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PETITIONER: BHARAT ELECTRONICS LIMITED, BANGALORE

       Vs.

RESPONDENT: INDUSTRIAL TRIBUNAL, KARNATAKA,BANGALORE AND ANR.

DATE OF JUDGMENT15/03/1990

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MISRA RANGNATH REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1080            1990 SCR  (1) 971  1990 SCC  (2) 314        JT 1990 (1)   431  1990 SCALE  (1)443

ACT:     Industrial Disputes Act,  1947: Section 33(2)(b)--’Night shift allowance’--Whether ’Wages’

HEADNOTE:     Respondent-workman  was in employment of the  Appellant- management  as Bus driver. Following an incident of  miscon- duct  committed  by him, a domestic  inquiry  was  conducted against  him under Standing Orders 15(1)(b) and 15(1)(r)  of the Company wherein he was held guilty by the Enquiry  Offi- cer  and was eventually dismissed from the service  w  .e.f. 31.12.1979.  On  that  day itself the  management  moved  an application  before  the Industrial Tribunal  under  section 33(2)(b)  of  the Act for approval of the action  taken  and towards  meeting the requirements of the provisions  of  the act paid to the workman before hand wages for one month. The workman  filed his objection Statement to  that  application raising several contentions denying all the allegations made against  him  and challenging the validity of  the  domestic enquiry.  This application somehow was kept pending  by  the Tribunal for over six years when sometime in July, 1986  the workman  moved  an application before the  Tribunal  seeking amendment  of his objection petition to urge  an  additional ground that one month’s wages paid to him were short by  Rs. 12, being the monthly night shift allowance as he was  ordi- narily  expected to work by rotation as per standing  orders of  the Company and thus as full one month’s wages  had  not been  paid to him as required under section 33(2)(b) of  the Act,  the  approval  sought for ought to  be  declined.  The management  contended  that  the night  shift  allowance  is neither paid nor payable unless the night shift is  actually performed  and  thus  this amount cannot form  part  of  the month’s  wages automatically. The Industrial Tribunal  while abandoning giving any finding on the validity of the  domes- tic  enquiry, upheld the additional objection taken  by  the workman  and declined the management’s  application  seeking approval to the dismissal of the workman. Hence this  appeal by  special leave by the management. Setting aside  the  im- pugned judgment and order of the Tribunal and allowing their application  made under section 33(2)(b) of  the  Industrial

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Disputes Act, this Court in allowing the appeal, 972     HELD:  The workman had to earn night shift allowance  by actually  working in the night shift and his claim  to  that allowance  was  contingent upon his reporting  to  duty  and being  put to that shift. The night shift allowance did  not automatically form part of his wages and it was not such  an allowance  which  flowed  to him as an  entitlement  of  his service. [981C]     The  Tribunal fell into a grave error in  declining  the application of the management for approval on the ground  of short payment of Rs. 12 on account of night shift allowance, which  the workman supposedly would have earned had he  gone to report for duty. [981D]     Syndicate  Bank  Limited  v. Ram  Nath  Bhat,  [1967-68] (XXXX)  FJR  490 at 497; M/s. Podar Mills  Ltd.  v.  Bhagwan Singh  and Another, [4974] 3 SCC 157; Bennett Coleman &  Co. (P)  Ltd.  v. Punya Priya Das Gupta, [1970] 1  SCR  181  and Dilbagh  Rai  Jarry v. Union of India & Ors., [1974]  2  SCR 178. referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  744  of 1987.     From  the  Judgment  and Order dated  9.10.1986  of  the Industrial Tribunal Karnataka in Serial No. 1/80 in I.D. No. 26 of 1979.     Narayan B. Shetye, Vineet Kumar and Vinay Bhasin for the Appellant. M.C. Narasimhan and Jitender Sharma for the Respondent No. 2. The Judgment of the Court was delivered by     PUNCHHI,  J. Whether "night shift allowance" forms  part of "wages" in the context of section 32(2)(b) of the  Indus- trial  Disputes Act, 1947 (hereinafter referred to  as  ’the Act’)  is  the  issue which crops up for  decision  in  this appeal  by special leave against the order dated October  9, 1986  of the Industrial Tribunal, Karnataka at Bangalore  in Serial No. 1 of 1980 in I.D. No. 26 of 1979. It arises on these facts.     Bharat  Electronics Limited, Bangalore,  the  appellant- herein,  is  the  "management" and the  respondent  Shri  B. Sridhar, "workman" 973 was  in employment with the management as a bus driver.  The establishment  of the management, at the relevant time,  had about 13,500 employees out of whom about 2,800 were females. The management provided transport facilities for picking  up and  dropping  down  its employees from  and  at  stipulated official stops. The driver,, plying buses of the  establish- ment on a rotational basis, working on night shifts, used to get  a  variable night shift allowance. On May 1,  1979  the workman was detailed to work in the first shift for  picking up certain employees of the second shift and general  shift, and  for  drop. ping school children  at  various  scheduled points.  He was also detailed to pick up  female  employees, who were to report for the shift commencing from 10.30  a.m. to  7.00 p.m. from the stipulated official stops.  En  route the workman did not park his vehicle at one of the stipulat- ed  establishment bus stops but rather quite away  from  it, which  caught the attention of Shri K.L. Balasubramaniam,  a senior Engineer in the employment of the Management  wanting to  go the factory. Shri Balasubramaniam went there  and  in

