Case: D. C. Roy Vs. The Presiding Officer, Madhya Pradesh Industrial Court,Indo

The observations extracted earlier from the judgment of a 3-Judge Bench in Hotel Imperials case (p. 487 of the Report), on which the appellant relied strongly prima facie support the appellants contention that if an inquiry is found to be defective, the employer can make good the defect by producing the necessary evidence before the Labour Court but that in such a case he will have to pay wages up to date of the decision of the Labour Court even if that decision went in his favour. The particular observations purport to summarize what was decided by the same Bench a fortnight earlier in Phubari Tea Estate v. Its Workmen(1). Learned counsel for the respondent took us closely through the judgment in Phulbari Tea Estate but we are unable to find anything in that judgment showing t hat whenever there is a defect in a Domestic inquiry, the employer would have to pay wages up to the date of the award of the Labour Court or the Industrial Tribunal even if the order passed in the Domestic inquiry was ultimately upheld by the Lab our Court or the Tribunal. In Phulbari Tea Estate (supra), the domestic inquiry was in gross violation of the fundamental principles of natural justice and was therefore vitiated. The employers did not lead proper evidence before the Tribunal to justify the order of dismissal and were content merely to produce before the Tribunal the statements which were recorded during the inquiry. The employee therefore had no opportunity to cross-examine the witnesses before the Tribunal. Since the inquiry was bad and the Tribunal had no evidence before it to sustain the order of dismissal it set aside that order but held that in the peculiar circumstances of the case, the employee may be granted the alternative relief of compensation instead of an order of reinstatement. The Tribunal accordingly granted to the employee pay and allowance from the date of his suspension till payment. The award of the Tribunal was upheld is appeal by this Court.It shall have been seen that in the case of Phulbari Tea Estate (supra) the employers made no attempt to make good the defect in the inquiry by producing necessary evidence before the Tribunal and by affording an opportunity to the employee to cross-examine their witnesses. "This left the matters where they were", as observed by Wanchoo J. who spoke on behalf of the Court, with the result that the Tribunal which found that the inquiry was vitiated had no evidence before it to examine the legality and propriety of the order of dismissal. In the instant case, the Domestic inquiry was held to be in violation of the principles of natural justice but the employer led evidence before the Labour Court in support of the order of dismissal and on a fresh appraisal of that evidence, the Labour Court found that the order of dismissal was justified. The ratio of P. H. Kalyanis case would therefore govern the case and the judgment of the Labour Court must relate back to the date on which the order of dismissal was passed.9. With great respect, the ratio of Phulbari Tea Estate is not stated correctly in the particular passage at page 487 of the Report in the case of Hotel Imperial. That passage is partly a reproduction in substance of w hat is said in Phulbari Tea Estate at page 38 of the Report but the last clause of the passage following the semi-colon is an addition not borne out by the judgment in Phulbari Tea Estate.10. Counsel for the appellant also relied on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan &Ors.(1) but that case is clearly distinguishable. As pointed out by this Court in P. H. Kalyanis case, Sasa Musa was a case where an application had been made under section 33(1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed. The case for dismissal of the employees was made out for the first time in the proceedings under section 33(1) and it was for that reason that it was held that the employees were entitled to back wages until the decision of the application filed under section 33. Commenting on the decision in Sasa Musa, this Court observed in P. H. Kalyanis case that the matter would have been different if in Sasa Musa, an inquiry had been held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under section 33(1) for permission to dismiss the employees. "In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under section 33(1)." (page 113).The second contention must also therefore fail. We would, however, like to add that the decision in P. H. Kalyanis case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non-est. On appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyanis case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the relation-back doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof.11.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Counsel for the appellant also relied on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan &Ors.(1) but that case is clearly distinguishable. As pointed out by this Court in P. H. Kalyanis case, Sasa Musa was a case where an application had been made under section 33(1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed. The case for dismissal of the employees was made out for the first time in the proceedings under section 33(1) and it was for that reason that it was held that the employees were entitled to back wages until the decision of the application filed under section 33. Commenting on the decision in Sasa Musa, this Court observed in P. H. Kalyanis case that the matter would have been different if in Sasa Musa, an inquiry had been held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under section 33(1) for permission to dismiss the employees. "In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under section 33(1)." (page 113).The second contention must also therefore fail. We would, however, like to add that the decision in P. H. Kalyanis case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non-est. On appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyanis case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the relation-back doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof.