18 November 1996
Supreme Court
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R. THIRUVIRKOLAM Vs THE PRESIDING OFFICER & ANR.


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PETITIONER: R. THIRUVIRKOLAM

       Vs.

RESPONDENT: THE PRESIDING OFFICER & ANR.

DATE OF JUDGMENT:       18/11/1996

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      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.      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 Courts namely, December 11, 1985  or it  would relate  to the  date of  the order of dismissal passed by the employer, namely, November 18,1981. The only point involved for decision is apparently concluded by the  decision of  the Constitution  Bench in P.H. Kalyani Vs. M/s  Air France Calcutta 1964 (2) SCR 104. 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.  Vs. Gujarat  Steel Tubes Mazdoor Sabha .1980 (2) SCR 146, which appear to be contrary.      Reference may be made first to the decision in Kalyani. This 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

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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  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      however to  justify  the  order  of      dismissal before  the Labour  Court      in view of the defect in the in the      inquiry.  It   has  succeeded   the      Labour 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  courts   award  came   into      operation must fail."      (Pages 113 & 114 )      In our  opinion the  authoritative pronouncement by the Constitution Bench in Kalyani puts the matter beyond doubt.      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 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  shell   of  the  Management’s      order, predating  of  the  nativity      does not  arise. The  reference  to      Sasa  Musa  in  Kalyani  enlightens      this position,  The latter  case of      D.C. Roy  V. The Presiding Officer,      Madhya  Pradesh  Industrial  Court,      Indore  &  Ors.  (supra)  specially      refers to  Kalyani‘s case  and Sasa      Musa‘s case  and holds  that  where      the Management discharges a workmen      by an  order which is void for want      of  an   enquiry  or   for  blatant

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    violation  of   rules  of   natural      justice, the relation-back doctrine      cannot  be   invoked.  The   juris-      prudential  difference   between  a      void order,  which by  a subsequent      judicial resuscitation  comes  into      being de  novo, and an order, which      may suffer from some defects but is      not still born or void and all that      is needed  in the  law to  make  it      good is  a subsequent approval by a      tribunal which  is granted,  cannot      be obfuscated.      We agree  that the  law  stated  in      D.C. Roy (supra) is correct but now      that  the  termination  orders  are      being set  aside, the  problem does      not present itself directly..."                (Page 215)           (emphasis supplied)      Apparently  these   observations  appear  to  strike  a discordant note,  even though  Kalyani is referred there-in. The basis  of the  observations is that "A void dismissal is just dismissal  and does  not exist".  In other  words,  the reason for  making these  observations is  that a void order does no  come into  existence until by a subsequent judicial resuscitation it  comes into  being inasmuch as a void order is still born. Is this assumption jurisprudentially correct?      It is  significant that the Constitution Bench decision in Kalyani,  by which  the three-Judge  Bench was  bound, is referred in  Gujarat Steel and attempt made to indicate that there is no difference in the view taken therein. It is also significant that agreement is expressed with the decision in D.C.  Roy   Vs.  The   Presiding  Officer,   Madhya  Pradesh Industrial Court,  Indore & Ors., 1976 (3) SCR 801, to which Krishna Iyer,  J. was  a party and in which Kalyani has been expressly followed.  It has now to be seen whether the above observations in Gujarat Steel are in consonance with Kalyani and  D.C.  Roy  and  also  conform  to  the  juristic  basis indicated therein.      The above  extract from Kalyani which contains ratio of the decision  clearly indicates  that the above observations in Gujarat  Steel are  not in  conformity with  Kalyani.  In Kalyani it  was held  that the  defect found in the domestic inquiry is  nullified by proof of misconduct on the basis of evidence adduced before the Labour Court so that there is no ground available  for the  Labour Court is whether the order of punishment should be set aside on any ground and when the Labour Court  ultimately reaches  the conclusion  that  even though the  inquiry was  defective,  there  is  material  to justify in  the punishment awarded, it rejects the challenge to the order of punishment which continues to operate. It is not as  if the order of punishment becomes effective only on rejection of the challenge to its validity. Unless set aside by  competent   court  on  a  valid  ground,  the  order  of punishment made  by the  employer continued  to operate. 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.  Unless   set  aside  by  a  component authority, the  order of  punishment made  by the  employer- continues to be effective Obviously this is the ratio of the decision in Kalyani. The decision  in D.C.  Roy is  by a two-judge Bench to which Krishna Iyer,  J. is  a party. Therein also it was held that the award  of the Labour Court relates back to the date when

