DIVISIONAL SUPRINTENDENT SOUTH EASTERN RAILWAY BILASPUR Vs. ANNAJI KUMAR

JUDGEMENT

(1.) 1976 JLJ 855=1976 MPLJ 890 and that the respondent continued in service. The Labour Court by order dated 19th August 1978 held that in the absence of a summary enquiry the order of removal was a nullity and the respondent continued in service. On this finding, the Labour Court directed the Union of India to pay wages of the respondent from 4th August 1975 onwards along with the annual increments and other advantages deeming him to have continued in service ever since. It is this order which is challenged by this petition under Article 226 of the Constitution. Notice of this petition was issued to the respondent. Return has been filed by him. With the consent of the learned counsel for the parties, the petition was heard on merits.

(2.) 1969 MPLJ 327 a Division Bench of this Court accepted the analysis of Prof. Wade on this point and held that acts of public authorities are either lawful and valid or unlawful and void and that 'voidable' has never played a part in administrative law and should play no part now. It was further held that it is erroneous to suppose that an unlawful administrative act can have legal effect only if it is called voidable as opposed to void. If not challenged in law, or if the Court will not grant a remedy under the usual rules, a void act may have the effect of a valid act since it cannot be opposed. These views were affirmed in Union of India v. C. G. I. Tri Com - Lab. C (supra) and The New India Assurance Co, Ltd Bhopal v. Dalbir Singh and another, MP No. 47 of 1973 decided on 17 January 1980. In the latter case the Court quoted with approval a passage from professor Wade's Administrative Law, 4th addition, P. 300, which is to the following effect; "The reality of the matter is that the Court will invalidate a n order only if t he right remedy is sought by the right person ill 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." The normal remedy of the respondent was to get an industrial dispute referred under section 10 of the Act for challenging the order of removal Had such a dispute been referred, the respondent would not have secured reinstatement straightway, for the petitioner would have get opportunity to prove the misconduct on which the respondent's removal was grounded by producing evidence, even if there was no enquiry before passing of the order of removal. By ignoring the order of removal and by directing that the respondent is entitled to his wages and other benefits as if he continued in service, the Labour Court has granted a relief which could not have been granted under section 10 without giving opportunity to the petitioner to prove the misconduct. Such a jurisdiction cannot be exercised by the Labour Court. The order of removal until set aside in a proper proceeding had legal consequences and it could not be ignored by the Labour Court in a proceeding under section 33 -C (2). As, earlier stated by us, the point is entirely covered by the decision in Union of India v. C.G. I. Tri -Cum -Lab. C (supra), In that case the employee concerned had filed a writ petition which was dismissed on the ground of delay and the period of limitation for filing a suit to challenge the removal had become barred by limitation on the date when he applied to the Labour Court under section 33 -C (2). These facts, however, do not make any difference to the ultimate decision of this petition. The remedy under Art. 226 is discretionary and so is the remedy of declaration by suit. It cannot be said that the respondent was entitled as of right to get the relief of reinstatement had he filed a writ petition under Article 226 or brought a suit for declaration of the invalidity of the order, for the Court in these proceedings could have in its discretion refused to grant him the relief of reinstatement. The Labour Court, therefore. In our opinion, went wholly in excess of jurisdiction in entertaining the respondent's application and in virtually granting him the relief of reinstatement treating the order of removal completely null and void.