-
by sayum
04 August 2026 6:31 AM
"The special protection ensures that the dismissed employee is paid one months’ wages and that the employer seeks approval to dismissal action. However, this special protection under Proviso to Section 33(2)(b) cannot be overstretched to such an extent that the same results in a ridiculous situation where the corrupt municipal employee walks back in service with a reward of full backwages." Bombay High Court, in a significant ruling, held that an Industrial Tribunal should not adopt a hyper-technical approach by rejecting approval for the dismissal of an employee found guilty of serious corruption merely on account of a minor deficit in the payment of one month's wages under Section 33(2)(b) of the Industrial Disputes Act, 1947.
A single-judge bench of Justice Sandeep V. Marne observed that the statutory provision is intended to soften the rigours of dismissal, not to create technical loopholes for employees involved in grave misconduct.
The Respondent was a Clerk in the Octroi Department of the Municipal Corporation of Greater Mumbai (MCGM). He was found guilty of masterminding a fraud involving the diversion of octroi refund amounts totaling Rs. 4,10,885 to a third-party account and receiving a kickback of Rs. 1,50,000. Following a domestic enquiry, the Disciplinary Authority ordered his removal from service on November 30, 2006. Since an industrial dispute was pending, the Petitioner-Corporation filed an application under Section 33(2)(b) of the ID Act seeking approval for the dismissal.
The primary question before the court was whether the Industrial Tribunal could validly reject the approval for dismissal solely on the ground of an alleged minor deficit in the payment of one month's wages under the Proviso to Section 33(2)(b). The court was also called upon to determine if the Tribunal erred in ignoring evidence of separate wage remittance via money order while focusing on deductions made in the regular monthly salary.
Tribunal Erred In Confusing Regular Salary With Mandatory One-Month Wages
The Court observed that the Industrial Tribunal had committed a grave error by examining the pay slip for the month of November 2006 to check for compliance with Section 33(2)(b). The bench noted that the wages for November 2006 were earned by the Respondent in the ordinary course of service until his removal.
The Court clarified that the "wages for one month" contemplated under the Proviso to Section 33(2)(b) are additional wages paid specifically at the time of dismissal or discharge to provide immediate solace to the workman. The bench emphasized that the Tribunal completely misdirected itself by scrutinizing deductions like Provident Fund and Income Tax from the regular salary rather than focusing on the additional payment offered.
"Provisions of Section 33(2)(b) of ID Act are aimed at softening the rigours of dismissal/discharge by providing some solace to the employee. The provision is not aimed at creating technical grounds for setting aside removal/dismissal in respect of the employees who are found to have indulged in grave misconduct."
Evidence Of Separate Remittance Ignored By Lower Court
The High Court found that the Petitioner-Corporation had specifically pleaded and provided evidence of offering Rs. 14,468 to the Respondent at his workplace and subsequently remitting it via money order when he refused to accept it. The bench noted that the Industrial Tribunal had totally ignored this evidence, as well as the fact that the Respondent's written statement did not specifically deny the receipt of this amount.
Non-Compliance With Statutory Provisions Cannot Be Readily Presumed
The Court held that the burden was on the Respondent to prove that the amount offered did not represent full wages for one month once the Petitioner had proved the payment. The bench remarked that the Respondent had attempted to take aid of technical loopholes to escape the consequences of his gross misconduct, which involved forgery and corruption.
Tribunal Can Direct Deposit Of Deficit Rather Than Quashing Dismissal
Relying on the Supreme Court judgment in S. Ganapathy vs. Air India, the High Court noted that even if a deficit is noticed in the amount paid under Section 33(2)(b), the Tribunal is empowered to make the approval conditional upon the employer making good the deficit. The bench held that adopting a hyper-technical approach to set aside a dismissal for a minor shortfall is unsustainable.
"If any deficit is noticed in the paid amount, the Tribunal can always direct deposit of the deficit amount while granting approval rather than setting aside dismissal/discharge by adopting hyper-technical approach."
Protection Under ID Act Cannot Reward Corruption
Justice Marne observed that while 'workmen' under the ID Act enjoy additional protection, this cannot lead to a "ridiculous situation" where a corrupt employee is reinstated with full backwages over a minor dispute regarding increments or deductions. The Court highlighted that the Respondent was found guilty of a serious conspiracy to defraud the public exchequer.
Distinction Between Statutory And Contractual Deductions
The Court referred to Balmer Lawrie & Co. Ltd. vs. Waman B. More, noting that while certain deductions like house rent might be mandatory constituents of wages, an employer acting in bona fide difficulty or dealing with disputed increments should be given the opportunity to deposit the shortfall before the Tribunal. The bench reiterated that non-payment of a disputed increment does not automatically amount to a violation of Section 33(2)(b).
The High Court concluded that the Industrial Tribunal's findings were perverse and ignored vital evidence regarding the remittance of wages. Consequently, the Court set aside the Tribunal’s orders dated May 7, 2010, and January 5, 2012. The Writ Petition was allowed, and approval was granted for the removal of the Respondent from municipal service as of November 30, 2006.
Date of Decision: 07 July 2026
