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Judgment
V. Ramasubramanian, J.—The Tamil Nadu State Transport Corporation Limited has come up with the above writ petition challenging the refusal of the Joint Commissioner of Labour (Conciliation) to accord approval for the dismissal of the second respondent herein from service, in terms of Section 33(2)(b) of the Industrial Disputes Act, 1947.
I have heard Mr.T.Chandrasekar, learned counsel for the petitioner and Mr.C. Manohar, learned counsel for the second respondent.
The second respondent was appointed as a Junior Tradesman in the petitioner corporation, on the basis of the certificates produced by him. One of the documents produced by him was a secondary school leaving certificate mark sheet bearing Sl.No. 851779. The registration number of the candidate, to whom the mark sheet related, was furnished as No. 258470.
After appointment, the secondary school leaving certificate mark sheet was forwarded to the Secretary to the Board of Secondary Education for verification. The Secretary found that the certificate was a bogus one. Therefore, disciplinary proceedings were initiated against the second respondent and the second respondent was found to be guilty of the misconduct. Therefore, by an order dated 11.7.2003, the second respondent was imposed with the penalty of dismissal from service.
After passing the order of dismissal, the petitioner filed a petition for approval in approval petition No. 210 of 2003 under Section 33(2)(b) of the Act, since an industrial dispute was already pending between the management of the petitioner corporation and the union. After issuing notice to the second respondent and after enquiry, the first respondent - Joint Commissioner passed an order dated 10.12.2004 rejecting the petition for approval. Aggrieved by the said order, the management has come up with the above writ petition.
Before the Joint Commissioner (Conciliation), the petitioner marked five documents as exhibits. The second respondent produced a certified copy of a judgment of the Criminal Court in C.C. No. 85 of 2002. The Joint Commissioner framed five questions for consideration. The first question was whether the management held a proper domestic enquiry in accordance with the Standing Orders and in accordance with the principles of natural justice. The second issue was whether the order of dismissal was based on any legal evidence adduced in the enquiry. The third issue was whether the management came to a bona fide conclusion regarding the guilt of the second respondent and whether the dismissal did not amount to an unfair labour practice. The fourth issue was whether the employer paid or offered to pay wages for one month to the employee, in accordance with the statutory prescription. The last issue was whether the management simultaneously or within such reasonable time, applied for approval of the order of dismissal.
On all issues except the fourth issue, the Joint Commissioner held in favour of the petitioner management. On the first issue, the Joint Commissioner held that the second respondent was given adequate opportunity to participate in the enquiry and that he did not make use of the opportunity. The enquiry was adjourned several times at the request of the second respondent, but he did not participate in the enquiry. Therefore, the Joint Commissioner held that the enquiry was conducted in accordance with the principles of natural justice and the Standing Orders.
On the second issue, the Joint Commissioner held that there was a prima facie case made out by the petitioner management against the second respondent. Therefore, he held the second issue also in favour of the management.
On the third issue, the Joint Commissioner categorically held that no allegations of victimisation or unfair labour practice were made or established by the second respondent against the management. Therefore, he held that the dismissal order was passed bona fide and that there was no victimisation or unfair labour practice.
On the last issue, the Joint Commissioner held that the application for approval was made within 9 days and that therefore, it was part of the same transaction.
But, on the fourth issue, namely as to whether the employer paid or offered to pay wages for one month to the employee, the Joint Commissioner held that the amount of Rs.5,028.30 Ps shown in Form-T, represented only the basic pay and dearness allowance. Form-T did not include the other allowances. The amount indicated in ExA1 - pay slip of the second respondent, was claimed by the second respondent to be lesser than one month''s wages. Therefore, on this ground, the Joint Commissioner held that the petitioner management failed to pay one month''s wages as per the statutory prescription. Consequently, on this sole ground, the petition for approval was dismissed by the Joint Commissioner of Labour.
The main ground on which the management assails the impugned order is that rather than shifting the burden on the second respondent to show that one month''s wages were not paid, the Joint Commissioner held as though the petitioner failed to prove payment of one month''s wages. The petitioner also claims that the amount paid under ExA1 (pay slip) was actually one month''s wages.
Therefore, the only question that arises for consideration is as to whether the finding of the Joint Commissioner of Labour that the petitioner failed to pay one month''s wages as per the statutory prescription, is valid or not.
The Joint Commissioner of Labour held that as per Form-T filed by the Management, a sum of Rs.5028.30 was claimed to be the wages for one month. The Management also filed Ex.A1 which was the pay slip. It included only the basic pay and dearness allowance. The pay slip did not include the other allowances. The total amount indicated in Ex.A1 did not match the amount indicated in Form-T, as having been paid. Therefore, the Joint Commissioner held that the Management had not paid one month wages, which is a pre-condition. The grievance of the Management is that the burden of proving payment of one month''s wages had been wrongly placed by the Joint Commissioner upon the Management. To test the correctness of the said contention, we have to have a look at the provisions.
The proviso to Section 33(2)(b) uses the expression "wages for one month". The word "wages" is defined in Section 2(rr) to mean all remuneration capable of being expressed in terms of money. The definition reads as follows:
"Section 2(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 confessional supply of foodgrains or other articles;
(iii) any travelling concession; [(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 law for the time being in force;
(c) any gratuity payable on the termination of his service."
In the light of the above, it is clear that what was paid was not actually inclusive of all the components of wages. Hence, I do not find anything illegal about the order of the Joint Commissioner. Therefore, the writ petition is dismissed. No costs. Consequently, WPMP Nos. 14326 of 2006 and 255 of 2012 and WVMP.No. 1741 of 2006 are also dismissed.