GAJENDRAGADKAR, J. - (1.) THIS appeal by special leave has been filed by the appellant, Upper Ganges Valley Electricity Supply Company, Ltd., against the order passed by the Labour Appellate Tribunal directing the appellant to reinstate its employee Srivastava whom it had dismissed on 12 March, 1956. This order was passed on an application made by the employee under S.23 of the Industrial Disputes (Appellate Tribunal) Act, 1950. The principal ground on which his dismissal was challenged by the employee was that when the order of dismissal was passed by the appellant industrial dispute were pending between the appellant and its employees and with those disputes the present employee was concerned. Since the said disputes were pending before the Labour Appellate Tribunal, S.22 of the Industrial Disputes (Appellate Tribunal) Act came into ply and its contravention gave a right to the employee to make an application under S.23 of the said Act. In substance the Labour Appellate Tribunal has upheld this plea. It has then examined the merits of the order of dismissal and has come to the conclusion that the dismissal amounts to victimization of the employee. It is not in dispute that if the appellant is able to show that S. 22 had not been contravened, then the application under S. 23 made by the employee would be incompetent and there would be incompetent and there would be no jurisdiction for the Labour Appellate Tribunal to consider the merits and the propriety of the order of dismissal. That is show the narrow point which has been urged before us by Mr. Andley, for the appellant, is that the Labour Appellate Tribunal was in error in coming to the conclusion that S. 22 has been contravened by the appellant when it dismissed the employee on 12 March 1956.
(2.) THOUGH the point thus raised lies within a very narrow compass, it may be relevant to mention some of the facts leading to the present application. The respondent Srivastava was appointed by the appellant as mains foreman on 20 April, 1950. On 13 November, 1954 he was ordered by the resident engineer of the appellant to complete certain works but he failed to carry out the order. That led to a chargesheet which was served on the employee on 6 December, 1954. He then gave an explanation in writing on 11 December, 1954. It appears that on 8 December, 1954 he was asked by the appellant to report for duty at Hassanpur. He did not comply with this order on the ground that he was ill. The appellant then directed a doctor to examine him but he refused to submit to medical examination. Thereupon another chargesheet was served on him on 13 December, 1954. This followed by some other acts alleged to amount to in-subordination and notices were served on him in respect of those acts. On 13 December, 1954 he was suspended pending an enquiry. On 5 January, 1955 the resident engineer who held the enquiry passed orders holding that both the charges had been proved against the employee. This was followed by other charges which were also found proved. On 10 September, 1955 the appellant made a composite application under S.22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, to the Labour Appellate Tribunal, Lucknow, for permission to dismiss the respondent. On 8 March, 1956, permission was granted to the appellant ex parte, and the appellant accordingly dismissed the respondent on 12 March, 1956. On 25 April, 1956 the employee applied to have that ex parte permission set aside; and the said permission was in fact set aside. It is under these circumstances that on 15 June, 1956 the employee made the present application and the whole argument urged by him before the Labour Appellate Tribunal was that his dismissal on 12 March, 1956 contravened S. 22. The application made by the employee alleged in Para. 21 that certain appeals were pending before the Labour Appellate Tribunal, and in that connexion reference was made to Appeals Nos. 212 of 1953, 216 of 1955 and 416A of 1954. The said paragraph also refers to Appeals Nos. 531 of 1953 and 320 of 1954. The appellant did not contest these allegations before the Labour Appellate Tribunal and merely argued the matter on the merits. It appears that the Appellate Tribunal has found that Appeal No. III-290 of 1954, by reference to which arguments appear to have been urged before it, had been disposed of on 23 January, 1956 so that it is clear that so far as the said appeal is concerned, it was finally disposed of before the order of dismissal was passed, and so it could not be said that S. 22 had been contravened by the appellant by reference to the said appeal.When this appeal was argued before us last, the learned advocates appearing on both sides were unable to assist us, because there was no material on the record to show when the other appeals referred to by the respondent in Para. 21 had been disposed of. Therefore we adjourned the hearing of the case until today and Mr. Andley, for the appellant, has placed before us the relevant material at today's hearing. Now, it appears that Appeal No. 212 of 1953 was disposed of on 30 October, 1953, Appeal No. 416 of 1954 which has been found by the Labour Appellate Tribunal itself has been disposed of before and the employee in question was not concerned with it. Appeal No. 531 of 1953 and Appeal No. 320 of 1954 were disposed on 17 and 23 January, 1956 respectively. It would thus be clear that except for Appeal No. 216 of 1955 all the other appeals had been disposed of before 12 March, 1956. Now, in regard to Appeals No. 216 of 1955 which was disposed of on 30 April 1956 the respondent was not a concerned workman at all because the dispute there referred for adjudication was whether the employers should be required to grant annual increment to M. K. Varshney from 1 December, 1953. It was an individual dispute in respect of one employee and so the present respondent could not be said to be concerned with that dispute. Mr. Janardhan Sharma, for the respondent, attempted to suggest that though Appeal No. 212 of 1953 was disposed of in October 1953 a writ petition was taken to the High Court and the proceedings in that sense continued. But these facts have not been averred in the application made by the workman and we cannot allow any new facts to be pleaded at this stage of the hearing of the appeal.
(3.) IT appears that the judgment under appeal shows that the main argument urged before the Labour Appellate Tribunal was whether an ex parte order passed validity set aside and validity reviewed but that question appears to us to be academic in view of the fact that on the date when the appellant dismissed the respondent the relevant appeals had been disposed of and S. 22, therefore, ceased to be applicable. Under these circumstances, we do not think that the Labour Appellate Tribunal was justified in going on the merits of the dispute. The result is the ground made by the respondent in support of his application under S. 23 is not established and so it cannot be said that his dismissal contravened S. 22.The result is the appeal is allowed and the order passed by the Labour Appellate Tribunal is set aide. There will be no order as to costs.;