Shelat, J.— In June 1964, the respondent workman was a canteen peon in the employment of the appellant Company. He was charged on June 17, 1964 of stealing a packet of Brooke Bond tea and 2 seers of sugar. On June 22, 1964, an enquiry was held against him wherein he was present and participated. The enquiry officer having held that the charge against him was proved, the management passed an order of dismissal dated July 28, 1964.
2. As an industrial dispute between the appellant Company and its workmen was pending at that time, the Company filed an application before the Industrial Tribunal, Bihar for approval of the said dismissal under Section 33(2) of the Industrial Disputes Act, 1947. In reply to the said application the respondant pleaded (a) that he was falsely implicated in the said charge, (b) that in spite of his request the enquiry officer did not permit him to bring a co-workman to help him in the said enquiry, (c) that the enquiry officer threatend him that if he brought any representative he would dismiss him forthwith and that if he did not, he would be recalled to duty within 2 or 3 days, (d) that he was not given any opportunity to defend himself, and (e) that the enquiry officer held the enquiry behind closed doors and took his thumb impressoins on certain papers under coercion. The Tribunal rejected these allegations and held that the enquiry was properly held. It also rejected the respondent's contention that the application was not maintainable as it was made not by the Company but by its District Manager, the Tribunal holding that that officer was competent to file the application.
3. But the contention which appealed to the Tribunal and on the basis of which it dismissed the application was that the Company had failed to pay to the respondent a month's wages before the said order of dismissal came into operation and, therefore, had not complied with one of the conditions in the proviso to Section 33(2)(b). The Tribunal agreed that the order of dismissal served on the workman did mention the fact that Rs 144, being the month's wages, were being remitted to him by a postal money order. But the Tribunal observed that the workman in his evidence had denied receipt of the money order and in his cross-examination the Company had not challenged that statement. The Tribunal held that the Company had, therefore, failed to prove the remittance of the month's wages and on the ground that it had failed to satisfy one of the two conditions of the said proviso rejected the application. The appellant Company obtained special leave against this order and filed this appeal.
4. The proviso to Section 33(2)(b) lays down that no 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 approval of the action taken by him. Though the word used in the proviso is “paid”, the proviso does not mean that the employer must actually handover or pay to the workman dismissed or discharged his one month's wages. In Strawboard Manufacturing Co. v. Gobind (1962) 3 Suppl SCR 618 this Court while constructing this proviso, observered that when it lays down the condition as to payment of one month's wages all that the employer is required to do to carry out that condition is to tender the wages to the employee. But if the employes chooses not to accept them, he cannot come forward and say that there has been no payment of wages to him by the employer. Therefore, though Section 33 speaks of payment of one month's wages, it can only mean that the employer has tendered the wages and that would amount to payment, for otherwise a workman could always make the section unworkable by refusing to take the wages. In P.H Kalvani v. Air France (1964) 2 SCR 104 the employer had offered one month's wages to the workman before the order of dismissal against him came into force. The offer was held to be sufficient compliance of the said condition laid down in the proviso. Management of Delhi Transport Undertaking v. Industrial Tribunal, Delhi (1965) 1 SCR 998 was a case where the wages were remitted by money order but the workman purposely refused to receive them. It was held that the employers could not be said not to have complied with the condition laid down by the proviso. It is thus clear that the condition as to payment in the proviso does not mean that wages have to be actually paid but if wages are tendered or offered, such a tender or offer would be sufficient compliance for the purposes of Section 33(2)(b) proviso.
5. The question is whether the appellant Company failed to prove that it had remitted the month's wages by money order to the respondent before its order of dismissal came into operation. In our view, there is ample evidence on record to show that the Company had sent the money order for Rs 144 at the same time that it served its order of dismissal both by personal delivery and by post. It is, therefore, not possible to appreciate in view of that evidence how the Tribunal persuaded itself to come to the conclusion that the Company had failed to prove the remittance. On the other hand, it appears fairly certain that the respondent workman somehow managed to avoid receiving the registered letter dated July 28, 1964 as also the said money order sent by the Company.
6. The respondent joined service with the Company on August 20, 1957 and at that time gave the following address in the staff form which he had to fill in, namely,
“Amla Basti,
P.O Burma Mines,
Jamshedpur.”
