S. Ganapathy and Ors. v. Air India and Anr.

The Judgment of the Cllurt was <lelivered hy PUNCHHI, ,J. Leave to appeal granted. The ques!iun which falls for di:tennination in these appeals is whether in .:n .~mnputing the amt)Unt llf 1rne month· s \vages. lll be paid un<ler section 33(2) ( b) t)f the Industrial Disputes Act. 1947. (hereafter n;ferred to as the 'Act") the employer is justified in reducing the amnunt by statutory tax deductions'! The three appellants hl!rcin, in the period i 979-80 were in the employment of the iesp1m<lent-Air lndia, anti statii:me<l at Cakulla. They in<lividually suffere<l . . E disciplinary proceedings un the charges of some mis-conduct.s an.d having been found guilty were awarded penalties of removal or dismissal by tht! Air India. as due to each. It is comm1m groun<l that the respondent-Air fodia. statutorily hound. applied to the National Industrial Tribunal. Bombay by means of separate approval applications under sectilln 33(2) (b) '-'f the Act to have its actilln apprnved. In terms orn1e said prtivi.sion it paid t11 the appellants 1me month" s salary or wages. reducing F it by sum. of Rs. IO or 15. as deductible·\lll account uf mllnthly payment 1Jf tax on employment. imposed on salary _and wage earners. under the provisions i:Jf the West Bengal State Tax on Prnfessions. Trades, Callings and Employments Act, 1979 (hereafter referred w as 'the Tax Act'). The approval ·sought "t!y the respondent-management was opposed by the appellants before the Tribunal. and though initially not part oflhe defence taken in the written statement. defence was later set up by them that they had not been paid wages in terms of the mandatory provisions of section 3~(2) (b) of the Act, as there was short payment. This put the respondent-management to alert and it laid before the Tribunal account which·had gone on to work out the month's wages. It is common ground that the payment 11therwise was proper hut since it was short by 10 or 1:5 rupees, a" respec.dvclydue nn acc1 •unt llf tax pay.ah le under the Tax Act, the payment was termed as inrnlid. ..... . - r S. GANAPATHY v. AIR INDIA [PUNCH!. J.) lOll The Tribunal sustaining the objection rejected the approval applications on that A score alone and not on merits. In separate writ petitions by the respondents, the Bombay High Court interfered in the matter taking the view that the Tribunal was in error in refusing approval on the ground of the suggested short payment and hence breach of section 33 (2) (b) of the Act. The !Il<ltter could not be finalised by the learned Single Judge and remand to the Tril5unal was made for decision on merits. Letters Patent Appeals preferred by the respective appellants were dis­ missed by a division bench of the Bombay High Court affirming the view of the learned Single Judge. That is why the instant appeals. · The issue, on the face of it, is extremely narrow. But before we get into grips with it, let us take stock of the statutory provisions which come jnto action leading to the answer. The first in priority are the two provisions of theAct being section 2 (rr) defining 'wages' and section 33(2) (b) imposing the discipline, which are . . _reproduced hereafter: "2. IN Tms. ACT, UNLESS THERE IS ANYTHING REPUG­ NANT IN THE SUBJECT OR CONTEXT, - (rr) ·wages· means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, ex­ pressed or implied, were folfilled, 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, F water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or-other articles; (iii) any travelling concession; G (iv) any conunission payable on the promotion of sales or business or both; but does not include- (a) any bonus; . H 1012 SUPREME COURT REPORTS [1993) 3 S.C.R .. (b) any contribution paid or payable by the employe~ to any pension fund or providen't funcl cir for the benefit of the workman under any law for the time being in force; (c) ''any gratuity payable on the t~rmination o('his scrv:.:e" "SE<:;TION33-CONDITIONS OF SERVICE, ETC. TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTANCES DUR­ ING PENDENCY OF PROCEEDINGS (l) xxxxxxxxxxx (2) During the p~ndency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the stand­ ing orders applicable to a workman ·concerned in such dispute or. where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and . the workman, - · (a) xxxxxxxxx . . (b) for any misconduct not connected with the dispute. discharge or punish, whether by dismissal or otherwise, that workman : PROVIDED that no such workman shaH be discharged or dis­ rfiissed, unless he ha.S 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(!.I of the action taken by the employer:·•· F Bare-facedly the inclusions and exclusions provided in section 2(rr) do not refer to tax du~s. Rather the provision is silent:about st~tutory tax deductions. But . it goes without saying, if there is a statutory compulsion to deduct, that compulsion would have an intrusive roie to