Ch. Satyanarayana Rao Vs. Chairman, Industrial Tribunal-cum-labour Court, Godavarikhani and Another - Court Judgment

Excerpt:
service - termination - section 11 a of industrial disputes act, 1947 - whether delinquent employer entitled to back wages from date of termination of services by employer as disciplinary measure till date of award by industrial tribunal - on appraisal of evidence adduced employer justified in his action - order of punishment would be operative from date when it was made by employer and not from date made by tribunal - held, employees not entitled to wages. - - the contention of the appellant therefore that dismissal in this case should take effect from the date from which the labour court's award came into operation must fail'.10. in gujaratsteel tubes limited case (supra), the kalyani case (supra) as welt as the d. the jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still-born or void and all that is needed in the law to make it good is a subsequent approval by a tribunal which is granted, cannot be obfuscated.orderm.h. ansari, j.1. the matter has been listed before this court on a reference madeby a learned single judge. the reference reads as under:'an important question of law of general importance arises for consideration in this writ petition. the question is whether a delinquent employee is entitled to the back wages from the date of termination of his services by the employer as a disciplinary measure till the date of the award of the industrial court, in the event of the industrial court holding that the department/domestic inquiry held by the disciplinary authority was illegal or irregular, but, holding that the mis-conduct alleged against the delinquent is proved on the basis of the evidence led before it. there are certain decisions of the supreme court p.h. kalyani v. m/s. air france, calcutta, : (1963)illj679sc , d.c.roy v. presiding officer, : [1976]3scr801 , gujarat steel tubes limited v. its mazdoor sabha, : (1980)illj137sc , desh raj giiplav. industrial tribunal iv, lucknow, : (1991)illj120sc , rambahu vyankuji kheragade v. maharashtra road transport corporation, 1995 supp (4) scc 157, to cite the few which have bearing on the question. certain contrary observations '' opposite to each other' made in these judgments arc required to be reconciled'.2. the reference, as can be noticed, has not set out explicitly the certain contrary observations, 'opposite to each other' made in the judgments cited.3. sri h. srinivas rao, learned counsel for the petitioner, sri ghulam ahmed, learned government pleader for social welfare and labour and smt. a. vijayanti, learned counsel for the respondents, however, have assisted this court admirably.4. it was the submission of the learned counsel for the parties that the point involved for decision by this court in the above reference is with regard to the ratio of the constitution bench of the supreme court in p.h. kalyani v. m/s. air france, calcutta, : (1963)illj679sc , and the contraobservations made in three judge bench judgment in gujarat steel tubes limited v. its mazdoor sabha, : (1980)illj137sc .5. the decision in d.c.roy v. presiding officer, : [1976]3scr801 , followed the judgment in p.h. kalyani's case (supra). the decision in d.c. roy (supra) is by a two judge bench to which krishna iyer, j, is a party.6. the other two judgments, cited in the reference supra are later decisions of the supreme court in desh raj gupta v. industrial tribunal iv, lucknow, : (1991)illj120sc and rambahu vyankuji kheragade v. maharashtra road transport corporation, 1995 supp (4) scc 157 = 1996 scc (l&s;) 173.7. in desh raj gupta's case (supra), the observations in gujarat steel tubes limited, (supra) were relied upon for taking a different view without any reference to either p. h. kalyani's case (supra) or d. c. roy's case (supra).8. in rambahu vyankuji kheragade's case (supra), however, p.h. kalyani's and d. c. roy's cases were followed.9. in p.h. kalyani's case (supra), it was held that in a case where the inquiry was found to be defective by the labour court and the labour court then came to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, the order of dismissal made by the employer in a defective inquiry would still relate to the date when that order was made and not from the date of the order of the labour court. it will be useful to extract the ratio of the judgment in p.h. kalyani's case, which reads as under:'..... if the inquiry is defective for any reason, the labour court would also have to consider for itself on the evidence adduced before it whether the dismissalwas justified. however, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made .....in the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. the respondent had however to justify the order of dismissal before the labour court in view of the defect in the inquiry. it has succeeded in doing so and therefore the approval of the labour court will relate back to the date on which the respondent passed the order of dismissal. the contention of the appellant therefore that dismissal in this case should take effect from the date from which the labour court's award came into operation must fail'.10. in gujaratsteel tubes limited case (supra), the kalyani case (supra) as welt as the d.c.roy's case (supra) were specifically referred to krishna iyer j, speaking for the three judge bench, observed as under:'kalyani, : (1963)illj679sc - was cited to support the view of relation back of the award to the date of the employer's termination orders. we do not agree that the ratio of kalycmi corroborates the proposition propounded. jurisprudentially, approval, is not creative but confirmatory and therefore relates back. a void dismissal is just void and does not exist. if the tribunal, for the first time, passes an order recording a finding of misconduct and thus breathes life into the dead shell of the management's order, predating of the nativity does not arise. the reference to sasa musa sugar works private limited v. shobmti khan, : (1959)iillj388sc , in kalyani enlightens this position. the latter case of d. c.roy v. presiding officer, m.p. industrial court, : [1976]3scr801 - specifically refers to kalyani case and sasa musa case and holds that where the management discharges a workman by an order which is void for want of an enquiry or for blatant violation of rules of natural justice the relation back doctrine cannot be invoked. the jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still-born or void and all that is needed in the law to make it good is a subsequent approval by a tribunal which is granted, cannot be obfuscated. we agree that the law stated in d.c. roy is correct but now that the termination orders are being set aside, the problem does not present itself directly'. 11. we are, however, spared of the necessity to reconcile the observations in the two judgments i.e., the kalyani's case (supra), decided by the constitution bench and the three judge bench judgment in gujaratsteel tubes limited (supra) which appeared to strike an apparently discordant note, for the reason that, in a recent judgment of the supreme court in r. thiruvirkolam v. presiding officer, : (1997)illj400sc , the apparent controversy has been resolved by a two judge bench of the supreme court.12. in r, thiruvirkolam's case (supra), the very point for consideration was with reference to the observations, extracted above, made in gujarat steel tubes limited (supra) which appear to be contrary to the decision in the p.h. kalyani's case (supra). the supreme court considered the various judgments of the supreme court which have either followed or referred to the aforesaid two judgments in p.h. kalyani or gujarat steel tubes limited and held that the observations to the contrary in gujarat steel tubes case are per incuriam and not binding.13. it was further observed that the decision in desk raj gupta (supra) wherein the observations in gujarat steel tubes (supra)were relied upon for taking a different view without any reference to either kalyani or o.c.roy's case cannot be treated as binding authority.14. in r. thiruvirkolam's case, the only question for consideration was whether the dismissal will take effect from the date of the order of the labour court or it would relate back to the date of the order of dismissal passed by the employer. in that case, the labour court found the domestic inquiry pursuant to which the employee was dismissed from service to be defective. however, on the basis of the evidence adduced before the labour court, it came to the conclusion that the punishment imposed was justified and the mis-conduct was duly proved. the supreme court held that the said point involved for decision is concluded by the constitution bench decision of the supreme court in kalyani's case and that the order of punishment operated from the date it was made by the employer and not from the date of the labour court's award.15. respectfully following the judgment of the supreme court in r thiruvirkolam's case (supra), the reference in the instant case has to be answered in terms of the ratio in kalyani's case. we answer the reference as under:the order of punishment would be operative from the date when it was made by the employer and not from the date of the industrial court award even in the event of the industrial court holding that the departmental/domestic enquiry held by the disciplinary authority was illegal or irregular, but holding that the misconduct was duly proved and the punishment imposed was justified on the basis of evidence led before it.16. reference answered accordingly. let the writ petition be placed before the court of learned single judge for appropriate orders on merits in the light of the above.

