1. These four applications have been made by the Garment Cleaning Works, Bombay, against the four employees named in them. These employees were chargesheeted on the came day for the same set of facts, one common departmental enquiry was held against them and dismissal orders in identical terms were served on them. The learned advocates requested me to hear the four applications together and make one composite order. I have agreed to do so.
2. The charges levelled against the opponents were :
(1) Acting in a manner subversive of discipline and insubordination towards the partner, Sri Padia.
(2) Instigating the workmen in the Gowalia Tank Factory to go on an illegal strike which was also unjustified.
(3) Taking part in an illegal strike which was unjustified (Ex. C. 2).
The departmental inquiry was held on 14 January 1960 and 23 January 1960 and dismissal orders were served on the four opponents on 28 January 1960. In the order it was also stated :
'Along with this order you are informed hereby to collect your legal dues [including one month's wages as per S. 33(2) of the Industrial Disputes Act, 1957], from the head office.' (Ex. C. 3.)
It is admitted that instead of paying one month's wages as stated in the dismissal orders, the opponents were paid either Rs. 5 or Rs. 10. Opponent Babulal Shamlal did not accept Rs. 10 which was offered to him. The opponents contend that although they were prepared to take a whole month's wages, the company did not pay it, whereas the company's contention is that they refused to accept the full month's wages as they thought that their case might be prejudiced.
3. Sri P. D. Kamerkar for the opponents has raised a preliminary objection to the maintainability of the applications on the ground that one of the conditions precedent laid down in the proviso to S. 33(2)(b) was not fulfilled by the company before dismissing the opponents.
4. The proviso to S. 33(2)(b) is in the following terms :
'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 ?'
Sri Kamerkar's argument is that one month's wages not having been paid, the tribunal should not grant its approval to the action taken by the employer. So we must first see, if the amount was offered but was not accepted by the opponents or whether the amount was not paid by the employer.
5. All the four opponents have given their evidence before me in support of the affidavit that they have filed (Ex. U. 1). All of them say that when they were asked to collect their dues including one month's wages from the head office, they went to the head office but were not paid the wages. Opponent Babulal Shamlal says :
'I went to the head office. I demanded my dues from the cashier . . . He said 'go to the labour officer and the union, settle the matter and then come to me' . . . It is not true that I did not go to the cashier at all and demand my dues. I have not taken Rs. 10.'
Opponent Aziz Ahmed says :
'It is not true that I did not go to collect my dues. I went to the labour officer to collect my dues. He said I should go to the cashier. I went to the cashier. The cashier asked me to go to the Seth. I went to the Seth. The Seth sent me back to the cashier after I had persuaded him. The cashier paid only Rs. 5. It is not true that I did not want the whole amount but I said I would take only Rs. 5 and that therefore Rs. 5 were paid to me.'
Opponent Babu Galgali says :
'On the very day at 8-30 p.m., More and I went to the manager. The dismissal order is signed by the manager. We went to him for making an account of our dues. He paid both of us Rs. 10 each. When we asked him why we were being paid only Rs. 10 each, he asked us to go to the union. It is not true that we told the manager, that as we wanted to challenge our dismissal in Court we would not receive all our dues but would take only Rs. 10 for expenses. Whatever be paid we had to accept.'
Opponent More says :
'The manager paid me Rs. 10 and asked me to collect the balance from the union. We went to Nana Sawant, general secretary of the union, and told him that we were paid only Rs. 10 . . . It is not true that the manager asked us to take the full dues. It is not true that as we wanted to challenge the dismissal, we would not accept the whole amount but would take Rs. 10 only for expenses.'
6. The company examined the manager and cashier. Earlier it had examined the labour officer also. The labour officer says that he instructed hie clerk to prepare vouchers regarding the amounts that were to be paid to the opponents and that the vouchers were prepared on 28 January, 1960, that the vouchers were in his office all along. He further says that no one told him that the opponents had refused to accept the full amounts. The manager says that one or two of the opponents went to him for advance, that he told them that as they were dismissed, they should take the full amounts, that they said that they would take an advance of Rs. 10 only, that therefore he wrote on their cards that Rs. 10 be paid to them. He admits that he did not note down that although the full amount was offered to them he had refused to take it. The cashier tells us :
'A dismissed employee comes to my department for payment. We send him to labour department to get account from that department about his dues. There the dues are calculated and a voucher is prepared. The voucher is brought to us and we make payment. I know the opponents. They never came to me for receiving their dues.'
