Gujarat High Court
Vajesinh Ganpatsinh Raulji vs State Of Gujarat on 28 January, 2025
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IN THE High Court OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 25783 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 25789 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 25790 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 25786 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 25784 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
Yes
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VAJESINH GANPATSINH RAULJI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
SENIOR ADVOCATE MR.SHALIN MEHTA assisted by MS.SHIKHA D
PANCHAL(10764) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 1
MR.VARUN K.PATEL(3802) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 28/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Varun
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Patel waives service of Rule on behalf of respondent.
2. With the consent of the parties, the matter was heard
finally
3. The petitioners who are employees of respondent no.2,
Kalki chemical industries has filed present petitions,
challenging the judgement and order dated 27.04.2022
passed in approval Application No.86 of 2018 in
Reference IT No.72 of 2018 whereby, Approval
Application filed by respondent no.2 came to be allowed
and approval to dismissal order dated 18.09.2018 was
given.
4. The facts needed for disposal of present case is as
under:
4.1. The petitioner, along with other employees working
and in respondent no.2 Company raised an industrial
dispute which came to be referred to the learned
Industrial Tribunal No.2, Vadodara and was numbered
as reference IT No.72 of 2018. The dispute was with
regard to increment in pay and payment of other
allowances. Pending reference, by letter dated
08.02.2018, respondent no.2 has informed to the
petitioners that they were suspended with effect from
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08.02.2018 on the ground that petitioner had allegedly
misbehaved with an officer of the firm and has
participated in and supported an illegal strike. Charge-
sheet dated 14.02.2018 was served alleging that
petitioner, while on duty, had misbehaved with senior
Company Officer on 21.12.2017, the petitioner had
initiated a strike and had instigated workers working
with him to join such a strike the workers coming on
duty and had stopped them from working. The petitioner
was informed that departmental inquiry will be
conducted by an independent Officer and was intimated
to remain present on 24.02.2018. The petitioner
submitted written statement on 23.02.2018 and
requested the firm to supply the copies of certain
documents in relation to the charge-sheet. The Inquiry
Officer had submitted his Inquiry Report on 16.08.2018
with the finding that charges framed against the present
petitioners are held to be proved. The show cause notice
was issued on 18.02.2018 stating that, on the basis of
the inquiry report, respondent no.2 has decided to
dismiss the petitioner on the ground of proven
misconduct and petitioner was called upon to give his
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reply that why he should not be terminated from service.
4.2. On 18.09.2018, service of the petitioner was
dismissed and was paid the one month notice pay by
cheque. The respondent no.2 filed an approval
application in reference under section 32 of the
Industrial Dispute Act, 1947. The petitioner raised an
objection mainly that petitioner has not been paid
complete wages of one month's notice pay and an
amount of Rs.210/- towards ESIC and an amount of
Rs.150/- towards Professional Tax has been deducted at
the time of making payment of one month notice pay to
the petitioner. It was contended that as per the provision
of section 33(2)(b), no deduction can be made from one
month notice pay and as respondent no.2 made illegal
deduction, approval application was sought to be
rejected. Learned Tribunal, after hearing to the the
parties, allowed the applications filed for approval to
dismissal order. The same is subject matter of challenge
before this Court.
5. Heard learned senior advocate, Mr.Shalin Mehta, along
with learned advocate Ms.Shikha.D.Panchal, for the
petitioners and learned advocate Mr.Varun.K.Patel for
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the respondent.
5.1. Though many grounds were raised in the memo of the
petition, however, learned senior advocate Mr.Shalin
Mehta has mainly relied on section 32B of the Act, 1947
and submitted that petitioner's wages for one month
amounted to Rs.12,000/-, however, at the time of
dismissal, he was paid an amount of Rs.11,640/- towards
one month notice pay, after making deduction of
Rs.210/- towards E.S.I.C (Employees State Insurance
Contribution) and Rs.150/- towards Professional Tax.
Learned senior advocate Mr.Shalin Mehta relies on the
definition of Section 2(R)(R) of the Act, 1947, which
defines 'wages' and submitted that as per this section
wages do not include (i) any bonus to any contribution
paid or payable by employer (ii) any pension fund or
provident fund or the benefit of development under any
law for the time being in force and (iii), any gratuity
payable on the termination of service. It is submitted by
learned senior advocate Mr.Shalin Mehta that under
section 2(R)(R) of the Act, 1947, it is made clear that
wages do not include any contribution paid or payable
for the benefit of workmen under any law for time being
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in force, which in the present case would be the
contribution towards Employee State Insurance and
Professional Tax and learned Tribunal committed error
in not rejecting the application for approval on the above
above ground.
