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Hatakishore Sahu Vs. Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1976)IILLJ60Ori
AppellantHatakishore Sahu
Respondentindustrial Tribunal and ors.
Cases ReferredManagement of Ranipur Colliery v. Bhuban Singh
Excerpt:
.....for adjudication by the labour court, (opposite party no. it is now well-settled that an order of dismissal would be effective from the date when it is passed and it cannot have any retrospective operation. it is also well-settled that this court has got jurisdiction to legalese the matter by modifying the order of dismissal in saying that it would be effective from the date when it was passed. 5. law is now well-settled that an employer cannot terminate the services of an employee without holding a domestic enquiry in accordance with the principles of natural justice. 1803. it was clearly observed in that case that a defective inquiry stands on the same footing as no enquiry and in either case the tribunal had jurisdiction to go into the facts and the employer would have to satisfy the..........came to the conclusion that a case for dismissal has been made the order of termination would be held effective from the date when the tribunal passed the order and there would be no question of relating back the order of termination.(vii) where, however, the employer passed an order of termination whether without holding an enquiry or after holding a defective enquiry, the order of termination would be effective from the date it was passed by the employer if it has been held to have been justified by 4he tribunal.13. in this case opposite party no. 1 held in the award (annexure 2) that the order of dismissal dated 21-10-70 was justified. the conclusion of the employer was reached without holding any domestic enquiry. applying the aforesaid principles it is clear that the order of.....
Judgment:

G.K. Misra, C.J.

1. Petitioner was appointed by the management of the United Puri-Nimapara Central Co-operative Bank Ltd., Puri (Opposite party No. 2) (hereinafter to be referred to as the Bank) as a Junior Supervisor on 10-5-63. He was posted as Assistant Junior Supervisor at Markandpur Service Cooperative Society on 18-8-65. He was suspended from duty on 14-8-70. A charge-sheet was served on him on 17-8-70. He submitted his explanation denying the charges on 26-8-70. He was dismissed from service by an order (Annexure 1) on 21-10-70 with a direction that the dismissal order would be effective retrospectively from 14-8-70. The order of dismissal was passed without any enquiry being held by the Bank. Petitioner raised an industrial dispute with regard to his illegal termination of service by filing a complaint on 23-1-71 before the District Labour Officer-cum-Conciliation Officer, Puri. The conciliation having failed the Conciliation Officer submitted his report of failure of conciliation to the State Government (opposite party No. 3) who on consideration of the failure report referred the dispute for adjudication by the Labour Court, (opposite party No. 1). The dispute referred was as follows:

Whether removal from service of Sri Hatakishore Sahu, Assistant Junior Supervisor-cum-Secretary of Markandpur Service Co-operative Society by the management of the United Puri-Nimapara Central Co-operative Bank Ltd., Puri with effect from 14-8-70 is legal and/or justified? If not to what relief he is entitled?

The reference was registered in the file of the Labour Court as Industrial Dispute Case No. 14 of 1972. Though no domestic enquiry had been held by the Bank, evidence was led before the Labour Court by the management to justify the termination. By its award (Annexure 2) dated 11-3-74 opposite party No. 1 held that the termination was justified. It is to quash this order the writ application has been filed by Sri Hatakishore Sahu (petitioner) under Articles 226 and 227 of the Constitution.

2. Mr. Nanda for the petitioner advanced the following contentions:

(i) The order of dismissal, dated 21-10-1970 making it effective retrospectively from 14-8-1970 is contrary to law and without jurisdiction.

(ii) There being no domestic enquiry the order of termination passed by opposite party No. 2 was without jurisdiction and the order of termination would be effective from 11-3-1974 when the award was passed by opposite party No. 1.

3. The first contention is sound. It is now well-settled that an order of dismissal would be effective from the date when it is passed and it cannot have any retrospective operation. The Labour Court exercised its jurisdiction illegally in saying that the dismissal order, dated 21-10-70 would be effective from 14-8-70 when the order of suspension was passed. It is also well-settled that this Court has got jurisdiction to legalese the matter by modifying the order of dismissal in saying that it would be effective from the date when it was passed. Thus the order of dismissal will be operative with effect from 21-10-70 and the petitioner would be entitled to arrears of wages from 14-8-70 to 21-10-70.

4. The second contention requires careful examination. Mr. Nanda's contention is that without valid domestic enquiry the services of the petitioner could not have been terminated and consequently the dismissal order, dated 21-10-70 (Annexure 1) is without jurisdiction. According to him, the order of termination would be effective from 11-3-74 when the award (Annexure 2) was passed by the Labour Court. He accordingly contends that the petitioner would be entitled to back wages from 21-10-70 till 11-3-74. For reasons to be indicated, this contention is wholly unsound.

5. Law is now well-settled that an employer cannot terminate the services of an employee without holding a domestic enquiry in accordance with the principles of natural justice. It is also settled that where the domestic enquiry has either not been held or has been held improperly it is open to the employer to adduce independent evidence before the Tribunal to justify the order of termination. See Phulbari Tea Estate v. Its Workmen : (1959)IILLJ663SC ; P.H. Kalyani v. Air France, Calcutta : (1963)ILLJ679SC and Workmen of Motipur Sugar Factory Private Ltd. v. The Motipur Sugar Factory (Private) Ltd. : (1965)IILLJ162SC .

6. In the last case all the previous decisions were reviewed.

7. After taking independent evidence it is open to the Tribunal either to approve the order of termination or to set it aside. If the order is set aside the employee would be entitled to all arrear wages and other benefits of service from the date when his services were illegally terminated.

8. The question for consideration, however, is as to from what date the order of termination would be effective when the Tribunal holds that such order was justified. Mr. Nanda contends that it would be effective from the date of the award and not from the date when the order of termination was passed by the employer.

9. By holding that the order of termination passed by the employer is justified the Tribunal accepts the order of termination as having been properly passed by the employer. Patently the Tribunal's order relates back to the impugned order of termination and the order of dismissal would be effective from the date when it was passed by the employer.

10. Mr. Nanda, however, places reliance on Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan and Ors. : (1959)IILLJ388SC , where the following observation occurs:.But as the management held no enquiry after suspending the workmen and proceedings under Section 33 were practically converted into the inquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under Section 33.

An identical 'argument was advanced in : (1963)ILLJ679SC by placing reliance on the aforesaid observation and the same was repelled by their Lordships in a Constitution Bench by distinguishing that case. The observation runs thus;.We are of opinion that those observations cannot be taken advantage of by the appellant. That was a case where an application had been made under Section 33(1) of the Act for permission to dismiss the employees and such permission was asked for though no inquiry whatsoever had been held by the employer and no decision taken that the employees be dismissed. It was in those circumstances that a case for dismissal was made out only in the proceedings under Section 33(1) and, therefore, the employees were held entitled to their wages till the decision of the application under Section 33. The matter would have been different if in that case an inquiry had been held and the employer had come to the conclusion that dismissal was the proper punishment and then had applied under Section 33(1) for permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under Section 33(1): see Management of Ranipur Colliery v. Bhuban Singh : (1959)IILLJ231SC . The present is a case where the employer had held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had come to the bona fide conclusion that the employee was guilty, i.e., there was no unfair labour practice and no victimisation, the Labour Court would grant approval which would relate back to the date from which the employer had ordered the dismissal. 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 was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made. The observations, , therefore, in M/s. Sasa Musa Sugar Company's case 1959--II L.L.J. 388, on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relationship of employer and employee continues in law and in fact.

11. The same view was taken in A.I.R. 1965 S.C. 1803. It was clearly observed in that case that a defective inquiry stands on the same footing as no enquiry and in either case the Tribunal had 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.

12. On an analysis of the aforesaid decisions we may lay down the following propositions as well established:

(i) An employer cannot dismiss or discharge an employee without making an enquiry in accordance with the principles of natural justice.

(ii) Where there has been a domestic enquiry it is for the Tribunal to see if the enquiry had been properly made or not.

(iii) If there has been no domestic enquiry at all or the enquiry is defective the employer is to justify before the Tribunal the order of dismissal or discharge by proof of relevant evidence.

(iv) A defective enquiry stands on the same footing as no enquiry.

(v) So far as the jurisdiction of the Tribunal is concerned, there is no difference in principle in the matter of giving independent evidence by the employer whether the matter comes before the Tribunal for approval under Section 33 or on a reference under Section 10.

(vi) It is only where the employer neither dismissed the employee nor came to the conclusion that a case for dismissal has been made the order of termination would be held effective from the date when the Tribunal passed the order and there would be no question of relating back the order of termination.

(vii) Where, however, the employer passed an order of termination whether without holding an enquiry or after holding a defective enquiry, the order of termination would be effective from the date it was passed by the employer if it has been held to have been justified by 4he Tribunal.

13. In this case opposite party No. 1 held in the award (Annexure 2) that the order of dismissal dated 21-10-70 was justified. The conclusion of the employer was reached without holding any domestic enquiry. Applying the aforesaid principles it is clear that the order of termination would be effective from 21-10-70 and not from 11-3-74 when the award was passed. The argument of Mr. Nanda that the order of termination was passed in two stages is born of confusion. There are no two stages. The order of the employer without holding an enquiry is not liable to be quashed, on the analogy of Article 311(2) of the Constitution. In exercise of the writ jurisdiction under Articles 225 and 227 the High Court has no power to take further evidence to justify an order of termination otherwise held without enquiry or after improper enquiry. By judicial decisions it has now been established that such an order of termination is not liable to be quashed if on enquiry before the Tribunal the order can be justified by the employer on independent evidence. The entire concept of law is one integrated whole and cannot be divided into two stages. The matter is concluded by the aforesaid Supreme Court decisions and is no longer arguable.

14. On the aforesaid analysis, a writ of certiorari be issued quashing Annexure 2 in part to the extent it says that the order of dismissal from service passed on 21-10-70 would operate retrospectively from 14-8-70. The petitioner would be entitled to back wages from 14-8-70 to 21-10-70. The other part of the award saying that the order of dismissal is justified is not liable to be quashed. In the result, the writ application is allowed in part but in the circumstances there will be no order as to costs.


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