Judgment:
ORDER

M.H. Ansari, J.

1. The matter has been listed before this Court on a reference madeby a learned single Judge. The reference reads as under:

'An important question of law of general importance arises for consideration in this writ petition.

The question is whether a delinquent employee is entitled to the back wages from the date of termination of his services by the employer as a disciplinary measure till the date of the award of the Industrial Court, in the event of the Industrial Court holding that the department/domestic inquiry held by the Disciplinary Authority was illegal or irregular, but, holding that the mis-conduct alleged against the delinquent is proved on the basis of the evidence led before it. There are certain decisions of the Supreme Court P.H. Kalyani v. M/s. Air France, Calcutta, : (1963)ILLJ679SC , D.C.Roy v. Presiding Officer, : [1976]3SCR801 , Gujarat Steel Tubes Limited v. Its Mazdoor Sabha, : (1980)ILLJ137SC , Desh Raj Giiplav. Industrial Tribunal IV, Lucknow, : (1991)ILLJ120SC , Rambahu Vyankuji Kheragade v. Maharashtra Road Transport Corporation, 1995 Supp (4) SCC 157, to cite the few which have bearing on the question. Certain contrary observations '' opposite to each other' made in these judgments arc required to be reconciled'.

2. The reference, as can be noticed, has not set out explicitly the certain contrary observations, 'opposite to each other' made in the judgments cited.

3. Sri H. Srinivas Rao, learned Counsel for the petitioner, Sri Ghulam Ahmed, learned Government Pleader for Social Welfare and Labour and Smt. A. Vijayanti, learned Counsel for the respondents, however, have assisted this Court admirably.

4. It was the submission of the learned Counsel for the parties that the point involved for decision by this Court in the above reference is with regard to the ratio of the Constitution Bench of the Supreme Court in P.H. Kalyani v. M/s. Air France, Calcutta, : (1963)ILLJ679SC , and the contraobservations made in three Judge Bench Judgment in Gujarat Steel Tubes Limited v. Its Mazdoor Sabha, : (1980)ILLJ137SC .

5. The decision in D.C.Roy v. Presiding Officer, : [1976]3SCR801 , followed the judgment in P.H. Kalyani's case (supra). The decision in D.C. Roy (supra) is by a two Judge Bench to which Krishna Iyer, J, is a party.

