Neeta Sawant WP 10116 of 2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 10116 OF 2015

Dr. Satish Bhide, for and on behalf of

Municipal Corporation of Greater

Mumbai

...Petitioner

V/s.

Ravindra M. Pande ...Respondent

________________

Mr. Suresh Pakale, Senior Advocate with Mr. D. R. Kawale and Mr.

Santosh Parad for the Petitioner.

Mr. Prakash Devdas i/b Ms. Vidula S. Patil for the Respondent.

________________

CORAM: SANDEEP V. MARNE, J.

RESERVED ON: 23 JUNE 2026

PRONOUNCED ON: 07 JULY 2026

JUDGMENT:

1) The issue for consideration in the present Petition is

whether the Industrial Tribunal could have rejected approval to dismissal

action in respect of a municipal employee (resulting in his reinstatement

with backwages), who is found guilty of corrupt practices only on account

of alleged minor de�cit in payment of wages under Proviso to Section

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33(2)(b) of the Industrial Disputes Act, 1947? Serious misconduct of

diverting octroi refund amount of Rs. 4,10,885/- to a third-party account

and receiving amount of Rs. 1,50,000/- therefrom for himself is proved

against the Respondent and even Industrial Tribunal has upheld the

�nding of guilt. However, it has still proceeded to reject approval to

dismissal action holding that the Municipal Corporation m ade

deductions while paying him wages under Section 33(2)(b) of the Act.

2) The Petitioner-Municipal Corporation has �led the present

Petition challenging the judgment and order dated 7 May 2010 passed by

the Presiding Of�cer, Industrial Tribunal, Mumbai, rejecting Application

(IT) No. 21 of 2006 �led by the Petitioner under sub-section (2)(b) of

Section 33 of the Industrial Disputes Act, 1947 (ID Act) for grant of

approval to the proposed action of dismissal. Petitioner’s Review

Application is also rejected by order dated 5 January 2012, which is also

the subject matter of challenge in the present Petition.

3) Petitioner is a local body established under the Mumbai

Municipal Corporation Act, 1988. Respondent was employed in the

services of the Petitioner on the post of Clerk in the Octroi Department

since 24 October 1996. While so working, chargesheet dated 21 March

2003 was issued to him alleging that he colluded with Shri. Mohan V.

Mohite (Jr. A & A.A.) working in the of�ce of Deputy Chief Accountant

(Octroi), Shri. Suryakant Waghmare, an employee of M/s. Yogeshwar

Octroi Agency, Shri. J.P. Kumar, the then employee of M/s. Patron

Engineering Construction Company, Shri. Mane (Peon) of the same

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Company, and Shri. Arif Fodkar, Account holder of Bank Account No.

1428 at the Maratha Mandir Co-operative Bank with an intention to

defraud the Municipal Corporation. In the chargesheet, it was alleged

that the Respondent had issued cheque in the name of M/s. Dilip

Engineering Construction Company for Rs.4,10,885/- towards refund of

octroi though the refund claim was lodged by an altogether different

entity. The cheque was collected from the counter of Deputy Chief

Accountant (Octroi) on 26 February 2002 and the same was deposited on

the same day in Account No. 1428 at Maratha Mandir Co-op. Bank, which

was in the name of M/s. Dilip Engineering Construction Company. On 6

March 2002, an amount of Rs.1,50,000/- was withdrawn from the said

Account. The amount so withdrawn was paid over to the Respondent by

Shri. Suryakant Waghmare, an employee of M/s. Yogeshwar Octroi

Agency. It was alleged that the Respondent misplaced the claim papers

from the of�ce of the Dy. Chief Accountant (Octroi) as well as Dy. A. & C.

(Octroi) with a view to destroy the evidence. The fraud was discovered

when representative of M/s. Modest Marytime Services Pvt. Ltd.

approached the of�ce of the Dy. Chief Accountant (Octroi) for refund

claim. After investigations, it was established that the Respondent had

masterminded the fraud in collusion with the others.

4) Enquiry was conducted into the charges in which the

Respondent participated. After conclusion of the enquiry, the Enquiry

Of�cer submitted his �ndings holding the Respondent guilty of the

charges. The Enquiry Of�cer recommended punishment of removal from

municipal services. Accordingly, a show cause notice dated 30 October

2003 was issued supplying copy of Enquiry Of�cer’s Report to the

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Respondent. Respondent submitted reply to the show cause notice on 18

December 2003. The Disciplinary Authority passed order dated 30

November 2006 imposing the punishment of removal from municipal

service. It appears that the show cause notice was challenged by the

Respondent by �ling Complaint (ULP) No. 346 of 2004 before the Labour

Court and interim relief was refused. Even the Revision preferred by the

Respondent was rejected by the Industrial Court.

5) It is the case of the Petitioner that an attempt was made to

serve removal order dated 30 November 2006 on the Respondent by

offering an amount of Rs.14,468/- towards one month’s wages. It is

claimed that the Respondent refused to accept the removal order as well

as the wages. Petitioner dispatched the removal order through RPAD and

remitted the amount of wages through money-order at the residential

address of the Respondent. On account of pendency of industrial dispute,

Petitioner �led Application under Section 33(2)(b) of the ID Act being

Application (IT) No. 21 of 2006 seeking approval of the Labour Court to

the removal order. The Application was resisted by the Respondent by

�ling Written Statement. Parties led evidence in support of their

respective claims. The Industrial Tribunal proceeded to reject the

Application for grant of approval to the removal action of the Applicant

on the ground that Petitioner had made deductions while making

payment of wages and had failed to comply with the provisions of

Section 33(2)(b) of the ID Act.

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6) Petitioner �led Review Application (IT) No. 1 of 2010 to

bring on record the fact that the wages were separately offered to the

Respondent through money-order, in which no deductions were made.

