JUDGMENT : Mr. M.N. Bhandari, J. 1. By this writ petition, A challenge is made to the order dated 14.5.2015, passed by the labour Court, Jaipur. The application submitted by the respondent-workman for Grant of subsistence allowance, on Holding Domestic Enquiry to be unfair, has been allowed. The Petitioner Corporation has been directed to pay subsistence allowance to the respondent-workman since 31.1.2015, I.E., The date of filing of application. 2. It is coming out from the writ petition that after punishment of dismissal from service, a dispute was raised by the workman and had been referred to the Labour Court for its adjudication vide order dated 12th April, 2007. The respondent-workman submitted statement of claim, which was duly replied by the petitioner Corporation. The Labour Court thereupon heard the case and found domestic enquiry to be unfair and defective vide order dated 7th January, 2015. The respondent-workman had preferred an application on 13th January, 2015 to seek interim relief. It was for subsistence allowance from the date of termination, i.e., 3rd February, 2005. It was as per para 35 of the Rajasthan State Road Transport Workers Workshop and Employees Standing Orders, 1965 (for short "certified standing orders"). The Labour Court allowed the application thus challenge to the said orders has been made. 3. Learned counsel for both the parties contested the case and have referred various judgments to support their case. The issue for my consideration is as to whether the interim relief granted by the Labour Court can be said to be incidental to the dispute referred to it and a direction for subsistence allowance can be given, as is provided to an employee under suspension. 4. Para 35 of the certified standing order applies to the suspended employees and not to a person out of service on dismissal from service. If the interim relief in the shape of subsistence allowance is allowed after holding enquiry to be unfair and, thereupon, in the enquiry held before the Labour Court, charge is found proved by the Labour Court and no interference in the order of punishment is made, the order of dismissal from service becomes operative from the date, it was issued. In that case, payment during the intervening period would become improper. 5. To consider the issue aforesaid, I have gone through the terms of the reference before the Labour Court for its answer. In that case, payment during the intervening period would become improper. 5. To consider the issue aforesaid, I have gone through the terms of the reference before the Labour Court for its answer. It is pertaining to the order of punishment dated 3rd February, 2005, whereby, the respondent-workman was dismissed from service after holding enquiry. On a dispute against the order of punishment, it was referred to the Labour Court. After exchange of pleadings, the case was heard on fairness of enquiry. The domestic enquiry conducted by the petitioner Corporation was held to be unfair by the Labour Court. In view of the prayer of the petitioner Corporation, they were permitted to lead evidence to prove the charge before the Labour Court and at the same time, the respondent-workman to defend his case by leading evidence. An application was filed for grant of interim relief. It was allowed with a direction to pay subsistence allowance from the date of application. The order has been passed in reference to para of the certified standing orders without even considering as to what is provided therein. 6. The para 35 of the certified standing orders provides for payment of subsistence allowance during the period of suspension, which is not the case to herein. The respondent-workman cannot be treated to be under suspension after the order of dismissal from service. The punishment is not nullified even after holding enquiry to be unfair. The stage of suspension comes prior to the order of punishment and not subsequent to it. Learned Labour Court has failed to consider this aspect while relying on para 35 of the certified standing order for grant of subsistence allowance from the date of application. 7. The question further comes as to whether grant of interim relief, on holding enquiry, to be unfair is just and proper. 8. To answer the question aforesaid, this Court needs to consider various judgments of the Apex Court and High Courts. It is settled law of the land that if the domestic enquiry conducted by the employer is held to be defective or unfair followed by enquiry before the Labour Court then the Tribunal/Court would first record its finding on the proof of charges. If it is found proved by the evidence led before the Labour Court then it would consider as to whether the order of punishment is justified or not. If it is found proved by the evidence led before the Labour Court then it would consider as to whether the order of punishment is justified or not. If both the questions are answered in favour of the employer then the order of punishment would take effect from the date, it was issued by the employer and no from the date when award is passed by the Labour Court. The issue aforesaid was decided by the Apex Court in the case of P.H. Kalyani v. Air France Calcutta reported in (1963) ILLJ 679 SC. It was followed in the case of Engineering Laghu Udhyog Employees Union v. The Judge, Labour Court and Industrial Tribunal & Anr. reported in (2003) 12 SCC 1 and relevant paras of the said judgment are quoted hereunder for ready reference: "4. Learned senior counsel appearing for the appellant urged that the view taken by the High Court to the extent it held that the orders of termination would relate back to the date of the original order of' termination, is erroneous and relied upon a 3-Judges Bench decision of this Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 1LLJ 137 SC. 5. Having heard the matter, we are of the view that the said submission cannot be accepted as this question stands concluded by a Constitution Bench decision of this Court in P.H. Kalyani v. M/s. Air France, Calcutta, (1963) I LLJ 679 SC. In P.H. Kalyani's case (supra), it was held by the Constitution Bench that where a domestic inquiry is found defective and the employer leads evidence before the Labour Court and subsequently the Labour Court gives its approval that the charges are proved, the order of termination would relate back to the date of original order of termination. This decision was followed in Punjab Dairy Development Corporation Ltd. and Anr. This decision was followed in Punjab Dairy Development Corporation Ltd. and Anr. v. Kala Singh and Ors., (1997) I ILLJ 1041 SC wherein it was said that the Constitution Bench decision in P.H. Kalyani's case (supra) and the decision in R. Thiruvir Kolam v. Presiding Officer : (1997) I LLJ 400 SC have held that when Labour Court records a finding that the domestic inquiry was defective and opportunity was given to the management and the workman to adduce evidence and Labour Court upholds dismissal order passed by the management, the dismissal order would relate back to the date of order of original dismissal and not from the date of award of the Labour Court. In Vishweshwaraiah Iron and Steel Ltd. v. Abdul Gani and Ors., : (1997) 8 SCC 713 , this Court, however, observed that some of the decisions rendered by this Court subsequent to P.H. Kalyani's case (supra) require a retook as the same are not in consonance with the Constitution Bench decision. The same Bench in Director, Stale Transport Punjab and Anr. v. Gurdev Singh and Anr., (1998) 2 SCC 159 held that where an order of termination is found defective having been passed contrary to the principles of natural justice and the employer before Labour Court has adduced evidence to prove the charges and the Labour Court comes to the conclusion that the charges are proved, in such a situation the order of dismissal will relate back to the original order of termination. In Rambahu Vyankuji Kheragade v. Maharashtra Road Transport Corporation,: (1996) II LLJ 733 SC, it was held that the effective date of dismissal after domestic inquiry if Labour Court finds the inquiry to be unfair and as such gives the employer an opportunity to prove the charge and finally upholds the dismissal, will relate back to the date of original order. This has been the consistent view of this court. 6. Section 11A of the industrial Disputes Act, 1947 (for short 'the Act' confers a wide power upon the Labour Court, Tribunal or the National Tribunal to give appropriate relief in case of discharge or dismissal of workman. This has been the consistent view of this court. 6. Section 11A of the industrial Disputes Act, 1947 (for short 'the Act' confers a wide power upon the Labour Court, Tribunal or the National Tribunal to give appropriate relief in case of discharge or dismissal of workman. While adjusting on a reference made to it, the Labour Court, Tribunal or the National Tribunal, as the case may be, if satisfied that the order of discharge of dismissal was not justified it may, while setting aside the same, direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstance of the case may require. Thus, only in a case where the satisfaction is reached by the Labour Court or the Tribunal, as the case may be, that an order of dismissal was not justified, the same can be set aside. So long as the same is not set aside, it remains valid. But once whether on the basis of the evidences brought on record in the domestic inquiry or by reason of additional evidences brought on record in the domestic inquiry' or by reason of additional evidence the employer makes out a case justifying the order of dismissal, we fail to understand as to how such order of dismissal can be given effect to only from the date of the award and not from the date of passing of the order of punishment. The distinction sought to be made by this Court in some of the matters including Gujarat Steel Tubes (supra), in our opinion, is not based on a sound premise, particularly when the binding decisions of this Court in Motipur Sugar Factory's case (supra) and Workmen of Messers Fire stove Tyre and Rubber Company of India (P) Ltd. v. Management and Ors., (1973) I LLJ 278 SC have not been taken note of. 7. In the present case, we find that the charges were proved before the Labour Court and, thus, the High Court was correct in holding that the order of termination would relate back to the date of original order. 9. A further reference of the earlier judgment in the case of Punjab Dairy Development Corporation Limited and another, etc. v. Kala Singh, etc. 9. A further reference of the earlier judgment in the case of Punjab Dairy Development Corporation Limited and another, etc. v. Kala Singh, etc. reported in (1997) 6 SCC 159 would be relevant where same proposition of law has been reiterated by the Court. Para Nos. 1 and 2 of the said judgment are quoted hereunder for ready reference: "1. This matter has come up by way of reference made by a Bench of three Judges to consider the correctness of the decision of this Court in Desh Raj Gupta v. Industrial Tribunal, IV, U.P. & Am. (1991) I LLJ 120 SC. With a view to appreciate the contention of the parties, it is necessary to record few relevant facts. While the respondent was working as a Dairy Helper-cum-Cleaner for collecting the milk from various centers, he was charged for the misconduct that on April 28, 1990 and on other dates, he inflated the quantum of the milk supplies in milk centers to the appellant-Corporation and also inflated the quality of the fat contents, while there were less fat contents. After conducting the domestic enquiry, the disciplinary authority dismissed him from service. On reference, the Labour Court found that the domestic enquiry conducted by the appellant was defective. Consequently, opportunity was given to the Management to adduce evidence afresh to justify the order of dismissal. Accordingly, evidence was adduced by the appellant as well as the delinquent-respondent. On consideration of the evidence, the Labour Court by its award dated 14.11.1990 held that the charge had been proved against the respondent. On the quantum of punishment, it was held that the punishment was not disproportionate to the magnitude of the misconduct of the respondent. However, on filing of the writ petition, the High Court set aside the award of the reference Court to the extent of the confirmation of the dismissal from service with effect the date of the judgment of the Labour Court and not from any date earlier thereto. This Court while granting leave referred the matter to three Judge Bench to consider the correctness of the judgment in Desh Raj Gupta's case (supra) in the light of the judgment of the Constitution; Bench. Subsequent to the reference, another Bench of two Judges has elaborately considered the entire case law in R. Thiruvirkolam v. Presiding Officer & Am. (1997) (1997)1 SCC 9 . Subsequent to the reference, another Bench of two Judges has elaborately considered the entire case law in R. Thiruvirkolam v. Presiding Officer & Am. (1997) (1997)1 SCC 9 . In the decision of the Constitution Bench in P.H. Kalyani v. Air France (1963) I LLJ 679 SC this Court had held that once the Labour Court found the domestic enquiry to be defective and gave opportunity to the parties to adduces the evidence found that the order of termination of the service or dismissal from service is valid. It would relate back to the original order of the dismissal. But a discarded was expressed by three Judges Bench in Gujarat Steel Tules Ltd. v. Mazdoor Sabha (1980) I LLJ 137 SC which was considered by this Court in Thiruvirkolam case (supra) and it was held that in view of the judgment of the Constitution Bench, three-Judge Bench judgment was not correct. Desh Raj Gupta's case was also considered and it was held that it has not been correctly decided. Thus, we are relieved of reviewing the entire case law in that ) behalf. 2. In view of the aforesaid decisions and in view of the findings recorded by the Labour Court, we are of the considered opinion that the view expressed in Desh Raj Gupta's case is not correct. It is accordingly over-ruled. Following the judgment of the Constitution Bench, we hold that on the Labour Court's recording a finding that the domestic enquiry was defective and giving opportunity to adduce the evidence by the Management and the workman and recording of the finding that the dismissal by the management was valid, it would relate back to the date of the original dismissal and not from the date of the judgment of the Labour Court." 10. In view of the judgments referred to above, it becomes clear that if enquiry is held to be defective, the employer is having opportunity to lead evidence to prove the charges. If the charges are found proved by the Labour Court or the Tribunal after evidence of the parties followed by upholding the order of punishment, it will take effect from the date, it was issued by the employer. This is first situation. 11. If the charges are found proved by the Labour Court or the Tribunal after evidence of the parties followed by upholding the order of punishment, it will take effect from the date, it was issued by the employer. This is first situation. 11. This Court has to consider even the reverse situation, i.e., after holding domestic enquiry to be defective or unfair, if in i.e., after holding domestic enquiry to be defective or unfair, if in the enquiry held before the Labour Court, charges are not found proved or even if charges are found proved, the order of punishment is interfered finding it to be disproportionate with imposition of lesser punishment, the workman would be entitled to the wages of intervening period unless found gainfully employed. In the aforesaid circumstances, he would not be deprived to get wages of the intervening period. 12. In the first situation, where the order of dismissal from service takes effect from the date of its issuance by the employer yet the Court or Tribunal pass order for subsistence allowance, the workman would get it for the period subsequent to the order of dismissal from service, despite it being held to be proper. It cannot be said to be justified and legal. The Labour Court has failed to consider that after the order of dismissal, the workman is free to take new employment, whereas, during the period of suspension, he cannot do so thus needs to be supported by subsistence allowance. After the dismissal from service, relation of employee and employer also ceases to exist and it does not get revived on holding enquiry to be defective. It is unfortunate that the Labour Court and the Tribunal presumed that in absence of subsistence allowance, the workman would be unable to represent his case properly during the course of enquiry before it, though, he is free to take employment elsewhere or even may be gainfully employed. If the workman is gainfully employed, yet paid subsistence allowance then it would be nothing but to give him doubt benefits, which cannot be said to be proper. The issue aforesaid has been considered in detail by the Bombay High Court in the case of M/s. Mumbai Cricket Association v. Pramod G. Shinde reported in 2011 (7) AIR MR 678. Relevant paras of the said judgment are quoted hereunder for ready reference: "5. The issue aforesaid has been considered in detail by the Bombay High Court in the case of M/s. Mumbai Cricket Association v. Pramod G. Shinde reported in 2011 (7) AIR MR 678. Relevant paras of the said judgment are quoted hereunder for ready reference: "5. When the matter was pending and the Labour Court had directed the employer to lead evidence, an application was made by the to Respondent-workman on 16th August 2010 stating that since the de novo enquiry was to be held in Court, in order to enable him to participate in the same and fight the litigation, he should be paid on amount which was styled as subsistence/survival allowance. It was stated that if the enquiry before the Court drages on, it will not be possible for the Respondent-employee to sustain himself as he is out of service and unemployed. Therefore, a provision in the Model Standing Orders, namely, Section 10A of the Industrial Employment (Standing Orders) Act, 1947 be invoked and applied so as to grant subsistence allowance to the Respondent, from the date of the termination till the date his misconduct is proved in Court. The Respondent submitted that in order to give him an opportunity to defend himself at this de novo enquiry, he should be paid subsistence allowance. 6. The foundation of the claim was that in law there is nothing which would enable the employer to conduct de novo enquiry in Court after, a declaration that the domestic/departmental enquiry was not fair, just and proper and the findings there in are perverse, has been rendered. If no such opportunity is contemplated by law but the same is granted pursuant to judicial pronouncements, then, the same judicial pronouncements enable the Respondent to claim financial assistance during the pendency of the matter before the Court. The enquiry before the Court is equivalent to an enquiry into the charges by an ; employer and, therefore, when the law permits claiming the subsistence allowance pending the domestic/departmental enquiry, then, the same principle should be applied and subsistence allowance at the rate of 75% of the last drawn wages be paid to the Respondent-workman. Unless such a relief is granted, grave loss and serious prejudice will be caused. The same, therefore, be directed to be paid and therefore, the amount as claimed be directed to be paid to him. Unless such a relief is granted, grave loss and serious prejudice will be caused. The same, therefore, be directed to be paid and therefore, the amount as claimed be directed to be paid to him. An affidavit in support of the said application was filed by the Respondent. 7. In opposition, the Petitioner-employer contended that the, application is misconceived and untenable in law and should be rejected. The Labour Court has no power to grant such allowance or financial assistance. The Labour Court has to adjudicate the dispute as per the terms of reference. In the terms there is nothing which would enable the Respondent to claim the subsistence allowance. It contended that the legal right available to the Petitioner to lead evidence before the Court to prove the misconduct and to justify the action taken against the Respondent-employee is something which cannot be equated with a disciplinary or departmental enquiry conducted by the employer. Here, the dismissal orders stand and its legality is being tested before a judicial forum. Once, it is being so tested, then, there is no question of any suspension pending domestic/departmental enquiry. Therefore, the question of applicability of Model Standing Orders does not apply. There is no prejudice to the employee. If the Petitioner employer fails to prove the charges, the dismissal order will be set aside and appropriate award would be made by the Court including for back wages. Therefore, no prejudice will be caused to the Respondent-employee. Instead prejudice will be caused to the Petitioner if such untenable applications are granted and this can create a precedent in all cases of the present nature. On merits also there is no case made out for grant of any such relief. Therefore, the application be dismissed. This was the stand taken by the Petitioner in its reply dated 30th August 2010. 8. Thereafter, the application was placed before the learned Judge of the 12th Labour Court and by the impugned order he held that the Respondent is entitled to claim subsistence allowance which must be paid to him from the date of the termination. Accordingly, he directed the Petitioner to pay subsistence allowance at the rate of 75% of the last drawn wages till the Petitioner proves the alleged misconduct before the Court. Accordingly, he directed the Petitioner to pay subsistence allowance at the rate of 75% of the last drawn wages till the Petitioner proves the alleged misconduct before the Court. The amount from 25th November 2002 till the end of October 2010 was directed to be paid within one month from the date of the order and thereafter the subsistence allowance at the rate of 75% of his last drawn wages was directed to be paid on tenth day of every successive month. 9. It is this order which is challenged in this writ petition under Article 226 of the Constitution of India. 16. In my view', the Labour Court has seriously erred in allowing the application. In a recent decision reported in AIR 2004 SC 4951 Engineering Laghu Udyog Employees' Union v. The Judge, Labour Court and Industrial Tribunal and Anr. a three Judges' Bench of the Hon'ble Supreme Court was dealing with the controversy about effective date of termination and doctrine of relation back. It was held that by virtue of Section 11A of the Industrial Disputes Act, 1947 a wide power is conferred on the Labour Court to give appropriate relief in case of discharge or dismissal of workman. While adjudicating on a reference made to it, the Labour Court if satisfied that the order of discharge and dismissal was not justified, it may, while setting aside the same, direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit. or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. 23. I am unable to appreciate as to how' this provision can be of any assistance to the Respondent-employee in the present case. A departmental/domestic enquiry' was already held against him by the Petitioner employer at which it was concluded that the charges are proved. The Enquiry Officer, after such a conclusion was recorded by him in his report, forwarded it to the employer and the employer acting on the same has dismissed the Respondent from service with effect from 25th November 2002. The employee sought a reference from the Appropriate Government and that is how the matter of his dismissal is referred to the Labour Court and that is how the Court is seized of the matter. The employee sought a reference from the Appropriate Government and that is how the matter of his dismissal is referred to the Labour Court and that is how the Court is seized of the matter. The Court cannot be equated with an employer as it is only performing a judicial function of giving an opportunity to 10 the Petitioner to adduce evidence to prove charges of misconduct before it, and that is because the law postulates such an opportunity. The law does not equate this situation with suspension be the employer pending domestic enquiry or investigation into any complaints. The Supreme Court decision cannot be extended by analogy to such a situation as that would produce startling consequences. In all such matters merely because the Court grants the employer an opportunity to adduce evidence to prove the charges of misconduct, it will be obliged to direct the employer. That would mean that the order of dismissal already passed against the employee is set aside and substituted by his suspension. That would be creating a situation wherein the order of the Court permitting de novo enquiry means an order of suspension of the employee enabling him to claim subsistence allowance. If the charges of misconduct are grave and serious and the employee is already dismissed, then, paying him any subsistence allowance or sustenance allowance which may in a given case be 75% or more of his last drawn wages, would mean that he is allowed to resume work although the employer has already dismissed him. Ultimately, if the dismissal is justified by the employer, then, an order will have to be made directing the employee to bring back the monies already paid. Apart there from, allowing him to resume work or in lieu thereof pay him 75% of wages would be putting a premium on his misconduct and in a given case, fraud. That will be in contravention of the object and purpose sought to be achieved by industrial adjudication." 13. Thee Bombay High Court has considered the judgment of Apex Court in detail and, thereupon, decided the issue. 14. A further reference of the judgment of Orissa High Court in the case of Management of Synergy v. Unknown in Writ Petition No. 5017/2011 decided on 13th September, 2011 would be relevant. Thee Bombay High Court has considered the judgment of Apex Court in detail and, thereupon, decided the issue. 14. A further reference of the judgment of Orissa High Court in the case of Management of Synergy v. Unknown in Writ Petition No. 5017/2011 decided on 13th September, 2011 would be relevant. The Orissa High Court considered the issue in the light of the judgment of the Apex Court in the case of Hotel Imperial, New Delhi & Ors. v. Hotel Workers' Union reported in 1959 AIR SC 1342. Relevant paras of the judgment in the case of Management of Synergy (supra) are also quoted hereunder for ready reference: "3. As the disputes between the hotels and their workmen were 45 already under consideration of Government, an order of reference was made on October 12, 1955, relating to Imperial Hotel. In this, reference a large number of matters were referred to adjudication including the case of workmen whom the management of the hotel had decided to dismiss on October 4, 1955. This reference with respect to Imperial Hotel, however, did not refer to the workmen whom the management had decided to dismiss on October 7, 1955. Further enquiries seem to have been made by the management in this connection and eventually it was decided to confirm the action taken on October 7 with respect to nineteen workmen. These nineteen workmen had in the meantime applied under Section 33-A of the Act on the ground that they had been suspended without pay for an indefinite period and had thus been punished in breach of Section 33. Thus the dispute so far as Imperial Hotel is concerned was with respect to 44 workmen in all, 25 of whom were included in the reference of October 12, 1955, and the remaining 19 had filed an application under Section 33-A of the Act. It does not appear, however, that Imperial Hotel made any application under Section 33 of the Act for permission to dismiss these 19 workmen, though an application under that section was made on October 22, 1955, with respect to 22 workmen whose dismissal was decided upon on October 4,1955. 4. So far as Maiden's Hotel is concerned, the case relates to 26 workmen whose dismissal was finally considered by the management to be necessary on further enquiry after October 7, 1955. 4. So far as Maiden's Hotel is concerned, the case relates to 26 workmen whose dismissal was finally considered by the management to be necessary on further enquiry after October 7, 1955. An order of reference was made in the case of this hotel on November 23, 1955, in which the case of 26 workmen was referred to the tribunal along with other matters. Later, however, 12 of these workmen were reemployed on December 10, 1955, and the real dispute therefore so far as this hotel is concerned related to 14 workmen. 5. In the case of Swiss Hotel also there were further enquiries after the notices of October. 7. In the meantime, an application was made under Section 33-A of the Act by the union to the conciliation officer. Eventually, it appears that on November 10, 1955, reference was made with respect to 14 workmen to the tribunal for adjudication." 15. The judgment in the case of Hotel Imperial, New Delhi (supra) has been discussed. Therein, the order of punishment of dismissal from service was not passed rather employee was under suspension. The permission for dismissal from service of workman was sought from the Court by invoking 33 Section 33(1) (b) of the Industrial Disputes Act, 1947 (for short "the ID Act"). The dismissal from service of workman was to take effect from the date, permission is granted by the Labour Court/Tribunal. The relation of employer and employee exists during pendency of hearing of the application under Section 33(1) (b) of the ID Act. In this case, punishment of dismissal from service has already taken effect unlike in the case of Hotel Imperial, New Delhi (supra). 16. In the background aforesaid and as the employee was under suspension in the case of Hotel Imperial, New Delhi (supra) pending application under Section 33(1)(b) of the ID Act to seek permission for dismissal from service, the interim relief was granted. The facts of the present case are altogether different. It is a case where after order of punishment of dismissal from service, a dispute was raised by the workman followed by reference of dispute to the Labour Court, whereas, in the case of Hotel Imperial, New Delhi (supra), permission to dismiss the employee from service was sought from the Court under Section 33(1) (b) of the ID Act. It is a case where after order of punishment of dismissal from service, a dispute was raised by the workman followed by reference of dispute to the Labour Court, whereas, in the case of Hotel Imperial, New Delhi (supra), permission to dismiss the employee from service was sought from the Court under Section 33(1) (b) of the ID Act. The provisions of Section 33(l) (b) and 33(2) (b) of the ID Act even operate in different situations. Thus, the judgment in the case of Hotel Imperial, New 5 Delhi (supra) does not apply to the present case. 17. Learned counsel for the respondents has referred the judgment of this Court in the case of Chief Manager, Ajmer v. Hitiar Prasad & Anr. reported in 2013(1) WLC (Raj.) 229 = 2013(4) RLW 3410. Therein, the jurisdiction to grant interim relief by the Labour Court has been accepted. This Court therein referred the.judgment in the case of Hotel Imperial, New Delhi (supra) apart from the judgment in the case of Manager, Jaipur Syntex Ltd. v. PO Industrial Tribunal, Jaipur Ors. reported in 1989(59) FLR 99 and in the case of M/s. Modern Suitings v. Presiding Officer, Labour Court & Anr. in S.B. Civil Writ Petition No. 14057/2009 decided On 8th August, 2011. In the case of Hotel Imperial, New Delhi (supra) and the other judgments, referred to above, jurisdiction of the Labour Court and the Tribunal for grant of interim relief, incidental to reference, has been accepted. It is, no doubt, true that the Labour Court or the Tribunal can pass interim order in an appropriate case but it should be incidental to the dispute referred to it and, while doing so, it should be a relief of such a nature, which may not effect other party, if the proceedings are finally decided in their favour in the case of punishment of dismissal from service, if, ultimately, action of the management is found to be proper after holding enquiry to be unfair, the order of punishment takes effect from the date it was passed by the employer. In that event, interim relief of subsistence allowance would be contrary to the final order and would affect the other party. 18. The Apex Court in the case of R. Thiruvirkolam v. Presiding Officer & Anr. In that event, interim relief of subsistence allowance would be contrary to the final order and would affect the other party. 18. The Apex Court in the case of R. Thiruvirkolam v. Presiding Officer & Anr. reported in (1997) 1 SCC 9 , decided the issue after referring earlier judgment of the Constitutional Bench in the case of PH Kalyani (supra) and also the judgment in the case of Gujarat Steel Tubes Ltd. v. Mazdoor Sabha reported in (1980) 2 SCC 593 . The difference of opinion between two judgments was settled therein by referring the judgment of the Constitution Bench in the case of PH Kalyani (supra).The judgment in the case of DC Roy v. Presiding Officer, MP Industrial Court reported in (1976) 3 SCC 693 and Sasa Musa Sugar Works (P) Lid. v. Shobrati Khan reported in AIR 1959 SC 923 have been relied. Relevant para of the judgment in the case of R. Thiruvirkolam (supra) are also quoted hereunder for ready reference: "2. The leave granted in this appeal is confined only to the question: whether the dismissal will take effect from the date of the order of the Labour Court, namely, December 11, 1985 or it would relate to the date of the order of dismissal passed by the employer, namely, November 18, 1981. 3. The only point involved for decision is apparently concluded by the decision of the Constitution Bench in P.H. Kalyani v. Air France, Calcutta: (1963) I LLJ 679 SC. However, this point appears to have been raised on behalf of the appellant on the basis of certain observations made in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) I LLJ 137 SC, which appear to be contrary. 4. Reference may be made first to the decision in Kalyani. This point arose directly before the Constitution Bench and such a contention was rejected, making a distinction between a case where no domestic inquiry had been held and another in which the inquiry is defective for any reason and the Labour Court on its own appraisal of evidence adduced before it reaches the conclusion that the dismissal was justified. This point arose directly before the Constitution Bench and such a contention was rejected, making a distinction between a case where no domestic inquiry had been held and another in which the inquiry is defective for any reason and the Labour Court on its own appraisal of evidence adduced before it reaches the conclusion that the dismissal was justified. It was held that in a case where the inquiry was found to be defective by the Labour Court and it then came to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, the order of dismissal made by the employer in a defective inquiry would still relate to the date when that order was made. In that decision it was stated thus: ...If the inquiry' is defective for any reason, the Labour would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on corning 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.... In the present case on inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry'. It has succeeded in doing so and therefore the approval of the Labour Cour t will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court's award came into operation must fail. 6. We may now refer to the decision by a three-judge Bench in Gujarat Steel. Krishna Iyer, J. speaking for the three-Judge Bench observed at page 215 (S.C.R.) as under: Kalyani (1963) 1 LLJ 679 was cited to support the view of relation 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. 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 deed 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 and Ors. (supra) specifically refers to Kalyani's case and Sosa Musa's case and holds that where the Management discharges a workmen by an order which is void for want of an enquiry or for blatant violation of rules of natural justice, the relation-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 goods is a subsequent approval by a tribunal which is granted, cannot be obfuscated. We agree that the law stated in D.C. Roy (supra) is correct but now that the termination orders are being set aside, the problem does not present itself directly... 7. Apparently these observations appear to strike a discordant note, even though Kalyani is referred therein. The basis of the observations is that "a void dismissal is just dismissal and does not exist." In other words, the reason for making these observations is that a void order does not come into existence until by a subsequent judicial resuscitation it comes into being inasmuch as a void order is still born. Is this assumption jurisprudentially correct? 10. We may now refer to the juristic principle on which the above quoted observations in Gujarat Steel appears to be based. There is a very useful discussion of the topic under the heading "Void and Voidable" at pages 339 to 344 in Administrative Law by wade, Seventh Edition. The gist of the discussion in Wade is as under: ...Here also there is a logical difficulty, since unless an order of the court is obtained, there is no means of establishing the nullity of the list. The gist of the discussion in Wade is as under: ...Here also there is a logical difficulty, since unless an order of the court is obtained, there is no means of establishing the nullity of the list. It enjoys a presumption of validity, and will have to be obeyed unless a court invalidates it. In this sense every unlawful administrative act, however, invalid is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radoliffe said: An order, even if not made in good faith, is still an act capable of legal consequence. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. 'Void' is therefore meaningless in any absolute sense. The meaning is relative, depending upon the Court's willingness to grant relief in any particular situation. If this principle of legal relativity is borne in mind, confusion over 'void or voidable' can be avoided. 11. With great respect, we must say that the above quoted observations in Gujarat Steel at page 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For these reasons, we are bound to follow the Constitution Bench decision in Kalyani which is the binding authority on the point. 12. We may now refer to later decisions of this Court in Desh Raj Gupta v. Industrial Tribunal IV, U.P. Lucknow and Anr. (1990) Supp. 1 SCR 411, and Rambahu Vyankuji heragade v. Maharashtra Road Transport Corporation (1996) IILLJ 733 SC. In Rambahu, Kalyani and D.C. Roy were followed by a two-judge 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 the 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. 13. 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, per incuriam 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, the date of Labour Court's award. The appellant is, therefore, not entitled to any relief. 19. The judgment in the case of Manager, Jaipur Syntex (supra) has been cited but, therein, the issue was different. Learned counsel did not contest the case on the issue raised herein but on a different issue. The judgment of the Apex Court in the case of Hongkong and Shanghai Banking Corporation v. Government of India & Anr. reported in 2009 (121) FLR 290 has also been relied. In the said case, learned counsel appearing for the parties did not refer the earlier judgments of the Apex Court. It was a case where the Bank raised doubt about status of the employee to fall in the definition of the "workman". The Apex Court refused to decide the issue of status of the employee as was pending before the Tribunal and even did not stay the interim order passed by the Labour Court. It was taking into consideration that the Labour Court has ordered that if the case is decided against the workman, amount paid towards interim relief would be adjusted towards retiral benefits as the employee was held entitled for it. The position of fact in this case is not similar. Herein, the Labour Court has not put a condition for return of amount and otherwise, the workman herein would not be entitled for retiral benefits, if the order of punishment of dismissal from service is held legal and justified. 20. The position of fact in this case is not similar. Herein, the Labour Court has not put a condition for return of amount and otherwise, the workman herein would not be entitled for retiral benefits, if the order of punishment of dismissal from service is held legal and justified. 20. In the light of the discussion mad above, order of the Labour Court dated 14th May, 2015 cannot be allowed to sustain. Accordingly it is set aside. The direction for grant of subsistence allowance on holding enquiry to be defective is not proper. 21. The Labour Court is directed to adjudicate the dispute within shortest possible time as it is pending before it for last nine years. Accordingly, the Labour Court is directed to complete the proceedings within a period of four months from the date of receipt of copy of this order and, if need be the proceedings be undertaken by giving dates of short frequency. With the aforesaid, writ petition is allowed.