IMPORTANT POINT
The operation of the Order of punishment made by the employer does not depend on its confirmation by the Labour Court to make it operative and unless set aside by a competent authority, the order of punishment made by the employer continues to be effective from the date the order was passed by the employer.

JUDGMENT

J.S. Verma, J.-The appellant was employed as a technician with M/s. Madras Fertilizers Ltd. - Respondent No. 2. He was dismissed from service after a domestic inquiry on November, 18, 1981 on proof of misconduct. The appellant challenged his dismissal before the Labour Court. The Labour Court found the domestic inquiry to be defective and permitted the management to prove the misconduct before it. On the basis of the evidence adduced before the Labour Court, it came to the conclusion that the punishment imposed was justified as the misconduct was duly proved. The Labour Court s order is dated December 11, 1985. Appellant then filed a writ petition before the High Court which was dismissed by a Single Bench. The writ appeal filed by the appellant was also dismissed by a Division Bench of the High Court. Hence this appeal by special leave.

2. The leave granted in this appeal is confined only to the question : whether the dismissal will take effect from the date of the order of the Labour Court, namely, December 11, 1985 or it would relate to the date of the order of dismissal passed by the employer, namely, November 18, 1981.

3. The only point involved for decision is apparently concluded by the decision of the Construction Bench in P.H. Kalyani v. M/s. Air France, Calcutta1. However, this point appears to have been raised on behalf of the appellant on the basis of certain observations made in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha2, which appear to be contrary.

4. Reference may be made first to the decision in Kalyani. The point arose directly before the Constitution Bench and such a contention was rejected, making a distinction between a case where no domestic inquiry had been held and another in which the inquiry is defective for any reason and the Labour Court on its own appraisal of evidence adduced before it reaches the conclusion that the dismissal was justified. It was held that in a case where the inquiry was found to be defective by the Labour Court and it then came to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, the order of dismissal made by the employer in a defective inquiry would still relate to the date when that order was made. In that decision it was stated thus :

"....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.......In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the Labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court s award came into operation must fail." (Pages 113 and 114)

In our opinion, the authoritative pronouncement by the Constitution Bench in Kalyani puts the matter beyond doubt.

5. We may now refer to the decision by a three-Judge Bench in Gujarat Steel. Krishna Iyer, J. speaking for the three-Judge Bench observed at page 215 (S.C.R.) as under :

"Kalyani (1963 (1) LLJ 679) 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. Jurisprudentially, approval is not creative but confirmatory and therefore relates back. A void dismissal is just