Bombay High Court
Shankar Amrita Deshmukh vs Paper & Pulp Conversions Ltd. & Ors. on 29 March, 1995
Equivalent citations: 1995(4)BOMCR46, [1995(71)FLR859], 1996(1)MHLJ765
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. These three Petitions under Article 226 of the Constitution of India are directed against three Awards made by the Labour Court, Thane in Reference (IDA) No. 98 of 1980. Reference (IDA) No. 101 of 1980 and Reference (IDA) No. 99 of 1980 under the provisions of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act'). Though there were three separate References and three Awards by the Labour Court, Thane, the facts and legal issues being almost the same, it would be convenient to dispose of all three Writ Petitions by a common judgment.
2. The Petitioners in these three writ petitions were employed in the factory of the 1st Respondent at Khopoli Village in District Raigad. The services of 10 workmen, including the three Petitioners, were terminated from 28th June 1979 on the ground that continuation of their services in the employment of the 1st Respondent was detrimental to the Company's interest. All the ten workmen who were thus removed, raised industrial disputes for reinstatement in service with full back wages. During the course of conciliation proceedings, two of such workmen (other than the Petitioners) were taken back on their giving written apologies and written undertaking regarding maintaining discipline and proper production. Four workmen settled their disputes directly with 1st Respondent on monetary basis and four workmen, including the three present petitioners, pursued their disputes resulting in references being made under Section 10 of the Act to the Labour Court at Thane. The reference of the Petitioner in Writ Petition No. 3650 of 1980 was numbered as Reference (IDA) No. 98 of 1980, Reference of the Petitioner in Writ Petition No. 3651 of 1988 was numbered as Reference (IDA) No. 101 of 1980 and the Reference of the Petitioner in Writ Petition No. 3652 of 1988 was numbered as Reference (IDA) No 99 of 1980. Out of the said four cases referred to the Labour Court, only three have come up and are the subject matters of the present writ petition Nos. 3650 of 1988, 3651 of 1988 and 3652 of 1988.
3. Before the Labour Court, the 1st Respondent employer admitted that no allegations of misconduct were levelled against the petitioners, nor were they served with charge sheets alleging misconduct on their part, much less was any domestic inquiry held. The case of the 1st Respondent throughout was that under the circumstances existing at the material time, the collective conduct of the workmen was such that it was considered prejudicial to the business interest of the 1st Respondent to continue the workmen in service. The 1st Respondent led voluminous evidence, both oral and documentary. A number of reports, contemporaneously made about the collective conduct of the workmen including the present petitioners and complaints of repeated acts of disruption of work, gherao and so on, were placed on record. Some of the officers who had received such reports, and were also witnesses to some of the incidents, were examined by the 1st Respondent before the Labour Court in support of its case. In all, 15 witnesses were examined by the 1st Respondent, in support of its case, evidence being common in all the three References. Each of the writ petitioners also gave evidence on oath in his own support, but did not chose to lead any further evidence. Upon appreciation of all the evidence on record, the Labour Court, in each impugned Award rejected the contention of the workman that his service was terminated as he and other workmen had refused to sign a settlement with the 1st Respondent and recording a clear finding that there was reason to believe that the continuation of the workman in the service of the 1st Respondent was detrimental to its interest. The Labour Court also recorded a finding that each of the workman was guilty of gross acts of indiscipline which, by themselves, would be sufficient to sustain the plea of loss of confidence, as it would be hazardous and prejudicial to the interest of discipline to retain such a workman in service. In this view of the matter although the Labour Court did not hold the action of the employer as illegal or unjustified, considering that each of the workman was not gainfully employed during the interregnum, it directed the 1st Respondent to pay Rs. 50,000/- by way of compensation, without granting the relief of reinstatement in service of full back wages as demanded. Being aggrieved by the three impugned awards, the Petitioners are before this Court.