The Labour Court proceeded to reject the Revision Application by order

dated 5 January 2012. Aggrieved by orders dated 7 May 2010 dismissing

Application (IT) No. 21 of 2006 and order dated 5 January 2012

dismissing Review Application No. 1 of 2010, the Petitioner-Municipal

Corporation has �led the present petition.

7) By order dated 5 July 2017, the Petition was admitted and it

was directed not to take any coercive steps against the Petitioner till

disposal of the Petition. The Petition is called out for �nal hearing.

8) Mr. Pakale, the learned Senior Advocate appearing for the

Petitioner-Municipal Corporation submits that the Industrial Tribunal

has grossly erred in not approving the action of removal despite serious

charges being proved against the Respondent. That the Municipal

Corporation has complied with the provisions of Section 33(2)(b) of the

ID Act by paying the Respondent wages for one month. That the

Industrial Tribunal has erroneously considered the salary paid for

November 2006 as the wages payable under Section 33(2)(b). That the

Municipal Corporation had separately offered wages of Rs.14,468/- to the

Respondent vide money-order. That this fact was brought to the notice

of the Industrial Tribunal by �ling Review Application. However, the

Industrial Tribunal refused to review its order on the ground that review

of decision on merits is impermissible. That the Industrial Tribunal has

accepted the error committed by it but has failed to correct the same.

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9) Mr. Pakale further submits that deductions towards

provident fund and income tax were rightly made by the Petitioner and

even if deduction is found to be erroneous, the Industrial Tribunal ought

to have granted an opportunity to the Petitioner to deposit the de�cit

amount in the Tribunal while making an order of approval. He relies

upon judgment of the Supreme Court in S. Ganapathy and Ors. vs. Air

India and Anr.

1

in support of his contention that some minor de�cit

amount deducted towards statutory dues cannot be a reason for not

approving the action of removal in the light of proof of extremely serious

charges of bribery and corruption. He also relies upon the judgment of

this Court in Balmer Lawrie & Co. Ltd. vs. Waman B. More and Anr.

2

10) So far as �ndings of the Industrial Tribunal about non-

release of amount of increment while paying salary for the month of

November 2006 is concerned, Mr. Pakale would submit that increment of

the Respondent was withheld by the Competent Authority and that the

same was not payable at the time when approval application was �led.

That the increment amount was subsequently released on 14 August

2007. That in any case, the salary paid for November 2006 was not

towards compliance of provisions of Section 33(2)(b) of the ID Act. Mr.

Pakale therefore prays for setting aside the impugned orders passed by

the Industrial Court.

11) Mr. Devdas, the learned counsel appearing for the

Respondent-employee, supports the order passed by the Industrial

Tribunal. He submits that the Courts have repeatedly highlighted the

1

(1993) 3 SCC 429

2

1981 (42) FLR 272

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need to strictly comply with the provisions of Section 33(2)(b) of the ID

Act. That in the present case, full wages of one month are admittedly

not paid to the Respondent in view of deductions made towards

provident fund, Income Tax, LIC etc. Additionally, an amount of

increment due to the Respondent was also not included in the wages

paid to him. That non-payment of full amount of one month’s wages

automatically vitiates the approval application. That since strict

adherence to the provisions of Section 33(2)(b) of the ID Act is not made

in the present case, the Industrial Tribunal has rightly rejected the

approval application. In support of his contention, Mr. Devdas relies on

judgment of the Apex Court in the case of Jaipur Zila Sahakari Bhoomi

Vikas Bank Versus. Ram Gopal Sharma & Ors.

3

and Management of

Karnataka Agro Industries Corporation Versus. Presiding Of�cer,

Industrial Tribunal

4

. In support of his contention of impermissibility to

deduct any amount from wages payable under Section 33(2)(b) of the ID

Act, he has relied on following judgments:

1. Sindhu Diwakar Dabholkar vs. B.N. Dongre and Ors.

5

2. Management of Indian Express and Chronicle Press vs. M.C. Kapur

6

3. Dinesh Khare vs. Industrial Tribunal

7

4. Indian Telephone Industries Ltd. and Ors. vs. Prabhakar H. Manjare and

Ors.

8

5. Mahalakshmi Fibres and Industrial Ltd. vs. Presiding Of�cer, Labour Court

and Anr.

9

6. Muzaffarpur Electric Supply Company Limited vs. S K Dutta

10

7. Management of Eastern Electric & Trading Co. vs. Baldev Lal

11

3

AIR 2002 SC 643

4

1986 (1) LLJ 178

5

MANU/MH/0354/1987

6

MANU/SC/0273/1973

7

1982 (2) LLJ 17

8

SLP (C) 15054-15055 of 1998 decided on 30 October 2002

9

(2003) 98 FLR 962

10

1970 (2) LLJ 547

11

(1975) 4 SCC 684

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12) Mr. Devdas further submits that under Rule 45 of BMC

Services (Conduct) Rules, 1989, increment is payable to the employee as

a matter of course. That Petitioner did not produce any proof of order

withholding the increment. That the increment was subsequently paid

after 9 months, which contains inbuilt admission of the increment being

due at the relevant time. He therefore submits that there is non-

compliance of provisions of Section 33(2)(b) of the ID Act and therefore

the Petition deserves to be dismissed.

13) Rival contentions urged on behalf of the parties now fall for

my consideration.

14) In the present case, Respondent is found guilty of charges

levelled against him and the Petitioner-Municipal Corporation had

issued the order of removal from service of the Respondent on 30

November 2006. However, on account of pendency of proceedings

envisaged under Section 33(1) of the ID Act, the Petitioner decided to

follow the provisions of sub-section (2)(b) of Section 33. Under sub-

section (2) of Section 33, during pendency of proceedings, the employer

can discharge or punish the workman for any misconduct unconnected

with the dispute by paying him wages for one month and by �ling an

application to the authority before which the proceedings are pending

for approval of the action taken by the employer. Section 33 of the ID Act

provides thus:

33. Conditions of service, etc., to remain unchanged under ce rtain

circumstances during pendency of proceedings.—

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(1) During the pendency of any conciliation proceeding before a conciliation

of�cer or a Board or of any proceeding before an arbitrator or a Labour Court or

Tribunal or National Tribunal in respect of an industrial dispute, no employer

shall,—

(a) in regard to any matter connected with the dispute, alter, to the

prejudice of the workmen concerned in such dispute, the conditions of

service applicable to them immediately before the commencement of

such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish,

whether by dismissal or otherwise, any workmen concerned in such

dispute,

save with the express permission in writing of the authority before which the

proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial

dispute, the employer may, in accordance with the standing orders applicable

to a workman concerned in such dispute or, where there are no such standing

orders, in accordance with the terms of the contract, whether express or

implied, between him and the workman,—

(a) alter, in regard to any matter not connected with the dispute, the

conditions of service applicable to that workman immediately before

the commencement of such proceeding; or

(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 the action taken by the employer.

(3) Notwithstanding anything contained in sub-section (2), no employer shall,

during the pendency of any such proceeding in respect of an industrial dispute,

take any action against any protected workman concerned in such dispute—

(a) by altering, to the prejudice of such protected workman, the

conditions of service applicable to him immediately before the

commencement of such proceedings; or

(b) by discharging or punishing, whether by dismissal or otherwise,

such protected workman, save with the express permission in writing of

the authority before which the proceeding is pending.

Explanation.—For the purposes of this sub-section, a “protected workman”, in

relation to an establishment, means a workman who, being a member of the

executive or other of�ce bearer of a registered trade union connected with the

establishment, is recognised as such in accordance with rules made in this

behalf.

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(4) In every establishment, the number of workmen to be recognised as

protected workmen for the purposes of sub-section (3) shall be one per cent. of

the total number of workmen employed therein subject to a minimum number

of �ve protected workmen and a maximum number of one hundred protected

workmen and for the aforesaid purpose, the appropriate Government may

make rules providing for the distribution of such protected workmen among

various trade unions, if any, connected with the establishment and the manner

in which the workmen may be chosen and recognised as protected workmen.

(5) Where an employer makes an application to a conciliation of�cer, Board, an

arbitrator, a labour Court, Tribunal or National Tribunal under the proviso to

sub-section (2) for approval of the action taken by him, the authority

concerned shall, without delay, hear such application and pass, within a period

of three months from the date of receipt of such application, such order in

relation thereto as it deems �t:

Provided that where any such authority considers it necessary or expedient so

to do, it may, for reasons to be recorded in writing, extend such period by such

further period as it may think �t:

Provided further that no proceedings before any such authority shall lapse

merely on the ground that any period speci�ed in this sub-section had expired

without such proceedings being completed.

15) It appears that the misconduct alleged and proved against

the Respondent had no connection with any dispute pending before the

Conciliation Of�cer, Labour Court or Industrial Tribunal and accordingly

the Municipal Corporation proceeded to follow the provisions of Section

33(2)(b) of the ID Act. It claims to have paid/offered one month’s wages

to the Respondent and also �led an application for seeking approval

before the Industrial Tribunal.

16) By order dated 30 November 2006, punishment of dismissal

from service was imposed on the Respondent. In addition to payment of

wages for November 2006, Petitioner claims to have spent amount of

Rs.14,468/- towards compliance with proviso to Clause (b) of sub-section

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(2) of Section 33 of ID Act. Simultaneously, Petitioner also �led

Application seeking approval to its action.

17) While deciding the approval Application �led by the

Petitioner, the Industrial Tribunal has recorded an emphatic �nding that

the enquiry conducted against the Respondent was fair. For holding so,

the Industrial Tribunal has considered the �ndings of the Labour Court

recorded in Complaint (ULP) No. 264 of 2004. That Complaint has been

�led by the Respondent, challenging the show cause notice by which

punishment was proposed against him. It appears that i n that

Complaint, the Labour Court recorded a �nding of enquiry being fair and

proper and that the �ndings drawn by the Enquiry Of�cer are not

perverse. The Industrial Tribunal has utilised those �ndings while

deciding the approval Application by holding as under:

Admittedly from the documents �led on record it appears that the opponent

had �led the complaint vide Complaint(ULP) No. 246/2004 before the

LabourCourt, Mumbai. The Labour Court has held that the enquiry is fair and

proper and �ndings are not perverse. Subsequently the complainant has

withdrawn the complaint �led before the Labour Court during the pendency of

this approval application. The Labour Court has held that the enquiry

conducted against the opponent is fair and proper and in accordance with the

principle of natural justice and �nding drawn by the Enquiry Of�cer are not

perverse. That Order was not challenged by the opponent but had withdrawn

the complaint �led before the Labour Court. No doubt, strict rules of Evidence

Act are not applicable to the Labour Court. No doubt, strict rules of Evidence

Act are not aplicable to the proceedings before the Labour Court. However no

the basis of preponderance of probabilities the evidence has to be assessed by

the Labour Court. Therefore the enquiry conducted against the opponent

cannot be said to be unfair.

18) Thus, the enquiry is held to be fair and proper, and �ndings

of the Enquiry Of�cer are not held to be perverse. The only reason why

the Industrial Tribunal has refused to grant approval to the removal

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action is non-payment of full amount of wages to the Respondent under

Section 33(2)(b) of the ID Act. The �ndings recorded by the Industrial

Tribunal in this regard are as under:

Now only question remains whether the applicant has complied with the

requirements of Section 33(2) (b) of the Industrial Disputes Act. From the

document C-11 which is a payslip of the opponent for the month of November,

2006 it appears that the applicant had paid the wages to the opponent of

Rs.12,797/-. The deduction from his salary has been made regarding NPF Rs.

