MARTIN BURN LTD. versus R. N. BANERJEE

Citation: [1958] 1 S.C.R. 514 · Decided: 20-09-1957 · Supreme Court of India · Bench: NATWARLAL HARILAL BHAGWATI · Disposal: Dismissed

Judgment (excerpt)

19S1 
September 
514 
SUPREME COURT REPORTS 
[1958] 
MARTIN BURN LTD. 
v. 
R. N. BANERJEE. 
(BHAGWATI, S. K. DAS and GAJENDRAGADKAR, JJ.) 
Industrial dispute-Discharge of employee-Application for 
permission before labour Appellate Tribunal-Jurisdiction of the 
Tribunal-Power to set aside ex-parte order and restore applica-
tion-Code of Civil Procedure (Act V of 1908), Or. 41, R. 21-
Industrial Disputes (Appellate Tribunal) Act, 
1950. (XLVI/l of 
1950), 
SS. 
9(J)(JO), 22. 
The respondent was employed by the appellant. company, 
but later on his work and conduct became very unsatisfactory and 
repeated warnings, both oral and written, 
did not show any 
improvement. A thorough inquiry into his record of service was 
made and a report was submitted which showed that he was un-
suitable to be retained in its service. No formal enquiry, how-
ever, was held by submitting a charge-sheet to the respondent and 
giving him an opportunity to rebut those charges. The appellant 
gave him a choice either to terminate his services on payment of 
full retrenchment compensation, or if he refused to accept the 
same, to make an application for permission to terminate his 
services. Eventually, the 
appellant filed 
an application before 
the Labour Appellate Tribunal under section 22 of the Industrial. 
Disputes (Appellate Tribunal) Act, 9150, for permission to 
discharge the respondent from its service. The application was 
originally heard ex parte, the respondent not 
appearing, 
and the Tribunal, by order dated'October 14, 1955 allowed the 
application. Subsequently the respondent made an application for a 
review of the order under Or. 47, R. I. for setting it aside under 
Or. 9. R. 13, and for restoration of the application under Or. 41, 
R. 21. Of the Code of Civil Procedure, The tribunal found that 
there was sufficient cause for the respondent not appearing when 
the application was called on for hearing, and set aside the 
ex parte order and restored the appelant's application. On a 
further hearing of the application, the parties adduced evidence and 
the Tribunal, after hearing them, rejected the application on the 
ground that a prima facie case had not been made out for permis-
sion to discharge the respondent. On appeal to the Supreme Court 
it was contended for the appellant (1) that the Labour Appellate 
Tribunal had no jurisdiction to review its own order and (2) that 
it exceeded its jurisdiction under section 22 of the Act, in discuss-
ing the evidence led before it in meticulous detail and coming to 
the conclusion that the appellant failed to make out a Prima facie 
case to discharge the respondent from its service. 
Held : (!) that under s. 9. sub-ss.(l) and (10 of the Act the 
Labour Appellate Tribunal 
had jurisdiction to set 
aside 
the 
S.C.R. 
SUPREME COURT REPORTS 
515 
ex parte order dated October 14, 1955, and restore the application 
to its file. 
(2) that under s. 22 of the Act, the jurisdiction of the Labour 
Appellate Tribunal in considering whether a prima facie case has 
!Jeen made out by the employer, is to see whether the employer 
1S acting mala fide or is resorting to any unfair labour practice or 
victimisation, and whether on.the evidence led it is possible to 
!lrrive at the conclusion in question. Though the Tribunal may 
itself have arrived at a different conclusion it has not to sub-
stitute its own judgment for the judgment in question. 
Atherton West & Co. Ltd., v. Suti Mill Mazdoor Union and 
Others, (1953) S.C.R. 780, The Automobile, Products of India Ltd. v. 
Rukmaji Bala & others, (1955) l S.C.R. 1241 and Lakshmi Devi 
Sugar Mills Limited v. Pt. Ram Sarup (1956) S.C.R. 916, relied 
on. 
In the instant case, though the appellant was justified in 
making the application for permission to discharge the respondent 
on account of his work and conduct being demonstrably unsatis-
factory, and the standard of proof which the Tribunal had applied 
for finding whether there was a prima facie case was not strictly 
justifiable, in view of the fact that no fromal inquiry into the 
charges against the respondent was held and the evidence on 
behalf of the appellant did not show that the respondent was 
given an opportunity to controvert the allegations made agaiust 
him, the decision of the Tribunal was upheld. 
CML APPELLATE JURISDICTION : civil Appeal No. 92 
of 1957. 
Appeal by special leave from the judgment and 
order dated May 11, 1956, of the Labour Appellate 
Tribunal oflndia, Calcutt

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