JUDGMENT M.U. Isaac, J. 1. The petitioner by an order, dated 3rd August 1965 terminated the services of one of its employees, one Sri A. Balakishna Pillai, who was then working as a typist-clerk. The order of termination has not been produced in this case. But I have got a copy of that order from the Government Pleader; and it reads: "Of late, it has been observed that you have been behaving in an abnormal manner in the office during working hours. It has also been observed on quite a number of times that you have been questioning the instructions of your superiors with regard to your work. It has become a habit with you to quarrel with your co-workers and officers. Your behaviour generally has been insolent and you have been warned several times against this kind of behaviour. Today particularly, while you were engaged in work and when some papers were handed over to you for typing, you suddenly lost your temper and rushed up to Mr. T. M. G. Nedungadi and shouted at him. When you were asked by him to keep quiet, you started shouting at the pitch of your voice. On hearing this, when Mr. K. S. Padmanabhan also asked you to keep quiet, you rebuked him using obscene language and rushed violently to the Director's cabin. In the circumstances, we are constrained to feel that your presence in the office will jeopardize the general discipline and the smooth running of the office. It has, therefore, been decided to terminate your service forthwith. You will be paid a month's salary in lieu of a month's notice, which can be collected from the Accounts Department." The first respondent, a trade union, to which the employee belonged, raised an industrial dispute regarding the termination of the service of the above employee. The dispute was referred to the second respondent, the Labour Court, Quilon, for adjudication. The second respondent by its award, Ext. P-1, dated 17th September 1969 held that the termination of the service of Sri Balakrishna Pillai was really a punishment, that the action taken against him was justified on the evidence adduced before it, and that the employee was not, therefore, entitled to reinstatement, but he was entitled to get his wages till the date of the order, since the termination of his service was not preceded by a domestic enquiry. This petition has been filed to quash the above award. 2. Two contentions have been raised by counsel for the petitioner against the direction for payment of wages to the employee till the date of the award of the Labour Court. One is that the termination of the service of the employee, though it was on account of his persistent misconduct, was not done as a punishment, but it was in exercise of the petitioner's right to terminate the services of its employees under the Standing Order for any sufficient reason. The other contention is that even assuming that the termination amounted to a punishment, the employee was not entitled to any wages from the date of the termination till the date of the decision of the Labour Court, on the ground that the termination was not preceded by a disciplinary enquiry, when as a matter of fact it found that the termination was justified. 3. The above questions are not free from difficulty. I am thankful to Sri M. P. Menon, a leading labour lawyer of this Bar for appearing in this case as amicus curiae at my request and placing before me all the relevant authorities. I have quoted the order of termination of the service of the employee, since the character of the order has an important bearing on the arguments advanced before me. There can be no doubt, on a reading of that order that it was made on account of the alleged persistent misconduct of the employee. That was the motive as well as the reason for the termination of his service. Counsel for the petitioner contends that termination of service of an employee for misconduct does not by itself amount to imposition of punishment, if that can be done under the terms and conditions of service, provided the termination is bona fide and not one effected mala fide with the object of getting rid of him for other reasons. Counsel submits that, if the service of an employee can be terminated for any sufficient reason, misconduct of an employee would be a preeminently proper and sufficient reason for doing so. Counsel submits that, if the service of an employee can be terminated for any sufficient reason, misconduct of an employee would be a preeminently proper and sufficient reason for doing so. Sri M. P. Menon controverts the above contention, and submits that the termination of service of an employee for misconduct is a punishment, and that a punishment can be imposed on an employee only after giving him an opportunity to meet the charges; in other words only after the alleged misconduct is established as a result of an enquiry. He points out that there is also a provision in the Standing Order of the petitioner to that effect. 