1490/-,LIC Rs. 257/-, MCB Rs. 5158/-, P.T. Rs. 200/-,I. T. Rs 5000/-, RHL Rs. 648/-,

GYM Rs. 26/-. In the pay slip nowhere mentioned by the applicant regarding

annual increment of the opponent. The opponent in h is evidence has

categorically stated that he was entitled to increment which was due in

October, 2006. The witness of the applicant has not stated that the applicant

had paid the increment to the opponent. One Bank statement is �led from

which it appears that for the month of October, 2006 he was paid Rs. 7075/-

and in next month of November, 2006he was paid Rs. 7141/. SalaryslipExh. C-

11 does not show that increment was paid to the applicant in themonth of

November, 2006. Moreover from the salary slip it appears that the applicant

had deducted the NPF. LIC, MCB, PT, IT, RHL, GYM. As held by Hon’ble High

Court in above referred cases the deduction in respect of P. F. And I.T. Is not

permissible while making payment of one month wages. Even the annual

increment amount has to be paid in one month wages by the applicant as

required while making the approval application in respect of removal action

taken against the employee. Any short of payment in respect of removal action

taken against the employee. Any short of payment in respect of payment of

one month wages at the time of approval it amounts to non compliance of

requirement of Section 33(2) (b) of the Industrial Disputes Act. Admittedly the

deduction has been made by the applicant while making the payment of one

month wages to the opponent. So it is a clear case of non compliance of

mandatory provisions of Section 33(2) (b) of the Industrial Disputes Act, The

opponent was entitled to get the increment which was duein the month of

October, and accordingly he was entitled to receive the increment amount in

his one month wages, which was not paid to him at the time of his removal. So

considering all these aspects I �nd that there is non compliance of

requirements of Section 33(2) (b) of the Industrial Disputes Act. On this ground

alone the application for approval �led bythe applicant is requires to be

rejected as the opponent was not paid one month wages as per condition

mentioned in Section 33 (2) (b) of the Industrial Disputes Act.

19) The short issue that arises for consideration is whether the

Petitioner-Municipal Corporation has complied with the provisions of

sub-section (2)(b) of Section 33 of the ID Act. Under Proviso to Clause (b)

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of sub-section (2) of Section 33, twin requirements are to be ful�lled viz.

(i) payment of wages for one month and (ii) �ling of application by the

employer before the authority for approval of action. The second

requirement is undoubtedly met since Petitioner �led Application (IT)

No. 21 of 2006 seeking approval to its removal action. The debate is only

about compliance with the �rst requirement of payment of wages for one

month.

20) The Industrial Tribunal has taken into consideration pay slip

for the month of November 2006 in which wages of Rs.12,797/- were paid

to the Respondent. However, consideration of pay slip for the month of

November 2006 by the Industrial Tribunal is a grave error committed by

it. The wages for the month of November 2006 are earned by the

Respondent in ordinary course since he was in service till 30 November

2006. Therefore the said wages cannot be treated as the one paid towards

compliance with the Proviso to Clause (b) of sub-section (2) of Section 33

of the ID Act.

21) Over and above wages for the month of November 2006,

Petitioner was required to pay one month’s wages to the Respondent

towards compliance with provisions of Section 33(2)(b) of the ID Act. The

statutory scheme of Section 33 is such that when a dispute is pending

and employee is sought to be discharged or dismissed in connection with

that dispute, express permission of the Authority before which

proceedings are pending is mandatory. On the other hand, if the

employee is sought to be discharged or dismissed for any misconduct

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unconnected with the pending dispute, such discharge or dismissal can

be effected by paying wages of one month and by �ling application for

approval of action. Therefore, the wages contemplated in the Proviso to

Section 33(2)(b) is not the normal salary payable in respect of the month

in which dismissal/discharge is effected. Proviso to Section 33(2)(b)

contemplates payment of additional wages of one month. The Industrial

Tribunal has thus completely misdirected itself in examining compliance

with the provisions of Section 33(2)(b) of ID Act.

22) Since consideration of wages paid for the month of

November 2006 itself is erroneous, it is not really necessary to go into

the issue of deductions made or increment not paid while paying salary

for the month of November 2006. The real issue for consideration is

whether Petitioner paid or offered to pay additional wages for one month

to the Respondent under proviso to Section 33(2)(b) of the ID Act.

Petitioner pleaded in Application (IT) No. 21 of 2006 as under:

The Applicants therefore decided to remove the Opponent Workman from

service and accordingly removed the Opponent Workman vide Order No.

ChOE/DE/JYD/1071 dated 30.11.2006. The Applicants attempted to service the

Opponent Workman with the said removal order at his work place and also

offered/paid him amount of Rs.14468/- (Rupees Fourteen Thousand Four

Hundred Sixty Eight Only) being the amount of his one monthly wages. The

Opponent Workman however didnt turn up and refused to accept the removal

order and also the amount of his month’s wages. The Applicants, therefore on

the very day sent to the Opponent Workman removal order at his residential

address at Mumbai by R.P.A.D are annexed herewith and marked at Ex.“G”

(colly). The Applicants simultaneously remitted by Money Order amount of

one month’s wages i.e. Rs. 14468/- (Rupees Fourteen thousand Four Hundred

Sixty Eight Only) to the Opponent Workman at his residential address at

Mumbai as required under Section 33(2) (b) of the Industrial Disputes Act,

1947. А Хегох copy of the postal receipts of money order sent to the Opponent

Workman are annexed herewith and marked Ex.“H” (colly). The Applicants are

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simultaneously on the same day making this application for approval of action

of removal taken against the Opponent Workman.

23) Thus, the Petitioner raised a speci�c plea before the

Industrial Tribunal that it offered/paid to the Respondent an amount of

Rs.14,468/- being the amount of his one-month wages. It was pleaded

that the Respondent did not turn up and refused to accept both, the

dismissal order and one month’s wages. It was further pleaded that the

removal order was dispatched to the Respondent by RPAD a nd

simultaneously a money-order was sent for one month’s wages of

Rs.14,468/- at the residential address of the Respondent. Petitioner

produced before the Industrial Tribunal postal receipt of the money-

order.

24) Perusal of Written Statement �led by the Respondent

indicates that the factum of offer/payment of amount of Rs.14,468/-

through money-order is not denied by him. The Respondent raised a

vague plea that whatsoever payment was made was not full wages for

one month. The relevant pleadings in this regard in para-21 of the

Written Statement are as under:

21. Without prejudice to the above contentions whatever payment is made is

not full wages for one month because section 33 (2) (b) requires that no

deduction of any sort shall be made from the wages for one month under

section 33 (2) (b). The opponent further submits that there is a deduction of

Professional Tax of Rs. 200/- and also allowances which the opponent is

entitled such as Monthly Medical Assistance, Travelling Subsidy Allowance etc.

have not been paid to him in the one month’s wages.

Thus, there is no denial about transmission of amount of Rs.14,468/- by

money order.

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25) Again, in the Af�davit of Evidence of Petitioner’s witness-

Ms. Surekha S. Walinjkar, following statements was made:

7. I say that the applicant therefore decided to remove the Opponent Workman

from service and accordingly removed the Opponent Workman vide Order No.

Choe/DE/JYD 1071 dtd. 30.11.2006, the applicants attempted to serve the

Opponent Workman with the said removal order at his work place and also

offered / paid him amount of Rs. 14,468/- (Rupees Fourteen Thousand Four

Hundred Sixty Eight only) being the amount of his one monthly wages. The

opponent workman however he didn’t turn up and refused to accept the

removal order and also the amount of his one-month’s wages. The applicants

simultaneously remitted by Money Order amount of one month’s wages i.e. Rs.

14,468/- (Rupees Fourteen Thousand Four Hundred Sixty Eight Only) to the

Opponent Workman at his residential address at Nollasopar as required under

section 33 (2) (b) of the Industrial Disputes Act, 1947. The applicants are

simultaneously on the same day making the application for approval of action

of removal taken against the Opponent Workman.

26) However, the above pleading, documentary as well as oral

evidence is completely ignored by the Industrial Tribunal while passing

the impugned order dated 7 May 2010. There is also n o cross-

examination of the witness on the aspect of remittance of one month’s

wages vide money order. Thus, receipt of amount of Rs. 14,468/- towards

one month’s wages is not disputed by the Respondent.

27) Thus, the �nding of non-payment of wages for one month

under Section 33(2)(b) of the ID Act recorded by the Industrial Tribunal

is in ignorance of evidence produced before it of transmitting wage

amount of Rs.14,468/- by money-order. The �nding is thus perverse.

28) The Industrial Tribunal put up a premium on errors already

committed by it in considering the wages paid for November 2006 while

examining the compliance with provisions of Section 33(2)(b) of the ID

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Act by dismissing Petitioner’s Review Application No.1 of 2010.

Petitioner brought to the notice of the Industrial Tribunal the error

committed by it and urged it to correct the same by taking into

consideration the amount of Rs.14,468/- offered/paid to the Respondent

by money-order. However, the Review Application is rejected by the

Industrial Tribunal holding that it did not have the power of reviewing

the order on merits. The relevant �ndings recorded by the Industrial

Tribunal are as under:

For the sake of argument it is taken that there is some force into the

contentions raised on behalf of the applicant but it is not desirable to touch

the merits of the matter while considering the question of review. There is no

procedural lucena pointed out by the applicant so as to be recti�ed by way of

review. Further remedy by way of appeal or otherwise is available to the

opposite party and they can avail the remedy and can seek redressal in respect

of their grievances. However, considering the nature of grievances as tried to be

put forth into the matter I am of the view that it is touching to the merits of

the matter. So this court is not empowered to touch the merits of the matter

while considering the review, and therefore, I conclude that the prayer as made

by the applicant is not sustainable.

29) Thus, though the Industrial Tribunal has virtually admitted

the mistake in not considering the payment of amount of Rs.14,468/-

towards one month’s wages, it has refused to review the order on the

ground of non-availability of power of reviewing the order on merits.

30) In view of the above discussions, the erroneous order passed

by the Industrial Tribunal on 7 May 2010 by ignoring payment of wages

of Rs.14,468/- towards compliance with the provisions of Section 33(2)

(b) of the ID Act deserves to be set aside. There is no �nding recorded by

the Industrial Tribunal that any deductions were made while paying

wages of Rs.14,468/-. It is not even the pleaded case of the Respondent

that any deductions were made while offering the wages of Rs.14,468/-.

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He vaguely pleaded in the written statement about deduction of

professional tax, and non-payment of monthly medical assistance,

travelling subsidy allowance, etc. These deductions are referrable to the

wages paid for November 2006 and not to the amount of Rs. 14,468/-

transmitted vide money order.

31) Since there is perversity in the orders passed by the

Industrial Tribunal on account of ignorance of payment of Rs.14,468/-

towards wages, it is not really necessary to go into the issue of effect of

deductions made in salary for the month of November 2006.

