RAVANI, CJ. - (1.) THIS appeal is directed against the judgment and order passed by the learned Single Judge in S. B. Civil Writ Petition No. 51 of 1986 decided on February 24,1986. The learned Single Judge rejected the petition filed by the appellant petitioner challenging the legality and validity of award dated June 3,1985. By the said order the reference made by the appropriate Government has been rejected by the labour court. The dispute referred to the Labour Court was , as to whether the dismissal of the petitioner from service as Store Munshi was legal and valid. If not, to what relief he was entitled to ?
(2.) THE facts in brief leading to this appeal are as follows. THE petitioner was serving as Store Munshi in Mahi Bajaj Sagar Project Banswara on work- charge basis. He was suspended vide order dated October 21 1974 pending the enquiry. A charge-sheet was served upon him on October 22, 1974. After the conclusion of the depatmental enquiry he was ordered to be removed from service vide order dated August 31, 1976. In the departmental appeal before the Chief Engineer the petitioner failed. THEreafter he raised industrial dispute. THE appropriate government made reference vide order dated October 26, 1979. THE dispute referred to the Labour Court, Udaipur was as stated hereinabove. After recording evidence and hearing the parties the labour court rejected the reference as per award dated June 3, 1985. THE Labour Court answered the reference stating that the services of the claimant Raj Shekharan petitioner have been validly terminated by the non-claimants. He has got no right for reinstatement. He is not entitled to get any relief in the dispute. The aforesaid award was challenged before this Court by filing S. B. Civil Writ Petition No. 51 of 1986. The petition was heard by the learned Single Judge and it has been dismissed vide judgment and order dated February 24,1986. It is against this judgment and order that this special appeal is filed. It was contended before the learned Single Judge that the Labour Court held that the domestic enquiry held by the department was defective. The Labour Court by order dated June 16,1982 held that the enquiry report was required to be set aside and directed the parties to lead evidence before it. Therefore , it was contended that even if the Labour Court found on the basis of the evidence led before it and other material that the order of dismissal from service was justified, it could be operative only from the date of judgment and order of the Labour Court i. e. June 3, 1985 and not from the date of order of dismissal from service passed by the department i. e. August 31, 1976. After referring to the decision of the Hon'ble Supreme Court in the case of D. C. Roy V. The Presiding Officer, Labour Court and ors. (1), and the decision in the case of Gujrat Steel Tubes Ltd. v. Gujrat Steel Tubes Mazdoor Sabha and ors. (2), the learned Single Judge held that in the instant case a departmental enquiry was held against the petitioner and it was not a case of no enquiry. It was a case of defective enquiry. Therefore the learned single Judge held that the order of the Labour Court would relate back. On this ground the prayer for wages from the date of dismissal from service passed by the department i. e. August 31, 1976 till the date of award of the Labour Court dated June 3,1985, has been rejected. The other contention raised by the petitioner that the award passed by the Labour Court holding him guilty was based on no evidence and at any rate it was such that no reasonable man would come to the conclusion of guilt against the petitioner. Therefore, it was required to be quashed and set aside. The learned Single Judge held that he would not re-appreciate the evidence and in his opinion there was nothing to indicate that the award passed by the Labour Court was perverse so as to call for any interference. No other contention was raised before the learned Single Judge. In this appeal it is contended that the award passed by the Labour Court holding the petitioner guilty is based on no evidence. At any rate the Labour Court has failed to take into consideration the statement given by Murlidhar a co-employee. This statement was on the record of the departmental enquiry. According to the learned counsel for the petitioner in this statement Murlidhar admitted that he had returned slips for issuance of steel rods and, therefore the finding that he was guilty of removal of steel rods was contrary to law and facts. Despite limited scope of this appeal we permitted the learned counsel for appellant - petitioner to take us through the relevant part of the award and the evidence on record. It is evident that on June 11 , 1974 June 14,1974 and June 21, 1974 the appellant petitioner was incharge of the Stores and his duty was to issue articles. On the aforesaid dates two drill rods were issued to Beldar Devi Singh. The issuance register clearly establish that the drill rods were issued by the Store-keeper. In this respect no explanation whatsoever has been rendered by the petitioner. This is a finding of fact arrived at by the Labour Court. Beldar Devi Singh was examined and in the evidence he stated that he had never taken any drill rod measuring 2 1/2 feet long from Store at Dam site. He further stated that no such drill rods were ever issued to him. Thus the petitioner's case that the drill rods were issued and taken by Devi Singh stands controverted and has not been supported by Devi Singh. The Labour Court further held that no explanation was rendered by the petitioner as to how the drill rods measuring 2 1/2 feet got issued from the Store when they were never requisitioned by any person at that time. Thus on the basis of the documentary, oral and other circumstantial evidence the Labour Court has come to the conclusion that the guilt against the petitioner was proved. He has been held to be guilty of misappropriating two drill rods. The Labour Court held that if Murlidhar had issued such drill rods it was open to the petitioner to examine Murlidhar in support of his case. Simply because it is alleged by the learned counsel for the appellant petitioner that there is a statement on record alleged to have been given by Murlidhar it cannot be held that the Labour Court has passed the award contrary to law. It may be noted that Murlidhar has not been examined as witness. He has not been subjected to cross-examination. Therefore, the Labour Court has committed no error in not relying upon such statement. In view of the aforesaid position of facts and circumstances, the contention that the award is perverse, inasmuch as no reasonable person could come to such a conclusion, cannot be accepted.
(3.) LEARNED counsel for the petitioner submitted that by order dated June 16, 1982, Annexure 15 to the petition, the Labour Court allowed the application of the department to lead evidence in order to justify the order of dismissal. When the Labour Court passed this order, it held that in its opinion charge-sheet was not legal and valid nor the enquiry officer has given clear report. The enquiry report which has been submitted against the petitioner was not based on evidence. The conclusion which has been arrived at was also not based on evidence. Therefore, the enquiry report was not proper and the order of dismissal from service based on such report was illegal. After coming to this conclusion the Labour Court directed that the enquiry report submitted by the department be set aside. The Labour Court further directed that the application submitted by the respondent- department for permitting it to lead evidence be accepted and the department was permitted to lead evidence before the Labour Court. On the basis of this order and in view of the finding of the Labour Court that the enquiry was not just and fair, the petitioner should have been ordered to be paid the wages from the date of dismissal i. e. August 31,1976 up to the date of the award i. e. June 3, 1985. The learned Single Judge did not grant this prayer on the ground that it was a case of defective enquiry and it was not a case of no enquiry. In the opinion of the learned Single Judge if the enquiry was defective then the order that may be passed by the Labour Court after appraisal of the evidence would relate back. The learned Single Judge held that only in cases where the order of punishment is passed without holding any enquiry whatsoever the order of labour court would not relate back. While arriving at the aforesaid decision the learned Single Judge relied upon the decision of the Supreme Court in the case of D. C. Roy (Supra ). In the case of D. C. Roy (supra), the Supreme Court did not lay down the proposition of universal applicability that whenever an order of dismissal is passed at the conclusion of the domestic enquiry and the enquiry is held to be defective the order that may be passed by the Labour Court on re-appraisal of fresh evidence would always relate back. In this connection the observations made by the Supreme Court in para 13 of the reported decision are required to be taken into consideration. ``we would however like to add that the decision in P. H. Kalyani's case (AIR 1963 SC 1756) is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non est. On an appropriate occasion , it may become necessary to carve an exception to the ratio of Kalyani's case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employee's interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the `relation-back' doctrine. " In this connection reference may be made to the decision of the Supreme Court in the case of Gujrat Steel Tubes Ltd V. Gujrat Steel Tubes Mazdoor Sabha (supra ). In para 152 of the reported decision the Supreme Court observed as follows : "kalyani (1963) 1 Lab LJ 679: (AIR 1963 SC 1756) was cited to support the view of relation back of the Award to the date of the employer's termination orders. We do not agree that the ratio of Kalyani corroborates the proposition propounded. Jurisprudentially, approval is not creative but confirmatory and therefore relates back. A void dismissal is just void and does not exist. If the Tribunal, for the first time, passes an order recording a finding of misconduct and thus breathes life into the dead shell of the Management's order, pre dating of the nativity does not arise reference to Sasa Musa (AIR 1959 SC 923) in Kalyani enlighters this position. The latter case of D. C. Roy V. Presiding Officer, Madhya Pradesh Industrial Court, Indore (Supra) specifically refers to Kalyani's case and Sasa Musa's case and holds that where the Management discharges a workman by an order which is void for want of an enquiry or for blatant violation of rules of natural justice, the relation-back doctrine cannot be invoked. The jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes to being de novo, and an order, which may suffer from some defects but is not still - born or void and all that is needed in the law to make it good is a subsequent approval by a tribunal which is granted , cannot be obfuscated. " In view of the settled legal position as stated above, what is required to be seen by the court is not whether it is a case of no enquiry or it is a case of defective enquiry. The question which is required to be examined by the court is , as to whether the order passed by the department at the conclusion of the domestic enquiry is illegal and void or it suffers from some defects , but is not still-born or void. If the order passed on conclusion of the domestic enquiry is merely defective in law it could be made good by subsequent approval that may be granted by Labour Court or tribunal , but if the order is void it cannot be confirmed or approved. Thus the distinction which is required to be made is from the point of view of the order passed at the conclusion of the domestic enquiry. The distinction is not required to be made from the point of view as to whether it is a case of no enquiry or it was a case of defective enquiry. ;