P. H. Kalyani vs M/S. Air France Calcutta

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 419 of 1962

Decision Date: 15 February 1963

Coram: K.N. Wanchoo, P.B. Gajendragadkar, M. Hidayatullah, K.C. Das Gupta, J.C. Shah

In this matter the Supreme Court of India rendered its decision on 15 February 1963. The judgment was authored by Justice K.N. Wanchoo, and the bench on which the case was heard comprised Justices K.N. Wanchoo, P.B. Gajendragadkar, M. Hidayatullah, K.C. Das Gupta and J.C. Shah. The petitioner was identified as P. H. Kalyani and the respondent as M/S. Air France Calcutta. The case is reported in the official law reports with the citations 1963 AIR 1756 and 1964 SCR (2) 104, and it is also referenced in subsequent citation compilations as R 1972 SC 171 (13), R 1973 SC 1404 (4), R 1976 SC 1760 (8, 10, 12, 13), R 1978 SC 1004 (10), RF 1979 SC 1022 (11), RF 1980 SC 1896 (180). The operative statutory provision concerned the Industrial Disputes Act, 1947 (14 of 1947), specifically section 33 relating to dismissal. The headnote of the judgment outlines the material facts and the principal issues that were before the Court. The appellant, who had been employed by the respondent airline, was charged with gross dereliction of duty. In response to the charge‑sheet, the appellant admitted that mistakes had been made but argued that he was over‑worked and that the responsibility for checking the load sheet and the balance chart that he prepared also rested on other employees. A domestic enquiry into the matter was conducted by the Station Manager. The appellant objected to the Station Manager’s role on the ground of alleged bias. After the enquiry the Regional Representative of the respondent company dismissed the appellant, paid him one month’s wages and informed him that the dismissal required the approval of the Industrial Tribunal, which was then hearing several industrial disputes. The order of dismissal was communicated to the appellant on 30 May, and on the same day an application for approval of the dismissal was filed. Subsequently, on 3 June 1960 the appellant filed an application under section 33A of the Act challenging the order of dismissal. The appellant further contested the maintainability of the application for approval, but the Tribunal granted approval to the respondent’s action and dismissed the appellant’s application under section 33A. The matter then proceeded to the Supreme Court on special leave. The Court held that the application for approval was made in accordance with the proviso to section 33 and was therefore properly filed. The Court referred to the precedent set in The Straw Board Manufacturing Co. Ltd., Saharanpur v. Govind, [1962] Supp. 3 S.C.R. 618. It further held that, in the absence of any positive act by the respondent that recognized the appellant as a protected workman, and given that the appellant produced no evidence of such recognition, he could not be treated as a protected workman for whom prior sanction under section 33(3) would have been required. The Court also considered the allegation of bias against the Station Manager; it noted that although the enquiry was conducted by the Station Manager, the dismissal order was issued by the Regional Representative, against whom no bias was alleged. Accordingly, the Tribunal was entitled to examine whether the dismissal was justified on the basis of the evidence placed before it. The judgment cited Phulbari Tea Estate v. Its Workmen, [1960] 1 S.C.R. 32, in support of this reasoning. The Court further held that the dismissal did not amount to victimisation. Finally, the Court observed that even if the domestic enquiry were defective, the existence of a prima facie case and a bona‑fide conclusion that the employee was guilty of misconduct would permit the labour Court, while considering the application under section 33(2), to approve the dismissal and to relate the approval back to the date when the employer, after the enquiry, concluded that dismissal was a proper punishment.