32) Faced with the above situation, Mr. Devdas has attempted to

salvage the situation by orally contending that even in the amount of

Rs.14,468/-, deductions were made. However, there are no supporting

pleadings in the written statement or any evidence for accepting this

contention. As observed above, the Industrial Tribunal has totally

ignored the wages of Rs.14,468/- while dismissing the approval

application. In absence of pleadings, evidence and adjudication by the

Tribunal, Respondent cannot ordinarily be permitted to canvass the plea

of deductions even in the amount of Rs.14,468/- directly before this

Court. Respondent is found guilty of grave misconduct of forgery and

corruption. He has attempted to take aid of some technical loophole for

the purpose of escaping the consequences of his gross misconduct. If it is

Respondent’s case that there is any non-compliance with statutory

provision, the same must be pleaded and demonstrated throug h

evidence. Non-compliance with the provisions of Section 33(2)(b) of the

ID Act cannot be readily presumed. Once the Petitioner pleaded and

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proved payment of amount of Rs. 14,468/- towards monthly wages, the

burden shifted on the Respondent to prove that the same did not

represent full wages of one month. However, there is neither pleading

nor evidence on behalf of the Respondent to establish the same.

33) In view of the above discussion, this Court would have been

justi�ed in allowing the Petition without considering the oral submission

canvassed by Mr. Devdas about deductions in the amount of Rs.14,468/-

paid to the Respondent. However, by way of indulgence, I proceed to

consider the submission. It is orally sought to be contended that Rs.500

are paid less even in the amount of Rs.14,468/-. The objective behind

provisions of Section 33(2)(b) of the ID Act must be borne in mind. In

ordinary course, a municipal employee against whom misconduct is

proved can be dismissed or removed from service without paying one

months’ wages. However, for those municipal employees who �t in the

de�nition of the term ‘workman’ under the ID Act, additional protection

is claimed in the form of Section 33(2)(b). Merely because some

unconnected dispute was pending at the relevant point of time, a special

protection under Section 33(2)(b) of the ID Act is claimed by the

Respondent, who is found to have indulged in corrupt activities. The

special protection ensures that the dismissed employee is paid one

months’ wages and that the employer seeks approval to dismissal action.

However, this special protection under Proviso to Section 33(2)(b) cannot

be overstretched to such an extent that the same results in a ridiculous

situation where the corrupt municipal employee walks back in service

with a reward of full backwages. The present case does not involve non-

payment of any amount towards monthly wages. Respondent is

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attempting to seek an escape from removal action despit e his

misconduct being proved by contending that some deduction was made

in the amount payable to him and that therefore there is non-

compliance with the provisions of Section 33(2)(b) of the ID Act. In my

view, considering the objective behind the provision, even if the

Respondent was successful in establishing that there was some

deduction made, the same cannot ipso facto be the reason for granting

any relief to him when he is found guilty of serious misconduct of

forgery and corruption.

34) Courts have recognised the principle of directing the

employer to deposit the de�cit amount in the Tribunal while granting

approval. In S. Ganapathy (supra), the Apex Court has held that

Industrial Tribunal can make an order of approval conditional on making

good the de�cit amount. It is held in Para 12 of the judgment as under:

12. In this extreme situation, the employee, in one sense, gets unemployed as

he stands deprived of work with effect from the date of the application for

approval, on which date his discharge or dismissal is factually effective. He

stands paid his month's wage from such date and this is a wage conceptually

for the month following, not double the wage for the month previous to the

date of the application. This is the dicta of Bharat Electronics case [(1990) 2 SCC

314] . In the other sense the order of discharge or dismissal is incomplete and

inchoate, unless approved by the Tribunal and till approval is granted there is

no effective break of the employer and employee relationship. This is the

dictum of Tata Iron & Steel Co. case [(1965) 3 SCR 411, 418 ] . So, if these two

features are grasped, appreciated and blended, it would lead us to the

understanding that by passing the order of discharge or dismissal de facto

relationship of employer and employee is ended, but not de jure, for that could

happen when the Tribunal accords its approval. The employee thus gets

factually unemployed from the date of the approval application in the sense

that he is not called to work and is paid only a month's wage representing the

succeeding month of his unemployment. The relationship of employer and

employee is legally not terminated till approval of discharge or dismissal is

given by the Tribunal. And this state of affairs was required to be ended within

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a period of three months from the date of receipt of such application in terms

of sub-section (5) of Section 33, though the lapse of such period would not end

the proceeding and such time was extendable by the Tribunal for reasons to be

recorded in writing. Now in this �uid state of affairs, the legal character of one

month's wage would undergo a change depending on the result of the approval

application. If the Tribunal were to refuse the approval, the inchoate and

incomplete order of discharge or dismissal would end and the legal character

of one month's wages would transform to be the same as before, from which

statutory tax deduction could legitimately be made by the employer. In the

event of approval of the application by the Tribunal, the legal character of one

month's wage would on the other hand be a wage without employment. In the

given situation, if the Tribunal were to refuse approval solely on the ground

that statutory tax deduction stands in its way to the grant of approval, it could

legitimately make its order conditional on making good such payment. This is

a �eld in which interest of both the parties has to be kept in view, for the

situation would be precarious for the employer if he were not to deduct tax

under Section 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, lest the approval

application be dismissed on merits. 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. If these two situations can be saved in this manner there would, in no

event be a dismissal of the approval application for payment of wage subjected

to statutory tax deduction. Taken in this light one is to view the deduction and

the subsequent offer of the respondent to pay the tax deducted, and later

deposited before the Tribunal, for payment to the workman. This payment was

offered and deposited before the decision on the approval application at a time

when the relationship of employer and employee had effectively not been

terminated. Here distinction would have to be drawn between statutory

deductions like tax deductions and other deductions which the employer

considers he can make. In either event, he takes the risk when making a

deduction. In the case of statutory tax deductions, his justi�catory burden is

less, for he has the shelter of the tax law. The case of the other deductions

would obviously be on different footing for he may not have any thrust of law.

