2003 Supreme(SC) 1198

2004(2) Supreme 167
SUPREME COURT OF INDIA
(From Rajasthan High Court)
V.N. Khare, CJI., S.B. Sinha & AR. Lakshmanan, JJ.
Engineering Laghu Udyog Employees Union -Appellants
versus
The Judge, Labour Court and Industrial Tribunal and Anr. -Respondents
Civil Appeal No. 1729 of 1998
Decided on 25-11-2003
Counsel for the Parties :
For the Appellant : V. Bandhu, Sr. Advocate, Jitendra Singh Tanwar, Indra Makwana, Advocates.
For the Respondents : Bharat Sangal, Ms. Sangeeta Panicker and R.R. Kumar, Advocates.

IMPORTANT POINT
When Labour Court records a finding that domestic inquiry was defective and opportunity is given to management and workmen to adduce evidence and Labour Court upholds dismissal order passed by Management, dismissal order would relate back to date of order of original dismissal and not from date of award of Labour Court.

Headnote:Industrial Disputes Act, 1947-Section 10-Order of dismissal from service of workman in view of misconduct on her part in having taken off her chappal and threatened to beat the Manager using filthy language-One of the issues before Labour Court was whether order terminating services was contrary to principles of natural justice as no domestic inquiry was held-Employer lead evidence before Court to prove charges-Labour Court found charges proved and gave award against workman-High Court dismissed the writ-Appeal-Contention that order of termination by Labour Court would not relate back to date of original order of termination-Contention had no ground in view of Constitution Bench decision in P.H. Kalyani case-Where domestic inquiry is found defective and employer leads evidence before Labour Court and Court finds charges proved, order of termination would relate back to date of original order of termination.

       Held : 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 vs. M/s. 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 the employer leads evidence before the Labour Court and subsequently the Labour 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 Dairy Development Corporation Ltd. and Another vs. Kala Singh and Others, 1997 (6) SCC 159 wherein it was said that the Constitution Bench decision in P.H. Kalyani s case (supra) and the decision in R. Thiruvir Kolam vs. Presiding Officer, 1997 (1) 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 passed by the management, 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. In Vishweshwaraiah Iron & Steel Ltd. Vs. Abdul Gani & Ors. 1997 (8) SCC 713, this Court, however, observed that some of the decisions rendered by this Court subsequent to P.H. Kalyani s case (supra) require a relook as the same are not in consonance with the Constitution Bench decision. The same Bench in Director, State Transport Punjab and Another vs. Gurdev Singh and Another, 1998 (2) SCC 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 Labour Court comes to the conclusion that the charges are proved, in such a situation the order of dismissal will relate back to the original order of termination. In Rambahu Vyankuji Kheragade vs. Maharashtra Road Transport Corporation, 1995 (Suppl.4) SCC 157, it was held that the effective date of dismissal after domestic inquiry if Labour Court finds the inquiry to be unfair and as such gives the employer an opportunity 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. (Para 5)

       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 dispensed with. In the event it is found ultimately by the Labour Court/Industrial Tribunal that the employer had taken recourse to unfair labour practice or the order of termination has been passed malafide or by way of victimization, it will be open to the Tribunal to pay compensation 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. (Para 15)