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the process of boarding the bus enquired whether he could go to the factory in the same bus. He was in for a shock to see the workman indulging in sexual act with a woman in the gang way of the bus. The sudden appearance of Shri Balasubramani- am surprised the workman and he abruptly and falsely replied in  the negative. The matter was reported to the high  offi- cials of the Management. He confessed his guilt before  Shri M.V. Subbarayappa, Deputy Manager, Transport. The misconduct committed  by  the workman became the subject  matter  of  a domestic enquiry. At the enquiry S/Shri Balasubramaniam  and Subbarayappa appeared for the management and deposed to  the aforesaid  facts.  The  Enquiry Officer  found  the  workman guilty  of  the  misconduct imputed  under  Standing  Orders 15(1)(h)  and  15(1)(r)  of  the  Standing  Orders  of   the Company.The  workman was thereafter dismissed  from  service with  effect from December 31, 1979. On that very  day,  the management  sought  approval from the  Industrial  Tribunal, Karnataka at Bangalore under section 33(2)(b) of the Act  of the action taken and towards meeting the requirement of  the provision paid to the workman before-hand a sum of Rs.607.90 as wages for one month,     Before  the  Industrial Tribunal the  workman  filed  an objection  statement  raising  various  contentions  denying inter alia the allegations made against him and  challenging the validity of the domestic enquiry. It somehow kept  pend- ing  for over six years though under the  unamended  section 32(5), it was required of the Tribunal to without delay hear the  application and pass such order in relation thereto  as it deemed fit. Now with effect from 21-8-1984, three  months time limit is 974 fixed though extendable by an order in writing. Anyway while that  was  in progress, he made an application on  July  13, 1986 before the Tribunal seeking amendment of the  objection petition  enabling him to urge an additional ground  to  the effect that one month’s wages paid to him were short by  Rs. 12,  the  monthly sum due for night  shift’  allowance.  The additional  objection was based on the premises  that  since the  workman was ordinarily expected to work on night  shift on  a  rotational basis as per the Standing  Orders  of  the Company,  such  allowance  should have formed  part  of  the wages. On that basis it was urged that since full wages  had not been paid to the workman, there was a serious infraction of the provisions of section 33(2)(b) warranting the  sought for approval to be declined.     The management could not, and did not, deny that  factu- ally the night shift allowance had not been included in  one month’s wages as paid to the workman. The management however maintained that the question of the validity of the domestic enquiry,  which the Tribunal had already undertaken,  should first be settled and that in any case the additional  objec- tion  raised by the workman required leading  evidence.  The management further contended that the night shift  allowance was neither paid nor was payable to the workman as he  could not be said to have earned it automatically as part of wages unless  he  had actually worked on the night shift.  It  was pointed  out that the said allowance was variable in  nature depending upon the number of shifts in which the workman had actually  performed  work. It was asserted  that  the  night shift  allowance is not payable to the workman when he  does not  come  for  work for any reason and thus  was  not  such allowance which would automatically flow even without  work- ing. Lastly it was projected that since during the  pendency of  the  domestic enquiry the workman was  under  suspension there  could otherwise arise no occasion for his  coming  on

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duty to earn the night shift allowance.     The  Presiding Officer, Industrial  Tribunal,  Bangalore relying on the views expressed by an Hon’ble Single Judge of the  Karnataka High Court in Writ Petition No. 6607 of  1985 decided  on  August 28, 1986, titled Ramakrishnappa  v.  The Industrial  Tribunal & Another, sustained the  objection  of the  workman  taking  the view that  night  shift  allowance should  have  formed part of one month’s wages and  on  that score  went alongwith the workman in abandoning  giving  any finding  the validity of domestic  enquiry.  Consequentially for  the view so taken the management was declined  approval to the dismissal of the workman. So the order of the  Tribu- nal taking that view is directly under attack in this appeal by special leave and indirectly at issue is the 975 correctness  of the decision of the Karnataka High Court  in Ramakrishnappa’s case aforementioned.     Two  provisions  of the Act which  would  require  being adverted to are these.     Section  2(rr)  provides  the  definition  to  the  word "wages". It reads as follows: "2.  DEFINITIONS--In  this  Act, unless  there  is  anything repugnant in the subject or context,           (rr)  ’wages’ means all remunerations  capable  of being expressed in terms of money, which would, if the terms of  employment,  expressed or implied,  were  fulfilled,  be payable  to  a workman in respect of his employment,  or  of work done in such employment, and includes-           (i) such allowances (including dearness allowance) as the workman is for the time being entitled to;           (ii)  the value of any house accommodation, or  of supply of light, water, medical attendance or other  amenity or  of  any service or of any concessional supply  of  food- grains or other articles; (iii) any travelling concession;           (iv)  any commission payable on the  promotion  of sales or business or both; but does not include-- (a) any bonus;           (b)  any contribution paid or payable by  the  em- ployer  to  any pension fund or provident fund  or  for  the benefit  of the workman under any law for the time being  in force;           (c) any gratuity payable on the termination of his service; Section 33(2)(b) as extracted reads as follows: 976           "33.  CONDITIONS   OF  SERVICE,  ETC.   TO  REMAIN UNCHANGED  UNDER  CERTAIN CIRCUMSTANCES DURING  PENDENCY  OF PROCEEDINGS-           (2) During the pendency of any such proceeding  in respect  of  an  industrial dispute, the  employer  may,  in accordance with the standing orders applicable to a  workman concerned in such dispute for where there are no such stand- ing  orders, in accordance with the terms of  the  contract, whether express or implied, between him and the workman],--           (b)  for  any misconduct not  connected  with  the dispute, discharge or punish, whether by dismissal or other- wise, that workman:           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 approv- al of the action taken by the employer."     It  is not disputed that section 33(2)(b) was  attracted