Those may purely be contractual. Those deductions may not be compulsive

under any law. The employer makes the deduction in such cases at his peril.

But here, in the present situation, there de�nitely arose a genuine claim to

make the tax deduction and doing so the employer projected its case before the

Tribunal in that angle. Not a paisa otherwise was kept back. Thus in the facts

and circumstances it appears to us that the respondent was able to establish

that its deliberate deduction representing the tax from one month's wage was

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not to shorten the wage and cause infraction of Section 33(2)(b) but a

compulsive deduction to ful�l a statutory obligation by the thrust of the Tax

Act.

35) Mr. Pakale has also relied upon the judgment of this Court

in Balmer Lawrie & Co. Ltd. (supra). It is held by the Single Judge of this

Court that in the cases where the amount paid, tendered or remitted to

the workman falls short of the amount which is ultimately found payable

to the workman, but the difference arises because of some dif�culty or

inability to make the necessary calculation at a particular point of time,

which dif�culty or inability gets removed subsequently, the employer

will be entitled to some consideration if in his application for permission

he were to bring these facts and contentions to the notice of the Tribunal

and make an offer to deposit the disputed amount before the Tribunal

whether along with the application or within such time as the Tribunal

may order. It is held in Para 5, 7 and 8 of the judgment thus:

5. The provisions of S. 33(2)(b) have come to be considered by the Supreme

Court as well as by the High Courts in a number of decided cases. The

requirements contained particularly in the proviso have been observed to be

mandatory requirements and it has been further opined that the payment or

tender of wages for one month and the application must be part and parcel of

any transaction. Some decisions have indicated that an element of �exility is

permissible in considering what would constitute one transaction, but it is

quite clear that compliance will have to be correlated with the immediate offer

to make payment and the statements made in the applica tion. The

requirements postulated by the proviso can never be said to be complied with

if the shortfall is either to be made good after being pointed out in the written

statement. Even as far as the reply to the written statement in the present

matter is concerned. I do not accept the reply as indicative of the employer

making an unconditional offer to make good the shortfall. The phraseology in

Para 11 of the reply is couched in the manner of an argument or a submission.

It suggests that the Tribunal should �rst give its opinion on the four items in

respect of which a claim is made by the workman and at that stage the

employer can make good the shortfall, if any. There is no decision brought to

my notice which will permit the concept of one transaction being stretched to

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include the entire proceeding before the Tribunal in the course of such

application for permission.

7. However, a fundamental question does arise. In this case it is impossible to

accept the contention of the employer that non-payment of house rent

allowance was bona �de action on proper advice. However, there may be

occasions when the amount paid, tendered or remitted to the workman falls

short of the amount which may ultimately be found payable the the workman,

but the difference arises because of some dif�culty of inability to make the

necessary calculation at a particular point of time which dif�culty or inability

gets removed subsequently. The shortfall may also arise in case where two

views are possible on the employer's liability to pay certain amounts to the

workman. For example, we may have a case where an employer in Bombay is

faced with two con�icting decisions of other High Courts which have taken

diametrically opposite views.

8. In such cases, I think the employer will be entitled to some consideration if

in his application for permission he were to bring these facts and contentions

to the notice of the Tribunal and make an offer to deposit the disputed amount

before the Tribunal either along with the application or within such time as the

Tribunal may order with a further offer that the same may be paid to the

employee and when directed by the Tribunal. In case an item cannot be

precisely calculated at or before the time; when the application is made, for

example payment in the nature of production or incentive bonus, then the

offer may be made, but the precise amount would be required to be deposited

or offered to be deposited immediately the calculation is feasible. It is possible

in such a case to hold that although the actual amount may not have been paid

to the workman immediately, the employer has because of a genuine bona

�de dif�culty not complied with the provision but has indicated his willingness

to comply with the same and for that purpose has sought speci�c directions

from the Tribunal whose permission he has been seeking. It is in this limited

context only that some relief from the procedural requirements of S. 33(2)(b)

can be envisaged. It can never be envisaged where the non-payment is of an

item such as house rent allowance which very clearly falls within the meaning

of wages as de�ned. Any advice given to the employer that such amount was

not payable cannot be accepted as bona �de advice, nor can the employer's

action on such advice be acceptable as bona �de. Even as regards the other

items, by not mentioning them in the application for permission the employer

has put himself beyond the pale or equitable application of S. 33(2)(b). In any

case, it was not open to the employer to seek to rectify his mistake at the stage

of reply to the written statement. A prudent employer knows from the previous

emoluments paid to the employee what that employee had been paid in the

previous months and what the various constituents of that payment are. In

respect of the admitted amounts payment or tender would be made. In respect

of the other amounts if there is any genuine or bona �de dispute it must be

brought to the notice of the Tribunal at the stage of making the application for

permission and an unconditional offer should be made to the Tribunal to

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deposit the said amount and even to pay the same subject to any direction for

security or otherwise to be made by the Tribunal. Such an employer may

perhaps be entitled to obtain permission despite a shortfall in initial payment.

36) On the other hand, Mr. Devdas has relied on judgment of the

Apex Court in Jaipur Zilla (supra), which hold that the provisions of

Section 33(2)(b) of the ID cannot be treated as super�uous. There can be

no dispute about this proposition. In a case where termination is effected

without paying any amount towards wages, the ratio of the judgment

would be relevant. However, if any de�cit is noticed in the paid amount,

the Tribunal can always direct deposit of the de�cit amount while

granting approval rather than setting aside dismissal/discharge by

adopting hyper-technical approach.

