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 section N Mukherjee and B N Ghosh for the appel lants
D L Sen Gupta with him Dipak Dutta Choudhri for the respondent
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 section 22 of the Industrial Disputes 66 516 Appellate Tribunal Act 1950 hereinafter referred to as the Act for permission to discharge the respondent
The respondent had been appointed as a pay clerk in the appellant s cash department on April 30
1945 and had been con and had been confirmed in service with effect from August 1 1945
Since the beginning of 1949 the respondent was found to have become negligent and careless in his work and he was also disobedient and slow in the performance of the duties that were allotted to him
Repeated verbal and written I warnings were given to him but they had no effect whatever
Consequently the Chief Cashier by his letter dated October 24 1949 addressed to the Manager of the appellant complained that he was very negligent and care less in his work and habitually showed sulkiness that he was also disobedient and shirked the duties that were allotted to him an that recently he was careless enough to keep the Company s money in an open drawer of a safe and go home without locking the same
The Management thereupon asked for his written explanation which he submitted on October 28 1949 stating that if there was anything wrong on his part that was due to his ill health hard work and mental anxiety
He therefore asked to be excused and stated that he would take much more care in future about his work
On November 17 1949 the Chief Cashier again com plained against the respondent stating that he had not only registered no improvement but was grossly negligent in his duties in spite of repeated warnings and was in the habit of absenting himself on flimsy grounds and always tried to avoid duties that were entrusted to him and was very inso lent in his behaviour and conduct
A charge sheet was submitted to him on November 18 1949 and he was suspended till the final disposal of the enquiry
On November 19 1949 the respondent wrote a letter to the Managing Director of the appellant pleading not guilty to the charges framed against him and asking for an interview so that he may have a chance to represent his grievances personally
The re spondent was granted an interview with the Manager of 517 the appellant who investigated the case of the respondent and found him guilty of the charges framed against him
The respondent had admitted having been rude to his superior officer in a fit of temper but appeared to be repentant of his conduct and had tendered an apology to the Chief Cash ier
He also submitted on November 29 1949 a letter asking to be excused
Under the circumstances the manager of the appellant recommended in his report dated November 29 1949 that the respondent be given one more opportunity to prove himself of good behaviour but having regard to the request made by the respondent in that behalf suggested that he be transferred to the Mechanical Engineering Department
The Manager also stated at the end of the said report that he had warned the respondent that if he got any further adverse report about his work or conduct his services would be terminated forthwith
Following upon that report a letter was addressed by the appellant to the respondent on the same day intimating that the appellant had decided to give him one more chance of working in the organization on the distinct understanding that should there be any further adverse report about his work or conduct his services would be terminated forthwith
He was directed on that under standing to report to Mr Hooper of the M E Department where he was being transferred with effect from the next day
In spite of these chances being given to him the respondent did not improve and he was again found seriously neglecting his work
There were also complaints from the typists to the effect that the respondent s chatter interfered with their work
Mr Hooper after giving him verbal warnings on several occasions without any effect ultimately gave him a written warning on February 9 1951 recording the above facts and asking that the respondent should show immediate improvement in his conduct failing which he would take the matter further
The respondent replied by his letter dated February 16 195 1 denying the allegations contained in the said letter of Mr Hooper He Pleaded that he was not negli gent in his duty inasmuch 518 as he had to discharge the arrears of work which were out standing at the time when he took over the work of writing parcel challans and he was also asked to do other work of the clerks who were absent on leave
He however admitted that he had occasionally talked with his co workers though he contended that that was not in such a way as would prompt his coworkers to complain against him
He further asked to be excused for the faults if any and gave an assurance that he was trying and would try his level best to improve further
The respondent however did not show any improvement and again there were complaints against him that his work had not been done properly and also that he had been noisy causing disturbance to the other clerks  work and that he had been twice found by his superior officer Mr Girling with his head on his arms apparently sleeping
On September 3 1952 Mr Girling on behalf of the appellant gave the respondent a warning to which he replied on September 8 1952 denying all the allegations except that of his being found with his head on his arms but excused himself by stating that he was ill and it was under the advice of Mr Girhng himself that he consulted the office doctor who had advised him rest
He however promised to endeavour his utmost to give every satisfaction in the discharge of his duties
In spite of these warnings the respondent showed no improve ment in his work and conduct and continued neglecting his duties and indulging in insubordination with the result that by its letter dated February 9 1953 the Management of the appellant wrote to him that the only course left to it was to dispense with his services but as a measure of leniency it had decided to give him another chance to show satisfac tory improvement and in doing so it had also decided to stop his annual increment
The respondent protested against the stopping of his annual increment by his letter dated Febru ary 17 1953 and contended that the charges levelled against him were absolutely groundless and asked the Manage ment to re consider his case
The Labour Directorate of the Government of West 519 Bengal was approached on his behalf but that body also refused to intervene
