ENmNEERING LAGHU UDYOG EMPLOYEES' UNION A

THE JUDGE, LABOUR COURT AND

INDUSTRIAL TRIBUNAL AND ANR.

NOVEMBER 25, 2003

[V.N. KHARE CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]

Industrial Disputes Act, 1947 :

Ss. JO, II-A and 33-Workman-Misconduct by-Dismissal fiom C service-No domestic inqui1y held-Reference-Employer opted to lead evidence to prove the charges-Plea before Labour Court that terinination

was contrary to principles of natural justice as no domestic inquily was held-Labour Court found the charges proved and gave award against the worker-High Court holding that order of termination would relate back D to date of original order of termination-Held, employer has got a right to adduce evidence before Labour Court/Tribunal justifYing its action, even where no domestic inqui1y whatsoever has been held-Charges were proved beforf! the Labour Court-High Court was correct in holding that the order of termination would relate back to the date of original order- Observations made with regard to order of dismissal when made pursuant E to an employer taking recourse to unfair labour practice etc.-Principles of natural justice. .

P.H Kalyani v. Mis. Air France, Calcutta, (1964} 2 SCR 104, followed.

Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar Fact01y, (196513 SCR 588; Punjab Dai1y Development Corporation Ltd. and Another v. Kala Singh and Others, (1997) 6 SCC 159; R. Thiruvir Ko/am v. Presiding Officer, (1997J 1 SCC 9; irector, State Transport Punjab and Another v. Gurdev Singh and Another, (1998) 2 sec 159 and G Rambahu Vyankuji Kheragade v~ Maharashtra Road Transport Corporation,

(1995) Suppt 4 sq:: ~57; Workmen of Messrs Firestone Tyre & Rubber Company of India (P.) ltd. y. Management & Ors., (1973J 3 SCR 587 and Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Others, (2002 J sec 244, relied on.

A Gujarat Steel Tubes Ltd. '' Gujarat Steel Tubes Ma:::door Sabha, 119801 2 SCR 146 and Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani & Ors., 11997) 8 SCC 713, referred to.

S. JO-Order of Labour Court-Relating back to original order- B Discussed.

CIVIL APPELLATE JU.RISDICTION : Civil Appeal No. 1729 of 1998.

From the Judgment and Order dated 6.1.91 of the Rajasthan High C Cou11 in 0.8.S.A.W. No.1322 of 1996.

Y. Sandhu, Jitendra Singh Tanwar and Indra Makwana for the Appellant.

Bharat Sangal, Ms. Sangeeta Panicker and R.R. Kumar for the Respondents.

The Order of the Court was delivered :

One Smt. Rukma was an employee of Mis. Neeraj Tising Industry, E Ajmer. It appears that she committed certain misconduct as a result of

 which _her services were terminated by the employer on 20th December,

1989. The charge against the workman was that the Manager has entered into conspiracy to get her kidnapped through one Amar Singh by offering her Rs. I 0,000. Such an allegation was made against the Manager in front F of other workmen and on Manager's asking as to why she had been casting, such false allegations against him and despite his efforts to pacify her, she became violent and took off her chappal and threatened to beat him, but on intervention of some other workmen, she could not reach him. She despite the Manager's asking her to behave herself, continued to make G allegations against him in the most filthy language.

Having regard to the said misconduct as also her other past misconducts, the workman was dismissed from service. She did not even acknowledge the receipt of the order of dismissal as a result whereof the same had to be sent to her by registered post along with a covering letter in respect H threof. She even refused to accept the dues as admissible to her and the

same was sent by Money Order on 21.12.1989.

The appellant herein espoused the cause ofSmt. Rukma (workwoman).

As the conciliation proceedings failed, the matter was referred to the Labour Court under Section I 0 of the Industrial Disputes Act (for short 'the Act'). One of the issues framed before the Labour Court was whether B the order terminating the services of Smt. Rukma was contrary to the principles of natural justice as no domestic inquiry proceedings were held for the said purpose. Under such circumstances, the employer opted to lead evidence to prove the charges as a result of which the services of Smt.

Rukma were terminated. The Labour Court permitted the employer to lead C evidence. After examining the evidence adduced by the employer, the Labour Court found that the charges levelled against Smt. Rukma are proved. Consequently, the Labour Court gave its award on 19.2.1996 against the workman holding that the charges are proved. Aggrieved, the appellant who espoused the cause of the workman filed a petition under Article 226 of the Constitution before the Rajasthan High Court. A learned D Single Judge of the High Comt dismissed the writ petition A letters patent appeal filed by the appellant also met with the same fate. Aggrieved, the appellant is in appeal before us by way of special leave.

Learned senior counsel appearing for the appellant urged that the E view taken by the High Comt to the extent it held that the order of termination would relate back to the date of the original order of termination, is erroneous and relied upon a 3-Judge Bench decision ofth:s Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, [1980] 2 SCR 146 at page 215.

Having heard the matter, we are of the view that the said submission cannot be accepted as this question stands concluded by a Constitution Bench decision of this Court in P.H Kalyani v. Mis. Air France, Calcutta, [1964] 2 SCR 104. In P.H Kalyani's case (supra), it was held by the Constitution Bench that where a domestic inquiry is found defective and G the employer leads evidence before the Labour Cou1t and subsequently the Labuor Court gives its approval that the charges are proved, the order of termination would relate back to the date of original order of termination.

This decision was followed in Punjab Daily Development Corporation Ltd. and Another v. Kala Singh and Others, (1997] 6 sec 159 wherein it was H

SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. ., A said that the Constitution Bench decision in P.H Kalyani 's. case (supra)

and the decision in R. Thiruvir Kolam v. Presiding Officer, [1997] I SCC 9 have held that when Labour Court records a finding that the domestic inquiry was defective and opportunity was given to the management and the workman to adduce evidence and Labour Court upholds dismissal order B passed by the t'nanagement, the dismissal order would relate back to 'the

date of order of original dismissal and not from the date of award of the Labour Court. fo Vishweshwaraiah Iron & Steel Ltd. v.Abdul Gani &Ors., [1997] 3 SCC 713, this Comt however, observed that some•ofthe decisions rendered by this Court subsequent <o P.H. Kalyani's case (supra) require a relook as the sarrie are not in consonance with the Constitution Bench C decision. The same Bench in Director, State Transp01't.Punjab and Another

v. Gurdev Singh and Another, [l 998] 2 sec 159 held that where an order of termination is found defective having been passed contrary to the principles of natural justice and the employer before Labour Court has adduced evidenceto prove the charges and the tLabour Coutt comes to the .

D conclusion that the charges are proved, in such a situation the 'orde'r of dismissal will relate back to the original oraer of termination. In Rambahu Vyankuji Kheragade v. Maharashtra Road TransportCorporation, [1995] Suppl. (4) SCC 157, it was held that the effeetive date of dismissa1 after domestic inquiry ifLabour-Couit finds the inquiry to be unfair and as such E gives the employer ai1 1oppoitunity to prove the charge and finally upholds the.dismissal, will relate back tothe date Of original order. Thishas been the consistent view of this court.

Section 11 A of the Industrial Disputes Act, 194 7 (for short 'the Act') F confers a wide power upon the Labo1:.1r 'Court, Tribunal or the National Tribunal to give appropriate relief in case of discharge or dismissal of workmen. While adjudicating oh a reference made to it, the Labuor Court, Tribunal or the National Tribunal, as the case may be,•ifsatisfied thatthe order of discharge or dismissal'was not justified, it may, while setting aside the same, direct reinstate'rnent of the workman oh suchterms and conditions, G if any, as it thinks fit, or•give such otherlrelief to the workman 'including

the award of any lesserputiishmerit in I ieu of discharge or dismissal as the circumstances of the case may require. :Thus, only in a case where the satisfaction is reached by die Labuor Court' or tlie Tribunal, as the case may be, that an order of dismissal wasitot justtfled, :the 's'ainecan be set, as1de.

H So lcmg as the same is not set aside, it remains valid. But once whether

on the basis of the evidences .brought on record in the domestic inquiiy A or by reason of additional evidence the employer metkes out a case justifying the order ofdismissal, we fail to understand as to how such order -0f dismissal can be given effect to only from the date of the award and not from the date of passing of the order of punishment. The distinction :::ought to be made by this Court in some of the matter~ ir1cluding Gujarat B Steel Tubes (supra), in our opinion, is not based on a sound premise, particularly when the binding decisions of this Court in Motipur Sugar Factory's case (supra) and Workmen of Messrs Firestone Tyre & Rubb,_r Company of India (P.) Ltd. v. Management & Ors., (1973) 3 SCR 587, have not been taken note of.

In the present case, we find that the charges were proved before the Labour Court and, thus, the High Court was correct in holding that the order of termination would relate back to the date of original order. ·

Learned senior counsel then urged that P.H Kalyani 's case (supra) D is dissimilar as it was a case of defective inquiry. According to the learned senior counsel, there is a difference between a termination which is not followed by an inquiry and where inquiry is found to be defective on account of procedural breach.

E It is not in dispute that in a proceeding for obtaining approval of an order of dismissal from the Labour Court or the Industrial Tribunal, as the case may be, in terms of Section 33(2)(b) of ttie Act or where a rference has been made under Section 10 thereof, if it is found that an inquiry has been conducted in violation of the principles of natural justice, the employer is entitled to IJise the said question in its written statement by F way of preliminary issues and pray for grant of such an opportunity to prove the charges levelled against him.

In Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar Factory, [1965) 3 SCR 588, this Court held : G

"It is now well-settled by a number of decisions of this Court that where an employer has failed to make enquiry before dismissing or discharging a workmen it is open to him to justify the action before the tribunal by leading all relevant evidence H

before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held.