4. Mr. V. K. Pradhan, learned Advocate for the Petitioners, urged that the Labour Court erred in not granting reinstatement on the basis of total misappreciation of the evidence. He invited the Court to differ from the Labour Court on the factual findings, as, according to him, the material placed on record did not at all warrant the conclusions which the Labour Court has drawn as to the collective conduct of the workmen during the material time. Through, normally it is not the function of the High Court exercising jurisdiction under Article 226 of the Constitution of India to reappraise the evidence on record, I did give an opportunity to Mr. Pradhan to take me through the evidence of some of the witnesses. Even after this exercise, I am not satisfied that the factual conclusions drawn by the Labour Court are perverse or that they are so unreasonable as to require interference in writ jurisdiction. Despite Mr. Pradhan's strenuous effort at reading each sentence of the evidence given by the witness and contending that the learned Judge ought not to have accepted the evidence of a particular witness as against the evidence given by the workman, and his valiant urging that there were inherent inconsistencies and improbabilities in the evidence, I remain unimpressed. Basically, it is the function of the Labour Court to assess the evidence and arrive at its conclusion. It is only if this Court is satisfied that the process of deciding is perverse or unconstitutional that interference on conclusions of fact is permissible in writ jurisdiction. In the present case, despite anxious scanning of the evidence on record, it is not possible to reach such a conclusion. I, therefore, decline to re-examine the correctness of the factual findings recorded by the Labour Court. The argument based on incorrect appreciation of evidence must, therefore fail.
5. Mr. Pradhan then contended that, even ex-facie, discrimination was writ large on the faces of the dismissal orders. He urged that, out of the 10 workmen, who were dismissed under identical circumstances, while some had been taken back, and some had been allowed to settle their disputes on payment of monetary compensation, only the three present writ petitioners were given no relief. Though, prima facie attractive, this argument also deserves to be rejected as it ignores the factual matrix in which the argument is presented. The evidence on record and the conclusions recorded by the Labour Court show that, though all the 10 workmen were said to be equally guilty, when the dispute reached the conciliation stage, two workmen had chosen to tender written apologies and written undertakings resulting in their reinstatement in service. The written apologies and written undertakings were the principal factors which distinguished their cases from the cases of the present petitioners. As to the circumstances under which the other five workmen settled with the 1st Respondent, no facts were pleaded or proved before the Labour Court and, therefore, it is not possible to draw any inference therefrom. Mr. Pradhan then contended that, if the present three Petitioners had been given an opportunity, they would have also given written apologies and written undertakings in the same manner as done by the other two workmen who were reinstated. By not giving such an opportunity, the 1st Respondent discriminated against the present petitioners, according to Mr. Pradhan. In my view, this argument is fallacious. A workman who wants to apologies can do so genuinely feeling contrite conscious. There is nothing like giving opportunity for giving an apology. There is no evidence to show that a written apology was attempted to be tendered to the 1st Respondent by the Petitioners, either by hand or by postal communication, or that such an apology was rejected. Had such apologies and undertakings on the same terms been tendered, then perhaps, there may have been some basis for advancing such a contention. There is no evidence on record to show that the 1st Respondent employer had in any way prevented the Petitioners from giving such apologies or undertakings. In my judgment, therefore, the argument of discrimination must fail, as the Writ Petitioners had at no time tendered apologies and undertakings as done by the other two workmen who were reinstated by the 1st Respondent.
6. Mr. Pradhan then raised the contention that, even if the Court comes to the conclusion that the case of the 1st Respondent made out for dismissal of the three Petitioners could be held to have been sufficiently proved and accepted by the Labour Court upon the evidence tendered before the Labour Court for the first time, the 1st Respondent was liable to pay full back wages for the period from the date of dismissal of each to the Petitioners till the date of their respective Awards. He strenuously urged that this is the position in law as laid down by three judgments of the Supreme Court in D. C. Roy v. Presiding Officer, Labour Court, Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha AIR 1980 SC page 1986 and Desh Raj Gupta v. Industrial Tribunal IV Lucknow, . In his submission, these three judgments of the Supreme Court lay down, in unmistakable terms, that in a situation where there is no inquiry preceding an order of dismissal or an inquiry so blatantly violative of principles of natural justice as to amount to no inquiry, even if the order of dismissal is subsequently upheld by the Tribunal on the evidence adduced before it, there can be no application of the "relation back" doctrine and the other of dismissal would become operative from the date on which the Tribunal upholds the orders. For the interregnum between the date of the dismissal order and the date on which the Tribunal upholds it, the employer is liable to pay full back wages, is the principal laid down in these three judgments of the Supreme Court, in the submission of learned Advocate.
7. Although, in Rambhau S/o Vyankuji Khorgade v. Maharashtra State Road Transport Corporation, Nagpur, 1992 II CLR 581, the proposition canvassed by the learned counsel has not only been seriously doubted, but even rejected in emphatic terms after a review of all the relevant authorities, in view of the fact the learned counsel brought to my knowledge two subsequent judgments of learned single Judges of our Court in Ahmedmiya Ahmedji v. The Indian Hume Pipe Co. Ltd. & Ors. 1994 II CLR 206 and Bharat Petroleum Corporation Ltd. v. Ramnath Jagdish Tiwari & Ors. 1994 II CLR 1117, I think it would be necessary to consider the argument on first principles, as culled out from the authorities of the Supreme Court, and thereafter to express my view in the matter.
8. When an industrial dispute is referred for adjudication to a Labour Court under Section 10(1) read with Section 7 of the Act, the Labour Court has jurisdiction, inter alia, to adjudicate an industrial dispute relating to any of the industrial mattes enumerated in Schedule II. Item 1 of Schedule II pertains to adjudication of the propriety or legality of an order passed by an employer under the Standing Orders. Item (3) pertains to adjudication of a dispute with regard to "discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed". Section 11A, which was inserted in the Industrial Disputes Act, 1947 (by Act 45 of 1971) provides that where an industrial dispute relating to discharge or dismissal of a workman has been, inter alia, referred to a Labour Court for adjudication, if the Labour Court or Tribunal is satisfied that the order of discharge or dismissal was not justified, it may (a) set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit, (b) can give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal, as the circumstances require. The Statute received the assent of the President on 8th December 1971 and Section 11A was brought into effect from 15th December 1971.
9. The position in law as to the jurisdiction of industrial adjudicators to interfere with orders of dismissal or discharge passed against the workman, the different circumstances under which they could do so and the limits of their jurisdiction, were laid down in a number of judgments of the High Courts and the Supreme Court from time to time, over a period of about 23 years. It would neither be necessary, nor convenient, to refer to all of them. Fortunately for us, in Workmen of M/s. Firestone Tyre & Rubber Co. if India P. Ltd. v. The Management and Ors. AIR 1970 SC 1227, the Supreme Court considered the changes brought about in the law as a result of the insertion of Section 11A in the statute book. In doing so, the Supreme Court traced out the history of industrial adjudication with reference to order of discharge and dismissal and, after an exhaustive survey and analysis of all extant judgments on the subject, culled out ten cardinal principles. In paragraph 27 of the judgment, the Supreme Court observed :
"27. From those decisions, the following principles broadly emerge :-
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before its for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to unable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in the Management of Panitole Tea Estate v. The Workman, within the judicial decision of a Labour Court of Tribunal."
10. Three types of cases could arise for consideration : - (a) Where a legal and proper domestic enquiry precedes the order of discharge, dismissal or discharge, (b) a domestic enquiry preceding such an order is defective and (c) a case where there was no domestic enquiry held before the order of termination of service was passed. Propositions 4 and 5, evolved by the Supreme Court reproduced above, are material to us. These propositions make it clear that a mere failure to hold an inquiry, per se, was never considered so serious as to render the order of discharge or dismissal void and inoperative. That is why the judgments of the Supreme Court, including the Firestone case (supra), emphasise that, even in a situation where no inquiry has been held, the Tribunal had to satisfy itself about the legality and validity of the order and, in order to do so, it had to give an opportunity to the employer and the employee to adduce evidence on the merits.
