20 September 1957
Supreme Court
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MARTIN BURN LTD. Vs R.N BANERJEE

Case number: Appeal (civil) 92 of 1957


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PETITIONER: MARTIN BURN LTD.

       Vs.

RESPONDENT: R.N BANERJEE

DATE OF JUDGMENT: 20/09/1957

BENCH: BHAGWATI, NATWARLAL H. 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

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      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

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      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-

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      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

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      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

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      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

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      Tribunal.   Whatever be the nature of the jurisdiction  thus        exercised by the Labour Appellate Tribunal-whether- original        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

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      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

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      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-

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      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

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      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-

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      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

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                                  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.