CALTEX INDIA LIMITED Vs. E FERNANDES

JUDGEMENT

(1.) The facts leading up to this Special Leave Appeal lie within a very narrow compass. The first Respondent was engaged in the service of the appellants as a Driver at their Santa Cruz Airport Service Station. On the morning on the 28th November, 1952, while on duty at the Santa Cruz Aerodrome in an area where smoking is prohibited and at a time when an aircraft was being refuelled by the appellants the first respondent was found smoking, within about 25 ft. of the said aircraft. Smoking while on duty is prohibited by the appellants; the area in which the first respondent was found smoking is an area where smoking is prohibited, and under the Aircraft Ground Fire Precaution Rules, smoking is prohibited within 100 ft. of an aircraft being refuelled. At the time when the re-fuelling was in progress a 'No Smoking' sign was placed on the re-fueller with a view to prevent anyone in the vicinity from smoking and definite instructions had been given to this effect to all the staff concerned including the first respondent. The first respondent was caught red-handed in the very act of smoking within 25 ft. of the said aircraft by the District Manager of the appellants and as a result of the first respondent smoking in the manner stated above the Airport authorities decided not to permit him to operate on the Aerodrome. A charge-sheet was furnished to the first respondent and he was called upon to answer the charge of serious misconduct. An enquiry into the matter was held on the 4th December, 1952, by the Sales Manager of the appellants. The District Manager who was himself an eye-witness gave evidence. The first respondent was afforded a full opportunity to be represented at the enquiry and to defend and to cross-examine the, witnesses. The first respondent not only pleaded guilty but also found guilty of misconduct on the evidence and as a result of the enquiry the appellants desired to punish him by dismissing him from their employ, dismissal being a normal punishment for such an act of misconduct. As adjudication proceedings in respect of Reference (IT) No. 78 of 1952 were pending before the Industrial Tribunal at Bombay, the appellants made an application under section 33 of the Industrial Disputes Act, 1947, asking for the permission of the Tribunal to dismiss the first respondent from their employ.

(2.) The Industrial Tribunal, Bombay, apparently went into the merits of the case and felt that dismissal was not an appropriate punishment in the circumstances but would be excessive particularly in view of certain alleged extenuating circumstances, as for example, his service record, his admission of guilt and plea for leniency and the assurances given by the Union concerned that such lapse would not recur. The Industrial Tribunal attempted to impose conditions on the appellants by putting it to them that, it they amended their application to ask for something less than dismissal, permission would be readily granted but that otherwise the application would he entirely rejected. The appellants who were acting bona fide in the interests of public security and safety as well as in the interests of the whole petroleum industry and the safety of life and property for which it was necessary to maintain discipline rigidly did not agree to a punishment less than dismissal in view of such gross and wilful misconduct as had been proved. The Industrial Tribunal in the result rejected the application of the appellants.

(3.) The appellants preferred an appeal to the Labour Appellate Tribunal for having the said order of the Industrial Tribunal set aside and for grant to the appellants of permission to dismiss the first respondent from their employ. The Labour Appellate Tribunal by its decision dated the 1st April, 1953, set aside the said order of the Industrial Tribunal and granted such permission to the appellants. The Labour Appellate Tribunal was of opinion that there was a substantial question of law involved and that there had been a perverse exercise of jurisdiction by the Industrial Tribunal. It held that in a case of this kind where the offence was prima facie proved and there was not even an allegation of want of bona fides, unfair labour practice or victimization on the part of the appellants, much less any proof thereof, the Industrial Tribunal had no jurisdiction to refuse the permission sought for.