Pandian Roadways Corporation Ltd. vs The Labour Court Madurai and Thiru V. Krishna Ramanujam

A.K. Rajan, J.—The writ petition is for issue of writ of Certiorari. The petitioner is the Pandian Roadways Corporation Ltd., The second

respondent was appointed as a Conductor with effect from 1.4.83. On 8.10.1983, while he was performing his duty in the bus bearing

Registration No. TML 5606 at 3.40 p.m. in the afternoon trip from Sivakasi to Thiruvannamalai, the Checking Inspector boarded the bus at

Thiruvannamalai and found that the second respondent issued only 5 tickets of 50 paise to five passengers travelling from Sivakasi to

Thiruvannamalai, even though he had collected Rs.7.50 at the rate of Rs.1.50/- per ticket. Therefore, there is misappropriation of Rs.2.50 by the

second respondent. In view of this misconduct, a charge memo was issued on 22.11.1983. An enquiry was conducted on 10.3.1984. The enquiry

officer filed his report on 29.3.1984 holding that the charges have been proved. Thereafter, a second show cause notice was given on 24.5.1984.

The second respondent also gave his explanation to the second show cause notice. Since the explanation was not satisfactory, the management

imposed the punishment of dismissal from service with effect from 21.8.1984.

3.The petitioner also filed a petition before the Industrial Tribunal, Madras u/s 33(2(b) of the Industrial disputes Act for approval of the dismissal

because an issue regarding payment of bonus to the petitioner was pending. Later on the said petition was transferred to the Labour Court,

Madurai and numbered as Approval Petition No. 4 of 1986. The Labour Court rejected the approval petition on the ground that collection of

batta was not paid along with his monthly salary and therefore, there was non-compliance of Section 33(2)(b) of the I.D.Act; It also held that the

past record of the employee was not considered. Aggrieved by that, this writ petition has been filed by the writ petitioner.

4.The counsel for the petitioner submitted that collection of batta is not part of the wages and therefore non payment of batta does not vitiate the

order of termination. Hence, the Labour Court was not correct in rejecting the approval.

5.The counsel for the 2nd respondent submitted that in the counter statement filed by the second respondent along with the vacate stay petition, it

is stated that at the material point of time his salary was Rs. 746.65/- per month. But, he was paid Rs. 730/-. There is a balance of Rs. 16.65/-to

be paid to the second respondent. In the typed set of papers filed the second respondent has given the details of his salary. In the counter filed in

I.D.No. 62/82 it has been stated in paragraphs 2 and 3 that his basic pay was Rs. 465/-, D.A.-166.40, H.R.A.- Rs. 50, Village Compensatory

Allowance - Rs. 23.25/-, Health Allowance- Rs.26/-, Washing allowance- Rs. 10/- and in all it comes to Rs. 746.65/- whereas he was paid only

Rs. 735.00; Rs.16/- was not paid at all. Therefore, there is non-compliance of the mandatory provisions of the law. Therefore, the rejection of the

approval order was valid. In support of his contention, the learned counsel for the second respondent referred to the judgment of this Court in

W.P.No. 11802 of 1989 dated 9.11.1998 in which a similar question has been decided; When the dismissal order was served on the respondent

in that case only Rs.758/- was paid as salary month of December, 1985, while he was paid Rs. 795/- as salary earlier. Since the employee was

paid less than a month''s pay this Court upheld the order of the Tribunal that the essential condition of payment of one month''s wages was not

observed while issuing dismissal order. Therefore, the counsel argued that the order of the Industrial Tribunal is valid and it cannot be set aside.

6.The learned counsel for the writ petitioner vehemently argued that the wages was paid in full and there is nothing on record to show that the

amount paid was less than the actual wages per month. The main contention of the learned counsel for the petitioner is that the collection batta

does not form part of the wages and therefore, non-payment of collection batta alone does not mean that the payment was less than the wages

payable to him. The counsel for the second respondent originally submitted that non-payment of collection batta also form part of the wages.

Ultimately, he submitted that the second respondent''s salary was not Rs. 748, but Rs.756/-. This Court gave an opportunity to the writ petitioner

to file an affidavit giving the full particulars as to what was the wages paid at the relevant point of time. In response to that an affidavit has been filed

today and in paragraph 2 of the said affidavit it is stated as under:

In Ground-C of the affidavit filed in support of the Writ Petition, it has been stated that even assuming the collection batta comes within the purview

of wages, the 2nd respondent would have been entitled to a sum of Rs. 746.65, whereas the actually received a sum of Rs. 730/-. However, there

is nothing on record to show that he received only Rs. 740/-. The Industrial Tribunal has also not held that he received only Rs.730/-. The question

that arises in the writ petition is whether collection batta would come within the definition of wages. If it does not come within the definition of

wages, then the full wages for the month have been paid and consequently the rejection of the approval petition is illegal.

7.It is seen that in this affidavit no particulars have been given with respect to the salary that was paid. It is nothing but repetition of the paragraphs

in the affidavit which was already filed along with the writ petition. It is unfortunate that the petitioner does not make use of the opportunity that was

given to them to rectify the defects if any. Further the manner in which this affidavit has been filed does not speak good. This is not the way to file

an affidavit. It is only evasive in nature. It does not contain any averment regarding the second respondent''s salary. The petitioner is not able to

give a statement as to the second respondent''s actual salary.

8.This writ petition has to be dismissed for the reason that the writ petitioner has not made use of, even the opportunity given to them got furnishing

the particulars regarding the salary of the second respondent. Because of the inability on the part of the writ petitioner to give the statement actual

salary of the second respondent, this writ petition is dismissed. There is no alternative for this Court except to dismiss this writ petition for non

furnishing the particulars of pay that the second respondent is entitled to receive and the amount actually paid.

9.This Court in W.P.No.11802/89has held that when the statute requires payment of one month''s salary means, the payment of a month''s salary

is full; in case the amount that was paid fell short of that even by one rupee it is not a valid compliance. Since in this case the salary was Rs.756/-

per month the payment of Rs.740 or 735 amounts to non-compliance of the law. Therefore the order of the Labour Court is valid. Hence, writ

petition is dismissed with costs.