4. In support of his contention, counsel for the petitioner relies first on the decision of Raman Nayar, J. as he then was, in Kannan Devan Hills Produce Company Ltd. v. Its Workmen and others 1969 (1) L.L.J. 483. In that case, the workman concerned was a driver, whose service was terminated by his employer on the ground that he was incompetent to do his job for the several reasons mentioned in the order of discharge without making any enquiry against him in that respect. It was contended that such a termination of service was a punishment, which could be done only after an enquiry into the employee's conduct, and that a discharge simpliciter amounted to victimisation and unfair labour practice. In respect of the above contention, which found acceptance by the Industrial Tribunal, the learned Judge stated: "Now, if something that falls short of misconduct can be reasonable cause for termination simpliciter as, ex hypothesi it can, I fail to see any logic in saying that something more serious, namely, misconduct, cannot furnish a reasonable cause, and that termination for misconduct must be secured by dismissal by way of punishment for which far more severe action it can furnish reasonable cause. Misconduct seems to me an a fortiori case and the utmost that can be said in a case of discharge simpliciter for misconduct is that the tribunal would 'be justified in dealing with the dispute on the basis that, despite its appearance to the contrary, the order of discharge is in effect an order of dismissal.' [Per Gajendragadkar, J., as he then was, in Assam Oil Company Ltd. v. Its Workmen (1960) I L.L.J. 587]. What the employer has to show and what an Industrial Tribunal has to consider and decide is whether there was reasonable cause, irrespective of whether or not that cause amounts to misconduct. If an employer dismisses a workman for misconduct without any inquiry, it would still be open to him to satisfy an Industrial Tribunal that he acted in bona fide exercise of his power of dismissal (which after all is also a contractual power) by adducing evidence before the Tribunal and proving the misconduct [See Phulbari Tea Estate v. Its Workmen (1959) II L.L.J. 663]. Why then should he be precluded from establishing his bona fides in a like manner when, instead of dismissing the workman for the misconduct, he takes the far less drastic course of a termination simpliciter? " I am in respectful agreement with the above reasoning, which has got also support from the decisions of the Supreme Court, as indicated by his Lordship in the said judgment. 5. The next case on which counsel for the petitioner relies is Tata Engineering and Locomotive Company Ltd. v. Prasad (SC) and another (1969)II L.L.J.799. In that case, the dispute related to the termination of service of ten workmen, of whom one Dubey was discharged from service without any inquiry, on the ground that due to certain activities of his, the employer lost confidence in him and considered his being continued in service as prejudicial to the employer's interest. Admittedly it was a case of discharge from service for misconduct which the employer claimed that it was entitled to do under its Standing Order. It was contended on behalf of the employee in that case, among other things, that termination of service of an employee for misconduct without any enquiry amounted to victimisation and unfair labour practice, though the employer may succeed in establishing before the Tribunal that the alleged misconduct was true. The contention was rejected by the Supreme Court; and in doing so it stated "The company had two alternatives, either to act under Standing Order 47 or to take disciplinary action and hold a domestic enquiry. But the latter course would have meant that the company would have to launch into an enquiry almost parallel to the one which was going on before the committing magistrate. But the latter course would have meant that the company would have to launch into an enquiry almost parallel to the one which was going on before the committing magistrate. If the company, in these circumstances, preferred the former it would not be reasonable to say, as the Tribunal did, that the company should have charged the workman with misconduct and held an enquiry. The fact that it did not do so but exercised its power under Standing Order 47 cannot render the order mala fide or one passed in colourable exercise of its power to discharge a workman from service if such power was properly exercised. There have been instances as in Jabalpur Electric Supply Company v. Sambhu Prasad Srivastava and others [(1962) II L.L.J. 216] where on a question arising whether the power exercised was one for simple discharge or was punitive for a misconduct it was held that it was the former even though an investigation had preceded the order. Considering all the circumstances we are satisfied that the company properly and justifiably exercised its power to terminate the services of Dubey. There was no warrant for the Tribunal to come to the conclusion that it had acted mala fide or to victimize Dubey." 6. Sri M. P. Menon submits correctly that the fact that the order was couched in the language of a discharge simpliciter is not conclusive, that the Tribunal can examine the substance of the matter and decide whether the termination is in fact discharge simpliciter or a punitive or mala fide act done to victimise the workman or amounts to unfair labour practice, in which case the Tribunal can set aside the order. He also submits that, if the termination of an employee is for misconduct, which necessarily amounts to a charge involving moral turpitude or of incompetence, it was improper to terminate his service without an enquiry; and that such a termination of service can be characterised only as an unfair labour practice. I am unable to accept the latter submission in the light of the two decisions referred to above. It was open for the petitioner to terminate the service of the employee for misconduct by virtue of its power under the Standing Order, without conducting any enquiry against him. The finding of the Labour Court to the contrary cannot be sustained. 7. I shall now deal with the second question. It was open for the petitioner to terminate the service of the employee for misconduct by virtue of its power under the Standing Order, without conducting any enquiry against him. The finding of the Labour Court to the contrary cannot be sustained. 7. I shall now deal with the second question. In support of its view that an employee dismissed from service without an enquiry is entitled to get his salary even in a case where the Industrial Tribunal or the Labour Court, as the case may be, finds that the dismissal was justified, from the date of his dismissal till the date of its decision, the Labour Court has relied on the decision of the Supreme Court in Sasa Musa Sugar Works (Private) Ltd. v. Shoborati Khan and others (1959) II L.L.J. 388. In that case, the employer suspended a number of its workmen for misconduct without any enquiry, and applied to the Industrial Tribunal, before whom an adjudication proceeding was pending, for permission under section 33 of the Industrial Disputes Act, 1947 to dismiss them. Evidence was adduced before the Tribunal on the question whether there was sufficient cause to dismiss them; and it found that some of the workmen were guilty of misconduct and the others were not. Ail the same, the Industrial Tribunal refused the permission sought for. The Appellate Tribunal found that all the workmen were guilty of misconduct and that the employer was justified in dismissing them. But it held that the suspension of the workmen amounted to a punishment which could not be imposed without the previous permission of the Industrial Tribunal and that applications for permission to dismiss them, after having illegally imposed on them the punishment of suspension, were mala fide, and should not be granted. The Supreme Court held that, on the finding of the Appellate Tribunal, the employer was entitled for the permission sought for to dismiss all the employees; and it added- "But as the management held no enquiry after suspending the workmen and proceedings under section 33 was practically converted into the enquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under section 33." The Labour Court held that the position was the same in the instant case. 8. 8. Sri M. P. Menon submits that the view taken by the Labour Court is correct. He also relies on the decision of the Supreme Court in Hotel Imperial v. Hotel Workers' Union (1959) II L.L.J. 544 wherein the decision in Sasa Musa Sugar Works has been followed in a similar case. Reference has been made in Hotel Imperial case to another decision of the Supreme Court in Phulbari Tea Estate v. Its Workmen (1959) II L.L.J. 663, and regarding this decision the Supreme Court stated: "In Phulbari Tea Estate v. Its Workmen (G. A. No. 205 of 1958 decided on 6th May 1959), the rider laid down in the case Sasa Musa Sugar Works (Private) Ltd. (supra) was further extended to acaseof an adjudication under section 15 of the Act, and it was pointed out that there was any defect in the enquiry by the employer, he could make good that defect by producing necessary evidence before the Tribunal; but in that case he will have to pay the wages up to the date of the award of the Tribunal, even if the award went in his favour." Sri Menon relies on the above statement, and submits that a workman dismissed for misconduct without any enquiry is entitled to wages from the date of dismissal till the date of award, even if the dismissal was found to be justified on the evidence placed before the Tribunal. I have gone through the decision of the Supreme Court in Phulbari Tea Estate case (1959) II L.L.J. 663; and with great respect I regret to say that I have not been able to find anything therein which would support the above statement. In that case, a workman was dismissed for misconduct after a domestic enquiry. It gave rise to an industrial dispute. The Industrial Tribunal, found that the enquiry was vitiated for want of compliance with the principles of natural justice. Accordingly it set aside the order of dismissal, and awarded compensation to the workmen without reinstatement equal to his pay and allowances from the date of suspension preceding his dismissal till the date of payment. The Supreme Court upheld the decision of the Tribunal, but limited the amount of compensation to the sum deposited in that court pursuant to an interim order made by it. The Supreme Court upheld the decision of the Tribunal, but limited the amount of compensation to the sum deposited in that court pursuant to an interim order made by it. The only reference to that decision to Sasa Musa Sugar Works case (1959 II L.L.J. 388 is contained in the following passage: , "In Sasa Musa Sugar Works (Private) Ltd. v. Shobrati Khan and others [(1959) II L.L- J. 388] we had occasion to point out that even where the employer did not hold an enquiry before applying under section 33 of the Act for permission to dismiss an employee, he could make good the defect by producing all relevant evidence which would have been examined at the enquiry before the Tribunal, in which case the Tribunal would consider the evidence and decide whether permission would be granted or not. The same principle would apply in case of adjudication under section 15 of the Act, and if there was defect in the enquiry by the employer, he could make good that defect by producing necessary evidence before the Tribunal. But even that was not done in this case for all that the company did before the Tribunal was to produce the statements recorded by the manager during what we have called investigation. This left matters where they were and Das had never an opportunity of questioning the witnesses after knowing in full what they had stated against him. In these circumstances, we are of opinion that the finding of the Tribunal that the enquiry in this case was not proper is correct and must stand." The above passage shows that the decision in Sasa Musa Sugar Works case (1959) II L.L.J. 388 was referred to as an authority only for the proposition that, if a workman is dismissed for misconduct without any enquiry, the defect can be made good and the action can be justified by producing evidence before the Tribunal. It does not lay down any proposition that, in such a case, the employer is liable to pay the salary of the workman from the date of dismissal till the date of decision of the Tribunal. 9. It does not lay down any proposition that, in such a case, the employer is liable to pay the salary of the workman from the date of dismissal till the date of decision of the Tribunal. 9. Counsel for the petitioner contends that the proposition that a workman, who has been dismissed for misconduct without an enquiry is entitled to wages from the date of dismissal till the date of the decision of the Industrial Tribunal or the Labour Court, as the case may be, applies only to a case of dismissal without previous permission as required by section 33 (1) of the Act. In support of that contention counsel relies on the decision of the Supreme Court in Kalyani (P.H.) v. Air France, Calcutta (1963)1 LX. J. 679. That was a case where the employer sought the approval of the Industrial Tribunal for the dismissal of an employee under section 33 (2) of the Act. . The dismissal was after an enquiry; but it was found defective. It was contended in that case, relying on the decision in Sasa Musa Sugar Works case (1959) II L.L.J. 388 that an employee who was dismissed without a proper enquiry was entitled to wages from the date of his dismissal till the date of the award of the Tribunal who finds on the evidence placed before it that the dismissal was justified. The contention was rejected, holding that the aforesaid decision applied only to a case where the express permission of the Industrial Tribunal was necessary under section 33 of the Act for the dismissal of an employee. There is a very long discussion of the whole argument in the following passage: "We are of opinion that those observations cannot be taken advantage of by the appellant. That was a case where an application had been made under section 33 (1) of the Ac for permission to dismiss the employees and such permission was asked for though no inquiry whatsoever had been held by the employer and no decision taken that the employees be dismissed. It was in those circumstances that a case for dismissal was made out only in the proceedings under section 33 (1) and therefore the employees were held entitled to their wages till the decision of the application under section 33. It was in those circumstances that a case for dismissal was made out only in the proceedings under section 33 (1) and therefore the employees were held entitled to their wages till the decision of the application under section 33. The matter would have been different if in that case an enquiry had been held and the employer had come to the conclusion that dismissal was the proper punishment and then had applied under section 33 (1) for permission to dismiss. 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) see the Rapipur Colliery v. Bhuban Singh [(1959) II L.L.J. 231]. The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter, on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty, i.e., there was no unfair labour practice and no victimization, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. 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 dismissal was 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. The observations in Sasa Musa Sugar Works case [(1959) II L.L.J. 388] on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. The observations in Sasa Musa Sugar Works case [(1959) II L.L.J. 388] on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. 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." The above decision must apply with greater force to the case of dismissal of an employee, where neither permission under section 33 (1) nor approval under section 33 (2) is necessary for the action taken against him. It also makes no difference in principle between a case where action was taken without any enquiry and one in which an enquiry was made, but it was found defective and therefore invalid under law. 10. The petitioner is entitled to succeed on both the points raised by its counsel. The impugned award Ext. P-1 is accordingly set aside. There will be no order as to costs.