Case: P. H. Kalyani Vs. M/S. Air France Calcutta

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, 1960 1 SCR 32 :(AIR 1959 SC 1111 ).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.7. 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 that 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. We agree with the Labour Court that in the face of the appellants admission of the mistakes there could be no question of victimisation in this case.8. 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 M/s. Sasa Musa Sugar Works (P) Ltd v. Shobrati Khan, (1959) Supp (2 SCR 836: (AIR 1959 SC 9233 were the following observations occur at p. 845 (of SCR): (at p. 928 of AIR):........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 that proceedings under S. 33." We are of opinion the those observations can not 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 had applied under S. 33 (l) 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 management of Ranipur Colliery v. Bhuban Singh, (1959) Supp (2) SCR 719: (AIR 1959 SC 833 ). 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 as a prima facie case for dismissal, and whether the employer had come to the bonafide 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 therefore in M/s. Sasa Musa Sugar Companys case, (1959) Supp (2) SCR 836: (AIR 1959 SC 923 ) 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 respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the 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 award came into operation must fail.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 12) (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 properlyare 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 by this Court asthe absence therefore of any evidence as to recognition the Labour Court rightly held that the appellant was not a protected workman and therefore previous permission under S. 33 (3) of the Act would not be necessary before hisis 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 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 Court did relying on the judgment of this Court in Phulbari Tea Estate, 1960 1 SCR 32   :(AIR 1959 SC 1111  ).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 behowever 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 that 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. We agree with the Labour Court that in the face of the appellants admission of the mistakes there could be no question of victimisation in thispresent 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 as a prima facie case for dismissal, and whether the employer had come to the bonafide 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 therefore in M/s. Sasa Musa Sugar Companys case, (1959) Supp (2) SCR 836: (AIR 1959 SC 923  ) 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 respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the 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 award came into operation must fail.