Bharat Petroleum Corporation Ltd. v. Ramnath Jagdish Tiwari And Another

V.P Tipnis, J.:— By this petition, Bharat Petroleum Corporation Ltd. challenges the legality and validity of order dated 5-10-1990 by which the learned Presiding Officer, Central Government Industrial Tribunal No. 1, Bombay, in Reference No. CGIT-20 of 1988 under award part-I held that the departmental enquiry is vitiated on the ground that the principles of natural justice were breached. The learned Presiding Officer, therefore, directed the parties to lead additional evidence. The petition also challenges the legality and correctness of the order dated 25th February, 1991 whereunder he directed the management to pay full back wages to the workman from 5-2-1987 till the final award is passed. He further directed that the back wages upto 31-3-1991 may be paid before 15-4-1991 and, thereafter, the wages from April, 1991 onwards were directed to be paid for every month by 10th of the succeeding month. The question of subsistence allowance and bonus was left open.

2. Respondent No. 1 workman was employed by the petitioner as a watchman. On 18-1-1986 he was allotted duty as watchman at Grease Section between 1600 hrs., and 2400 hrs. At about 2130 hrs., the workman requested to be relieved early to enable him to attend some function and, accordingly, one Shelar relieved him at 23.40 hrs. after taking charge of 8 bags of cement amongst other things at Grease Section. Soon thereafter Shelar saw the respondent-workman loading some material in the luggage boot of a taxi on the road leading to Bunkering section which is just outside the Grease Section gate. On verification, Shelar found two bags of cement removed by the workman from Grease Section while on duty. Thereupon, Shelar returned the keys and refused to relieve the workman. The matter was reported to the higher authorities when the respondent-workman is alleged to have admitted having removed two bags of cement belonging to the petitioner with intention to dispose of the same for gain. Respondent No. 1 was, accordingly, charge-sheeted by charge-sheet dated 25-1-1986 charging him with (i) theft/dishonesty in connection with the Corporation's property, and (ii) committing acts subversive of discipline and good behaviour on the premises of the establishment. Respondent No. 1 by his explanation dated 31-1-1986 unequivocally admitted the charges and pleaded for mercy and implored the petitioner not to institute any enquiry. By letter dated 20-5-1986 the petitioner-company informed respondent No. 1 that an enquiry will be conducted against him on 27-5-1986 and he will be allowed to be assisted by a fellow employee in his defence. Respondent No. 1 addressed letter dated 25-5-1986 in Hindi and alleged that he was coerced to sign the explanation dated 31-1-1986 and he denied that he had committed any theft. On 27-5-1986 the Inquiry Officer told respondent No. 1-workman that no outsider would be allowed to participate in the enquiry or defend him. One Ramdas Gopal Khose, co-employee, representing the workman demanded Hindi version of the Standing Order and it was promised to be given on the next date i.e 16th June, 1986. On 16th June, 1986, respondent No. 1 appeared with co-employee Ramdas Gopal Khose. The said Khose insisted on list of the petitioner's witnesses, copy of the charge-sheet, Hindi version of the Standing Orders, and copy of order of the Inquiry Officer refusing representation by outside Union Official. He threatened not to participate in the enquiry till the documents were furnished. The said co-employee further requested for payment of subsistence allowance at 75% of the wages after three months from the date of suspension and the Enquiry Officer directed the management's representative to pay the subsistence allowance at the rate provided for in the Standing Orders. Respondent No. 1 was furnished with English/Hindi version of the Certified Standing Orders. Thereafter, Shelar who had caught the respondent-workman red-handed was examined as a witness. At the request of Khose, who was defending the workman, the cross-examination of said Shelar was adjourned to 1-7-1986. On 1-7-1986 respondent No. 1 failed to appear and the enquiry was adjourned to 8th July, 1986. On the said date Khose submitted medical certificate showing that respondent No. 1 was sick and the enquiry was adjourned to 23-7-1986. On 23-7-1986, co-employee Khose defending respondent No. 1 demanded that the workman should be allowed to be defended by an outside Union Official by name P.A Shetty. When he was advised by the Inquiry Officer that outsiders are not permitted, both respondent No. 1 and co-employee Khose, who was defending him, threatened to boycott the enquiry and, in fact, did so. The enquiry was, thereafter, conducted ex parte in English. The Inquiry Officer gave his report and findings on 4th December, 1986 holding respondent No. 1-workman guilty of charges levelled against him. Pursuant to the finding of the Inquiry Officer, an order dated 4-2-1987 from the General Manager (Sales) of the petitioner, respondent No. 1 was advised by the Personnel Manager of the petitioner by letter dated 5-2-1987 that he was dismissed from the service of the petitioner with effect from 5-2-1987. Respondent No. 1 raised an industrial dispute regarding his dismissal which was referred by the Central Government by its order dated 7th December, 1987 to the Central Government Industrial Tribunal No. 1, Bombay. The learned Presiding Officer, Central Government Industrial Tribunal No. 1, Bombay, passed his award Part-I on 5th October, 1980.

