PETITIONER:
MARTIN BURN LTD.
Vs.
RESPONDENT:
R.N BANERJEE
DATE OF JUDGMENT:
20/09/1957
BENCH:
BHAGWATI, NATWARLAL H.
DAS, S.K.
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 79 1958 SCR 514
ACT
Industrial dispute-Discharge of employee-Application for
permission on before Labouy Appellate Tribunal Jurisdiction
of the Tribunal-Power to set aside ex-parte order and re-
store application--Code of Civil Procedure (Act V of 1908),
Or. 41, R. 21 Industrial disputes (Appellate Tribunal) Act,
1950, (XLVIII of 1950), SS. 9(1) (10), 22.
HEADNOTE
The respondent was employed by the appellant company, but
later on his work and conduct became very unsatisfactory
and repeated warnings, both oral and written, did not show
any improvement. A thorough inquiry into his record of
service was made and a report was submitted which showed
that he was unsuitable to be retained in its service. No
formal enquiry, however, was held by submitting a charge-
sheet to the respondent and giving him an opportunity to
rebut those chares. The appellant gave him a choice either
to terminate his services on payment of full retrenchment
compensation, or if he refused to accept the same, to make
an application for permission to terminate his services.
Eventually, the appellant filed an application before the
Labour Appellate Tribunal under section 22 Of the Industrial
Disputes (Appellate Tribunal) Act, 1950, for permission to
discharge the respondent from its service. The application
was originally heard ex parte, the respondent not appearing,
and the Tribunal, by order dated October 14, 1955, allowed
the application. Subsequently the respondent made an appli-
cation for a review of the order under Or. 47, R. I, for
setting it aside under Or. 9, R. 13 and for restoration of
the application under Or. 41, R. 21, Of the Code of Civil
Procedure. The Tribunal found that there was sufficient
cause for the respondent not appearing when the application
was called on for hearing, and set aside the ex parte order
and restored the appellant’s application. On a further
hearing of the application, the parties adduced evidence and
the Tribunal, after hearing them, rejected the application
on the, ground that a prima facie case had not been made out
for permission to discharge the respondent. On appeal to
the Supreme Court it was contended for the appellant (1)
that the Labour Appellate Tribunal had no jurisdiction to
review its own order and (2) that it exceeded its jurisdic-
tion under section 22 Of the Act, in discussing the evidence
led before it in meticulous detail and coming to the conclu-
sion that the appellant failed to make out a prima facie
case to discharge the respondent from its service.
Held: (1) that under s. 9, sub-ss. (1) and (10) of the
Act the Labour Appellate Tribunal had jurisdiction to set
aside the
515
ex parte order dated October 14, 1955, and restore the
application to its file.
(2) that under S. 22 of the Act, the jurisdiction of the
Labour Appellate Tribunal in considering whether a prima
facie case has been made out by the employer, is to see
whether the employer is acting mala fide or is resorting to
any unfair labour practice or victimisation, and whether on
the evidence led it is possible to arrive at the conclusion
in question. Though the Tribunal may itself have arrived at
a different conclusion it has not to substitute its own
judgment for the judgment in question.
Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union and
Others, (1953) S.C.R. 78o, The Automobile Products of India
Ltd. v. Rukmaji Bala & others, (1955) S.C.R. 1241 and Laksh-
mi Devi Sugar Mills Limited v. Pt. Ram Sarup, (1956) S.C.R.
916, relied on.
In the instant case, though the appellant was justified in
making the application for permission to discharge the
respondent on account of his work and conduct being demon-
strably unsatisfactory, and the standard of proof which the
Tribunal ];ad applied for finding whether there was a Prima
facie case was not strictly justifiable, in view of the fact
that no formal inquiry into the charges against the respond-
ent was held and the evidence on behalf of the appellant did
not show that the respondent was given an opportunity to
controvert the allegations made against him, the decision of
the Tribunal was upheld.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 92 of 1957.
Appeal by special leave from the judgment and order dated
May 11, 1956, of the Labour Appellate Tribunal of India,
Calcutta, in Misc. Case No. C-152 of 1955.
B. Sen, S. N. Mukherjee and B. N. Ghosh, for the appel-
lants.
D. L. Sen Gupta (with him Dipak Dutta Choudhri), for the
respondent.
