Case: Martin Burn Ltd Vs. R.N Banerjee

1. This appeal with special leave 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 (Appellate Tribunal) Act, 1950 (hereinafter referred to as "the Act") for permission to discharge the respondent.2. The respondent had been appointed as a pay-clerk in the appellants cash department on 30-4-1945, and had been confirmed in service with effect from 1-8-1945. 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 toverbal and written warnings were given to him but they had no effect whatever. Consequently the Chief Cashier by his letter dated 24-10-1949, 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 Companys 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 28-10-1949, 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 17-11-1949, 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 18-11-1949, 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 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 Cashier. He also submitted on 29-11-1949, a letter asking to be excused. Under the circumstances, the manager of the appellant recommended in his report dated 29-11-1949, 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 understanding to report to Mr. Hooper of the M. E. Department, where he was being transferred with effect from the next day.3. 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 respondents 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 9-2-1951, 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 16-2-1951, denying the allegations contained in the said letter of Mr. Hooper. He pleaded that he was not negligent in his duty inasmuch as he had to discharge the arrears of work which were outstanding 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 co-workers 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.4. 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 3-9-1952, Mr. Girling on behalf of the appellant gave the respondent a warning to which he replied on 8-9-1952, 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.5. 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 9-2-1953, 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 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 17-2-1953, and contended that the charges levelled against him were absolutely groundless and asked the Management to re-consider his case. The Labour Directorate of the Government of West Bengal was approached on his behalf but that body also refused to intervene. The Management asked Mr. Hooper to report upon the respondents 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 respondents 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 through enquiry into his records of service, has 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 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.6. The appellant eventually filed an application under S. 22 of the Act before the Labour Appellate Tribunal of India at Calcutta for permission to discharge the respondent from its service. This step became necessary as there was an appeal being No. Cal-152 pending before the Labour Appellate Tribunal to which the appellant and the respondent were parties. The Labour Appellate Tribunal consisting of Shri M. N. Gan (President) and Shri P. R. Mukherji (Member) heard the appellant ex parte and by its order dated October 14, 1955, allowed the said application and granted the 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 11, 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 appellants 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.7. 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.8. 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 respondents application and restored the appellants 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.9. The appellant being aggrieved by the said decision of the Labour Appellate Tribunal of India, Calcutta, applied for an obtained special leave to appeal to this Court.

Reasoning: 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.