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to  the facts of this case. The only point, as said  before, is  whether  night  shift allowance was to be  paid  to  the workman  as part of wages even though he had  not  factually worked on the night shift.     The  definition of the word "wages", as given in  clause (rr)  of section 2 is comprehensive enough to include  (vide inclusion  1) such of the allowances as the workman  is  for the  time being entitled. Yet, despite  such  comprehension, the  inclusive meaning is subject to a meaningful change  if there  is anything repugnant in the subject or context.  The proviso to section 33(2)(b) mandates that unless the workman is  paid wages for one month and an application  as  contem- plated  is made by the employer for approval of his  action, no  such workman can be discharged or dismissed. The  inten- tion of the legislature in providing for such a  contingency is  not far to seek and as was pointed out by this Court  in the case of Syndicate Bank Limited v. Ram Nath Bhat,  [1967- 68]  (XXXII)  FJR 490 at 497 was "to soften  the  rigour  of unemployment  that  will face the workman, against  whom  an order  of  discharge  or dismissal  has  been  passed".  One month’s  wages as thought and provided to be given are  con- ceptually for the month to 977 follow,  the month of unemployment and in the context  wages for  the  month following the date of dismissal  and  not  a repetitive  wage of the month previous to the date  of  dis- missal. If the converse is read in the context of the provi- so to section 32(b), it inevitably would have to be read  as double the wages as earned in the month previous to the date of dismissal and that would, in our view be, reading in  the provision something which is not there, either expressly  or impliedly. We have thus to blend the contextual  interpreta- tion with the conceptual interpretation to come to the  view that night shift allowance could never be part of wages, and those would be due only in the event of working. This  Court in  M/s.  Podar  Mills Ltd. v. Bhagwan  Singh  and  Another, [1974]  3  SCC 157 ruled that the date  of  dismissal  under section  33(2)(b) is the date when the approval  application is filed, after dissmissal- With effect from that date,  the occasion to earn night shift allowance cannot, and will not, arise.     This  Court in Bennett Coleman & Co. (P) Ltd.  v.  Punya Priya  Das Gupta, [1970] 1 SCR 181 was called upon  to  rule whether  car  allowance and benefit of  free  telephone  and newspaper  were such allowances, includable in  wages  under section  2(rr) of the Act in order to determine a  claim  of gratuity of a journalist. This Court held as follows: "Since wages has not been defined in the Act, its meaning is the  same as assigned to it in the Industrial Disputes  Act. Under  s. 2(rr) of that Act, "wages" means all  remuneration capable  of being expressed in terms of money, which  would, if  the  terms  of employment, expressed  or  implied,  were fulfilled, be payable to a workman in respect of his employ- ment  or of work done in such employment, and  includes  (i) such allowances (including dearness allowance) as the  work- man is for the time being entitled to; (ii) the value of any house  accommodation, or of supply of light, water,  medical attendance  or  other amenity or of any service  or  of  any concessional supply of food-grains or other articles;  (iii) any  travelling concession; but does not include  any  bonus and other items mentioned therein. Mr. Ramamurthi’s argument was  that the car allowance as also the benefit of the  free telephone and newspapers would fall under the first part  of the  definition  as they are remuneration capable  of  being expressed  in terms of money. The argument, however,  cannot

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be  accepted as neither of them can be said to be  remunera- tion payable in respect of emp- 978 1oyment  or  work done in such employment. Neither  the  car allowance nor the benefit of the free telephone was given to the respondent in respect of his employment or work done  in such employment as the use of the car and the telephone  was not  restricted  to the employment, or the work of  the  re- spondent as the special correspondent. There was no evidence that the car allowance was fixed after taking into consider- ation  the expenses which he would have ordinarily to  incur in  connection with his employment or the work done in  such employment. Even if the respondent had not used the car  for conveying himself to the office or to other places connected with his employment and had used other alternative or cheap- er  means of conveyances or none at all, the  car  allowance would  still have had to be paid. So too, the bills for  the telephone and the newspapers whether he used them or not  in connection  with his employment or his work as  the  special correspondent. Therefore we have to turn to the latter  part of  the  definition and see if the two items  properly  fall under. So far as the car allowance is concerned, there  was, as  aforesaid, nothing to suggest that it was paid to  reim- burse him of the expenses of conveyance which he would  have to  incur for discharging his duties as the  special  corre- spondent,  or  that it was anything else than  an  allowance within the meaning of s. 2(rr) of that Act. It would, there- fore,  fall under the inclusive part (i) of the  definition. Likewise,  the benefit of the telephone and  newspapers  was allowed to the respondent and merely for the use thereof  in connection with his employment or duties connected with  it. Both the car allowance and the benefit of the free telephone and newspapers appear to have been allowed to him to direct- ly  reduce the expenditure which would otherwise  have  gone into his family budget and were therefore items relevant  in fixation  of fair wages. [See Hindustan Antibiotics Ltd.  v. Workmen, [1957] 1 SCR 652]. That being the position, the two items  could on the facts and circumstances of  the  present case be properly regarded as part of the respondent’s  wages and  had to be taken into calculations of the gratuity  pay- able to him." (Emphasis supplied)     The  above extract and more so the emphasised words  are significant  to convey that the car allowance and the  bene- fits  of free telephone and newspapers were held  allowances includable in wages in the 979 facts and circumstances of that case. These allowances  were held part of the wages of the journalist on the finding that he was entitled to them not as remuneration capable of being expressed  in  terms of money but as allowances  within  the meaning of the First inclusion.     In  Dilbagh RaiJarry v. Union of India & Ors., [1974]  2 SCR  178 this Court was required to determine whether  "run- ning  allowance"  formed part of wages for  the  purpose  of Payment  of  Wages  Act, 1936. That was a case  in  which  a railway  guard,  who was convicted in a  criminal  case  but later acquitted, and who in the meantime had been  dismissed from  service  but his dismissal too had been upset  by  the High Court followed by his reinstatement, had asked for back wages  for the period between the date of his dismissal  and the date of reinstatement. Finally he was let to this  Court reiterating  his claim that a running allowance was part  of his  wages  which he would have earned while on  duty.  This Court in that context observed as follows:

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Mr.  Bishan Narain further contends that  Running  Allowance was  a part of the pay or substantive wages. In  support  of this  argument he has invited our attention to rule 2003  of the  Railway Establishment Code, clause 2 of  which  defines ’average  pay’.  According  to the second  proviso  to  this clause  in the case of staff entitled to running  allowance, average  pay for the purpose of leave salary--shall  include the  average  running  allowance earned  during  the  months immediately  preceding the month in which a Railway  servant proceeds  on  leave subject to a maximum of 75 per  cent  of average pay for the said period, the average running  allow- ance  once  determined  remaining in  operation  during  the remaining  part of the financial year in cases of leave  not exceeding  one  month. The crucial words,  which  have  been underlined,  show  that such Running  Allowance  is  counted towards  ’average pay’ in those cases only where  the  leave does  not  exceed one month. It cannot, therefore,  be  said that  Running Allowance was due to the appellant as part  of his  wages for the entire period of his in  active  service. Travelling allowance or running allowance is eligible if the officer  has travelled or run, not otherwise.  We  therefore negative this contention." (Emphasis supplied) It is noteworthy that running allowance or travelling allow- ance, as the 980 case  may  be, had to be earned by  actually  travelling  or running,  and not otherwise, as held in Dilbagh Rai  Jarry’s case  (supra).  Only a fiction was available for  a  limited period as per Clause 2003 of the Railway Establishment Code. The average running allowance once determined in  accordance with  the  Clause,  afore-quoted, was  to  remain  operative during  the  remaining part of the financial  year  only  in those cases where the employee had taken leave not exceeding one  month, and not otherwise. In cases of  leave  exceeding one month the fiction on its’own dropped.     Now  confluencing  the two legal thoughts  expressed  in Bennett Coleman’s case (supra) and Dilbagh Rai Jarry’s  case (supra),  the stream of thought which inevitably gurgles  up is that an allowance which from the term of employment flows as not contingent on actual working is part of wages for the purposes  of  section  33(2)(b) but an  allowance  which  is earnable  only by active serving is not an  allowance  which will  form  part of wages, within the meaning  of  the  said provision.     In  Ramakrishnappa’s  case Hon’ble Single Judge  of  the Karnataka High Court employed Bennett Coleman’s case to come to the conclusion that night shift allowance was part of the wages by observing as follows:          "Therefore,  I find it difficult to accede  to  the contention  of  the management  that  conveyance  allowance, night  shift allowance and turnout allowance were not  wages as defined in section 2(rr) of the Act, and therefore,  they were  not required to be included in computing the wages  of the  petitioner for one month. The decision of  the  Supreme Court in Bennett Coleman and Co. [1970] 37 FJR 498; AIR 1970 SC 427, though it arose in the context of quantification  of gratuity,  the view taken therein that the allowances  given for purchase of newspapers, towards telephone and conveyance also should be calculated in computing one month’s wages for the purpose of computing gratuity, sup˜ ports the  construc- tion placed on section 2(rr) of the Act for the  petitioner, for,  the Supreme Court invoked the said definition  as  the word "wages" had not been defined in the Working Journalists (Conditions  of Service and Miscellaneous  Provisions)  Act,

