Martin Burn Ltd. v. R. N. Banerjee

Judgment

original jurisdiction and hearing applications under s. 22 of the Act. This construction of the provisions of s. 9(1) of the Act however suffers 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 provisions 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 provided in s. 9(1) of the Act are not limited only to the exercise [1958 of appellate jurisdiction by it but have reference to Martin Burn Ltd. the whole of the jurisdiction which is vested in the ·Labour Appellate Tribunal under the provisions of the R. N. Banerjee Act.

The words "when hearing an appeal" have, Bhd,woti J. 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 appellate-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 re-hear 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 re-hear 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 him at a wrong place. There was sufficient 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.

S.C.R. circumstance being established he was entitled to a re-hearing of the application and setting aside of the MatrinhnLtd. ex parte order made against him. The Labour Appel.: late Tribunal was, therefore, right in making the R:N. ·Banerjee order which it did on March 6, 1956. Bhqwati J. 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 Tribunal is enjoined to 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 t4ey are not inconsistent with the Act or the rules or orders made thereunder, apply to all proceedings before it. Pursuant to the powers conferred upon it by this sub-section the Labour Appellate Tribunal has made orders to regulate its practice a~d procedure and 0. 3 r. 4 provides:

"Nothing in these rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such orders as may be necessary for the end's 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 applicability of 0. 41 r. 21 of the Code of Civil Procedure as hereinbef ore 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 ab~se 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 application 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 [1958] its jurisdiction and in the exercise of it, launched into MarrinBurnLtd. an inquiry which it was not competent to do and erroneously came to the conclusion that the appellant R. N. Banerjee had failed to make out a prima facie case for termi- Blragwati 1. nating the service of the respondent. The nature and scope of the enquiry before the Labour Appellate 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 ('), The Automobile Products of India Ltd. v. Rukmaji Bala & others (2) and Lakshmi Devi Sugar Mills Limited v. Pt. Ram Sarup ('). 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 conditions of employment 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 employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting ma/a 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 11, 1955, terminating the respondent's service the appellant was motivated by any unfair labour practice or victimization. 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 (!) [1953] S.C.R. 78o. (3) [1956] S.C.R. 916. (•) [1955 I S.C.R. 1241, S.C.R. the performance of his duties, was in the habit of 19.57 absenting himself on flimsy grounds, was also insolent MortllrllunlLra. in his behaviour and conduct and in spite of repeated warnings oral as well as written, addressed to him by R. N. Banerfee the Management of the appellant did not show any Bhatwatt 1. signs of improvement.

The incidents of 1949, 1951, 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 ont of· sheer compassion went on giving him one opportunity after the other so that he would register an improve ment in his work and conduct. The respondent, however, persisted in his behaviour and the two reports made by Mr. Hooper-one on Au~ust 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 agreeable to accept the term of full retrenchment compensation · or if he refused to accept the same to make an application before the Fifth Industrail 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 unsatisfactory nature of his work and conduct and the appellant was evidently of the opinion that the records of the respondent 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 necessary to furnish to the respondent a charge. sheet and to hold a formal enquiry into the work and conduct of the respondent. [1958] t9S7 This circumstance was considered by the Labour Martin Burn Ltd. Appellate Tribunal as sufficient to entitle it to determine for itself whether a prima facie case for the termi- R. N. Bal!"'" nation of the respondent's service was made out by Bh;;;;;,J,. the appellant.

It was open to the appellant to submit a charge-sheet to the respondent 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 unsuitable 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 S.C.R. SUPREME' COURT REPORTS had been shownto the respondent but without any effect and in the interest of discipline and good work Martt;;;;, Ltd. it was necessary that he should be discharged from service. These allegations were denied by the respond- R. N. Banerjee ent in his affidavit in reply and he contended that Bhagwati J. 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 issuing 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 an:d 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 opportunity 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 affidavit 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, 11.nd 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 [1958] even go to show that the contents of that report were Martin}h;;. Ltd. prejudicial to the respondent. In cross-examination also he admitted that before reporting on May 4, 1954, R. N. Banerjee against the respondent he did not draw up a charge- Bhagwati J. sheet as it was for the appellant to do so.

The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. 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 relevent consideration is whether on the evidence led it waspossible 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 questions. 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(')].

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 respondent. 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 evidence 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· S.C.R. without anything more.

This was not enough ·to prove the contents of that report, much. less to give Martt;;;;;, LU. the respondent an opportunity of controverting the allegations made against him. If, therefore, these R. N. Bt111erjee essential ingredients were wanting, it cannot be said a1ragwait J. that the evidence led by the appellant 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 therefore avail the appellant. Mr. Sen endeavoured to draw a distinction between discharge on the one hand and punish~~t.l?y way of dismissal or otherwise on the other, in 6Ia:use (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 . einplOyer. , A charge-sheet was required to be submitted to the workman and an enquiry thereon requited 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 pointout that Shri Ramani 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 ex parte hearing of the application under s.

22 of the Act before the Labour Appellate Tribunal the case of the appellant was that it had made out a prima facie case for permission to "dismiss" the respondent. This distinction sought to be drawn by Mr. Sen is therefore of no consequence whatever and need not detain us any further. Mr. Sen also .relied upon the circumstances that after the Labour Appellate Tdbunal had on the ex ,parte h~aring of the application under s. 22 of the Act granted to the appellant permission to terminate the [1958] 19s1 service of the respondent on October 14, 1955, the Martin Burn Ltd. appellant had implemented the same and by its notice dated November 11, '1955 actually terminated the R. N.Banerjee service of the resp·ondent offering him full retrench- BhagwatlJ. ment 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 Tribunal had no effect so far as rhe 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 TriOunal dated May 11, 1956, dismissing the appellant's application under s. 22 of the Act was correct. As a matter of fact no ~uch 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 appellate 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 S.GR. 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 terminating the service of the respondent as it did, the appellant was not guilty of any unfair labour practice nor was it actuated by any motive of victimization against the respondent. That finding, ' however, cannot help the appellant 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 Appellate 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 cost. Appeal dismissed. STATE OF U.P. MANBODHAN LAL SRIVASTAVA.

(S. R. DAS, C. J., VENKATARAMA AYYAR, B. P. SINHA, J. L. KAPUR and A. K. SARKAR, JJ.) Covernment Servant-Disciplinary proceedings-Enquiry- Show-cause notice under Art. 311(2) of the Constitution -Consultation of Public Service Commission-Whether mandatory-Constitution of India, Arts. 311(2), 320(3)(c). The respondent was an. employee under the appellant, the ' State of Uttar Pradesh, and as it was discovered that he had allowed his private interests to come in conflict with his public duties, a departmental inquiry was held wherein charges were framed against him. He was called upon to submit his written statement of defence and given an opportunity to adduce evidence in support of it. After considering the report of the enquiry, in which the charges were fournl to be true, the appellant called upon the respondent, under Art. 311(2) of the Constitution of India, to show cause why he should not be demoted and compulsorily retired, and the respondent submitted a written explanation setting out his defence and objecting to the procedure Martin Burn Ltd. R. N. Banerjee Bhagwati .I, !957 September 20