G.P. Singh, C.J.
1. By this petition under Article 226 of the Constitution the petitioner, The New India Assurance Co. Ltd., challenges the order of the Labour Court, Jabalpur, dated 29th October, 1977 passed under Section 33C(2) of the Industrial Disputes Act, 1947.
2. The respondent Dalbir Singh was in petitioner's employment as a Development Officer. The respondent was posted at Chhindwara. On 5th February, 1975 he was transferred from Chhindwara to Jabalpur. The respondent did not join at Jabalpur and went to Guna on the plea that he was unwell. He went on sending letters for leave and extension of leave. By letter dated 24th, October, 1975 (Annexure 12) the Senior Area Manager of the petitioner intimated the respondent that the medical certificate submitted in support of absence expired on 14th October, 1975 and still the respondent had not reported for duty. It was also mentioned in this letter that the management was led to believe that the respondent was deliberately avoiding to resume duty and that he was not interested in the service of the company. It was further stated that the management wanted to give him another chance and the respondent could report for duty latest by 1st November, 1975 failing which the management will have no option but to remove the name of the respondent from the rolls of the company. In response to this letter, the respondent did not send any medical certificate. He only wrote a letter dated 14th December, 1975 for extension of sick leave upto 4th January, 1976. Another letter was then sent by the respondent on 3rd January, 1976 for further extension of leave upto 2nd February, 1976. By letter dated 27th January, 1976 the respondent was informed by the General Manager of the petitioner that the respondent did not report for duty as he was required to do by the management's letters dated 22nd September and 24th October, 1973 and that no reply has also been sent by him to those letters. It was also stated in this letter that the management was justified to infer that the respondent had no interest to continue in service of the petitioner and that it was justified to treat the respondent as having abandoned his job voluntarily without notice. It was further intimated that accordingly the respondent's name had been removed from the rolls of the company with effect from 1st November, 1975 and that he ceased to be an employee of company from that date. The respondent made an application under Section 33C(2) to the Labour Court, Jabalpur, on 23rd December, 1976. By the impugned order, the Labour Court held that the termination of the respondent's employment was void and inoperative as it was not preceded by any regular enquiry and that the respondent was entitled to be treated as continuing in service. The Labour Court on this basis, granted the following reliefs;
The applicant shall be deemed to have continued in service. He shall be granted leave due for the period of his absence from 16-2-1975 to 1-10-1975 (the date from which termination became effective(sic). If the whole period is not covered by the leave due the rest of the period shall be treated on leave without pay. After that whatever emoluments are due to him for that period shall be paid to him. For the period after 1-11-75 till he is taken back on duty full emoluments shall be paid to him. He shall be given all benefits admissible to him under the scheme and the arrears on that account shall also be paid to him. The non-applicant shall further pay Rs. 50 as costs to the applicant. The rest of the claim is dismissed.
3. The short submission made by the learned Counsel for the petitioner before us is that the Labour Court exceeded its jurisdiction under Section 33C(2) in deciding upon the question of validity of termination. It is argued that if the respondent wanted to challenge the order of termination, he should have raised an industrial dispute under Section 10 of the Act and that the validity of the order of termination could not have been gone into under Section 33C(2). In our opinion, the contentions so raised by the learned Counsel for the petitioner must be accepted.