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1955.  In the Case of Jarry, AIR 1974 SC 130, on  which  the learned counsel for the second respondent relied, the  ques- tion decided was, whether 981 wages payable to a railway guard for the period he was  kept out of service consequent on his dismissal from service till he was reinstated included the amount of running  allowance, which was under the rules payable only if the railway  serv- ant had gone on duty, and the Supreme Court held that it was not, in view of the condition. Section 2(rr) of the Act  did not  come up for consideration in that case and,  therefore, not apposite to this case." This  view, as said before, was adopted by the  Tribunal  to decline approval to the management. But for reasons set  out before,  we  are of the view that the Hon’ble  Single  Judge fell  into an error in enlarging the scope of Bennett  Cole- man’s  case and dwarfing that of Dilbagh Rai  Jarry’s  case. Thus  the conclusion is inescapable that the workman had  to earn night shift allowance by actually working in the  night shift  and his claim to that allowance was  contingent  upon his reporting to duty and being put to that shift. The night shift allowance automatically did not form part of his wages and  it was not such an allowance like in Bennett  Coleman’s case  which flowed to him as his entitlement not  restricted to  his service. Thus we hold that the Tribunal fell into  a grave  error in declining the application of the  management for  approval  on the ground of short payment of Rs.  12  on account of night shift allowance, which the workman  suppos- edly would have earned had he gone to report on duty,  which in  the circumstances he could not, or having  worked  rota- tionally at night, which he did not, and that too fictional- ly,  in  the month following the month and the date  of  the application,  on which date the dismissal was to  be  effec- tive.     We  cannot  refrain from expressing our concern  to  the manner in which the other issue before the Tribunal  regard- ing  the validity of the domestic enquiry was  side-tracked. Had there been a finding on the same, one way or the  other, we  could  have easily finalised the matter.  For  over  six years  the  matter on that count was kept  pending  and  the additional objection being permitted to be raised was  unac- countably abandoned. The matter could have in this situation been sent back to the Tribunal but at this late stage we  do not  propose to do so and are inclined to close the  matter, as  we are otherwise satisfied that plea about the  validity of  the domestic enquiry was without merit and  even  though raised was by conduct abandoned.     Before  concluding  the  judgment  the  observations  in Syndicate  Bank’s case, afore-quoted, are again to be  borne to  mind.  In the facts and circumstances of this  case  the management paid to the workman a 982 sum  of Rs.607.90 as a month’s salary "to soften the  rigour of  unemployment  that will face the workman". How  could  a short payment of Rs. 12 be said to have lessened the soften- ing  of such rigour is thought stirring. Viewed in the  con- text, there could genuinely be a dispute, as in the  present case,  as to whether a particular sum was due as  wages.  It is,  of course, risky for the management to raise it  as  to pay  even  a  paise less than the month’s  wages  due  under section  33(2)(b), would be fatal to its permission  sought. But at the same time it needs to be clarified that it is for the  management to establish, when questioned, that the  sum paid to the workman under section 33(2)(b) represented  full wages  of the month following the date of discharge or  dis-

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missal, as conceived of in the provision and as  interpreted by  us  in entwining the ratios in  Bennett  Coleman’s  case (supra)  and  Dilbagh Rai Jarrv’s case  (supra)  and  adding something ourselves thereto.     Thus  for the foregoing reasons, we allow  this  appeal, set aside the judgment and order of the Industrial Tribunal, Karnataka  at  Bangalore and allow the  application  of  the management under section 33(2)(b) of the Industrial Disputes Act without any order as to costs. R.N.J.                                                Appeal allowed. 983