1. The petitioner, Rambhau Vyankuji Khorgade, challenges the award, dated 23 April, 1991, of the Third Labour Court, Nagpur, where under his demand to set aside the order of termination, dated 10 April, 1980, was rejected holding that the charges of misconduct levelled against him stand proved.

2. By a chargesheet, dated 11 April, 1978, it was alleged against the petitioner that he misappropriated a sum of Rs. 2,300. In the context of the allegations made, the petitioner requested for supply of relevant documents like way-bills and way-bill-extracts which would facilitate the filing of the reply to the charges. The documents asked for were not supplied, the enquiry proceeded further and as a consequence thereof, the petitioner was dismissed from service with effect from 10 April, 1980.

3. The petitioner thereafter raised a dispute which ultimately matured into a reference. Based on the pleadings and the evidence adduced by the parties, the learned Judge below found that the enquiry held against the petitioner was illegal, unfair and improper, whereupon the respondent-corporation was allowed to prove the misconduct in Court. Evidence was accordingly adduced by either of the parties. The learned Judge found on the basis of the evidence so led that the misconduct is conclusively established against the petitioner and held that the order of dismissal was wholly justified vide its award, dated 23 April, 1991. Aggrieved by the said award, the present petition is filed.

4. At the stage of hearing, a “purshis” came to be filed by the petitioner wherein it is alleged that he is taken ill and he will not be in a position to work even if he succeeds in getting the relief of reinstatement. Since he is in immense need of money for his treatment and marriage of his daughters, he is restricting his claim for back wages from the date of dismissal to the date of the award by excluding the “relation-back” doctrines as propounded by the recent judgment of the Division Bench of the Supreme Court in Desh Raj Gupta v. Industrial Tribunal IV, Uttar Pradesh, Lucknow [1991 - I L.L.N 965].

5. On behalf of the respondent-corporation, reliance was heavily placed on the larger Bench decision of the Supreme Court in P.H.Kalyani v. Air France, Calcutta, Calcutta [A.I.R 1963 S.C 1756], where it is held that on an approval sought by the employer on bona fide believing that the employee was guilty of misconduct, the Court would grant the approval which will relate back to the date from which the employer had ordered the dismissal. If, however, the enquiry was 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. 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 enquiry will still relate back to the date when the order was made.

6. The aforesaid two decisions run counter to each other and to resolve this conflict, it would be proper to trace out the origin of the “relation back” doctrine right from its inception and the way in which it gradually developed. In this context, it will be worthwhile to look into the decision of Supreme Court in Sasa Musa Sugar Works (Private), Ltd. v. Shobrati Khan [1959 - II L.L.J 388]. Wanchoo, J., speaking for the Bench observed in Para. 9 as follows:

“….. It has been shown to us that evidence against these sixteen workmen is of exactly the same witnesses and of the same kind as the evidence against the remaining thirty two. The finding, therefore, of the Industrial Tribunal that there was no evidence against the sixteen workmen is patently perverse, for there was the same evidence against them as against the remaining thirty-two. It follows, therefore, that all the forty-eight workmen (two of whom are since said to have died) are exactly in the same position. As held by the Appellate Tribunal, go-slow is serious misconduct which is insidious in its nature and cannot be countenanced. In these circumstances, as these forty-eight workmen were taking part in the go-slow and were thus guilty of serious misconduct, the management was entitled to get permission to dismiss them. But as the management held no enquiry after suspending the workmen and proceedings under S. 33 were practically converted into the enquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under S. 33 ……”

(emphasis supplied).

The aforesaid observations are made because of the peculiar facts involved therein. That was a case where an application had been made under S. 33(1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for though no enquiry whatsoever had been held by the employer and no decision taken that the employees be dismissed. It was in these circumstances that the case for dismissal was made out only in the proceedings before the Tribunal under S. 33(1) of the Industrial Disputes Act and, therefore, the employees were held entitled to wages till the decision of the application under S. 33. While deciding this case, a reference was made to the decision of Supreme Court in Ranjipur Colliery under Equitable Company, Ltd. v. Bhauban Singh [1959 - II L.L.J 231]. It was pointed out that but for the ban imposed by S. 33, the employer would have been entitled to dismiss the employee immediately after completion of the enquiry on coming to the conclusion that the employee was guilty of misconduct. The contract would have been brought to an end by immediate dismissal and all further wages would stop. Section 33, however, intervenes and stops the dismissal and further compels the employer for seeking permission of the Tribunal. It was, therefore, reasonable that the employer having done everything to bring the contract of service to an end should not be expected to continue paying the employee thereafter. In such a contingency, the employer would be justified in suspending the employee without pay as the time consumed by the Tribunal was beyond the control of the employer. If ultimately, the Tribunal granted permission, the employee would not get anything, whereas if the permission was refused he would get the wages for the period under suspension. This judgment was also delivered by Wanchoo, J., speaking for the Bench.

7. The next case in the line is Hotel Imperial, New Delhi v. Hotel Workers' Union [A.I.R 1959 S.C 1342]. In this case, it was held that power to suspend an employee cannot be implied. It must be by express terms of the contract or by the statute. The employer has to pay wages for the period of suspension in the absence of the power to suspend. It is further pointed out that for suspension of workman during the period permission is sought, the power is implied in view of S. 33. While deciding the case, Wanchoo, J., speaking for the Bench relied upon Ranipur Colliery case [1959 — II L.L.J 231] (vide supra), and explained the case “of Phulbari Tea Estate v. Workmen [A.I.R 1959 S.C 1111], delivered by him for the Bench.. The relevant paragraph of Hotel Imperial case reads as follows:

“In Phulbari Tea Estate v. Workmen (Civil Appeal No. 205 of 1958, dated 6 May, 1959): [A.I.R 1959 S.C 1111], the rider laid down in the case of Sasa Musa Sugar Works (Private), Ltd. (C.A Nos. 746 and 747 of 1957, dated 20 April, 1959) : [1959 - II L.L.J 388] (vide supra), was further extended to a case of an adjudication under S. 15 of the Act and it was pointed out that if there was any defect in the enquiry by the employer he could make good that defect by producing necessary evidence before the Tribunal; but in that case he will have to pay the wages up to the date of the award of the Tribunal, even if the award went in his favour.”

(emphasis supplied).

Factually, Phulbari case (vide supra), does not in the least lay down the law as we read in the last sentence of the abovequoted paragraph. The ratio of the case as laid down in Phulbari case (vide supra), is contained in penultimate paragraph of the judgment. It reads as follows:

“The defect in the conduct of the enquiry could have been cured if the company had produced the witnesses before the Tribunal and given an opportunity to Das to cross-examine them there. In Sasa Musa Sugar Works (Private), Ltd. v. Shobrati Khan C.As Nos. 746 and 747 of 1957, dated 4 April, 1959 [1959 - II L.L.J 388], we had occasion to point out that even where the employer did not hold an enquiry before applying under S. 33 of the Act for permission to dismiss an employee, he could make good the defect by producing all relevant evidence which would have been examined at the enquiry, before the Tribunal, in which case the Tribunal would consider the evidence and decide whether permission should be granted or not. The same principle would apply in case of adjudication under S. 15 of the Act, and if there was defect in the enquiry by the employer he could make good that defect by producing necessary evidence before the Tribunal. But even that was not done in this case, for all that the company did before the Tribunal was to produce the statements recorded by the manager during what we have called investigation. This left matters where they were and Das had never an opportunity of questioning the witnesses after knowing in full what they had stated against him. In these circumstances we are of opinion that the finding of the Tribunal that the enquiry in this case was not proper is correct and must stand.”

The judgment stops with the observation “This left the matter as they were.” This is made clear in the decision of D.C Roy v. Labour Court [1976 - II L.L.N 299]. In Para. 11, at page 303 of that judgment, the observations relating to Phulbari Tea Estate case are as follows:

“With great respect, the ratio of Phulbari Tea Estate [A.I.R 1959 S.C 1111], is not stated correctly in the particular passage in the case of Hotel Imperial [A.I.R 1959 S.C 1342] (vide supra). That passage is partly a reproduction in substance of what is said in Phulbari Tea Estate (vide supra), but the last clause of the passage following the semicolon is an addition not borne out by the judgment in Phulbari Tea Estate. (vide supra).”

8. The next decision on the question involved is the case of P.H.Kalyani v. Air France, Calcutta, Calcutta (vide supra), decided by larger Bench of the Supreme Court. After making reference of Ranipur Colliery case [1959 — II L.L.J 231] (vide supra), Sasa Musa case (vide supra) and Phulbari Tea Estate case [A.I.R 1959 S.C 1111] (vide supra). Wanchoo, J., speaking for the Bench held as follows:

“…… The observations, therefore, in Sasa Masa Sugar Company case, on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. In the present case, an enquiry 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 succeded in doing so and, therefore, the approval of the Labour Court 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.”

It is clear that Sasa Musa case (vide supra), was distinguished on the facts of that case and it held that the approval granted by the Labour Court upon misconduct being established before it, upon enquiry held by the employer to be defective, will relate back to the date on which the employer passed the order of dismissal.

9. This brings me to the decision of D.C Roy v. Labour Court [1976 — II L.L.N 299] (vide supra). In that case the domestic enquiry was held to be in violation of the principles of natural justice and the employer led evidence before the Labour Court in support of the order of dismissal and on fresh appraisal of evidence, the Labour Court found that the order of dismissal is justified. Despite the fact that this was not a case of approval, the ratio of P.H Kalyani case [A.I.R 1963 S.C 1756] (vide supra), was applied. It was held as follows:

“…. In the instanrcase, 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.H Kalyani case (vide supra), would, therefore, govern the case and the judgment of the Labour Court must relate back t the date on which the order of dismissal was passed.”

When an attempt was made to persuade the Court to follow the decision in Sasa Musa case (vide supra), it was turned down observing that the employer in that case had sought permission to dismiss the employees though no enquiry whatsoever was held and no decision was taken that the employee be dismissed. Therefore, there remains no iota of doubt that ratio decidendi of the Kalyani case (vide supra), was adopted even in D.C Roy case (vide supra), in toto.

10. The decision of D.C Roy case [1976 - II L.L.N 299] (vide supra), proceeds further to carve out an exception which did not arise for consideration. It proceeded to add as follows in Para. 13, at pages 303 and 304:

“…… We would, however, like to add that the decision in P.H Kalyani case [A.I.R 1963 S.C 1756] (vide supra), is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non est. On an appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyani case (vide supra), so as to exclude from its operation at least that class of cases in which under facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees' interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the ‘relation-back doctrine….”

The point was not pursued beyond what is stated above because even according to the learned Judges, the facts involved in the case did not warrant a closer consideration. The observations are nothing more than a word of caution to be used only if such circumstances stated therein arise and nothing more. The observations cannot be used as a law propounded by the Apex Court of land to be applied in each and every case where inquiry is found to be defective for one reason or the other.

11. The law as enunciated in the case of D.C Roy [1976 - II L.L.N 299] (vide supra), and discussed above was accepted as correct in the subsequent decision of the Supreme Court in Gujarat Steel Tubes, Ltd. v. Gujarat Steel Tubes Mazdoor Sabha [1980 - I L.L.N 230]. It is a judgment delivered by three judges, and Krishna Iyer, J. speaking for the Bench stated as follows in Para. 152, at pages 271 and 272:

“….. 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. Madhya Pradesh Industrial Court, Indore [1976 - II L.L.N 299] (vide supra), specifically refers to Kalyani case and Sasa Musa 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 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 good is a subsequent approval by a Tribunal which is granted, cannot be obfuscated.”

Though the learned Judges agree with the law laid down in D.C Roy case [1976 - II L.L.N 299], the decision does not proceed further because the orders of termination in that case were set aside. Actually the point of ‘relation back’ doctrine does not fall for consideration in the case of Gujarat Steel Tubes (vide supra). Suffice it to say that the Judge, who delivered the judgment in the said case, was also one of two Judges who decided D.C Roy case (vide supra).

12. From the discussions afore-stated, it is clear that the ratio as laid down in P.H Kalyani case [A.I.R 1963 S.C 1756] (vide supra), on the point of “relation-back” doctrine is followed in the case of D.C Roy [1976 - II L.L.N 299] (vide supra). The Gujarat Steel Tubes case [1980 — I L.L.N 230] (vide supra), again endorses the law laid down in D.C Roy case (vide supra). All of sudden, a contrary view appears in the decision of Supreme Court in Desh Raj Gupta v. Industrial Tribunal TV, Uttar Pradesh, Lucknow [1991 — I L.L.N 965]. That was a case in which approval was sought under S. 6-F of the Uttar Pradesh Industrial Disputes Act, 1947. The Tribunal first examined the case of the workman on the question whether the principles of natural justice had been followed in the domestic inquiry. After hearing the parties, the Tribunal answered the issue in favour of the workman. The management was hence called upon to justify the order of punishment on merits. Accordingly, the parties led evidence and the Tribunal recorded the finding that the charges levelled were established by materials on record and the workman, therefore, was not entitled to any relief. The Allahabad High Court dismissed the writ petition filed by the employee. In appeal by special leave, two points were canvassed, one of which was that the appellant, namely, the employee, was entitled to the salary from the date of dismissal to the date of the award of the Tribunal because the misconduct alleged against the employee was proved by adducing evidence before the Industrial Tribunal and, therefore, the “relation-back” doctrine would not apply. Paragraph 9, at page 968 of 1991 —I L.L.N deals with the point:

“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. Gujarat Steel Tubes Mazdoor Sabha [1980 — I L.L.N 230], 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 August, 1976 to 30 July, 1980 and the entire amount should be paid by the respondent-bank within a period of three months from today…..”

A bare reading of the paragraph will show that it merely comes to the conclusion that the date of dismissal cannot relate back to the date of the order. With great respect to the learned Judges, it will have to be said that the conclusion was arrived at without any discussions on the point probably because there was no resistance from the opposite side. Even the conclusion drawn is not in conformity with the decision of Gujarat Steel Tubes case (vide supra). The case does not lay down the law in the manner it is held in Desh Raj Gupta case. I have already discussed the cases in great depth and no useful purpose would be served by repeating it again. The question which now arises for consideration is the effect of such a decision under Art. 141 of the Constitution. In this connection, either side has relied upon various cases, but a relevant one which will apply to the facts involved in the case at hand is the Supreme Court case of State of Uttar Pradesh v. Synthetics and Chemicals, Ltd. [Jt 1991 (3) S.C 268]. In that case it is held as follows:

“Any declaration or conclusion arrived without application of mind or precedent without any reason cannot be deemed to be declaration of law or authority of general nature binding as a precedent. Restraint in dissenting or overruling is for the sake of stability and uniformity, but rigidity beyond reasonable limits is inimical to the growth of law.”

Suffice it to say that the decision in Desh Raj Gupta case [1991 - I L.L.N 965] (vide supra), has no binding effect as contemplated under Art. 141 of the Constitution.

13. Even otherwise, the case of Desk Raj Gupta [1991 - I L.L.N 965] (vide supra), is a decision by the Division Bench. It cannot override the decisions of larger Bench like the case of Kalyani [A.I.R 1963 S.C 1756] (vide supra), or the case of Gujarat Steel Tubes [1980 - I L.L.N 230] (vide supra), which approves the D.C Roy case [1976 — II L.L.N 299] (vide supra).

14. My attention was invited by the amicus curiae Sri R.B Pendharkar to a decision of the Court in Indian Cork Mills (Private), Ltd. v. P. Unikrishnan [1988 - II L.L.N 1026], in which it is held that the “relation-back” doctrine will not wholly apply and in that background approved the payment of 65 per cent of the wages for the period between the date of dismissal and date of award. In doing so, the learned Judge relied upon the observations of the judgment in D.C Roy case [1976 — II L.L.N 299] (vide supra), and in particular Para. 13 thereof which only carves out an exception to the ratio of Kalyani case (vide supra), in circumstances stated in that paragraph. That is not the ratio of D.C Roy case (vide supra), which I have already discussed above. It follows Kalyani case [1963 — I L.L.J 679] (vide supra), in toto and the law laid down therein by the larger Bench is quite contrary to what has been followed in Indian Cork Mills case (vide supra). It is indeed true that even obiter dicta of the Supreme Court is binding on us. But when we have the direct decision on the point which is very much there in the same case, the obiter dicta will not prevail over the direct decision. In any event, the exception carved out in D.C Roy case (vide supra), would apply to exceptional circumstances enumerated therein. It postulates removal of an employee under pretence of an inquiry. It cannot include removal of an employee by an inquiry which is said to be defective and an opportunity being given the employer satisfactorily establishing the misconduct and the consequent action taken. In my opinion, the judgment in Indian Cork Mills case (vide supra), is per incurium in view of other judgments of the Supreme Court on the point.

15. One more aspect which is pressed into service by the amicus curiae, Sri Pendharkar, remains to be dealt with. It relates to the scope and ambit of S. 11-A of the Industrial Disputes Act, inserted by Act No. 45/71 which deals with the power of Courts, Tribunals, etc., to give appropriate relief in case of discharge or dismissal of workmen. The question which falls for determination is whether the Court or Tribunal could grant the relief of payment of back-wages from the date of the dismissal to the date of the award of the Court or Tribunal even if it is satisfied that the order of dismissal or discharge based on the evidence of misconduct adduced before it, was justified? Obviously, the answer would be in the negative.

16. Section 11-A referred to above is quoted below:

“11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen—

Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court… for adjudication and, in the course of the adjudication proceedings, the Labour Court …. is satisfied that the order of discharge or dismissal was not justified, it may by its award, set aside the order of discharge or dismissal and 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:

Provided that in any proceedings under this section the Labour Court…shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”

With this insertion of the section, the Legislature made a departure from the law that was in force and empowered the Labour Court or Tribunal to satisfy itself as to whether the misconduct is proved, in spite of the fact that the inquiry held was proper and also to interfere with the punishment imposed by the employer. The Court can differ from the employer both with regard to the finding of misconduct arrived at by it as well as the punishment imposed.

17. The Supreme Court in Workmen of Firestone Tyre and Rubber Company of India (Private), Ltd. v. Firestone Tyre and Rubber Company of India (Private), Ltd. [1973 - I L.L.N 278], had occasion to deal with the scope and ambit of S. 11-A of the Industrial Disputes Act. While so doing, the Supreme Court distinguished the earlier position before incorporation of S. 11-A by observing in Para. 34, at page 293:

“….. Previously the Tribunal had no power to interfere with its (management's) finding of misconduct recorded in the domestic inquiry unless one or other infirmities pointed out by this Court in Indian Iron and Steel Company, Ltd. [1958 - I L.L.J 260], existed. The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by S. 11-A. The words “in the course of the adjudication proceedings, the Tribunal is satisfied that the order of discharge or dismissal was not justified” clearly indicate the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out….”

Another change, as noted by the Supreme Court, brought in by S. 11-A is the power conferred on the Court or Tribunal to alter the punishment imposed by the employer. In spite of the fact that the Court or Tribunal comes to the conclusion that the misconduct is established, still if the Tribunal is of the opinion that the punishment of dismissal or discharge is not justified, it can interfere with the same. Adverting to the right of the employer to adduce evidence before the Court or a Tribunal, the Supreme Court held that even after incorporation of S. 11-A with the proviso, the employer had a right to adduce evidence either for the first time before the Tribunal or as a supplementary measure to the one already adduced during domestic enquiry.

18. It will thus be seen that the powers of the Court or Tribunal are wide enough to grant relief or reliefs to a workman the moment such Court or Tribunal is satisfied that the order of dismissal or discharge is not justified. Those reliefs can be reinstatement with back-wages or it may even slice of a part of back-wages if it was found that workman was not wholly blameless or circumstances exist that the strike was illegal and unjustified. Even lump sum compensation could also be awarded in lieu of reinstatement or back-wages. The discretion to grant relief or reliefs wholly vests in the Court or Tribunal, but, as stated above, the discretion can be exercised only if the Court or Tribunal is satisfied that the order of dismissal is not justified. Once the Court or Tribunal draws the conclusion of having been satisfied from “the material on record” (words used in the proviso) that the order of dismissal or discharge is justified, the competence to grant relief is not available to that Court or Tribunal and the only option left is to reject the application or reference as the case may be. At least S. 11-A of the Industrial Disputes Act leaves no room for the Court or Tribunal to grant back-wages from the date of the order of dismissal or discharge to the date of the order of award passed by it even though satisfaction is reached that the order of dismissal or discharge was justified on the basis of evidence adduced before it.

19. At this stage, it would be appropriate to consider even the submissions canvassed on behalf of the petitioner. While it is accepted that the claim for back-wages up to the date of the award, cannot be granted under S. 11-A, still it is contended that the petitioner is entitled to the amount on the basis of law laid down by the Supreme Court in Desh Raj Gupta case [1991 — I L.L.N 965] (vide supra), or even on the basis of the exception carved out in the case of D.C Roy [1976 - II L.L.N 299] (vide supra). I have elaborately discussed above both the cases at length and repetition would not serve any purpose. Even if it is to be accepted that the exception carved out in D.C Roy case (vide supra), is law in force, even then the petitioner does not fall into that class of workmen in which it can be said that under the facade of a domestic enquiry, the petitioner was thrown out. The cases covered by the exception postulate removal of a workman under the pretence of an enquiry. It cannot include persons like the petitioners who are removed by an enquiry, which is later on proved to be defective and an opportunity being given the employer satisfactorily establishes the misconduct and the consequent action taken. At this stage, it must also be relaised that the advantage of S. 11-A of the Industrial Disputes Act was not available when D.C Roy case (vide supra), was decided. Therefore I find no substance in the contentions of the petitioner that his claim simply rests upon the decisions of the Supreme Court.

20. An ingenious contention was also raised on behalf of the petitioner. The contention was that when the Court finds the domestic enquiry to be defective, it is an unfair labour practice covered by any of the clauses of item (5) of the Fifth Schedule of the Industrial Disputes Act. The workman immediately becomes entitled to the relief of reinstatement with back-wages. Instead the employer takes up the second chance to prove the misconduct and if he succeeds, the workman loses all the rights to get any relief. It is in these circumstances, it is urged that right to claim back-wages arises at least from the date of dismissal to the date of the award. I will shortly point out that the submissions are devoid of any merit and must be rejected for more than one reason.

21. Simply because the enquiry is held to be defective, it is not necessary that holding of such an enquiry would be an unfair labour practice. It is difficult to fathom which clauses of item(5) would be attracted. Again it would be premature to hold that the management indulged in unfair labour practice because it is always open for the employer to seek on opportunity to establish the misconduct before the Court or Tribunal by adducing evidence before it and justifying the order of dismissal or discharge. If the employer succeeds in establishing the misconduct, it can never be said that they have indulged in any type of unfair labour practice. Hence, the question of reinstatement of the workman does not arise at the time the enquiry is held to be defective. In case the reinstatement were to follow immediately upon the Court or Tribunal coming to the conclusion that the enquiry is defective, the right of the employer to prove the misconduct before it by adducing evidence would come to an end and that is not what is contemplated by the various decisions of the Supreme Court. The intention behind permitting the employer to establish the misconduct before the Court or Tribunal either for the first time or as a supplementary measure is well illustrated in the Supreme Court case of Cooper Engineering, Ltd. v. P.P Mundhe [1975 - II L.L.N 321]. The relevant portion is extracted below to illustrate the point in Para. 21, at pages 326:

“….. The reference involves determination of the larger issue of discharge or dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal. Besides, even if the order of dismissal is set aside on the ground of defect of enquiry, a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to/This is neither going to achieve the paramount object of the Act, namely, industrial peace, since the award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed, pro tempore, as a result of such an award, will be revived and industrial peace will again be ruptured. Again another object of expeditious disposal of an industrial dispute [See S. 15] will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster industrial peace.”

It is in the aforesaid background the consistent view of the Supreme Court is that when a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first decide as a preliminary issue whether domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there could be no difficulty. But when the matter is controversial, it must be decided as a preliminary issue. On that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. In case the employer adduces the evidence and proves the misconduct, the order of dismissal though passed earlier is to be upheld. The “relation back” doctrine must come to fore.

22. In view of the aforesaid discussion, it is clear that the petition must fail and is accordingly dismissed but in the circumstances, without any order as to costs. Rule stands discharged.