Then in his cross-examination he says :
'I have not read any rules regarding payment of dues to dismissed employees. No one has told me that if I am dismissed I would have to go to the labour office for calculation of my dues. There is no notice on the board laying down the procedure for receiving payment upon dismissal . . . Petty cash is paid out by my assistant ... I was not present when the assistant made payment to the opponents.'
7. From the evidence that is led before me I am satisfied that it was the management who failed to make full payment. There could possibly be no substance in the contention that the opponents received Rs. 5 or Rs. 10 'for expenses' when the full amounts were offered to them. Secondly, if the opponents refused to accept the full amounts, the management should have noted that fact down somewhere. They could have taken the trouble to send the amounts to the opponents by money order. Had the management done all it could, to comply with the condition precedent, it could be said that in spite of the refusal on the part of the opponent, the conditions had been complied with.
8. The next question is : Can we say that the non-payment of the month's wages was only a technical contravention of the condition precedent In the case of Premier Automobiles v. R. B. Polkam 1960 I L.L.J. 444 the Bombay High Court was dealing with the contravention of the first condition, namely, that of applying to the tribunal for approval before taking action, and their lordships said that the employer was bound to make the application for approval before taking action. In the case of Firestone Tyre and Rubber Company of India (Private), Ltd. [Bombay Government Gazette, Part I-L., dated 14 January, 1960, P. 197], President Sri M. R. Moher held that if there was no undue delay in making the application, then the tribunal was not precluded from going into the merits of the case and granting its approval if it was satisfied with the employer's case. I followed his view in the matter of an application made by the Garment Cleaning Works against one of its employees Sri Kumar. That application was decided by me on 14 March, 1960. In the case before the President, there was a delay of eleven days. But that delay had been very satisfactorily explained. In Kumar case there was only a day's delay. But neither the president nor I was called upon to consider contravention of the second condition.
9. In my opinion there could be no technical contravention of the condition regarding payment of a month's wages. The management is bound to pay or at any rate make all possible effort to pay the month's wages. If in spite of its efforts the employee refuses to take the amount, the management must prove that fact conclusively. In the present case, the management has failed to do so.
10. Sri P. D. Kamerkar drew my attention to the case of State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC , where the Supreme Court was dealing with the question of payment of retrenchment compensation under S. 25F. Three conditions have been prescribed under S. 25F which must be fulfilled before an employee is retrenched. It was urged before their lordships that non-compliance of one of those conditions did not render the employer's action invalid. Their lordships observed as follows :-
Page 255 : 'Now, turning to the first point, it may be stated that the facts on which the respondents' plea is based are not in dispute. It is conceded that the services of respondents 2 and 3 have been retrenched though it may be for the purpose of making room for other Government servants with a longer record of Service - it is also not disputed that the said respondents had not been paid, at the time of retrenchment, compensation as prescribed by S. 25F(b). On a plain reading of S. 25F(b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman. The section provides that no workman shall be retrenched until the condition in question has been satisfied. It is difficult to accede to the argument that when the sanction imposes in mandatory terms a condition precedent, non-compliance with the said condition would not render the impugned retrenchment invalid - that being so, failure to comply with the said provision renders the impugned orders invalid and inoperative.'
11. It is true that we are, in the present applications, concerned with a different section of the Industrial Disputes Act. But I agree with Sri Kamerkar that there is much similarity in the two provisions. The proviso to S. 33(2)(b) lays down that no workman can be dismissed or discharged under S. 33(2)(b) unless certain conditions are fulfilled. Section 25F lays down that no workman can be retrenched until certain conditions are fulfilled. Those conditions in both the sections are mandatory provisions and they must be complied with before a workman is dismissed or discharged or retrenched. The only difference that one may point out is that whereas in S. 25F the word 'until' is used, in the proviso to S. 33(2)(b) the word 'unless' is used. In my opinion it is not necessary elaborately to discuss the subtle difference in the meaning of the two words. One of the meanings of the word 'unless' is 'save' or 'except.' 'Until' means 'up to the time that.' So S. 25F would read :
'No workman can be retrenched up to the time that retrenchment compensation is not paid';
and the proviso to S. 33(2)(b) would read :
'No workman can be dismissed or discharged under S. 33(2)(b) except by making an application for approval and by paying one month's wages.'
The result is the same. Therefore I am of the view that non-compliance with the mandatory provision regarding payment of one month's wages renders the management's application unmaintainable. I therefore decline to accord my approval to the action taken by the management against all the four opponents.