M. Anantanarayanan, C.J.
1. This appeal has been instituted by Messrs. Presidency Talkies (Pvt) Ltd., Proprietors of Paragon Talkies, Madras, from the judgment of Veeraswami, J., in W. P. 815 of 1962, declining to issue a writ of certiorari quashing the award of the Labour Court in respect of one R. Venugopal, an employee of the petitioner firm and the main respondent.
2. The facts are quite simple, and may be briefly referred to, at the outset. The employee (R. Venugopal) was suspended on 19-6-1961 upon the main charge that he exhibited an advertisement slide without the permission of the management. It will be easily appreciated that advetisement slides are exhibited during a performance as a consequence of contracts between the advertising firms and the management; the management derives a revenue from such exhibition of slides, which may be considerable. Hence, if a slide, the exhibition of which is not authorised by the management, is deliberately exhibited by an employee during a performance, the concerned firm obtains the benefit of the advertisement, to the definite loss of the management. Such behaviour on the part of an employee, if deliberate and not otherwise justified, may certainly amount to misconduct, and even misconduct of a grave character.
3. An enquiry was held by the Management on 17-7-1961, and on 25-7-1961, the Management drew up minutes referring to the evidence, holding that the charge was proved, and purporting to record the dismissal of the employee. As this occurred during the pendency of proceedings in respect of an industrial dispute, the management sought the sanction of the Labour Court, for approval of the contemplated action of dismissal, under Section 33(2)(b) of the Industrial Disputes Act. Independently of this, the employee seems to have filed an application under Section 33-A, before the Labour Court complaining that the management had not complied with the requirements of Section 33(2)(b) and that the petition of the management was therefore liable to be dismissed. Both these petitions were apparently tried together, and disposed of by a single award or order of the Labour Court, declining to grant the sanction. The writ petition was filed, as we stated earlier, to quash this award.
4. The learned Judge, (Veeraswami, J.) has dealt only with one ground of alleged non-compliance on the part of the management, under Section 33(2)(b). That ground was that the worker was not paid his wages for one month, as required by the proviso to Section 33(2)(b) before the management purported to record his dismissal. The learned Judge went into this question, and negatived the argument of learned Counsel for the management that an offer of one month's wages, where this offer is refused by the worker, would be adequate compliance with the law. The learned Judge appears to have thought that. In any event, there was no plea that one month's wages were offered on or prior to the date of dismissal. The learned Judge observed that there was a plea that one month's wages were offered and that the offer was refused.
5. On the facts, we are afraid that there has been more than one misconception of misstatement of fact before the learned Judge, as the facts have been referred to and discussed in the judgment. We have gone into this matter carefully, and there can be no doubt whatever that the management did allege, and alleged repeatedly, that there was an offer of one month's wages to the concerned employee (respondent) prior to the filing of the application, which was not accepted. In view of the vagueness, on this aspect, in the judgment of the learned Judge, we think that it would be desirable to refer to the actual record. On 25-7-1961, the management filed the first application before the Labour Court under Section 33(2)(b) of the Act. This is paragraph 1 (a) of that petition-
'The workman has been dismissed for the reasons stated below, under the provisions of Section 33(2)(b) of the Industrial Disputes Act 1947, and has been paid one month's wages'.
A counter statement to this was filed by the workman, which is also on record. It is a matter both of record and admission that, in this counter statement, this averment has not been refuted in any manner. Consequent upon the return of this petition for technical reason, the management filed a second petition before the Labour Court under Section 33(2)(b), namely I. D. No. 31 of 1961. In this it is stated that
'he (the workman) has been paid one month's wages according to the proviso thereto, but the said workman has refused to receive the same'.
6. There are two points here, which can be very briefly clarified. The first point is, what is the legal interpretation of the word 'paid' as occurring in Section 33(2)(b) proviso? Does it mean not merely that the Management should make the offer of one month's wages, but also that the workman should necessarily accept the wages, a matter depending entirely on his volition, before the Management could act further? The answer to this is to be found in Straw Board . v. Govind, : (1962)ILLJ420SC , wherein their Lordships observed 'that the employer when he takes the action under Section 33(2) by dismissing or discharging an employee, should immediately pay him, or offer to pay him, wages for one month and also make an application to the Tribunal for approval at the same time.' Therefore it is clear that, where as in this case, the employee spurns the offer, the Management would have fulfilled its obligation by making the offer; the Management need not secure, as indeed it cannot secure, the acceptance of the offer by the employee, before filing the application.
7. The second point is, what is the precise point of time at which, or prior to which, such an offer should have been made, for the offer to be considered as compliance with the law? This, again, is answered by the same observations of the Supreme Court that we have just referred to. As will be clear from those remarks, the offer should have been made simultaneously with the application or prior thereto, depending on the facts of each case. In the present case, even the very first application claimed that the pay was offered to the workman, or had been 'paid' in that sense. And this claim was not even refuted by the workman. In the second application, treating that as the effective one, the same averments are to be found, and there was no denial or counter-statement.
8. Under these circumstances, we are afraid that the learned Judge, (Veeraswami, J.,) was under a misapprehension when he thought that there was non-compliance with Section 33(2)(b) of the Act, on the part of the employer. As regards the offer of one month's wages to the employee, there has been no non-compliance whatever, and the employee did not even controvert the allegation of the employer made at the material point of time that, at that time or prior to it, a month's wages had been offered to the employee and had been refected by the employee. It is clear that the employer organisation has no means of compelling an unwilling employee to accept one month's wages. If indeed that were to be the law, every application under Section 33(2)(b) could be defeated, by the simple device on the part of the workman of not taking the offered wages.
9. It follows that the only ground on which the writ petition was dismissed, cannot be sustained by us. But before the Labour Court, there was another ground mooted though it was not dealt with by the learned Judge. In referring to this ground, we might briefly cite the observations of their Lordships of the Supreme Court in Lord Krishna Textile Mills v. Its Workman, : (1961)ILLJ211SC . As the Supreme Court pointed out, the appropriate authority dealing with an application under Section 33(2)(b) cannot examine the facts, as an appellate court might do. It is only if the authority is satisfied that the finding recorded at the domestic enquiry is perverse, in the sense that it is not justified by any legal evidence whatever, that the authority may be entitled to decline approval. Their Lordships have stressed the difference between a finding not supported by legal evidence, which is sometimes loosely called the 'No evidence' rule of Judicial Review, and a finding supported by evidence, which an authority exercising jurisdiction under the Industrial Law, may not itself consider adequate or satisfactory.
10. In the present case the complaint appears to be that the evidence about the misconduct was forthcoming only from witnesses referred to by the employee himself. We find that even this complaint strictly speaking, may not be justified. For, though the record refers to the manager and the operator as witnesses referred to by the employee, they appear to have been examined in chief for the employer organisation, and cross-examined by the employee. However, since we are not in a position to judge whether there was legal evidence in support of the charge or otherwise, this matter not having been dealt with at all by the learned Judge (Veeraswami, J.,) we allow the appeal to the extent of setting aside the judgment of the learned Judge, and issuing a writ of certiorari quashing the award. This displacement of the award now releases the proceeding for further action by the Labour Court, if the employee desires to ventilate his grievance further, and the management also wants the approval of the Labour Court now under Section 33(2)(b). No order as to costs.