When the charge-sheet against him was framed and he had to be served with it and notified as to the enquiry proposed to be held against him, the Company made enquiries as to his whereabouts. It was then found that he was living at the following address:
“Line No. 1, Qr. 64,
10 No. Basti Golmuri,
Jamshedpur.”
7. It was at this address that on June 20,1964 a peon of the appellant Company delivered to the respondent the said notice and obtained his thumb impression in the delivery book in acknowledgment of the receipt of the said notice. In pursuance of that notice, the respondent appeared at and participated in the enquiry on June 22, 1964. As aforesaid, the order of dismissal as passed on June 28, 1964 and on that very day it was served on him in three different ways, (a) by personal delivery by the Company's peon who also obtained the respondent's thumb impression in the delivery book, (b) by a letter sent by ordinary post, and (c) by a letter sent by registered post. In all these three letters, it was expressly stated that his month's wages were being remitted by postal money order. These communications were sent at the same address where the Company's peon had delivered the said notice as to the enquiry. The Company sent the wages on the same day by money order also at the same address. This fact is proved by the postal receipt produced by the Company. In that money order it was stated that Rs 144 were being remitted “being your wages for one month as per our Memo No. MAN/432 of 28-7-64”. These words were written in the coupon in the money order form and they show that the money was being remitted to the respondent and to no other person. The Tribunal, therefore, was in error when it said that the Company had failed to prove that Narayan Bhoumik to whom the said money order was sent was the same as the respondent.
8. In his evidence the respondent admitted that the said letter sent by ordinary post was received by him and that his address at the time of the alleged theft by him was the one at which all these communications were addressed. The registered letter, however, came back to the Company on August 7, 1964 with the endorsement “not known and the money order also was returned to the Company on August 26, 1964 presumably for the same reason. The respondent knew that he had not received the registered letter as also the money order, yet when he filed his written statement he did not deny the statement made by the Company in its application that as required by Section 33(2)(b) proviso it had paid the month's wages to him. Even in the cross-examination of the Company's witness it was not said that the Company's aforesaid statement was false, or that the respondent had not received the money order No issue, therefore, was raised by the Tribunal as to whether the Company had paid the said wages or not. The first time that the respondent came out with the allegation that he had not received the said wages was when he gave evidence after the Company had closed its evidence. The Company, however, in the respondent's cross-examination suggested that though it had sent the money order, the respondent had somehow managed with the postman not to deliver to him the said registered letter and the said money order and to make an endorsement that the addressee was “not known”. It was, therefore, incorrect of the Tribunal to say that the Company had failed to cross-examine the respondent on this point.
9. Counsel for the respondent contended that the endorsement on the registered letter when returned that the addressee was “not known” at the address written thereon showed that the Company had in that letter written a wrong address, that, therefore, the Company failed to prove that the said registered letter and the money order were sent to the respondent at his proper address and that the Company ought to have examined the postal authorities that the money order was sent at the address alleged by the Company. No question as to the registered letter and the money order having been sent at a wrong address can arise as the address written on the registered letter was, as admitted by the respondent, his address at the time of the alleged theft by him. There can also be no reason to think that the Company had given any address in the money order other than the one at which the Company had sent the registered letter and the other two letters. There was no point in the Company examining the postal authorities as at no time except when the respondent gave evidence, the fact of the wages having been sent to him by money order was denied. The postal receipt clearly shows that the Company had sent the said wages by money order.
10. The fact that the two letters, one by personal delivery and the other by ordinary post, were admittedly received by him shows that the registered letter and the money order were sent to the respondent at the proper address, that is, the same address at which the letter by personal delivery and the letter by ordinary post were sent and delivered. Since the letter by ordinary post reached him, there is no reason why the postman could not have delivered the registered letter and the money order to the respondent, all the letters and the money order having been sent at the same address.
11. On these facts we are satisfied that the Company remitted the month's wages to respondent by money order, that the money order was sent at the correct address, that the respondent managed not to receive the said money order and the said registered letter, that when the Company remitted the wages by money order, it tendered the month's wages to him and did all it could do to comply with the condition laid down in the said proviso. The Company having thus made a valid and a proper tender, there was no question of its not having complied with the condition in the said proviso and the Tribunal was bound to allow its application. The rejection of that application by the Tribunal was consequently wrong.
12. In the circumstances we allow the appeal and set aside Tribunal's order of dismissal. The respondent will pay to the appellant Company the costs of this appeal.