Jfrmici;cl Ciuncil v. T.J. Jeseph

[Jehl, also that even if the do1nestic 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 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 a 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 l!J{l), of the Second Labour Court, West June 22, Bengal in Case No. 97/3:3A 0f 19f10. N. N. Keswani, for th: ilppellant, - 1963 P. ff_ lialyani v, M/s. Air FrQJZct CaicuttJ B'anch!:lo J, 106 SUPREME COURT REPORTS [1964] VOL. C. K. Dephtary, Solicitor-General of India and El. L. Anand for the respondent. 196:t February 15. The Judgment of Court was <lei ivered by 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. 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 dereli ction of duty inasmuch as the appellant had made mistakes in the preparation of a load-sheet on one dav and a balance chart on another dav, which mis takes might ha,·e led to a 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 had been made. He, however, mistakes 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 a customs case which was partly rc-sponsi ble for the infliction of a 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 appears that the Station ~fanagcr forwarded his findings and the Regional Representative of the rcsponrlent-company. The :\fay 28, !fllJO. by_ the appellant was dismi11~d on Regional Representative; the order of <l1sm1ssal provided for payment of one month's wages to the recommendations <m ,, 1963 P.H. KalJan v. M/s. Air Fran.~t C2lcu'ta Wanchoo J. - 2 S.C.R. SUPREME COURT REPORTS 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 Industrial Tribunal, application before the First 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 referred to as the No. XIV of 194 7, (hereinafter 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 justified and the di1missal of the appellant was 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 It further the order of dismissal had been passed. 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 It also held that the appellant was not .ippellant. 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 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 tribunal before dismissing 108 SUPREME COURT REPORTS [I !lG1] VOL. 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 Its workmen (1 ). in Phulbc1ri Tea Estute v. this Court the fact It said that The Labour Court then went into the evidence It pointccl out that the appellant tendered before it. had admitted the two mistakes which ll'Crr the basis It also held that the mistakes were of the charge. of a serious nature which might have resulted in an accident to the aircraft. other people were also responsible for checking load sheets and balance-charts would not mitigate the mistakes committed by the appellant "·ho was It also primarily responsible for preparing them. 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 It was not craft and possible loss of human life. prepared to accept the pica of over-work and other picas raised on behalf of the appellant to mitigate the mistakes committed by him. the mistakes being of a serious nature the puni, hment of dismissal inflicted by th~ respondent could not be said to b" unconscionable or entirely out of propor It. therefore, tion to the gravity of the offence. dismissed the application of the appellant under s. 33-A of the Act and accorded approval to th·: This decision of action taken by the respondent. the labour Court is being challengecl by the present appeal by special leave. It pointed 011t The main point which \\"aS raised in this appeal is now conclurled by tlic clccision of this Court iu .lfan,1facturhu;1 Co. J,imitc.rl, thr. Stra11J 81Llw.ra11pm v. Go1:inrl ('). This Court has hcl<l Borul'f t l) [1960) l s.c.R. S2, (2) (1962) Supp. s S.C.R. 618. 1963 .. P, H. K alyt1ni M/s. Air Frane1 Calcutta Wanc!too J. 2 S.C.R. SVl>RE11E COUR.t REPORtS 109 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 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 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 In these circum. industrial tribunal the same day. 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 In the first the appellant before the Labour Court. 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 work man. We are of opinion that the questitm 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 - - 1963 P. lJ. Kal;·ani v. }.Ifs. Air France .ColC1dla M'anchoo J. 110 SUPREME COURT REPORTS [l9u4] VOL. the Manager of the by this Court as conclusive. Besides, the Labour Court has pointed out that the mere fact that a letter was written to rcspondent 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 mention ed in the letter as protected workmen would not be replied to that letter enough. The· company had pointing out certain legal defects therein and there was no evidence to show what happened thereafter. The Labour Court has held that according to 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 a pro tected workman before he could claim to be a pro l\othing tected workman for the purpose of s. 33. In the ab has been shown to us against this view. sence therefore of any evidence as to recognition, the Labour Court rightly held that the appellant wa~ not a protected workman and therefore previous permis sion under s. 33 (:1) 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 there had been violation of the was baised and 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 - 1963 P. H. Kalyani v. M/s. Air Franc1 Calcuua Wonchao .T. ~ $.d.R.. SUPREME COURT REPORTS 11i 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 a number of decisions of this Court that it is open to the tribunal to go into the propriety of an order itself, when there is a defect in the of dismissal 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 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. (I) [1960) IS. C, R. 52. - 1963 P. fl. T.ah .. i v. ill; s. Air J•'rt1n<1 Calcutta Wanrhoo J. 112 SUPREME COURT RtPOR'tS [l!J64] VOL • face of We agree with the Labour Court that in the 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 In this connection reliance was placed on the decision of this S£z.sa JI us£• Swjflr Works (!') Ltd. Court !n Jlessrs. v. Sliobrnti l\han, ('), where the following observa tions occur at p. 845 :- , the date its award would become operative. converted " ...... as the management held no inquiry after suspending the workmen and proceedings under s. 33 were practically 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 a 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 a 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 It was in those circumstances that a case dismis>ed. 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. 1963 P. H. Kalyrm.i v. M/1. Air Franc1 Calcutta Wanchoo J. 2 S.C.R. SUPREME COURT REPORTS 113 - Singh (1 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 ). 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 If the inquiry is not defective, the that order. 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 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 a case where the emplo yer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been In that case the dismissal of the employee made out. 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 (2) [1959] Supp. 2 S.C.R. 836. (I) [1959) Supp. 2 S.C.R. 719. r • ~/ ' I 1963 •. P. H. Ira(l<illi Mjs. Air Fra11" C.Jndl4 WdllcAH J, 114 SUPREME COURT REPORTS [1964] VOL. respondent had however to justify· the order of dis missal before the Labour Court in view of the defect It has succeeded in doirig so and in the inquiry. 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 In the circumstances we pass no order dismissed. as to costs. - 1963 F1truary 15 STATE OF PU~JAB & ANOTHER v. 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 a 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 a set or room5 used for indoor games b)' the mill employees, one big hall used as the Gurkha (;uards Club, a set of rooms used as ~ t Officers' Club and a set of roon1s used as residential quarters 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, ~·