1957. September 20. The following Judgment of the Court
was delivered by
BHAGWATI J.-This appeal with special leave against the
decision of the Labour Appellate Tribunal of India, Calcut-
ta, arises out of an application made by the appellant under
s. 22 of the Industrial Disputes 66
516
(Appellate Tribunal) Act, 1950, (hereinafter referred to as
"the Act") for permission to discharge the respondent.
The respondent had been appointed as a pay-clerk in the
appellant’s cash department on April 30. 1945, and had been
con and had been confirmed in service with effect from
August 1, 1945. Since the beginning of 1949, the respondent
was found to have become negligent and careless in his work
and he was also disobedient and slow in the performance of
the duties that were allotted to him. Repeated verbal and
written I warnings were given to him but they had no effect
whatever. Consequently the Chief Cashier by his letter
dated October 24, 1949, addressed to the Manager of the
appellant, complained that he was very negligent and care-
less in his work, and habitually showed sulkiness, that he
was also disobedient, and shirked the duties that were
allotted to him an that recently, he was careless enough to
keep the Company’s money in an open drawer of a safe, and go
home, without locking the same. The Management thereupon
asked for his written explanation which he submitted on
October 28, 1949, stating that if there was anything wrong
on his part that was due to his ill health, hard work and
mental anxiety. He, therefore, asked to be excused and
stated that he would take much more care in future about his
work. On November 17, 1949, the Chief Cashier again com-
plained against the respondent stating that he had not only
registered no improvement but was grossly negligent in his
duties, in spite of repeated warnings, and was in the habit
of absenting himself on flimsy grounds, and always tried to
avoid duties that were entrusted to him and was very inso-
lent in his behaviour and conduct. A charge-sheet was
submitted to him on November 18, 1949, and he was suspended
till the final disposal of the enquiry. On November 19,
1949, the respondent wrote a letter to the Managing Director
of the appellant pleading not guilty to the charges framed
against him and asking for an interview so that he may have
a chance to represent his grievances personally. The re-
spondent was granted an interview with the Manager of
517
the appellant who investigated the case of the respondent
and found him guilty of the charges framed against him. The
respondent had admitted having been rude to his superior
officer in a fit of temper but appeared to be repentant of
his conduct and had tendered an apology to the Chief Cash-
ier. He also submitted on November 29, 1949, a letter
asking to be excused. Under the circumstances, the manager
of the appellant recommended in his report dated November
29, 1949, that the respondent be given one more opportunity
to prove himself of good behaviour but having regard to the
request made by the respondent in that behalf suggested that
he be transferred to the Mechanical Engineering Department.
The Manager also stated at the end of the said report that
he had warned the respondent that if he got any further
adverse report about his work or conduct, his services would
be terminated forthwith. Following upon that report a
letter was addressed by the appellant to the respondent on
the same day intimating that the appellant had decided to
give him one more chance of working in the organization on
the distinct understanding that should there be any further
adverse report about his work or conduct his services would
be terminated forthwith. He was directed on that under-
standing to report to Mr. Hooper of the M. E. Department,
where he was being transferred with effect from the next
day.
In spite of these chances being given to him the respondent
did not improve and he was again found seriously neglecting
his work. There were also complaints from the typists to
the effect that the respondent’s chatter interfered with
their work. Mr. Hooper after giving him verbal warnings on
several occasions without any effect ultimately gave him a
written warning on February 9, 1951, recording the above
facts and asking that the respondent should show immediate
improvement in his conduct failing which he would take the
matter further. The respondent replied by his letter dated
February 16, 195 1, denying the allegations contained in the
said letter of Mr. Hooper: He Pleaded that he was not negli-
gent in his duty inasmuch
518
as he had to discharge the arrears of work which were out-
standing at the time when he took over the work of writing
parcel challans and he was also asked to do other work of
the clerks who were absent on leave. He however admitted
that he had occasionally talked with his co-workers though
he contended that that was not in such a way as would prompt
his coworkers to complain against him. He further asked to
be excused for the faults, if any, and gave an assurance
that he was trying and would try his level best to improve
further.
The respondent however did not show any improvement and
again there were complaints against him that his work had
not been done properly and also that he had been noisy,
causing disturbance to the other clerks’ work and that he
had been twice found by his superior officer Mr. Girling
with his head on his arms apparently sleeping. On September
3, 1952, Mr. Girling on behalf of the appellant gave the
respondent a warning to which he replied on September 8,
1952, denying all the allegations except that of his being
found with his head on his arms but excused himself by
stating that he was ill and it was under the advice of Mr.
