9911796707
TMI Blog1968 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... of six months and directed him to report for duty at Chandigarh by 24th January, 1966. Mr. Paul applied for leave for 12 days with effect from 25th of January, 1966. The said leave was granted. The employee was directed to report for duty at Chandigarh on the expiry of the said leave. On 7th February, 1966, Mr. Paul wrote to the managing director that his physician Dr. D. P. Basu, had advised him to stay in temparate climate and to have monthly check up of his heart-condition. He also informed the managing director that the employees' union of the appellant-company had raised dispute with regard to this transfer and conciliation proceedings had been started and the appellant-company was requested by the labour department to keep the order of transfer in abeyance pending the conciliation proceedings. Mr. Paul joined the head office at Calcutta on 7th February, 1966, when the managing director of the appellant-company asked him immediately to contact the company's doctor, one Mr. Ganguly, so that electrocardiograph of his heart might be taken by a competent Cardiologist. Notwithstanding such requests and directions to get electrocardiograph of his heart done by Dr. A. K. Basu, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further represented that the company's application for special leave to appeal in the Supreme Court in the above matter was dismissed. ( c ) It was also represented that an industrial dispute had been raised by the Labour Commissioner and was pending before him. ( d ) Having regard to ( a ), ( b ) and ( c ) above, the proposed punishment did not appear to be commensurate with the alleged misconduct on the part of Shri R. S. Paul. ( e ) Shri R. S. Paul had rendered some assistance in the matter of investigation into the affairs of your company. ( f ) It was also represented that the proposed action was with a view to victimization of Shri R. S. Paul for the assistance he had rendered in the investigation. Yours faithfully, Sd/- (T. S. Kannan) Secretary, Company Law Board" Mr. Somnath Chatterjee, appearing in support of the appeal, has urged as follows: ( a )Notice of objection given by the Company Law Board was not in terms of section 635B and as such was not a valid objection. ( b )Sub-section ( b ) ( ii ) to section 635B of the Companies Act lays down that notice of any objection has to be given. That shows the notice must specify the grounds of objection. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of natural justice, or to ensure that the concerned authority applies its mind to the matter or to prevent the provisions as to appeals and revisions being rendered nugatory by the authorities making out orders........... Moreover when an authority is required to decide some matter and the decision depends upon the existence or non-existence of certain facts, that authority must in its order show as to whether or not those facts exist. In the absence of reasons it is impossible by the courts exercising appellate powers, or the powers of superintendence, to see whether or not the authority was influenced by any extraneous considerations. The practice of making summary orders will, in effect, reduce the provisions as to appeal and revision to nullity. When the order of an authority is made subject to scrutiny by an appellate or revisional authority, the Legislature obviously intends to make that right effective. If the authority does not give reasons it amounts, in substance, to depriving the party of the right of appeal or revision". The Central Government by its order No. 2(5)-CL-1/63, dated 11th April, 1963, passed orders under sections 237 and 249 of the Companies Act, 1956, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence between a proposal and an opposition........". In the instant case, in my opinion, we have to consider, therefore, the manner in which the decision has to be arrived at by the Company Law Board in deciding to object to the proposal to discharge or remove an employee under section 635B of the Companies Act, 1956, as amended up to date. We have to consider in particular as to whether section 635B, subsection ( b ) ( ii ) cast upon the Company Law Board any duty to decide judicially as to whether it would object or not to the proposed dismissal of an employee as contemplated by the said section. In my opinion, no duty is cast upon the Company Law Board in forming its opinion to object to the proposed discharge or removal of an employee under section 635B of the Companies Act, to act judicially or quasi judicially. From a perusal of the section it is apparent that no proposal or opposition has to be considered by the Company Law Board after taking evidence or representation of both sides. Therefore, arriving at its opinion to object or not to object by the Company Law Board is not subjected to objective test. It should be noted that in the case of an administrative decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apers Ltd. v. State Industrial Tribunal. (1957-58) 12 FJR 129; AIR 1957 SC 532, 539 In the instant case the right to appeal conferred by section 635B, sub-section (3), does not, in my opinion, cast any obligation upon the Company Law Board to act judicially, (see Hanumanbax Agarwalla v. Sub Divisional Officer, Sibsagar AIR 1952 Assam 115, 118, Lilawati v. State of M.B. AIR 1952 M.B. 105., Nagendra Nath Bora v. Commissioner of Hills Division AIR 1958 SC 398, 406). Reference in this connection may also be made to the abovementioned case of Radheshyam s case ( supra ). There is, in my opinion, no statutory duty cast upon the Company Law Board under the said section to act judicially in arriving at the aforesaid opinion (see Nakkuda AH v. Jayaratne [1951] AC 66, 78). The Supreme Court has laid down in the case of K. Advani s case ( supra ) that a decision would be quasi-judicial only if the obligation to act judicially is laid down in the statute which has established the authority whose decision is in question. In my opinion, the Companies Act, 1956, has not either in the said section 635B or anywhere else laid down that the Company Law Board in arriving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. Such affidavits were filed in support of the appeal as well as in opposition to the said appeal. From the papers which were filed before the Tribunal it is apparent that the employee, R. S. Paul, was of assistance to the Company Law Board in its investigation under sections 235, 237, 239, 247, 248 and 249 of the Companies Act, 1956. The protection under section 635B of the Companies Act, 1956, as amended was introduced for preventing obstructions to such investigation under the aforesaid sections of the Companies Act, 1956, by removal of an employee who was or is of assistance to the Company Law Board in such investigation. True, the investigation in the instant case stands stayed but it has not been finally quashed and is only in abeyance. Therefore, the assistance of Mr. R. S. Paul may be necessary to the Company Law Board if and when such investigation is resumed. In view of the aforesaid papers, and specially the affidavit of Manindra Krishna Banerjee filed in the appeal, I am unable to come to the conclusion that the objection to the proposed discharge or dismissal of the said R. S. Paul by the appellant was mala fide . Mala fide has also not been urged by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
