JUDGMENT : B.L. Hansaria, C.J. - The petitioner was dismissed from service, while one V.S. Murty was reduced in rank, pursuant to the finding of the enquiring officer that both these, incumbents were guilty of various serious charges framed against them. The petitioner raised an industrial dispute relating to his dismissal and the same was referred by the State Government for adjudication by the Labour Court, Sambalpur. The competency of the State Government to make the reference was challenged before the Labour Court The Presiding Officer, however, held the reference as legal. The validity of the order was assailed before this Court by the Management in O.J.C. No. 474 of 1988 which was disposed of on December 12, 1991 by holding that the appropriate Government to make the reference was the Central Government, and so, a direction was given in that writ application to the Central Government to make the required reference. 2. Though the petitioner raised an industrial dispute relating to his dismissal, the co-delinquent (V. S. Murty), who was held guilty in the joint enquiry, approached the Bombay High Court in Writ Petition No. 529 of 1980 assailing the order of his demotion, inter alia, on the ground that in the domestic enquiry principles of natural justice were violated by not allowing the delinquent legal assistance as prayed for. A learned Single Judge of the Bombay High Court dismissed the petition. On appeal being preferred, a Division Bench set aside the order of punishment in Appeal No. 368 of 1981 by accepting the contention of Murty that the denial of legal assistance in the enquiry violated the principles of natural justice. The order of the Appellate Bench is dated October 3, 1985. The petitioner filed this writ application thereafter on September 1, 1989 challenging the dismissal order, inter alia, on the ground that the principles of natural justice had been violated in the enquiry because of the denial of legal assistance. 3. The order of the Appellate Bench is dated October 3, 1985. The petitioner filed this writ application thereafter on September 1, 1989 challenging the dismissal order, inter alia, on the ground that the principles of natural justice had been violated in the enquiry because of the denial of legal assistance. 3. Shri Rao appearing for the petitioner has contended that as the case of the petitioner stands on the same footing as that of V.S. Murthy, in asmuch as both of them were found guilty in a joint enquiry, the present is a fit case where the dismissal order should be set aside on the ground which had appealed to the Division Bench of the Bombay High Court, against whose order on SLP had been preferred before the Hon'ble Supreme Court which had come to be dismissed. In this connection Shri Das, learned counsel, appearing for the opposite parties, however, draws our attention to the observation made in paragraph 23 of the aforesaid appeal that "nothing stated in the judgment applies or deemed to apply to the appellant's co-delinquent Dora" and that the High Court in which his petition is pending shall deal with the matter in its own merit. Even if we were to examine on our own the contention advanced by the petitioner regarding failure of natural justice in the course of enquiry due to non-allowing of legal assistance to him, we would not have differed from the conclusion arrived at in the aforesaid judgment, as good and cogent reasons have been given for the view taken by the Bench in appeal and as the case of both the petitioner and co-delinquent Murty should be on the same footing in this regard. It may be stated in fairness to Shri Das that he has not contended that the non-providing of legal assistance did not introduce infirmity in the enquiry. Shri Das has taken this correct stand because the Bench decision of the Bombay High Court had been upheld even by the Hon'ble Supreme Court. 4. It may be stated in fairness to Shri Das that he has not contended that the non-providing of legal assistance did not introduce infirmity in the enquiry. Shri Das has taken this correct stand because the Bench decision of the Bombay High Court had been upheld even by the Hon'ble Supreme Court. 4. Shri Das, however, submits that in view of the gravity of the charges, it is a fit case where the validity of the dismissal order should be adjudicated upon by the Labour Court in the proceeding to be commenced before it following reference by the Central Government as ordered by this Court in O.J.C. No. 474 of 1988, inasmuch as, before the Labour Court the Management would get an opportunity to establish the guilt of the petitioner on merits by leading evidence anew even if the domestic enquiry was not fair because of non-allowing of legal assistance to the petitioner, as held by the Bombay High Court. 5. Shri Rao has a basic objection to the matter being adjudicated upon by the Labour Court. He contends that as a stand had been taken by the Management before the Labour Court that the petitioner was not a 'workman' as he was appointed as Co-operative Officer, whose duty was mainly "administrative and supervisory in character drawing salary exceeding Rs. 500/-per month" as mentioned in paragraph 4 of the award of the Labour Court impugned in O.J.C. No. 474 of 1988, the reference to be made by the Central Government would not be maintainable. As to this plea taken by the Management, Shri Das contends that it is one of those usual pleas which is always taken by the Management before an industrial Court. To satisfy our minds that this is so, Shri Das has referred to what has been stated in paragraph 2 of S.K. Verma Vs. Mahesh Chandra and Another, A perusal of that paragraph shows that raising of a preliminary objection regarding the incumbent being not a workman along with other preliminary objections was regarded by the apex Court to have become quite a fashion for the employers. 6. We would not have perhaps given much importance to the aforesaid plea on behalf of the Management had it been vague in nature. 6. We would not have perhaps given much importance to the aforesaid plea on behalf of the Management had it been vague in nature. But what was stated by the Management before the Labour Court cannot be regarded to be vague assertion inasmuch as the ground because of which the petitioner was not regarded as a workman was mentioned by stating that he was discharging a duty which was administrative and supervisory in nature drawing salary exceeding Rs. 500/- per month. We have not thought it fair to disallow the petitioner the benefit of such a specific plea taken by the Management. No doubt, the petitioner had claimed himself to be a workman, but the same was controverted by the Management and the Management cannot now be allowed to depart from its own pleading. 7. Put in this position Shri Das contends that the plea taken is really not sustainable for two reasons. First, though the petitioner was described as "Co-operative Officer", he is yet to be regarded as a 'workman' as defined in Section 2(s) of the Industrial Disputes Act, 1947. The learned counsel contends that the designation of a post is not material to decide the issue and refers in this connection to the aforesaid case of S.K. Verma (supra), wherein a Development Officer of Life Insurance Corporation of India was held to be a workman. 8. Shri Rao counters the aforesaid contention of Shri Das by submitting that the present case does not rest on designation alone. He states that the stand of the Management was also that the functions discharged by the petitioner were "administrative and supervisory in character". And if the character of the functions discharged be "administrative", it is urged that the petitioner would not be a 'workman' as defined in Section 2(s) of the aforesaid Act as it would attract Clause (iii) of the section which excludes a person "employed mainly in a managerial or administrative capacity" from the definition of workman. Shri Das has answer to this submission also and the same is that the plea about the petitioner not being a workman was taken by the opposite parties not because the petitioner was discharging only administrative function but because the nature of the work was supervisory also and he was drawing a salary exceeding Rs. Shri Das has answer to this submission also and the same is that the plea about the petitioner not being a workman was taken by the opposite parties not because the petitioner was discharging only administrative function but because the nature of the work was supervisory also and he was drawing a salary exceeding Rs. 500/- per month; and so the petitioner was not regarded as a workman as at the relevant time a person who was employed in supervisory capacity and was drawing more than Rs. 500/-per month as wages was excluded from the definition of 'workman'. It is urged that by an amendment made in the Act 46 of 1982, the ceiling of Rs. 500/- had been enhanced to Rs. 1600/- and so that petitioner would be a workman by the time reference is made by the Central Government pursuant to the direction of this Court in O.J.C. No. 474 of 1988, The counsel submits that for deciding whether the petitioner would be a workman or not, the relevant date is the date of reference, and not the date of raising of the industrial dispute. To support him on this point, Shri Das has referred to R.G. Makwana v. Gujarat State Road Transport Corporation (1981 I LLJ 172) and Ruston and Hornsby (I) Ltd. Vs. T.B. Kadam, 9. Even if the above legal position is accepted, that would not be the end of the matter inasmuch as the wages to be paid to the petitioner in December, 1991 would have been of Rs. 3,860.00 if the petitioner would have been continued in service as stated in the written submission dated December 17, 1991 put on record by Shri Das. Though in this connection it has been urged by Shri Das that the wages to be drawn by the petitioner in the month of December, 1991 if he would have continued in service is not relevant to decide his status on the date of reference which would be sometime in January/February, 1992 in view of the direction given by this Court in O.J.C. No. 474 of 1988 disposed of on December 11, 1991, we are not in a position to agree with the learned counsel because the two decisions relied on by Shri Das in this connection, which we shall note immediately, do not lend support to his submission, nor the other contentions raised by him. We have said so because the observations made by the apex Court in paragraph-6 of Ruston & Hornby (supra), (one of the two decisions referred to by Shri Das) clearly establish that the test for judging the validity of reference u/s 10 of the Industrial Disputes Act, 1947, depends upon the existence of the fact relevant for making a reference, on the day the reference is made. We cannot adopt two standards, one for deciding whether the petitioner is a workman or not for which purposr the management wants to rely on the amendment of 1982 to contend that on the date of reference the petitioner would be a workman as per the amended definitions; and the other that for deciding the wage drawn by the petitioner, we should confine our attention to the one which he drew on date of dismissal (May 9, 1981), the same being Rs. 760.30 per month, and not the enhanced wage as he would have drawn on the date of reference. If we were to adopt such an approach, the same would tantamount to allowing the management to blow hot and cold at the same time. If for one purpose the validity of reference has to be judged upon the existence of the relevant fact on the day reference is made, for the other purpose also it has to be the same. 10. As to R.G. Makwana (supra), another case relied on by Shri Das, it may be stated that though it is brought to our notice that the Gujarat High Court had taken into consideration the pay drawn at the time of termination of service for deciding whether the incumbent is a workman or not, after holding that the relevant date for deciding this question is the date of reference, a perusal of the judgment shows that there was nothing before the Court to indicate that the salary of the post had been raised subsequently to exceed the limit mentioned in the Amending Act of 1982. We would, therefore, not accept this judgment to hold that for the purpose of deciding whether a person is a workman or not, the salary drawn at the time of termination has to be taken into consideration, even if the validity of the reference is to be judged on the basis of law prevailing on the date of reference. We would, therefore, not accept this judgment to hold that for the purpose of deciding whether a person is a workman or not, the salary drawn at the time of termination has to be taken into consideration, even if the validity of the reference is to be judged on the basis of law prevailing on the date of reference. It would be apposite to state that in the Gujarat case the point with which we are seized had really not come up for examination. 11. As to the contention of Shri Das that in view of the definition of 'wages' in Section 2(rr) of the aforesaid Act, the amount which would have been payable to the petitioner by January/February, 1992, had he continued in service, cannot be deemed to be his wages because a sum of Rs. 3860.00 cannot be said to have become payable to the petitioner if the terms of the employment are not fulfilled, which cannot be so after cessation of employment, we would like to observe that this contention has no relevance because if the validity of the reference has to be adjudged with reference to the date of making of the same, we have to take the wages attached to the post as prevailing on the day of reference. It is not disputed by Shri Das that if this date is taken to be relevant, the wages of the post which the petitioner had held, had been enhanced to a sum exceeding Rs. 1600/- per month. 12. The fact that the dispute raised by the petitioner falls within Section 2-A of the Industrial Disputes Act, which is another contention advanced by Shri Das, is also not relevant because in the case of Ruston & Hornby (supra), the apex Court was seized with a case attracting Section 2-A and the law laid down was that for judging the validity of reference, relevant fact has to exist on the day the reference is made. 13. In view of the above, we hold that no useful purpose would be served by calling upon the Central Government to make a reference, as directed in O.J.C. No. 474 of 1988, as the reference would be incompetent on the ground that the petitioner is not a workman. We, therefore, recall that order. 14. 