play getting a proper fitment, as the law may warrant its effect, section 33 (2) (b) apart. The· matter has to be viewed in this light. That the appellants were salary or wage earners, getting salaries or wages per month is not in dispute. It is also not in dispute that from their wages, prior to their order of removal or dismissal, tax deduction~ under the Tax Act ~ere being made. There Wl\S no objection by the appellants to such deduc;tions at that point of time. That it was the employers liability to deduct and pay the tax on behalf of the . H employee under section 4 of the Act is also beyond dispute. Section 4 of the Tax S. GAN APA THY v. AIR INDIA [PUNCH!. J.) 1013 Act pointedly enjoins upon the employer to deduct the tax payable under the Act A from the sal.ary or wages payable to any person earning a salary or wage, before such salary or wage is paid to him and the employer has also .been foisted with the liability to pay tax on behalf of salary or wage earner irrespective of the fact. whether such deduction has been made or not when the salary or wage was paid to such person. In other words, the tax payable by the wage earner is deductible from his wage irrespective of the fact whether such deduction has been made or Q not, hut the liability to pay tax is on the employer. Thus il cannot be denied that while the appellants were salary or wage earners, their wages or salary had to suffer & deduction of payment of tax at the hands of the respondent-employer. Failure to comply the provisions of section 4 of the Tax Act exposed the respondent to penalties and prosecution under other provisions.of the Act, details of which need not be brought herein. It was canva~sed on behalf of the appellants that one month's wage statutorily required to be paid in terms of section 33(2) (b) is a payment whi.ch does m)t partak·~ the characterof salary or wage. as the appellants were not salary or age earners while getting that one month's wage Sequelly it was can\'assed that not being salary or wage earners in that month. orders of dismissal or termination of service having been passed against them, they were not in employment and hence not liable to pay tax. It was asserted that the very basis of tax stood displaced and hence the deduction of tax at the snapped source rendered the payri1ent or deposit of one month· s wage deficient. contravening the mandatory provisions of section 33 (2) (bJ of the Act. On the other hand, it was contended imer alia on behalf of the E respondent that the statutory deduction of tax payabie under the Tax Act inhered in the payment of one month's wage, and in any case the difference had been tendered before the Tribunal for payment to the workmen. on objectiun raised. during the pendency of the approval proceedings. These are the contours of the dispute. The proviso to section 33(2) (b) mandates two steps. that unless the workman is paid wages for one month .and an application as contemplated is made by the employer to the Tribunal for approval of his action, no such workman can be discharged or dismissed. The intention 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 G Swdica·Te Bank Umifed v. Ram Nmll Bluu [ 196 7-68] (XXXII) FJR 490 at 497 was "to soften the rigour of unemployment that will face the workman. against whom an order of discharge or di.smissal has been passed ... A three-judge bench decision, authored by Gajendragadkar. C .J. of this · (\ iurt in Tala Iron and Slee/ Co. Lld. v. S.N. Moc/a~ [ l %3] 3 SCR 411 at page 418, H .B 1014 SUPREME COL'RT REPORTS I 1993) 3 S.C.R. had the occasion to spell out the.nature of the order of discharge or dismissal. It was • ruled that -such.order being incomplete and inchoate until the approval fa obtained. could not effectively terminate the relationsµip orthe employer and the employee, ·as the question of the. validity of the order would have to be gone into, and if approval is not accorded by the Tribunal the employer would be bound to treat the workmen concerned a<; its employee and pay him all the wages for the period even though the employer subsequently could proceed to terminate the employee·s services. Thus this Court's view always has been that relationship of employer and employee is not effectively terminated by the passing of the order of discharge or dismissal until approval thereto in terms of section 33(2) (b) is accorded by the Tribunal.