P. H. KALY ANI versus M/S. AIR FRANCE CALCUTTA

1913 Jfrmici;cl Ciuncil Pa/Mi v. T.J. Jeseph 1\!11dholkar J,

1963 Ftiru1ry 15.

For these reasons we allow the appeals and set aside the orders of the High Court and quash the writs issued by it. There will, however, be no order as to costs as the respondents have not appeared.

Appert.ls allowed,

P. H. KALY ANI

M/S. AIR FRANCE CALCUTT

(P. B. GAJENDRAGADKAR, K. N. WANCHOO, M. HmAY.tTULLAH, K. C. DAS GUPTA and J. C. SHAH JJ.)

Indu•trinl Dispute-Di•misMl-1"dustrfol Disputes Act, 1917 (U of 1917), s. 33.

The appellant was cl1arged with groS5 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 aud balance chart prepared by him. Enquiry was held by the Station Manager to whom the appellant objected on the ground of bias. On the finding• of the enquiry the appellant was dis-missed by the Regional Representative of the respondent com-pany 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 \fay 30, and the application for apprornl was made the same day. An application under s. 33A was made on June 3, 1960, by the appellant challen.ging the ordtr of dismis-sal. The appellant objected to the maintainability of the appli-cation 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.

HeW,, that the application for approval was in accordance with the proviso of s. 33 and properly made.

2 S.C.R.

The Strau; Borlrd .IJfanufacturing Co .. Ltd., Flahflranpur v. Gom'.nd, [1962] Supp. 3 S. C.R. 618, referred to.

Held, further that in the absence of any positive action amounting to recognition of the appeJlant as protected person by the respondent (and the appellant had produced no such evidence) he could not be held to be protected workman for dismissing whom p1 evious sanction \Vas necessary under s. 33 (3).

Held, further, that assuming that the Station l'vfanager who held the enquiry was biased though the order of dismissal was passed by the Regional Representative against whom no such allegation was madr, the Tribunal was entitled to go into the question whether the dismissal was justified on the evi· dence laid before it.

Phulbari Tea Estate v. Its Workmen .. [1960] 1 S C.R. 32, referr< to.

HelC:, further, that the dismissal of the appellant did not amount to victimisation

[Jehl, also that even if the do1nestic enquiry was defective provided that there is prima facie case for dismissal and bonafide conclusion is reached that the employee is guilty of misconduct, and if the Labour Court in dealing with the appli-cation under s. 33 (2) and after considering for itself the evi-dence adduced before it gives its approval it w.;uld relate back to \\'hen the e1nployer came to the conclusion after the e:nquiry that the dismissal is proper punishment. .

Jf /8. Sasa. Musa Sugar Works (P) Lt1l. v. Slwbrati Khan, [19.19] Supp. 2 S. C.R. 836, distinguished.

JJiunagement of Ranipur Colliery v. Bhuban Singh, [1959:1 Supp. 2 S C. R. 719, referred to.

CrvrL APPELLATJ~ jumsnronoN : Civil Appeal No. 419 of 1962.

Appeal by special leave from the Awarrl dated June 22, l!J{l), of the Second Labour Court, West Bengal in Case No. 97/3:3A 0f 19f10.

N. N. Keswani, for th: ilppellant,

P.TI. Kalya11i

M/s. Air France Calcutta

P. ff_ lialyani v, M/s. Air FrQJZct CaicuttJ

B'anch!:lo J,

C. K. Dephtary, Solicitor-General of India and

El. L. Anand for the respondent.

196:t February 15. Court was <lei ivered by

The Judgment of the

WANCHOO J.-This appeal by special leave challanges the order of the Second Labour Court, West Bengal, relating to the dismissal of the appe-llant, who was in the service of the respondent-company. 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 dereli-ction of duty inasmuch as the appellant had made mistakes in the preparation of load-sheet on one dav and balance chart on another dav, which mis-takes might ha,·e led to serious accident to the aircraft. The appc Hant gave his reply to the charge-sheet on April 2(i, 19('0 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. \Jth May Hl60 was fixed for inquiry by the Station Manager. The appellant objected to the inquiry being held by Station Manager on the grounrl that the Station Manager was biased against liim on account of the evidence which he had given against the Station Manager in customs case which was partly rc-sponsi-ble for the infliction of fine <m the Station Manager; His objection was however over-ruled and the inquiry was held by the Station Manager and completed on l\lay JO, 19HO. Thereafter it appears that the Station ~fanagcr forwarded his findings and recommendations to the Regional Representative of the rcsponrlent-company. The appellant was dismi11~d on :\fay 28, !fllJO. by_ the Regional Representative; the order of <l1sm1ssal provided for payment of one month's wages to the

2 S.C.R.

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 194 7, (hereinafter referred to as the Act), challenging the legality of the action taken on 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 di1missal 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 bys. 3:J (1) of the Act and it was not necessary to obtain the previous -permission of the tribunal before dismissing the .ippellant. It also held that the appellant was not 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 coritention 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 princi~es of natural justice in asmuch as the Station Manager was biased against

P.H. KalJan

v. M/s. Air Fran.~t C2lcu'ta Wanchoo J.

1963 I'. I I K a!J·m1i v. M/.r. Air Franet (,"alc1Jt'a Wanclwn J.

the appellant, the respondent had adduc~d 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 Co11rt relied on the decision of this Court in Phulbc1ri Tea Estute v. Its workmen (1 ).

The Labour Court then went into the evidence tendered before it. It pointccl out that the appellant had admitted the two mistakes which ll'Crr the basis of the charge. It also held that the mistakes were of 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 load-sheets and balance-charts would not mitigate the mistakes committed by the appellant "·ho was primarily responsible for preparing them. It also repelled the charge of victirni,ation raised on behalf of the appellant on account of the delay in giving him the charge-sheet. Finally, it came to the con-clusion that the mistakes committed by the appellant were serious involving possible accident to the air-craft and possible loss of human life. It was not prepared to accept the pica of over-work and other picas raised on behalf of the appellant to mitigate the mistakes committed by him. It pointed 011t that the mistakes being of serious nature the puni,hment of dismissal inflicted by th~ respondent could not be said to b" unconscionable or entirely out of propor-tion to the gravity of the offence. It. therefore, dismissed the application of the appellant under s. 33-A of the Act and accorded approval to th·: action taken by the respondent. This decision of the labour Court is being challengecl by the present appeal by special leave.

The main point which \\"aS raised in this appeal is now conclurled by tlic clccision of this Court iu thr. Stra11J Borul'f .lfan,1facturhu;1 Co. J,imitc.rl, 81Llw.ra11pm v. Go1:inrl ('). This Court has hcl<l in t l) [1960) l s.c.R. S2, (2) (1962) Supp. s S.C.R. 618.

2 S.C.R.

SVl>RE11E COUR.t REPORtS

that casr that "the proviso to s. 33 (2) (b) contemp-lates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages, and (iii) making of an application for approval, to be simul-taneous and to be part of the same transaction so that the employer when he takes th: 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 atthe 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 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 appell;mt 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 circum. stances 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 protected workman and the Labour Court was not right when it held that the appellant was not protected work-man. We are of opinion that the questitm whether particular workman is protected workman or not is question of fact, and the finding of the Labour Court on such question will generally be accepted

K alyt1ni ..

P, H. K alyt1ni

M/s. Air Frane1 Calcutta

Wanc!too J.

P. lJ. Kal;·ani v. }.Ifs. Air France .ColC1dla M'anchoo J.

by this Court as conclusive. Besides, the Labour Court has pointed out that the mere fact that letter was written to the Manager of the rcspondent-company by the Vice-President of the union in which the name of the appellant was mentioned as joint secretary of the union and the manager had been requested to recognise him along with others mention-ed 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 \'\'est 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 pro-tected workman before he could claim to be pro-tected workman for the purpose of s. 33. l\othing has been shown to us against this view. In the ab-sence therefore of any evidence as to recognition, the Labour Court rightly held that the appellant wa~ not protected workman and therefore previous permis-sion under s. 33 (:1) of the 'Act would not be necessary before his dismissal.

