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TMI Blog1957 (9) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 careless 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 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 November 18, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gations contained in the said letter of Mr. Hooper: He Pleaded that he was not negli gent 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en it talks of the powers and procedure of the Labour Appellate Tribunal. In regard to such powers and procedure no distinction is made between the exercise of original jurisdiction and the exercise of appellate jurisdiction by the Labour Appellate Tribunal and these provisions apply equally to the jurisdiction exercised by it whether under ss. 7, 22, or s. 23 of the Act. Section 9(1) of the Act invests the Labour Appellate Tribunal 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 s. 7 or s. 23 of the Act and not when it was exercising original jurisdiction and hearing applications under s. 22 of the Act. This construction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sufficient cause therefore for the respondent not appearing when the application was called on for hearing and on this circumstance being established he was entitled to a rehearing 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 s. 9, sub-s. (10) of the Act the Labour Appellate Tribunal is enjoined to 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 the Act or the rules or orders made thereunder, apply to all proceedings before it. Pursuant 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal 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 the performance of his duties, was in the habit of absenting himself on flimsy-grounds, was also insolent in his behaviour 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 incidents of 1949, 195 1, and 1952 culminating in the stoppage of his annual increment in February, 1953, were sufficient to demonstrate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie 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 unsuitable 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof there was nothing in the deposition of Mr. Hooper which would even go to show that the contents of that report were prejudicial 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 service. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. Mr. Sen also relied upon the circumstance that after the Labour Appellate Tribunal had on the exparte 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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