3. So far as award Part-I is concerned, it deals with the preliminary issue as to whether the domestic enquiry stands vitiated for the reasons stated viz., that the management has deliberately victimised him, because he was an active member of the Maharashtra Kamgar Union, that the Inquiry Officer was biased against him, and that the enquiry proceedings are vitiated by gross breaches of the principles of natural justice. Under the last head, the workman alleged that the proceedings were held in English, despite the workman's request that he is not conversant with the language and the proceedings may be conducted in Hindi, that proceedings were conducted after 23-7-1986 without prior intimation of the dates of hearing, that the request of the workman that he should be permitted to be represented by one Shetty was rejected and lastly, he was not given subsistence allowance a the rate of 75% of his wages after the expiry of the first 90 days of suspension, although a specific request was made to the Inquiry Officer on 16-6-1986. The learned Presiding Officer by the aforesaid award Part-I negatived all but one of the contentions of the workman. He held that the enquiry ??? vitiated as the workman was not paid subsistence allowance as provided under section 10-a(1) ??? the Industrial Employment (Standing Orders) Act, 1946 and that has resulted in infraction of the principles of natural justice and he held that the enquiry is, accordingly, vitiated on the said ground.

4. I have heard Mr. Rele, learned Counsel appearing for the petitioner-company, and Mr. Chitale, learned Counsel appearing for respondent No. 1-Workman, at some length. Mr. Rele, or the basis of several authorities, contended that the order passed by the Industrial Tribunal, holding that the enquiry is vitiated on the ground of breach of the principles of natural justice solely for the reason that the subsistence allowance was not paid at the rate of 75% after 90 days were over is illegal and improper. Mr. Rele submitted that when admittedly, 50% of the subsistence allowance was paid, mere failure to pay at the rate of 75% ipso facto would not result into breach of the principles of natural justice and the workman has to show that, in fact, prejudice was caused to him and non-payment of subsistence allowance at the rate of 75% after 90 days disabled him from participating in the enquiry due to paucity of funds. Mr. Rele contended that not only there is no evidence of any such prejudice nor even pleading, but in fact, the workman had abandoned the enquiry solely on the ground that he was not permitted to be represented by an outside Union activist by name Shetty. Mr. Rele also seriously challenged the correctness of the decision of the Industrial Tribunal holding that the decision of the Apex Court in (Fakirbhai Fulabhai Solanki v. The Presiding Officer)1, 1986 (11) L.L.J 124, supports the proposition that once the subsistence allowance is not paid in accordance with the provisions of the Standing Order or any statutory enactment in that behalf, the principles of natural justice must be held to have been breached. After taking me through the said decision in Fakirbhai's case, Mr. Rele submitted that the correct ratio of the said judgment is that some reasonable amount has to be paid to the workman during the inquiry. Mr. Rele submitted that inasmuch as in the facts of the case before me, substantial amount. viz., 50% of the wages was admittedly paid to the workman as subsistence allowance and in the absence of any specific pleading and evidence to the effect that the workman has suffered prejudice by non-payment of subsistence allowance at the rate of 75% after the first 90 days of the enquiry, it cannot be held that the enquiry is vitiated on the ground of breach of the principles of natural justice. Mr. Chitale, learned Counsel appearing for respondent No. 1-workman on the other hand, contended that as the impugned orders are interim in nature, the same should not be interfered with as they are capable of being challenged in the event of adverse orders being passed against the petitioner by way of award part-II. He contended that the provisions of section 10-A(1) of the Industrial Employment (Standing Orders) Act, 1946 are mandatory and must be construed strictly. He further contended that the provisions of section 10-A(1) is a beneficial piece of legislation and must be construed in a way favourable to the workman. Mr. Chitale also contended that the management cannot rely upon the provision of section 10-A(2) as the said provisions come into play only when there is any dispute regarding subsistence allowance payable and in the instant case, there is no dispute at all so far as this aspect it concerned. Mr. Chitale further contended that assuming without admitting that section 10-A(2) of the said Act is attracted, then in the absence of any application by either the petitioner or respondent No. 1, the Industrial Tribunal had inherent jurisdiction to determine the said issue which is clearly incidental and ancillary in nature to the reference pending before it.