11. The Supreme Court pointed out that the legal effect of an inquiry not being held prior to the passing of an order of dismissal was that, in such a case, the Tribunal would be freed of the limits on its jurisdiction as the issue of the merits of the impugned order of dismissal or discharge would be at large before the Tribunal and, on the evidence before it, the Tribunal has to satisfy itself whether the misconduct alleged was proved. It was pointed out that in such a case, there was no question about the exercise of managerial functions, as it was the Tribunal who had to assess the evidence and make findings as to the fact of misconduct and also decide the appropriate punishment. The Supreme Court was at pains to emphasise that "a case of defective inquiry stand on the same footing as no inquiry". The Supreme Court explained the legal effect of not holding a domestic inquiry in proposition 7 (supra) and observed, it has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee once it is found that no domestic inquiry has been held or the said inquiry is found to be defective". Finally, as to the consequence of the action of the employer being approved by the Tribunal, on the evidence recorded before it, the Supreme Court pointed out, "once the misconduct is proved either in the inquiry conducted by the employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation". This then was the law as it stood prior to the insertion of Section 11A of the Act.
12. As to the change in the law consequent to insertion of Section 11A in the statute book, the judgment in Firestone (supra) points out that, now, both in the case where a domestic inquiry has being held and also in a case where the Tribunal considers the matter on evidence adduced before it for the first time, it has to consider the evidence and come to the conclusion about the justifiability of the action, one way or the other. Even in a case where an inquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case an hold that no misconduct is proved on the material on record in the enquiry. In paragraph 37 the Supreme Court says, "Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A." The third change pointed out by the Supreme Court was that the Tribunal's power to interfere with the punishment has been enlarged, and, even if the Tribunal holds that the misconduct was proved. Section 11A confers powers on it to take the view that the proved misconduct does not merit the punishment of discharge or dismissal, but a lighter punishment. The Tribunal, therefore, has jurisdiction even to interfere with the quantum of punishment.
13. While on the judgment of Firestone (supra), it is necessary to notice an argument which was made before it emphatically rejected, since the same argument was reiterated by Mr. Pradhan. The argument in effect was that Standing Orders had a statutory flavour as they were binding in accordance with provisions of the Industrial Employment (Standing Orders) Act, 1947. Consequently, any contravention of the Standing Order would straightaway render the order of dismissal illegal, inoperative and void, was the submission of the learned counsel. In paragraph 39 of the judgment in Firestone (supra), we notice that the same argument was advanced and rejected by the Supreme Court by pointing out that there is no provision, either in the Industrial Dispute Act or under the provisions of Industrial Employment (Standing Orders) Act, 1946, which provides that an order of dismissal or discharge is illegal if not preceded by proper and valid domestic enquiry.
14. Even prior to the judgment in Firestone (Supra), the Supreme Court had occasion to consider and indicate the consequence of an order of dismissal being passed by an employer without holding any domestic inquiry as required by the Standing Orders. In Workmen v. Motipur Sugar Factory, , the Supreme Court observed, "It is now well settled by number of decisions of this Court that where an employer has failed to make an inquiry before dismissing or discharging a workman, it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case, the employer would not have the benefit which he had in case where domestic inquiry have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into limited questions open to a Tribunal where domestic inquiry has been properly held (See Indian Iron & Steel Co. v. Their Workmen 1958 SCR 667), but also to satisfy itself on the facts adduced before it by the employer, whether the dismissal or discharge was justified. We may in this connection refer to M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan , Phulbari Tea Estate v. Its Workmen, , and Punjab National Bank Ltd. v. Its Workmen, . These three cases were further considered by this Court in Bharat Sugar Mills Ltd. v. Its Workmen and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarth Sinha v. Belsund Sugar Co. Ltd., 1954 Lab AC 697. It was pointed out that the important effect of omission to hold an inquiry was merely this; that the Tribunal would not have to consider only whether there was a prima facie case, but would decide for itself on the evidence adduced whether the charges have really been made out. It is true that three of these cases, except Phulbari Tea Estate's case were on applications under S.33 of the Industrial Disputes Act, 1947. But, in principle we see no difference whether the matter comes before the Tribunal for approval under S.33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case, if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper.
15. In D. C. Roy v. The Presiding Officer, Labour Court, , though following the law as it then stood, the Supreme Court sounded a note of caution for future. In D. C. Roy's case (supra), the Labour Court had found that the domestic enquiry held was defective as it infringed the principles of natural justice. The employer was permitted to lead evidence on merits of the charge before the Labour Court. On appraisal of the evidence before it, the Labour Court found that the order of dismissal was justified. The question then was whether the workmen would be entitled to back wages from the date of dismissal until the date on which the Labour Court by its Award upheld the order of dismissal. Relying on a 5-Judge Bench judgment in P. H. Kalyani v. M/S. Air France, Calcutta , the Supreme Court rejected the contention that back wages had to be necessarily directed for the period from the date of dismissal till the date on which the Labour Court upheld the order of dismissal by its Award. Incidentally, in Kalyani's case the Supreme Court laid down what is now known as the Doctrine of "relation-back". The material observations in Kalyani's case (supra) are, "The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the enquiry 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 bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the 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 conclusions 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."
It must be remembered that in Kalyani's case, the employee had been dismissed by the company after a defective inquiry and the employee challenged the order of dismissal by filing an application under Section 33A of the Industrial Disputes Act, 1947. After adverting to these observations in Kalyani's case, the Supreme Court in D. C. Roy's case says (paragraph 8), "These observations directly cover the case before us because, though the Labour Court, in the instant case, found that the inquiry was defective as it infringed the principles of natural justice, it came to the conclusion after considering the evidence adduced before it, that the dismissal was justified. The Award of the Labour Court must therefore relate back to the date when the order of dismissal was passed on the termination of the domestic enquiry". These observations of the Supreme Court with regard to the facts of the case before it could leave no one in doubt that the Supreme Court in terms approved and applied the doctrine of relation back evolved in Kalyani's case (supra) even in D. C. Roy. After having disposed of the case, en passant, the Supreme Court sounded a note of caution which is incorporated, quite appropriately, in the terminal portion of the judgment in paragraph 13 thus :
".. We would, however, like to add that the decision in P. H. Kalyani's case is not to be construed as a charter for employers to dismiss employers to dismiss employees after the pretense 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 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. But we will not pursue the point beyond this as the facts before us to do not warrant a closer consideration thereof."
16. In my view, the observations in paragraph 13 of D. C. Roy's case do not amount either to ratio decidendi, or even obiter dicta. That it is not ratio decidendi, is obvious from the fact that the judgment in terms approves of the relation-back doctrine evolved in Kalyan's case and applies it to the facts of the case before it. In fact, the Appeal before the Supreme Court was decided on the basis of application of Kalyani's case which was in terms approved.
17. Is it possible to say that the observations of the Supreme Court in paragraph 13 amount to obiter dicta, which could be considered to have binding force ? It is necessary to notice same judgments on this issue.
18. In the celebrated case Mohandas v. Sattanathan, LVI Bombay Law Reporter 1156, the Division Bench of this Court, had occasion to consider the obiter dicta of the Supreme Court and the legal effect thereof. To quote the felicitous words of Chief Justice Chagla, ".... Before we turn to the judgment of the Supreme Court, it is necessary to have our mind clear as to what is an obiter dictum which has a binding effect upon a Court. It is rather significant to bear in mind that in England an obiter dictum has no binding effect either upon a co-ordinate Court or upon a subordinate Court. An obiter dictum, especially of an eminent judicial tribunal like the Privy Council or the House of Lords, would undoubtedly be entitled to the highest respect. But a judge in England would not feel that he would be bound by an opinion expressed by the higher tribunal. In India, we have perhaps advisedly - made a departure from the principle operating in England with regard to obiter dicta. At a time when the Judicial Committee of the Privy Council was the highest judicial tribunal in the Empire, as it then was, the Court in India felt that it would be in the interests of judicial uniformity uniformity and judicial discipline if not only they accepted the decisions of the Privy Council, which indeed were binding upon them, but also accepted the obiter dicta of the Privy Council as binding upon them. The feeling was that, if the Privy council expressed an opinion on a point which, although not necessary for decision, clearly indicated the opinion formed by the Privy Council on a question of law and treat that pronouncement as binding. The Supreme Court has now taken the place of the Privy Council and we would like to say unhesitatingly that we must show the same respect for the obiter dicta of the Supreme Court that we did for those of the Privy Council. The Supreme Court is the highest judicial tribunal in India today and it is as much necessary in the interests of judicial uniformity and judicial discipline that all the High Courts must accept as binding the obiter dicta of the Supreme Court in the same spirit as the High Courts accepted the obiter dicta of the Privy Council...." This passage reproduced from the judgment in Mohandas v. Sattanathan (supra) clearly brings out the reason why obiter dicta of the Judicial Committee of the Privy council, and now the Supreme Court, need to be respected and considered as binding law. The learned Chief Justice explains, in the next paragraph of the judgment, the distinction between ratio decidendi and obiter dictum and says :
"... Now, an obiter dictum is an expression of the opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But, in both cases points must arise for the determination of the tribunal. Two questions may arise before a court for its determination. The Court may determine both, although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the ratio decidendi; the opinion of the tribunal on the question which was not necessary to decide the case would be only an obiter dictum. Mr. Palkhivala's contention is that an obiter dictum is any definite opinion expressed by the higher tribunal whether the point arise before it or not. Mr. Palkhivala has attempted to make a distinction between an opinion and a definite opinion. He says that, if the higher court says that a certain view may be possible, then it is not a definite expression or opinion, but if the tribunal definitely expresses its opinion, and not merely tentatively, then it is unnecessary for us to consider whether any points arose for determination before the higher authority, and the mere expression of opinion itself, provided it is definite, would become an obiter dictum, and, in India, binding upon the courts if the obiter dictum is that of the supreme court. In our opinion, that argument appears to be entirely untenable. The very reason why the courts in India agreed to bound by the obiter dicta of the privy council was that the highest judicial authority in the Empire had applied its mind to a question of law which arose before it for its determination; and however unnecessary it was for it to decide that question, having expressed an opinion on that point it became an authoritative pronouncement on that question of law, and the privy Council, by deciding that question of law, set its seal of a approval upon that question of law. It cannot be suggested that the doctrine of obiter dicta was so far extended as to make the Courts bound by any and every expression of opinion either of the Privy Council or of the Supreme Court, whether the question did or did not arise for the determination of the higher judicial authority." Respectfully agreeing with the ringing observations of chief justice Chagla's I am of the view that the observations made by the supreme court in paragraph 13 of D. C. Roy's amount neither to radio decidendi of the case, nor even obiter dicta. I am of the considered view that the observations in paragraph 13 of the judgment in D. C. Roy (supra) indicates the progressive thinking of the supreme court, intended more as a caution to the employers in the country to modulate their conduct by sounding an ominous note, and nothing more.
19. In Lalla Ram v. Management of D.C.M. chemicals works Ltd. and Another AIR 1978 SC 1005, a two judge Bench of the Supreme Court considered several of the judgments including Kalyani case and Firestone and observed (vide paragraph 12), "... If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find on its own assessment of the evidence adduced before it, whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which also relate back to the date when the order was passed; provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him...." The case was a case of an application for approval of dismissal for misconduct after holding domestic inquiry which was found to contain no defects. Though the supreme court noticed the observation in Kalyani in paragraph 10 of its judgment, including the doctrine of relation-back theory evolved therein the Supreme court gave no indication that it was taking different view of the situation. Indeed, it would not have been possible to take a contrary view as Kalyani was a case decided by a Bench of five judges, while Lalla Ram was decided by a Bench of two judges,.
20. In Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha , however, a discordant not appears to have been struck by a Bench of three judges. This Bench could not have over ruled the relation-back doctrine evolved in Kalyani which was a judgment delivered by a Bench of five judges. Incidentally, out of the three learned judges who decided Gujarat Steel Tubes, Koshal, J. dissented from the judgment of Krishna Iyer, J (for himself and D. A. Desai, J.). In the opinion of Koshal, J. the order passed against the workmen was a bona fide order of simpliciter termination which was liable to be upheld as well within the powers of the employer under the standing orders. The learned judge was also of the view that the High Court could not have interfered with the punishment while acting under Article 227 with the findings recorded by the Arbitrator. The learned judge concluded that the judgment of the High court had to be reversed and the appeals allowed. The majority judgment delivered by Krishna Iyer, J., for himself and D. A. Desai, J., however, made certain observations, on which strong reliance is placed for the proposition canvassed so strenuously before me. These observations are to be found in paragraphs 152 and 153 of the judgment. Since the contention appears to be based on these observation, it is necessary to reproduce them. The observations of the majority judgment in Gujarat Steel Tubes (paragraphs 152 and 153) are as under :
"152. Kalyani was cited to support the view of relation back of the award to the date of the employers' 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. The reference to Sasa Musa in Kalyani enlightens this position. The latter case of D. C. Roy v. Presiding officer, Madhya Pradesh Industrial Court, Indore (supra) specifically refers to Kalyanis' 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 into being do novo, and an order, which may suffer from some defects but is not stillborn 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.
153. We agree that the law stated in D. C. Roy Supra is correct but now that the termination orders are being set aside, the problem does not present itself directly. Even the other alternative submission of Sri Tarkunde that if the plea of the Management that the order is a discharge simpliciter were to be accepted, the result is a retrenchment within the meaning of Section 2(00) which in this case is in violation of S. 25F and therefore bad, is not a point urged earlier. We are disposed to stand by the view that discharge, even where it is not occasioned by a surplus of hands, will be breadth of the definition and its annotation in AIR 1977 SC 31. But the milled in which the order was passed in February 1973 is not fully available, viewed from this new angle. So we decline to go into that contention."
21. In the first place though the observations in paragraph 152 appear to indicate that in D. C. Roy it has been held that if the management discharges a workman by an order without any inquiry or blatantly violating rules of natural justice, the relation-back doctrine could not be invoked, as already seen from the judgment in D. C. Roy such a proposition was not actually laid down in the judgment in D. C. Roy. Interestingly, in paragraph 153, the majority judgment in Gujarat Steel itself says, "We agree that the law stated in D. C. Roy (supra) is correct, but now that the termination orders are being set aside, the problem does not present itself directly". As far as the termination orders of the workmen in the case before the supreme Court were concerned, the Supreme Court set aside the orders and reinstated the workmen and therefore, there was no occasion to consider the applicability or non-applicability of the theory of relation-back once again, there is no such ration decidendi in this judgment as urged by the learned Advocate. In fact, the issue about relation-back did not arise for consideration at all in the judgment, nor was it one of the issues in which relief was granted or refused.
22. The last judgment on which reliance is placed is the judgment of Desh Raj Gupta v. Industrial Tribunal IV, Lucknow and Anr., AIR 1990 SC 2175. The observation in paragraph 9 of this judgment make it clear that there is no such ratio laid down here as contended by the learned Advocate. Says the Supreme Court in paragraph 9, "The second ground urged in support of the appeal appears to well founded. The learned counsel is right in relying on the observations in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha , that if the order of punishment passed by the management is declared illegal and the punishment is upheld subsequently by a labour tribunal, the date of dismissal cannot relate-back to the date of the illegal order of the employer...." In the case before the Supreme court which arose under the corresponding provisions of the U.P. Industrial Disputes Act, 1947, workman had been dismissed after holding an inquiry. The Tribunal adjudicating the dispute held that the domestic enquiry was vitiated in account of violation of principle of natural justice. Though there was no application filed on behalf of the employer seeking permission to justify the punishment by leading evidence, the Tribunal called upon the employer to lead evidence which the employer did. The Tribunal upon appreciation of the evidence recorded found that the charges levelled were established on the material on record and, therefore, the workmen were not entitled for any relief. All that happened was the domestic enquiry conducted by the employer prior to the order of dismissal was held vitiated and the employer was directed to lead evidence to justify the misconduct on merits and the employer succeeded in doing so before the Tribunal. It is true that the Supreme Court directed payment of wages from the date of dismissal to the date on which dismissal order was upheld by the Tribunal on the basis of the evidence led before it, but there is no such discernible principle laid down in this case as has been canvassed at the bar. I am afraid that it is not possible to read sub silentio, such a seminal principle, in this judgment.
23. These then are the three judgment of the Supreme court on the basis of which it was very strenuously contented that the doctrine of relation-back had been thrown overboard in case where the domestic inquiry is either not held, or was blantantly violative of principles of natural justice as to amount of no inquiry at all. I may usefully refer to the judgment of a Learned Single Judge of this court in Ram Bhau's case (supra). The learned judge (Patel, J.) after a detailed and careful analysis of all the concerned judgments came to the conclusion that there was no law within the meaning of Article 141 of the Constitution of India Laid down by the Supreme Court either in D. C. Roy or Gujarat Steel Tubes or in Desh Raj (supra) to the effect that, if there was no inquiry or there was a grossly defective inquiry, the doctrine of respectful agreement with the reasoning of Patel, J. in Rambhau (supra)
24. Mr. Pradhan then brought to my notice two other judgments of learned single judges of this Court. In Ahmedmiya Ahmedji's case (supra), Dhanuka, J., after considering the arguments was unable to agree with the view taken in Rambhau's case and directed that the matter be referred to the learned chief justice for being placed before the Bench of two Judges. Apart from the view of the learned Judge that he was unable to persuade himself to agree with the view taken by Patel, J., in Rambhau's case and the judgment of Agarwal, J., in Basu Deba Das v. M. R. Bhope and Anr., 1991 LIC 1677, the learned Judge has not given any reasons which impelled him to did agree. Since no reasons are advanced. I am deprived of the benefit of knowing the reasons.
25. Another judgment brought to my notice is the judgment of this Court by Tipnis, J., in Bharat petroleum corporation Ltd. v. Ramnath Jagdish Tiwari and Ors. (supra). In this judgment, the learned single judge was of the view that the Supreme court had considered its previous judgment and made observations in D. C. Roy, Gujarat Steel Tubes and expressly stated as to what was the ratio of earlier judgments and, therefore, the said statement of law and expression could not be probed any further. The learned judge was of the view that not only the ratio and Obiter dicta of Apex Court is binding on this court, but also decisions of the Apex Court on the point as to what a particular decision of the supreme court lays down.
26. Article 141 of the Constitution of India, provides, "The Law declared by the supreme Court shall be binding on all courts within the territory of India." The constitutional provision clearly indicates that what is binding is the law declared. I have already indicated as to why I am enable to agree with the contention of the learned Advocate that the three judgments of the Supreme Court referred to in D. C. Roy, Gujarat Steel Tubes and Desh Raj Gupta have laid down the proposition of law as canvassed. I do not agree that these judgments have declared any law on the subject within the meaning of Article 141 of the Constitution to make it binding. In these circumstances, I am unable to accept the contention so vehemently and persistently canvassed at the bar by Mr. Pradhan. I am also respectfully, unable to subscribe to the opinion expressed by the learned single judges of this court in Ahmedmiya Ahmedji's case and Bharat Petroleum corporation Ltd's case. I would respectfully prefer to follow the reasoning in Rambhau's case and hold that, even in a case of no inquiry, the doctrine of relation back' applies. In my view, there is neither statue, nor precedent, to the contrary. The ominous not sounded by the supreme Court in paragraph 13 of the judgment in D. C. Roy's case (supra) has not been translated into a proposition of law laid down in the judgments cited at the bar. The law remained as evolved in Kalyani.
27. In the result I am unable to hold that even after the labour court held that the order of dismissal passed against the writ petitioners was justified on the basis of the evidence led before it the said finding of the Labour court would not relate back to the date on which the order of dismissal was passed. In my view, after having held that the order of dismissal was justified, the labour court could not have granted any relief at all. It has, however, granted relief of Rs. 50,000/- as compensation payable to each Writ petitioner. It is fortuituous that there is no challenge to the said direction of Award by the 1st Respondent employer as the 1st Respondent has not challenged the Award. Hence there is no need to disturb the same.
28. In the result the three Writ Petitions are dismissed and the Rules granted therein are discharged. In the circumstances, there will be no order as to costs.
29. Mr. Sen, Learned counsel for the 1st Respondent employer, points out that, pursuant to an ad-interim order made by this Court at the time of admission on 29th July 1988, interim relief in terms of prayer (d) of the Petition was granted. Prayer (d) of the Petitions was that the amount directed to be paid as compensation by the Labour Court in each of the petitions should be directed to be deposited in the court and allowed to be withdrawn by the petitioners as interim relief. