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PETITIONER: VISHWESHWARAIAH IRON & STEEL LTD.

       Vs.

RESPONDENT: ABDUL GANI & ORS.

DATE OF JUDGMENT:       11/11/1997

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                THE 11TH DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr.Justice S.b.Majmudar               Hon’ble Mr.Justice M.Jagannadha Rao Dhruv Mehta,  G.M. Misra,  Fazlin Anam,  Ms. Sofia Verma and S.K. Mehta, Advs. for the appellant                          O R D E R      The following order of the Court was delivered:      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.  Thiruvirkolam v.  Presiding Officer  & Anr. reported in  (1997) 1 SCC 9 which has been later followed by Bench of  three learned  Judges in  the case of Punjab Dairy Development Corporation  Ltd. &  Anr. V.  Kala Singh  & Ors. reported in  (1997) 6  SCC 159.   In our view, these are the cases where the management held defective inquiry and before the Labour  Court or  the Industrial Tribunal the defect was sought to  be removed  by leading evidence and ultimately of the Court  seized of  a reference  under Section  10 of  the Industrial Disputes  Act agreed  with the  management on the new evidence led before it, the question 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 decision not apply.      Learned counsel  is very sanguine when be contends that the decision  of the  Constitution Bench in the case of P.H. Kalyani v.  M/s Air France Calcutta reported in (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  M/s. Sasa Musa Sugar Works (P)  Ltd. v.  Shobrati Khan  & Ors. reported in (1959) Supp. 2  SCR 836  would not  apply in  connection  with  the termination orders  passed without domestic inquiry and that ratio of  the Constitution Bench admittedly enquiry was held by the  management before  terminating the  services of  the employee.  In our view, these observations in Kalyani’s case were rendered  in connection with proceeding for approval of the  management’s   action  under   Section  33(2)   of  the Industrial Disputes  Act, 1947.  Even Sasa Musa Sugar Work’s

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case also  pertains to  a proceeding  under Section 33(1) of the I.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  10 or  10-A of  the Industrial  Disputes  Act which would stand on a different footing.      The moot  question would arise whether the ratio of the Constitution Bench  judgment in  Kalyani’s case would almost automatically apply  to such  cases  apart  from  the  cases arising under  Section 33  of the I.D. Act.  We may, 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  593 wherein Krishna Iyer, J., spoke for the majority, 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 by  the arbitrator  on  the  basis  of evidence led  by the  management for  justification  of  its action before  such tribunal.  Therefore, the question would arise whether  the ratio  of 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 in  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 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 decision of this Court will also.  therefore, require a re-look.      Leave granted.      The appeals  will now  be  placed  for  final  disposal before a  Constitution Bench  of this  Court pursuant to the present order.      Printing dispensed  with.   All the  relevant documents are permitted to be filled by the parties concerned.      Notice to  issue on  the  prayer  for  interim  relief. There will  be ad  interim stay of the order of the Division Bench of  the High  Court to  the extent of 50% of the  back wages.