Besides, the Labour

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 circum-stances of this case be said to have violated the principles of natural justice because _the '!1istakes were admitted bv the appellant and the inquiry was really formal and all that the Station Manager had to do was to recommend ·what he considered suitable punish-ment for the misconduct, which had taken place. It is also pointed out that the actual punishment

~ $.d.R.. SUPREME COURT REPORTS

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 snch circumstances there would be violation of natural justice. It is now well settled by 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 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 held 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 Coart did relying on the judgment of this Court in Phulbari Te(], Est(J,fe ([1]). The c9n-tention therefore on behalf of the appellant that the Ilabour 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 finding of victimisation is generally 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 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.

(I) [1960) IS. C, R. 52.

-1963 P. H. Kalyani v. M/s. Air Franc1 Calcuua Wonchao .T.

P. fl. T.ah .. i v. ill; s. Air J•'rt1n<1 Calcutta Wanrhoo J.

SUPREME COURT RtPOR'tS [l!J64] VOL

We agree with the Labour Court that in the face of the appellant's admission of the mistakes there could be no question of victimis,11ion 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 iuquiry 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 !n Jlessrs. S£z.sa JI us£• Swjflr Works (!') Ltd. v. Sliobrnti l\han, ('), where the following observa-tions 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 Indus-trial Tribunal, the management is bound to pay the wages of the workmen till case for dismissal was made out in the proceedings under s. :13."

\Ve arc of opinion that those observations cannot be taken advantage of by the appellant. T!1at was case where an application had been made under s. 33 (I) of the Act for permission to dismiss the employees and such permission was asked for though no inquiry what-so-ever had been held by the emp-loyer and no decision taken that the employees be dismis>ed. It was in those circumstances that 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) Ll9)~J Supp. 2 S.C.R. 836.

2 S.C.R. SUPREME COURT REPORTS

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 Manage'l1Ulnt of Ranipur Colliery v. Bhuban - Singh ([1]). The present is 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 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 defrc-tive inquiry would still relate back to the date when the order was made. The observations in Me&srs. Basa Musa Sugar Company's case ('), on which the appellant relies apply only to case where the emplo-yer had neither dismissed the employee nor had come to the conclusion that 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 conti-nues 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

'I •[r ]

(I) [1959) Supp. 2 S.C.R. 719.

(2) [1959] Supp. 2 S.C.R. 836.

P. H. Kalyrm.i v. M/1. Air Franc1 Calcutta Wanchoo J.

1963 P. H. •. Ira(l<illi Air Fra11"

Mjs. Air Fra11" C.Jndl4 WdllcAH J,

1963 F1truary 15

respondent had however to justify· the order of dis-missal before the Labour Court in view of the defect in the inquiry. It has succeeded in doirig 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.

STATE OF PU~JAB & ANOTHER

BRITISH INDIA CORPORATION LTD.

(S. K. DAS, A. K. SARKAH, K. c. DAS GUPTA

and 'i\. RAJAGOPALA AYYANGAR JJ.)

Properly 1'ax-Exemption-"Uscd for the purpose of factory" and "Rent"-Mea11i11g of-Punjab Urban Immot'!lbk Property Tax Ac/, 1940 (Pb. 17 of 1940), ss. 3, 4-Punjab Urban lmmovabk Property Tax Rules, 1941, r. JS.

The property involved in the first appeal was set or room5 used for indoor games b)' the mill employees, one big hall used as the Gurkha (;uards Club, set of rooms used as ~ Officers' Club and set of roon1s used as residential quarters t ~· by workers of the mills. The property involved in the second •---appeal consi•ted of 200 quarters which had Leen allotted to the workers of the factory for their occupation. The question wa• whether these properties w<"rc exempted fro1n taxation under s. 4 of the Punjab Urban Immovable Property Tax Act, 1940,