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2017 DIGILAW 1050 (JK)

JKTDC Ltd. v. State Of J&K

2017-12-07

SANJEEV KUMAR

body2017
JUDGMENT: Sanjeev Kumar, J. This is a petition filed by Jammu and Kashmir Tourism Development Corporation Limited (JKTDC) challenging the award dated 16.08.2013 passed by J&K Industrial Tribunal-cum-Labour Court Jammu in file No. 34/LC-J whereby the Labour Court has held the termination of respondent No. 1 illegal and directed the petitioner herein to reinstate him provided he is within the prescribed age and has not reached the age of superannuation along with all back wages and promotion if granted to any other workman, junior to him. Respondent No. 1 has further been held entitled to his placement at the appropriate place in the seniority and also the interest @ 10 % per annum on the back wages. 2. The impugned award is assailed by the petitioner on numerous grounds. However, before appreciating the grounds of challenge to the order impugned, it would be apposite to refer to the factual background leading to the filing of this petition. 3. Respondent No. 1 was working as Chowkidar in the petitioner corporation and in the year 1987, was posted in Tourist Reception Centre, Jammu. The services of the petitioner were terminated by the JKTDC for misconduct vide order No. 326-MD-JKTDC of 1987 dated 16.12.1987. Respondent No. 1, however, instead of challenging the order of his termination before the appropriate forum under the Industrial Dispute Act, 1947 (herein after refer to as “The Act”) upon a reference by the Government in terms of Section 10, assailed the same in the execution proceedings which were pending before the Labour Court with respect to a separate cause of action and subject matter. The Labour Court entertained the plea of respondent No. 1 without there being any valid reference from the Government and set aside the order of termination. The petitioner JKTDC assailed the order of Labour Court dated 17-3-1989, whereby the termination of respondent services had been set aside by the Labour Court in SWP No. 185 of 1990. The writ petition was allowed and the order of the Labour Court dated 17.3.1989 (supra) was quashed. Respondent No. 1, however, challenged the order of Single Bench by way of Letters Patent Appeal, i.e LPA No. 674 of 1999 which was dismissed by the Division Bench of this Court on 03.08.2004. The writ petition was allowed and the order of the Labour Court dated 17.3.1989 (supra) was quashed. Respondent No. 1, however, challenged the order of Single Bench by way of Letters Patent Appeal, i.e LPA No. 674 of 1999 which was dismissed by the Division Bench of this Court on 03.08.2004. The order of the Labour Court, as is apparent from the judgments of Single Bench and the Division Bench, aforementioned, was set aside primarily on the ground that the Labour Court had no jurisdiction to entertain and adjudicate the dispute pertaining to the termination of respondent No. 1 without there being any valid reference by the Government in terms of Section 10 of the Act. Consequent upon the dismissal of the Letters Patent Appeal, respondent No. 1 approached the Government for making a reference in terms of Section 10 of the Act to the Labour Court for adjudication of the validity or otherwise of the order of termination dated 16.12.1987. Accordingly, vide SRO 55 dated 03.03.2005, the Government made a reference to the Labour Court for adjudication of the dispute raised by respondent No. 1. The precise dispute that was referred for adjudication was as under:- “Legality or otherwise of the action of the management of the JKTDC in terminating the service of its workmen, namely Bodh Raj; And Award appropriate relief to the said workmen in case illegality of the action of the management is established” 4. Consequent upon the reference aforesaid, the Labour Court took cognizance and initiated proceedings in the matter. The petitioner corporation after receiving notice filed objections and besides contesting the claim of respondent No. 1 on merit also took a specific objection to the maintainability of the proceedings initiated upon a reference made by the Government after 18 long years from the date of termination. On the basis of the pleadings of the parties, following issues were struck by the Labour Court: (i) Whether the present petition is barred by the limitation ...OPR (ii) Whether the action of respondent management in terminating the services of the petitioner is illegal? ...OPP. (iii) To what relief the petitioner is entitled? ...OPP. Issue No. 1 which pertained to limitation was treated as preliminary issue. The Labour Court after hearing both the parties, however, decided the issue of limitation against the petitioner corporation vide its order dated 29.1.2008. ...OPP. (iii) To what relief the petitioner is entitled? ...OPP. Issue No. 1 which pertained to limitation was treated as preliminary issue. The Labour Court after hearing both the parties, however, decided the issue of limitation against the petitioner corporation vide its order dated 29.1.2008. Against the aforesaid order of the Labour Court, the petitioner corporation is already before this Court in SWP No. 329 of 2008 which is also being taken up for consideration for disposal along with this petition. 