PUNJAB DAIRY DEVELOPMENT CORPORATION LIMITED AND ANR. ETC.versusKALA SINGH ETC

....           PUNJAB DAIRY DEVELOPMENT CORPORATION                                 A
                        LIMITED AND ANR. ETC.
                                           v.
                                   KALA SINGH ETC.

                                     MAY 7, 1997
                                                                                    B
                  (K. RAMASWAMY, S. SAGHIR AHMAD AND
                           G.B. PATTANAIK, JJ.)

             Labour Law:
                                                                                    c
              Workman-Dismissal-Labour Cowt holding domestic inquiry defec-
       tive, gave the management oppo1tunity to justify dismissal----Further evidence
       adduced by Management as also by delinquent Labour Court found charges
       proved-Punishment found not disproportionate to magnitude of misconduct
       of workman-Held, order of dismissal would relate back to the date of the
       original dismissal and not from the date of judgment of the Labour Court. D

             Desh Raj Gupta v. Industrial Tribunal-IV, U.P. & Anr., (1991] 1 SCC
       249, overruled.

             R. Thintvirkolam v. Presiding Officer & Anr., [1997] 1 SCC 9, relied   E
       on.

             P.H. Kalyani v. Air France, [1964] 2 SCR 104, Followed.

             Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, [1980] 2 SCC 593, does
       not lay down correct law.
                                                                                    F
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6339 of
       1994 Etc.

            From the Judgment and Order dated 20.12.93 of the Punjab &
       Haryana High Court in C.W.P. No. 13641of1992.                                G
             Dhruv Mehta, Fazlin Anam, S.K Mehta and Jaideep Vedi for the
       appellants in C.A. No. 6339/94 and Respondents in C.A. No. 228/95.

             Meera Aggarwal and RC. Mishra for the Respondent in C.A. No.
       6339/94 and appellant in C.A. No. 228/95.                                    H
                                         235
    236                   SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A         The following Order of the Court was delivered :                            ....

    In CA No. 6339/94

          This matter has come up by way of reference made by a Bench of
B  three Judges to consider the correctness of the decision of this Court in
   Desh Raj Gupta v. Industrial Tribunal, IV, U.P. & Anr., [1991] 1 SCC 249.
   With a view to appreciate the contention of the parties, it is necessary to
    record few relevant facts. While the respondent was working as a Dairy
    Helper-cum- Cleaner for collecting the milk from various centres, he was
    charged for the misconduct that on April 28, 1990 and on other dates, he
C inflated the quantum of the milk supplies in milk centres to the appellant-
    Corporation and also inflated the quality of the fat contents, while there
    were less fat contents. After conducting the domestic enquiry, the discipli-
    nary authority dismissed him from service. On reference, the Labour Court
    found that the domestic enquiry conducted by the appellant was defective.
D Consequently, opportunity was given to the Management to adduce
  • evidence afresh to justify the order of dismissal. Accordingly, evidence was
    adduced by the appellant as well as the delinquent-respondent. On con-
  . sideration of the evidence, the Labour Court by its award dated November
    14, 1990 held that the charge had been proved against the respondent. On
    the quantum of punishment, it was held that the punishment was not ·
E disproportionate to the magnitude of the misconduct of the respondent.
    However, on filing of the writ petition, the High Court set aside the award
    of the reference Court to the extent of the confirmation of the dismissal
    from service with effect the date of the judgment of the Labour Court and
    not from any date earlier thereto. This Court while granting leave referred
F the matter to three Judge Bench to consider the correctness of the judg-
    ment in Desh Raj Gupta's case (supra) in the light of the judgment of the
    Constitution Bench. Subsequent to the reference, another Bench of two
    Judges has elaborately considered the entire case law in R. 17iimvirkolam
    v. Presiding Officer & Anr., (1997) 1 SCC 9. In the decision of the Constitu-
    tion Bench in P.H. Kalyani v. Air France, (1964) 2 SCR 104, this Court had
G held that once the Labour Court found the domestic enquiry to be defec-
    tive and gave opportunity to the parties to adduce the evidence found that
     the order of termination of the service or dismissal from service is valid. It
    would relate back to the original order of the dismissal. But a discarded
     was expressed by three Judges Bench in Gujarat Steel Tubes Ltd. v. Maz-
H door Sabha, (1980) 2 sec 593 which was considered by thii. Court in
               P.B. DAIRY DEVELOPMENT CORPN. LTD. v. K. SINGH                237


--   Thimvirkolam case (supra) and it was held that in view of the judgment of A
     the Constitution Bench, three-Judge Bench judgment was not correct. Desh
     Raj Guptll's case was also considered and it was held that it has not been
     correctly decided. Thus, we are relieved of reviewing the entire case law
     in that behalf.

           In view of the aforesaid decisions and in view of the findings           B
     recorded by the Labour Court, we are of the considered opinion that the
     view expressed in Desh Raj Gupta's case is not correct. It is accordingly
     over-ruled. Following the judgment of the Constitution Bench, we hold that
     on the Labour Court's recording a finding that the domestic enquiry was
     defective and giving opportunity to adduce the evidence by the Manage-         C
     ment and the workman and recording of the finding that the dismissal by
     the management was valid, it would relate back to the date of the original
     dismissal and not from the date of the judgment of the Labour Court.

            The appeal is accordingly allowed. The. order of the High Court
     ~~~~~                                                                          D
     In CA No. 228/95

           This is a cross appeal filed by the workman. It is contended by the
     learned counsel for the workman that the charges were not correct; the         E
     Labour Court has not properly considered the evidence and the view that
     the order relates back to the date of the dismissal was not correct. We find
     no force in the contention. It is seen that the Labour Court after adduction
     of evidence came to the conclusion that the dismissal is justifiable. On the
     basis of the evidence adduced before it, no doubt, the Labour Court has
     not elaborately considered the entire evidence, but agreed to the decision     F
     that the misconduct has been proved. In view of the proof of misconduct,
     the necessary consequence would be that the Management has lost the
     confidence that the appellant would truthfully and faithfully carry on his
     duties and consequently the Labour Court rightly declined to exercise the
     power under Section 11-A to grant relief of reinstatement with minor           G
     penalty.

            The appeal is accordingly dismissed. No costs.

     R.P.                                             C.A. No. 6339/94 allowed.
                                                      C.A No. 22B/95 dismissed.