V.P. Tyagi, J.
1. Messrs Udyog Mandir. Amer, which is a registered society under the Societies Registration Act, has filed this writ petition under Article 226 of the Constitution to challenge the award of thLabour Court, Rajasthan, Jaipur dated 28th of January, 1970, inter alia, on the ground that after the Labour Court came to the conclusion that the employee of the society Shri Narain Kumar Shastri was guilty of serious charges of misconduct, the Labour Court was not competent to order the payment of back wages to the workman when the order of termination of service was ultimately approved by it.
2. The facts giving rise to this writ petition are follows. Shri Narain Kumar Shastri was employed by the petitioner society as Assistant Manager in the grade of Rs. 100-5-150 on 15th September. 1960. He was posted at one of the branches of the petitioner society, viz Khadi Bhandar, Bapu Bazar, Jaipur. Thereafter, certain matters of misconduct including defalcation came to the notice of the management The management, after overlooking the previous misconduct of Shri Narain Kumar Shastri, gave him one more opportunity to improve his conduct but he was transferred from Jaipur to Kishangarh Khadi Bhandar Shri Shastri continued to misbehave and remained absent from his duty and marked his presence in the attendance register. An explanation was sought from Shri Shastri for his misconduct but it as appears that he did not care to reply to the letter addressed to him by the management. Thereupon, the management without holding any formal enquiry terminated the services of Shri Shastri on 17th November, 1966. The union of the workmen of the petitioner society raised as industrial dispute about the termination of Shri Shastri's service. The Government of Rajasthan referred the following question for adjudication under Section 10 the Industrial Disputes Act to the Labour Court:
Whether the termination of Shri Narain Kumar Shastri's services by the Udyog Mendir, Amer was legal and proper, and to what relief the workman was entitled.
3. This fact was admitted by the employer that before termination of Shastri's services ho formal managerial enquiry was made by the employer and therefore the parties agreed to adduce evidence before the Labour Court about the charge levelled against Shri Shastri. The Labour Court, after recording the evidence of the parties, came to the conclusion that 'delinquent Shri Shastri was not fit for the job.' But while upholding the propriety of Shri Shastri's removal, the Labour Court directed the petitioner society to pay full back wages to Shastri from the date of his termination upto the date of the award. This direction of the Labour Court has been challenged by the petitioner society, inter alia, on the ground that the order of termination if adjudicated by the Labour Court as proper, it was not within its competence to order the payment of the back wages from the date of termination of service to the date of award.
4. This petition has been vehemently opposed by Mr. Mridul appearing on behalf of Shri Shastri and the main ground taken by earned Counsel is that no order of termination of service can be passed against a workmen without a managerial enquiry and even if the Labour Court came to the conclusion that under the circumstances services of the workman could be terminated, that order of termination can come into effect only from the date when the enquiry has been made by the Labour Court and thereafter it came to the conclusion that the misconduct against the delinquent workman is proved and he was not fit to continue in service. In other words Mr. Mridul's contention is that the termination order shall be taken to have come into effect when it was approved by the Labour Court after enquiry against the delinquent workmen.
5. It is true that it is against all cannons of natural justice that a man may be punished without affording him an opportunity to prove himself innocent of the charges levelled against him and, therefore, if the punishment has been awarded without making an enquiry against the delinquent workman, the order of punishment in ordinary course of circumstances stands vitiated. The Supreme Court in Punjab National Bank Ltd. v. All India Punjab National Bank Employees' Federation and Anr. : (1959)IILLJ666SC has, no doubt, said while dealing with the scope of Section 33 of the Industrial Disputes Act that 'where the ban imposed by Section 33 of the Act has been defied and/or where a proper enquiry has not been held at all the action of the employer in dismissing his employee must be treated as void and inoperative.' But in this very judgment, their Lordships have said that in the matters of industrial adjudication tribunals should be slow to adopt any doctrinaire or legislates approach. They should as far as is reasonably possible avoid the temptation of formulating general principles and laying down general rules which purport to cover all cases. In view of these observations of their Lordships of the Supreme Court, a general law cannot be laid down that in all events if enquiry has not been made by the management before the punishment of dismissal or termination of service is awarded to its workman, the order shall stand vitiated even after the tribunal while adjudicating the industrial dispute makes an enquiry and arrives at a conclusion which lends support to the order passed by the management. In this very case of Punjab National Bank (1), their Lordships have observed in this connection as follows:
But it follows that if no enquiry has in fact been held by the employer, the issue about the merits of the impugned order of dismissal is at large before the tribunal and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved, and if yes, what would be proper order to make. In such a case the point about the exercise of managerial functions does not arise at all.