It was held that when a dismissal is based on a genuine conclusion that an employee is guilty of misconduct, the labour Court may, while considering an application under section 33 (2) and after evaluating the evidence placed before it, give its approval and cause that approval to relate back to the point at which the employer, after completing the enquiry, had decided that the dismissal constituted a proper punishment. The case of M s Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan, [1959] Supp. 2 S.C.R. 836, was distinguished, and the case of Management of Ranipur Colliery v. Bhuban Singh, [1959] Supp. 2 S.C.R. 719, was referred to for support. The matter before the Court was an appeal in civil appellate jurisdiction identified as Civil Appeal No. 419 of 1962. The appeal was entertained by special leave from an award dated 22 June 1961 rendered by the Second Labour Court, West Bengal, in Case No. 97/33A of 1960. Counsel for the appellant was instructed, while the Solicitor General of India and counsel for the respondent also appeared. The judgment was delivered on 15 February 1963 by Justice Wanchoo.

A charge‑sheet dated 23 April 1960 was issued to the appellant under the signature of the Station Manager of the respondent company. The charge‑sheet set out two counts of gross dereliction of duty, alleging that the appellant had prepared a load‑sheet on one occasion and a balance chart on another occasion, and that the mistakes in these documents could have caused a serious accident to an aircraft. The appellant responded to the charge‑sheet on 26 April 1960, admitting the mistakes but contending that he had been over‑worked and that the responsibility for checking the load‑sheet and balance chart also rested with other officers. An inquiry was scheduled for 9 May 1960 to be conducted by the Station Manager. The appellant objected to the Station Manager presiding over the enquiry, asserting that the manager was biased because the appellant had earlier given evidence in a customs case that resulted in a fine being imposed on the manager. The objection was overruled, and the inquiry proceeded under the Station Manager, concluding on 10 May 1960. Subsequently, the Station Manager forwarded his findings and recommendations to the Regional Representative of the respondent company. Acting on those recommendations, the Regional Representative dismissed the appellant on 28 May 1960, ordering the payment of one month’s wages and indicating that an application for approval of the dismissal would be filed before the First Industrial Tribunal, West Bengal, as a related industrial dispute was pending before that tribunal. The dismissal order was communicated to the appellant on 30 May 1960, and the one month’s wages were tendered to him on the same day.

The respondent submitted an application to the First Industrial Tribunal of West Bengal seeking formal approval of the dismissal it had effected. On 3 June 1960 the appellant filed an application under section 33‑A of the Industrial Disputes Act, No XIV of 1947, contesting the legality of that dismissal on a multitude of grounds. The Labour Court examined every ground raised by the appellant and ultimately decided that each ground failed, thereby concluding that the dismissal was lawful and granting the tribunal’s approval for the dismissal. The Court specifically held that the appellant’s application under section 33 (2) (b) of the Act was properly made even though it was filed after the dismissal order had been issued, and it further observed that the matter did not fall within the scope of section 33 (1), so prior permission from the tribunal was not required. Moreover, the Court found that the appellant did not qualify as a protected workman under the Act. Concerning the appellant’s allegation that the Station Manager was biased, the Court acknowledged that the claim could not be dismissed summarily because it stemmed from testimony the appellant gave in a customs case; nevertheless, the Court ruled that even if bias existed, the respondent had presented all relevant evidence supporting its action, and the tribunal was bound to assess that evidence to determine whether the dismissal was justified. In reaching this conclusion, the Court relied on the precedent set in Phulbari Tea Estate v. Its Workmen. Turning to the evidentiary record, the Court noted that the appellant had admitted the two mistakes forming the basis of the charge, and it characterized those mistakes as serious enough to potentially cause an aircraft accident. The Court rejected the argument that the involvement of other personnel in checking load‑sheets and balance‑charts mitigated the appellant’s culpability, emphasizing that the appellant bore primary responsibility for preparing those documents. The Court also dismissed the appellant’s claim of victimisation arising from the delay in furnishing a charge‑sheet. Ultimately, the Court concluded that the appellant’s errors were grave, carrying the risk of a serious aircraft incident and possible loss of human life, and it refused to accept the appellant’s pleas of excessive workload or other mitigating circumstances. The Court therefore observed that, given the seriousness of the mistakes, the punishment of

