and along with the said discharge order, one month wages came to be paid vide cheque No.260021 dated 19.08.2016. Therefore, according to submission of Mr. Upadhyay, learned advocate for the petitioner, when the approval of the Industrial Tribunal was sought for, under the aforesaid provisions, workman was paid wages for one month being Rs.9258/-. It is further contended that any shortfall found by the Tribunal may be because of the deduction of amount towards the provident fund and therefore, on that ground, approval application could not have been rejected by the Industrial Tribunal. One more contention is raised that deduction towards the statutory payment of provident fund can be made from the one month wages.

[5.0.] While dealing with the said aspect, the Industrial Tribunal, in para-15 of the impugned judgment and order, recorded that pay-slip produced vide list exhibit-9 reflects that in the month of April 2016, only components of basic pay, Fixed Dearness Allowance (F.D.A.) and Variable Dearness Allowance (V.D.A.), comes to Rs.9287.87 as salary, apart from other admissible and permissible components of wages. Therefore, Industrial Tribunal has come to a conclusion that payment of Rs.9258/- by cheque towards one month wages, as envisaged under the proviso to Section 33(2)(b) of 'the Act, 1947',

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while passing the order of termination, is not the wages which respondent workman was drawing, and therefore, payment of less amount than the one month wages, as stated in Section 33(2) of 'the Act, 1947'. Therefore, it cannot be said to be a payment of one month wages, and therefore, the Tribunal has refused the approval. For coming to such conclusion, the Tribunal has considered the definition of wages which includes so many components, as mentioned in para-13 in extenso. Even in documents produced by the petitioner vide exhibit-8 claiming compliance under proviso to Section 33(2)(b) of 'the Act, 1947', it has been mentioned that the respondent - workman has been paid notice pay for April,2015 however, it also comes to Rs.8872.44 even according to the petitioner. Therefore, even payment of one month wages being Rs.9258/- is also in excess of what they pleaded before the Tribunal and there is no explanation offered for the said difference.

[6.0.] Prima-facie, what appears is payment of one month wages while passing an order of termination, as enumerated under proviso to Section 33(2)(b) of 'the Act, 1947', is the wages drawn by the workman at the time of passing an order of termination. No any other date, even anterior to that date for passing of an order, can be considered for any reason whatsoever, for the payment of one month wages, as mentioned in Section 33(2)(b) of 'the Act, 1947'. Therefore, even if it is presumed that substantial part of one month wages is paid by the petitioner, so long as it is not

C/SCA/8144/2021 ORDER DATED: 22/06/2021

one month wages in accordance with 'the Act, 1947, no approval can be granted to the order of termination passed by the petitioner against the workman. The Tribunal has relied on various decisions including the decision of Bombay High Court, as referred to in para-17 of the impugned judgment and order, which held that payment of one month wages, as per the entitlement, is mandatory.

[7.0.] So far as second contention that deduction for statutory payments from one month wages is permissible, it has not been shown even to this Court how and in what manner and at what rate it is calculated and deducted. Even their own calculation of one month wages is inconsistent of document exhibit-8 which is produced at page No.125 of the compilation which shows wages to be Rs.8872.44 whereas discharge order which is at page No.111 refers about one month notice wages to be Rs.9258/-. If at all the said contention is to be appreciated, no breakup of statutory deduction is shown either in the notice or in the calculation of notice pay or in the discharge order. It was also not shown to the Tribunal nor to this Court what statutory deduction is made and paid to authority. Therefore, there is no substance is the said contention and it is rejected.

[8.0.] Mr. Prabhakar Upadhyay, learned advocate for the petitioner has failed to show that the respondent

- workman is paid one month wages, as defined under 'the Act, 1947' on the date of his termination. By any means, he is unable to show the breakup about

C/SCA/8144/2021 ORDER DATED: 22/06/2021

statutory deduction and the salary for which month Rs.9258/- cheque amount represents, it is clear that there is non-payment of one month wages mandated by proviso to Section 33(2)(b) of 'the Act, 1947', and therefore, I see no reason to interfere with the judgment and order passed by the Tribunal and therefore, this petition is rejected.

(UMESH A. TRIVEDI, J) Lalji Desai