R. Thiruvirkolam
Vs. The Presiding Officer & Anr [1996] INSC 1441 (18 November 1996)
J.S.
Verma, B.N. Kirpal J.S. Verma, J.
ACT:
HEAD NOTE:
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 point appears to have been raised on behalf
of the appellant on the basis of certain observations made in Gujarat Steel 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 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 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 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 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) 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 Anr., 1990 Supp. (1) SCR 411, and
Rambahu Vyankuji Kheragade 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.
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