5. Before I deal with the rival contentions on this aspect, I will deal with and dispose of another contention of Mr. Chitale which he raised almost like a preliminary point as to whether the present petition survives at all. Mr. Chitale contended that by virtue of the orders passed by the appeal Court in Appeal No. 900 of 1991 on 14-10-1991 and 6-4-1993, the instant writ petition does not survive any more and the petition has become infructuous. I find it impossible to accept this submission. After admitting the present petition, interim order of stay in terms of prayer Clauses (b) and (c) was granted. The said order of granting interim relief was challenged by the respondent-workman by preferring Appeal No. 900 of 1991. Notice of Motion in the aforesaid appeal for interim relief was disposed of by the appeal Court by order dated 14th October, 1991. By the said order, operation of the interim order passed by the Single Judge in the writ petition was stayed by the appeal Court. The appeal Court observed:—

“In our view, prima facie, this is a correct decision. We see no reason in the circumstances, why the workman should have to wait until the writ petition is disposed of and, in the event that it is dismissed, for the further enquiry to be completed by the Industrial Tribunal before he gets the relief he claims. In our view, pending the disposal of the writ petition, the further enquiry should be allowed to proceed but the order thereon should not be implemented pending the disposal of the writ petition. Accordingly, the interim order passed by the learned Single Judge is stayed pending the disposal of the Notice of Motion which is made returnable with the appeal, which is expedited.”

6. When Appeal No. 900 of 1991 reached final hearing the same was disposed of by order dated 6-4-1993. The Division Bench allowed the appeal and set aside the order passed by the Single Judge in this petition granting stay in terms of prayers (b) and (c). In the aforesaid order, the Division Bench referred to the submission of the learned Counsel appearing on behalf of the workman to the effect that grant of interim relief was stayed by the appeal Court on admission of the appeal with the result that the benefit conferred by the Tribunal was made available to the workman and that, as a rule, this Court does not entertain writ petitions against part-I of the award and challenge, if any, by the employer can be raised in case an adverse order is passed by the Tribunal while declaring award part-II. The Division Bench observed that the aforesaid submission is of considerable merit and there is no reason why the proceedings for declaring award part-II should be withheld. In the judgment of the Division Bench, grant of interim relief, in these circumstances, was uncalled for and the appeal was allowed.

7. Apart from the tact that in the order dated 14-10-1991 in Notice of Motion taken out in Appeal No. 900 of 1991, the appeal Court has come to a prima facie view and by the final order dated 6-4-1993 in Appeal No. 900 of 1991 the interim order passed by the Single Judge is set aside, it is impossible to accept the submission that the aforesaid orders make the pending writ petition infructuous, as contended by Mr. Chitale. Incidentally, it may be mentioned that despite the order of stay passed in this petition having been stayed by the aforesaid orders and despite the fact that by final order dated 6-4-1993, the interim order of stay granted by the Single Judge in this petition was quashed and set aside, there has not been any progress in the matter before the Industrial Tribunal. The interim order in the appeal and the final order of disposal of the appeal affect only the interim order granted by the Single Judge in this petition. By no stretch of imagination, it can be said that the aforesaid orders passed by the appeal Court dispose of the petition.

8. So far as award part-I is concerned, as stated earlier, the solitary ground on which the Industrial Tribunal held that the enquiry is vitiated is the breach of the principles of natural justice upon the failure of the petitioner to pay subsistence allowance at the rate of 75%. After referring to the provisions of section 10-A(1) of the Industrial Employment (Standing Orders) Act, 1946, the Tribunal observed that it is an admitted position that the workman was paid subsistence allowance at the rate of 50% of his wages for the entire period he was put under suspension with effect from 21-1-1986. The enquiry proceedings commenced on 27-5-1986. The Tribunal further observed that though it is true that the workman has not specifically pleaded on subsistence allowance in his statement of claim, the enquiry proceedings do show that he had made an express request for enhanced allowance to the Inquiry Officer on 16-6-1986 and the Inquiry Officer had given a direction to the petitioner to do the needful. The workman had also expressly raised the point in his written arguments. The Tribunal felt that inasmuch as all the material facts on which the decision rests are admitted, it will not be just to dismiss the workman's submission on a technical ground of pleading. I have no hesitation in endorsing this part of the reasoning of the Tribunal.

9. The Tribunal, thereafter, observed that section 10-A(1)(b) deprives the workman of enhanced rate if the delay in completion of the disciplinary proceedings is directly attributable to his conduct. The Tribunal observed that where the management themselves took more than four months to commence the enquiry after the workman was put under suspension, the blame for late commencement of the enquiry cannot even remotely be attributed to the conduct of the workman. Ex facie if there can be any case in which the workman was entitled to subsistence allowance at the enhanced rate under section 10-A(1)(b) of the Act, it is the present one, observed the Tribunal. I have also not the slightest hesitation in fully endorsing this reasoning and view of the Tribunal.

10. Thereafter, the Tribunal held that it is the statutory obligation of the employer to pay subsistence allowance, according to law, to every workman under suspension and that the workman who is facing disciplinary proceedings without getting even full subsistence allowance - let go, full wages - is subjected to avoidable tension and hardship. The Tribunal held that in the present case, this lapse might result in infraction of the principles of natural justice in that the workman may not have the necessary wherewithal from any alternative source to maintain his dependants and effectively defend himself in the proceedings. The Tribunal also felt that section 10-A(3) of the said Act does not act as a bar in the way of the workman, firstly, there can be no dispute at all on the admitted facts of the present case that the workman was entitled to subsistence allowance at the enhanced rate under section 10-A(1)(b) and, secondly, if it was so, it was for the management to move the Labour Court. After referring to Fakirbhai's case and especially in view of the clear observations in Fakirbhai's case that subsistence allowance will be payable as prescribed by Standing Orders or in their absence, as may be fixed by the Tribunal taking up section 33 proceedings, the Tribunal felt that section 10-a of the 1946 act, a statutory provision, is no less sacrosanct than the one in the Standing Orders, the management was duty bound to give effect to it and failure to do so has resulted in infraction of the principles of natural justice.

11. Mr. Rele, in this behalf, relied upon the decision of the Orissa High Court in (Bonshidhar v. State of Orissa)2. 1975 Lab. I.C 932 wherein it was held that merely because subsistence allowance is not paid either regularly or in time, it cannot be said that the ultimate order passed in the disciplinary proceedings is liable to be quashed on account of lack of reasonable opportunity given during the proceedings Mr. Rele next relied upon the decision of the Orissa High Court in (Manamohan Das v. State of Orissa)3, 1979 Lab. I.C 988, wherein it was held that although it cannot be laid down as a broad proposition that wherever subsistence allowance is not paid, the ultimate order passed in the disciplinary proceedings is liable to be quashed, yet there can be no doubt that the enquiry would be vitiated if there is denial of reasonable opportunity. In the facts and circumstances of the case before it, the non-payment of subsistence allowance was held to have resulted in absence of reasonable opportunity in the disciplinary proceedings. The Apex Court in (Ghartshyam v. State of M.P)4, 1973 Lab. I.C 778, referred to para 5 of the writ petition wherein it was expressly alleged that on 5-12-1964 the appellant-workman sent a letter to the Inquiry Officer informing him that unless he was paid subsistence allowance, he would not be able to face the enquiry proceedings. The letter which was annexed to the petition stated:—

“Until and unless I am paid subsistence allowance ……… I categorically refute to face any proceeding. ……. as I have no capacity to do so because of acute shortage of funds.”

12. In the facts and circumstances, the Apex Court held that where the delinquent had specifically communicated his inability to attend the enquiry due to paucity of funds resulting from non-payment of subsistence allowance, the enquiry was vitiated for his non-participation and no adverse inference as to his source of income could be drawn from the fact that he did not state them in his affidavit in the writ petition or from the fact that he challenged his dismissal by writ petition immediately after his dismissal and subsequently came in appeal before the Supreme Court. Mr. Rele relied upon the decision of the Madras High Court reported in (1993 Lab. I.C 627)5 wherein in the absence of any provision in the Standing Orders of the company to pay subsistence allowance during enquiry and in the absence of any demand during enquiry or any claim petition before the Labour Court or the direction by it to pay such allowance, non-payment of such allowance was held not to have vitiated the enquiry.

13. Mr. Rele, therefore, submitted that firstly the workman had neither pleaded nor adduced any evidence that he had suffered prejudice by non-payment of subsistence allowance, in accordance with the provisions of the Industrial Employment (Standing Orders) Act. That admittedly he was paid substantial allowance at the rate of 50% all throughout the enquiry and unless no amount at all is paid or the amount paid is so meagre that the workman is disabled from participating in the enquiry effectively, mere non-payment of subsistence allowance at the rate of 75% cannot result into breach of the principles of natural justice.

14. So far as the decision of the Apex Court in Hotel Imperial's case (supra) is concerned, I am in complete agreement with the observation of the Tribunal that the Apex Court in Fakirbhai's case has specifically referred to its decision in Hotel Imperial's case and has specifically distinguished the same on the ground that submissions were not made on this particular aspect of breach of the principles of natural justice and the learned Judges who decided Hotel Imperial's case did not consider the question from the angle from which the learned Judges decided Fakirbhai's case have approached the problem.

15. Coming to Fakirbhai's case, it was a case where during the pendency of a reference made under the Industrial Disputes Act to the Industrial Tribunal, the management served a charge-sheet on the workman. Disciplinary enquiry was held against all the workmen. The workman concerned was found guilty of act of misconduct and it was decided by the management to dismiss him, but as the workman concerned was a protected workman and permission of the Tribunal had to be obtained before dismissing him under the provisions of law, the management had made an application before the Tribunal for such permission and the workman concerned was suspended from service pending disposal of the application before the Tribunal. The workman also filed an application before the Tribunal under section 33-A of the Industrial Disputes Act complaining violation of section 33-A by the management. Ultimately, the Tribunal granted permission to the management to dismiss the workman and rejected the complaint filed by him. In the aforesaid case, in the Standing Orders governing the workman, there was no provision for payment of any subsistence allowance during the pendency of an application made by the management under section 33(3) of the Act for permission to dismiss the protected workman. Admittedly, the workman was not paid any allowance during the relevant period. It was urged that since the workman was denied subsistence allowance, it was not possible for him to defend himself effectively before the Tribunal in the proceedings relating to permission prayed for by the management under section 33(3) of the Act, and, therefore, the ultimate order passed by the Tribunal was vitiated. The Apex Court, in the aforesaid case, also observed that from the date of suspension, the workman was not paid even the barest subsistence allowance. The Apex Court further observed that it is reasonable to hold that the workman against whom the application is made should be paid some amount by way of subsistence allowance to enable him to maintain himself and the members of his family and also to meet expenses of litigation before the Tribunal and if no amount is paid during the pendency of such an application, it has to be held that the workman concerned has been denied a reasonable opportunity to defend himself in the proceedings before the Tribunal. Such denial leads to violation of the principles of natural justice and, consequently, vitiates the proceedings before the Tribunal under sub-section (3) of section 33 of the Act. The Apex Court further observed that no material has been placed before it in that case to show that the workman had sufficient means to defend before the Tribunal. In para 8 of the decision, the Apex Court further observed that denial of payment of at least a small amount by way of subsistence allowance would amount to gross unfairness. In para 10, the Apex Court observed that if the order passed at the conclusion of the domestic enquiry is only one of suspension (even though the management has decided to dismiss him) where the workman has a chance of being reinstated with back wages on the permission being refused under section 33(3) of the Act, it cannot be said that the workman is not entitled to any monetary relief at all. In such a case, the right of the workman to receive some reasonable amount which may be fixed either by the Standing Orders or in the absence of any Standing Orders, by the authority before which the application is pending by way of subsistence allowance during the pendency of the application under section 33(3) of the Act with effect from the date of suspension should be implied as a term of the contract of employment, having regard to the observations in Khem Chand's case.

16. Mr. Rele, with some justification, emphasised the phrases “not paid even the barest subsistence allowance”, “should be paid some amount by way of subsistence allowance” and “if no amount is paid during the pendency” and submitted that even according to the ratio in Fakirbhai's case, unless no amount is paid or the amount paid is shown to be very meagre, it cannot be held that the workman was deprived of the opportunity of defending himself effectively in the disciplinary proceedings. Though impressive, the submission does not stand scrutiny. In the facts of the case before the Apex Court, as there was no provision in the Standing Orders for payment of subsistence allowance during suspension pending the approval by the Tribunal, the Apex Court has used these pharases. However, the ratio of the case is to be found in para 10 mentioned above. In my opinion, the ratio is that some reasonable amount which may be fixed either by Standing Orders or in the absence of the Standing Orders, by the authority before which the application is pending, by way of subsistence allowance has to be paid to the workman during the pendency of the application under section 33(3). The position cannot be much different on this aspect during the pendency of the disciplinary proceedings. The principle is that the workman has to be paid a reasonable amount. In the absence of any provision, the Tribunal seized of the matter can determine the amount. But when section 10-A(1)of the Industrial Employment (Standing Orders) Act, 1946 makes a specific provision for payment of subsistence allowance to the workman pending enquiry at the rate of 50% of the wages for the first 90 days of suspension and at the rate of 75% of wages for the remaining period of suspension, if the delay in completion of the enquiry is not directly attributable to the conduct of such workman, there is no necessity of making any further enquiry as to what would be a reasonable amount. The Legislature by enactment has statutorily determined this aspect. As such, the management was obliged to pay the subsistence allowance at the rate of 75% of the wages and only such payment could be held to be reasonable. Anything short cannot be held to be reasonable inasmuch as not only it would be contrary to the very object and intention of the aforesaid 1946 Act, but also to the express provision of section 10-A(1) thereof. In the facts of the present case, as observed by the Tribunal, the workman did demand payment at the enhanced rate as per his entitlement under section 10-a(1) and the Inquiry Officer, in fact, directed the management to do so. If the management failed to do so, it has to thank itself for the consequences. As I am in complete agreement with the Tribunal that in the facts of the case, there is no question of any dispute regarding the rate at which the subsistence allowance has to be paid and the material on record is absolutely clear to show that even remotely the workman cannot be held responsible for the delay in completion of disciplinary proceedings, I am also of the opinion that the enquiry has to be held to be vitiated on the ground that the principles of natural justice are breached. In the result, award part-I dated 5-10-1990 is hereby confirmed.

17. So far as the order dated 25-2-1991 passed by the Industrial Tribunal is concerned, it appears that after passing of the Part I of the award by order dated 5-10-1990, the workman made an application that in view of the decision in Part I award, the order of dismissal has become illegal and the workman must be deemed to be in the employment entitling him to full wages from the date of the said illegal termination. It was submitted that after leading evidence and assuming without admitting that the charges are proved and the punishment of dismissal is upheld, even then the workman is entitled to his wages/subsistance allowance till the date of the Part II award. In other words it was contended that if the order of punishment passed by the management is declared illegal but the punishment is upheld by the Tribunal, date of dismissal cannot relate back to the date of illegal order of dismissal by the management. It was therefore, submitted that in any event the employer is liable to pay wages to the workman till the matter is finally decided by Part II award. He also claimed bonus. Therefore, it was prayed that the employer be directed to pay the arrears of subsistance allowance at the rate prescribed in the Industrial Employment (Standing Orders), Act, 1946 and further be directed to continue to pay wages/subsistence allowance till the final disposal of the reference.

