The application for approval of dismissal under Section 33(2)(b) of the Industrial Disputes Act, 1947, must be made simultaneously with the dismissal or discharge and payment of wages, and the question of whether a particular workman is a protected workman is a question of fact.

Judgement

WANCHOO, J. : This appeal by special leave challenges the order of the Second Labour Court, West Bengal, relating to the dismissal of the appellant, who was in the service of the respondent-company. A charge-sheet was issued to the appellant on April 23, 1960 under the signature of the Station Manager of the respondent-company. The charge-sheet contained two charges of gross dereliction of duty inasmuch as the appellant had made mistakes in the preparation of a load sheet on one day and a balance chart on another day, which mistakes might have led to a serious accident to the aircraft. The appellant gave his reply to the charge-sheet on April 26, 1960 in which he admitted the mistakes that had been made. He however, contended that he was over-worked and further that it was the duty of others also to check the load-sheet and balance chart prepared by him. 9th May, 1960 was fixed for inquiry by the Station Manager. The appellant objected to the inquiry being held by the Station Manager on the ground that the Station Manager was biased against him on account of the evidence which he had given against the Station Manager in a customs case which was partly responsible for the infliction of a fine on the Station Manager. His objection was however overruled and the inquiry was held by the State Manager and completed on May 10, 1960. Thereafter it appears that the Station Manager forwarded his findings and recommendations to the Regional Representative of the respondent-company. The appellant was dismissed on May 28, 1960 by the Regional Representative; the order of dismissal provided for payment of one month s wages to the appellant and also stated that an application was being made before the First Industrial Tribunal, West Bengal, for approval of the action taken, apparently as some industrial dispute was pending before that tribunal. It appears that the order of dismissal was communicated to the appellant on May 30, and one month s wages were also tendered to him. The same day the respondent fled an application before the First Industrial Tribunal, West Bengal seeking approval of the action. On June 3, 1960, the appellant made an application under S. 33-A of the Industrial Disputes Act, No. XIV of 1947, (hereinafter referred to as the Act) challenging, the action taken on a large number of grounds.

2. These grounds were considered by the Labour Court and all of them were substantially decided against the appellant. The Labour Court held that the dismissal of the appellant was justified and therefore accorded approval for such dismissal. In particular, dealing with the various points raised on behalf of the appellant, the Labour Court held that the application under S. 33 (2) (b) of the Act was validly made even though it had been made after the order of dismissal had been passed. It further held that the case was not covered by S. 33 (1) of the Act and it was not necessary to obtain the previous permission of the tribunal before dismissing the appellant. It also held that the appellant was not a protected workman. Further as to the charge that the Station Manager was biased & therefore there was violation of the principles of natural justice, the Labour Court was of the view that the contention of the appellant that the Station Manager was biased against him because of the evidence he had given in the customs case could not be brushed aside lightly. But it went on to hold that even if there was some violation of the principles of natural justice inasmuch as the Station Manager was biased against the appellant, the respondent had adduced all the evidence before it in support of its action and it had to decide on that evidence whether the action was justified and approval should be granted. In this connection, the Labour Court relied on the decision of this Court in Phulbari Tea Estate v. Its Workmen, 1960 1 SCR 32.

3. The Labour Court then went into the evidence tendered before it. It pointed out that the appellant had admit