JUDGMENT 1. - In this writ petition the petitioner has challenged award dated July 31, 1990 passed by the Labour Court, Jaipur in respect of reference made by the State Government regarding the termination of service of Shri Jamansingh Shekhawat who was employed as a conductor with the Rajasthan State Road Transport Corporation and whose case was espoused by the Transport Workers Union. 2. According to the petitioner, workman Shri Jamansingh Shekhawat was employed as a conductor on daily basis in the service of the Corporation with effect from March 28, 1983. Some allegations were made against the workman of having carried passengers and luggage without ticket. His service was discontinued on May 18, 1983. He was again employed on June 21, 1583 in the same capacity. His bus was again checked on December 21, 1983. It was found that 2 - passengers were travelling without ticket. A report was prepared. His name was struck off from the rolls. He was once again employed on May 4, 1984. On account of the allegations of misconduct of taking two passengers without ticket, he was again discharged from service with effect from August 14, 1984. 3. The Transport Workers Union espoused case of the termination of the service of Shri Jamansingh Shekhawat and after failure report was submitted by the Conciliation Officer, the Government made a reference to the Labour Court, Jaipur for adjudication of the dispute relating to the termination of the service of Shri Jaman Singh Shekhawat. 4. The Union filed a statement of claim before the Labour Court alleging that the workman had completed 240 days of service and therefore, without complying with the provisions of section 25F of the Industrial Disputes Act 1947, the employer could not terminate his services. It was also claimed that the termination was by way of punishment. The petitioner submitted a reply in which the claim of the workman regarding the period of service of 240 days in the preceding 12 months was disputed. 5. During the pendency of the proceedings before the Labour Court an application was moved on behalf of the Corporation that it may be permitted to lead evidence in order to prove misconduct of the employee. This application was accepted and the petitioner was allowed to lead evidence to prove the misconduct. 5. During the pendency of the proceedings before the Labour Court an application was moved on behalf of the Corporation that it may be permitted to lead evidence in order to prove misconduct of the employee. This application was accepted and the petitioner was allowed to lead evidence to prove the misconduct. According to the petitioner, before it could lead evidence, an application dated 31.7.1990 was made on behalf of the employee that the employee accepts the guilt in respect of the allegations of misconduct levelled against him. After hearing the parties, the Labour Court passed on award on July 31, 1990,but directed the reinstatement of the worker with continuity of service from August 15, 1984. However, instead of ordering back wages, the learned Labour Court directed that a sum of Rs. 5000/- may be paid to the workman and remaining salary be forfeited by way of punishment. Thus in substance the judge, Labour Court substituted the punishment of dismissal from service to the one of forfeiture of back wages, except a sum of Rs. 5000/-. 6. In assailing the award passed by the learned Judge, Labour Court, the learned counsel for the petitioner has argued that the Labour Court has no jurisdiction to interfere with the order of punishment passed by the employer. The Labour Court had completely ignored the fact that the employees had admitted his guilt in respect of the allegations of misconduct of having carried 21/2 passengers without ticket. The learned counsel argued that the post of conductor is a post of trust and if an allegation of breach of such trust is found to be proved, it is not open to the adjudicating authority under the Industrial Disputes Act 1947 to substitute the punishment imposed by the employer on such an employee. Shri Manish Bhandari, learned counsel for the petitioner further submitted that in any case Labour Court ought not to have awarded a sum of Rs. 5000/- towards the amount of back wages. 7. I have carefully looked into the award passed by the Labour Court and I have considered the argument of the learned counsel for the petitioner. In my opinion, the writ petition has no merit and deserves to be dismissed. 8. The termination of the service of the employee was ordered on August 15, 1984. 7. I have carefully looked into the award passed by the Labour Court and I have considered the argument of the learned counsel for the petitioner. In my opinion, the writ petition has no merit and deserves to be dismissed. 8. The termination of the service of the employee was ordered on August 15, 1984. The Union had pleaded before the Labour Court that the employee had been removed on the basis of allegations of misconduct without any inquiry and without compliance of section 25F of the Industrial Disputes Act 1947 although the employee had rendered service of more than 240 days in a calender year. A prayer was made for setting aside of the order of termination and reinstatement with back wages. The petitioner pleaded that the workman had been engaged in the past also, but was removed for having carried passengers without ticket and an employee could be removed from service under the standing order without any notice or inquiry. Since he was found to be carrying two passengers without ticket on August 13,1984 his service was terminated. He had worked only for 102 days and, therefore, it was not necessary to comply with the provisions of section 25F of 1947 Act. The petitioner had admitted before the Labour Court that no domestic inquiry had been held and precisely for this reason it had moved an application before the labour court for holding an inquiry in respect of the allegations of misconduct levelled against the workman. An application was made on July 31, 1990. Permission was granted by the labour court with the condition that the employer will pay subsistence allowance to the employee during the period of such inquiry. Upon this, the employee made an application and accepted the charges levelled against him. He stated that he is out of employment since August 15, 1984 and was unemployed since then. It was difficult for him to sustain his family and the inquiry was likely to take some time and therefore, he was accepting the allegations. The labour court held that in view of this acceptance of guilt by the employee the charge of carrying two passengers without ticket was established. It, however, held that the punishment imposed on the employee was highly excessive and unreasonable. The employee had attained the age of 34 years and was not eligible for a fresh employment. The labour court held that in view of this acceptance of guilt by the employee the charge of carrying two passengers without ticket was established. It, however, held that the punishment imposed on the employee was highly excessive and unreasonable. The employee had attained the age of 34 years and was not eligible for a fresh employment. His two minor children, the wife and old parents were dependent on him. It, therefore, concluded that instead of the penalty of removal from service, it will be appropriate to punish him with forfeiture of the salary for the period of one employment except a sum of Rs. 5000/-. 9. Section 11 A of the Industrial Disputes Act 1947 empowers the Industrial Tribunal or the Labour Court to modify, substitute or set aside the punishment imposed by the employer as a result of a domestic inquiry held against an employee. The Tribunal or the Labour Court virtually acts as a Court of appeal on the question of quantum of punishment. It has a discretion to interfere with the quantum of punishment imposed on the employee. This principle of law is now well settled. Reference in this connection may appropriately be made to Gujrat Steel Tubes Ltd. v. Members Majdoor Sabha, A.I.R. 1980 S.C. 1896. 10. Every employer has a right to terminate the employment of its employee at any time. The power to appoint carries with it, power to terminate the employee. This is a settled principle of any law and is also incorporated in the General Clauses Act. However, some exceptions have been carved out from this common law right of the employer to terminate the employment its employee at any time. Where the relationship of master and servant is governed by the provisions of Constitution or the statutory rules, or where the employer is a public body, it cannot terminate the service of its employee by way of punishment except after compliance of the rules of procedure regarding domestic/departmental inquiry or where no such rules exist, without complying with the principles of natural justice. The services of the employees who are governed by the provisions of the Industrial Disputes Act also cannot terminate by way of punishment even by a private employer without holding an inquiry in conformity with the principles of natural justice. The services of the employees who are governed by the provisions of the Industrial Disputes Act also cannot terminate by way of punishment even by a private employer without holding an inquiry in conformity with the principles of natural justice. Under the Industrial Disputes Act 1947 Labour Court or the Industrial Tribunal has the powers to quash an order of termination by way of punishment and order reinstatement of the employee with or without back wages. There have been cases where the service of an employee is terminated without inquiry or after holding an inquiry which is found defective or invalid for some other reason. Upto the year 1972 the law laid down by the Apex Court of the country was that once labour Court or the Tribunal found that the inquiry held by the Tribunal found that the inquiry held by the employee is defective, the only course open to the labour court or Tribunal was to set aside the termination of the service and order reinstatement, leaving the employer free to hold the inquiry afresh. In Delhi Cloth Mills Ltd. 's case2 their Lordships of the Supreme Court laid down that the employer can make application before the Tribunal making a prayer that validity of inquiry may be decided as a preliminary issue and in case the inquiry is found to be defective it may be given opportunity to lead evidence to prove the misconduct against the employee. This principle has consistently been followed in all subsequent decisions of the Appex Court and the various High Courts. 