Case: State Bank of India, Calcutta Vs. Its Workmen, and Another

the onus on the respondents, and it felt no doubt that in terminating the services of respondent 2 the appellant was actuated by ulterior motives and that the said termination amounted to an unfair practice and victimisation. As a result of these findings the appeal preferred by the respondents was allowed and the appellant was directed to reinstate respondent 2 and to restore him to his old post. It is against this order that the appellant has come to this Court by special leave, and the only point which has been raised on its behalf by Mr. B. Sen is that in entertaining the appeal preferred before it by the respondents the Labour Appellate Tribunal has exceeded its jurisdiction under S.7 of the Act. It is common ground that the appeal before the Labour Appellate Tribunal would be competent under S. 7(1)(a) only if it involved any substantial question of law. So what we have to decide in the present appeal is : Did any substantial question of law arise in the respondents appeal before the Labour Appellate Tribunal ?It may be relevant to point out that this contention was not raised before the Labour Appellate Tribunal. It is desirable that whenever a party to the appeal before the Labour Appellate Tribunal wants to take an objection on the ground of incompetence of the appeal, the objection should be taken before the Labour Appellate Tribunal itself. It is not fair that the Labour Appellate Tribunal should not be called upon to decide this point, and an attempt should be made to obtain the decision of the said Tribunal on the merits and when it is discovered that the decision has gone against, the party should think of raising the point of jurisdiction before this Court in its appeal under Art. 136 of the Constitution. However, we have not precluded Mr. Sen from raising this contention before us because the contention is one of law, and for its decision no more evidence is required.3. Mr. Sen argues that the findings made by the industrial tribunal were alternative. It had held that S. 33 had not been contravened; and even if it was, on the merits it had found that the order of discharge was not shown to be unreasonable. We are not impressed by this argument. There is no doubt that as the appeal was presented before the Labour Appellate Tribunal the first question which it raised was whether S.33 of the Industrial Disputes Act had been contravened, and it is common ground that if this question arose for the decision of the Labour Appellate Tribunal it cannot be said that a substantial question of law did not arise. It is clear that the merits had to be considered whatever decision was reached by the tribunal on the first preliminary issue about the breach of S. 33. Now, even in regard to the merits there is another question of law which arises and that is one of onus. Mr. Sen contends that even if S. 33 has been contravened it does not follow that the employer has to take the onus of proving to the satisfaction of the tribunal that the order of respondents; discharge was justified. According to Mr. Sen, even on if S. 33 is contravened, the principles laid down by this Court in Indian Iron & Steel Company, Ltd. and another v. Their workmen [1958 - I L.L.J. 260] will apply, if the employer has held a proper enquiry after framing charges against the employee and in the said enquiry findings have been recorded against the employee; in such a case it is suggested that it is only if there is want of good faith or there is victimization or unfair labour practice or when the management has been guilty of basic error of violation of the principles of natural justice or when the findings in question are perverse that the tribunal can interfere.On the other hand, it is argued that if S. 33 is contravened by the employer then the enquiry held by him would serve no useful purpose. The tribunal would then have to be satisfied about the merits of the employers contention that the termination of the employees services is justified. The argument is that it is only if a proper enquiry has resulted in a legal order of termination that the principles applicable to domestic tribunals and their business can be legitimately invoked by the employer. Where, as in the present case, the order of discharge contravenes S. 33, the enquiry which preceded such an order can have no validity and, when an industrial dispute arises in respect of such an illegal discharge or dismissal, the whole question is open before the tribunal which must deal with its merits and satisfy itself about the employers contention that the employee deserves to be discharged or dismissed.4. In our opinion, it is unnecessary to decide the merits of these contentions because whatever view we were to take in this matter would not affect the decision of the preliminary objection raised by Mr. Sen that no appeal lay before the Labour Appellate Tribunal under S. 7(1)(a) of the Act. We have set out these rival contentions solely with the object of emphasising the fact that a substantial point of law arises even in regard to the question about the onus of proof and this question has been answered by the Labour Appellate Tribunal in favour of the respondents. Therefore even in regard to the merits of the case it cannot be denied that a substantial question of law did arise, and so the appeal before the Labour Appellate Tribunal was competent. We have already mentioned that the Labour Appellate Tribunal has made a definite finding that in discharging the services of respondent 2 the appellant was guilty of unfair labour practice and that it wanted to victimize respondent 2. We ought to add that Mr. Sen has not challenged this finding before us, and we think rightly.5.

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

Explanation:
0[ds]Mr. Sen argues that the findings made by the industrial tribunal were alternative. It had held that S. 33 had not been contravened; and even if it was, on the merits it had found that the order of discharge was not shown to beunreasonable. We are not impressed by this argument. There is no doubt that as the appeal was presented before the Labour Appellate Tribunal the first question which it raised was whether S.33 of the Industrial Disputes Act had been contravened, and it is common ground that if this question arose for the decision of the Labour Appellate Tribunal it cannot be said that a substantial question of law did not arise. It is clear that the merits had to be considered whatever decision was reached by the tribunal on the first preliminary issue about the breach of S. 33. Now, even in regard to the merits there is another question of law which arises and that is one of onus. Mr. Sen contends that even if S. 33 has been contravened it does not follow that the employer has to take the onus of proving to the satisfaction of the tribunal that the order of respondents; discharge wasour opinion, it is unnecessary to decide the merits of these contentions because whatever view we were to take in this matter would not affect the decision of the preliminary objection raised by Mr. Sen that no appeal lay before the Labour Appellate Tribunal under S. 7(1)(a) of the Act. We have set out these rival contentions solely with the object of emphasising the fact that a substantial point of law arises even in regard to the question about the onus of proof and this question has been answered by the Labour Appellate Tribunal in favour of the respondents. Therefore even in regard to the merits of the case it cannot be denied that a substantial question of law did arise, and so the appeal before the Labour Appellate Tribunal was competent. We have already mentioned that the Labour Appellate Tribunal has made a definite finding that in discharging the services of respondent 2 the appellant was guilty of unfair labour practice and that it wanted to victimize respondent 2.