5.2. Learned senior advocate Mr.Shalin Mehta has relied
on the decision rendered by the Rajasthan High Court,
Jaipur Bench in the case of Dinesh Khare Vs.
Industrial Tribunal & Ors., Rajasthan and submitted
that respondent no.2 has failed to pay the wages as
required by proviso to section 33(2)(B) of the Act in lieu
of notice to be paid without deduction of Professional
Tax and ESI Contribution and therefore, the application
filed by the respondent no.2 for approval under section
33(2)(B) was required to be dismissed. Learned senior
advocate Mr.Shalin Mehta submits that, without
applying the aforesaid judgment in a proper spirit, order
is passed and therefore, same is required to be set aside.
5.3. Learned advocate Mr.Varun Patel appearing for the
respondent has relied on the provisions of Employee
State Insurance Act and submitted that employer has
been foisted with the liability to pay contribution
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towards E.S.I.C. Act. It is further submitted that prior to
their order of dismissal, such deductions were being
made and there was no objection raised by the
petitioners to such deduction at any point of time.
Failure to comply with the provisions of the E.S.I.C. Act,
exposes the respondent to penalties and the prosecution
and therefore, being a statutory deduction, employer has
to deduct the said amount from the wages. It is further
submitted by learned advocate Mr.Varun Patel that
when the approval is of dismissal order in respect of
proved misconduct, it cannot be withheld only on
amount of shortfall of a minor sum which is otherwise
accountable on showing total amount which is payable
by employer to employee for the month. It is submitted
that no straight jacket formula can be applied in respect
of all deductions or entitlement of every minor shortfall.
Learned advocate Mr.Varun Patel submitted that no
error has been committed by learned Tribunal, allowing
the application for approval of dismissal. Therefore, no
interference is required and petition is required to be
dismissed.
6. Having considered the arguments advanced by learned
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advocates for the respective parties, the question which
fall for consideration in this petition is whether in
computing the amount of one month wages, to be paid
under section 33(2)(b) of Act, 1947, the employer is
justified in deducting the amount by statutory payment
of payment under E.S.I.C Act as well as Professional Tax.
7. Before deciding the case on merits. The statutory
provisions which come into action leading to answer is
required to referred hereinbelow:
Section 2(rr) of the Industrial Disputes Act, 1947
(rr) "wages" means all remuneration capable of being expressed in
terms of money, which would, if the terms of employment, expressed
or implied, were fulfilled, be payable to a workman in respect of his
employment or of work done in such employment, and includes--
(i) such allowances (including dearness allowance) as the workman is
for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light,
water, medical attendance or other amenity or of any service or of
any concessional supply of foodgrains or other articles;
(iii) any travelling concession; 1
[(iv) any commission payable on the promotion of sales or business
or both;]
but does not include--
(a) any bonus;
(b) any contribution paid or payable by the employer to any pension
fund or provident fund or for the benefit of the workman under any
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law for the time being in force;
(c) any gratuity payable on the termination of his service;]
8. section 33(2)(b):
"for any misconduct not connected with the dispute, or discharge
or punish, whether by dismissal or otherwise, that workman:
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 he action taken by the
employer."
9. In the instant case, the interpretation of the proviso to
clause (b) which says 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 proceedings
is pending for approval of action taken by the employer.
We may refer the circumstances in which section 33(2)
came to be enacted. Originally there was no such
provisions like section 33(2) in the Act and the only
provision to be found therein correspondent to the
present section 33(1), the object behind enacting section
33 as it was before the amendment of 1956 was to allow
continuance of industrial proceedings pending before
any authority prescribed by Act in a calm and peaceful
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atmosphere undisturbed by any other industrial dispute.
The plain object of section was to maintain the status
qua as far as possible during pendency of industrial
dispute before a Tribunal. It seems to have been felt
that section 33, as it stood before amendment of 1956,
was too stringent for it completely took away the right of
the employer to make any alteration in the condition of
service or to make any order of discharge or dismissal
without making any distinction as to whether such
alteration or such an order of discharge or dismissal was
in any manner connected with the dispute pending
before an industrial authority. It seems to have been felt
therefore that the strangency of the provision should be
softened and the employer should be permitted to make
changes in the condition etc. which were no connected
to the dispute pending before an industrial Tribunal. For
the same reasons, it was felt that the Authority of the
employer to dismiss or discharge a workman should not
be completely taken away where the dismissal or
discharge dependent on matter unconnected with the
matter pending before the Tribunal. At the same time, it
seems to have been felt that some safeguard should be
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provided for workman who may be discharged or
dismissed during the pendency of dispute on account of
same matter unconnected with the dispute.
