Desai, J.:— The petitioners before me are Balmer Lawrie & Co., Ltd., who will hereinafter be referred to as the employer for the sake of brevity. The employer is complaining of an order of the Member, Industrial Tribunal, Maharasthra, Bombay, passed on the employer's Application (Industrial Tribunal) No. 72 of 1979, in Reference (Industrial Tribunal) No. 304 of 1977. By the impugned order, dated 18 July 1980, the Member, Industrial Tribunal, rejected the employer's prayer seeking approval to its action of dismissal of the first respondent who will hereinafter be referred to as the workman for the sake of brevity.

2. The workman was in the service of the employer attached to the factory at Sewrl. He was served with two chargeheets, dated 29 January and 21 March 1979, respectively. An inquiry was subsequently held and the inquiry officer found that charges of wilful insubordination, disobedience, sleeping during office hours, theft of company's property, etc., were sufficiently proved. Thereafter the manager of the company passed an order dismissing the workman from service with effect from 8 November 1979. He was thereafter offered one month's salary and an application under S. 33(2)(b) of the Industrial Disputes Act, 1947, was simultaneously filed. The impugned order has been passed in the said application. The workman appeared before the Industrial Tribunal and filed his written statement. In which he, inter alia, contended that he was not offered one month's full salary as prescribed under the proviso to S. 33(2)(b) of the Industrial Disputes Act, 1947. It was submitted that by reason of such non-compliance with the mandatory requirement the application for approval made by the employer was required to be dismissed. The Industrial Tribunal framed a preliminary issue as follows:

“Whether the employer has complied with the conditions laid down in the proviso to Sub-sec. (2)(b) of S. 33 of the Industrial Disputes Act, 1947.”

The impugned order has been passed after deciding the preliminary issue. It may be mentioned that in Para 12 of his written statement the workman had contended that house rent allowance, the amount of Rs. 1.50 per day payable canteen subsidy, shift allowance and production bonus which was at 30 per cent of basic salary and dearness allowance for October 1979, were not paid. It may be mentioned that the employer had remitted Rs. 556.40 to the workman and interrogatories were subsequently submitted in which the workman sought particulars of the break-up of this amount. The employer gave the necessary particulars in its answer to these interrogatories and admitted that the said figure was made up of basic wage of Rs. 268, fixed dearness allowance of Rs. 80.40 and variable dearness allowance Rs. 208. Thus it was expressly conceded that the four items mentioned in Para 12 of the written statement were not paid, offered or remitted, to the workman. It was, however, admitted that under a settlement, dated 8 August 1979, house rent allowance of Rs. 67 and canteens ubsidy allowance at the rate of Rs. 1.50 per day was payable its workmen. It was further stated in the said answer that the workmen are entitled to shift allowance of Rs. 1.25 per day provided they actually work in the second or third shift. It was also admitted that for the month of October 1979, production bonus was determined at the rate of 30 per cent of the workmen's basic wage, fixed dearness allowance and variable dearness allowance. However, as far as these four items were concerned, it was submitted on behalf of the employer that whether these amounts are payable or not would be points of law which could not be mentioned in the answer, but a submission was made that according to the advice given to the employer the said Items were not “wage” or “wages” as defined under Industrial Disputes Act. Subsequently the employer also filed a reply to the written statement and in Para 11 of the said reply it was contended that if the Tribunal was of opinion that the said items or any of them were payable to the workman, even then the order of dismissal would not be rendered invalid or void as the shortfall could be made good.

3. It |is in this background that the impugned order was passed by the Industrial Tribunal. After setting out the provisions of S. 33(2)(b) of the Industrial Disputes Act and considering the definition of “wages” to be found in S. 2(rr), the Tribunal opined that the house rent allowance of Rs. 67 and shift allowance of Rs. 1. 25 per day formed part of the wages of the workman and that there was failure on the part of the employer to pay the same. Accordingly the Tribunal came to the conclusion that the employer had failed to pay a part of the wages and had, therefore, not complied with the mandatory requirement imposed on the employer by S. 33(2)(b). In view of such non-compliance the employer's prayer for approval was dismissed but with no order as to costs.

4. As far as the four items are concerned in respect of which the workman had made a grievance, it is difficult to see in view of the comprehensive definition of wages to be found in S. 2(rr) that there could be any real or genuine difference of opinion as regards the house rent allowance payable by the employer to its several workmen. On the other hand, in respect of each of the other three items it is possible to argue that unless the workman has actually worked for the employer during the month, he would not be entitled to these amounts. It is unnecessary to consider whether the Tribunal is right in its conclusion reached in respect of the shift allowance. Similarly, a view other than the one taken by the Tribunal as far as canteen subsidy allowance is concerned, is both possible and plausible. We may, however, proceed upon the very clear position that there was failure on part of the employer to pay, offer or remit Rs. 67 which was admittedly the house rent allowance payable to the workman. What is the consequence of such failure? Was it subsequently rectified or in any event made good by the offer made in Para 11 of the reply to the written statement? Can any shortfall be made good in this manner? These are the points to be considered in this writ petition.

