Holding

When a Labour Court or Industrial Tribunal finds the employer's charges proved, the dismissal order relates back to the date of the original termination, even if no domestic inquiry was held.

Summary

Smt. Rukma, an employee of Mis. Neeraj Tising Industry, was dismissed on 20 December 1989 for alleged misconduct without any domestic inquiry. The employer led evidence before the Labour Court under Section 10 of the Industrial Disputes Act, which found the charges proved and awarded against the workwoman on 19 February 1996. The Rajasthan High Court dismissed the writ petition, holding that the termination order related back to the original dismissal date, and the appellant challenged this view before the Supreme Court. The Supreme Court affirmed that when a Labour Court or Tribunal finds the employer's charges proved, the order of termination must relate back to the date of the original dismissal, even in the absence of a domestic inquiry, and that the employer may adduce evidence to justify the dismissal. The Court relied on the constitutional bench decision in P.H. Kalyani v. Mis. Air France and subsequent authority, rejecting the contention that a defective or absent inquiry renders the dismissal void. Consequently, the appeal was dismissed.

Issues considered

Whether an order of dismissal that was effected without a domestic inquiry, but later upheld by a Labour Court on the basis of evidence adduced by the employer, relates back to the date of the original dismissal.
Whether the employer is entitled to lead evidence before the Labour Court/Tribunal in the absence of a domestic inquiry and whether such procedure complies with the principles of natural justice.

Legislation cited

Industrial Disputes Act, 1947s. 10, s. 11A, s. 33(2)(b)

Subjects

Industrial Disputes ActDomestic inquiryNatural justiceDismissalRelation-back doctrineLabour CourtSection 10Section 33Employer evidence

Judgment

ENmNEERING LAGHU UDYOG EMPLOYEES' UNION A
v.
THE JUDGE, LABOUR COURT AND
INDUSTRIAL TRIBUNAL AND ANR.

NOVEMBER 25, 2003
B
[V.N. KHARE CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]

Industrial Disputes Act, 1947 :

Ss. JO, II-A and 33-Workman-Misconduct by-Dismissal fi·om C
service-No domestic inqui1y held-Reference-Employer opted to lead
evidence to prove the charges-Plea before Labour Court that terinination
was contrary to principles of natural justice as no domestic inquily was
held-Labour Court found the charges proved and gave award against the
worker-High Court holding that order of termination would relate back D
to date of original order of termination-Held, employer has got a right
to adduce evidence before Labour Court/Tribunal justifYing its action, even
where no domestic inqui1y whatsoever has been· held-Charges were
proved beforf! the Labour Court-High Court was correct in holding that
the order of termination would relate back to the date of original order-
Observations made with regard to order of dismissal when made pursuant E
to an employer taking recourse to unfair labour practice etc.-Principles
of natural justice. .

P.H Kalyani v. Mis. Air France, Calcutta, (1964} 2 SCR 104,
followed.
F
Workmen of Motipur Sugar Factory (Private) Limited v. Motipur
Sugar Fact01y, (196513 SCR 588; Punjab Dai1y Development Corporation
Ltd. and Another v. Kala Singh and Others, (1997) 6 SCC 159; R. Thiruvir
Ko/am v. Presiding Officer, (1997J 1 SCC 9; ~irector, State Transport
Punjab and Another v. Gurdev Singh and Another, (1998) 2 sec 159 and G
Rambahu Vyankuji Kheragade v~ Maharashtra Road Transport Corporation,
(1995) Suppt 4 sq:: ~57; Workmen of Messrs Firestone Tyre & Rubber
Company ofIndia (P.) ltd. y. Management & Ors., (1973J 3 SCR 587 and
Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and
Others, (2002 J ~ sec 244, relied on. H
253
254 SUPREME COURT REPORTS [2093] SUPP. 6 S.C.R.

A Gujarat Steel Tubes Ltd. ''· Gujarat Steel Tubes Ma:::door Sabha,
119801 2 SCR 146 and Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani
& Ors., 11997) 8 SCC 713, referred to.

S. JO-Order of Labour Court-Relating back to original order-
B Discussed.
CIVIL APPELLATE JU.RISDICTION : Civil Appeal No. 1729 of
1998.

From the Judgment and Order dated 6.1.91 of the Rajasthan High
C Cou11 in 0.8.S.A.W. No.1322 of 1996.

Y. Sandhu, Jitendra Singh Tanwar and Indra Makwana for the
Appellant.

Bharat Sangal, Ms. Sangeeta Panicker and R.R. Kumar for the
D Respondents.

The Order of the Court was delivered :

One Smt. Rukma was an employee of Mis. Neeraj Tising Industry,
E Ajmer. It appears that she committed certain misconduct as a result of
· which _her services were terminated by the employer on 20th December,
1989. The charge against the workman was that the Manager has entered
into conspiracy to get her kidnapped through one Amar Singh by offering
her Rs. I 0,000. Such an allegation was made against the Manager in front
F of other workmen and on Manager's asking as to why she had been casting,
such false allegations against him and despite his efforts to pacify her, she
became violent and took off her chappal and threatened to beat him, but
on intervention of some other workmen, she could not reach him. She
despite the Manager's asking her to behave herself, continued to make
G allegations against him in the most filthy language.
Having regard to the said misconduct as also her other past misconducts,
the workman was dismissed from service. She did not even acknowledge
the receipt of the order of dismissal as a result whereof the same had to
be sent to her by registered post along with a covering letter in respect
H th~reof. She even refused to accept the dues as admissible to her and the
ENGG. LAGHU UDYOG EMPLOYEES' UNION 1·. JUDGE LABOUR COURT AND INDL. TRIBUNAL 255

same was sent by Money Order on 21.12.1989. A

The appellant herein espoused the cause ofSmt. Rukma (workwoman).
As the conciliation proceedings failed, the matter was referred to the
Labour Court under Section I 0 of the Industrial Disputes Act (for short
'the Act'). One of the issues framed before the Labour Court was whether B
the order terminating the services of Smt. Rukma was contrary to the
principles of natural justice as no domestic inquiry proceedings were held
for the said purpose. Under such circumstances, the employer opted to lead
evidence to prove the charges as a result of which the services of Smt.
Rukma were terminated. The Labour Court permitted the employer to lead C
evidence. After examining the evidence adduced by the employer, the
Labour Court found that the charges levelled against Smt. Rukma are
proved. Consequently, the Labour Court gave its award on 19.2.1996
against the workman holding that the charges are proved. Aggrieved, the
appellant who espoused the cause of the workman filed a petition under
Article 226 of the Constitution before the Rajasthan High Court. A learned D
Single Judge of the High Comt dismissed the writ petition A letters patent
appeal filed by the appellant also met with the same fate. Aggrieved, the
appellant is in appeal before us by way of special leave.

