ORDER
A.K. Sikri, J.
1. Rule.
2. Since short point is involved with the consent of the parties the matter is heard and decided at this stage.
3. Shorn of unnecessary details let me recapitulate the relevant facts which have led the petitioner to file the present writ petition. Petitioner
is an employee in Department of Anthropology, University of Delhi (hereinafter referred to as ‘University’, for short). Around April, 1983 he filed
statement of claim before the Labour Commissioner raising the dispute regarding crossing of efficiency bar. While this was pending, on 17th June, 1983 petitioner was placed under suspension and thereafter on 29th October, 1984 chargesheet was served upon the petitioner and enquiry was held. Thereafter, Vice Chancellor issued show cause notice on 6th January, 1986 and imposed the penalty of compulsory retirement on the basis of the report of the Enquiry Officer. After taking into consideration the reply submitted by the petitioner, Vice Chancellor passed order dated 30th May, 1986 imposing the penalty of compulsory retirement from service on the petitioner. University filed an application under Section 33(2)(b) of the Industrial Disputes Act before Industrial Tribunal No. III for approval of the aforesaid action taken by the University of Delhi against the petitioner thereby compulsory retiring him from service w.e.f. 30th May, 1986. Petitioner filed written statement opposing the aforesaid application and inter alia submitted that the enquiry was not held in accordance with the principles of natural justice and no opportunity was given to him adduce evidence in
support of his defense. On the basis of pleadings the Industrial Tribunal framed the following issues:-
(a) Whether a proper and valid enquiry was held in accordance with the rules of natural justice?
4. After recording the evidence and hearing the arguments learned Presiding Officer passed order dated 12th July, 1986 holding that enquiry held against the petitioner was in violation of principles of natural justice and petitioner was deprived of the opportunity to test the veracity of the material witness. Accordingly, issue framed by the Industrial Tribunal was decided in negative i.e. against the University. However, since University had made request that an opportunity be given to the University to adduce evidence in case enquiry is held to be defective, the Industrial Tribunal has given the opportunity to the University to substantiate the charges. Last para of the order dealing with this aspect reads as under :-
“While filing the application itself the University has/had made a request that an opportunity be given to adduce the evidence afresh on merits to substantiate the charges and justify the action taken against the workman. In view of this request having
been already made by the management the applicant/University of Delhi is being given an opportunity to adduce evidence afresh on merits to substantiate the charges and justify the action taken against the employee before the very tribunal. Fix 6.9.1986 for applicant evidence.”
5. Petitioner-workman in the present writ petition obviously does not challenge the findings of the Industrial Tribunal whereby Industrial Tribunal has held the enquiry to be vitiated as this issue has been decided in favour of the petitioner. Petitioner does not even object to the grant of opportunity being given to the University to prove the charges before the Industrial Tribunal by adducing the evidence afresh as levelled in the chargesheet. However, the petitioner states that since enquiry has been held to be defective the petitioner should be reinstated in service inasmuch as after holding the enquiry defective, the punishment order become null and void and cannot be operative till the charges are proved by the University before the Industrial Tribunal. Although various reliefs are prayed for in the writ petition, counsel for the petitioner mainly argued on the following relief which is reproduced below:-
“Prayer (a):-
to reinstate the Petitioner/Workman right from the date when he was put under suspension and then compulsory retirement with full back wages, arrears, all service benefits as per Industrial Disputes Act immediately as early as possible.”
6. As mentioned above, petitioner has not challenged the order of the Industrial Tribunal granting permission to the respondent-University to substantiate the charges. The question to be determined, therefore, is as to whether petitioner is entitled to reinstatement because enquiry held against the petitioner is held to be vitiated. In other words, what is the effect of the findings of the Industrial Tribunal when the enquiry against the petitioner was not proper despite opportunities being given to the University to prove the charges. In order to decide this question it would be necessary to consider the provisions of Section 11-A of the Industrial Disputes Act and the judgment of the courts interpreting the said Section. Section 11-A was introduced by amendment in the year 1978. The position which was prevailing before the introduction of the said Section can be deduced from the judgment of Supreme Court in the case of Workmen of Motipur Sugar Factory Ltd. Vs. The Motipur Sugar Factory Private Ltd. . Thus observed the Court :-
“It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading evidence….”
“….A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.”
7. Immediately after introduction of Section 11-A in the Industrial Disputes Act, the Section came up for interpretation before the Supreme Court in the case of Workmen of Firestone Tyre and Rubber Company of India Pvt. Ltd. Vs. The Management and Others . In
this case, the Hon’ble Supreme Court had examined the position in law prior to and after the insertion of Section 11-A in the Industrial Disputes Act and held as under :-
Para 27-From these decisions, the following principles broadly emerge –
xx xx xx xx
sub. para 4- Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal
in order to satisfy itself about the legality and validity of the order, had to given an opportunity to the employer and employee to adduce evidence for the first time justifying his action and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
After insertion of Section 11-A, the Hon’ble Supreme Court held as under:-
“33. If there has been no enquiry held by the employer or if the enquiry is held to be defective, it is open to the employer even now to adduce evidence for the first time before the Tribunal justifying the order of discharge of dismissal. We are not inclined to accept the contention on behalf of the workman that the right of the employer to adduce evidence before the Tribunal for the first time recognised by this Court in its various decisions, has been taken away ….”
“Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he had held no enquiry to the enquiry held by him is found to be defective. Of course, an opportunity will have to be given to the workman to lead evidence contra. The stage at which the employer has to ask for such an opportunity, has been pointed out by this Court in Delhi Cloth and General Mills Co. Ltd. . No doubt, this procedure may be time consuming, elaborate and cumbersome. As pointed out by this Court in the decision just referred to above, it is open to the Tribunal to deal with the validity of the domestic issue. If its finding on the subject is in favour of the management then there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action. This right in the management to sustain its order by adducing independent evidence before the Tribunal if no enquiry has been held or if the enquiry is held to be defective, has been given judicial recognition over a long period of years.
34. All parties are agreed that even after Section 11-A, the
employer and the employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer.”
It may be mentioned that Industrial Disputes Act is a unique piece of legislation particularly when it confers substantial powers to the Labour Courts/Industrial Tribunal while deciding industrial disputes referred to it for adjudication. It has power not only to enforce the existing rights and obligations between the parties but even to create new rights and obligations. Likewise, under Section 11-A of the Act, Tribunal has power to interfere with the management’s decision to dismiss, discharge or terminate the service of a workman. Even if the Tribunal finds that the enquiry held against the workman is proper, it can still interfere with the quantum of punishment and award lesser punishment in lieu of discharge or dismissal if the circumstances of the case may require. Likewise as noticed in the judgment quoted above, the Tribunal can decide as to whether enquiry conducted is proper or not and even when no enquiry is conducted whether action taken against the workman is proper or not. Employer is given chance to prove the charges, on which the action is taken against the concerned workman, if no enquiry was held or if the enquiry held is found to be
defective.
8. The conclusion which can be arrived from the aforesaid discussion is that the order of termination passed by the employer does not become nonest if the departmental enquiry held against the concerned employee is held to be defective by the Labour Court and the employer is still given a chance to prove the charges before the Labour Court by adducing fresh evidence. In fact even when no enquiry is held before passing the termination order, it is open to the employer to justify the action before the Tribunal, by leading evidence. Once the employer is able to prove the charger by leading evidence before the Tribunal, the Tribunal on the basis of said evidence would hold that the termination order, by way of punishment, passed against the employee was proper. Therefore, the order of termination stands and the employer is given opportunity to justify the action before the Tribunal by leading the evidence. Accordingly, if the enquiry is held to be defective and as it is open to the employer even now to adduce evidence for the first time before the Tribunal justifying order of discharge or dismissal, it cannot be said that the order of discharge or dismissal has become honest.
9. This is the inevitable conclusion when the matter is looked into from another angle also. There had been a controversy as to what would be the date of dismissal or discharge once the enquiry is held to be defective and management is able to prove the charges before the Tribunal for the first time. Whether the dismissal would be from the date when the Tribunal returns the findings that charges are proved before it or whether it relates back to the date when the dismissal order was passed by the employer on the basis of enquiry which was held to be defective by the Tribunal. In the case of P.H. Kalyani Vs. Air France a Consti-
tution Bench of Supreme Court held that when the Labour Court records the findings that domestic enquiry was defective and opportunity was given to the management and the workman to adduce evidence and than the Labour Court upholds dismissal order passed by the management, the dismissal and not from the date of judgment of the Labour Court. Notwithstanding this clear dicta of Constitution Bench of Supreme Court, a different view was taken by Supreme Court in the following judgments namely, Gujrat Steel Tubes Limited Vs. Mazdoor Sabha and Deshraj Gupta Vs. Industrial Tribunal-IV, U.P., .
