Cyriac Joseph, J. - (1.) JUDGMENT -
(2.) RESPONDENT 3 has filed reply to the show cause notice. learned Counsel for the petitioner and respondent 3 agree that writ petition can be disposed of at this stage itself. Accordingly the learned Counsel for the parties were The challenge in this writ petition is against the award dated 1.10.96 in ID No. 86/89. The dispute referred to the Labour Court for adjudication was whether the services of ShriAvinash Singh (respondent 3 herein) had been terminated illegally and/or unjustifiably by the management and if so, to what relief was he entitled and what directions were necessary in that respect. The Labour Court held that the dismissal of respondent 3 was illegal since no domestic enquiry was conducted. However, it was held by the Labour Court that the misconduct of the workman was of such nature that services of the workman were liable to be terminated. It was also held that there was no proper explanation on the side of the workman to justify his unauthorised absence from duty for a long period from time to time. It was further held by the Labour Court that the punishment of dismissal from service of the workman was justified. But relying on the judgment of the Hon'ble Supreme Court in Desk Raj Gupta v. Industrial Tribunal, IV, UP, Lucknow and Amr reported in 1991 SCC (L and S) 303, the Labour Court held that the workman was entitled to back wages from the date of dismissal till the date of the award. Aggrieved by the finding of the Labour Court that the workman is entitled to back waes from the date of dismissal till the date of the award, the management has filed his writ petition. Learned Counsel for the petitioner contended that in view of the judgment of Hon'ble Supreme Court in P. H. Kalyani v. Mis. Air Frnc Calcutta, reported in 1964 (2) SCR 104 The impugned award is liable to be set aside. In the abovejudgment the Hon'ble Supreme Court held 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 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... In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the Labour Court 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 Court's award came into operation must fail." Learned Counsel for the petitioner also pointed outthat in R. Thiruvirkolam v. The Presiding Officer and Anr., reported in JT 1996 (10) SC 369 the Hon'ble Supreme Court has held that the Constitution Bench decisionin Kalyani's case is the bonding authority on the point and that the decision in Desh Raj Gupta cannot be treated as an authority on the point. Learned Counsel for respondent 3 also agrees that in view of the judgments of the Hon'ble Supreme Court in Kalyani's case and R. Thiruvirkolam's case the finding of the Labour Court that the workman is entitled to back wages from the date of dismissal till the date of award is wrong. The learned Counsel for the respondent however contended that the finding of the Labour Court that the dismissal of the workman was justified is not correct. According to him the records relating to attendance and payment of wages were fabricated by the management and the Labour Court went wrong in relying on those records. First of all, respondent 3 has not challenged he award. Secondly, the workman had not contended before the Labour Court that the records were fabricated. Thirdly this Court under Article 226 of the Constitution of India cannot sit in appeal over the finding of Labour Court in disputed questions of fact or reappreciate the evidence. Hence the contention of the Counsel for respondent is devoid of merit. In these circumstances the petition is entitled to succeed. The award is liable to be set aside insofar as it holds that the workman is entitled to beckwages from the date of dismissal till the date of award. The writ petition is allowed and the impugned award is set aside to the extent motioned above. ;