The Court observed that the dismissal imposed by the respondent was not unreasonable or grossly disproportionate to the seriousness of the misconduct. Consequently, the Court rejected the appellant’s petition under section 33‑A of the Act and affirmed that the respondent’s action was lawful. The Labour Court’s decision is now before this Court on a special leave appeal. The principal issue raised on appeal concerns the interpretation of the proviso to section 33(2)(b), a matter that this Court has already settled in Straw Board Manufacturing Co. Limited, Saharanpur v. Govind. In that precedent, reported in (1) [1960] 1 S.C.R. 32 and (2) [1962] Supp. 8 S.C.R. 618, the Court held that the proviso requires three components—(i) dismissal or discharge, (ii) payment of wages, and (iii) filing an application for approval—to occur simultaneously as part of a single transaction. The employer, upon dismissing an employee under section 33(2), must at once offer payment of one month’s wages and submit an approval application to the tribunal. The Court further explained that the employer’s conduct must demonstrate that these three steps are integrated; whether the application is made “as part of the same transaction” or “at the same time” is a factual determination depending on the circumstances of each case. In the present matter, the Regional Representative issued the dismissal order on 28 May 1960, and the order was communicated to the appellant on 30 May 1960. At the time of communication, the respondent offered the appellant wages for one month, which the appellant declined. On that same day, the respondent also filed the required application under section 33(2)(b) with the industrial tribunal. In view of these facts, this Court is of the opinion that the Labour Court correctly concluded that the application complied with the proviso and was properly made. Counsel for the appellant also urged that the appellant should be treated as a protected workman and that the Labour Court erred in finding otherwise. This Court holds that the status of a protected workman is a factual question, and the findings of the Labour Court on such questions are generally conclusive. Moreover, the Labour Court noted that a mere letter from the union’s Vice‑President to the manager, naming the appellant as a joint secretary, does not by itself establish protected‑workman status.

The Court observed that a letter sent by the union’s Vice‑President to the manager of the respondent company, which listed the appellant as a joint secretary and asked the manager to recognise him together with the other persons named in the letter as protected workmen, was insufficient to establish such recognition. The company responded to that letter by pointing out several legal defects in the request, and the record contained no evidence showing any subsequent action to recognise the appellant as a protected workman. The Labour Court therefore held, relying on the rules framed by the Government of West Bengal concerning the recognition of protected workmen, that an employer must take a positive step to recognise an employee as a protected workman before that employee can claim the status of protected workman for the purposes of section 33. The Court found nothing in the material before it that contradicted this principle. Consequently, in the absence of any evidence of such recognition, the Labour Court correctly concluded that the appellant was not a protected workman and that prior permission under section 33(3) of the Act was not required before his dismissal could be effected. The appellant then argued that, after the Labour Court had found that the Station Manager who conducted the domestic inquiry was biased and that the principles of natural justice had been violated, the Court should not have proceeded to consider whether the dismissal itself was proper. The respondent, however, contended that the Station Manager could not be said to have breached natural‑justice principles because the appellant had admitted the alleged mistakes, the inquiry was essentially a formality, and the manager’s only function was to recommend an appropriate punishment for the misconduct that had occurred. The respondent further pointed out that the actual punishment was imposed by the Regional Representative, not by the Station Manager. The Court noted that these arguments advanced by the respondent possessed some merit in the circumstances of the present case, but it was not necessary to make a final determination on whether a violation of natural justice had occurred. The Court further stated that, as established by several decisions of this Court, a tribunal is permitted to examine the propriety of a dismissal order when a defect exists in the domestic inquiry. Accordingly, even if the bias of the Station Manager and a breach of natural‑justice principles were established, the Labour Court was still entitled to assess, on the basis of the evidence before it, whether the dismissal was justified. The Labour Court had indeed undertaken such an examination, relying on the judgment of this Court in Phulbari Tea Estate. Therefore, the appellant’s contention that the Labour Court lacked authority to consider the justification of the dismissal after finding the domestic inquiry defective could not be sustained.