Girhng himself that he consulted the office doctor who had
advised him rest. He however promised to endeavour his
utmost to give every satisfaction in the discharge of his
duties.
In spite of these warnings the respondent showed no improve-
ment in his work and conduct and continued neglecting his
duties and indulging in insubordination with the result that
by its letter dated February 9, 1953, the Management of the
appellant wrote to him that the only course left to it was
to dispense with his services but as a measure of leniency
it had decided to give him another chance to show satisfac-
tory improvement and in doing so it had also decided to stop
his annual increment. The respondent protested against the
stopping of his annual increment by his letter dated Febru-
ary 17, 1953, and contended that the charges levelled
against him were absolutely groundless and asked the Manage-
ment to re-consider his case. The Labour Directorate of the
Government of West
519
Bengal was approached on his behalf but that body also
refused to intervene. The Management asked Mr. Hooper to
report upon the respondent’s work and conduct by May 31,
1953, and intimated to the respondent that unless definite
improvement was reported by that date his services with the
appellant would be terminated as from June 30, 1953. Mr.
Hooper observed the respondent’s work and conduct and not
finding them satisfactory, by his memo dated August 19,
1953, reported on the same to the Management of the appel-
lant. No action was however taken immediately against the
respondent and on May 4, 1954, Mr. Hooper made his final
report to the Management on the strength of which the appel-
lant wrote to the respondent its letter dated May 10, 1954,
in which it stated that on receipt of the complaint from Mr.
Hooper it had made a thorough enquiry into his record of
service, had found that he was unsuitable to be retained in
its service and had, therefore, decided to terminate his
service on payment of full retrenchment compensation. It
asked the respondent to choose one of the two alternatives,
viz., that it may forthwith terminate his services if he was
agreeable to accept payment of retrenchment compensation or
in case he refused to accept the same to make an application
before the Fifth Industrial Tribunal for permission to
terminate his service. The respondent failed and neglected
to send any reply with the result that by its letter dated
June 21, 1954, the appellant intimated to the respondent
that it was approaching the Tribunal for permission to
terminate his service as per its letter dated May 28, 1954.
The appellant thereafter filed on September 21, 1954, an
application before the Fifth Industrial Tribunal, West
Bengal. under s. 33 of the Industrial Disputes Act, 1947,
for permission to discharge the respondent. The Fifth
Industrial Tribunal however became functus officio on the
expiry of thirty days from the publication of its Award in
the dispute which was then pending before it with the result
that the said application could not be disposed of and was
accordingly struck off.
520
The appellant eventually filed an application under s. 22 of
the Act before the Labour Appellate Tribunal of India at
Calcutta for permission to discharge the respondent from its
service. This step became necessary as there was an appeal
being No. Cal.-152 pending before the Labour Appellate
Tribunal to which the appellant and the respondent were
parties. The Labour Appellate Tribunal consisting of Shri
M.N. Gan (President) and Shri P. R. Mukherji (Member) heard
the appellant ex parte and by its order dated October 14,
1955, allowed the said application and granted the permis-
sion to discharge the respondent holding inter alia that a
prima facie case had been made out for permission to dismiss
the respondent. The appellant accordingly on November 11,
1955, wrote a letter to the respondent stating that the
necessary permission had been granted by the Labour Appel-
late Tribunal to discharge him from the appellant’s service
and that the decision of the Management of the appellant
dated May 28, 1954, to terminate his services was therefore
given effect to on the terms communicated to him in that
letter.
On December 6, 1955, the respondent filed an affidavit
before the Labour Appellate Tribunal, Calcutta, praying for
a review of the order dated October 14, 1955, for setting it
aside and for restoration of the application under s. 22 of
the Act.
The Labour Appellate Tribunal presided over by Mr. M. N. Gan
and Mr. V. N. Dikshitulu heard the parties concerned and by
its order dated March 6, 1956, allowed the respondent’s
application and restored the appellant’s case to its file.
On a further hearing of that application the parties adduced
evidence and after hearing both the parties the Labour
Appellate Tribunal presided over this time by Mr. V. N.
Dikshitulu rejected the application under s. 22 of the Act
by its order dated May 11, 1956, and refused to the appel-
lant permission to discharge the respondent from its serv-
ice.
The appellant being aggrieved by the said decision of the
Labour Appellate Tribunal of India, Calcutta’
521
applied for and obtained special leave to appeal to this
Court.
Mr. Sen on behalf of the appellant raised two contentions:
(i) that the Labour Appellate Tribunal had no jurisdiction
to review its own order which it had passed on October 14,
1955, and (ii) that the Labour Appellate Tribunal had ex-
ceeded its jurisdiction under s. 22 of the Act in coming to
the conclusion that the appellant had failed to make out a
prima facie case to discharge the respondent from its serv-
ice.
Re:(i) It was contended that once the Labour Appellate
Tribunal pronounced its order on October 14, 1955, it had
become functus officio and thereafter it had no jurisdiction
to review its own order. The circumstances, moreover, did
not bring the application which was made by the respondent
on December 6, 1955, strictly within the provisions of 0.
47, r. I of the Code of Civil Procedure and no application
for review could therefore be maintained.
It is significant, however, to remember that the application
made by the respondent on December 6, 1955, was an omnibus
one and was intituled as one under 0. 47, r. I of the Code
of Civil Procedure for review under 0. 41, r. 21 of the
Civil Procedure Code for restoration and under 0. 9, r. 13
of the Code of Civil Procedure for setting aside the permis-
sion granted ex parte and to restore the respondent in his
original position. The respondent evidently sought to rely
upon one or the other of the provisions above set out in
order to obtain the relief which he sought in that. applica-
tion.
Whether one or more of these provisions of the Code of Civil
Procedure could be availed of by the respondent depends upon
what are the powers which are vested in the Labour Appellate
Tribunal when hearing the matters which come before it. The
Labour Appellate Tribunal is the creature of the statute and
all its powers must be found within the four corners of the
statute. The constitution and functions of the Labour
Appellate Tribunal are to be found in Chapter 11 of the Act.
Sections 4 to 6 of the Act lay down the
522
constitution and functions of the Labour Appellate Tribunal
and s. 7 prescribes its jurisdiction in appeal from awards
or decisions of the Industrial Tribunals. Section 9 lays
down the powers and procedure of the Labour Appellate Tribu-
nal. The provisions of s. 9 so far as they are relevant for
the purpose of this appeal may be set out here :
Section 9. Powers and procedure of the Appellate Tribunal.
(1)The Appellate Tribunal shall have the same powers as are
vested in a civil court, when hearing an appeal, under the
Code of Civil Procedure, 1908 (Act V of 1908).
(10)The Appellate Tribunal shall follow such procedure as
may be prescribed, and subject thereto, it may, by order,
regulate its practice and procedure and the provisions of
the Code of Civil Procedure, 1908 (Act V of 1908), shall, so
far as they are not inconsistent with this Act, or the rules
or orders made thereunder, apply to all proceedings before
the Appellate Tribunal.
It may be noted that the Labour Appellate Tribunal not only
exercises appellate jurisdiction by way of hearing appeals
from the awards or decisions of the Industrial Tribunals but
also exercises original jurisdiction when applications are
made to it under s. 22 of the Act to obtain its permission
in writing to alter the conditions of service applicable to
the workman or to discharge or punish whether by dismissal
or otherwise any workman concerned in appeals pending before
it. If an employer contravenes the provisions of s. 22
during the pendency of the proceedings, before the Labour
Appellate Tribunal, it also entertains complaints in writing
at the instance of the employees aggrieved by such contra-
vention and the Labour Appellate Tribunal decides these
complaints as if they are appeals pending before it in
accordance with the provisions of the Act. This is also an
exercise of original jurisdiction though under the express
terms of the section the exercise of that jurisdiction is
assimilated to the
523
exercise of appellate jurisdiction by the Labour Appellate
Tribunal. Whatever be the nature of the jurisdiction thus
exercised by the Labour Appellate Tribunal-whetheroriginal
or appellate-that jurisdiction is exercised by it by virtue
of the provisions of the Act: And s. 9 of the Act has refer-
ence to the exercise of the whole of that jurisdiction when
it talks of the powers and procedure of the Labour Appellate
Tribunal. In regard to such powers and procedure no dis-
tinction is made between the exercise of original jurisdic-
tion and the exercise of appellate jurisdiction by the
Labour Appellate Tribunal and these provisions apply equally
to the jurisdiction exercised by it whether under ss. 7, 22,
or s. 23 of the Act.
Section 9(1) of the Act invests the Labour Appellate Tribu-
nal with the same powers as are vested in a civil court,
when hearing an appeal, under the Code of Civil Procedure,
1908 (Act V of 1908). A question was mooted before us
whether the words " when hearing an appeal" were to be read
with the words "Appellate Tribunal" or with the words "a
civil court". It was argued that these words went with the
words "Appellate Tribunal" and, therefore, the powers of a
civil court under the Code of Civil Procedure were to be
exercised by the Labour Appellate Tribunal only when it was
exercising its appellate jurisdiction and hearing matters
which fall within the purview of s. 7 or s. 23 of the Act
and not when it was exercising original jurisdiction and
hearing applications under s. 22 of the Act. This construc-
tion of the provisions of s. 9(1) of the Act however suf-
fers from this disability that it takes no count of the fact
that the Labour Appellate Tribunal under the provisions of
the Act itself exercises both original as well as appellate
jurisdiction and if such a construction was put on these
provisions the result would be that there would be no provi-
sion as regards the powers of the Labour Appellate Tribunal
when it is exercising original jurisdiction. The powers of
the Labour Appellate Tribunal which are sought to be provid-
ed in s. 9(1) of the Act are not limited only to the exer-
cise
67
524
of appellate jurisdiction by it but have reference to the
whole of the jurisdiction which is vested in the Labour
Appellate Tribunal under the provisions of the Act. The
words " when hearing an appeal" have, moreover, been used
between the words "a civil court" and "under the Code of
Civil Procedure, 1908" which in the context in which they
have been used could only have been meant to refer to a
civil court. Whatever the jurisdiction the Labour Appellate
Tribunal is exercising-whether original or appellate-it is
vested with the powers as are vested in a civil court under
the Code of Civil Procedure, 1908, when it is hearing an
appeal. The very juxtaposition of the words " when hearing
an appeal " with the words " a civil court ", is sufficient,
in our opinion, to invest the Labour Appellate Tribunal
while exercising its jurisdiction-whether original or appel-
late-with the same powers as are vested in a civil court
Under the Code of Civil Procedure when it is exercising its
appellate jurisdiction, and hearing appeals. (See Burmah-
Shell Oil Storage Case(,) and the New Union Mills Ltd. Case
(2).
If this is the true construction to be put on the provisions
of s. 9(1) of the Act, the provisions of 0. 41 r. 21 of the
Code of Civil Procedure are attracted forthwith. Order 41
r. 21 provides:
Where an appeal is heard ex parte and judgment is pronounced
against the respondent, he may apply to the appellate court
to rehear the appeal; and, if he satisfies the Court that
the notice was not duly served or that he was -prevented by
sufficient cause from appearing when the appeal was called
on for hearing, the Court shall rehear the appeal on such
terms as to costs or otherwise as it thinks fit to impose
upon him.
When the Labour Appellate Tribunal heard the application
under s. 22 of the Act ex parte on October 14, 1955, the
summons had not been served on the respondent owing to its
being addressed to hi-in at a wrong place. There was suffi-
cient cause therefore for the respondent not appearing when
the application was called on for hearing and on this
(1) 1953 L.A.C. 522.
(2) 1954 L.A.C. 252.
525
circumstance being established he was entitled to a re-
hearing of the application and setting aside of the ex parte
order made against him. The Labour Appellate Tribunal was,
therefore, right in making the order which it did on March
6, 1956.
There is also another aspect of the question which may be
dealt with at this stage and it is that under the provisions
of s. 9, sub-s. (10) of the Act the Labour Appellate Tribu-
nal is enjoined to follow such procedure as may be pre-
scribed, and subject thereto it may, by order, regulate its
practice and procedure and the provisions of the Code of
Civil Procedure, 1908 (Act V of 1908), shall, so far as they
are not inconsistent with the Act or the rules or orders
made thereunder, apply to all proceedings before it. Pursu-
ant to the powers conferred upon it by this sub-section the
Labour Appellate Tribunal has made orders to regulate its
practice and procedure and 0. 3 r. 4 provides :
" Nothing in these rules shall be deemed to limit or other-
wise affect the inherent power of the Tribunal to make such
orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court."
This provision is analogous to that which is contained in s.
151 of the Code of Civil Procedure which relates to the
inherent powers of the Court and even apart from the ap-
plicability of 0. 41 r. 21 of the Code of Civil Procedure as
hereinbefore set out it was open to the Labour Appellate
Tribunal to pass the order which it did on March 6, 1956, as
it was evidently necessary for the ends of justice or to
prevent the abuse of the process of the Court.