The Management asked Mr Hooper to report upon the respondent s work and conduct by May 31 1953 and intimated to the respondent that unless definite improvement was reported by that date his services with the appellant would be terminated as from June 30 1953
Mr Hooper observed the respondent s work and conduct and not finding them satisfactory by his memo dated August 19 1953 reported on the same to the Management of the appel lant
No action was however taken immediately against the respondent and on May 4 1954 Mr Hooper made his final report to the Management on the strength of which the appel lant wrote to the respondent its letter dated May 10 1954 in which it stated that on receipt of the complaint from Mr Hooper it had made a thorough enquiry into his record of service had found that he was unsuitable to be retained in its service and had therefore decided to terminate his service on payment of full retrenchment compensation
It asked the respondent to choose one of the two alternatives viz that it may forthwith terminate his services if he was agreeable to accept payment of retrenchment compensation or in case he refused to accept the same to make an application before the Fifth Industrial Tribunal for permission to terminate his service
The respondent failed and neglected to send any reply with the result that by its letter dated June 21 1954 the appellant intimated to the respondent that it was approaching the Tribunal for permission to terminate his service as per its letter dated May 28 1954
The appellant thereafter filed on September 21 1954 an application before the Fifth Industrial Tribunal West Bengal
under section 33 of the  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 section 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 MN 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 section 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 section 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 section 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
Rei It was contended that once the Labour Appellate Tribunal pronounced its order on October 14 1955 it had become functus officio and thereafter it had no jurisdiction to review its own order
The circumstances moreover did not bring the application which was made by the respondent on December 6 1955 strictly within the provisions of 0
47 r I of the Code of Civil Procedure and no application for review could therefore be maintained
It is significant however to remember that the application made by the respondent on December 6 1955 was an omnibus one and was intituled as one under 0
47 r I of the Code of Civil Procedure for review under 0
41 r 21 of the Civil Procedure Code for restoration and under 0 9 r 13 of the Code of Civil Procedure for setting aside the permis sion granted ex parte and to restore the respondent in his original position
The respondent evidently sought to rely upon one or the other of the provisions above set out in order to obtain the relief which he sought in that
applica tion
Whether one or more of these provisions of the Code of Civil Procedure could be availed of by the respondent depends upon what are the powers which are vested in the Labour Appellate Tribunal when hearing the matters which come before it
The Labour Appellate Tribunal is the creature of the statute and all its powers must be found within the four corners of the statute
The constitution and functions of the Labour Appellate Tribunal are to be found in Chapter 11 of the Act
Sections 4 to 6 of the Act lay down the 522 constitution and functions of the Labour Appellate Tribunal and section 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 section 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
1The 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
10The 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 section 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 section 22 during the pendency of the proceedings before the Labour Appellate Tribunal it also entertains complaints in writing at the instance of the employees aggrieved by such contra vention and the Labour Appellate Tribunal decides these complaints as if they are appeals pending before it in accordance with the provisions of the Act
This is also an exercise of original jurisdiction though under the express terms of the section the exercise of that jurisdiction is assimilated to the 523 exercise of appellate jurisdiction by the Labour Appellate Tribunal
Whatever be the nature of the jurisdiction thus exercised by the Labour Appellate Tribunal whether original or appellate that jurisdiction is exercised by it by virtue of the provisions of the Act And section 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 sections 7 22 or section 23 of the Act
Section 91 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 section 7 or section 23 of the Act and not when it was exercising original jurisdiction and hearing applications under section 22 of the Act
This construc tion of the provisions of section 91 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 section 91 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 section 91 of the Act the provisions of 0
41 r 21 of the Code of Civil Procedure are attracted forthwith
Order 41 r 21 provides Where an appeal is heard ex parte and judgment is pronounced against the respondent he may apply to the appellate court to rehear the appeal and if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing the Court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him
When the Labour Appellate Tribunal heard the application under section 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 2 525 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 section 9 sub section
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 section 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 section 22 of the Act to its file
This contention of the appellant therefore is without any substance and must be negatived
Reii It was next contended that even though the Labour Appellate Tribunal had jurisdiction to hear an application under section 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 section 22 of the Act has been the subject matter of decisions of this Court in Atherton West  Co Ltd vs Suti Mill Mazdoor Union and others 1 The Automo bile Products of India Ltd vs Rukmaji Bala  others2 and Lakshmi Devi Sugar Mills Limited vs Pt
Ram Sarup3
In the last mentioned case this Court succinctly laid down the principles governing such enquiry and observed at p 935  The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the condition of employ ment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted
A prima facie case has to be made out by the em ployer for the lifting of such ban and the only jurisdiction which the Tribunl has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization
 We have therefore got to consider whether in the instant case a prima facie case was made out by the appellant for terminating the service of the respondent and whether in giving the notice dated November 1 1 1955 terminating the respondent s service the appellant was motivated by any unfair labour practice or victimisation
The facts as they appear from the narration of events in the earlier part of this judgment go to establish that the respondent was grossly negligent in 1  3  2 1955 i SCR 1241
527 the performance of his duties was in the habit of absenting himself on flimsy grounds was also insolent in his beha viour and conduct and in spite of repeated warnings oral as well as written addressed to him by the Management of the appellant did not show any signs of improvement
The inci dents of 1949 195 1 and 1952 culminating in the stoppage of his annual increment in February 1953 were sufficient to demonstrate that the Management of the appellant dealt with the respondent very leniently in spite of his work and conduct not being at all satisfactory
The appellant would have been well within its rights if it had taken action against the respondent on each of the several occasions above referred to but out of sheer compassion went on giving him one opportunity after the other so that he would register an improvement in his work and conduct
The re spondent however presisted in his behaviour and the two reports made by Mr Hooper One on August 19 1953 and the other on May 4 1954 were considered by the Management and it came to the conclusion that the respondent was unsuitable to be retained in the appellant s service and even then instead of deciding to dismiss him without anything more it offered him the choice of one of the two alternatives viz that it may forthwith terminate his service if he was agree able to accept the term of full retrenchment compensation or if he refused to accept the same to make an application before the Fifth Industrial Tribunal for permission to terminate his service
The whole of the correspondence ending with the respondent s letter dated February 17 1953 was sufficient to prove with
out anything more the unsatis factory nature of his work and conduct and the appellant was evidently of the opinion that the records of the re spondent taken along with the reports made by Mr Hooper afforded sufficient material to justify it in taking the step which it ultimately decided to do
It was under these circumstances that the appellant did not consider it neces sary to furnish to the respondent a chargesheet and to hold a formal enquiry into the work and conduct of the respond ent
528 This circumstance was considered by the Labour Appellate Tribunal as sufficient to entitle it to determine for itself whether a prima facie case for the termination of the respondent s service was made out by the appellant
It was open to the appellant to submit a charge sheet to the re spondent and institute a formal inquiry into his work and conduct
If that had been done and the appellant had after holding such formal enquiry come to the conclusion that the respondent was guilty of the charges which were levelled against him and had then decided to terminate his service the Tribunal could not have intervened and on its coming to the conclusion that a prima facie case for the termination of the service of the respondent was thus made out it would
have granted the appellant the permission asked for
Unfortunately for the appellant in spite of the work and conduct of the respondent being demonstrably unsatisfactory and therefore justifying the conclusion that he was un suitable to be retained in its service the appellant did not hold any formal enquiry of the nature indicated above and did not afford to the respondent an opportunity to have his say in the matter of the charges levelled against him
The Labour Appellate Tribunal therefore rightly took upon itself the burden of determining whether on the material submitted before it by the appellant a prima facie case for the termination of the respondent s service was made out by the appellant
The evidence led by the parties before the Labour Appellate Tribunal consisting as it did of the affidavit and oral evidence was not such as would enable it to come to the conclusion that a prima facie case for the termination of the respondent s service was made out by the appellant
In paragraphs 8 and 9 of the application the appellant had pointed out that after receipt of Mr Hooper s report dated May 4 1954 to the effect that there will be no improvement of work in the department unless the respondent was removed from the same the matter was further investigated and the old records of the respondent were carefully considered and the appellant found that enough consideration 529 had been shown to the respondent but without any effect and in the interest of discipline and good work it was necessary that he should be discharged from service
These allega tions were denied by the respondent in his affidavit in reply and he contended that on no occasion whatever the warnings letters suspension or stoppage of increment resorted to by the appellant were done after establishing his guilt or by following the usual methods viz by issu ing a charge sheet with specific allegations and on enquiry based on such a charge sheet and explanations rendered by him
He contended that the whole thing was arbitrary without any basis and in violation of the principles of natural justice and was by way of unfair labour practice or victimization
An affidavit in rejoinder was filed on behalf of the appellant by Shri Ramani Ranjan Dhar a Senior Assistant of the appellant
He denied these allegations of the respondent and affirmed that the application of the appellant sufficiently disclosed the offences for which it sought the permission of the Labour Appellate Tribunal to dismiss the respondent
He stated that the appellant was thoroughly satisfied after full enquiry and investigation and after the respondent was given more than ample opportu nity to explain the charges levelled against him and after he was given more than one chance at his own prayer to improve his conduct on various occasions that the respondent was guilty of the charges brought against him
This affida vit evidence was followed by the oral evidence of Mr Hooper led on behalf of the appellant
Mr Hooper however did not carry the case of the appellant any further
