Bombay High Court Upholds Removal of BMC Employee for Corruption, Says Minor Wage Dispute Under Section 33(2)(b) Cannot Defeat Proven Misconduct
Facts
The petitioner, Municipal Corporation of Greater Mumbai, challenged the Industrial Tribunal’s order dated 7 May 2010, which had rejected its application under Section 33(2)(b) of the Industrial Disputes Act, 1947, seeking approval for removal of the respondent employee from service.
The respondent was working as a Clerk in the Octroi Department of the Municipal Corporation. He was issued a chargesheet dated 21 March 2003 alleging serious misconduct and corrupt practices.
The allegation was that the respondent colluded with other persons and fraudulently diverted an octroi refund amount of ₹4,10,885. The refund was allegedly due to one entity, but the cheque was issued in the name of another entity and deposited in a third-party bank account. From that account, ₹1,50,000 was withdrawn and allegedly handed over to the respondent.
A departmental enquiry was conducted. The respondent participated in the enquiry, and the Enquiry Officer found him guilty. The Disciplinary Authority passed an order dated 30 November 2006 removing him from municipal service.
Since industrial proceedings were pending, the Municipal Corporation filed an application under Section 33(2)(b) of the Industrial Disputes Act for approval of the removal action. The Corporation claimed that it had offered and sent one month’s wages of ₹14,468 to the respondent by money order.
The Industrial Tribunal held that the enquiry was fair and that the findings of guilt were not perverse. However, it rejected approval on the ground that full one month’s wages had not been paid because certain deductions were made in the salary for November 2006.
The Corporation also filed a review application, pointing out that the Tribunal had wrongly considered the regular November salary instead of the separate amount of ₹14,468 sent as one month’s wages under Section 33(2)(b). The review application was also rejected.
Issues
- Whether the Industrial Tribunal was right in rejecting approval under Section 33(2)(b) despite holding that the enquiry was fair and the misconduct was proved.
- Whether the Tribunal committed an error by treating the regular salary for November 2006 as the one month’s wages payable under Section 33(2)(b).
- Whether the Municipal Corporation had complied with Section 33(2)(b) by separately offering/sending ₹14,468 as one month’s wages.
- Whether alleged deductions or disputed non-payment of increment could invalidate the approval application.
- Whether a technical objection regarding wages could be used to defeat removal of an employee found guilty of serious corruption.
Petitioner’s Arguments
The Municipal Corporation argued that the Industrial Tribunal had grossly erred in refusing approval despite serious charges of corruption being proved against the respondent.
It submitted that the Tribunal wrongly examined the salary paid for November 2006. That salary was regular salary earned by the respondent while he was still in service till 30 November 2006. It was not the one month’s wages payable under Section 33(2)(b).
The Corporation argued that it had separately offered and remitted ₹14,468 to the respondent by money order as one month’s wages under Section 33(2)(b). This fact was pleaded, proved and supported by postal receipts, but was ignored by the Tribunal.
It further argued that even if there was any minor deficit or deduction, the Tribunal should not have rejected approval outright. At most, it could have directed deposit of the deficit amount.
The Corporation relied on S. Ganapathy v. Air India and Balmer Lawrie & Co. Ltd. v. Waman B. More to argue that minor or bona fide deficit in payment of wages should not result in rejection of approval, particularly where grave misconduct is proved.
Respondent’s Arguments
The respondent employee supported the Tribunal’s order.
He argued that Section 33(2)(b) must be strictly complied with. According to him, the employer had not paid full one month’s wages because deductions were made towards provident fund, income tax, LIC and other heads.
He further contended that an increment due to him had not been included in the wages. According to him, non-payment of full wages automatically vitiated the approval application.
The respondent relied on Jaipur Zila Sahakari Bhoomi Vikas Bank v. Ram Gopal Sharma, Management of Karnataka Agro Industries Corporation v. Presiding Officer, Industrial Tribunal, and other judgments to argue that payment of full one month’s wages is mandatory under Section 33(2)(b).
He also contended that deductions from wages payable under Section 33(2)(b) are impermissible and that non-compliance with the mandatory requirement justified rejection of approval.
Analysis of the Law
The Court examined Section 33 of the Industrial Disputes Act, 1947. It noted that where an industrial dispute is pending, an employer may dismiss or discharge a workman for misconduct unconnected with the pending dispute, provided two requirements are satisfied.
First, the employer must pay wages for one month to the workman. Second, the employer must apply to the concerned authority for approval of the action taken.