13. In view of the above, we hold that no useful purpose would be served by calling upon the Central Government to make a reference, as directed in O.J.C. No. 474 of 1988, as the reference would be incompetent on the ground that the petitioner is not a workman. We, therefore, recall that order. 14. Before concluding, we may refer to another submission of Shri Rao, the same being that as by the Amending Act 46 of 1982 the definition of 'industry' as given in Section 2(j) of the Industrial Disputes Act, 1947, was amended excluding Khadi and Village Industries from its ambit, and as the petitioner was an employee of the Khadi and Village Industries Commission, no reference can now be made as the dispute would not be an industrial dispute. Shri Das, however, states that the aforesaid amendment has not yet been brought into force. That this is the position is sought to be brought home by referring to what has been observed in paragraph 6 ot Des Raj and Ors Vs. State of Punjab and Ors, A reference to Notification No. S.O. 606 (E) dated August 21, 1984, as published in the Gazette of India (Ext.) Part II, Section 3(iii) No. 396, dated August 21, 1984 relating to bringing into force the various provisions of the aforesaid Act, supports this observation. So, we cannot entertain this submission of Shri Rao. 15. The result of the foregoing discussion is that the dismissal of the petitioner cannot be upheld as the petitioner was found guilty on the basis of the findings arrived at in a domestic enquiry in the conduct of which principle of natural justice was violated by not allowing the petitioner legal assistance, as prayed for. 16. The petition is, therefore, allowed by quashing the order of dismissal. The petitioner would be reinstated in service making him available all benefits. In so far as back salary is concerned, the same shall be paid at the rate of 50% from May 7, 1981 (the date of dismissal) to February 14, 1986 (the date of dismissal of the SLP by the Hon'ble Supreme Court preferred against the judgment of the Bombay High Court in Appeal No. 368 of 1981), and at full rate from September 1, 1989 (the date of filing of this petition) till the date of reinstatement. Necessary order in this regard shall be passed within one month from today. We have ordered for payment of 50% of the back salary for the period from May, 7 1981 to February 14, 1986 because it may be said that by that date the management was not aware of violation of the principles of natural justice in the conduct of the enquiry. So, we are not saddling the management to pay 100% of the back salary. We have allowed 50% of the back salary for the aforesaid period to the petitioner because after all, his dismissal is not being set aside on merits. But then, we have ordered the management to pay the back salary at full rate from September 1, 1989, the date of filing of this petition, till the date of reinstatement because long before that the management had known even about the dismissal of the SLP by the Hon'ble Supreme Court preferred against the judgment of the Bombay High Court, and so, the infirmity of the enquiry had become established. It should have, therefore, reinstated the petitioner as well in service at least after knowing about the approach of the petitioner to this Court assailing the dismissal order on the ground on which the demotion of Mr. Murthy bad been finally struck down. We may also say here that we have not awarded any back salary from February 15, 1986 to August 31, 1989 because of the laches on the part of the petitioner in approaching this Court only on September 1, 1989 despite the dismissal order of the Hon'ble Supreme Court mentioned above having been passed on February 14, 1986; and also because he is resisting the prayer of the management in allowing the matter relating to the legality of the dismissal from service to be agitated before the Labour Court pursuant to the fresh reference to be made by the Central Government as directed in O.J.C. No. 474 of 1988, despite the submission made by Shri Das that in the adjudication to be made by the Labour Court, the management would not raise the question of the petitioner not being a workman. 17. We may, however, state that the opposite parties would be at liberty to hold a fresh enquiry, if so advised. 17. We may, however, state that the opposite parties would be at liberty to hold a fresh enquiry, if so advised. In that event, the enquiry shall be commenced within one month from to day and shall be concluded as expeditiously as possible, preferably within a period of six months from the date of its commencement. We have granted six month's time keeping in view the fact that in the enquiry which was conducted earlier, a large number of witnesses were examined by both the sides apart from exhibiting a number of documents. 18. The fact of recall of the judgment dated December 11, 1991 passed in O.J.C. No. 474 of 1988 shall be noted in that case also. B.N. DASH, J.-I agree. Final Result : Allowed