1959 JTR(SC) 79
1960 1 LLJ 518
SUPREME COURT OF INDIA
JUSTICE SRI B. P. SINHA
JUSTICE SRI P. B. GAJENDRAGADKAR
JUSTICE SRI K. N. WANCHOO
Civil Appeal No. 492 of 1957, dated 30 April 1959
Orissa Cement, Ltd. v. Adikanda Sahu
Permission to dismiss an employee under Section 33 of the Industrial Disputes Act may be granted if indecent conduct is proved before the tribunal, regardless of whether a prior internal enquiry was held, and conditional expressions of regret do not constitute unconditional apologies.
Act
Referred
:Industrial Disputes Act
: S.33
(A) Industrial Disputes Act - Section 33 - Permission to dismiss employee - Use of filthy and vulgar language against labour officer - Conditional apology - Whether such conduct justifies dismissal - If an employee has used indecent and vulgar language without provocation, the employer is justified in dismissing him - A conditional expression of regret cannot be treated as an unconditional apology.
(B) Section 33 - Procedure - Absence of prior enquiry - If the employer produces evidence before the tribunal to support its case and the case is held proved, the absence of a prior enquiry does not preclude the granting of permission to dismiss.
Facts of the case:
An employee was found to have abused a labour officer in filthy language on two separate occasions. The employer applied for permission to dismiss the employee under Section 33 of the Industrial Disputes Act. The tribunal and the appellate tribunal refused the application, citing the employee's young age and an apology offered.
Findings of Court:
The court found that the apology offered was conditional and not unconditional. The conduct of the employee was indecent and vulgar, and the employer was justified in not retaining such a person in employment.
Issues: Whether the conditional expression of regret amounted to an unconditional apology and whether the lack of a formal enquiry by the employer before applying under Section 33 barred the permission to dismiss.
Ratio Decidendi: The court held that a conditional apology is insufficient to mitigate indecent and vulgar conduct. Furthermore, the jurisdiction of tribunals under Section 33 is limited, and if the facts supporting the dismissal are proved through evidence before the tribunal, the absence of a prior internal enquiry is not a ground to deny permission for dismissal.
Result: Appeal allowed, and the appellant's request for permission to dismiss the respondent is granted.
(B) Section 33 - Procedure - Absence of prior enquiry - If the employer produces evidence before the tribunal to support its case and the case is held proved, the absence of a prior enquiry does not preclude the granting of permission to dismiss.
Facts of the case:
An employee was found to have abused a labour officer in filthy language on two separate occasions. The employer applied for permission to dismiss the employee under Section 33 of the Industrial Disputes Act. The tribunal and the appellate tribunal refused the application, citing the employee's young age and an apology offered.
Findings of Court:
The court found that the apology offered was conditional and not unconditional. The conduct of the employee was indecent and vulgar, and the employer was justified in not retaining such a person in employment.
Issues: Whether the conditional expression of regret amounted to an unconditional apology and whether the lack of a formal enquiry by the employer before applying under Section 33 barred the permission to dismiss.
Ratio Decidendi: The court held that a conditional apology is insufficient to mitigate indecent and vulgar conduct. Furthermore, the jurisdiction of tribunals under Section 33 is limited, and if the facts supporting the dismissal are proved through evidence before the tribunal, the absence of a prior internal enquiry is not a ground to deny permission for dismissal.
Result: Appeal allowed, and the appellant's request for permission to dismiss the respondent is granted.
JUDGMENT
Per Gajendragadkar, J: -This appeal by special leave arises out of the proceedings taken by Orissa Cement, Ltd., Rajggangpur, Orissa (hereinafter called the appellant), against Sri Adikanda Sahu (hereinafter called the respondent) under S. 33 of the Industrial Disputes Act. The respondent was a fitter employed by the appellant. It appears that on 6 January 1955 he went into the time office and abused Mr. S. K. Misra, the labour officer of the appellant, in filthy language. The said officer reported the matter to the management that very day. The respondent was called by the resident engineer of the appellant and was asked to give explanation. In reply the respondent denied the statements of the labour officer. On 8 January the respondent raised slogans against the secretary and the labour officer and in the same evening he again abused Mr. Misra in filthy language. On 8 January the labour officer made another complaint against the respondent. In regard to this complaint also the respondent s explanation was called for and duly received. The resident engineer rejected the explanations given by the respondent and on his report the appellant made an application against the respondent under S.33 of the Industrial Disputes Act for permission to dismiss him.
The tribunal found that the labour officer who was a respectable young man had been abused by the respondent in vulgar and filthy language and that this conduct of the respondent was undesirable and was subversive of discipline. The tribunal rejected the respondent s explanation and accepted the labour officer s account without any reservation. Nevertheless, it felt that the respondent should not be sacked as he was a young man of immature and Impulsive age and should be given a chance to correct himself. In coming to this conclusion the tribunal was influenced by the consideration that the respondent had offered an apology to Mr. Misra. On this view the tribunal rejected the appellant s application.
Against this order the appellant appealed to the Labour Appellate Tribunal. The Appellate Tribunal took the view that no enquiry had been made by the appellant before it applied under S. 33 of the Act, and 80 it confirmed the finding of the tribunal that the respondent should not be dismissed having regard to the mitigating circumstances mentioned by the tribunal in its award. That is why the Appellate Tribunal dismissed the appeal preferred by the appellant. It is against this order that the present appeal has been filed.
It is clear that both the tribunals have agreed in holding that the respondent had used filthy language. in abusing the appellant s labour officer. They, however, thought that the respondent had offered ah apology and that would meet the ends of justice in present case. In our opinion, this view is obviously erroneous. It is clear that the respondent in fact has not offered an unconditional apology as has been assumed by the tribunals below. He has merely stated that in discharging faithfully his duties as a trade unionist, he might have been misunderstood by Mr. Misra and he has added that if Mr. Misra felt offended by his behaviour, he would express his regret for all that had happened. It is obvious that the expression of regret by the respondent is conditional and cannot be taken as an unconditional apology. Besides, the words used by the respondent in abusing the labour officer not once but twice without any provocation are absolutely Indecent and vulgar. In such a case, if the appellant took the view that it should not keep in its employment a person who was capable of such Indecent conduct, it would be justified in dismissing him. The Jurisdiction of the tribunals in dealing with the application made by the employer under S. 33 is limited, and as we have already observed, on the merits the concurrent finding has been in favour of the appellant. That being so, we do not see how the order passed by the tribunals below dismissing the appellant s application can be justified. This is a clear case where the appellant s prayer for permission to dismiss the respondent should have been granted. If no enquiry was held by the appellant, it has produced evidence before the tribunal to support Its case, and as we have just indicated, that case had been held proved by both the tribunals.
In the result, the appeal is allowed, the decision of the Labour Appellate Tribunal set aside, and the appellant s request for permission to dismiss the respondent is granted. Since the respondent does not appear, we make no order as to costs.
For Citation :(1960) 1 Lab LJ 518(SC)