Case: Martin Burn Ltd Vs. R.N Banerjee

view taken is a possible view on the evidence on the record. (See Buckingham and Carnatic Co., Ltd. v. The Workers of the Company, (1952) Lab. AC 490 (F).28. 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. Hoopers 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 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 wanting, it cannot be said 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 respondents service. This contention also does not therefore avail the appellant.29. Mr. Sen endeavoured to draw a distinction between discharge on the one hand and punishment by way of dismissal or otherwise on the other, in cl. (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 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.30. Mr. Sen also relied upon the circumstances that after the Labour Appellate Tribunal had on the ex parte hearing of the application under S. 22 of the Act granted to the appellant permission to terminate the 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 respondents 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 respondents service, the Labour Appellate Tribunal ought not to have reconsidered its decision and restored the application under S. 22 of the Act to its file and that the further decision of the Labour Appellate Tribunal had no effect so far as 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 appellants 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 appellant had made out a prima facie case for the termination of the respondents 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.31. Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal which is the subject-matter of appeal before us was correct.32. It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in terminating the service of the respondent as it did, the appellant was not guilty of any unfair labour practice nor was it actuated by any motive of victimization against the respondent. That finding, however, cannot help the appellant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. Re: (i) it was contended that once the Labour Appellate Tribunal pronounced its order on October 14, 1955, it has 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 O. 47, R. 1 of the Code of Civil Procedure and no application for review could therefore be maintained.12. 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 O. 47 R. 1 of the Code of Civil Procedure for review; under O. 41, R. 21 of the Civil Procedure Code for restoration and under O. 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.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 O. 41 R. 21 of the Code of the 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.20.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 appellants application under S. 22 of the Act to its file. The 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 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.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 respondents service the appellant was motivated by any unfair labour practice or victimization.Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal which is the subject-matter of appeal before us was correct.32. It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in terminating the service of the respondent as it did, the appellant was not guilty of any unfair labour practice nor was it actuated by any motive of victimization against the respondent. That finding, however, cannot help the appellant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent.