1. This writ petition is filed challenging the award in I.D No. 41/1994 dated 7-9-1994 and for a consequent direction, directing the second respondent to reinstate the petitioner into service with continuity of service, back wages and with all other attendant benefits.
2. The petitioner was appointed as Fitter on 1-9-1986. His services were confirmed with effect from 1-12-1987.
3. In 1989, he was elected as Vice-President of the workers union. On 6-3-1989 the petitioner was transferred from the factory to the Head Office and he reported for duty on 18th March, 1989. Further, he made representation to the second respondent requesting him to retransfer to the factory, and it was rejected. A reference was made to the Industrial Tribunal in I.D No. 23 of 1990 and that was pending. Pending disposal of the I.D No. 23/1990, the second respondent issued a charge-sheet on 7-12-1989 against the petitioner. The charges are (1) refusal to obey the instructions given by the Management (2) unauthorised absence from duty i.e from 1-11-1989 to 7-12-1989. The petitioner submitted his explanation on 11-12-1989. An Enquiry Officer was appointed and he found him guilty. On the basis of the report of the enquiry the services of the petitioner were terminated on 31-1-1990. A reference was made to the Industrial Tribunal which was transferred to Additional Industrial Tribunal and numbered as I.D No. 321 of 1993. Thereafter, it was again transferred to Industrial Tribunal-II, Hyderabad and the same is numbered as I.D No. 41 of 1994. On 7-1-1994, the Industrial Tribunal No. II confirmed the order of termination. Aggrieved by the order of the Industrial Tribunal the present writ petition is filed. The Industrial Tribunal found that the enquiry report of the Enquiry Officer cannot be relied upon as no notice was issued to the delinquent employee before holding enquiry. However, he gave an opportunity to adduce evidence afresh before it. On the basis of the evidence adduced before the Industrial Tribunal, the Tribunal found that the first charge namely that he refused to obey the instructions was not established while the second charge that the petitioner was absent unauthorisedly from 1-11-1989 was established.
4. The main argument of the learned Counsel for the petitioner is that the order of termination was made on the basis of enquiry report dated 31-1-1990. However, the Industrial Tribunal did not accept the enquiry report and on the basis of the evidence adduced before it, found the petitioner guilty of unauthorised absence from 1-11-1989. Therefore, the order of termination should be given effect to with effect from the date on which the Tribunal found the petitioner guilty and not from the date on which the original order of termination is passed. In support of her contention she relied on Deshraj Gupta v. Industrial Tribunal Lucknow, 1991 (1) LLJ 120. The Supreme Court held in this case 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. In such cases, the workman is entitled to the salary from the date of dismissal.”
5. Whereas the learned Counsel appearing for the respondents relying on B. Narayana v. The District Manager, Andhra Pradesh State Road Transport Corporation, Karimnagar Depot, 1994 (2) ALT 297 (DB) contended that the judgment of the Supreme Court in Deshraj Gupta v. Industrial Tribunal, Lucknow (supra) was distinguished and held that.
“where the dismissal of the employee is confirmed by the Labour Court on fresh evidence produced before the Tribunal where the domestic enquiry is found to be defective, the order of dismissal confirmed by the Labour Court dates back to the date of dismissal by the Management after domestic enquiry and in such cases the employees are not entitled for back wages.”
6. The issues involved in this writ petition is now settled by the Supreme Court in R. Thiruvikolam v. The Presiding Officer, JT 1996 (10) SC 369. The Supreme Court held that:
“It is significant that the Constitution Bench decision in Kalyani by which the three Judge Bench was bound, is referred in Gujarat Steel and attempt made to indicate that there is no difference in the view taken therein. It is also significant that agreement is expressed with the decision in D.C Roy v. The Presiding Officer, Madhya Pradesh, Industrial Court, Indore, 1976 (3) SCR 801 to which Krishna Iyer, J. was a party and in which Kalyani has been expressly followed. It has now to be seen whether the above observations in Gujarat Steel are in consonance with Kalyani and D.C Roy and also conform to the juristic basis indicated therein.”
“With great respect, we must say that the above quoted observations in Gujarat Steel at page 215 are not in line with the decision in Kalyani which was binding or with D.C Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in wade. For these reasons, we are bound to follow the Constitution Bench decision in Kalyani which is the binding authority on the point.”
“As a result of the aforesaid decision, it must be held that the only point involved for decision in the appeal is concluded against the appellant by the Constitution Bench decision of this Court in Kalyani and the observations to the contrary in Gujarat Steel are, therefore, per incuriam and not binding. The order of punishment in the present case operated from November 18, 1981 when it was made by the employer and not from December 11, 1985, the date of Labour Court's award. The appellant is, therefore, not entitled to any relief.”
7. Therefore, in view of the judgment in P.H.Kalyani v. Air France, Calcutta, Calcutta, 1964 (2) SCR 104 the judgment in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 (2) SCR 146 which was followed in Desk Raj Gupta v. Industrial Tribunal, 1990 Supp. (1) SCR 411 are no longer good law.
8. The judgments in Kalyani v. Air France (supra); D.C Roy v. The Presiding Officer, 1976 (3) SCR 801; Rambahu Vyankuji Kheragade v. Maharashtra Road Transport Corporation.. 1995 Supp (4) SCC 157 : 1996 SCC (L&S) 173 : 1996 (2) LLJ 733 holds the field. Therefore, the contention of the Counsel for the petitioners cannot be sustained. The order of termination by the Labour Court relates back to the date on which the management passed the order of termination i.e 31-1-1990.
9. Therefore, the petitioner is not entitled to any relief and the writ petition is accordingly dismissed. No costs.