1981 Supreme(Raj) 161

Rajasthan High Court, Jaipur Bench
S.C. Agrawal, J.
Dinesh Khare - Appellant
Versus
Industrial Tribunal, Rajasthan - Respondents
S.B. Civil Writ Petition No. 920 of 1972
Decided On : December 01, 1981

Headnote:Industrial Disputes Act, s.33(2)(b) Application by Employer for approwal of proposed action Tribunal has to examine whether conditions laid down has been fulfilled—Non fulfilment of condition regarding payment of wages in full—Wages payable in lieu of notice to be paid in full without deduction of provident fund contribution—Where wages already determined by proper authority wages payable would be the wages so determined despite the fact that the amount so determined was being disputed in by way of writ or suit.

       Sub-section (2) of Sec. 33 deals with such actions proposed to be taken in regard to matters not connected with the dispute and in such cases, it is necessary to obtain the approval of the authority concerned for the action that is taken. While dealing with an application for approval, the tribunal is required to examine as to whether the conditions laid down in the proviso to Sec. 33(2) (b) have been fulfilled and if the tribunal finds that the same have not been fulfilled, it would be open to it to dismiss the application and refuse to grant approval, and the effect of such refusal to grant approval would be that the action taken by the employer would he void and inoperative. For the purpose of deciding whether the proviso to Sec. 33 (2)(b) has been complied with the factual position that existed on the date of the passing of the order terminating the service of the workman has to be taken account and if the parties are agreed with regard to the amount of wages then, that should form the basis for payment and in the event of disagreement between the parties the tribunal can take into account any previous adjudication with regard to the amount of the wages payable to the workman concerned and if there is no such determination the tribunal should not make such a deter mination. In the present case, on the date of the passing of the order dated 23rd Nov. 1970, there were orders passed by the Labour Court. It is true that the aforesaid orders were under challenge in the writ petitions filed before this Court and in suits pending before the Court of Munsiff Magistrate, and that in some of these proceedings stay order had been obtained, But, there is no dispute that the order dated January 3, 1969, passed by the Labour Court in the proceedings under Sec. 17 of the Working Journalists Act wherein the monthly wages of the petitioner for the period July 1, 1967 to November, 30, 19 8 were computed @ Rs. 661.50. The management; while taking action against the petitioner, could not ignore the said adjudication. One months wages which are payable under proviso to Sec. 33(2)(b) stand on the same footing as wages paid in lieu of notice for terminating the services of the employee under the Standing Orders. One months wages which are paid to the workman under the proviso to Sec. 33(2)(b), cannot therefore be regarded as representing emoluments earned by the workman concerned while on duty. The said payment is to be made in view of the require-ments of the proviso to Sec. 32(2)(b) and it relates to the period the workman will not be in service, and therefore, will not be on duty. Provident fund contribution was not payable on one months wages to which a workman is entiled under Sec. 33(2Xb) and the management could not make the deduction for provident fund contribution from the one months wages for the purpose of paying the same to the petitioner at the time of the passing of the order dated 23/11/1970. {Paras 20, 32, 36, 41)