10. Thereafter in the case of R. Thiru Virkalan Vs. Presiding Officer reported in (1987) 1 SCC 9, the Supreme Court followed the ratio laid down in the case of P.H. Kalyani. The aforesaid divergent views came up for consideration before the Supreme Court in the case of Punjab Diary Development Corporation Ltd. Vs. Kala Singh . Setting the controversy at rest the Supreme Court held that ratio laid down in the Constitutional Bench decision in the case of P.H. Kalyani (supra) is binding and the view expressed in Gujrat Steel Tubes Ltd. versus Mazdoor Sabha (supra) Deshraj Gupta (supra) that the discharge/dismissal did not relate back but was operative from the date of judgment of Labour Court is not good law. Following pertinent observation of the Supreme Court in the case Punjab Diary Development Corporation Ltd. is reproduced below:-
“This Court while granting leave referred the matter to a threejudge Bench to consider the correctness of the judgment in Desh Raj Gupta case in the light of the judgment of the Constitution Bench. Subsequent to the reference, another Bench of two Judges
has elaborately considered the entire case-law in R. Thiruvir kolam Vs. Presiding Officer. In the decision of the Constitution Bench in P.H. Kalyani Vs. Air France, this Court had held that since the labour court found the domestic enquiry to be defective and gave opportunity to the parties to adduce the evidence and also that the order of termination of the services or dismissal from service is valid, it would relate back to the original order of dismissal. But a discarded note was expressed by the three-Judge Bench in Gujrat Steel Tubes Ltd. Vs. Mazdoor Sabha which was considered by this Court in Thiruvir kolam case and it was held that in view of the judgment of the Constitution Bench, the three-Judge Bench judgment was not correct. Desh Raj Gupta case was also considered and it was held that it has not been correctly decided. Thus, we are relieved of reviewing the entire case law in that behalf.
In view of the aforesaid decisions and in view of the findings recorded by the Labour Court, we are of the considered opinion that the view expressed in Desh Raj Gupta case is not correct. It is accordingly overruled. Following the judgment of the Constitution Bench, we hold that on the Labour Court’s recording a finding that the domestic enquiry was defective and giving opportunity to adduce the evidence by the management and the workman and recording of the finding that the dismissal by the management was valid, it would relate back to the date of the original dismissal and not from the date of the judgment of the Labour Court.
11. Thus the law on the point is clear, namely, when the Labour Court records the finding that the domestic enquiry was defective and an opportunity was given to the management and the workman to adduce evidence and than the Labour Court upholds the dismissal order passed by the management, doctrine of relating back would apply and dismissal order relate back to the date of original dismissal and not from the date of judgment of the Labour Court. Adopting this line of reasoning as well, one can clearly conclude that in the instant case when the enquiry is held to be defective but management is given chance to adduce evidence before Industrial Tribunal to justify its penalty of ompulsory retirement inflicted upon the petitioner, the said penalty does not become nonest at this stage. Because if the charges are proved before the Industrial Tribunal, doctrine of relating back would apply and the penalty of compulsory retirement would take effect from the date it was passed i.e. 30th May, 1986. Therefore, if the prayer of the petitioner is accepted at this stage and he is reinstated with full back wages etc. as claimed by him and ultimately respondent University is able to prove the charges and Industrial Tribunal holds that the order of penalty was justified, it would result in anomalous position. On the other hand, if ultimately University fail to prove the charges and the Industrial Tribunal holds that the order of punishment was illegal, the Industrial Tribunal would be within its power to pass appropriate orders including in respect of reinstatement and back wages and it would be for Industrial Tribunal to decide as to what type of relief is to be given to the petitioner in that eventuality.
12. Faced with the aforesaid situation and realising that judgments of Supreme Court in the case of Punjab Diary Development Corporation Ltd. (supra) clinches the issue, counsel for the petitioner ventured to argue that the said decision is per incuriam and therefore should not be followed by this Court inasmuch as earlier judgment of Supreme Court in the case of D.C. Roy was not considered by the Supreme Court. This is an argument in despair and deserves to be rejected out right . In Punjab Diary Development Corporation (supra) case, Supreme Court has after considering all the judgments, has clearly held that the case of P.H. Kalyani (supra) which is a Constitutional Bench judgment holds the field. It took into consideration those judgments which took contrary view and did not agree with the same. It may be stated that clarification/interpretation given by the Supreme Court of its earlier judgments is also binding on subordinate courts under Article 141 of the Constitution of India.
13. Learned counsel for the petitioner further tried to argue that once the enquiry is held to be defective the effect of that would be that order of penalty would cease to have any effect and for this proposition he relied upon the judgment of Supreme Court in the case of Tek Raj Vs. Union of India . That was a case where the concerned person has filed writ petition in the High Court challenging the order of termination and the High Court under Article 226 of the Constitution of India decided that the enquiry held against the said petitioner was defective. After the High Court gives such a finding, there is no provision whereby employer can prove charge by leading evidence before the High Court. Therefore, position would be different when the writ petition is filed in the High Court from the cases where the Industrial Tribunal in a reference case decides about the validity of the enquiry. I have already discussed above in detail the provisions of Industrial Disputes Act and the power of Industrial Tribunal in this respect. The powers which are conferred upon the Industrial Tribunal by Statute are much wider in nature and therefore the aforesaid judgments cited by the petitioner would not apply in the instant case.
14. Thus in view of my aforesaid discussion I am of the opinion that merely because the enquiry conducted against the petitioner is held to be defective, petitioner is not entitled to any relief at this stage as prayed for by him in this writ petition namely, reinstatement or payment of full back wages, arrears, service benefits, etc. Accordingly the writ petition is dismissed. There shall be no order as to costs.