11. There has, however, been a controversy as to whether the award passed by a labour court or the Industrial Tribunal upholding the dismissal, removal or discharge of the employee by way of punishment, will relate back to the date of the order of punishment passed by the employer even though the departmental or domestic inquiry may be found defective and the employer proves the allegations of misconduct before the Labour Court or the Industrial Tribunal after seeking permission to lead evidence for proving the allegation of misconduct. In Sasa Musa Sugar Works Private Ltd. v. Shobrati Khan, A.I.R. 1963 S.C. 1756 , where the question of seeking permission under section 33(1) of the Industrial Disputes act 1947 was involved the Court observed : "As the management held no inquiry after suspending the workman and proceedings under section 33 were practically converted into the inquiry which normally the management should have before applying to the Industrial Tribunal, the Management is bound to pay the wages of the workman till a case for dismissal was made out in the proceedings under section 33." 12. In P.H. Kalyani v. M/s Air France, Calcutta, A.I.R. 1963 S.C. 1500 , their Lordships of the Supreme Court were examining the scope of section 33 (2)(b) of the Industrial Disputes Act 1947. After discussing the scope of the provisions contained in section 33(2)(b) of 1947 Act with references to earlier decision rendered in Straw Board Manufacturing Co. Ltd. v. Govind, AIR 1962 SC 1500 , their Lordships observed that where the employer has held an inquiry which is not defective and has passed an order of dismissal and seeks approval of that order, 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 employer had bona fide come to the conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bonafide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the labour court would grant the approval which would relate back to the date from which an employer had ordered the dismissal. If the inquiry is defective for any reason, the labour court would have also to consider for itself on the evidence before it as to 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. 13. In D.C. Roy v. Presiding Officer Labour Court, A.I.R. 1976 S.C. 1760 , a similar question again arose for consideration. After making reference to some earlier decisions including M/s Sasa Musa Sugar Works Pr. 13. In D.C. Roy v. Presiding Officer Labour Court, A.I.R. 1976 S.C. 1760 , a similar question again arose for consideration. After making reference to some earlier decisions including M/s Sasa Musa Sugar Works Pr. Ltd. v. Sobhrati Khan (3) and P.H. Kalyani v. M/s Air France (4) their Lordships observed that if an inquiry had been held by an employer and the employer had come to the conclusion that the dismissal was the proper punishment but the labour court finds that the inquiry was defective and it granted permission to the employer to prove the charge afresh, the punishment if ultimately upheld by the Labour Tribunal or the Tribunal will relate back to the date when the order was passed by the employer. Para 12 and 13 of the aforesaid may be reproduced in order to clearly understand the principles laid down in that case as under: "12. Counsel for the appellant also relied on the decision of this Court in M/s Sasa Musa Sugar Works(P) Ltd. v. bhrati Khan, 1959 Supp(2) SCR 836-(A.I.R. 1959 SC 923) but that case is clearly distinguishable. As pointed out by this Court in P.H. Kalyani's case (A.I.R.1963 S.C. 1756), 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. Kalyani's 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)". 13. "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)". 13. The second contention must also therefore fail. We would, how-ever, like to add that the decision in P.H. Kalyani's case ( AIR 1963 SC 1756 ) is not to be construed as a charater 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 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 inquiry, 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 "relating-back" doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof." In Gujarat Steel Tubes Ltd. v. Members Majdoor Sabha the Court held that Kalyani's case related to approval and therefore, theory of 'relate back' was justified, but if the order of dismissal is void, theory of 'related back' cannot be applied. The Court observed that if the Tribunal, for the first time, passed order recording a finding of misconduct and thus breaths life into the dead shell of the amendment order pre-dated the nativity does not arise. Their Lordships reiterated the observations made in D.C. Roy's case (Supra) that where the management discharges a workman by an order which is void for want of an inquiry or for the blatent violation of the Rules of natural justice, the 'relate back' doctrine cannot be invoked. The jurisprudential difference between a void order which by a subsequent judicial resuscitation comes into being denovo and an order which may suffer from some defects but is not still born or void and all that is needed in the law to make it good is a subsequent approval by the Tribunal which cannot be obfuscated. The jurisprudential difference between a void order which by a subsequent judicial resuscitation comes into being denovo and an order which may suffer from some defects but is not still born or void and all that is needed in the law to make it good is a subsequent approval by the Tribunal which cannot be obfuscated. The theory of 'relate back' in respect of back wages has been negatived, in a recent decision of their Lordships of the Suprema Court in Desh Raj Gupta v. Ind. Tribunal U.P., Judgment Today 1990 (4) S.C. 403 . Their Lordships have clearly held that if the order of dismissal or discharge by way of punishment is held to be good on the basis of the evidence led before the Labour Court or Industrial Tribunal, the employer is bound to pay back wages between the date of the dismissal order passed by it and the award passed by the labour court or the Tribunal. 