A. K. Shrivastava v. Presiding Officer, Central — 1997 DIGILAW 69 (MP)

ORDER C.K. Prasad, J. 1. Whether the date of termination shall date back to the date of the original order passed by the employer or shall be the date of award, in a case where the departmental enquiry which resulted into termination of service is held to be vitiated, but the misconduct is proved in the proceeding before the Labour Court, is the question, which falls for determination in all these writ petitions. 2. Shri R. K. Gupta, appearing on behalf of the petitioners i.e. workman contends that the departmental enquiry which led to dismissal of a workman having been held to be bad in the proceeding before the Labour Court, the termination order will not date back to the date of order passed by the employer. In support of the aforesaid submission Shri Gupta has placed reliance on a three Judges Bench Judgment of the Apex Court in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 (2) SCR 146 and my attention has been drawn to the following passage from the said Judgment: "Kalyani was cited to support the view of relating back of the award to the date of the employer's termination orders. We do not agree that the ratio of Kalyani corroborates the proposition propounded. Jurisprudentially, approval is not creative but confirmatory and therefore relates back. A void dismissal is just void and does not exist. If the Tribunal, for the first time, passes an order recording a finding of misconduct and thus breathes life into the dead shell of the Management's order, predating of the nativity does not arise. The reference to Sasa Musa in Kalyani enlightens this position. The latter case of D.C. Roy v. The Presiding Officer, Madhya Pradesh Industrial Court, Indore, (1976) 3 SCR 801 specifically refers to Kalyani's case and Sasa Musa's case and holds that where the Management discharges a workman by an order which is void for want of an enquiry or for blatant violation of rules of natural justice, the relating-back doctrine cannot be invoked. The jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, 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 a tribunal which is granted, cannot be obfuscated." Further reliance has been placed by Shri Gupta on a decision in the case of Desh Raj Gupta v. Industrial Tribunal IV U. P. Lucknow, 1991 LLR 6 (SC) = 1990 Lab.I.C. 1892. My attention has been drawn to the following passage from the Judgment of Desh Raj (supra): "The second ground urged in support of the appeal appears to be well founded. The learned counsel is right in relying on the observations in Gujarat Steel Tubes Ltd. v. Steel Tubes Mazdoor Sabha, (1980) 2 SCR 146 at page 215 = 1980 Lab.I.C. 1084 at page 1041 that if the order of punishment passed by the management is declared illegal and the punishment is upheld subsequently by a labour tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employer. The appellant is, therefore, entitled to his salary from 16-8-1976 to 20-7-1980 and the entire amount should be paid by the respondent Bank within a period of three months from today. If the amount is not paid or offered to the appellant as directed, the respondent Bank will be liable to pay interest thereon at the rate of 12% per annum for the future period commencing on the date of expiry of three months from today till the same is realised." In the case D.C. Roy v. The Presiding Officer, Madhya Pradesh Industrial Court, (1976) 3 SCR 801 the Supreme Court held as follows : "The observations extracted earlier from the judgment of a 3 Judges Bench in Metal Imperial's case (p. 187 of the Report), on which the appellant relied strongly prima facie support the appellant's contention that if an inquiry is found to be defective, the employer can make good the defect by producing the necessary evidence before the Labour Court but that in such a case he will have to pay wages upto date of the decision of the Labour Court even if that decision went in his favour. The particular observations purport to summarise what was decided by the same Bench a fortnight earlier in Phulbari Tea Estate v. Its Workmen. Learned counsel for the respondent took us closely through the judgment in Phulbari Tea Estate but we are unable to find anything in that judgment showing that whenever there is a defect in a Domestic inquiry, the employer would have to pay wages upto the date of the award of the Labour Court or the Industrial Tribunal even if the order passed in the Domestic inquiry was ultimately upheld by the Labour Court or the Tribunal. In Phulbari Tea Estate (supra) the domestic inquiry was in gross violation of the fundamental principles of natural justice was therefore vitiated. The employers did not lead proper evidence before the Tribunal to justify the order of dismissal and were content merely to produce before the Tribunal the statements which were recorded during the inquiry. The employee therefore, had no opportunity to cross-examine the witnesses before the Tribunal. Since the inquiry was bad and the Tribunal had no evidence before it to sustain the order of dismissal it set aside the order but held that in the peculiar circumstances of the case, the employee may be granted the alternative relief of compensation instead of an order of reinstatement. The Tribunal accordingly granted to the employee pay and allowance from the date of his suspension till payment. The award of the Tribunal was upheld in appeal by this Court. It shall have been seen that in the case of Phulbari Tea Estate (supra) the employers made no attempt to make good the defect in the inquiry by producing necessary evidence before the tribunal and by affording an opportunity to the employee to cross-examine their witnesses. This left the matters where they were, as observed by Wanchoo, J. who spoke on behalf of the Court, with the result that the Tribunal which found that the inquiry was vitiated has no evidence before it to examine the legality and propriety of the order of dismissal. In the instant case, the Domestic inquiry was held to be in violation of the principles of natural justice but the employer led evidence before the Labour Court in support of the order of dismissal and on a fresh appraisal of that evidence, the Labour Court found that the order of dismissal was justified. In the instant case, the Domestic inquiry was held to be in violation of the principles of natural justice but the employer led evidence before the Labour Court in support of the order of dismissal and on a fresh appraisal of that evidence, the Labour Court found that the order of dismissal was justified. The Ratio of P. M. Kalyani's case would therefore, govern the case and the Judgment of the Labour Court must relate back to the date on which the order of dismissal was passed." In Rambahu Vyankuji Kheragade v. Maharashtra Road Transport Corporation, 1995 Supp. (4) SCC 157, it was held as follows : "We do not agree with the contentions raised by the learned counsel. We are of the view that the enquiry held against the appellant by the Corporation in the instant case did not suffer from defects which were as serious or fundamental as to render the same non est. We have perused Part I of the award wherein the Labour Court has held the domestic enquiry to be unfair. The defects on the basis of which the domestic enquiry was held to be unfair did not go to the root of the case and as such it is not possible to hold that the said enquiry was void and non est. We see no ground to interfere with the judgment of the High Court. We agree with the reasoning and the conclusion reached therein. The appeal is dismissed. No costs." A Constitution Bench of the Apex Court in the case of P. M. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104 , held as follows : "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. No costs." A Constitution Bench of the Apex Court in the case of P. M. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104 , held as follows : "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." Shri Menon submits that the decision on which the petitioners have placed reliance came up for consideration before the Supreme Court in the case of R. Thiruvirkalam v. The Presiding Officer, 1997 LLR 12 and the Apex Court on analysis of all the authorities on the subject held as follows :- "As a result of the aforesaid decision it must be held that the only point involved for decision in the appeal is concluded against the appellant by the Constitution Bench decision of this Court in Kalyani and the observations to the contrary in Gujarat Steel, are, therefore, percuriam and not binding. The order of punishment in the present case operated from November 18, 1981 when it was made by the employer and not from December 11, 1985 when the Labour Court gave its Award. The appellant is, therefore, not entitled to any relief. 13. The appeal, accordingly dismissed without any costs. Appeal dismissed." Shri Gupta however submits that although the decision of the Apex Court in R. Thiruvirkalam (supra) has answered the question against the workmen but the same is not binding on this Court as the aforesaid decision has been rendered by a two Judges Bench of the Apex Court, whereas Gujarat Steel (supra) on which the petitioners have placed reliance, was rendered by a three Bench decision of the Apex Court. 3. Having given my most anxious consideration to the rival submissions, I am of the view that the Judgment in R. Thiruvirkalam (supra) is binding on me. 3. Having given my most anxious consideration to the rival submissions, I am of the view that the Judgment in R. Thiruvirkalam (supra) is binding on me. While rendering the said Judgment the Apex Court placed reliance on a Constitution Bench Judgment of the Apex Court in the case of Kalyani (supra) and after referring to the said case the Apex Court found 'the authoritative pronouncement of the Constitution Bench in Kalyani's case puts the matter beyond doubt. 4. I am of the opinion that when a Judgment of the Apex Court is explained by the same court in a particular manner, the explanation of the earlier Judgment by the later Judgment may be by smaller Bench, is binding on me. In Thiruvirkalam (supra) the Apex Court held as follows : "We may now refer to later decisions of this Court in Desh Raj Guptav. Industrial Tribunal TV U. P. Lucknow and Rambahu Vyankulji Kheragade v. Maharashtra Road Transport Corporation, 1990 Supp.(1) SCR 411. In Rambahu, Kalyani and D.C. Roy were followed by a two Judges Bench and similar view was taken that the order of dismissal takes effect from the date on which it was originally passed and not from the date of the Labour Court's award when the Labour Court after holding the domestic inquiry to be defective reaches the conclusion on the evidence adduced before it that punishment awarded was justified. However, in Desh Raj Gupta the observations in Gujarat Steel were relied on for taking a different view without any reference to either Kalyani or D.C. Roy which appear to have been overlooked. In these circumstances the decision in Desh Raj Gupta cannot be treated as an authority on the point. Both these decisions were by two Judges Bench." Thus the Judgment of the Apex Court in R. Thiruvirkalam (supra) binds me and accordingly I have no hesitation in holding that the contention of the petitioners that the dismissal in the case should take effect from the date of the award of the Labour Court, cannot be sustained. 5. The only submission made on behalf of the petitioners having failed, I do not find any merit in these writ petitions and they are dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. Security amount, if deposited, be refunded to the petitioners.