GAJENDRAGADKAR, J. - (1.) WAS the appeal preferred by the respondents before the Labour Appellate Tribunal against the award passed by the industrial tribunal competent under S. 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act, 1950 (Act 58 of 1950) (hereinafter called the Act) ? That is the only question which arises for our decision in the present appeal. The appeal has been filed by the State Bank of India (hereinafter called the appellant) against its workmen and Mr. D. C. Ghosh (hereinafter called respondents 1 and 2) and it arises from an industrial dispute in regard to the termination of the services of respondent 2 which was ordered by the appellant on 28 May, 1952. Respondent 2 was appointed a temporary cashier by the appellant in January, 1949. After he had held several temporary appointments he was transferred to Burdwan branch of the appellant and was there appointed as a probationer in a permanent vacancy of money-tester in the cash department. It appears that as a result of the decision taken by various banks at Calcutta and Bombay the appellant reverted to its original working honor which had been disturbed by the award of the All India Industrial Tribunal (Bank Disputes) and in consequence the appellant's employees wore required to work on Saturdays from 10 a.m. to 2 p.m. instead of 1-30 p.m. with effect from 5 November, 1951. The employees at Burdwan branch, however, deliberately began to flout the said order and used to stop work on Saturdays at 1-30 p.m. On 12 November 1951, the agent of the Burdwan branch issued an office order permitting the employees to leave the bank at 1-30 p.m. in case they had finished their daily work before that time. He, however, warned the staff that if any employee left the office at 1-30 p.m. without finishing his work the same should be reported to him.On 29 December 1951, which was a Saturday there was a great rush in the bank, and at about 12 noon when the counters were closed nearly 50 persons, whose bills had not been accepted by the bank, still remained to be attended to. As a result the Additional District Magistrate and other heads of the Government Department requested the bank to accept the bills of the said persons as a special case, and the said request was accepted by the agent of the branch who passed orders accordingly. Even so, the employees left the bank at 1-30 p.m. without completing the work. Amongst them was respondent 2.
(2.) ON 31 December 1951, the agent called for an explanation from all the employees including respondent 2. Respondent 2 then offered his explanation. On 3 April 1952 another notice was issued on respondent 2 calling upon him to show cause why disciplinary action should not be taken against him. Three charges were specified in the notice, that he had left the bank before the close of the scheduled working hours without permission and without completing his day's work, that he had made a false statement in his explanation that he had left the bank at 2 p.m. and that his action in leaving the bank without handing over proper charge of the cash showed a lack of a sense of responsibility which rendered him unfit for the post which he held. Respondent 2 thereupon sent another reply. Then followed an enquiry held by the officer in charge of the staff section of the Calcutta local head office of the appellant. An opportunity was given to the respondent 2 to defend himself. The enquiry officer held that all the three charges had been proved against respondent 2. In consequence, on 28 May, 1952, an order was issued by the agent of the Burdwan branch whereby the employment of respondent 2 as a probationer was terminated. This order has given rise to the present industrial dispute between the appellant and respondents 1 and 2, and it was referred for adjudication to the industrial tribunal by the Government of India on 21 April, 1954. The question referred to the tribunal was whether the termination of, service of respondent 2 was justified, and if not, what relief should be granted to him.The tribunal found that since respondent 2 was a probationer he was not a permanent employee and as such the termination of his services did not constitute any change in the conditions of service specified by S.33 of the Industrial Disputes Act, 1947. That is why it held that the said section had not been contravened by the appellant in terminating the services of respondent 2. It also held that even if it is assumed that S. 33 had been contravened by the appellant, on the merits the enquiry held by the appellant against respondent 2 was a fair enquiry, and that the findings reached by the enquiry officer in the said enquiry could not be said to be perverse. It was also not satisfied that the appellant had shown any discrimination in singling out the case of respondent 2 and that the conduct of the appellant did not amount to an unfair labour practice. On these findings the tribunal held that respondent 2 was not entitled to any relief. Against this decision of the tribunal the respondents preferred an appeal before the Labour Appellate Tribunal. It appears that various points of law were argued before the Appellate Tribunal; and it answered the said points in favour of the respondents. According to the Appellate Tribunal the termination of respondent 2's services amounted to a breach of S. 33. The Appellate Tribunal was satisfied that in dealing with the merits of the dispute the tribunal had erroneously placed the onus on the respondents, and it felt no doubt that in terminating the services of respondent 2 the appellant was actuated by ulterior motives and that the said termination amounted to an unfair practice and victimisation. As a result of these findings the appeal preferred by the respondents was allowed and the appellant was directed to reinstate respondent 2 and to restore him to his old post. It is against this order that the appellant has come to this Court by special leave, and the only point which has been raised on its behalf by Mr. B. Sen is that in entertaining the appeal preferred before it by the respondents the Labour Appellate Tribunal has exceeded its jurisdiction under S.7 of the Act. It is common ground that the appeal before the Labour Appellate Tribunal would be competent under S. 7(1)(a) only if it involved any substantial question of law. So what we have to decide in the present appeal is : Did any substantial question of law arise in the respondents' appeal before the Labour Appellate Tribunal ?It may be relevant to point out that this contention was not raised before the Labour Appellate Tribunal. It is desirable that whenever a party to the appeal before the Labour Appellate Tribunal wants to take an objection on the ground of incompetence of the appeal, the objection should be taken before the Labour Appellate Tribunal itself. It is not fair that the Labour Appellate Tribunal should not be called upon to decide this point, and an attempt should be made to obtain the decision of the said Tribunal on the merits and when it is discovered that the decision has gone against, the party should think of raising the point of jurisdiction before this Court in its appeal under Art. 136 of the Constitution. However, we have not precluded Mr. Sen from raising this contention before us because the contention is one of law, and for its decision no more evidence is required.
(3.) MR . Sen argues that the findings made by the industrial tribunal were alternative. It had held that S. 33 had not been contravened; and even if it was, on the merits it had found that the order of discharge was not shown to be unreasonable. We are not impressed by this argument. There is no doubt that as the appeal was presented before the Labour Appellate Tribunal the first question which it raised was whether S.33 of the Industrial Disputes Act had been contravened, and it is common ground that if this question arose for the decision of the Labour Appellate Tribunal it cannot be said that a substantial question of law did not arise. It is clear that the merits had to be considered whatever decision was reached by the tribunal on the first preliminary issue about the breach of S. 33. Now, even in regard to the merits there is another question of law which arises and that is one of onus. Mr. Sen contends that even if S. 33 has been contravened it does not follow that the employer has to take the onus of proving to the satisfaction of the tribunal that the order of respondent's; discharge was justified. According to Mr. Sen, even on if S. 33 is contravened, the principles laid down by this Court in Indian Iron & Steel Company, Ltd. and another v. Their workmen [1958 - I L.L.J. 260] will apply, if the employer has held a proper enquiry after framing charges against the employee and in the said enquiry findings have been recorded against the employee; in such a case it is suggested that it is only if there is want of good faith or there is victimization or unfair labour practice or when the management has been guilty of basic error of violation of the principles of natural justice or when the findings in question are perverse that the tribunal can interfere.On the other hand, it is argued that if S. 33 is contravened by the employer then the enquiry held by him would serve no useful purpose. The tribunal would then have to be satisfied about the merits of the employer's contention that the termination of the employee's services is justified. The argument is that it is only if a proper enquiry has resulted in a legal order of termination that the principles applicable to domestic tribunals and their business can be legitimately invoked by the employer. Where, as in the present case, the order of discharge contravenes S. 33, the enquiry which preceded such an order can have no validity and, when an industrial dispute arises in respect of such an illegal discharge or dismissal, the whole question is open before the tribunal which must deal with its merits and satisfy itself about the employer's contention that the employee deserves to be discharged or dismissed.;