JUDGMENT 1. The petitioner is the General Secretary of the Devikulam Estate Workers' Union representing the two workmen upon whom the punishment of dismissal was imposed by the 1st respondent, the Superintendent, Upper Surianalle Estate (hereinafter-referred to as the "Management"). The Labour Court by its award, dated 20th November 1980 in I.O. No. 32 of 1970 (published in the Kerala Gazette No. 3, dated 20th January 1981) found that the charge against the workman was proved and that the punishment imposed by the Management was not liable to be interfered with. 2. The charge against the workmen was: "Habitual absence without leave or absence without leave for more than 10 consecutive days in that it is alleged that you were absent without leave for more than 10 days from ......" By the memo of charge, dated 12th December 1966 the workmen were called upon to appear for an enquiry on 23rd December 1966. This memo was served on the workmen at the jail where they were imprisoned in connection with a criminal case, which ended in their conviction under S.323 of the IPC, during the period from 17th October 1966 to 20th January 1967. They made a request from the jail to the Management to postpone the enquiry till 20th January 1967 when they were expected to be released. A similar request was also made on their behalf by their union. Nevertheless the enquiry was posted to 3rd January 1967. On that date the workmen were declared ex parte and the enquiry was concluded. After their release on 20th January 1967, the workmen presented themselves for duty on 23rd January 1967 but they were served with the order of dismissal. 3. Consequently a dispute arose between the Management and the union representing these workmen. It was referred by the Government under S.10 of the Industrial Disputes Act to the Labour Court, Quilon. The union contended before the court that the domestic enquiry on the basis of which the punishment was purportedly imposed was invalid for the reason that the rules of natural justice had been violated. It was also contended that, in any view of the matter, the punishment of dismissal on the ground of absence from duty for more than 10 consecutive days at a time when the workmen were in capable of attending to duty owing to their imprisonment was grossly disproportionate to the alleged misconduct. It was also contended that, in any view of the matter, the punishment of dismissal on the ground of absence from duty for more than 10 consecutive days at a time when the workmen were in capable of attending to duty owing to their imprisonment was grossly disproportionate to the alleged misconduct. It was further contended that the punishment of dismissal was an act of victimisation against the workmen owing to their trade union activities. The Labour Court by its award, dated 30th August 1975 found that the domestic enquiry was proper, and that the workmen were not heard in person for no fault of the Management, but on account of their own fault in getting themselves involved in an incident which led to their arrest and conviction. Having found that the domestic enquiry was proper, the court held that the punishment of dismissal could not be interfered with. The award of the court was challenged on behalf of the workmen in O.P. No. 673 of 1976. Chandrasekhar Menon, J., by his judgment, dated 25th October 1977, upheld the contention of the workmen that the domestic enquiry conducted in their absence during their imprisonment was invalid. The award was accordingly set aside and the Labour Court was directed to take back the matter on its file and dispose of the same according to law. The Management appealed against that judgement in Writ Appeal No. 51 of 1978. A Division Bench of this Court dismissed the Writ Appeal and directed the Labour Court to conduct a denove enquiry into the charge, as directed by Chandrasekhar Menon, J. The matter was accordingly considered afresh by the Labour Court and it came to the conclusion that the charge against the workmen was proved. So stating the court held: "....... .This court therefore cannot interfere with the punishment awarded. The punishment awarded to the workmen in question has therefore only to be upheld." 4. One of the main contentions of the union before the Labour Court was that the punishment of dismissal was totally unjustified and that it was an act of victimisation. It was contended that the punishment was discriminatory as these two workmen alone were punished, while many other persons who were similarly absent in identical circumstances arising from arrest and imprisonment were reinstated. It was contended that the punishment was discriminatory as these two workmen alone were punished, while many other persons who were similarly absent in identical circumstances arising from arrest and imprisonment were reinstated. These points which were pleaded and argued before the Labour Court were highlighted in an argument note submitted to the court with a copy to the Management's counsel. 