37) Mr. Devdas has relied on judgment in Sindhu Diwakar

Dabholkar (supra), wherein the employer had made certain

deductions/adjustment towards alleged past dues payable by the

workman to the employer while complying with the provisions of Section

33(2)(b) of the ID Act. In the light of this fact, the learned Single Judge of

this Court set aside the order of approval granted by the Industrial

Tribunal. Also, this Court has recognised the principle of permissibility

to deposit the disputed amount before the Tribunal. In the present case,

Petitioner has not deducted any amount towards past du es and

therefore, the judgment in Sindhu Diwakar Dabholkar would have no

application to the facts of the present case.

38) In Management of Indian Express and Chronicle Press

(supra) relied upon by Mr. Devdas, the order of termination was set aside

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on the ground that conduct of the employee with regard to affairs of

Employees Co-operative Society did not entitle the employer to initiate

disciplinary action against him. The judgment therefore has no

application to the facts of the present case. The judgment of Rajasthan

High Court in Dinesh Khare (supra) has been considered by this Court in

Sindhu Diwakar Dabholkar. In that case, apparently no amount towards

wages was paid to the workman under Proviso to Section 33(2)(b) of the

ID Act. In the present case, amount of Rs.14,468/- has admittedly been

paid to the Respondent and therefore, the judgment has no application

to the facts of the present case. Similarly, In Indian Telephone

Industries Ltd. (supra), the case involved non-payment of any wages

under Section 33(2)(b) of the ID Act and therefore, the judgment has no

application to the facts of the present case. In the judgment of

Jharkhand High Court in Mahalxmi Fibres and Industrial Ltd. (supra),

the workman was directed to collect full and �nal settlement after

obtaining necessary clearance, which was not considered as suf�cient

compliance with provisions of Section 33(2)(b) of the ID Act. In

Muzaffarpur Electric Supply Company Limited (supra), the Patna High

Court has dealt with a case where the loan amount was deducted from

wages. Therefore, the judgment has no application to the facts of the

present case. Lastly, in the judgment of the Supreme Court in

Management of Eastern Electric & Trading Co. (supra), the issue of

compliance with provisions of Section 33(2)(b) was not involved and

therefore, the judgment has no application to the facts of the present

case.

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39) In my view, it is also not necessary to go into the issue of

non-payment of increment in November 2006 to the Respondent. Non-

release of increment is a different dispute and cannot be mixed with

compliance of provisions of Section 33(2)(b) of the ID Act. It is

Petitioner’s case that the increment was not payable as the same was

withheld. Thus there was dispute among parties about Respondent’s

right to draw increment at the relevant time. Under provisions of Section

33(2)(b) of the ID Act, the workman ,needs to be paid what he would have

ordinarily received and not what is his entitlement in law. If there

existed dispute about release of increment at the relevant time, non-

payment of amount of increment cannot tantamount to violation of

provisions of Section 33(2)(b) of the Act. Mr. Devdas has relied on

judgment of Single Judge of Karnataka High Court in Management of

Karnataka Agro Industries Corporation (supra) in support of contention

about non-release of increment. In view of the �nding that non-payment

of amount of increment is not fatal in the light of existence of some

dispute at the relevant time, it is not necessary to discuss the ratio of the

said judgment. In any case, Respondent did not plead or prove before the

Industrial Tribunal that amount of Rs.14,468/- offered/paid to him did

not contain the amount of increment.

40) The Industrial Tribunal ought to have been alive to the

situation where Respondent is found guilty of serious misconduct

relating to corruption and bribery. The Industrial Tribunal has not

interfered with the �nding of guilt. This means that Respondent has

indeed committed misconduct alleged against him in the chargesheet.

While working as Clerk in the octroi department of the Municipal

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Corporation, he conspired with other employees of octroi department,

employee of octroi agency, employees of a company seeking refund and

the account holder in the bank for the purpose of defrauding the

Municipal Corporation. When the octroi refund of Rs. 4,10,885/- was due

and payable to M/s. Modest Marytime Services Pvt. Ltd. in pursuance of a

claim lodged by it, the cheque for refund was issued in the name of an

altogether different entity, M/s. Dilip Engineering Constructions

Company. The said cheque was deposited in the bank account of M/s.

Dilip Engineering Constructions Company at Maratha Mandir Co-op.

Bank, from which an amount of Rs.1,50,000/- was withdrawn in cash and

was handed over to the Respondent. The Industrial Tribunal has

completely ignored such grave misconduct committed by t he

Respondent and adopted a hyper-technical approach by refusing the

approval citing the pretext of some deductions made in salary of

November 2006 while ignoring the fact that another set of wages of

Rs.14,468/- were offered by money-order to the Respondent. Provisions

of Section 33(2)(b) of ID Act are aimed at softening the rigours of

dismissal/discharge by providing some solace to the employee. The

provision is not aimed at creating technical grounds for setting aside

removal/dismissal in respect of the employees who are found to have

indulged in grave misconduct. The Industrial Tribunal ought to have

appreciated that the hyper-technical approach adopted by it has resulted

in a situation where Respondent would claim reinstatement in service

with full backwages despite committing grave misconduct of corruption.

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41) Considering the above position, I am of the view that the

order dated 7 May 2010 passed by the Industrial Tribunal is clearly

unsustainable and liable to be set aside. The order rejecting the Review

Petition is also required to be formally set aside.

42) The Petition accordingly succeeds, and I proceed to pass the

following order:

(i) Order dated 7 May 2010 passed in Application (IT) No.21

of 2006 and order dated 5 January 2012 passed in Review

Application (IT) No.1 of 2010 are aside.

(ii)Application (IT) No. 21 of 2006 is allowed and made

absolute in terms of prayers made therein and

accordingly approval is granted to the action of removal

taken against the Respondent by the Petitioner vide

letter of removal dated 30 November 2006.

43) The Writ Petition is allowed in the above terms. Rule is

made absolute. There shall be no order as to costs.

[SANDEEP V. MARNE , J.]

PAGE NO. 28 of 28

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NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.07.07

20:11:15

+0530