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the order  of dismissal  was passed  by the employer when it found the inquiry to be defective but reaches the conclusion on the  evidence adduced  before it  that the  dismissal was justified. After  referring to  Kalyani it  was held in D.C. Roy as under:      "These observations  directly cover      the case  before us  because though      the Labour  Court  in  the  instant      case, found  that the  inquiry  was      defective  as   it  infringed   the      principles   of natural  justice it      come  to   the   conclusion   after      considering  the  evidence  induced      before it  that the  dismissal  was      justified. The  award of the Labour      Court must therefore relate back to      the  date   when   the   order   of      dismissal   was   passed   on   the      termination   of    the    Domestic      inquiry".                (Page 805)      We may now refer to the juristic principle on which the above quoted  observations in  Gujarat Steel  appears to  be based. There  is a very useful discussion of the topic under the heading  "Void and  Voidable" at  pages 339  to  344  in Administrative Law by Wade, Seventh Edition. The gist of the discussion in Wade is as under:      "...Here also  there is  a  logical      difficulty, since  unless an  order      of the  court is  obtained there is      no  means   of   establishing   the      nullity of  the list.  It enjoys  a      presumption of  validity, and  will      have to  be obeyed  unless a  court      invalidates it. In this sense every      unlawful    administrative     act,      however invalid is merely voidable.      But this is no more than the truism      that in  most situations  the  only      way to resist unlawful action is by      recourse to  the law.  In  a  well-      known passage Lord Radcliffe said:      An order,  even if not made in good      faith is  still an  act capable  of      legal  consequences.  It  bears  no      brand  of   invalidity   upon   its      forehead.  Unless   the   necessary      proceedings are  taken  at  law  to      establish the  cause of  invalidity      and to  get it quashed or otherwise      upset, it  will remain as effective      for its  ostensible purpose  as the      most impeccable of orders."            (Pages 341 & 342)      "‘Void’ is therefore meaningless in      any absolute  sense. Its meaning is      relative,    upon    the    court‘s      willingness to  grant relief in any      particular   situation.   If   this      principle of  legal  relativity  is      borne  in   mind,  confusion   over      ‘void’   of    voidable’   can   be      avoided."            (Pages 343 & 344)           (emphasis supplied)

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    With great  respect, we  must say that the above quoted observations in  Gujarat Steel  at page  215 are not in line with the  decision in Kalyani which was binding or with D.C. Roy to  which the  learned Judge,  Krishna Iyer,  J.  was  a party. It  also does  not match with the underlying juristic principle discussed in Wade. For these reasons, we are bound to follow  the Constitution  Bench decision in Kalyani which is the binding authority on the point.      We may  now refer  to later  decisions of this Court in Desh Raj  Gupta Vs.  Industrial Tribunal  IV, U.P. Lucknow & Anr., 1990 Supp. (1) SCR 411, and Rambahu Vyankuji Kheragade Vs. Maharashtra  Road Transport  Corporation, 1995 Supp. (4) SCC 157. In Rambahu, Kalyani and D.C. Roy were followed by a two-judge Bench  and similar  view taken  that the  order of dismissal takes  effect  from  the  date  on  which  it  was originally passed  and not  from  the  date  of  the  Labour Court‘s award  when the  Labour  Court,  after  holding  the domestic inquiry  to be  defective reaches the conclusion on the evidence  adduced before  it that the punishment awarded was justified.  However, in  Desh Raj Gupta the observations in Gujarat  Steel were  relied on  for taking different view without any  reference to  either Kalyani  or D.C. Roy which appear to  have been  overlooked. In these circumstances the decision in Desh Raj Gupta cannot be treated as an authority on the point. Both these decisions were by two-judge Bench.      As a  result of  the aforesaid decision it must be held that the  only point  involved for decision in the appeal is concluded against  the appellant  by the  Constitution Bench decision of  this Court  in Kalyani  and the observations to the contrary  in Gujarat  Steel are, therefore, per incurium and not binding. The order of punishment in the present case operated from  November 18,  1981 when  it was  made by  the employer and  not from December 11, 1985, the date of Labour Court‘s award.  The appellant is, therefore, not entitled to any relief.      The appeal is, accordingly, dismissed. No costs.