5. Appearing for the petitioner union, Sri. Abdul Gaffoor in his extremely well prepared arguments contends with much force that the Labour Court failed to consider one of the important points urged before it, namely, the act of victimisation. He further contends that the court failed to provide that its award was to operate prospectively, i.e., from 20th January 1981 when it was published, and not from an anterior date, namely, the date on which the punishment was imposed by the Management in blatant and conscious disregard of the rules of natural justice. 6. Sri Gaffoor contends that the court failed to take note of the fact that these two workmen were singled out by the Management for grossly disproportionate punishment as an act of victimisation on account of their trade union activities. None of the other workmen had. been punished at all although they themselves had been absent in identical circumstances. This unfair and discriminatory practice amounting to victimisation is clear from the nature of the punishment itself. The punishment of dismissal in the circumstances of this case was shockingly and unconscionably severe. No reasonable Management would have imposed such a punishment. The fact that the workmen were helpless and their absence was unavoidable at a time when they were in prison made no impression on the Management which did not even accede to their request for a short adjournment of the enquiry until 20th January 1967 when they were expected to be released. Any fair minded Management would have considered that an adjournment sought for a few days in the circumstances was a reasonable request especially when there was no urgency. The enquiry was conducted in a hurry on 3rd January 1967 only to avoid the workman being present. Such an enquiry was a blatant and deliberate violation of the rules of natural justice. It was not a case of a defective enquiry, but an enquiry that the law did not recognise. It was therefore non est. The enquiry was conducted in a hurry on 3rd January 1967 only to avoid the workman being present. Such an enquiry was a blatant and deliberate violation of the rules of natural justice. It was not a case of a defective enquiry, but an enquiry that the law did not recognise. It was therefore non est. The punishment imposed without an enquiry is not a punishment at all. The circumstances in which an extremely severe punishment was imposed on these two workmen for the sole reason of their absence without leave, when that lapse was pardoned in the case of all other workmen who were similarly absent, and the hurried enquiry in the absence of these two workmen despite their request for short leave and adjournment, speak elequently of unfair labour practice and victimisation on the part of the Management. This aspect of the matter was ignored by the Tribunal, counsel submits. 7. Alternatively, counsel contends that in the light of the decisions the Labour Court ought to have in any case held that its award did not relate back to the date of the Management's order of dismissal, which was non est, but that it was effective, if at all, only as from the date of its publication on 20th January 1981, and that the workmen were entitled to full wages and other benefits until that date. 8. I shall first deal with the first contention of Sri Gaffoor. 9. In B. B. Coal Co. v. Ram Probesh AIR 1964 SC 486 , a Bench of five Judges of the Supreme Court stated: "6. Now there is no doubt that though in a case of proved misconduct normally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted .........." The court however found, on the facts of that case, that there was no victimisation. In Hind C. and E. Co. v. Workman AIR 1965 SC 917 this aspect of the matter was again considered by the Supreme Court: ".......... The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. In Hind C. and E. Co. v. Workman AIR 1965 SC 917 this aspect of the matter was again considered by the Supreme Court: ".......... The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimisation or unfair labour practice. These principles can be gathered from the following cases. Bengal Bhat dee Coal Co. Ltd. v. Ram Probesh Singh ( AIR 1964 SC 486 ); Buckingham and Carnatic Co. Ltd. v. Workers [1952 Lab. AC 490 (LATI-Cal.)] Titaghar Paper Mills Co. Ltd. v. Ram Naresh Kumar [(1961) 1 Lab. LJ 511 (SC)]; Doom Dooma Tea Co. Ltd. v. Assam Chah Karamchari Sangh [1960-2 Lab LJ 56 (SC)]; Punjab National Bank Ltd. v. Their Workman [1959-2 Lab. LJ 666; ( AIR 1960 SC 160 )]; Chartered Bank, Bombay v. Chartered Bank Employees Union (1960-2 Lab. LJ 222 = AIR 1960 SC 919 ). ...... On the whole therefore, though we emphasise again that Tribunal should not interfere with the kind or severity of punishment except in very extra ordinary circumstances, we think that interference was justified in this case because the punishment was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed." (paras 5 and 7) In Bharat Iron Works v. Bhaqubhai AIR 1976 SC 98 , the Supreme Court stated: "It Is apparent that victimisation may partake of various types, to cite one or two only, for example, pressurising an employee to leave the union or union activities; treating an employee unequally or in an obviously discriminatory manner for the sole reason of his connection with union or his particular union activity; inflicting a grossly monstrous punishment which no rational person would impose upon an employee and the like." (para 8) It is clear that discriminatory or grossly disproportionate or rnonetrous punishment indicates victimisation or unfair labour practice on the part of the Management. 10. Sri K. A. Nayar appearing for the Management however contends that the punishment in the present case was not grossly disproportionate as contended by the petitioner. 10. Sri K. A. Nayar appearing for the Management however contends that the punishment in the present case was not grossly disproportionate as contended by the petitioner. He submits that the standing orders provided for the imposition of punishment of dismissal for any one of the acts or omissions amounting to misconduct as mentioned in clause 22. In the present case the workmen were admittedly absent for more than 10 consecutive days. Admittedly again their request for extension of leave beyond 23rd October 1966 was refused by the Management. The workmen who did not report for duty until 23rd January 1967 were therefore absent without leave and became liable to be dismissed in accordance with the standing orders. Sri Nayar refers to two decisions of the Supreme Court in support of his contention. In Indian Iron and Steel Co. v. Their Workmen 1958 (1) LLJ 260 , the Supreme Court, following its decision in Sum and Co. Ltd. v. Their Employees 1957 (1) LLJ 226 , held that where the standing orders provided for automatic termination of the service of the workmen on the ground of absence from duty for fourteen consecutive days without permission, it was open to the Management to terminate their service without a formal enquiry if such absence was not in dispute. 11. The present case is different. Here the standing orders have not provided for automatic termination, but punishment for misconduct. Rules of natural justice require a proper enquiry before a punishment is imposed. An enquiry conducted in the absence of the workmen, without affording them a due opportunity of being heard in person, is not a proper enquiry. This is the principle on which Chandrasekhara Menon, J. set aside the first award when it was challenged by the petitioner in O.P. No. 673 of 1976. That judgment was confirmed in appeal. There cannot be any doubt on this principle. See Workmen, Calcutta D. L. Board v. Employers 1977 (2) LLJ 254 (SC). 12. Sri K. A. Nayar does not contend for the position that the punishment could have been imposed upon the workmen without a valid enquiry. That judgment was confirmed in appeal. There cannot be any doubt on this principle. See Workmen, Calcutta D. L. Board v. Employers 1977 (2) LLJ 254 (SC). 12. Sri K. A. Nayar does not contend for the position that the punishment could have been imposed upon the workmen without a valid enquiry. What he contends is that where the standing orders provided for dismissal in the event of absence without leave, and such absence is proved, albeit without personally hearing the workmen, it is not open to the workmen or their union to contend that the punishment imposed on the basis of proved misconduct is grossly disproportionate. 13. One important aspect of the matter which the Labour Court, in my view, ought to have considered was whether a person could be regarded as unjustifiably absent, or absent for the purpose of attracting punishment, if he was not capable of being present. Where a person was in prison and was therefore not capable of being present at his place of duty, can he be reasonably found fault with for his absence and punished under the standing orders, notwithstanding the request made by him from prison for grant of leave? I do not wish to express any view on this question, but all that I would say is that this is a matter which required to be examined by the court. One significant aspect of the same question-perhaps a shade different is whether the Management which refused to accede the reasonable request of the workmen for leave during the period of their imprisonment was empowered under the standing orders to impose the punishment of dismissal on them when their absence was caused by - reasons beyond their control, and the alleged misconduct resulted from the Management's refusal to grant leave. Furthermore, the court ought to have considered whether the workmen were justified in asking for an adjournment of the enquiry at a time when they were not physically capable of being present at the enquiry. The court also ought to have considered whether the Management was justified in rushing through the enquiry when it had been informed of the impending release of the workman on 20th January 1967. What was the need for" rushing through the enquiry on 3rd January 1967? The court also ought to have considered whether the Management was justified in rushing through the enquiry when it had been informed of the impending release of the workman on 20th January 1967. What was the need for" rushing through the enquiry on 3rd January 1967? Would it not have been just and reasonable for the Management to wait for 20 days for the workman to be present at the enquiry? Did the Management act rationally and fairly? This is an important aspect of the matter which, in the light of the contentions regarding discrimination and victimisation, ought to have been considered by the court. In the circumstances of this case, is not the very nature of the punishment itself dismissal-an act of victimisation, discrimination, an unfair labour practice? Ali this required to be considered. 14. Sri Gaffoor refers to a decision of this Court in Govindan Unnithan v. Industrial Tribunal 1981 KLT 342 , where it was held that where the Management imposed upon the workmen a punishment in blatant and conscious violation of the rules of natural justice and the punishment was subsequently upheld on the basis of an enquiry conducted by the Labour Court, the award of the court would not relate back to the order of the Management, but would be effective only as from the date of the award. In coming to this conclusion this Court relied upon the following observation of the Supreme Court in D. C. Roy v. Presiding Officer, Labour Court AIR 1976 SC 1760 . "..... .The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non est. On an appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyani's case so as to exclude from its operation at least that class of cases in which under the facade of a domestic enquiry, the employer passes an order gravely detrimental to the employee's 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. 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." Relying upon that observation, this Court stated (I quote the head notes): "In industrial law there exists a distinction between cases where domestic enquiry which was held bona fide became vitiated by reason of failure to observe rules of natural justice on the one hand and on the other cases where such rules were 'blatantly and consciously' violated. While in the former it is only a defect in the enquiry, in the latter the enquiry is a nullity. The principle behind this distinction, as I see it, is that such blatant and conscious infringement of the rules of natural justice is an outrageous and flagrant defiance of fundamental legal precepts, and public interest demands nullification of any legal consequence which would otherwise flow from such Acts. An employer cannot with absolute impunity dismiss his employee without a bona fide enquiry. If an employer has bona fide held an enquiry, although by some honest mistake or error of judgment he has failed to observe rules of natural justice, but succeeds in justifying the punishment before the Tribunal, the award will relate back to the date of his order. On the other hand, deliberate and blatant defiance of natural justice by a callous employer who holds no enquiry or holds a mere pretence of an enquiry will burden him with the liability to pay wages till the date of the award, even when he has succeeded in justifying the punishment. These considerations govern the facts of the present cases where no domestic enquiry at all preceded the punishment. Consequently the award of the Industrial Tribunal does not relate back to the date of the order of dismissal. The order of dismissal becomes effective only from the date of the award. The employee is therefore entitled to back wages till the date of the award. A domestic enquiry preceding an order of dismissal must be based on an oral hearing at which the workman should have sufficient opportunity to controvert the allegations by cross examining witnesses who testified on behalf of the management and by examining his own witnesses. The employee is therefore entitled to back wages till the date of the award. A domestic enquiry preceding an order of dismissal must be based on an oral hearing at which the workman should have sufficient opportunity to controvert the allegations by cross examining witnesses who testified on behalf of the management and by examining his own witnesses. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. Where the workman had no opportunity to be heard orally and cross examine witnesses who testified against him or examine his own witnesses, can it be said that the order of dismissal was preceded by a proceeding which could be characterised as a domestic enquiry? I think not. It is not a question of the proceeding said to have been conducted by the management being a defective enquiry, but it was a proceeding that was no enquiry at all as understood in industrial law. Whatever be the place of an enquiry otherwise than by an oral hearing in administrative law the only enquiry that is known to industrial law for the purpose of making an order of dismissal or discharge is an enquiry which affords the workman full opportunity of being heard orally. Any other proceeding is non est or at best a mere pretence of an enquiry". 15. The facts in Govindan Unnithan v. Industrial Tribunal 1981 KLT 342 , are not dissimilar to the facts of this case. In the present case, no enquiry was conducted by the management in the presence of the workmen. The absence of the workmen at the enquiry was for unavoidable reasons. The Management had been requested by the workmen for leave and for adjournment of the enquiry. Whether or not the conduct of the Management proved victimisation-a point on which I do not express any final view - I have no doubt that in the circumstances of this case, it was most unreasonable and unconscionable on the part of the Management to have refused to accede to the request for leave. It went ahead with the enquiry in the absence of the workmen and imposed upon them a punishment as grave as dismissal in blatant and conscious disregard of the rules of natural justice. It went ahead with the enquiry in the absence of the workmen and imposed upon them a punishment as grave as dismissal in blatant and conscious disregard of the rules of natural justice. This Court in the earlier proceedings held that the domestic enquiry was invalid and set aside the award of the Labour Court, dated 30th August 1975 for the reason that the Court wrongly came to the conclusion that the domestic enquiry was proper. It was only at the second stage after the remand that the court conducted a proper enquiry at which both sides had due opportunity to adduce evidence. Following the principle in Govindan Unnithan v. Industrial Tribunal 1981 KLT 342 , I am of the view that, assuming that the Labour Court rightly concluded that the charge against the workmen was proved and that the punishment of dismissal was not liable to be interfered with, the operation of the award can only be as from the date of the publication of the award, i.e., 20th January 1981, and not from any anterior date. 16. It may be noticed at this stage that Sri K. A. Nayar admits that the Management has no alternative case that the award of 20th January 1981 should be related back to the 1st award of 30th August 1975. Its positive and only case on this point is that the impugned award should be related back to 3rd January 1967 which is the date of the Management's order of dismissal. 17. In the circumstances, I am of the view that the Labour Court has to consider the question afresh. The court must consider whether or not the workmen were justified in contending that the punishment imposed by the Management was vitiated by reason of victimisation. The punishment would amount to victimisation if the court were to find that it was discriminatory or grossly disproportionate to the gravity of the misconduct proved or so monstrous that no reasonable employer would have imposed in the circumstances of the case, and the like. If the Labour Court were to hold that the punishment was vitiated by reason of victimisation, the workmen would be entitled to be reinstated with back wages and other benefits, unless of course they have already reached the age of superannuation, in which event they would be entitled to the financial benefits until then. If the Labour Court were to hold that the punishment was vitiated by reason of victimisation, the workmen would be entitled to be reinstated with back wages and other benefits, unless of course they have already reached the age of superannuation, in which event they would be entitled to the financial benefits until then. If on the other hand the Labour Court were to come to the conclusion that the charge against the workmen was proved and that the punishment imposed upon them was not vitiated by victimisation, the award of the Labour Court shall be effective only as from, the date of publication of the impugned award, i.e., 20th January 1981. That means the workmen would, in that event, be entitled to all the financial benefits as from the date of dismissal, that is, 3rd January 1957 till 20th January 1981. 18. In the light of what is stated above, I quash the impugned award (Ext. P-1) and direct the 2nd respondent the Labour Court, Quilon to reconsider the matter in the light of what is stated above and pass appropriate award. In view of the long delay which has occurred on account of the protracted proceedings, it is necessary that the award is made without further delay. The Labour Court is accordingly directed to come to its findings, after hearing the parties solely on the basis of the evidence already on record, within three months from today. The Original Petition is allowed in the above terms. In the circumstances of this case, the 1st respondent shall bear the costs of the petitioner in the present proceeding including Rs. 500 as counsel's fee. Send back the records immediately.