PETITIONER:
PATNA ELECTRIC SUPPLY CO., LTD., PATNA.
Vs.
RESPONDENT:
BALI RAI & ANOTHER.
DATE OF JUDGMENT:
05/11/1957
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
KAPUR, J.L.
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 204 1958 SCR 871
ACT:
Industrial Dispute-Dischage of employee-Permission granted
by Industrial Tribunal-Powers of Labour Appellate Tribunal
to interfere-Question of law-Appealability-Industrial
Disputes Act, 1947 (14 Of 1947), s. 33-The Industrial
Disputes (Appellate) Tribunal Act, 1950 (48 of 1950), s. 7.
HEADNOTE:
The appellant made an application before the Industrial Tri-
bunal under s. 33 Of the Industrial Disputes Act, 1947, for
permission to dismiss the respondents, its employees, on the
ground of misconduct under cl. 17 (b) (viii) of the
appellant's Standing
872
Orders, but subsequently, on a reconsideration of the facts,
made another application praying instead for permission to
discharge the respondents under cl. 14(a) of the Standing
Orders. The Industrial Tribunal found that the second
application was bona fide made by the appellant with the
honest motive of exercising its right to discharge the
respondents instead of visiting upon them the penalty of
dismissing them, and granted the appellant permission on
payment to the respondents of one month's pay in lieu of
notice. The Labour Appellate Tribunal, on appeal, was of
the opinion that having once alleged misconduct against the
respondents the appellant could not be allowed to adopt the
expedient of terminating their services by giving notice for
the requisite period, by means of a fresh application, and
after considering whether the appellant had made out a case
under cl. I7(b)(viii) of the Standing Orders, came to the
conclusion that the respondents had not been guilty of any
misconduct, and held that the Industrial Tribunal erred in
granting the permission to discharge the respondents. On
appeal to the Supreme Court:-
Held, that in an application under s. 33 of the Industrial:
Disputes Act, 1947, the relevant consideration was whether
the employer was guilty of any unfair labour practice or
victimisation, and unless the Tribunal came to a conclusion
adverse to the applicant it would have no jurisdiction to
refuse the permission asked for to discharge the employee.
Accordingly, in view of the finding of the Industrial
Tribunal that the application was bona fide, no question of
law arose out of its order, and the Labour Appellate
Tribunal erred in entertaining the appeal.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 142 of 1956.
Appeal by special leave from the judgment and order dated
September 13, 1954, of the Labour Appellate Tribunal of
India (Calcutta Bench) in Appeal No. Cal-87 of 1953.
H. N. Sanyal, Additional Solicitor–General of India,
J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the
appellants.
P. K. Chatterjee, for the respondents.
1957. November 5. The Judgment of the Court was delivered
by
BHAGWATI J.-This appeal with special leave arises out of an
application made by the appellant to the Industrial
Tribunal, Bihar under s. 33 of the Industrial Disputes Act,
1947 (hereinafter referred to as “‘the Act”), seeking
permission to discharge the respondents from its employ.
873
The respondents were in the employ of the appellant and were
staying in a two storeyed house in the city of Patna which
had been rented by the appellant for housing its workmen.
On November 20, 1952, an occurrence took place in the said
house wherein the respondents were involved. Written
reports of the said occurrence were sent on November 21,
1952, to the appellant’s Chief Engineer and the respondents
were placed under suspension the same day. An industrial
dispute was then pending between the parties i.e., the
appellant and its workmen before the Industrial Tribunal,
Bihar, and the appellant therefore made an application to
the said Tribunal under s. 33 of the Act for permission to
dismiss the respondents on the ground of misconduct as per
cl. 17(b)(viii) of the appellant’s Standing Orders. On
November 27, 1952, the respondents also made an application
before the said Tribunal under s. 33A of the Act inter alia
on the ground that their suspension by the appellant as
aforesaid was a breach of s. 33 of the Act.
On December 6, 1952, the appellant made an application
before the said Tribunal stating that on a reconsideration
of the facts of the case of the respondents the original
prayer for permission to dismiss the the respondents was not
being pressed, and for the ends of justice it would be
sufficient if the appellant was granted permission to
discharge the respondents under cl. 14(a) of the Standing
Orders instead of the original prayer for dismissal under
cl. 17(b)(viii) thereof. This application was resisted by
the respondents. The Industrial Tribunal, however,
entertained the same and after hearing the parties duly made
its award on May 14, 1953, dismissing the respondents’
application under s. 33A of the Act and granting the
appellant permission to discharge the respondents from its
employ with effect from the date of the order on payment to
the respondents of one month’s pay in lieu of notice within
15 days therefrom.
The respondents carried an appeal against the said order of
the Industrial Tribunal granting the appellant’s application
under s. 33 of the Act before the Labour Appellate Tribunal
of India, Calcutta. A
874
preliminary objection was taken on behalf of the appellant
before the Labour Appellate Tribunal that no substantial
question of law was involved and as such the appeal was not
maintainable. The Labour Appellate Tribunal was of the
opinion that the appellant had alleged misconduct against
the respondents and could not be allowed to adopt the
expedient of terminating their services by giving notice for
the requisite period or payment of salary in lieu of notice
and that the Industrial Tribunal, therefore, ought not to
have entertained the application for amendment of the prayer
of the original application in which the appellant wanted to
dismiss the respondents for misconduct. This according to
the Labour Appellate Tribunal was a substantial question of
law and it therefore entertained the appeal. The Labour
Appellate Tribunal thereafter considered whether the appel-
lant had made out a case under cl. 17(b)(viii) of the
Standing Orders and came to the conclusion that the
respondents had not been guilty of any misconduct within the
meaning of that clause and that therefore the order made by
the Industrial Tribunal granting permission to the appellant
to terminate the services of the respondents was liable to
be set aside. In so far, however, as after obtaining the
permission from the Industrial Tribunal the appellant had
given notice of discharge to the respondents, the Labour
Appellate Tribunal expressed its inability to give the
respondents any substantial relief either in the shape of
reinstatement or compensation.
The appellant has come up in appeal before us against this
order of the Labour Appellate Tribunal.
Shri H. N. Sanyal, appearing for the appellant, has urged in
the fore-front the contention that no appeal from the order
of the Industrial Tribunal lay to the Labour Appellate
Tribunal under s. 7 of the Industrial Disputes (Appellate
Tribunal) Act, 1950. He contended that the said order was
not a “decision” within the meaning of that expression in s.
7 and even assuming that it was so, the appeal neither
involved any substantial question of law nor was it a
decision in respect of any of the matters specified in sub-
s. (1)(b)
875
of that section. The answer of Shri P. K. Chatterjee on
behalf of the respondents was that the action of the
appellant in the matter of the termination of the services
of the respondents was punitive in character, that the
discharge of the respondents for which permission was sought
by the appellant was a punitive discharge, that such
discharge was by reason of the alleged misconduct of the
respondents falling within cl. 17(b)(viii) of the Standing
Orders and not within cl. 14(a) thereof and that the
substantial question of law which arose in the appeal was
whether the appellant could be allowed to adopt the
expedient of terminating the services of the respondents,
without going through the procedure of submitting a charge-
sheet to the respondents and holding a proper enquiry in the
matter of those charges, by merely giving notice for the
requisite period or payment of salary in lieu of notice and
thus resorting to el. 14(a) of the Standing Orders instead
of cl. 17(b)(viii) of the same. The other answer made by
Shri P. K. Chatterjee was that having regard to the
definition of the term “retrenchment” to be found in s.
2(oo) of the Act the discharge of the respondents by the
appellant really amounted to retrenchment and retrenchment
being one of the matters specified in sub-s. (1)(b) of s. 7
of the Industrial Disputes (Appellate Tribunal) Act, 1950,
the respondents had a right of appeal to the Labour
Appellate Tribunal.