Learned senior counsel appearing for the appellant urged that the E
view taken by the High Comt to the extent it held that the order of
termination would relate back to the date of the original order of
termination, is erroneous and relied upon a 3-Judge Bench decision ofth:s
Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha,
[1980] 2 SCR 146 at page 215.
F
Having heard the matter, we are of the view that the said submission
cannot be accepted as this question stands concluded by a Constitution
Bench decision of this Court in P.H Kalyani v. Mis. Air France, Calcutta,
[1964] 2 SCR 104. In P.H Kalyani's case (supra), it was held by the
Constitution Bench that where a domestic inquiry is found defective and G
the employer leads evidence before the Labour Cou1t and subsequently the
Labuor Court gives its approval that the charges are proved, the order of
termination would relate back to the date of original order of termination.
This decision was followed in Punjab Daily Development Corporation Ltd.
and Another v. Kala Singh and Others, (1997] 6 sec 159 wherein it was H
256 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
.,
A said that the Constitution Bench decision in P.H Kalyani 's. case (supra)
and the decision in R. Thiruvir Kolam v. Presiding Officer, [1997] I SCC
9 have held that when Labour Court records a finding that the domestic
inquiry was defective and opportunity was given to the management and
the workman to adduce evidence and Labour Court upholds dismissal order
B passed by the t'nanagement, the dismissal order would relate back to 'the
date of order of original dismissal and not from the date of award of the
Labour Court. fo Vishweshwaraiah Iron & Steel Ltd. v.Abdul Gani &·Ors.,
[1997] 3 SCC 713, this Comt however, observed that some•ofthe decisions
rendered by this Court subsequent <o P.H. Kalyani's case (supra) require
a relook as the sarrie are not in consonance with the Constitution Bench
C decision. The same Bench in Director, State Transp01't.Punjab and Another
v. Gurdev Singh and Another, [l 998] 2 ·sec 159 held that where an order
of termination is found defective having been passed ·contrary to the
principles of natural justice and the employer before Labour Court ·has
adduced evidence·to prove the charges and the tLabour Coutt comes to the .
D conclusion that the charges are proved, in such a situation the 'orde'r of
dismissal will relate back to the original ·oraer of termination. In Rambahu
Vyankuji Kheragade v. Maharashtra Road TransportCorporation, [1995]
Suppl. (4) SCC 157, it was held that the effeetive date of dismiss·a1 after
domestic inquiry ifLabour-Couit finds the inquiry to be unfair and as such
E gives the employer ai1 1oppoitunity to prove the charge and finally upholds
the.dismissal, will relate back to·the date Of original order. This·has been
the consistent view of this ·court.

Section 11 A of the Industrial Disputes Act, ·1947 (for short 'the Act')
F confers a wide power upon the Labo1:.1r 'Court, Tribunal or the National
Tribunal to give appropriate relief in case of discharge or dismissal of
workmen. While adjudicating oh a reference made to it, the Labuor Court,
Tribunal or the National Tribunal, as the case may be,•ifsatisfied thatthe
order of discharge or dismissal'was not justified, it may, while setting aside
the same, direct reinstate'rnent of the workman oh suchterms and conditions,
G if any, as it thinks fit, or•give ·such otherlrelief to the workman 'including
the award of any lesser·putiishmerit in Iieu of discharge or dismissal as the
circumstances of the case may require. :Thus, only in a ·case where the
satisfaction is reached by die Labuor Court' or tlie Tribunal, as the case may
be, that an order of dismissal was·itot justtfled, :the 's'aine·can be set,as1de.
H So lcmg as the same is not set aside, it remains v·alid. But once whether
ENGG. LAGHU UDYOG EMPLOYEES' UNION 1·. JUDGE LABOUR COURT AND INDL TRIBUNAL 257
on the basis of the evidences .brought on record in the domestic inquiiy A
or by reason of additional evidence the employer metkes out a case
justifying the order ofdismissal, we fail to understand as to how such order
-0f dismissal can be given effect to only from the date of the award and
not from the date of passing of the order of punishment. The distinction
:::ought to be made by this Court in some of the matter~ ir1cluding Gujarat B
Steel Tubes (supra), in our opinion, is not based on a sound premise,
particularly when the binding decisions of this Court in Motipur Sugar
Factory's case (supra) and Workmen of Messrs Firestone Tyre & Rubb,_r
Company of India (P.) Ltd. v. Management & Ors., (1973) 3 SCR 587,
have not been taken note of.
c
In the present case, we find that the charges were proved before the
Labour Court and, thus, the High Court was correct in holding that the
order of termination would relate back to the date of original order. ·

Learned senior counsel then urged that P.H Kalyani 's case (supra) D
is dissimilar as it was a case of defective inquiry. According to the learned
senior counsel, there is a difference between a termination which is not
followed by an inquiry and where inquiry is found to be defective on
account of procedural breach.
E
It is not in dispute that in a proceeding for obtaining approval of an
order of dismissal from the Labour Court or the Industrial Tribunal, as the
case may be, in terms of Section 33(2)(b) of ttie Act or where a r~ference
has been made under Section 10 thereof, if it is found that an inquiry has
been conducted in violation of the principles of natural justice, the
employer is entitled to IJise the said question in its written statement by F
way of preliminary issues and pray for grant of such an opportunity to
prove the charges levelled against him.

In Workmen of Motipur Sugar Factory (Private) Limited v. Motipur
Sugar Factory, [1965) 3 SCR 588, this Court held : G

"It is now well-settled by a number of decisions of this Court
that where an employer has failed to make enquiry before
dismissing or discharging a workmen it is open to him to justify
the action before the tribunal by leading all relevant evidence H
258 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A before it. In such a case the employer would not have the benefit
which he had in cases where domestic inquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited· questions open
to a tribunal where domestic inquiry has been properly held (see
B Indian Iron & Steel Co. v. Their Wol'kmen, [1958] SCR 667) but
also to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Mis. Sasa Musa sugar Works (P) Limited v.
Shobrati Khan, [1959] Supp. SCR 836, Phulbari Tea Estate v. Its
c Workmen, [1960] I SCR 32 and the Punjab National Bank
Limited v. Its Workmen, [1960] l SCR 806. These three cases
were further considered by this Court· in Bharat Sugar Mills
Limited v. Shri Jai Singh, [1962] 3 SCR 684, and referepce was
also made to the decision of the Labour Appellate Tribunal in Shti
Ram Swarath Sinha v. Belaund Sugar Co., (1954) LAC 697. It
D
was pointed out that "the import effect of commission to hold an
enquiry was merely this : that the tribunal would not have to
consider only whether there was a prima facie case but would
decide for itself on the evidence adduced whether the charges
have really been made out." It is true that three of these cases,
E except Phulbari Tea Estate's case, were on applications under s.
33 of the Industrial Disputes Act, 1947. But in principle we se~
no difference whether the matter comes before the tribunal for
approval under s. 33 or on a reference under s. I 0 of the Industrial
Disputes Act, 194 7. In either case if the enquiry is defective or
F if no enquiry has been held as required by Standing orders, the
entire case would be open before the tribunal and the employer
would have to justify on facts as well that its order of dismissal
or discharge was proper. Phulbari Tea Estate's was on a reference
under s. I 0, and the same principle was applied there also, the only
G difference being that in that case, thi::re was an enquiry though it
was defective. A defective enquiry in our opinion stands on the
same footing as no enquiry and in either case the tribunal would
have jurisdiction to go into the facts and the employer would have
to satisfy the tribunal that on facts the order of dismissal or
H discharge was proper."
ENGG LAGHU UDYOG EMPLOYEES' UNION 1·. JUDGE LABOUR COURT AND INDL TRIBUNAL 259

The employer, thus, has got a right to adduce evidence before the A
Tribunal justifying its action, even where no domestic inquiry whatsoever
has been held.

Yet again in Workmen of Messrs Firestone Tyre & Rubber Company
of India (P) Ltd. v. Management & Ors., [1973] 3 SCR 587, this Court B
while interpreting the provision ofSection I IA of the A1.t held that in terms
thereof, the management need not necessarily rely on the materials on
record as while introducing Section I IA of the Act, the Legislature must
have been aware of the decisions of this Coutt which are operating in the
field for long time. This Court enunciated several principles bearing on the C
subject and, therefore, it held that ic was difficult to accept that the
expression materials on record; used in the proviso to Section 11 A was set
at naught. The Court formulated the propositions of law emerging from the
decisions rendered by this Comt, the relevant portions whereof are as
under:
D
"From those decisions, the following principles broadly
emerge:

(I)
E
....,. (2)

(3)

(4) Even if no enquiry has been held by an employer of if the
enquiry held by him is found to be defective, the Tribunal F
in order to satisfy itself about the legality and validity of the
order, has to give an opportunity to the employer and
employee to adduce evidence for the first time justifying his
action; and it is open to the employee to adduce evidence
contra. G

(5)

(6) The Tribunal gets jurisdiction to consider the evidence
placed before it for the first time in justification of the action H
260 SUPREME COURT REPORTS-[2003] SUPP. 6 s,c.R.

A taken only, if no enquiry has been held or -after the enquiry
conducted by an employer is found to be defective.

(7) It has never been recognized that the Tribunal should
straightaway, without anything more, direct reinstatement of
·a dismissed or discharged employee, once it ·is found that no
B
domestic enquiry has been held or the said enquiry is found
to be defective.

'(8) "
c ·Even .in Firestone's case (supra), no distinction, thus, 'has been made
b~tween a defective 'inquiry and no inquiry.

•In Gujarat Steel Tubes Ltd. Case (supra), [ 1980] 2 SCR 146, Krishna
Iyer, J. sought'to make a distinction between an approval which is required ·
D to be made under Section 33 of the Act and a reference under Section I 0
thereof stating :

"Kalyani was cited to support the view of relation back of the
Award to the date ·of the employer's termination orders. We do
:E no agree that the ratio of Kalyani corroborates the proposition
propounded. Jurisprudentially, approval is not creative but
confirmatory and therefore relates back. A void dismissal j5 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 shall of the Management's order, predating of the
F nativity does ·not arise. The reference to Sasa Musa Kalyani
'enlightens this ·position. The latter case of D.C. Roy v. The
Presiding Officer, Madhya Pradesh Industrial Court, Indore &
Ors. (supra) specifically refers to Kalyani 's case and Sasa Musa 's
case and holds that where the Management discharges a workmen
:G by an order which is void for want of an enquiry or for blatant
violation of rules of natural justice, the relation-back doctrine
c:mnot be invoked. The jurisprudential difference between a void
order, w:1ich by a subsequent jurlicial resuscitation comes into
being de novo, and an order, which may suffer from some defects
H 'but is not still born or void and all 'that is needed in the law to
ENGG LAGHU UDYOG EMPLOYEES' UNION 1·. JUDGE LABOUR COURT ..\ND INDL TRIBUNAL 26 J

make it good is a subsequent approval by a tribunal which if A
granted, cannot be obfuscated."

When in terms of the proviso appended to clauses (b) of Section 33
of the Act, an approval is sought for and is refused, the order of dismissal
becomes void. If an approval is not obtained still, the order of punishment B
cannot be given effect to. It is, therefore, not ~=irr1.:ct to contend that the
Tribunal in a reference under Section I 0 of the Act, when passes an order
recording a finding of misconduct, brings life into the dead. Unfortunately,
the Court did not take notice of the binding decisions in Motipur Sugar
Facto1y 's case (supra) and Firestone's case (supra).
c
We may futther notice that P.H Kalyani case (supra) has also recently
been followed by another Constitution Bench in Jaipur Zilla Sahakari
Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Others, [2002] 2 SCC
244.
D
We may, however, observe that although in certain contingencies an
employer may in a case of grave nature of misconduct dismiss a workman
without holding an enquiry but ordinarily such an enquiry will not be
dispensed with. In the event it is found ultimately by the Labour Court/
Industrial Tribunal that the employer had taken recourse to unfair labour E
practice or the order of termination has been passed malafide or by way
of victimization, it will be open to the Tribunal to pay comrensation even
in a case where ultimately charges are proved, despite holding that the
order of termination is valid for the reason that principles of natural justice
have not complied with.
F
For the aforesaid reasons, we do not find any merit in this appeal.
It is, accordingly, dismissed

There shall be no order as to costs.
G
R.P. Appeal dismissed.