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PETITIONER: P.   H. KALYANI

       Vs.

RESPONDENT: M/S.  AIR FRANCE CALCUTTA

DATE OF JUDGMENT: 15/02/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1756            1964 SCR  (2) 104  CITATOR INFO :  R          1972 SC 171  (13)  R          1973 SC1404  (4)  R          1976 SC1760  (8,10,12,13)  R          1978 SC1004  (10)  RF         1979 SC1022  (11)  RF         1980 SC1896  (180)

ACT: Industrial Dispute--Dismissal--lndustrial Disputes Act, 1947 (14 of 1947), s. 33.

HEADNOTE: The  appellant was ’Charged with gross dereliction of  duty. The  appellant  in answer to the charge sheet  admitted  the mistakes  and contended that he was over-worked and that  it was  the  duty of others also to check the  load  sheet  and balance  chart  prepared by him.  Enquiry was  held  by  the Station Manager to whom the Appellant objected on the ground of  bias.  On the findings of the enquiry the appellant  was dismissed  by the Regional Representative of the  respondent company  and  was given one month’s wages and  was  informed that the approval of the action taken was being sought  from the Industrial Tribunal before whom some industrial disputes were  pending.  The order of dismissal was  communicated  to the  appellant on May 30, and the application  for  approval was made the same day.  An application under s. 33A was made on  June 3, 1960, by the appellant challenging the order  of dismissal.  The appellant objected to the maintainability of the  application  for  approval but  the  Tribunal  accorded approval to the action taken by the respondent and dismissed the application of the appellant under s. 33-A, on appeal by special leave. Held,  that the application for approval was  in  accordance with the proviso of s. 33 and properly made.  105 The  Straw  Board  Manufacturing  Co.  Ltd.,  Saharanpur  v. Govind, [1962] Supp. 3 S. C. R. 618, referred to. Held,  further  that in the absence of any  positive  action amounting  to  recognition of the appellant as  a  protected

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person by the respondent (and the appellant had produced  no such  evidence)  he  could not be held  to  be  a  protected workman for dismissing whom previous sanction was  necessary under s. 3 3 (3). Held,  further, that assuming that the Station  Manager  who held  the enquiry was biased though the order  of  dismissal was  passed by the Regional Representative against  whom  no such  allegation was made, the Tribunal was entitled  to  go into the question whether the dismissal was justified on the evidence laid before it. Phulbari  Tea  Estate v. Its Workmen. [1960]  1  S.C.R.  32, referred to. Held,  further, that the dismissal of the appellant did  not amount to victimisation Held,  also that even if the domestic enquiry was  defective provided that there is a prima facie case for dismissal  and a bonafide conclusion is reached that the employee is guilty of  misconduct, and if the labour Court in dealing with  the application under s. 33 (2) and after considering for itself the  evidence adduced before it gives its approval it  would relate  back  to when the employer came  to  the  conclusion after the enquiry that the dismissal is a proper punishment. M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan, [1959] Supp. 2 S. C. R. 836, distinguished. Management of Ranipur Colliery v. Bhuban Singh, [1959] Supp. 2 S C. R. 719, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 419 of 1962. Appeal by special leave from the Award dated June 22,  1961, of’ the Second Labour Court, West Bengal in Case No.  97/33A of 1960. N.   N. Keswani, for the appellant. 106 C.   K. Dephtary, Solicitor General of India and H.   L. Anand for the respondent. 1963.  February 15.  The judgment of the Court was delivered by WANCHOO J.-This appeal by special leave challenges the order of  the  Second Labour Court, West Bengal, relating  to  the dismissal  of the appellant, who was in the service  of  the respondent company.  A charge-sheet was issued to the  appe- llant  on April 23, 1960 under the signature of the  Station Manager   of  the  respondent-company.    The   charge-sheet contained two charges of gross dereliction of duty  inasmuch as the appellant. had made mistakes in the preparation of  a load-sheet  on one day and a balance chart on  another  day, which  mistakes might have led to a serious accident to  the aircraft.   The appellant gave his reply to the  chargesheet on April 26 1960 in which he admitted the mistakes that  had been made.  He, however., contended that he was  over-worked and further that it was the duty of others also to check the load-sheet  and balance chart prepared by him. 9th May  1960 was fixed for inquiry by the Station Manager.  The appellant objected to the inquiry being held by Station Manager on the ground  that the Station Manager was biased against  him  on account  of  the  evidence which he had  given  against  the Station Manager in a customs case which was partly responsi- ble  for  the infliction of a fine on the  Station  Manager. His  objection  was however over-ruled and the  inquiry  was held  by the Station Manager and completed on May 10,  1960. Thereafter it appears that the Station Manager forwarded his findings and recommendations to the Regional  Representative

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of  the respondent-company.  The appellant was dismissed  on May  28, 1960 by the Regional Representative; the  order  of dismissal provided for payment of one month’s wages to the  107 appellant and also stated that an application was being made before  the  First  Industrial Tribunal,  West  Bengal,  for approval of the action taken, apparently as some  industrial dispute  was pending before that tribunal.  It appears  that the order of dismissal was communicated to the appellant  on May  30,  and one month’s wages were also tendered  to  him. The same day the respondent filed an application before  the First Industrial Tribunal, West Bengal, seeking approval  of the  action.   On  June  3,  1960,  the  appellant  made  an application  under  s. 33-A of the Industrial  Disputes  Act NO.XIV  of  1947,  (hereinafter referred  to  as  the  Act), challenging  the  legality of the action taken  on  a  large number of grounds. These grounds were considered by the Labour Court and all of them were substantially decided against the appellant.   The Labour  Court held that the dismissal of the  appellant  was justified   and   therefore  accorded  approval   for   such dismissal.   In particular, dealing with the various  points raised  on  behalf of the appellant, the Labour  Court  held that  the  application under s. 33 (2) (b) of  the  Act  was validly made even though it had been made after the order of dismissal  had been passed.  It further held that  the  case was  not  covered  by s. 33 (1) of the Act and  it  was  not necessary to obtain the precious permission of the  tribunal before  dismissing  the appellant.  It also  held  that  the appellant  was not a protected workman.  Further as  to  the charge  that  the Station Manager was biased  and  therefore there  was violation of the principles of  natural  justice, the Labour Court was of the view that the contention of  the appellant  that the Station Manager was biased  against  him because  of  the evidence he had given in the  customs  case could not be brushed aside lightly.  But it went on to  hold that  even if there was some violation of the principles  of natural justice in as much as the Station Manager was biased against 108 the  appellant, the respondent had adduced all the  evidence before  it in support of its action and it had to decide  on that evidence whether the action was justified and  approval should  be granted.  In this connection.. the  Labour  Court relied on the decision of this Court in Phulbari Tea  Estate v. Its workmen (1). The  Labour  Court  then went in-to  the  evidence  tendered before  it.  It pointed out that the appellant had  admitted the  two  mistakes which were the basis of the  charge.   It also  held that the mistakes were of a serious nature  which might  have  resulted in ’an accident to the  aircraft.   It said  that the fact that other people were also  responsible for   checking  loadsheets  and  balance-charts  would   not mitigate  the mistakes committed’ by the appellant  who  was primarily responsible for preparing them.  It also  repelled the  charge  of  victimisation  raised  on  behalf  of   the appellant on account of the delay in giving him the  charge- sheet.  Finally, it came to the conclusion that the mistakes committed  by the appellant were serious involving  possible accident  to the aircraft and possible loss of  human  life. It  was  not prepared to accept the plea  of  over-work  and other  pleas raised on behalf of the appellant  to  mitigate the  mistakes  committed by him.  It pointed  out  that  the mistakes  being  of  a  serious  nature  the  punishment  of dismissal  inflicted by the respondent could not be said  to

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be  unconscionable  or  entirely out of  proportion  to  the gravity  of  the  offence.   It,  therefore,  dismissed  the application  of  the appellant unders. 33-A of the  Act  and accorded  approval  to the action taken by  the  respondent. This decision of the labour Court is being challenged by the present appeal by special leave. The  main  point  which was raised in  this  appeal  is  now concluded  by the decision of this Court in the Straw  Board Manufacturing  Co. Limited, Saharanpur v. Govind (2 ).  This Court has held in (1) [1960] 1 S.C.R. 32,  (2) [1962] Supp. 8 S.C.R. 618 109 that  case that the proviso to s.33  (2)(b)contemplates  the three  things  mentioned therein,  namely,(i)  dismissal  or discharges(ii)  payment  of wages, and (iii)  making  of  an application for approval, to be simultaneous and to be  part of  the same transaction so that the employer when he  takes the  action under s. 33 (2) by dismissing or discharging  an employee,  should  immediately pay him or offer to  pay  him wages  for  one month and also make an  application  to  the tribunal  for  approval at the same time".  It  was  further held that "the employer’s conduct should show that the three things contemplated under the proviso, are parts of the same transaction;  and the question whether the  application  was made  as  part of the same transaction or at the  same  time when  the action was taken would be a question of  fact  and will  depend upon the circumstances of each case".   In  the present  case  the  order of dismissal  was  passed  by  the Regional Representative on May 28, 1960 and was communicated to the appellant on May 30th.  The wages were offered to the appellant  at the same time when the order was  communicated to him., though he did not accept them. The respondent also made the application under s. 33  (2) (b) to the  industrial tribunal  the  same  day.In these circumstances  we  are  of opinion that   the  Labour Court was right in  holding  that the  application under s. 33 (2) (b) was in accordance  with the proviso to that section and was properly made. Learned  counsel for the appellant has further  raised  some points  which were raised on behalf of the appellant  before the Labour Court.  In the first place, he contends that  the appellant  was a protected workman and the Labour Court  was not  right  when  it  held that  the  appellant  was  not  a protected  workman.   We are of opinion  that  the  question whether a particular workman is a protected workman or not is  a question of fact, and the finding of the Labour  Court on such a question will generally be accepted 110 by this Court as conclusive.  Besides, the Labour Court  has pointed out that the mere fact that a letter was written  to the Manager of the respondent company by the  Vice-President of  the  union  in  which the  name  of  the  appellant  was mentioned as a joint secretary of the union and the  manager had  been  requested  to recognise  him  along  with  others mentioned  in the letter as protected workmen would  not  be enough.  The company had replied to that letter pointing out certain  legal defects therein and there was no evidence  to show  what happened thereafter.  The Labour Court  has  held that according to the rules framed by the Government of West Bengal  as  to the recognition of protected  workmen,  there must be some positive action on the part of the employer  in regard  to  the recognition of an employee  as  a  protected workman before he could claim to be a protected workman  for the purpose of s. 33.  Nothing has been shown to us  against this  view.  In the absence therefore of any evidence as  to recognition,   the  Labour  Court  rightly  held  that   the

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appellant was not a protected workman and therefore previous permission under s. 33 (3) of the Act would not be necessary before his dismissal. Then  it is urged that after the Labour Court held that  the Station  Manager who held the inquiry was baised  and  there had  been violation of the principles of natural  ..justice, it was not open to the Labour Court to consider the question whether the appellant was rightly dismissed itself.  On  the other  hand  it has been urged on behalf of  the  respondent that  the Station Manager could not in the circumstances  of this case be said to have violated the principles of natural justice because the mistakes were admitted by the appellant and the inquiry was really  formal and_ all that the Station Manager had to do was to recommend what  he considered suitable punishment for the  misconduct, which  had  taken place.  It is also pointed  out  that  the actual punishment  111 was  awarded by the Regional Representative and not  by  the Station  Manager.  There is some force in these  contentions on  behalf  of the respondent in the  circumstances  of  the present case.  But we do not think it necessary to pronounce finally on the question whether in such circumstances  there would  be  violation  of natural justice.  It  is  now  well settled  by a number of decisions of this Court that  it  is open to the tribunal to go into the propriety of an order of dismissal  itself,  when there is a defect in  the  domestic inquiry.  In these circumstances even if it be held that the Station  Manager  was biased and therefore  there  was  some violation  of the principles of natural justice inasmuch  as the  inquiry  was field by him, the Labour  Court  would  be entitled  to go into the question whether the dismissal  was justified on the evidence led before it and this is  exactly what  the Labour Court did relying on the judgment  of  this Court in Phulbari Tea Estate (1).  The contention  therefore on  behalf  of the appellant that the Labour Court  was  not entitled  to go into the question whether the dismissal  was justified  once  it  held  that  the  domestic  inquiry  was defective, must be rejected. Then it is urged that the Labour Court was wrong in  holding that victimisation had not been proved.  We however find  no reason to differ from the finding of the Labour Court on the question  of  victimisation,  apart from  the  fact  that  a finding of victimisation is generally a question of fact and cannot  be  agitated in this Court.  The  Labour  Court  has pointed  out  that the plea of victimisation on  the  ground that there was some delay in giving the charge-sheet to  the appellant  cannot be sustained, because the Station  Manager came  to know about the mistakes only a few days before  the charge-sheet  was  given, though the mistakes  had  actually been  committed in January and March, and also  because  the appellant admitted the mistakes and there could be no  doubt therefore that he had committed them. (1)  [1960] 1 S. C R. 82. 112 We  agree  with  the Labour Court that in the  face  of  the appellant’s  admission  of the mistakes there  could  be  no question of victimisation in this case. Finally  it  is  urged  that as  the  domestic  inquiry  was defective, there could be no approval of the action taken in consequence of such an inquiry and the Labour Court even  if it held that the dismissal was justified should have ordered the   dismissal  from  the  date  its  award  would   become operative.   In this connection reliance was placed  on  the decision of this Court in Messrs.  Sasa Musa Sugar Works (P)

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Ltd. v. Shobrati Khan, (1), where the following observations occur at p. 845 -.- "......  as the management held no inquiry after  suspending the  workmen  and proceedings under s. 33  were  practically converted  into  the inquiry which normally  the  management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a  case for dismissal was made out in the proceedings  under s. 33." We  are of opinion that those observations cannot  be  taken advantage  of  by the appellant.  That was a case  where  an application  had  been made under s. 33 (1) of the  Act  for permission to dismiss the employees and such permission  was asked for though no inquiry whatsoever had been held by  the employer  and  no  decision  taken  that  the  employees  be dismissed.   It was in those circumstances that a  case  for dismissal  was made out only in the proceedings under s.  33 (1) and therefore the employees were held entitled to  their wages till the decision of the application under s. 33.  The matter would have been different if in that case an  inquiry had  been held and the employer had come, to the  conclusion that dismissal was the proper punishment and then (1)  [1959] Supp. 2 S.C.R. 836,  113 had  applied under s. 33 (1) for permission to dismiss.   In those  circumstances the permission would have related  back to the date when the employer came to the conclusion  after. an inquiry that dismissal was the proper punishment and had’ applied for removal of the ban by an application under s. 33 (1)  :  (see the Management of Ranipur  Colliery  v.  Bhuban Singh  (1).   The present is a case where the  employer  has held  an inquiry though it was defective and has  passed  an order of dismissal and seeks approval of that order.  If the inquiry  is not defective, the Labour Court has only to  see whether  there  was a prima facie case  for  dismissal,  and whether  the employer had come to the bona  fide  conclusion that  the employee was guilty of misconduct.  Thereafter  on coming  to  the conclusion that the employer had  bona  fide come  to the conclusion that the employee was guilty  i.  e. there  was no unfair labour practice and  no  victimisation, the Labour Court would grant the approval which would relate back  to  the date from which the employer had  ordered  the dismissal.  If the inquiry is defective for any reason,  the Labour  Court would also have to consider for itself on  the evidence  adduced  before  it  whether  the  dismissal   was justified.   However on coming to the conclusion on its  own appraisal  of evidence adduced before it that the  dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate  back to  the date when the order was made.  The  observations  in Messrs.  Sasa  Musa Sugar Company’s case (2), on  which  the appellant relies apply only to a case where the employer had neither   dismissed  the  employee  nor  had  come  to   the conclusion that a case for dismissal had been made out.  In’ that  case the dismissal of the employee takes  effect  from the  date  of the award and so until then  the  relation  of employer and employee continues in law and in fact.  In  the present  case an inquiry has been held which is said  to  be defective  in  one respect and dismissal has  been  ordered. The (1)  [1959]  Supp. 2 S.C.R. 719. (2) [1959] Supp.  2  S.C.R. 836. 114 respondent  had  however to justify the order  of  dismissal before  the  Labour  Court  in view of  the  defect  in  the

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inquiry.   It  has succeeded in doing so and  therefore  the approval of the Labour Court will relate back to the date on which  the  respondent passed the order of  dismissal.   The contention of the appellant therefore that dismissal in this case should take effect from the date from which the  Labour Court’s award came into operation must fail. There is no force in this appeal and it is hereby dismissed. In the circumstances we pass no order as to costs. Appeal  dismissed.