6. In the present case, the issue about the merits of the order impugned was at large before the Labour Court and both the parties led evidence in support of their stand. The Labour Court, after having gone into the oral as well as documentary evidence, arrived at a conclusion that the misconduct proved against the delinquent workman justified the order of termination of services. In such circumstances the Tribunal could not pass an order that the termination of services shall be deemed to come into effect on the day the award was pronounced by the Labour Court and till then the delinquent workman will be entitled to receive the back wages.
7. A very important question regarding the extent of jurisdiction of the Labour Court arises in this case. The Labour Court acquires jurisdiction about facts from the terms of its reference and it cannot therefore assume jurisdiction to decide the question which is not referred to it. The only question that was referred to the Labour Court in this case was whether the order of termination of service was legal and proper and to what relief the workman was entitled. The question relating to relief part could be answered by the Labour Court only when the order of termination of Shastri's services was found to be improper or unjustified. The Labour Court after recording the evidence adduced by both the parties applied its mind only to this accept of the matter whether the order of termination of Shastri's services was proper or not, and when it arrived at a definite conclusion that the order was proper and justified, then the question of awarding any relief to the delinquent workman did not arise. It may also be noted that when the Labour Court recorded that finding that the order of termination was proper, then that propriety of the order shall go back to the date when the order was passed. It cannot be said that the order became proper only from the date when the Labour Court pronounced its award. In this view of the matter, I feel that it was not within the competence of the Labour Court to have directed the employer to pay the back wages to the employee. If this award is upheld then it would mean that the order of termination became proper only from the date when the Labour Court declared it proper.
8. The Calcutta High Court in Walford Transport Ltd v. First Industrial Tribunal, West Bengal and Ors. 20 FJR 125 has held that where an Industrial Tribunal comes to the conclusion that the termination of the services of certain workmen was not by way of retrenchment, that the management was not influenced by extraneous consideration or improper motive and that the termination was justified, the Tribunal will not have any jurisdiction or discretion to award any relief or compensation to the workmen This view has also been adopted by the Punjab High Court in Daljeet and Co. Private Ltd v. State of Punjab and Ors. 23 FJR 419 and Capoor J. has observed:
Where the Tribunal finds that the dismissal of certain workmen was justified there would be no legal basis for awarding them any compensation for the period of their unemployment.
9. I am in respectful agreement with the law laid down by the Calcutta and Punjab High Courts and I feel that if the misconduct which was the basis for passing the order of termination is established to the satisfaction of the Labour Court and the Labour Court has given its verdict that the order passed by the management was justified, then there remains no ground for the workman to be compensated by allowing him to receive the back wages from, the employer. In the present case, Mr. Kasliwal submits that if this order of the Labour Court is allowed to stand, then the employer shall be required to to pay about Rs. 15,000/- to such an employee who was not fit to be kept in service even for a day. His contention has great weight. Simply because the management terminated the services of a delinquent workman without holding the domestic enquiry, he cannot claim that he must be re-instated in service till the order of termination was declared justified by the Labour Court. When the Labour Court chooses to make an enquiry in order to adjudicate the dispute referred to it, then whatever enquiry is made by the Labour Court would fulfil the lacuna left by the employer and it cannot justifiably be said by the delinquent workmen that the should be compensated for remaining out of employment till the impugned order is declared justified by the Labqur Court. In these circumstances, I feel that the award to this extent cannot be sustained whereby the back wages have been allowed to Shri Shastri by the Labour Court.
10. The writ petition is, therefore, allowed and the award of the Labour Court dated 28th January, 1970, to the extent to which it relates to the payment of back wages co Shri Shastri from the date of termination till the date of award is set aside. No order as to costs.