We are, therefore, of opinion that the Labour Appellate
Tribunal had jurisdiction to set aside the ex parte order
dated October 14, 1955, and restore the appellant’s applica-
tion under s. 22 of the Act to its file. This contention of
the appellant therefore is without any substance and must be
negatived.
Re:(ii) It was next contended that even though the Labour
Appellate Tribunal had jurisdiction to hear an application
under s. 22 of the Act it misconceived
526
its jurisdiction and in the exercise of it, launched into an
inquiry which it was not competent to do and erroneously
came to the conclusion that the appellant had failed to make
out a prima facie case for terminating the service of the
respondent.
The nature and scope of the enquiry before the Labour Appel-
late Tribunal under s. 22 of the Act has been the subject-
matter of decisions of this Court in Atherton West & Co.
Ltd. v. Suti Mill Mazdoor Union and others (1), The Automo-
bile Products of India Ltd. v. -Rukmaji Bala & others(2) and
Lakshmi Devi Sugar Mills Limited v. Pt. Ram Sarup(3). In
the last mentioned case this Court succinctly laid down the
principles governing such enquiry and observed at p. 935:
" The Tribunal before whom an application is made under that
section has not to adjudicate upon any industrial dispute
arising between the employer and the workman but has only
got to consider whether the ban which is imposed on the-
employer in the matter of altering the condition of employ-
ment to the prejudice of the workman or his discharge or
punishment whether by dismissal or otherwise during the
pendency of the proceedings therein referred to should be
lifted. A prima facie case has to be made out by the em-
ployer for the lifting of such ban and the only jurisdiction
which the Tribunl has is either to give such permission or
to refuse it provided the employer is not acting mala fide
or is not resorting to any unfair practice or
victimization."
We have, therefore, got to consider whether in the instant
case a prima facie case was made out by the appellant for
terminating the service of the respondent and whether in
giving the notice dated November 1 1, 1955, terminating the
respondent’s service the appellant was motivated by any
unfair labour practice or victimisation.
The facts as they appear from the narration of events in the
earlier part of this judgment go to establish that the
respondent was grossly negligent in
(1) [1953] S.C.R. 780 (3) [1956] S.C.R. 916.
(2) [1955] i S.C.R. 1241.
527
the performance of his duties, was in the habit of absenting
himself on flimsy-grounds, was also insolent in his beha-
viour and conduct and in spite of repeated warnings, oral as
well as written, addressed to him by the Management of the
appellant did not show any signs of improvement. The inci-
dents of 1949, 195 1, and 1952 culminating in the stoppage
of his annual increment in February, 1953, were sufficient
to demonstrate that the Management of the appellant dealt
with the respondent very leniently in spite of his work and
conduct not being at all satisfactory. The appellant would
have been well within its rights if it had taken action
against the respondent on each of the several occasions
above referred to, but out of sheer compassion went on
giving him one opportunity after the other so that he would
register an improvement in his work and conduct. The re-
spondent however, presisted in his behaviour and the two
reports made by Mr. Hooper-One on August 19, 1953, and the
other on May 4, 1954, were considered by the Management and
it came to the conclusion that the respondent was unsuitable
to be retained in the appellant’s service and even then
instead of deciding to dismiss him without anything more, it
offered him the choice of one of the two alternatives, viz.,
that it may forthwith terminate his service if he was agree-
able to accept the term of full retrenchment compensation or
if he refused to accept the same to make an application
before the Fifth Industrial Tribunal for permission to
terminate his service. The whole of the correspondence
ending with the respondent’s letter dated February 17, 1953,
was sufficient to prove with. out anything more the unsatis-
factory nature of his work and conduct and the, appellant
was evidently of the opinion that the records of the re-
spondent taken along with the reports made by Mr. Hooper
afforded sufficient material to justify it in taking the
step which it ultimately decided to do. It was under these
circumstances that the appellant did not consider it neces-
sary to furnish to the respondent a chargesheet and to hold
a formal enquiry into the work and conduct of the respond-
ent.
528
This circumstance was considered by the Labour Appellate
Tribunal as sufficient to entitle it to determine for itself
whether a prima facie case for the termination of the
respondent’s service was made out by the appellant. It was
open to the appellant to submit a charge-sheet to the re-
spondent and institute a formal inquiry into his work and
conduct. If that had been done and the appellant had, after
holding such formal enquiry, come to the conclusion that the
respondent was guilty of the charges which were levelled
against him and had then decided to terminate his service,
the Tribunal could not have intervened and on its coming to
the conclusion that a prima facie case for the termination
of the service of the respondent was thus made out, it
would. have granted the appellant the permission asked for.