The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held (see B Indian Iron & Steel Co. v. Their Wol'kmen, [1958] SCR 667) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to Mis. Sasa Musa sugar Works (P) Limited v.

Shobrati Khan, [1959] Supp. SCR 836, Phulbari Tea Estate v. Its c

Workmen, [1960] I SCR 32 and the Punjab National Bank Limited v. Its Workmen, [1960] l SCR 806. These three cases were further considered by this Court in Bharat Sugar Mills Limited v. Shri Jai Singh, [1962] 3 SCR 684, and referepce was also made to the decision of the Labour Appellate Tribunal in Shti Ram Swarath Sinha v. Belaund Sugar Co., (1954) LAC 697. It was pointed out that "the import effect of commission to hold an enquiry was merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out." It is true that three of these cases, except Phulbari Tea Estate's case, were on applications under s. 33 of the Industrial Disputes Act, 1947. But in principle we se~ no difference whether the matter comes before the tribunal for approval under s. 33 or on a reference under s. I 0 of the Industrial Disputes Act, 194 7. In either case if the enquiry is defective or if no enquiry has been held as required by Standing orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's was on a reference under s. I 0, and the same principle was applied there also, the only difference being that in that case, thi::re was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or H discharge was proper."

....,.

The employer, thus, has got a right to adduce evidence before the A Tribunal justifying its action, even where no domestic inquiry whatsoever has been held.

Yet again in Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management & Ors., [1973] 3 SCR 587, this Court B while interpreting the provision ofSection I IA of the A1.t held that in terms thereof, the management need not necessarily rely on the materials on record as while introducing Section I IA of the Act, the Legislature must have been aware of the decisions of this Coutt which are operating in the field for long time. This Court enunciated several principles bearing on the C subject and, therefore, it held that ic was difficult to accept that the expression materials on record; used in the proviso to Section 11 A was set at naught. The Court formulated the propositions of law emerging from the decisions rendered by this Comt, the relevant portions whereof are as under: D "From those decisions, the following principles broadly emerge:

(I)

(2)

(3)

(4)

(5)

Even if no enquiry has been held by an employer of if the enquiry held by him is found to be defective, the Tribunal F in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra.

( 6) The Tribunal gets jurisdiction to consider the evidence

placed before it for the first time in justification of the action H

taken only, if no enquiry has been held or -after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognized that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

'(8) "

Even .in Firestone's case (supra), no distinction, thus, 'has been made

btween a defective 'inquiry and no inquiry.

•In Gujarat Steel Tubes Ltd. Case (supra), [ 1980] 2 SCR 146, Krishna Iyer, J. sought'to make a distinction between an approval which is required D to be made under Section 33 of the Act and a reference under Section I 0

thereof stating :

"Kalyani was cited to support the view of relation back of the Award to the date of the employer's termination orders. We do no agree that the ratio of Kalyani corroborates the proposition propounded. Jurisprudentially, approval is not creative but confirmatory and therefore relates back. A void dismissal j5 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 shall of the Management's order, predating of the nativity does not arise. The reference to Sasa Musa Kalyani 'enlightens this position. The latter case of D.C. Roy v. The Presiding Officer, Madhya Pradesh Industrial Court, Indore & Ors. (supra) specifically refers to Kalyani 's case and Sasa Musa 's case and holds that where the Management discharges a workmen by an order which is void for want of an enquiry or for blatant violation of rules of natural justice, the relation-back doctrine c:mnot be invoked. The jurisprudential difference between a void order, w:1ich by a subsequent jurlicial resuscitation comes into being de novo, and an order, which may suffer from some defects H '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 if A granted, cannot be obfuscated."

When in terms of the proviso appended to clauses (b) of Section 33 of the Act, an approval is sought for and is refused, the order of dismissal becomes void. If an approval is not obtained still, the order of punishment B cannot be given effect to. It is, therefore, not ~=irr1.:ct to contend that the Tribunal in a reference under Section I 0 of the Act, when passes an order recording a finding of misconduct, brings life into the dead. Unfortunately, the Court did not take notice of the binding decisions in Motipur Sugar Facto1y 's case (supra) and Firestone's case (supra).

We may futther notice that P.H Kalyani case (supra) has also recently been followed by another Constitution Bench in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Others, [2002] 2 SCC 244.

D We may, however, observe that although in certain contingencies an employer may in a case of grave nature of misconduct dismiss a workman without holding an enquiry but ordinarily such an enquiry will not be dispensed with. In the event it is found ultimately by the Labour Court/ Industrial Tribunal that the employer had taken recourse to unfair labour E practice or the order of termination has been passed malafide or by way of victimization, it will be open to the Tribunal to pay comrensation even in a case where ultimately charges are proved, despite holding that the order of termination is valid for the reason that principles of natural justice have not complied with.

For the aforesaid reasons, we do not find any merit in this appeal.

It is, accordingly, dismissed

There shall be no order as to costs.

R.P.

Appeal dismissed.