5. The provisions of S. 33(2)(b) have come to be considered by the Supreme Court as well as by the High Courts in a number of decided cases. The requirements contained particularly in the proviso have been observed to be mandatory requirements and it has been further opined that the payment or tender of wages for one month and the application must be part and parcel of any transaction. Some decisions have indicated that an element of flexility is permissible in considering what would constitute one transaction, but it is quite clear that compliance will have to be correlated with the immediate offer to make payment and the statements made in the application. The requirements postulated by the proviso can never be said to be complied with if the shortfall is either to be made good after being pointed out in the written statement. Even as far as the reply to the written statement in the present matter is concerned. I do not accept the reply as indicative of the employer making an unconditional offer to make good the shortfall. The phraseology in Para 11 of the reply is couched in the manner of an argument or a submission. It suggests that the Tribunal should first give its opinion on the four items in respect of which a claim is made by the workman and at that stage the employer can make good the shortfall, if any. There is no decision brought to my notice which will permit the concept of one transaction being stretched to include the entire proceeding before the Tribunal in the course of such application for permission.

6. Sri Bhatkal, on behalf of the employer, urged that the proviso contained procedural requirements and procedural requirements ought not to be so strictly construed. According to his submissions, the employer ought to be given an opportunity to rectify the procedural defects, if any. 1 am unable to accept this sweeping submission. Such a submission runs counter to the approach both of the Supreme Court and of this Court in several decided cases brought to my notice.

7. However, a fundamental question does arise. In this case it is impossible to accept the contention of the employer that non-payment of house rent allowance was bona fide action on proper advice. However, there may be occasions when the amount paid, tendered or remitted to the workman falls short of the amount which may ultimately be found payable the the workman, but the difference arises because of some difficulty of inability to make the necessary calculation at a particular point of time which difficulty or inability gets removed subsequently. The shortfall may also arise in case where two views are possible on the employer's liability to pay certain amounts to the workman. For example, we may have a case where an employer in Bombay is faced with two conflicting decisions of other High Courts which have taken diametrically opposite views.

8. In such cases, I think the employer will be entitled to some consideration if in his application for permission he were to bring these facts and contentions to the notice of the Tribunal and make an offer to deposit the disputed amount before the Tribunal either along with the application or within such time as the Tribunal may order with a further offer that the same may be paid to the employee and when directed by the Tribunal. In case an item cannot be precisely calculated at or before the time; when the application is made, for example payment in the nature of production or incentive bonus, then the offer may be made, but the precise amount would be required to be deposited or offered to be deposited immediately the calculation is feasible. It is possible in such a case to hold that although the actual amount may not have been paid to the workman immediately, the employer has because of a genuine bona fide difficulty not complied with the provision but has indicated his willingness to comply with the same and for that purpose has sought specific directions from the Tribunal whose permission he has been seeking. It is in this limited context only that some relief from the procedural requirements of S. 33(2)(b) can be envisaged. It can never be envisaged where the non-payment is of an item such as house rent allowance which very clearly falls within the meaning of wages as defined. Any advice given to the employer that such amount was not payable cannot be accepted as bona fide advice, nor can the employer's action on such advice be acceptable as bona fide. Even as regards the other items, by not mentioning them in the application for permission the employer has put himself beyond the pale or equitable application of S. 33(2)(b). In any case, it was not open to the employer to seek to rectify his mistake at the stage of reply to the written statement. A prudent employer knows from the previous emoluments paid to the employee what that employee had been paid in the previous months and what the various constituents of that payment are. In respect of the admitted amounts payment or tender would be made. In respect of the other amounts if there is any genuine or bona fide dispute it must be brought to the notice of the Tribunal at the stage of making the application for permission and an unconditional offer should be made to the Tribunal to deposit the said amount and even to pay the same subject to any direction for security or otherwise to be made by the Tribunal. Such an employer may perhaps be entitled to obtain permission despite a shortfall in initial payment.

9. In other words, even if I were to accept Sri Bhatkal's submission that the conduct of the employer must be viewed as a whole, I am unable to conclude that in this case it was bona fide or the employer showed a genuine desire to pay full wages payable to the workman. If that be so, then the Tribunal's decision to refuse sanction to such employer cannot be faulted and is not required to be corrected in the writ jurisdiction by the High Court.

10. In the result, the rule will stand discharged with costs.

11. It may be mentioned that under previous orders of this Court the employer has deposited substantial amount in this Court at the rate of Rs. 623 per month from which the workman as been permitted to withdraw at the rate of Rs. 300 per month. It was directed that the amounts withdrawn by the workman at the rate of Rs. 300 per month will be adjusted against the wages payable to the workman. The balance amount is directed to be returned to the petitioner.