6. The other two judgments, cited in the reference supra are later decisions of the Supreme Court in Desh Raj Gupta v. Industrial Tribunal IV, Lucknow, : (1991)ILLJ120SC and Rambahu Vyankuji Kheragade v. Maharashtra Road Transport Corporation, 1995 Supp (4) SCC 157 = 1996 SCC (L&S;) 173.

7. In Desh Raj Gupta's case (supra), the observations in Gujarat Steel Tubes Limited, (supra) were relied upon for taking a different view without any reference to either P. H. Kalyani's case (supra) or D. C. Roy's case (supra).

8. In Rambahu Vyankuji Kheragade's case (supra), however, P.H. Kalyani's and D. C. Roy's cases were followed.

9. In P.H. Kalyani's case (supra), it was held that in a case where the inquiry was found to be defective by the Labour Court and the Labour Court then came to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, the order of dismissal made by the employer in a defective inquiry would still relate to the date when that order was made and not from the date of the order of the Labour Court. It will be useful to extract the ratio of the judgment in P.H. Kalyani's case, which reads as under:

'..... If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissalwas justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made .....In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court's award came into operation must fail'.

10. In GujaratSteel Tubes Limited case (supra), the Kalyani case (supra) as welt as the D.C.Roy's case (supra) were specifically referred to Krishna Iyer J, speaking for the Three Judge Bench, observed as under:

'Kalyani, : (1963)ILLJ679SC - was cited to support the view of relation back of the award to the date of the employer's termination orders. We do not agree that the ratio of Kalycmi corroborates the proposition propounded. Jurisprudentially, approval, is not creative but confirmatory and therefore relates back. A void dismissal is just void and does not exist. If the Tribunal, for the first time, passes an order recording a finding of misconduct and thus breathes life into the dead shell of the Management's order, predating of the nativity does not arise. The reference to Sasa Musa Sugar Works Private Limited v. Shobmti Khan, : (1959)IILLJ388SC , in Kalyani enlightens this position. The latter case of D. C.Roy v. Presiding Officer, M.P. Industrial Court, : [1976]3SCR801 - specifically refers to Kalyani case and Sasa Musa case and holds that where the Management discharges a workman by an order which is void for want of an enquiry or for blatant violation of rules of natural justice the relation back doctrine cannot be invoked. The jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still-born or void and all that is needed in the law to make it good is a subsequent approval by a Tribunal which is granted, cannot be obfuscated.

We agree that the law stated in D.C. Roy is correct but now that the termination orders are being set aside, the problem does not present itself directly'.

11. We are, however, spared of the necessity to reconcile the observations in the two judgments i.e., the Kalyani's case (supra), decided by the Constitution Bench and the Three Judge Bench Judgment in GujaratSteel Tubes Limited (supra) which appeared to strike an apparently discordant note, for the reason that, in a recent judgment of the Supreme Court in R. Thiruvirkolam v. Presiding Officer, : (1997)ILLJ400SC , the apparent controversy has been resolved by a two Judge Bench of the Supreme Court.

12. In R, Thiruvirkolam's case (supra), the very point for consideration was with reference to the observations, extracted above, made in Gujarat Steel Tubes Limited (supra) which appear to be contrary to the decision in the P.H. Kalyani's case (supra). The Supreme Court considered the various judgments of the Supreme Court which have either followed or referred to the aforesaid two judgments in P.H. Kalyani or Gujarat Steel Tubes Limited and held that the observations to the contrary in Gujarat Steel Tubes case are per incuriam and not binding.

13. It was further observed that the decision in Desk Raj Gupta (supra) wherein the observations in Gujarat Steel Tubes (supra)were relied upon for taking a different view without any reference to either Kalyani or O.C.Roy's case cannot be treated as binding authority.

14. In R. Thiruvirkolam's case, the only question for consideration was whether the dismissal will take effect from the date of the order of the Labour Court or it would relate back to the date of the order of dismissal passed by the employer. In that case, the Labour Court found the domestic inquiry pursuant to which the employee was dismissed from service to be defective. However, on the basis of the evidence adduced before the Labour Court, it came to the conclusion that the punishment imposed was justified and the mis-conduct was duly proved. The Supreme Court held that the said point involved for decision is concluded by the Constitution Bench decision of the Supreme Court in Kalyani's case and that the order of punishment operated from the date it was made by the employer and not from the date of the Labour Court's award.

15. Respectfully following the judgment of the Supreme Court in R Thiruvirkolam's case (supra), the reference in the instant case has to be answered in terms of the ratio in Kalyani's case. We answer the reference as under:

The order of punishment would be operative from the date when it was made by the employer and not from the date of the Industrial Court Award even in the event of the Industrial Court holding that the departmental/domestic enquiry held by the Disciplinary Authority was illegal or irregular, but holding that the misconduct was duly proved and the punishment imposed was justified on the basis of evidence led before it.

16. Reference answered accordingly. Let the Writ Petition be placed before the Court of learned single Judge for appropriate orders on merits in the light of the above.