The Labour Court has jurisdiction to examine the substance of a discharge order, even if it is termed as a discharge simpliciter, to determine if it amounts to dismissal in substance.

Judgement

GAJENDRAGADKAR, J. : Mr. R. K. Banerjee had been employed by the appellant, the Tata Oil Mills Co. Ltd. as a salesman on the 3rd April, 1956, as a probationer and he was confirmed on the 5th November, 1956. On the 5th of December 1959, his services were terminated and he was informed that the appellant had lost confidence in him, and so, it has decided to discharge him. Accordingly, in lieu of notice, he was paid a month s salary and was told that he ceased to be the employee of the appellant as from the date next (after he received the order from the appellant). The discharge of Mr. Banerjee was resented by the Union of which he belonged and the Union took up his case. Since the dispute could not be settled amicably, the Union succeeded in persuading the Government of West Bengal to refer the dispute for adjudication to the second Labour Court on the ground that the said discharge was not justified. That is how the discharge of Mr. Banerjee became an industrial dispute between the appellant and the respondents, its workmen represented by their Union. The Labour Court which tried the dispute came to the conclusion that the appellant had failed to justify the discharge of Mr. Bajerjee and so, it has directed the appellant to reinstate him and pay him full emoluments from the date of his discharge up to the date of his reinstatement. It is this order which is challenged by the appellant by its present appeal brought to this Court by special leave.

2. The material facts leading to the termination of Mr. Banerjee s services lie within a very narrow compass. In November, 1959 Mr. Banerjee was working in the Assam area and as such, had to work as a Salesman at Dhubri, Bongaigoan, Rangia and Tejpur. The appellant expected that as its Salesman Mr. Banerjee should visit dealers in his area and carry on intelligent and intensive propaganda to popularise the state of the appellant s products. The appellant has a Sales Office in Calcutta and the manager of the said office visits the areas within his jurisdiction to inspect the work of Salesman. Accordingly, Mr. Gupta who was then the manager of the Calcutta Office visited the area assigned to Mr. Banerjee, in the last week of October. He found that Mr. Banerjee was not working satisfactorily as a salesman. In particular, he noticed that whereas Mr. Banerkee had reported to the Office that the Bongaigoan Stockists had 20 boxes of dried up and deshaped 501 Special Soap which could not be distributed in the market, he had in fact not opened a single box and had not cared to satisfy himself that the soap had either dried up or had been deshaped. In fact, Mr. Gupta found that the boxes were intact and he opened them and discovered that five boxes contained soap which had dried up and had become deshaped, whereas the 15 other boxes were in good condition. Thereupon, Mr. Gupta made a report to the zonal Manager on the 2nd November, 1959 adversely commenting on Mr. Banerjee s work. The said report was in due course forwarded to the Head Office in Bombay. The Head Office then instructed the Calcutta Sales Office by telephone to send for Mr. Banerjee and call for his explanation. Accordingly, Mr. Banerjee was sent for and his explanation taken; Mr. Gupta then made another report expressing his dissatisfaction with the explanation given by Mr. Banerjee. The report was sent on the 24th November, 1959. The Head Office accepted this report and on the 5th December, 1959, issued to Mr. Banerjee the order terminating his services. That, in brief, is the case set out by the appellant in support of the action taken by it against Mr. Banerjee.

3. The appellant had alleged that the termination of Mr. Banerjee s services was not dismissal but was a discharge simpliciter, and according to it, this discharge was justified by the terms of contract between the appellant and Mr. Banerjee as embodied in R. 40 (1) to the Service Rules of the appellant. The appellant, therefore, urged that the Labour Court had