10. Consequently, section 33 was redrafted in 1956 and
considerably expanded. It is now in 5 sub-sections while
before 1956 is consisted practically of what is now sub-
section 1. The proviso lays down that no 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 action taken by
the employer. There are two kinds of punishment are
subject to the conditions of the proviso namely
discharge or dismissal. Further, the proviso lays down
two conditions namely (i) payment of wages for one
month and (ii) making an application by the employer to
the Authority before which the proceedings is pending
for approval of action taken.
11. The payment of one month's salary or wages, is to soften
the rigour of unemployment that will face the workman,
against whom an order of discharge or dismissal, has
been passed are conceptually for the month to follow the
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month of unemployment and in the context wages for
the month following date of dismissal or repetitive
wages for the month previous to the date of dismissal. It
is undisputed in the instant case that payment of wages
is made, however, it is made after statutory deductions.
The legal character of months wage would undergo a
change depending on result of approval application. If
the Tribunal where to refuse the approval the incoherent
and incomplete order of discharge and dismissal would
end in the legal character of one months wages would
transform to be the same as before, from which
statutory deductions could legitimately be made by the
employer. In the event of approval of the application by
the Tribunal the legal character of one month wages
would on the other hand would be wages without
employment. This is a field in which interest of both the
parties is to be kept in view, for the same circumstances
would be precarious for the employer if he were not to
deduct tax or contribution towards the ESI Act. The
same would be exposing him to the dangers of penalties
and prosecutions. In the case of statutory tax
deductions, his justificatory burden is less, for he has the
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shelter of the laws. The employer makes a deductions
which are compulsive under the law. Otherwise, not a
paisa was kept with him for the legitimate dues of the
employee. The Court has to adopt a usual approach in
deciding the matter without ignoring the purpose, aim
and object of the provision.
12. This Court has referred the decision relief in the case of
S.Ganapathy and Ors. versus Air India and Anr.
reported in (1993) 3 SCC 429. The judgment which
was relied by the learned advocate for the petitioner in
the case of Dinesh Khare Vs. Industrial Tribunal &
Ors., Rajasthan was also considered by the Apex Court
in the case of S.Ganapathy (supra) and the Apex Court
has held and observed as under:
"It was the case where the employee of where the case was that
the workman was employed in Air India, the approval for his
dismissal was not accorded on the ground that one month salary
or wages were paid to the employee by reducing some of Rs.15/-
as deductible on account of monthly payment of tax on
employment, imposed on salary and wage earners, under the
provisions of West Bengal State Tax on Professions, Trades,
Callings and Employment Rules, 1979. Rejection order when
challenged was not sustained by the Bombay High Court. On
appeal, affirming order. Passed by the Bombay High Court, the
supreme court held that this is a field in which the interest of
both parties has to be kept in view, for the situation would be
precarious for the employer if he were not to deduct tax under s.
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4 of the tax act and exposing him to the dangers of penalties and
prosecution. If approval was to be rejected on merit and otherwise
to be rejected for not making complete payment of one month
wage, it would thus be just and proper to let the employer deduct
the statutory tax deduction from that one month wage, since the
relationship of employer and an employee has effectively not been
terminated, to meet the eventuality, let the approval application
be dismissed on merit. On the other hand it would be just and
proper either for the employer on his own or on the asking of the
tribunal to let the sum representing statutory tax deduction be
deposited in the tribunal for payment to the workman in the
event of the approval application being allowed. In the case of
statutory tax deductions, his justificatory burden is less, for he has
the shelter of the tax law."
13. In the opinion of this Court, employer has not committed
any error in making payment of wages by deducting the
amount and learned Tribunal has also assigned detailed
reasons while granting the approval of dismissal order,
this Court did not find any merit in the submissions
made by the learned senior advocate Mr.Shalin Mehta.
Hence, this petition deserves to be dismissed.
14. Considering the over all circumstances this Court is of
the opinion that learned Tribunal has not committed any
error in granting the approval Application No.86 of 2018
in Reference IT No.72 of 2018 and therefore, no
interference is called for and the petition being devoid of
any merits, deserves to be dismissed.
15. Resultantly, this petition is dismissed. Rule is
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discharged.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