The Court held that the wages contemplated under Section 33(2)(b) are not the regular salary payable for the month in which dismissal or removal takes place. They are additional wages required to be paid as a statutory safeguard.
The Court found that the Industrial Tribunal had committed a serious error by treating the respondent’s regular November 2006 salary as the Section 33(2)(b) wages. Since the respondent was in service until 30 November 2006, that salary was earned in the ordinary course and could not be treated as the additional one month’s wages.
The real question was whether the Corporation separately paid or offered one month’s wages. The Court found that the Corporation had specifically pleaded and proved that ₹14,468 was offered and sent by money order. The respondent had not specifically denied this payment.
The Court held that once the employer pleaded and proved payment of ₹14,468, the burden shifted to the respondent to show that the amount did not represent full one month’s wages. The respondent failed to plead or prove this.
Precedent Analysis
The Court relied on S. Ganapathy v. Air India, where the Supreme Court held that if approval is otherwise deserved and the only issue is a statutory deduction or deficit in one month’s wages, the Tribunal can make approval conditional upon making good the deficit.
The Court also relied on Balmer Lawrie & Co. Ltd. v. Waman B. More, where the Bombay High Court recognised that in cases involving bona fide difficulty or dispute in calculation of wages, the employer may be allowed to deposit the disputed amount before the Tribunal.
The respondent relied on Jaipur Zila Sahakari Bhoomi Vikas Bank v. Ram Gopal Sharma to contend that Section 33(2)(b) is mandatory. The Court accepted the general proposition but held that the case would apply where no wages are paid. It would not justify rejection of approval where wages are paid and only a minor deficit or technical objection is alleged.
The Court distinguished Sindhu Diwakar Dabholkar v. B.N. Dongre, where deductions were made towards alleged past dues payable by the workman. In the present case, there was no such deduction from the separate amount of ₹14,468 sent as one month’s wages.
The Court also distinguished other judgments relied upon by the respondent, including Indian Express and Chronicle Press, Dinesh Khare, Indian Telephone Industries, Mahalakshmi Fibres, Muzaffarpur Electric Supply Company, and Eastern Electric & Trading Co., holding that they did not apply to the facts of this case.
Court’s Reasoning
The Court held that the Industrial Tribunal had already accepted that the departmental enquiry was fair and proper and that the findings of guilt were not perverse.
The only reason for rejecting approval was alleged non-payment of full one month’s wages. However, this conclusion was based on the Tribunal’s erroneous reliance on the November 2006 salary slip.
The Court found that the Corporation had separately offered/sent ₹14,468 by money order as one month’s wages under Section 33(2)(b). This payment was pleaded in the approval application, supported by evidence, and not specifically denied by the respondent.
The Court held that the Tribunal ignored material evidence and therefore its finding of non-compliance was perverse.
The Court also observed that the respondent was found guilty of serious misconduct involving corruption, forgery and diversion of municipal funds. He had allegedly participated in a conspiracy by which an octroi refund of ₹4,10,885 was diverted and ₹1,50,000 was received by him.
The Court strongly criticised the hyper-technical approach of the Tribunal. It held that Section 33(2)(b) is intended to provide a statutory safeguard to a workman during pending industrial proceedings, but it is not meant to create technical grounds for reinstating an employee found guilty of grave corruption with back wages.
The Court further held that the issue of non-payment of increment was a separate dispute and could not be mixed with compliance under Section 33(2)(b), especially when the respondent had not proved that the amount of ₹14,468 did not include the correct wages.
Conclusion
The Bombay High Court allowed the writ petition filed by the Municipal Corporation.
The Court set aside the Industrial Tribunal’s order dated 7 May 2010 rejecting approval under Section 33(2)(b), as well as the order dated 5 January 2012 rejecting the review application.
The Court held that the Municipal Corporation had complied with Section 33(2)(b) by separately offering/sending one month’s wages of ₹14,468 to the respondent.
The Court granted approval to the removal action taken against the respondent by letter dated 30 November 2006.
Case Details
Case: Dr. Satish Bhide, for and on behalf of Municipal Corporation of Greater Mumbai v. Ravindra M. Pande
Court: Bombay High Court, Civil Appellate Jurisdiction
Case Number: Writ Petition No. 10116 of 2015
Judge: Justice Sandeep V. Marne
Date: 07 July 2026
Result: Writ petition allowed; Industrial Tribunal’s orders set aside; approval granted to removal of employee from service.