18. The employer company filed its reply contending that the Tribunal has no jurisdiction to entertain the application and the Tribunal cannot grant backwages/subsistence allowance at the interim stage. It was also contended that the Award Part I does not ipso-facto invalidate the order of dismissal and the issue of justifiability is still to be adjudicated upon by the Tribunal.

19. By order dated 25-2-1991 the learned Judge of the Industrial Tribunal held that he has jurisdiction to pass the interim order prayed for. So far as the arrears of subsistence allowance from the date of suspension till dismissal i.e from 25-1-1986 to 5-2-1987 is concerned, the issue was kept open. The issue regarding bonus was also left open. On the main issue the Tribunal relying upon the judgment of the Apex Court in (Desk Raj Gupta v. Industrial, Tribunal IV, Lucknow), (1990) III Current Service Journal 131, held that the workman in the instant case is clearly entitled to backwages. The Tribunal held that once it held that the order of dismissal is vitiated for breach of the principles of natural justice, because full subsistence allowance was not paid to the workman, he meant nothing less than holding the order to be illegal. Accordingly the tribunal directed the management to pay full backwages to the workman from 5-2-1987 till final award is passed. It was further directed that the back wages upto 31-3-1991 be paid before 15-4-1991 and thereafter wages from April, 1991 onwards may be paid for every month by the 10th of the succeeding month.

20. Shri Rele challenged the correctness of this order with reference to several authorities. Shri. Rele cited the judgment of the Apex Court in the matter of (Kalyani (P.II) v. Air France, Calcutta)6, reported in 1963 (1) L.L.J 679. In the aforesaid case the Apex Court has observed as under:

“The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, end whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter, on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty, i.e, there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made”.

21. Shri Rele thereafter relied upon the judgment of the Apex Court in the matter of (D.C Roy v. The Presiding Officer, Labour Court)7, (1976) 3 SCC 693 : A.I.R 1976 S.C 1760 : 1976 (3) S.C.R 80. After referring to the observations of the Apex Court in Kalyani's case, the Supreme Court has observed as under:

“These observations directly caver the case before us because though the Labour Court, in the instant case, found that the inquiry was defective as it infringed the principles of natural justice, it came to the conclusion after considering the evidence adduced before it, that the dismissal was justified. The award of the Labour Court must therefore relate back to the date when the order of dismissal was passed on the termination of the Domestic Enquiry”.

22. Shri Rele thereafter referred to the judgment of the Apex Court in the matter of Desk Raj Gupta v. Industrial Tribunal IV, Lucknow, reported in 1991 (1) L.L.J 120. Paragraph 9 of the aforesaid judgment is as under:

“The second ground urged in support of the appeal appears to be wed founded. The learned Counsel is right in relying on the observations in (Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Masdoor Sabha)8. 1980 (11) L.L.J 137, that if the order of punishment passed by file 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 illegal order of the employer. The appellant is therefore entitled to his salary from 16th August, 1976 to 30th July, 1980 and the entire amount should be paid by the respondent Bank within a period of three months from today”.

23. Shri Rele submitted that in view of the judgments of the Apex Court in Kalyani's case as well as in the case of D.C Roy's case, which were delivered by 5 Judges Bench and 2 Judges Bench respectively, the law laid down in Kalyani's case must hold the field. In that behalf Shri Rele very heavily relied upon the judgment of the learned Single Judge of this Court in the matter of (Rambhau v. Maharashtra State Road Transport Corporation)9, reported in 1992 (2) L.L.J 872. After referring to cases of the Apex Court the learned Judge held in paragraph 12 of the judgment as under.

“From the discuseons aforesaid, it is clear that the ratio as laid down in P.H Kalyani's case (supra) on the point of ‘relation-back’ doctrine is followed is the case of D.C Ruy's (supra). The Gujarat Steel Tubes case, (supra) again endorses the law laid down in D.C Roy's case. All of a sudden, a contrary view appears in the decision of Supreme Court in Desh Raj Gupta v. Industrial Tribunal IV U.P Lucknow, 1991 (1) L.L.J 120”.

24. After referring to paragraph 9 of the judgment of the Apex Court in the case of Desh Raj Gupta, the learned Judge observed as under:

“A hare 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 (supra). The case does not lay down the law in the manner it is held is Desk Raj Gupta's case”.

25. Then the learned Judge held that the decision in Desh Raj Gupta's case has no binding effect as contemplated under Article 141 of the Constitution. The learned Judge further held that even otherwise the case of Desh Raj Gupta is a decision by the Division Bench, it cannot override the decisions of larger Bench like the case of Kalyani's case or the case of Gujarat Steel Tube's, which approves the D.C Roy's case. The decision of the another learned Single Judge of this Court in the matter of (Indian Cork Mills Pvt. Ltd. v. P. Unnikrishnan)10, reported in 1989 (58) F.L.R 139, was cited before the learned Judge. However, in the opinion of the learned Judge, the judgment in Indian Cork Mill's case is per incurium in view of other judgments of the Supreme Court on the point Ultimately the learned Judge held as under:

“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 sad proves the misconduct, the order of dismissal though passed earlier is to be upheld. The ‘relation-back’ doctrine must come to fore”.

26. Shri Rele also referred to the judgment of the learned Single Judge of this Court reported in 1994 (1) L.L.J 959 : 1993 (3) Bom. C.R 630 (Satish M. Naik v. N.P Murgali)11, wherein in paragraph 45 of the judgment the learned Judge has held as under:

“As far as the theory of ‘relation-back’ is concerned, in a case where a departmental enquiry is commenced and is, thereafter, abandoned the question that one has to ask on self is whether the management it to blame for discontinuing the enquiry. If it is found that the manage meet is at fault when it discontinues the enquiry and passes an order of dismissal, in such a case the theory of ‘relation-back’ will not apply. If it is found that the management is not at all to blame or it is delinquent who is at fault which has led to the abandonment of the enquiry then the theory of ‘relation-back’ will apply. Hence, where in a given case it is found that even though the delinquent is not responsible and yet the management is found to be justified in discontinuing the enquiry, the theory of ‘relation-back’ will apply. If it is shown that the discontinuance has been occasioned on account of the acts of commission or omission of the delinquent, in that case also the theory of ‘relation-back’ will apply”.

27. Lastly judgment of another Single Judge reported in 1994 (2) C.L.R 206 (Ahmedmiya Ahmedji v. The Indian Hume Pipe Co. Ltd.)12, was brought to my notice.

28. In the aforesaid case, after referring to several judgments of the Apex Court the learned Judge felt that “the order of approval always relates back to the date of the order passed by the management. The same principle is not necessarily applicable to a case where reference is made under section 10(1)(c) of the Industrial Disputes Act and it is held that no enquiry is held by the management or that the impugned enquiry was held in violation of principles of natural justice. In such a case it must follow that the order of dismissal passed by the management was nullity”. Referring to the judgment of the learned Single Judge reported in 1991 L.I.C 1677 (Basu Deba Das v. M.R Bhope)13, as also in Rambhau v. Maharashtra State Road Transport Corporation, Nagpur, reported in 66 Indian Factories and Labour Reports page 1, the learned Judge expressed his inability to persuade himself to agree with the view taken by the Judges in the aforesaid two judgments. Ultimately the learned Judge directed that the papers be placed before the learned Chief Justice for placing the matter before a Bench of two or more Judges.

29. Shri Rele also referred to the judgment of the Madras High Court in the matter of (Tube Products of India v. First Additional Labour Court, Madras)14, reported in 1994 (2) L.L.N 203.

30. Shri Chitale learned Counsel appearing for the respondent-workman contended that the judgment in the matter of Fire-Stones was delivered by the Apex Court on 6-3-1972, white amendment to the Industrial Employment (Standing Orders) Act and particularly section 10-A thereof, was made in the year 1982. Shri Chitale referred specifically to paragraphs 149 and 150 of the judgment of the Apex Court in Gujarat Steel Tubes Ltd.'s case. The observations in paragraph 150 have also been reproduced in paragraph II of the judgment by Justice Patel in Rambhau's case. Shri Chitale also relied upon the decision of the Single Judge of this Court in the matter of Indian Cork Mills Private Ltd. v. P. Unnikrishnan, reported in 1989 (58) F.L.R 139, wherein the learned Judge after referring to D.C Roy's case decided by the Apex Court, laid down the principles deducible from the foregoing as under:

“I. The character of the ??? viz. an imputation of moral turpitude or of negligence etc. ascribed to the employee is of great importance in the application of the principle.

2. The precise degree of imperfections in the enquiry held has to be investigated and categorised.

3. The theory of relation back is no rigid and inflaxible formula to be applied to every case where the misconduct ascribed is established in the course of adjudication.”

31. After having gone through the several judgments cited, in the light of the submissions made before me, it requires to be noticed that in the case of D.C Roy in paragraph 13 the Supreme Court has observed as under:

“We would, however, like to add that the decision in P.H Kalyani's case, A.I.R 1963 S.C 1756, is not to be construed as a charter for employers to dismiss employees after the ??? of an inquiry. The inquiry in the instant case does not suffer from defects as ??? 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's case so as to exclude from its operation at least that class of cases in which under the facade of a domestic enquiry, the employer ??? an order gravely detrimental to the employee's interest like an order of dismissal. An inquiry ??? and consciously violating principles of ??? justice may well be equated with the total absence of an inquiry so as to exclude the application of the ‘relation-beck’ doctrine. But we will not pursue the point beyond this as the facts before us to do not warrant a closer consideration thereof”.

32. The Apex Court in paragraphs 149 and 150 of the judgment in the matter of Gujarat Steel Tubes Ltd. has observed as under:

“149 - We are mindful of the submission of Sri. Tarkunda, urged in the connected appeal by the ???, that where no enquiry has proceeded a punitive discharge and the Tribunal, for the first time, upholds the punishment this Court has in D.C Roy v. The Presiding Officer, Madhya Pradesh Industrial Court, Indors, (1976) 3 S.C.R 801, taken the view that full wages must be paid until the date of the award. There cannot be any relation back of the date of dismissal to when the management passed the void order.

150 - Kalyani 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. Jurisprudentailly, approval is not creative but confirmatory and therefore, relates, back. A void dismissal it just void and does not exist. If the Tribunal, for the first time, ??? an order recording a finding of misconduct and thus breathes life into the dead shell of the management's order, pre-dating 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, Indors (supra) specifically refers to Kalyani's case and Sasa Musa's case and holds that where the management discharges a workman by an order which is void for want of an enquiry or for blatant violation of rules of natural justice, the 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”.

33. I am of the opinion that when the Supreme Court considers its earlier decisions and expressly states as to what is the ratio of the earlier judgments, the said statement and expression cannot be probed any further. In other words not only the ratio and obiterdicta of the Apex Court is binding on this Court but also decisions of the Apex Court on the point as to what a particular decision of the Supreme Court lays down. In view of the observations in paragraph 13 of the Apex Court judgment in the case of D.C Roy and in view of the observations in paragraph 150 of the Apex Court in the case of Gujarat Steel Tubes Ltd., it has to be held that the Apex Court has laid down that 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, pre-dating of the nativity does not arise. Where the management discharges a workman by an order which it void for want of an enquiry or for blatent violation of rules of natural justice, the relation back doctrine cannot be invoked. In the case of Desk Raj Gupts, in paragraph 9 of the judgment, the Apex Court has observed that the counsel is right in relying upon the observations in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 (II) L.L.J 137 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.

34. In this view of the matter, in my opinion the approach of the Industrial Tribunal in the impugned order that the theory of relation-back, may not apply to the instant case, cannot be faulted with. However, it is relevant to notice that even in the matter of Gujarat Steel Tubes Ltd., it is observed in paragraph 148 that certainly the normal rule, on reinstatement, is full back wages since the order of termination is non est. Even so, the Industrial Court may well slice off a part if the workmen are not wholly blameless or the strike is illegal and unjustified. To what extent wages for the long interregnum should be paid is, therefore, a variable dependent on a complex of circumstances. As already stated the learned Single Judge of this Court in the matter of Indian Cork Mills Pvt. Ltd.'s case has also held that the character of the misconduct viz. an imputation of moral turpitude or of negligence etc. ??? to the employee is of great importance in the application of the principle.

35. Here, the allegations against the workman, if proved, are of very serious nature i.e stealing property of the Company, who was employed by the company as a watchman. On the basis of the legal position discussed above, I am of the view that the question as to the amount of backwages to be paid will have to be determined after the final order is passed and by the very nature of requirements of consideration of several aspects including the degree of blameworthyness of the workman involved. The said issue cannot be decided at the interim stage by awarding a payment of full backwages. As such the impugned order dated 25-2-1991 directing the management to pay full backwages to the workman from 5-2-1987 till final award is quashed and set aside. Consequently the order of payment of backwages upto 31-3-1991 and further order of payment of wages for every month by 10th of the succeeding month is also quashed.

36. That, however, does not mean that the workman should not be paid anything during the pendency of the proceedings. If the matter is pending in the Tribunal for such a long period neither the workman nor the management could be blamed for the same. In the circumstances most fair and just formula will be to direct payment of the amount as if the inquiry is pending against the workman concerned, and as if he is suspended. Applying this workable test it will be just and fair to direct the management to pay 75% of the backwages from 5-2-1987 till final award is passed. The amount of backwages already paid to the workman in pursuance to the order of the Presiding Officer of the Industrial Tribunal shall be adjusted in accordance with these directions and the management shall also pay the amount of 75% of the back wages for every month by 10th of each succeeding month till disposal of the proceedings.

37. It is made clear that the aforesaid directions are subject to ultima Bharat Petroleum Corporation Ltd. v. Ramnath Jagdish Tiwari Bharat Petroleum Corporation Ltd. v. Ramnath Jagdish Tiwarite order that may be passed in award part-II, on the issue of back wages. If full back wages are granted, then management will have to make good the deficit, and if back wages less than 75% are granted or no back wages at all are granted, the workman will have to pay back the amount accordingly to the company. Rule made partly absolute in the aforesaid terms. There shall be no order as to costs.

38. Certified copy expedited.

39. Rule made partly absolute.