4. The respondent was governed by the General insurance (Conduct, Discipline & Appeal) Rules, 1975. Rule 4(7) specifically provides that absence without leave or over-staying the sanctioned leave for more than four consecutive days without sufficient grounds or proper or satisfactory explanation shall be treated as misconduct. The procedure for imposing penalties is prescribed by Rule 25. The reasoning of the Labour Court is that the termination of the respondents employment was for misconduct without following the procedure of enquiry laid down in Rule 25 and, therefore, the termination was invalid and void and the respondent continued in service. It is well-settled that the Labour Court under Section 33C(2) has no jurisdiction to enquire into the validity of dismissal or termination of employment and to grant wages treating the dismissal or termination to be invalid, [The Central Bank of India Ltd. v. P.S. Rajgopalan 1963-II L.L.J. 89 and Central Inland Water Transport Corporation Ltd, v. The Workmen 1975-II L.L.J. 117. In Punjab Beverages v. Suresh Chand 1978-II L.L.J. 1, which related to an application made under Section 33C(2) by a workman whose services were terminated in violation of Section 33 of the Act, there are observations to the effect that if an order of termination of employment is 'null and void ab initio' or 'wholly without force or effect' the workman can make an application under Section 33C(2) without raising an industrial dispute or taking other steps for setting aside the termination order. The question, therefore, is whether the defect of not holding an enquiry as required by Rule 25 made the order of termination of the respondent services null and void ab initio or wholly without force or effect so that it could be disregarded by the Labour Court under Section 33C(2). Now the normal remedy of the petitioner for challenging the order of termination was to raise an industrial dispute under Section 10. Had such an industrial dispute been raised and referred, the Tribunal deciding it could not have straightway reinstated the respondent on a finding that no enquiry was held before imposing the punishment of termination of services. The management in such a case would have got the opportunity of leading evidence to prove that the respondent was guilty of misconduct and that the order of termination was justified. It necessarily follows that the Tribunal deciding the industrial dispute could not have ignored the order of termination as null and void ab initio or having no force or effect simply on the ground that no enquiry was held before passing the order. Now if the Tribunal deciding the industrial dispute under Section 10 could not have ignored the order of termination as null and void ab initio on the ground that no enquiry under Rule 25 was held, it is not open to the Labour Court under Section 33C(2) to do that, for it is well settled that the power under that section is in the nature of an executing Court and the Labour Court acting under the said section cannot certainly exercise a power which the Tribunal under Section 10 could not have exercised. A Division Bench of this Court has dealt with this matter in a recent decision in Union of India v. C.G.I. Tri-cum. Lab. C. (1979) M.P.L.J. 808. It was held in that case that non-holding of a summary enquiry as required by Rule 1719 of the Railway Establishment Code did not make the termination of the service of a railway employee void ab initio and that the Labour Court acting under Section 33C(2) could not ignore the order of termination and grant the workman relief of wages on the footing that he continued to be in service in spite of the order of termination. It has been pointed out in that case that even if an act be void, if not challenged in law, or if the Court will not grant a remedy under the usual rules, it may have the effect of a valid act since it cannot be opposed. The word 'void' is meaningless in any absolute sense. Its meaning is relative, depending upon the Court's willingness to grant relief in any particular situation. As pointed out by Professor Wade in Administrative Law, Fourth Edition, p. 300; 'The reality of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the 'void' order remains effective and is, in truth, valid. As pointed out by us, the normal remedy for challenging the order of termination of the respondent was to get an industrial dispute referred under Section 10 of the Act. The Labour Court under Section 33C(2) cannot abrogate to itself the power of a Tribunal deciding an industrial dispute In our opinion, the Labour Court completely exceeded its powers in ignoring the order of termination and declaring the respondent to be continuing in service and in granting him wages and other reliefs.
5. It was contended by the learned Counsel for the respondent that the order amounted to retrenchment and as retrenchment was done without following the requirements of Section 25F of the Act, it was invalid and void and could be ignored. Now, the circumstances of this case would show that the respondent's services were not terminated on the ground that he was surplus. The termination of the respondent's employment was on the ground of misconduct as stated above. The termination was, therefore, a punishment inflicted by way of disciplinary action, although without holding an enquiry, and did not fall within the definition of retrenchment. Apart from that, on the respondent's own showing, he continued to be unwell and was unable to resume duty from 5th February, 1975 till the order of termination was passed. It will also, therefore, be a case of termination of the service on the ground of continued ill-health of the workman and will be outside the definition of retrenchment contained in Section 2(oo) of the Act.
6. The petition is allowed. The impugned order of the Labour Court is quashed. The petitioner will get costs of this petition from respondent No. 1. Counsel's fee Rs. 100, if certified. The security amount be refunded to the petitioner.