14. From the analysis of the ratio of the various decisions, I am of the opinion that where the employer does not held any enquiry before passing the order of punishment of dismissal, removal or discharge by way of punishment and leads evidence before the Tribunal to prove the charge of misconduct levelled against the employee it is bound to pay back wages to the employee for the period between the date of its order and the date of the award passed by the labour court or the Tribunal. Similarly if the inquiry held by the employer is wholly defective or there is a clear violation of the principles of natural justice the employer will have to pay back wages. The law laid down in P.H. Kalyani's case or D.C. Roy's case (supra) cannot be held applicable in case other than those of approval under section 33(2)(b) and in Gujarat Steel Tube's case (supra) their Lordships rightly observed that in cases of approval the Labour Court or the Tribuanal merely affirmed the action taken by the employer. 15. Even otherwise it is reasonable to hold that the employee is entitled to back wages if the employer either holds no inquiry or the inquiry is held in clear disregard of the principles of natural justice. 15. Even otherwise it is reasonable to hold that the employee is entitled to back wages if the employer either holds no inquiry or the inquiry is held in clear disregard of the principles of natural justice. But for the judicial enunciation of the theory of permission to the employer to prove allegations of misconduct before the Labour Court or the Tribunal, the adjudicating authority was required to set aside or quash the order of punishment where no inquiry was held or the inquiry was defective and even leave the employer to hold domestic /departmental inquiry afresh and pass order of punishment afresh. In that event the employer was bound to make payment of wages to the employee or the amount of subsistence allowance where the employee was under suspension and Rules provided the payment of subsistence allowance only during the period of suspension. The employer cannot be given the benefit of its own fault of either not holding any inquiry at all or of holding defective inquiry before the passing of dismissal, removal or discharge by way of punishment. The theory of permission to the employer to lead evidence to prove the charge of misconduct was innovated in order to avoid delay in the holding of domestic inquiry /departmental inquiry afresh by the employer which it could do after quashing of the order of dismissal by the labour court or the Tribunal. However, that can hardly provide a ground to the employer to deny wages to the employee if the period during which he was kept out of employment on the basis of an unlawful order of dismissal, removal or discharge from service. 16. Now in the present case it is evident from the admitted facts that no inquiry was held before the order of termination of service was passed by the petitioner. For the first time, it sought permission to lead evidence for proving the charge of misconduct before the Labour Court by making application under section (sic) 31.7.90 having suffered the truma of remaining out of employment for more than six years, the employee admitted the guilt on that very day i.e. 31.7.90, presumably on an understanding that he would be dealt with leniently. The Labour Court accepted the submission made on behalf of the employee containing admission of guilt and held the charges proved. The Labour Court accepted the submission made on behalf of the employee containing admission of guilt and held the charges proved. However, after taking note of the age of the employee, his family circumstances, and the long period for which the matter had remained pending it thought it proper to exercise his dis certain to substitute the penalty. The Labour Court in its discretion ordered that the employee had (sic) reinstated but he will not be entitled to back wages for a period of separating almost six years, excepting a sum of Rs. 5,000/-. It ordered forfeiture of the remaining salary. In my opinion, the award passed by the Labour Court can neither be said to be in excess of its jurisdiction nor can it be said that the exercise of discretion by the labour court is perverse. Even if the High Court was to come to a different opinion on the question of the quantum of punishment, that will not furnish a ground to hold that the award passed by the labour court is perverse or is arbitrary or that it suffers from an error of law apparent on the face of the record so as to warrant interference in exercise of writ jurisdiction under Article 226 and Article 227 of the Constitution of India. Substantial justice has been done between the parties. 17. The writ petition is, therefore, dismissed.Petition dismissed. *******