ORDER Lodha, J.-1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed that the order by the Industrial Court, Madhya Pradesh, Indore, dated 18-8-1967 marked annexure M, be set aside and the petitioner may be ordered to be reinstated with back wages. 2. The brief facts of the case are that the petitioner was employed as a permanent weaver in the Jivajeerao Cotton Mills Ltd, Birlanagar Gwalior (which will hereinafter he referred to as the non-petitioner). He was discharged from service by the non petitioner with effect from 1-9-1961 on grounds of inefficiency and unsatisfactory work. Consequently, he challenged the order of discharge by an application under section 31 (3) of the M.P. Industrial Relations Act, 1960 (which will hereinafter be referred to as the Act before the Labour Court. The Labour Court by its order dated 10th May, 1966 allowed the application and directed the non-petitioner to reinstate the petitioner with all the back wages. The non-petitioner filed a revision application before the Industrial Court, Indore, against the order of the Labour Court and the Industrial Court by its order dated 7-7-1966 remanded the case to the Labour Court to decide it afresh on the lines indicated by it. The Labour Court decided the case afresh and adhered to its previous finding dated 10th May, 1966 Again, the non-petitioner filed revision application before the Industrial Court which again remanded the case to the Labour Court by its order dated 30.1.1966. It directed the Labour Court to allow both the parties to lead evidence on the question of the alleged inefficiency of the petitioner. The Labour Court after recording fresh evidence, as directed by the Industrial Court, by its order dated 15-5-1967, held that the discharge of the petitioner was justified. But, in spite of coming to this conclusion, it awarded full back wages to the petitioner from 1-9-1964 upto the date of the order i.e., 15-5-1967. 3. Aggrieved by the order of the Labour Court dated 15-5-1967, both the parties filed revisions before the Industrial Court, which by its order dated 18.8.1967 dismissed the petitioner’s revision; but allowed the non-petitioner's revision and set aside the order of the Labour Court awarding back-wages to the petitioner. Hence, the petitioner has called into question the validity and correctness of the order of the Industrial Court dated 18th August, 1967. 4. Hence, the petitioner has called into question the validity and correctness of the order of the Industrial Court dated 18th August, 1967. 4. The petition has been opposed by the non petitioner which has also filed a written reply to the petition. 5. The following three points have been urged by the learned counsel for the petitioner in support of the petition:- (i) That having come to the conclusion that the petitioner had been discharged from service without holding an enquiry, the Labour Court had no jurisdiction to arrogate to itself the function or holding enquiry for determining the question whether the petitioner had been rightly discharged on account of inefficiency and unsatisfactory work. (ii) That in any case, the Industrial Court should not have disturbed the order of the Labour Court awarding back wages to the petitioner. (iii) That the alleged misconduct on the part of the petitioner has not been proved and, in any case, the punishment by way of dismissal from service was harsh and capricious and, therefore, should be suitably modified. 6. We shall take up each of these three points ad seriatim. It is urged that the petitioner had been dismissed by the non-petitioner without holding an enquiry. It is submitted that under 12 of the Standing Order framed under the M.P. Industrial Employment (Standing Orders) Act, 1961 it was incumbent on the non-petitioner not to impose any punishment on the petitioner unless proved guilty of misconduct in an enquiry conducted in the prescribed manner. Our attention has further been drawn to sections 34 and 91 read with Schedule I, item No. 3 of the Act in support of the contention that the non-petitioner was liable to punishment for any illegal change. In this connection, it has been argued that, as the non-petitioner had dismissed the petitioner in contravention of the law it was not open to the Labour Court to hold an enquiry into the matter for the purpose of deciding the question whether the dismissal of the petitioner was correct. 7. On the other hand, Mr. P.L. Dube, learned counsel for the non-petitioner, has urged that the petitioner bad not been dismissed, but his services tad been terminated under rule 11 (a) of the Standing Orders and, therefore, it was not necessary for the non-petitioner to hold a regular enquiry. 7. On the other hand, Mr. P.L. Dube, learned counsel for the non-petitioner, has urged that the petitioner bad not been dismissed, but his services tad been terminated under rule 11 (a) of the Standing Orders and, therefore, it was not necessary for the non-petitioner to hold a regular enquiry. It is urged that no punishment was imposed on the petitioner but his services were simply terminated after giving one month's notice. It has also been argued in this connection that the petitioner had raised no such objection either before the Labour Court or before the Industrial Court at any stage and, therefore, cannot be allowed to raise this point for the first time before this Court. In order to fortify his submission, he has further argued that even if, by any stretch of imagination, the order of discharge of the petitioner is construed as one of punishment, it was open to the Labour Court to hold an enquiry into the matter and decide the question whether the petitioner's services had been correctly dispensed with. In support of this contention, the learned counsel hall relied on Jagat Singh Chaudhury v. M.P. Electricity Board, Jabalpur and others, 1969 JLJ 622 = 1969 MPLJ 132 Udyog Mandir. Amer v. The Judge Lubour Court. Jaipur and others 1972 Labour and Industrial Cases, 981, Ahmedabad Sarangpur Mills Co. Ltd. v. I.G. Thakore and another AIR 1966 Guj. 88 Dalchand v. President Industrial Court M.P., Indore and others 1972 MPLJ Note 52, D.C, Roy v. Presiding Officer, M.P.I.C. Indore and others 1976 (Vol. 32) Indian Factories and Labour Reports 285 and Workmen of the Motipur Sugar Factory Pvt. Ltd. v. The Motipur Sugar Factory Private Ltd AIR 1965 SC 1803 . 8. We may observe here that even though the case remained pending before the Labour Court and the industrial Court for a period of three years no such objection was ever taken by the petitioner that the Labour Court had no jurisdiction to hold enquiry and thereby grant an opportunity to the employer to adduce fresh evidence. On the other hand, the petitioner participated in the enquiry before the Labour Court and produced evidence to show that he was neither inefficient nor his work was unsatisfactory. On the other hand, the petitioner participated in the enquiry before the Labour Court and produced evidence to show that he was neither inefficient nor his work was unsatisfactory. Thus, it is clear that the petitioner took chance before the Labour Court to substantiate this plea and having failed to do so, has now put forward this objection for the first time before this Court. In our opinion, it would not be proper to allow the petitioner to raise such an objection here, unless he is able to show that there was an inherent lack of jurisdiction in the Labour Court to enquire into the matter, However, learned counsel for the petitioner was unable to place any authority before us in support of his contention in this respect on the other hand, from the authorities cited by the learned counsel for the non petitioner. referred to above, it appears to us to be well-settled that the Labour Court is justified in recording evidence adduced by the parties before it to find out whether the dismissal of the petitioner was justified, in case it come to the conclusion that the enquiry conducted by the employer was defective or was in violation of the principles of natural justice. 9. In Workmen of the Motipur Sugar Factory Pvt. Ltd v. The Motipur Sugar Factory Private Ltd. it was held that where an employer has failed to make an enquiry before dismissing or discharging a workman, it is open to him to justify his action before the Tribunal by leading all relevant evidence before it. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited question whether domestic enquiry has been properly held, but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. The important effect of omission to hold an enquiry is merely 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. This was, no doubt, a case under the Industrial Disputes Act, 1947 but we are unable to see any distinction between a case under the Industrial Disputes Act and the one under the Industrial Relations Act, 1960, so far as the point in issue is concerned. This was, no doubt, a case under the Industrial Disputes Act, 1947 but we are unable to see any distinction between a case under the Industrial Disputes Act and the one under the Industrial Relations Act, 1960, so far as the point in issue is concerned. 10 In Jagal Singh Choudhary, M.P. Electricity Board, Jabalpur and others (supra) the dispute was under the Industrial Relations Act, 1960 In that case the domestic enquiry resulting in termination of the service of the employee was found to be defective. It was held that the Labour Court itself can hold enquiry and up bold the order of termination of service. In our opinion, this case, which is a decision of this Court, applies fully to the facts and circumstances of the present case. 11. Learned counsel for the petitioner, however made an attempt to draw a line of distinction between a case where the enquiry is held to be defective and a case where no enquiry is held at all. It may be observed that we are unable to see any point of distinction between the two. In our opinion, a case of defective enquiry or unfair enquiry does not in any way stand on a higher footing than that of no enquiry at all. 12. We are also unable to accept the contention raised on behalf of the non-petitioner that the case is covered by Standing Order 12. It may be noticed that Standing Order 11 deals with termination otherwise than by way of punishment, whereas Standing Order 12 deals with disciplinary action for misconduct and lays down a special procedure for imposing any of the punishments prescribed for major or minor misconduct, Unsatisfactory work may not constitute misconduct falling under Standing Order 12; yet it is open to the employer to terminate the services of an employee on that ground just as on the ground of any other infirmity in the employee. When an employee's services are terminated on the ground of any infirmity in him, the termination is not by way of punishment. 13. Thus, we are of opinion that the Labour Court on the facts and circumstances of the present case, has jurisdiction to enquire into the matter; whether the order of discharge made against the petitioner by the non-petitioner was justified. 14. 13. Thus, we are of opinion that the Labour Court on the facts and circumstances of the present case, has jurisdiction to enquire into the matter; whether the order of discharge made against the petitioner by the non-petitioner was justified. 14. We may now take up the second contention viz., whether the Industrial Court was right in setting aside the direction by the Labour Court regarding award of back wages. 15. In D.C Roy v. Presiding Officer, M.P.I.C, Indore and others (supra) it was held that even in a case where the Labour Court found that the enquiry held by the employer against the employee was defective but came to the conclusion after considering the evidence adduced before it that the dismissal was justified, the award of the Labour Court must relate back to the date when the order of dismissal was passed on the termination of the domestic enquiry. Reliance was placed by the Supreme Court on an earlier case decided by it, viz., AIR 1963 SC 1956. 16. Again in Udyog Mandir, Amer v The Judge Labour Court, Jaipur and others (supra) it was held that when the Labour Court recorded its finding that the order of termination was proper, the propriety of the order shall go back to the date when the order of termination was passed, and it cannot be said that the order became proper only from the date when the Labour Court pronounced its award. In this view of the matter, the learned Judge came to the conclusion that it was not within the competence of the Labour Court to have directed the employer to pay the back wages to the employee. 17. In Ahmedabad Sarangpur Mills Co. Ltd. v. I.G. Thakore and another (supra) it was held that if on the appraisal of the evidence before it, the Tribunal finds that the order of termination was justified, the employee, in such a case, is not entitled to get wages or compensation for the period between the date of discharge and the date of the order of the Tribunal. 18. In Workmen of Premier Tyres Ltd v Premier Tyres Limited, Kalamassery and others 1976 (Vol. 33) Indian Factories and Labour Reports page 7 it was observed that the order of termination becomes effective from the date of the order. 19. 18. In Workmen of Premier Tyres Ltd v Premier Tyres Limited, Kalamassery and others 1976 (Vol. 33) Indian Factories and Labour Reports page 7 it was observed that the order of termination becomes effective from the date of the order. 19. Learned counsel for the petitioner has not cited any authority before us to show that even in a case where the action of the management is justified before the Labour Court, the back wages must be paid till the date of the award. The Labour Court relied on M/S Kesoram Cotton Mills Ltd. v. Gangadhar and others AIR 1964 SC 708 in support of its award for back wages. We have looked into this ruling and find that it was a case where applications under section 33 (2) (b) of the Industrial Disputes Act, 1947, were made by the employer for approval of the action proposed to be taken by it during the pendency of a dispute in regard to the workmen. However, before the applications could be disposed of, the dispute before the Tribunal was decided, with the result that no order was passed by the tribunal on the applications, It was a case where the management wanted to dismiss the workmen without holding an enquiry and the decision in AIR 1959 SC 923 was held to be fully applicable to those workmen who had been permitted to be dismissed. It may be noticed that during the pendency of a reference for adjudication if the management has to take action against an employee for misconduct, permission of the Labour Court is required to be taken, and it is only when the permission is taken that the employer will be entitled to terminate the services of the employee. In such a situation, the Supreme Court held that the management is bound to pay the wages to the workman in proceedings under section 33 of the said Act. Thus, the facts of the case relied upon by the Labour Court are completely distinguishable and the rational of that decision has, in our opinion, no application to the facts and circumstances of the present case. We are, therefore unable to set aside the finding by the Industrial Court that the petitioner was not entitled to get the back wages, as the order of discharge of his services would be effective from the date when it was made by the employer. 20. We are, therefore unable to set aside the finding by the Industrial Court that the petitioner was not entitled to get the back wages, as the order of discharge of his services would be effective from the date when it was made by the employer. 20. This brings us to the last point urged by Mr. Upadhyaya learned counsel for the petitioner. He has strenuously argued that even the facts proved by the non-petitioner before the Labour Court do not make out a case for discharge much less a case for dismissal. It is submitted that the alleged inefficiency of the petitioner is illusory and in this connection he has drawn our attention to the discharge notice (annexure A) and the show cause notice (annexure B) to show that the output of the petitioner, who was in shift B, was not very much less as compared to the output in shifts A and C. It is argued that the punishment of termination of services or dismissal by whatever name it may be called, was disproportionate, excessive and capricious. In support of his contention, he has relied on Assam Oil Co. Ltd, New Delhi v. Its Workmen AIR 1960 SC 1264 wherein it was observed that it may appear in some cases that though the order of discharge is couched in words which do not impute any misconduct to the employee in substance, it is based on misconduct of which according to the employer, the employee has been guilty and that would make the impugned discharge a punitive dismissal. He has also relied on The Chartered Bank Bombay v. The Chartered Bank Employees Union and another AIR 1960 SC 919 where it was observed that if the termination of service is a colourable exercise of the power or as a result of victimization or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination Further, it was held that where the termination of service is capricious, arbitrary or unnecessarily harsh on the part of the employer, judged by normal standards of a reasonable man that may be cogent in evidence of victimization or unfair labour practice. 21. Now, on going through the impugned order of the Labour Court (annexure J), we find that the petitioner had led no evidence except his solitary statement. 21. Now, on going through the impugned order of the Labour Court (annexure J), we find that the petitioner had led no evidence except his solitary statement. His complaint that be was given bad helpers to assist him has not been proved. Thus, the petitioner did not lead any evidence before the labour Court to show that the order of termination was a colourable exercise of power or that it was an act of victimization. No such argument was advanced before the Industrial Court and, admittedly there is no reference to such a point in the impugned order of the Industrial Court (annexure M). We are, therefore, unable to come to the conclusion that the order of discharge of the petitioner was for ulterior motive or was a colourable exercise of the power or was otherwise an act of victimization. 22. As regards the contention that the action of termination was disproportionate and excessive on the ground that the difference in the output was not more than 3% it is enough to point out that no such argument was advanced either before the Labour Court or before the Industrial Court that, in view of the slight difference in output the order of termination was not justified. Moreover, we must confess that we are not in a position to judge without the assistance of some expert evidence as to what is the standard of efficiency in the case of weavers. It is a question of fact whether the petitioner's work was found to be inefficient or unsatisfactory. It may be observed that no such objection was raised before the industrial Court that the order of termination of the petitioner's services was not proper in view of the degree of inefficiency proved by the non-petitioner. We are, therefore, unable to grant any relief to the petitioner on this score either. 23. The result is that we do not find force in the petition and hereby dismiss it. But, in the circumstances of the case we leave the parties to bear their own costs. The security amount, if any deposited by the petitioner may be refunded to him.