VISHWESHWARAIAH IRON AND STEEL LTD.versusABDUL GANI AND ORS.

                   VISHWESHWARAIAH IRON AND STEEL LTD.                               A
                                   v.
                           ABDUL GANI AND ORS.
_,
                                NOVEMBER 11, 1997

              [S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.]                             B

             Industrial Disputes Act, J947 : Sections JO, JOA and 33.

           labour law-Termination of service withol1t domestic enquiry-
      Termination upheld on evidence adduced before the Court of Reference           C
     under Section J0-Question whether order of labour Court would take effect
     from the date of original order of termination-Question referred to
     Constitution Bench.

          R. Thiruvirkolam v. Presiding Officer & Anr.,. fl997) I SCC 9 and          D
     Punjab Dairy Development Corporation ltd. & Anr. v. Kala Singh & Ors.,
     (1997] 6 sec 159, held inapplicable.

          P.H. Kalyani v. Air Francf! Calcutta, (1964( 2 SCR 104; Mis Sasa
     Musa Sugar Works (P) ltd v. Shobrati Khan & Ors., (1959( Supp. 2 SCR
     836 and Gujarat Steel Tubes Ltd & Ors. v. Gujarat Steel Tubes Mazdoor           E
     Sabha & Ors., (1980) 2 SCC 598, referred to.

             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7671-72 of
     1997.

          From the Judgment and Order dated 4.7.97 of the Karnataka High Court       F
     in W.A. No. 7of1996 and 4362of1995.

          Dhruv Mehta, G.M. Misra, Fazlin Anam, Ms. Sofia Verma and S.K.
     Mehta for the Appellant. ·

             The following Order of the Court was delivered :
                                                                                     G
           Learned counsel for the petitioner referred us to a decision of a Bench
     of two learned Judges of this Court in the case of R. Thiruvil"kolam v.
     Presiding Officer & Anr. reported in, (1997] I SCC 9 which has been later
     followed by a Bench of three learned Judges in the q1se of Punjab Dairy
     Development Corporation ltd & Anr. v. Kala Singh & Ors., reported in,           H
                                          119
    120                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A (1997] 6 SCC 159. In our view, these are the cases where the mahagement held
    defective inquiry and before the Labour Court or the Industrial Tribunal the
    defect was sought to be removed by leading evidence and ultimately if the
    Court seized of a reference under Section I 0 of the Industrial Disputes Act
    agreed with the management on the new evidence led before it, the question
B   of relation back of the order of the Labour Court or Industrial Tribunal to the
    original order of termination would assume importance. But in cases where no
    domestic inquiry is held at all, as in the present case, in our view the aforesaid
    decisions would not apply.

          Learned counsel is very sanguine when he contends that the decision
C of the Constitution Bench in the case of P.H. Ka!yani v. Mis Air France
    Calcutta reported in the (1964] 2 SCR 104 squarely applies to the facts of
    the present case also and for that purpose he submits that the observation
    in the Constitution Bench Judgment regarding Mis. Sasa Musa Sugar Works
    (P) ltd. v. Shobrati Khan & Ors. reported in [ l 959] Supp. 2 SCR 836 would
    not apply in connection with the termination orders passed without domestic
D   inquiry and that ratio of the Constitution Bench judgment in Ka/yani 's case
    would squarely apply, where admittedly no enquiry was held by the
    management before terminating the services of the employee. In our view,
    these observations in Ka/yani 's case were rendered in connection with
    proceeding for approval of the management's action under Section 33(2) of
E   the Industrial Disputes Act, 1947. Even Saia Musa Sugar Works' case also
    pertains to a proceeding under Section 33(!) of the l.D. Act for permission.
    Therefore, the observations of the Constitution Bench in Kalyani's case in
    connection with Sasa Musa Sugar Works' case which is under Section 33(1)
    of the Act will require a closer scrutiny in so far as they are to be applied
    to a proceeding arising out of a reference under Section l 0 or I 0-A of the
F    Industrial Disputes Act which would stand on a different footing.

           The moot question would arise whether the ratio of the Constitution
    Bench judgment in Ka/yani 's case would almost automatically a'pply to such
    cases apart from the cases arising under Section 33 of the I.D. Act. We may,
G   in this connection, mention that the decision of the three Judge Bench of this
    Court in Gujarat Steel Tubes ltd. & Ors. v. Gujarat Steel Tubes Mazdoor
    Sabha & Ors. reported in [ 1980] 2 SCC 598 wherein Krishna Iyer, J., spoke
    for the majorify, was an authority on the question of leading evidence before
    the Industrial Court in proceedings under Section 10 .. A of the Act and--on the
    question of relation back of ultimate penalty order passed oy'the ar15itrator
H   on the basis of evidence led by the management for justification of its action
     VISHWESHW ARAIAH IRON AND STEEL LTD v. ABDUL QANJ 121

before such tribunal. Therefore, the question would arise whether the ratio of       A
this decision would still apply to a case where the proceedings relate to
Section 10 or 10-A of the Act apart from Section 33 of the Act. The latter
decisions of this Court have applied the ratio of the decision of Kalyani 's
case to matters arising under Section 10 and 10-A of the Act. In our view,
therefore, the dispute in the present proceedings could be better resolved by        B
a Constitution Bench of this Court which can consider the scope and ambit
of the decision of the earlier Constitution Bench judgment in Kalyani 's case
which has been the sheet-anchor of the subsequent cases referred to earlier
on which a strong reliance has been placed by learned counsel for the
petitioner and which had nothing to do with proceedings under Section 33
of the Act. The latter decisions of this Court will also, therefore, require a re-   C
look.

      Leave granted.

     The appeals will now be placed for final disposal before a Constitution         D
Bench of this Court pursuant to the present order.

      Printing dispensed with. All the relevant documents are permitted to be
filed by the parties concerned.

      Notice to issue on the prayer for interim relief. There will be ad-interim     E
stay of the order of the Division Bench of the High Court to the extent of
50% of the back wages.

T.N.A.                                                     Appeals till pending.