The special pay for family planning incentive was integral to the wages and its non-payment violated the mandatory condition of Section 33(2)(b) of the I.D. Act.

JUDGMENT :

GAURANG KANTH, J.

1. The present petition has been filed under Article 226/227 of the Constitution of India for setting aside the order in O.P. No. 421/1993 titled as “The workman Sh. Kalu Prasad v. The Management Delhi Transport Corporation” dated 06.11.2009 passed by the learned Presiding Officer, Industrial Tribunal-II, Karkardooma Court (hereinafter the “Impugned Order”). By virtue of the impugned order, the learned Labour Court dismissed the application preferred by the Petitioner/Management under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter “I.D. Act”).

2. The learned Labour Court vide the Impugned Order held that the amount of Rs.20/- as special allowance towards family planning incentive ought to have been included in one-month wages paid to the Respondent/Workman and failure to do so has resulted in non-compliance of the proviso to Section 33(2)(b) of the I.D. Act.

3. The Respondent, Kalu Prasad was employed as a Conductor with the Petitioner. On 01.05.1992, while the Respondent was on duty on Bus No. 6325, he was checked by the checking staff. Thereafter, some irregularities were found, it was alleged that (1) the Respondent did not issue tickets to five passengers after collecting the due fare of Rs.2 from each of them; (2) the Respondent refused to get his cash and hand block tickets checked; (3) the Respondent refused to accept his challan; (4) the Respondent misbehaved with the checking officials.

4. On the basis of report of Shri Chhedi Lal, ATI, a chargesheet dated 19.05.1992 was issued by the Depot Manager to the Respondent in view of the abovementioned irregularities. An oral inquiry was held qua the charges. During the inquiry, statement of Hari Singh, Tr. Sup., Roshan Lal Sharma, T.I. and R.R. Rana, ATI were recorded. The Inquiry Officer found all the charges levelled against the Respondent as ‘proved’.

5. The Disciplinary Authority further issued a show-cause notice dated 30.06.1993 to the Respondent regarding why he should not be removed from the service to which the Respondent did not provide any response. Thus, the Respondent was removed from the service on 15.07.1993 and one-month wages amounting to Rs. 2,518/- by Money Order No. 1985 & 1986 dated 15.07.1993 was remitted. The break-up of the wages was as follows:

6. On the same day, the Petitioner filed an approval application under Section 33(2)(b) of the I.D. Act as required by the statute. The Respondent filed his Written Statement, inter alia, denying payment of one-month wages. The learned Labour Court vide Order dated 09.10.2009, decided the issue of validity of the departmental inquiry in favour of the Petitioner.

7. The learned Labour Court vide impugned Order dated 06.11.2009 further held that the Petitioner failed to prove that it had paid one-month last drawn wages at the time of Respondent’s removal from service. It was held that the Respondent was entitled to Rs. 20/- as family planning incentive, which was not paid to him even though it was a part of his wages. Accordingly, the learned Labour Court dismissed the Petitioner’s approval application under Section 33(2)(b) of the I.D. Act.

SUBMISSION ON BEHALF OF THE PETITIONER

8. Mr. Uday N. Tiwari, learned counsel on behalf of the Petitioner submitted that the Respondent was reinstated in service during the pendency of the matter. He submitted that the special pay given to an employee for promoting small family norms is not a part of the wages within the meaning provided to it in Section 2(rr) of the I.D. Act.

9. The Impugned Order is liable to be set aside since a similar issue regarding inclusion of special allowance for family planning in onemonth wages was in consideration