It is necessary, therefore, to appreciate what was sought to
be done by the appellant when it made the application before
the Industrial Tribunal on December 6, 1952. This
application has been described by the Labour Appellate
Tribunal as an application for amendment of the original
application which had been filed by the appellant on
November 21, 1952, for permission to dismiss the respondents
from its employ as per el. 17(b)(viii) of the Standing
Orders. It must be noted, however, that what the appellant
purported to do by its application of December 6, 1952, was,
in effect, to substitute another application asking for
permission to discharge the respondents from its
111
876
employ under el. 14(a) of the Standing Orders, thus
abandoning the relief which it had prayed for in the
original application. The application dated December 6,
1952, was thus, in substance, a new application made by the
appellant to the Industrial Tribunal, no doubt relying upon
the facts and circumstances which were set out in the
original application but asking for the permission of the
Industrial Tribunal to discharge the respondents from its
employ under cl. 14(a) of the Standing Orders instead of
dismissing them from its employ under el. 17(b)(viii)
thereof. We do not see how it was not competent to the
Industrial Tribunal to allow the appellant to do so. If the
appellant bad been actuated by any oblique motives and
wanted to evade the consequences of its not having held a
proper enquiry, after submitting a charge-sheet to the
respondents one could have understood the criticism made by
the Labour Appellate Tribunal in regard to the same. The
Industrial Tribunal, however, expressly recorded the finding
that the application for leave to discharge the respondents
from its employ was bona fide and what the appellant did by
making the application dated December 6, 1952, was actuated
by an honest motive of exercising its right to discharge the
respondents under el. 14(a) of the Standing Orders instead
of visiting upon the respondents the penalty of dismissing
them from its employ under el. 17(b)(viii) thereof. The
discharge of the respondents was a discharge simpliciter in
exercise of the rights of the employer under el. 14(a) of
the Standing Orders and was not a punitive discharge under
el. 17(b)(viii) thereof and if it was merely a discharge
simpliciter, then, no objection could be taken to the same
and the appellant would be well within its rights to do so,
provided, however, that it was not arbitrary or apricious
but was bona fide. The only question relevant to be
considered by the Industrial Tribunal would be that in
taking the step which it did the appellant was not guilty of
any unfair labour practice or victimization. If the
Industrial Tribunal did not come to a conclusion adverse to
the appellant on these counts, it would have no jurisdiction
to refuse,
877
‘the permission asked for by the appellant. Once the
Industrial Tribunal was of opinion that the application
dated December 6, 1952, and the discharge of the respondents
for which . the permission of the Industrial Tribunal was
sought were in the honest exercise of the appellant’s
rights, no question of law, much less a substantial question
of law could arise in the appeal filed by the respondents
against the decision of the Industrial Tribunal and the
Labour Appellate Tribunal was clearly in error when it
entertained the appeal.
In view of the above finding, we do not propose to deal with
the contention that the order passed by the Industrial
Tribunal under s. 33 of the Act is not a “decision” within
the meaning of that term in s. 7 of the Industrial Disputes
(Appellate Tribunal) Act, 1950.
The argument that the discharge of the respondents though
patently it was a discharge simpliciter was, in substance,
retrenchment within the meaning of the definition contained
in s. 2(oo) of the Act is equally untenable, for the simple
reason that the term “retrenchment” was for the first time
defined in the manner in which it has been done by an
Ordinance promulgated in October 1953 which was followed by
Act 43 of 1953 which was published in the Gazette of India
on December 23, 1953. The Industrial Tribunal made its
order granting the permission under s. 33 of the Act on May
14, 1953, so that, this definition of the term
“retrenchment” could not apply to the facts of the present
case. If, therefore, at the relevant period the discharge
simpliciter could not be deemed to be retrenchment of the
respondents by the appellant, the decision of the Industrial
Tribunal could not be said to be one in respect of any of
the matters specified in sub-s. (1)(b) of s. 7 of the
Industrial Disputes (Appellate Tribunal) Act, 1950. In that
view also no appeal could lie from the decision of the
Industrial Tribunal to the Labour Appellate Tribunal. It
must be observed that neither of these two points was taken
by the respondents either in the proceedings before the
Industrial Tribunal or the Labour
878
Appellate Tribunal nor was either of them mentioned in the
statement of case filed by the respondents in this Court.
They were taken for the first time in the arguments advanced
before us by Shri P. K. Chatterjee. We have, however, dealt
with the same because we thought that we should not deprive
tile respondents of the benefit of any argument which could
possibly be advanced in their favour.
We are, therefore, of opinion that no appeal lay from the
decision of the Industrial Tribunal to the Labour Appellate
Tribunal, that the Labour Appellate Tribunal had no
jurisdiction to interfere with the order made by the
Industrial Tribunal granting the appellant permission to
discharge the respondents under s. 33 of the Act and that
the decision of the Labour Appellate Tribunal is liable to
be set aside.
We accordingly allow the appeal, set aside the decision of
the Labour Appellate Tribunal and restore the order made by
the Industrial Tribunal, Bihar, on date May 14, 1953. The
appellant will be entitled to its costs of this appeal from
the respondents.
Appeal allowed.