In response to the argument that the Labour Court erred in concluding that victimisation had not been established, the Court found no basis to depart from the Labour Court’s finding. It noted that a determination of victimisation is ordinarily a question of fact, and such factual findings are not open to review in this Court. The Labour Court had explained that the claim of victimisation, premised on an alleged delay in serving the charge‑sheet, could not succeed because the Station Manager became aware of the alleged mistakes only a few days before the charge‑sheet was issued, even though the alleged mistakes had been committed in January and March. Moreover, the appellant had expressly admitted to having made those mistakes, leaving no doubt that he was responsible for them. Consequently, the Court agreed with the Labour Court that the appellant’s admission precluded any finding of victimisation.

The appellant further submitted that, owing to the defectiveness of the domestic inquiry, no approval could be granted for the dismissal that followed, and that even if the Labour Court considered the dismissal justified, it should have ordered the dismissal to be effective from the date on which its award became operative. To support this contention, the appellant relied on the decision of this Court in Messrs Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan, quoting the passage at page 845 which held that where management had not conducted an inquiry after suspending workmen and had instead relied on proceedings under section 33, it was bound to pay the workmen’s wages until a case for dismissal was made out in those proceedings. The Court observed, however, that the cited observations could not be extended to the present case. In the cited case, an application under section 33 (1) of the Act had been filed for permission to dismiss employees before any inquiry was held and before any decision to dismiss was taken; the case for dismissal therefore arose only during the section 33 proceedings, obliging the employer to continue paying wages until the application was decided. By contrast, in a situation where an inquiry had been conducted, the employer had concluded that dismissal was the appropriate punishment and then sought permission under section 33 (1); in such circumstances, any permission granted would relate back to the date on which the employer, after the inquiry, reached the conclusion that dismissal was warranted. The present matter involved an employer who had conducted an inquiry—though defective—and had issued a dismissal order, seeking approval of that order. Therefore, the precedent cited by the appellant was inapplicable.

In the matter before the Court, the employer had conducted an inquiry that was described as defective, after which it issued an order of dismissal and subsequently asked the Labour Court to approve that order. The Court explained that where an inquiry is found to be not defective, the Labour Court’s role is limited to examining whether a prima facie case for dismissal exists and whether the employer has arrived at a genuine, good‑faith conclusion that the employee committed misconduct. If the Court is satisfied that the employer’s conclusion was indeed made in good faith, that there was no unfair labour practice and no victimisation, the Court would grant approval of the dismissal and such approval would be deemed to relate back to the date on which the employer originally ordered the dismissal.

Conversely, the Court held that if the inquiry is defective for any reason, the Labour Court must independently evaluate, on the basis of the evidence placed before it, whether the dismissal was justified. Should the Court, after its own appraisal of the evidence, determine that the dismissal was justified, the Court’s approval of the employer’s order—though the inquiry was defective—would still be back‑dated to the day the employer issued the dismissal order.

The Court observed that the observations made in Messrs. Sasa Musa Sugar Company’s case (2), which the appellant relied upon, were applicable only in situations where the employer had neither dismissed the employee nor reached a conclusion that a dismissal case existed. In that earlier case, the dismissal took effect from the date of the award, and until that date the legal and factual relationship between employer and employee continued.

In the present case, an inquiry—albeit defective in one respect—had been held and a dismissal order had been passed. The respondent was required to justify the dismissal before the Labour Court because of the defect in the inquiry. The Court found that the respondent had succeeded in justifying the dismissal; consequently, the Labour Court’s approval was to be related back to the date on which the respondent issued the dismissal order. The appellant’s contention that the dismissal should take effect from the date the Labour Court’s award became operative was therefore rejected. The appeal was dismissed, no order as to costs was made, and the matter was concluded.