Even though the appellant had an opportunity when Mr Hooper was in the witness box to produce his reports dated August 19 1953 and May 4 1954 and have them proved through him or in any event if the absence or loss of those reports was satisfactorily accounted for to lead oral evidence as to their contents the appellant did not do so and beyond a bare reference to his report of May 4 1954 without disclosing
the contents thereof there was nothing in the deposition of Mr Hooper which would 530 even go to show that the contents of that report were preju dicial to the respondent
In cross examination also he admitted that before reporting on May 4 1954 against the respondent he did not draw up a chargesheet as it was for the appellant to do so
The Labour Appellate Tribunal bad to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent s serv ice
A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed
While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence
It may be that the Tribunal considering this question may itself have arrived at a different conclusion
It has however not to substitute its own judgment for the judgment in question
It has only got to consider whether the view taken is a possible view on the evidence on the record
See Buckingham and Carnatic Co Ltd Case 1
The Labour Appellate Tribunal in the instant case discussed the evidence led before it in meticulous detail and came to the conclusion that no prima facie case was made out by the appellant for the termination of the service of the respond ent
It applied a standard of proof which having regard to the observations made above was not strictly justifiable
If the matter had rested there it may have been possible to upset the finding of the Labour Appellate Tribunal
But if regard be had to the evidence which was actually led before it there is such a lacuna in that evidence that it is impossible to come to the conclusion that even if the evi dence was taken at its face value a prima  facie case was made out by the appellant
Mr Hooper s evidence did not go to show what were the contents of his report dated May 4 1954 and it contained only a bare reference to that report 1 531 without anything more
This was not enough to prove the contents of that report much less to give the respondent an opportunity of controverting the  allegations made against him
If therefore these essential ingredients were want ing it cannot be said that the evidence led by the appel lant before the Labour Appellate Tribunal was sufficient to establish a prima facie case for the termination of the respondent s service
This contention also does not there fore avail the appellant
Mr Sen endeavoured to draw a distinction between discharge on the one hand and punishment by way of dismissal or other wise on the other in clause b of section 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 section 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 section 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 section 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 section 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 section 22 of the Act and the only point to which the attention of the Labour Appellate Tribunal was invited was whether the appel lant had made out a prima facie case for the termination of the respondent s service
Whatever rights and remedies are available to the appellant by reason of these circumstances may just as well be asserted by the appellant in appropriate proceedings which may be taken hereafter either at the instance of the appellant or the respondent
We are not at present concerned with the same
Under the circumstances we are of opinion that the decision arrived at by the Labour Appellate Tribunal 533 which is the subject matter of appeal before us was correct
It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in termi nating the service of the respondent as it did the appel lant was not guilty of any unfair labour practice nor was it actuated by any motive of victimisation against the respondent
That finding however cannot help the appel lant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent
We therefore hold that the decision of the Labour Appel late Tribunal refusing permission to the appellant under section 22 of the Act was correct and this appeal is liable to be dismissed
It will accordingly be dismissed with costs
Appeal dismissed


Summary:
The respondent was employed by the appellant company but later on his work and conduct became very unsatisfactory and repeated warnings both oral and written did not show any improvement
A thorough inquiry into his record of service was made and a report was submitted which showed that he was unsuitable to be retained in its service
No formal enquiry however was held by submitting a charge sheet to the respondent and giving him an opportunity to rebut those chares
The appellant gave him a choice either to terminate his services on payment of full retrenchment compensation or if he refused to accept the same to make an application for permission to terminate his services
Eventually the appellant filed an application before the Labour Appellate Tribunal under section 22 Of the Industrial Disputes Appellate Tribunal Act 1950 for permission to discharge the respondent from its service
The application was originally heard ex parte the respondent not appearing and the Tribunal by order dated October 14 1955 allowed the application
Subsequently the respondent made an appli cation for a review of the order under Or
47 R I for setting it aside under Or 9 R 13 and for restoration of the application under Or 41 R 21 Of the Code of Civil Procedure
The Tribunal found that there was sufficient cause for the respondent not appearing when the application was called on for hearing and set aside the ex parte order and restored the appellant s application
On a further hearing of the application the parties adduced evidence and the Tribunal after hearing them rejected the application on the ground that a prima facie case had not been made out for permission to discharge the respondent
On appeal to the Supreme Court it was contended for the appellant 1 that the Labour Appellate Tribunal had no jurisdiction to review its own order and 2 that it exceeded its jurisdic tion under section 22 Of the Act in discussing the evidence led before it in meticulous detail and coming to the conclu sion that the appellant failed to make out a prima facie case to discharge the respondent from its service
Held 1 that under section 9 sub sections
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 section 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 vs Suti Mill Mazdoor Union and Others  The Automobile Products of India Ltd vs Rukmaji Bala  others  and Laksh mi Devi Sugar Mills Limited vs Pt
Ram Sarup 1956 SCR 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