R.S.Narula, J. - (1.) THE questions that arise in this case relate to the true scope and proper construction of the proviso to Clause (b) of Sub -section (2) of Section 33 of the Industrial Disputes Act (14 of 1947) (hereinafter called the Act). These questions have arisen in the following circumstances: Kanhaya Lal Sharma Respondent No. 2 (hereinafter referred to as the employee) was dismissed on grounds of misconduct with effect from February 15, 1969, by order of the Manager of the Appellant -company, dated February 14, 1969 (Annexure 'J' to the writ petition). Notice Annexure 'K' of the same date was given by the Appellant to the employee in which after referring to his misconduct, etc., and telling him that he had been dismissed from the Appellant's service with effect from February 15, 1969, it was stated as below: In view of the pendency of an industrial dispute relating to this organisation before the Industrial Tribunal, Haryana, an application for the approval of our action in dismissing you from the service of this company, is simultaneously being made by the Management as required under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947. You can collect your legal dues from the Accounts Department on 15th February, 1969, along with one month's wages of which you are entitled to as per provisions of the Industrial Disputes Act, 1947, vis -a -vis the approval from the Tribunal, and 37 days average pay as suspension allowance at the rate of half of your average pay as per Clause 20(11) of the Standing Orders, when the suspension was necessitated for purposes of enquiry. For rest of the days, you have not been found entitled to any suspension allowance for your own default. This notice was served on the employee on February 14, 1969. He did not turn up on February 15, 1969, to collect the amount offered to him in the notice. February 16, 1969, happened to be Sunday. On Monday next, that is on February 17, 1969, the Appellant remitted to the employee by money order the amount of his one month's salary. By now it is the common case of both sides that the amount remitted to the employee did not include the sum of Rs. 6 to which he was entitled in terms of some ad hoc relief which had been granted to him by the Appellant by accepting the recommendations of the Wage Board. The employee accepted the amount remitted to him by money order without lodging any protest. On the same day, that is on February 17, 1969, the Appellant made application Annexure 'L' to the Industrial Tribunal, Haryana, under the proviso to Section 33(2)(b) of the Act for approval of the order of the employee's dismissal. In paragraph 17 of the application, the Appellant had stated as follows: That Shri Kanhaya Lal Sharma having not come to the factory on 11th February, 1969, as directed, was sent for on the 15th February, 1969 and having declined to come and also when the Labour Officer, Shri R.P. Jaggi himself having gone to his house on the 15th and 17th February, 1969, not having found him there and 15th February, 1969, being a postal holiday due to 'Maha Shivratri', and 16th February being a Sunday, the dismissal order has been sent to him today the 17th February, 1969, by registered A.U. at his house address. His one month's salary as required to be paid to him under Section 33(2)(b) of the Industrial Disputes Act, 1947, has been sent to him by money order today, the 17th February, 1969, - -vide money order receipt No. 4319, dated 17th February, 1969. In paragraph 18 of the said application, the Appellant offered the employee to collect his 37 days average pay as suspension period allowance as per provisions of the Standing Orders besides his other dues from the Accounts Department of the factory on any working day during office hours. That particular offer is not directly concerned with the requirements of the proviso in question. In his reply (Annexure 'M', dated April 1, 1969), to the application for approval (Annexure 'L'), no plea was taken by the employee about the non -payment of the disputed amount of Rs. 6 or about the amount paid to him by money order being deficient. The employee did, however, make a separate application (Annexure 'N'), dated April 1, 1969, under Section 33 -C(2) of the Act for payment of his earned leave wages amounting to Rs. 402 for the years 1967 -68, and for wages for suspension period of four months and 19 days at half the normal wages amounting to Rs. 417. In all he claimed Rs. 819 in that application. Notice of that application having been given to the Appellant, the claim of the employee contained in Annexure 'N' was settled to the satisfaction of the employee by payment of a sum of Rs. 615 to him which was evidenced by the employee's receipt Annexure 'O' which is in the following words: Received the following amount from Messrs Lakshmiratan Engineering Works Ltd., through Mr. R.P. Jaggi, Labour Officer, N.I.T., Faridabad in full and final settlement of all my dues as per details below: (1) 651/2 days leave with wages @ Rs. 180 per month ... Rs. 393.00 (2) 37 days wages for suspension period pending enquiry ... Rs. 222.00 Total ... Rs. 615.00 (Rupees six hundred and fifteen only) Sd/ - . . .,Kanhaya Lal Sharma,26 -6 -1969.
(2.) AN objection was taken by the employee before the Industrial Tribunal that the amount of one month's wages paid to him by money order was deficient, inasmuch as the amount due to him on account of interim relief had not been paid to him. The Appellant did not for a moment canvass before the Tribunal that there was either any clerical or accidental error in the calculation of the amount remitted to the employee by money order or that the offer made to the employee in the notice Annexure 'K' was for the whole amount including the disputed sum of Rs. 6. The position taken up on behalf of the Appellant before the Tribunal is summed up in the impugned order of the Tribunal in the following words: The position taken up on behalf of the management is that interim relief does not constitute a part of the wages because this relief is being paid by the management voluntarily on the basis of the recommendations of the Wage Board which have no statutory force. The contention of the learned representative of the management is correct to this extent that the recommendations of the Wage Board are not binding on the parties and the management is not bound to implement the recommendation or to pay any interim relief but the position is different if the management of their own accord choose to grant any interim relief to their workman in pursuance of an agreement express or implied. The above -quoted contention of the Appellant was rejected by the Tribunal, and it was held that the Appellant was not entitled to deduct from the workman's wages for one month the amount of the interim relief which had been granted to the employee voluntarily by the Appellant, and which was not claimed to be any ex -pratia payment. When that contention failed, the representative of the management asked for further time for arguments, and when he was not able to find any authority in support of the view that interim relief does not constitute a part of the wages, he made a statement that the management was prepared to pay the amount of the interim relief as well. This is stated in the last paragraph of the impugned order of the Tribunal. This matter was dealt with and disposed of by the Tribunal in the following words: He (representative of the management) stated that if the Tribunal is of the opinion that the interim relief also forms part of the wages, the management have no objection to make this payment also because this constitutes only a very small part of the wages. This submission of the learned representative of the management is also correct but the question is whether the services of the Applicant can be considered to have been validly terminated with effect from 15th February, 1969, when the mandatory requirement of the law i.e. tender of one month's wages has not been knowingly complied with. Had it been the case of the management that they intended to pay full one month's wage due to the workman and a lesser amount has been paid to him by reason of a bona fide mistake in the calculation then the matter would have been different. We have already seen that the position in the present case was that the management all along took up the stand that the interim relief does not constitute a part of the wages and therefore, it was not sent to the workman along with his wages and dearness allowance, etc., and when this question came up for arguments and the attention of the learned representative of the management was drawn to the definition of the term "Wages" as given in Clause (rr) of the Industrial Disputes Act and reproduced above, the learned representative of the Management asked for further time for arguments and when he was not able to find any authority in support of the view that interim relief does not constitute a part of the wages, he made a statement that the management are prepared to pay the interim relief as well. Under these circumstances there is no option but to hold that the omission to pay the interim relief was intentional on the part of the management. No other ground having been urged before the Industrial Tribunal, he held that the provision of Section 33(2)(b) of the Act had not been complied with and therefore, declined to approve of the employee's dismissal. That order of the Tribunal was sought to be quashed by a writ in the nature of Certiorari in the Appellant's C.W.P. No. 2587 of 1970. The learned Single Judge before whom the writ petition came up for final disposal dismissed it by his order, dated October 12, 1972. The first argument which was pressed before the learned Judge was the same which had been advanced before the Tribunal, namely that the interim relief could not be claimed by the employee as a matter of legal right, and the recommendations of the Wage Board were not binding on the Appellant. That argument was rightly repelled by the learned Single Judge, and has not been advanced before us at all. On the other hand that stand has been expressly given up before us by the learned Counsel for the Appellant.
(3.) THE next point that was urged before the learned Single Judge was that the employee did not even appear to be aware of his entitlement to the ad hoc or interim relief when he made the application under Section 33(2) (Annexure 'N') claiming wages at the rate of Rs. 180 per mensem for the period of leave and suspension, or even when he passed out the receipt Annexure 'O' in full and final settlement of his dues for those periods. That argument did not find favour with the learned Judge in Chambers on the ground that there could be no estoppel where the truth of the real position was known to the management -Appellant, and on the additional ground that the employer's obligation to make the pay ment or tender of one month's wages in accordance with the proviso to Section 33(2)(b) of the Act at the time of the filing of his application for approval of the proposed action of the workman's dismissal from service may appear to be independent of his obligations to pay the wages for leave and suspension periods.;