5. That since there was no stay of the proceedings before the Labour Court in SWP No. 329 of 2008, therefore, the Labour Court proceeded with the reference and after recording evidence and hearing the rival contentions, decided the reference vide award dated 16.8.2013 impugned in this petition. The petitioner corporation is aggrieved of the award aforesaid and is, therefore, before this Court through the medium of instant petition. 6. The petitioner corporation has assailed the validity of the impugned award inter-alia on the following grounds:- (i) That the reference made by the Government in terms of Section 10 of the Act was time barred and that the said issue was subject matter of adjudication in SWP No. 329 of 2008 and therefore, the Labour Court pre-empted the order/judgment that is yet to be passed in SWP No. 329 of 2008. (ii) That on merits, the order of termination challenged before the Tribunal did not call for any interference as the same had been passed in consonance with law and after complying with principles of natural justice. (iii) That the award impugned is not sustainable in law for the reason that the Labour Court while setting aside the order of termination and directing reinstatement of respondent No. 1 in service could not have directed the payment of all back wages that too along with interest @ 10 % per annum, nor the relief of promotion and seniority could have been accorded to respondent No. 1. (iv) That the award impugned is bad in law, for while setting aside the order of termination on the ground that the same had been passed in violation of principles of natural justice, the Labour Court could not have foreclosed the right of the petitioner corporation to hold fresh enquiry in compliance to the principles of natural justice and pass appropriate orders. 7. 7. Respondent No. 1 has filed objections to the petition in which respondent No. 1 has stated that the grounds of challenge urged by the petitioner corporation in this petition are not legally tenable and that the award impugned passed by the Labour Court is in consonance with law and therefore, does not call for any interference. 8. Heard learned counsel for the parties and perused the record. 9. In the context of controversy adumbrated herein above, the following questions fall for consideration in this petition: 1. Whether the reference made by the Government under Section 10 of the Act vide SRO 55 dated 03.03.2005 is hit by delay and latches and therefore, the proceedings before the Labour Court culminating into the passing of the award impugned are vitiated. 2. Whether the impugned award suffers from an error of law apparent on the face of record or is otherwise perverse being based either on no evidence/material or material not germane to the controversy. 3. Whether the directions contained in the award with regard to the payment of back wages with interest, promotion and seniority are sustainable in law, even if the award with regard to setting aside of the order of termination is to be upheld. 4. Whether it was incumbent in law for the Labour Court to provide liberty to the petitioner corporation to hold fresh enquiry in consonance with law and in compliance with principles of natural justice when it set aside the order of termination not on merits but on the ground that the same was in violation of principles of natural justice.” 10. With regard to question No. 1, the learned counsel for the petitioner would submit that it may be true that law does not prescribe any limitation for the appropriate Government for making reference of industrial dispute under Section 10 of the Act but the power is required to be exercised by the Government reasonably and the disputes which have become stale with the passage of time cannot be made subject matter of reference. He would, therefore, submit that if a worker does not raise a dispute for a petty long time, he would be deemed to have waived it or acquiesced in it and therefore, cannot be permitted to wake up from his slumber at his convenience and urge the Government to make a reference of such dispute which has become stale. He would, therefore, submit that if a worker does not raise a dispute for a petty long time, he would be deemed to have waived it or acquiesced in it and therefore, cannot be permitted to wake up from his slumber at his convenience and urge the Government to make a reference of such dispute which has become stale. In support, learned counsel would rely upon the judgment of the Supreme Court passed in Nedungadi Bank Limited v. K.P Madhavankutty ( AIR 2000 SC 839 ), Assistant Engineer, CAD Kota v. Dhan Kunwar, ( AIR 2006 SC 2670 ), Chief Engineer Ranjit Sagar Dam and anr. v. Sham Lal ( AIR 2006 SC 2682 ). 11. With regard to question No. 2, the learned counsel for the petitioner would submit that the Labour Court did not consider the evidence that had been brought on record by the petitioner corporation and therefore, erred both on fact as well as law. He would submit that the order of termination was passed against respondent No. 1 after providing him full opportunity to defend his case which, however, he failed to avail. He would further submit that a perusal of the termination order itself would indicate that not only a fair enquiry was conducted and the reply submitted by respondent No. 1 was considered but a proper notice of the proposed penalty too was issued. He, therefore, contends that in the face of aforesaid material on record, it was erroneous on the part of Labour Court to conclude that impugned order of termination was issued by the petitioner corporation in violation of principles of natural justice. 12. Regarding question Nos. 3 and 4, the learned counsel would submit that even if the order of termination is held to be bad being in violation of principles of natural justice and respondent No. 1 is ordered to be reinstated, respondent No. 1 would not automatically become entitle to back wages that too with interest as has been held by the Labour Court. He would urge that the payment of back wages to respondent No. 1 consequent upon setting aside of his termination would depend upon the enquiry to be conducted by the petitioner corporation to find out as to whether during his absence from service, respondent No. 1 was gainfully employed or not. He would urge that the payment of back wages to respondent No. 1 consequent upon setting aside of his termination would depend upon the enquiry to be conducted by the petitioner corporation to find out as to whether during his absence from service, respondent No. 1 was gainfully employed or not. In support of his contention, learned counsel for the petitioner places reliance upon the judgments passed by Hon'ble Supreme Court in the cases of M.P State Electricity Board v. Jarina Bee (2003 (2) JKJ 670 [SC]) and Board of Management of SVT Educational Institution and anr. v. A. Raghupathy Bhat and ors. ( AIR 1997 SC 1898 ). He thus, lastly urges that even if the award impugned insofar as it sets aside the order of termination of respondent No. 1 and orders his reinstatement is accepted, the petitioner corporation cannot be deprived of his right to conduct a fresh enquiry from the stage at which the illegality in the proceedings is found vitiating the action. He, further, submits that Tribunal committed the grave error of law by foreclosing the right of the petitioner corporation to conduct fresh enquiry. He, therefore, urges that this Court, in the given facts and circumstances ought to exercise the powers of judicial review as vested in this Court under Article 226 of the Constitution of India and 103 of the Constitution of J&K for the instant case is a fit case for exercise of such powers. 13. Per contra, the learned counsel for respondents would submit that the issue as to whether the reference was barred by limitation or not has already been adjudicated upon by the Labour Court while deciding the preliminary issue though the same is subject matter of challenge in SWP No. 329 of 2008. Learned counsel for respondent No. 1 would urge that the Act does not prescribe any time limit for the appropriate government to make reference under Section 10 and therefore, the plea of limitation pressed into service by the petitioner corporation is holy untenable in law. He, however, would further urge that even on facts, there was no inordinate delay in approaching the government for making reference. He would, therefore, submit that the order of termination which was passed in the year 1987 was immediately challenged by respondent No. 1 before the Labour Court though not in a validly constituted proceedings. He, however, would further urge that even on facts, there was no inordinate delay in approaching the government for making reference. He would, therefore, submit that the order of termination which was passed in the year 1987 was immediately challenged by respondent No. 1 before the Labour Court though not in a validly constituted proceedings. The order of termination was set aside by the Labour Court on 17.3.1989. The order of Labour Court was however, challenged by the petitioner corporation before the High Court in SWP No. 185 of 1990. Learned Single Judge allowed the writ petition in favour of the petitioner corporation and set aside the order passed by the Labour Court. Appeal preferred by respondent No. 1 too was dismissed on 03.8.2004. Immediately, representation was made by respondent No. 1 to the Government and vide SRO 55 dated 3.3.2005, reference in terms of Section 10 of the Act was made by the appropriate government. He, therefore, submits that in the given facts and circumstances, the reference cannot be said to be one pertaining to stale dispute. In support of his submission, he relies upon the judgment passed by Madhya Pradesh High Court in writ petition No. 9616 of 2013 titled Ramrattan Parsad v. Union of India decided on 13.12.2013. 14. With regard to question No. 2, learned counsel for respondent No. 1 would submit that the Labour Court on facts and upon evaluation of evidence has found that the order of termination of respondent No. 1 was without holding of proper enquiry and in violation of principles of natural justice and therefore, these findings of fact recorded by the Labour Court cannot be made subject matter of challenge in a petition filed under Article 226 of the Constitution of India. He would, therefore, submit that the writ of Certiorari can only be issued for correcting the errors of jurisdiction committed by inferior courts or tribunals or where the orders are passed by the inferior courts or tribunals either without jurisdiction or in excess of it. He would, therefore, submit that writ jurisdiction is not available to correct mere errors of law or fact and therefore, the findings of fact recorded by the Labour Court upon proper evaluation of evidence on record cannot be interfered with in exercise of writ jurisdiction. He would, therefore, submit that writ jurisdiction is not available to correct mere errors of law or fact and therefore, the findings of fact recorded by the Labour Court upon proper evaluation of evidence on record cannot be interfered with in exercise of writ jurisdiction. In this regard, learned counsel placed reliance on the judgment of Supreme Court in Harjinder Singh v. State of Punjab State Warehousing Corp. ( 2010 (3) SCC 192 ). 15. Regarding question Nos. 3 and 4, learned counsel would submit that once the order of termination was found to be illegal, it was in consonance with law for the Labour Court not only to direct the reinstatement of respondent No. 1 in service but also to award him back wages along with interest. He would urge that respondent No. 1 was deprived of performing his services in the petitioner corporation because of illegal order of termination passed against him. Had no such order been passed against respondent No. 1, not only that he would have performed his duty and continued his service but would have also earned his wages/salary, promotion and other service benefits. He would further submit that once order of termination is set aside being illegal and non-est in the eye of law, there is no justification to deny him the consequential benefits. Question No. 1: 16. As rightly pointed out by the learned counsel for the petitioner that though the law i.e Industrial Disputes Act, 1947 does not prescribe any time limit for the appropriate government to make reference of the industrial dispute under Section 10 of the Act yet it does not mean that a workman can seek the reference and adjudication of his dispute at his convenience and pleasure. He is required to raise the dispute as early as possible and in any case within reasonable period. The dispute which has become stale cannot be made subject matter of reference under Section 10 of the Act. However, whether a dispute has become stale or not would, however, depend on the facts and circumstances of the each case and no straitjacket formula can be laid down. In Nedungadi Bank Ltd.'s case (supra), the Supreme Court in Paragraph No. 6 held, thus: “Law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act. In Nedungadi Bank Ltd.'s case (supra), the Supreme Court in Paragraph No. 6 held, thus: “Law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent” 17. This view was reiterated by the Supreme Court in the subsequent judgment in the case of Chief Engineer Ranjit Sagar Dam and anr. v. Sham Lal (supra) and Assistant Engineer, CAD Kota v. Dhan Kunwar (supra). 18. From the perusal of the judgments aforementioned, it can be said to be well settled that a dispute which is stale cannot be made subject matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale, however, depends on facts and circumstances of each case and no straitjacket formula can be laid down. As to when a dispute can be said to be stale, however, depends on facts and circumstances of each case and no straitjacket formula can be laid down. In short, if in the facts and circumstances of the case, it is found that there was no deliberate delay or remissness on the part of worker to raise the dispute and the worker had raised the dispute at the first available opportunity but due to intervening circumstances beyond his control, the dispute could not be referred within a reasonable time. Such a dispute, if still subsisting and requiring adjudication cannot be said to be stale. Respondent No. 1 has amply explained the reasons for delay in making reference by the Government. 19. As rightly pointed out, respondent No. 1 raised the dispute with regard to illegal termination immediately after he was served with the order of termination. He, however, committed procedural irregularity inasmuch as instead of approaching the Government for making reference, he challenged the order of termination by way of an application filed in execution proceedings, which were pending adjudication before the Labour Court with respect to some other subject matter. The Labour Court also committed an error and entertained the application of respondent No. 1 and even set aside the termination. The matter was challenged by the petitioner herein before this Court. Learned Single Judge allowed the petition in favour of the petitioner-Corporation and set aside the order of the Labour Court. Appeal preferred by respondent No. 1 before the Division Bench too was dismissed. The order of the Labour Court was set aside by this Court primarily on the ground that the Labour Court had no jurisdiction to entertain the dispute without there being any valid reference from the Government in terms of Section 10 of the Act. Consequently, respondent No. 1 without any further waste of time approached the Government for making reference of the dispute with regard to his termination to the Labour Court in terms of Section 10. Vide SRO 55 dated 3.3.2005, the dispute was referred to the Labour Court In this way, it cannot be said that there was some remissness or indolence on the part of respondent No. 1 to approach the Government. 20. In these circumstances, the dispute which is subject matter of reference cannot be said to be stale. Vide SRO 55 dated 3.3.2005, the dispute was referred to the Labour Court In this way, it cannot be said that there was some remissness or indolence on the part of respondent No. 1 to approach the Government. 20. In these circumstances, the dispute which is subject matter of reference cannot be said to be stale. Therefore, the contentions of the learned counsel for the petitioner that the reference was barred by limitation cannot be accepted and the same is, therefore, rejected. Question No. 2 21. The Supreme Court has very clearly and in unequivocal terms laid down the parameters for exercise of jurisdiction by the High Court under Article 226 of the Constitution. The writ of Certiorari is ordinarily available to be exercised for correcting errors of jurisdiction committed by inferior courts or tribunals and not for correcting mere errors of law and fact except an error of law apparent on the face of record. In the exercise of jurisdiction under Article 226, the Court does not sit in an appeal against the order of inferior Court or Tribunal and therefore, appreciation of facts is not called for. It is trite law that what can be corrected by the Court in writ jurisdiction is an error of law apparent on the face of record and not the error of fact howsoever grave it may appear to be. However, if it is found that the findings of fact recorded by the inferior Court or Tribunal are perverse and based on no evidence that would be recorded as an error of law apparent on the face of record which can be corrected by writ of certiorari. The parameters for the exercise of jurisdiction by the High Court under Article 226 or 227 of the Constitution were elaborately delineated in Surya Dev Rai v. Ram Chander Rai and ors. ( 2003 (6) SCC 675 ). 22. In the judgment relied upon by the learned counsel for the respondents i.e Harjinder Singh v. State of Punjab State Warehousing Corp (supra), the same principles for the exercise of writ jurisdiction against the orders of inferior Courts and Tribunals have been reiterated. In this backdrop of legal position, the question No. 2 may be examined. 22. In the judgment relied upon by the learned counsel for the respondents i.e Harjinder Singh v. State of Punjab State Warehousing Corp (supra), the same principles for the exercise of writ jurisdiction against the orders of inferior Courts and Tribunals have been reiterated. In this backdrop of legal position, the question No. 2 may be examined. The Labour Court on proper appreciation of evidence has found on facts, that the order of termination of respondent No. 1 was without holding proper enquiry and providing a fair opportunity of being heard to respondent No. 1 and therefore, vitiated. The finding of fact recorded by the Labour Court cannot be said to be perverse nor can it be said to suffer from any error of jurisdiction. 23. That being so, the writ jurisdiction of this Court would not be available as this Court in the exercise of jurisdiction vide Article 226 would not sit in appeal and evaluate the evidence to come to a conclusion contrary to the one arrived at by the Labour Court/Tribunal. Question No. 3 24. Learned counsel for the petitioner raises a valid point when he submits that payment of full back wages is not the natural consequence of setting aside of the order of termination of the workman. The granting of back wages consequent upon setting aside the order of termination involves a discretionary element in it and therefore, has to be dealt with in the facts and circumstances of each case. Likewise, there could be no strait jacket formula that could be applied to all conceivable fact situations. The position, however, would be different if there is a statutory prescription making it mandatory to order payment of back wages in its entirety consequent upon the setting aside the order of termination. The Supreme Court in the case of M.P State Electricity Board (supra) in paragraph Nos. 7, 8, 9 and 10 held thus: “7. In P.G.I of Medical Education and Research, Chandigarh v. Raj Kumar, JT 2001 (1) SC 336, this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60 % and directing payment of full back wages. It was observed thus: “The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. It was observed thus: “The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity of being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect.” 8. Again at paragraph 12, this Court observed: “Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety” 9. The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and another, 2002 AIR SCW 3008 and Indian Railway Construction Co. Ltd. and Ajay Kumar, JT 2003 (2) SC 295. 10. Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence. 25. In the backdrop of legal position adumbrated herein above, the direction given by the Labour Court who has found the order of termination of respondent No. 1 vitiated on account of non compliance with the principles of natural justice, to pay back wages along with interest and grant promotion etc. is found to be not in consonance with law and therefore, cannot be allowed to sustain. It may be pointed out that the entitlement of respondent No. 1 to the back wages would depend upon the enquiry to be held by the petitioner-Corporation to find out as to whether during his absence from service, respondent No. 1 was gainfully employed or not. So far as, the relief of promotion to which he may be found entitled to on reinstatement is concerned, the same is also required to be decided by the petitioner-Corporation by treating the petitioner to be in service with continuity subject, of course, to his eligibility and suitability for promotion. Question No. 4 26. So far as, the relief of promotion to which he may be found entitled to on reinstatement is concerned, the same is also required to be decided by the petitioner-Corporation by treating the petitioner to be in service with continuity subject, of course, to his eligibility and suitability for promotion. Question No. 4 26. The question No. 4 would not pose any difficulty inasmuch as the issue raised by the petitioner is no longer res integra in view of the law laid down in the case of Managing Director ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727 . The Supreme Court has unequivocally held that if an order of termination, removal or dismissal is set aside for non compliance with the principles of natural justice, further enquiry is required to be undertaken from the stage where illegality in proceedings is found vitiating the action. 27. Similar view was reiterated by the Supreme Court in the case of Board of Management of SVT Educational Institution and anr. (supra). What was held by the Supreme Court in the aforesaid matter in paragraph No. 5 needs to be noticed: “It is not necessary for us to go into the merits of this matter. Rules 12(3) and 12(4) of the Rules framed under Karnataka Private Educational Institutions (Discipline and Control) Act, provide that in a case where a penalty of dismissal, removal or compulsory retirement from service imposed upon an employee is set aside in an appeal or on review under these Rules and the case is remitted for further inquiry or action or with any other direction or under Rule 12(4) of the Rules is rendered void in consequence of or by a decision of a Court of law and the disciplinary authority on consideration of the circumstances of the case, decides to hold further enquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. Thus, it can be seen that the Rules provide for further enquiry to be conducted by the disciplinary authority. Thus, it can be seen that the Rules provide for further enquiry to be conducted by the disciplinary authority. It is settled law that the employer has power to conduct enquiry afresh from the stage at which the illegality in the proceedings, is found vitiating the action. The High Court is, therefore, not right in foreclosing further enquiry after upholding the order of the Tribunal which has held that there is need for further enquiry and the order of removal was set aside because of non-payment of subsistence allowance is left open, as it has not been canvassed. The disciplinary authority's proceeding further, as a consequence of remittance of the order, is clearly adumbrated under Rule 12(3) or Rule 12(4), as the case may be. It is now well settled by a Constitution Bench decision of this Court in Managing Director, ECIL, Hydrebad v. B. Karunakar, (1993) 4 SCC 727 : (1994 AIR SCW 1050), that as a consequence of setting aside of order of termination or removal or dismissal further enquiry is required to be undertaken from the stage. Pending enquiry, the employee must be deemed to be under suspension. Under these circumstances, the High Court was not right in foreclosing the further enquiry. The appellants are directed to continue and complete the enquiry within a period of four months from today and until the final order, the respondent must be deemed to be under suspension.” 28. On the conspectus of judicial precedents, it can be very well held that where the order of termination is set aside on the ground of illegality in conducting the disciplined enquiry or for that matter for violation of principles of natural justice, the employer has power to conduct the enquiry afresh from the stage at which the illegality in the proceedings is found vitiating the action and this right of the employer to hold enquiry afresh, cannot be foreclosed. This, however, may not be so where the order of termination is set aside on merits. 29. Admittedly, in the instant case, the order of termination of respondent No. 1 has been set aside by the Labour Court on the ground that he had not been given an adequate opportunity of being heard. 30. This, however, may not be so where the order of termination is set aside on merits. 29. Admittedly, in the instant case, the order of termination of respondent No. 1 has been set aside by the Labour Court on the ground that he had not been given an adequate opportunity of being heard. 30. That being the case, the petitioner cannot be said to be have been exonerated of the charges but has only been found entitled to an adequate opportunity of being heard before passing any adverse order against him. 31. Viewed thus, the Labour Court has committed grave irregularity in foreclosing the right of the petitioner-Corporation to hold enquiry afresh from the stage at which the Labour Court has found the illegality vitiating the action of termination of service of respondent No. 1. 32. In view of the discussion aforesaid, this petition is allowed to the following extent: (a) The order of the Labour Court insofar as it directs the reinstatement of respondent No. 1 is upheld. (b) The payment of back wages with interest or otherwise, however shall depend upon the petitioner-Corporation holding an enquiry to find out as to whether during the period of his absence i.e from the date of termination and to the date of reinstatement, the petitioner was gainfully employed or not. Needless to say that in the aforesaid enquiry, respondent No. 1 shall be given an adequate opportunity of being heard. (c) That the petitioner-Corporation would be at liberty to hold fresh enquiry from the stage at which the illegality in the proceedings is found by the Labour Court vitiating the action i.e termination of service of respondent No. 1. It is further provided that if the petitioner-corporation decides to hold the enquiry afresh, the petitioner-corporation would be at liberty to even place respondent No. 1 under suspension pending such enquiry. (d) The claim of the petitioner for his promotion to which he would be entitled to, had he not been terminated from service shall be considered in accordance with the service regulations governing respondent No. 1. In case, respondent No. 1 is found eligible and suitable for further promotion and that juniors to him have already been promoted, that aspect too would be taken into consideration while considering the claim of respondent No. 1 for such promotion. 33. In case, respondent No. 1 is found eligible and suitable for further promotion and that juniors to him have already been promoted, that aspect too would be taken into consideration while considering the claim of respondent No. 1 for such promotion. 33. Consequently, this petition is disposed of and the award of the Labour Court dated 16.08.2013, impugned in this petition is modified to the extent indicated above. SWP No. 329 of 2008: Order impugned in this petition had merged with the final order passed by Labour court/Tribunal which the petitioner had challenged in subsequent writ petition i.e OWP No. 218 of 2014. In view of the decision in subsequent writ petition, as above, there remains nothing to be adjudicated upon in this petition. Consequently, this petition which otherwise, has been rendered infructuous, is disposed of accordingly. 34. There shall be no order as to costs.