· A three~judge bench of this Court in Bharat Electronic Limited, Bangalore v. /11d11strial frihimal, Karnatak. Bangalore and another;[ 1990] l SCR 971 at pages 976~977 observed as follows : .. One month's wages as thought and provided ·to be given are conceptually for the month to follow, the month of une!llployment 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 dismissal. If the converse is read in the context of the proviso to section 32(b). it inevitably would have to be read as double the wages 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." Bharat F.ilectronics was a case in which wages had been paid or offered to the workman in ternis Q~· section 33( 2) (b). short of the night shift allowance, and this . F ·.Court took the view that from the date of dismissal or removal (factual though), the occasion to earn night shift allowance could not and did not arise. In order to eatn night shift allowance the workman had to actually work in the night shift and for the purpose had to report for duty on being put to that shift. lt was in this situation held that night shift allowance automatically did not form partofhls wage as it was not such an allowance which Bowed to him as entitlement tll)t restricted to his G service. - In this extreme situation, the employee, in one sense, gets unemployed as he '-"' stands.deprived of work with effect from the date of the application for appro\'al, H 1m which date his discharge of dismissal is fa~tually effective. He stands paid his month's wage from such date and this is a. wage conceptually for the month S. GANAPA THY v. AIR !'.'/DIA IPliNCHI. J.] . 1015 ti.>llowing. not double the wage for the month previous to the date of the A application. This is the dicta uf Blwi·at E/ectrmiics case (supra). In the other sense the order of discharge or dismissal is incomplete and inchoate, unless approved by the Tribunal and till approval is granted there is no effective break of the employer and einployee relationship. This is the dictum of Tata Iron & Steel Company's case. So. if these two features are grasped. appreciated and blended. it would lead us to the understanding that by passing the orderofdischarge or dismissal de-facto 8 relationship of employer and employee is ended, but not de-jure, for that could happen when the Tribunal acc1lrds its approval. The employee thus gets factually unemployed from the date of the approval application in the sense that he is not called to work and is paid only a month ·s wage representing the succeeding month of his unemployment. The relationship of employer and employee is legally not. terminated till approval of dis~hargc or dismissal is given by the Tribunal. And this state 11r affairs was required tu be ended within a period of three. months from the date or receipt of such application in terms nr s~b-section (5) of section 33, though the lapse or such period would not and the pruceeding and such lime was extendabk by the Tribunal for reasons to he recorded in writing. Now in this fluid state of affairs, the legal character or 1me· month· s wage would undergo a change .D depending on the result of the approval application. If the Tribunal were to refuse the approval, the inchoate and incomplete order of discharge or dismissal .wou"ld tnd and the legal character of one month· s wages would transform to tie the same as bdi.lre, from which statutory tax deduction could 'legitimately be made by the employer. In lhe eYent nr approval of the application by the Tribunal, the legal . character of one month's wage would on the other" hand be a wage without E employment. In the given situation, ifthe Tribunal were to refuse approval solely on the ground that statutory tax d~duction stands in its way to the grant of approval. il could legitimately make its order conditional on making good such payment. This is a field in w.hich the interest of hlllh parties has to be kept in view, for the situathm would he precaricus for the employer if he were not lo deduct tax under section 4 of the Tax Act and exposing him to the dangers of penalties and F prosecution. If approval was lo be rejected on merit and otherwise to be rejected for not making complete payment of one month wage, it would thus be just and proper to let the employer deduct the statutory tax deduction tro1:n that one mont~ wage. since the relationship ofemployerand an employee has effectively not been 1ermina1eJ, to meet the eventuality, lest the appro,·al application be dismissed on merit. On tile other har1d it would be just and proper either for the employer on his own or on the asking of the Tribunal tu let the sum representing statutqry tax deduction be dep1)sited in the Tribunal for payment to the workman in the event llf the approval application hcing allowed. If these two situations can be saved in this manner there would, in nil event be a dismissal of the approval application f9r payment ufwage subjected to statutory tax deduction. Taken in this light one is to ff 1016 SCPRE~IE COl'RT REPORTS 1199.~1 ~ S.C.R. A ,·iew the dedm:tion anq the subsequent offer llf the respondent to pay the tax deducted. and later dep1)sited ·11cfore the Tribunal. f1>r payment w the workman. This payment \vas offered and depositeil before the decision of the approval application at a time when the rel:itionship or employer and employee had effectively not been terminated. Here distinction Wlluld have llJ he drawn between statutnry deductions like tax deductions and other deductions which the employer U ·considers he can make. In either event. he takes the risk when making a deduction. In the case of statutory tax deductions. his justificatory burden is less. for he has . the shelter of the tax law. The case of the uthcr deductions would obviously be 1rn different footing for he may nut have any thrust of law. Those may purely be contractual. Tlmse deductions may not be compulsive under any law. The employer makes tl1e deduction in such cases at his peril. But here, in the present situation, there definitely arose a genuine dairri to make"the tax dcdu"i.:tion and doing su the einployer projected.its case before the Tribunal in that angle. Not a paisa otherwise was kept back. Thus iii the facts and circumstances it appears to us that the rt:sp1mdent wa-; able to establish that its dt:liberate deduction represent­ ing the tax from1mc month ·s wage was not to shorten the wage andc<mse infraction· or section 33( 2) (b) but a compulsiYe deduction to fulfil a statutory obligation hy the thrust of the Tax Act. · On this analysis and understanding the case of the Patna High Court in M11u!{rarp11r Electric Supply Co. v: S. K. D1111a,(1990) LLJ Yol.2 page 547 where when the loan and money-order comn~ssion was deductt:d from one month's E wages, it was held to be vi\ilative 1Jf section 33(2) (b) of the Act and the C<tsl' ,,t" Rajasthan High Court in Dinesh Khare v. fnd11s1rial Tribunal, Rajasclwn,( l 'JX2) LAB l.C. 517. decided by S.C. Agrawal, then on that-bench. and whll is happily now a member of this bench. disapproving the deducti1m of provident fund 1m the finding that those l1id not represent "emoluments earned by the workman con- cerned while l'n duty" within the meaning of section 2(rr) or the. Employees Provident Fund Act. being cases clearly distinguishable would not further the case 11f the appellants. t\mversely a single bench decision of the Bombay High Court in Balmer l.nwrie a11il Co. Ltd. v. \\'a111a11 B. Mor~ { l 981142 F.L.R. 272 275 would alsl) not. further tl1e case \Jf the respondent hecausl! instantly no difficulty or inahility to make the necessary calculations at a particular point of time arose <; which difficulty or inability get removed subsequently. The claim to tax deduction was there to begin·with and could.subsist till the grant of the approval application~ and such grant could be. conditional on the· payment back of the tax deduction. Adoption of this method should settle the question. We do nnt wish to enter upon . . 1)t\1er questions cropping tip to determine the tax liability of the employer or the H employee in that period of one month. - - - ..... S. GA~APATHY v. AIR INDIA IPL7NCHI. J.J IOI 7 At this juncture, it \VIJU Id add w our understanding if we reproduce a passage A fr1)m Bharat Electronics case (supra). It is: "Before·concluding the judgment the observations in S)wiicare Bank's case, afore-quoted, are again to be borne in mind. In the facts n and circumst<tnces of this case the management paid to the work­ man a sum ufRs.607.90 as a month's salary "tu soften the rigourof unemployment that will face the workman''. How could a short payment of Rs. 12 be said to have lessened th.e softening of such rigour is thought stirring. Viewed in the context, there could genuin~ly be a dispute, as in the present. case, as to .':Vhether a particular sum was due as wages. It is, of course: risky for the C . management to raise it as to pay even a paise less than the month· s wages clue 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 questiont;d, that the sum paid to the wor'"nan u~der section 33(2) (b) represented full wages of the n11:n1h following the date of.discharge nr dismissal, as conceived of ir.tlre provision and as interpreted by us in entwining the ratios in !Jennell Coleman's case (supra) and Ui!baglz Rai .Jarry 's case (supra) and adding something ourselves thereto." Thu.• on principle and .percept we go on to hold that when an order of discharg~ordismissal ofa workman is incomplete and inchoate until it's approval is obtai;ted rrom the Tribunal, there is no effective termination of the relationship ofth~employer and the employee. Not only in a limited way tha~ the relationship is S!'lappcd factually and one month's wage is given to the employee to soften the ri~ur of his factual unemployment, but the content and character of the wage . would ex~enqidly tend to remain the.same so fai; as subjection to statutory tax dedµction is concerned, being remuneration paid as understood in section 2(rr) of the Act, on the supposition that the terms of employment. expressed or implied, were fulfilled and the same was due as wages payable to the workman in respect of his employment, or of work done in such employment, even though he'was not put to work. Thus as a result, we find no cause to interfere in the judgment and order of the High Court. According! y we dismiss these appeals but leave 'the parties to bear their own costs . N.P.V. Appeals dismissed: