# MARTIN BURN LTD v. R. N. BANERJEE

- **Citation:** [1958] 1 S.C.R. 514
- **Court:** Supreme Court of India
- **Decided:** 1955-10-14
- **Bench:** Bhagwati, S. K. Das, Gajendragadkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/martin-burn-ltd-v-r-n-banerjee-1478
- **Pages:** 20

## Headnote

Industrial dispute-Discharge of employee-Application for
permission before labour Appellate Tribunal-Jurisdiction of the
Tribunal-Power to set aside ex-parte order and restore application-Code of Civil Procedure (Act V of 1908), Or. 41, R. 21Industrial Disputes (Appellate Tribunal) Act,
1950. (XLVI/l of
1950),
SS.
9(J)(JO), 22.
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 charges. 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, 9150, 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 application 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 appelant'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 jurisdiction under section 22 of the Act, in discussing the evidence led before it in meticulous detail and coming to
the conclusion that the appellant failed to make out a Prima facie
case to discharge the respondent from its service.
Held : (!) that under s. 9. sub-ss.(l) and (10 of the Act the
Labour Appellate Tribunal
had jurisdiction to set
aside
the
S.C.R.
SUPREME COURT REPORTS
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
!Jeen made out by the employer, is to see whether the employer
1S acting mala fide or is resorting to any unfair labour practice or
victimisation, and whether on.the evidence led it is possible to
!lrrive 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. 780, The Automobile, Products of India Ltd. v.
Rukmaji Bala & others, (1955) l S.C.R. 1241 and Lakshmi 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 demonstrably unsatisfactory, and the standard of proof which the Tribunal had applied
for finding whether there was a prima facie case was not strictly
justifiable, in view of the fact that no fromal inquiry into the
charges against the respondent was held and the evidence on
behalf of the appellant did not show that the respondent was
given an opportunit

## Text

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19S1
September
514
SUPREME COURT REPORTS
[1958]
MARTIN BURN LTD.
v.
R. N. BANERJEE.
(BHAGWATI, S. K. DAS and GAJENDRAGADKAR, JJ.)
Industrial dispute-Discharge of employee-Application for
permission before labour Appellate Tribunal-Jurisdiction of the
Tribunal-Power to set aside ex-parte order and restore application-Code of Civil Procedure (Act V of 1908), Or. 41, R. 21Industrial Disputes (Appellate Tribunal) Act,
1950. (XLVI/l of
1950),
SS.
9(J)(JO), 22.
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 charges. 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, 9150, 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 application 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 appelant'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 jurisdiction under section 22 of the Act, in discussing the evidence led before it in meticulous detail and coming to
the conclusion that the appellant failed to make out a Prima facie
case to discharge the respondent from its service.
Held : (!) that under s. 9. sub-ss.(l) and (10 of the Act the
Labour Appellate Tribunal
had jurisdiction to set
aside
the
S.C.R.
SUPREME COURT REPORTS
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
!Jeen made out by the employer, is to see whether the employer
1S acting mala fide or is resorting to any unfair labour practice or
victimisation, and whether on.the evidence led it is possible to
!lrrive 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. 780, The Automobile, Products of India Ltd. v.
Rukmaji Bala & others, (1955) l S.C.R. 1241 and Lakshmi 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 demonstrably unsatisfactory, and the standard of proof which the Tribunal had applied
for finding whether there was a prima facie case was not strictly
justifiable, in view of the fact that no fromal inquiry into the
charges against the respondent 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 agaiust
him, the decision of the Tribunal was upheld.
CML 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 oflndia, Calcutta, in Misc. Case No. C-152
of 1955.
B. Sen, S. N. Mukherjee and B. N. Ghosh, for the
appellants.
D. L. Sen Gupta (with him Dipak Dutta Chowdhri),
for the respondent.
1957. September 20. The following Judgment of the
Court was delivered by
1957
Martin Burn Ltd.
v.
R.N. Banerjee
BHAGWATI J.-This appeal with
special
leave
Bhagwati 1.
against the decision of the Labour Appellate Tribunal
of India, Calcutta, arises out of an application made
by the appellant under s. 22 of the Industrial Disputes
19S7
Martin Burn Ltd.
v.
R.N. Banerjee
Bhagwatl J.
\
516
SUPREME COURT REPORTS
(1958]
(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 confirmed in service with effect from
A1,1,gust 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 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 careless in
his work, and habitually showed sulkiness, that he was
also disobedient, and shirked the duties that were
allotted to him and 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 anyt4ing 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 complained 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
insolent 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 respondent was granted an interview with the Manager of
S.C.R.
SUPREME COURT REPORTS
517
the appellant ·who investigated the case of the res19s1
pondent and found him guilty of the charge framed Martin Burn Ltd
against him. The respondent had admitted having R N. v.
. '
been rude to his superior officer in ·fit of temper but
· · Ba!ler1ee
appeared to be repentent ofnis conduct and had
Bhaeawati J.
tendered an apology to the Chief Cashier. 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'1ie 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 understanding 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 interferred with their work. Mr. Hooper
after giving him verbal warnings -0n several occasions
without any effect ultimately gaye 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, 1951 denying -the allegations contained in the said letter of Mr. Hooper. He
pleaded that he was not negligent in his duties inasmuch
518
SUPREME COURT REPORTS
[1958]
19s1
as he had to discharge the arrears of work which
MartinBurnLtd. were outstanding at the time when he took over the
v.
work of writing parcel challans and he was also asked
R.N. llllMrf«
to do other work of the clerks who were absent on
Bhagwatl J.
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 resp6ndent 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. Girling 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
improvement 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 is
services but as a measure of leniency it had decided to
give him another chance to show satisfactory 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 February 17, 1953, and contended that the
charges levelled aginst him were absolutely groundless and asked the Management to re-consider his case.
The Labour Directorate of the Government of We~
S.C.R.
· SUPREME COURT REPORTS
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 appellant. 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 appellant 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 o~
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 respondet 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.
1957
Martin Burn Ltd.,
v.
R.N. Banerjee
Bhagwati J.
1957
AiartitJ Burn Ltd.
v.
R.N. B11nerjet
Bhag1t:ali J.
520
SUPREME COURT REPORTS
[I 958)
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
resp.ondent 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
permission 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 II, 1955, wrote a letter to
the respondent ·stating that the necessary permission
had been granted by the Labour Appellate 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 service 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
appellant permission to discharge the respondent from
its service.
The appellant being aggrieved by the said decision
of the Labour Appellate Tribunal of India, Calcutta
S.C.R.
SUPREME COURT REPORTS
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 exceeded 'its jurisdiction under s. 22 of the Act in coming to the conclusion
that the appellant had failed to make out a prima fa,cie
case to discharge the respondent from its service ..
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. 1 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. 1 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 permission
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 application.
Whether one or more of these provisions of the
Code of Civil Procedure could be availeci 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
II of the Act. Sections 4 to 6 .of the Act lay down the
M2SC IV/61-S
1957
Martin Burn Lt.f.
\',
R. N. Banerjee
Bhagwati J.
J9S7
1\farti11 Burn Ltd
v.
R. N. Banerjo
Bhagwati J..
522
SUPREM.h COURT REPORTS
f1958]
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 Tribunal. 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
Vof 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 contravention 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
S.C.R.
SUPREME COURT REPORTS
523
exercise of appellate jurisdiction by the
Labour
.1957
Appellate Tribunal. Whatever be the nature of the Marti,..BurnLtd.
jurisdiction thus exercised by the Labour Appellate Triv.
bunal-whether original or appellate-that jurisdiction R. N. Banerjee
is exercised by it by virtue of the provisions of the Act:
Bhagwati 1.
And s. 9 of the Act has reference to the exercise of the
whole of that jurisdiction when it talks of the powers
and prbcedure of the Labour Appellate Tribunal. In
regard to such powers and procedure no distinction is
made between the exercise of original jurisdiction 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
Tribunal 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 exen;ising 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 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
524
SUPREME COURT REPORTS
[1958
1957
.
of appellate jurisdiction by it but have reference to
Martin Burn Ltd. the whole of the jurisdiction which is vested in the
v.
·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.
SUPREME COURT REPORTS
525
circumstance being established he was entitled to a
1957
re-hearing of the application and setting aside of the MatrinhnLtd.
ex parte order made against him. The Labour Appel.:
v.
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
526
SUPREME COURT REPORTS
[1958]
1957
its jurisdiction and in the exercise of it, launched into
MarrinBurnLtd. an inquiry which it was not competent to do and
v.
erroneously came to the conclusion that the appellant
R. N. Banerjee had failed to make out a prima facie case for termiBlragwati 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.
SUPREME COURT REPORTS
527
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.
528
SUPREME COURT REPORTS
[1958]
t9S7
This circumstance was considered by the Labour
Martin Burn Ltd. Appellate Tribunal as sufficient to entitle it to deterv.
mine for itself whether a prima facie case for the termiR. 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
529
had been shown- to the respondent but without any
1957
effect and in the interest of discipline and good work Martt;;;;, Ltd.
it was necessary that he should be discharged from
v.
service. These allegations were denied by the respondR. 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
530
SUPREME COURT REPORTS
[1958]
1957
even go to show that the contents of that report were
Martin}h;;. Ltd. prejudicial to the respondent. In cross-examination
v.
also he admitted that before reporting on May 4, 1954,
R. N. Banerjee against the respondent he did not draw up a chargeBhagwati 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 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 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.
SUPREME COURT REPORTS
531
without anything more. This was not enough ·to
1957
prove the contents of that report, much. less to give Martt;;;;;, LU.
the respondent an opportunity of controverting the
v.
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.