# Jfrmici;cl Ciuncil Pa/Mi v. T.J. Jeseph 1\!11dholkar J - **Citation:** [1964] 2 S.C.R. 104 - **Court:** Supreme Court of India - **Decided:** 1964 - **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. HmAY.tTULLAH, K. C. Das Gupta, J. C. Shah - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jfrmici-cl-ciuncil-pa-mi-v-t-j-jeseph-1-11dholkar-j-2827 - **Pages:** 11 ## Headnote 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 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 \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 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. HeW,, that the application for approval was in accordance with the proviso of s. 33 and properly made. - 2 S.C.R. SUPREME COURT REPORTS 105 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 a protected 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 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< d 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 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 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 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, 1963 P.TI. Kalya11i v. M/s. Air France Calcutta 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 the Court was RE11E COUR.t REPORtS 109 that casr that "the proviso to s. 33 (2) (b) contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (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 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 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 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 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, H. K alyt1ni .. M/s. Air Frane1 Calcutta Wanc!too J. 1963 P. lJ. Kal;·ani v. }.Ifs. Air France .ColC1dla M'anchoo J. 110 SUPREME COURT REPORTS [l9u4] VOL. 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 rcspondentcompany 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 \'\'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 protected workman before he could claim to be a protected workman for the purpose of s. 33. l\othing 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 appellant wa~ not a protected workman and therefore previous permission 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 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 '!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 punishment for the misconduct, which had taken place. It is also pointed out that the actual punishment - ~ $.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 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 Coart did relying on the judgment of this Court in Phulbari Te(], Est(J,fe (1). The c9ntention 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. H. Kalyani v. M/s. Air Franc1 Calcuua Wonchao .T. 1963 P. fl. T.ah .. i v. ill; s. Air J•'rt1n<1 Calcutta Wanrhoo J. 112 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 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. :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 employer and no decision taken that the employees be dismis>ed. 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) Ll9)~J Supp. 2 S.C.R. 836. • ~/ ' I r • 2 S.C.R. SUPREME COURT REPORTS 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 Manage'l1Ulnt 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 defrctive 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 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 (I) [1959) Supp. 2 S.C.R. 719. (2) [1959] Supp. 2 S.C.R. 836. 1963 P. H. Kalyrm.i v. M/1. Air Franc1 Calcutta Wanchoo J. 1963 P. H. Ira(l