Unfortunately for the appellant, in spite of the work and
conduct of the respondent being demonstrably unsatisfactory
and, therefore, justifying the conclusion that he was un-
suitable to be retained in its service, the appellant did
not hold any formal enquiry of the nature indicated above
and did not afford to the respondent an opportunity to have
his say in the matter of the charges levelled against him.
The Labour Appellate Tribunal therefore rightly took upon
itself the burden of determining whether on the material
submitted before it by the appellant a prima facie case for
the termination of the respondent’s service was made out by
the appellant.
The evidence led by the parties before the Labour Appellate
Tribunal consisting as it did of the affidavit and oral
evidence was not such as would enable it to come to the
conclusion that a prima facie case for the termination of
the respondent’s service was made out by the appellant. In
paragraphs 8 and 9 of the application the appellant had
pointed out that after receipt of Mr. Hooper’s report dated
May 4, 1954, to the effect that there will be no improvement
of work in the department unless the respondent was removed
from the same, the matter was further investigated and the
old records of the respondent were carefully considered and
the appellant found that enough consideration
529
had been shown to the respondent but without any effect and
in the interest of discipline and good work it was necessary
that he should be discharged from service. These allega-
tions were denied by the respondent in his affidavit in
reply and he contended that on no occasion whatever the
warnings, letters, suspension or stoppage of increment
resorted to by the appellant were done after establishing
his guilt or by following the usual methods, viz., by issu-
ing a charge-sheet with specific allegations and on enquiry
based on such a charge-sheet and explanations rendered by
him. He contended that the whole thing was arbitrary,
without any basis and in violation of the principles of
natural justice and was by way of unfair labour practice or
victimization. An affidavit in rejoinder was filed on
behalf of the appellant by Shri Ramani Ranjan Dhar, a Senior
Assistant of the appellant. He denied these allegations of
the respondent and affirmed that the application of the
appellant sufficiently disclosed the offences for which it
sought the permission of the Labour Appellate Tribunal to
dismiss the respondent. He stated that the appellant was
thoroughly satisfied, after full enquiry and investigation
and after the respondent was given more than ample opportu-
nity to explain the charges levelled against him, and after
he was given more than one chance at his own prayer to
improve his conduct on various occasions that the respondent
was guilty of the charges brought against him. This affida-
vit evidence was followed by the oral evidence of Mr. Hooper
led on behalf of the appellant. Mr. Hooper, however, did
not carry the case of the appellant any further. Even
though the appellant had an opportunity when Mr. Hooper was
in the witness-box to produce his reports dated August 19,
1953, and May 4, 1954, and have them proved through him, or,
in any event, if the absence or loss of those reports was
satisfactorily accounted for to lead oral evidence as to
their contents the appellant did not do so and beyond a bare
reference to his report of May 4, 1954, without disclosing.
the contents thereof there was nothing in the deposition of
Mr. Hooper which would
530
even go to show that the contents of that report were preju-
dicial to the respondent. In cross-examination also he
admitted that before reporting on May 4, 1954, against the
respondent he did not draw up a chargesheet as it was for
the appellant to do so.
The Labour Appellate Tribunal bad to determine on these
materials whether a prima facie case had been made out by
the appellant for the termination of the respondent’s serv-
ice. A prima facie case does not mean a case proved to the
hilt but a case which can be said to be established if the
evidence which is led in support of the same were believed.
While determining whether a prima facie case had been made
out the relevant consideration is whether on the evidence
led it was possible to arrive at the conclusion in question
and not whether that was the only conclusion which could be
arrived at on that evidence. It may be that the Tribunal
considering this question may itself have arrived at a
different conclusion. It has, however, not to substitute
its own judgment for the judgment in question. It has only
got to consider whether the view taken is a possible view on
the evidence on the record. (See Buckingham and Carnatic
Co., Ltd. Case (1).
The Labour Appellate Tribunal in the instant case discussed
the evidence led before it in meticulous detail and came to
the conclusion that no prima facie case was made out by the
appellant for the termination of the service of the respond-
ent. It applied a standard of proof which having regard to
the observations made above was not strictly justifiable.
If the matter had rested there it may have been possible to
upset the finding of the Labour Appellate Tribunal. But if
regard be had to the evidence which was actually led before
it, there is such a lacuna in that evidence that it is
impossible to come to the conclusion that even if the evi-
dence was taken at its face value a prima,’ facie case was
made out by the appellant. Mr. Hooper’s evidence did not go
to show what were the contents of his report dated May 4,
1954, and it contained only a bare reference to that report
(1) 1952 L.A.C. 490.
531
without anything more. This was not enough to prove the
contents of that report, much less to give the respondent an
opportunity of controverting the’ allegations made against
him. If, therefore, these essential ingredients were want-
ing, it cannot be said that the evidence led by the appel-
lant before the Labour Appellate Tribunal was sufficient to
establish a prima facie case for the termination of the
respondent’s service. This contention also does not there-
fore avail the appellant.
Mr. Sen endeavoured to draw a distinction between discharge
on the one hand and punishment by way of dismissal or other-
wise on the other, in clause (b) of s. 22 of the Act. He
contended that no prima facie case need be made out when an
employee was sought to be discharged simpliciter by the
employer. A charge-sheet was required to be submitted to
the workman and an enquiry thereon required to be made in
conformity with the principles of natural justice only in
those cases where the workman was sought to be punished by
dismissal or otherwise. That was not the case when the
workman was sought to be discharged without assigning any
reason whatever and such a case did not fall within the
category of punishment at all. For the purpose of the
present case we need not dilate upon this; it is sufficient
to point out that Shri Raniani Ranjan Dhar in his affidavit
in rejoinder filed on behalf of the appellant categorically
stated that the respondent was sought to be " dismissed " by
reason of his having been found guilty of the various
charges which had been levelled against him. Even at the
exparte hearing of the application under s. 22 of the Act
before the Labour Appellate Tribunal the case of the appel-
lant was that it had made out a prima facie case for permis-
sion to " dismiss " the respondent. This distinction sought
to be drawn by Mr. Sen is therefore of no consequence what-
ever and need not detain us any further.
Mr. Sen also relied upon the circumstance that after the
Labour Appellate Tribunal had on the exparte hearing of the
application under s. 22 of the Act granted to the appellant
permission to terminate the
68
532
service of the respondent on October 14, 1955, the appellant
had implemented the same and by its notice ’dated November,
11, 1955, actually terminated the service of the respondent
offering him full retrenchment compensation. In so far as
the appellant had acted upon such permission and implemented
the same, it was contended, that the respondent’s service
was irrevocably terminated and nothing more was to be done
thereafter, except the possible raising of an industrial
dispute by the respondent on the score of his service having
been wrongfully terminated. It was submitted that after
such an irrevocable step had been taken by the appellant
terminating the respondent’s service, the Labour Appellate
Tribunal ought not to have reconsidered its decision and
restored the application under s. 22 of the Act to its file
and that the further decision of the Labour Appellate Tribu-
nal had no effect so far as the actual termination of the
service of the respondent was concerned. We do -not propose
to go into these interesting questions for the simple reason
that the only question which arises for our consideration in
this appeal is whether on the evidence led before it the
decision of the Labour Appellate Tribunal dated May 11,
1956, dismissing the appellant’s application under s. 22 of
the Act was correct. As a matter of fact no such contention
had been urged by the appellant before the Labour Appellate
Tribunal when it finally heard the application under s. 22
of the Act and the only point to which the attention of the
Labour Appellate Tribunal was invited was whether the appel-
lant had made out a prima facie case for the termination of
the respondent’s service. Whatever rights and remedies are
available to the appellant by reason of these circumstances
may just as well be asserted by the appellant in appropriate
proceedings which may be taken hereafter either at the
instance of the appellant or the respondent. We are not at
present concerned with the same.
Under the circumstances, we are of opinion that the decision
arrived at by the Labour Appellate Tribunal
533
which is the subject-matter of appeal before us was correct.
It is no doubt true that the Labour Appellate Tribunal
recorded a finding in favour of the appellant that in termi-
nating the service of the respondent as it did, the appel-
lant was not, guilty of any unfair labour practice nor was
it actuated by any motive of victimisation against the
respondent. That finding, however, cannot help the appel-
lant in so far as the Labour Appellate Tribunal held that
the appellant had failed to make out a prima facie case for
terminating the service of the respondent.
We, therefore, hold that the decision of the Labour Appel-
late Tribunal refusing permission to the appellant under s.
22 of the Act was correct and this appeal is liable to be
dismissed. It will accordingly be dismissed with costs.
Appeal dismissed.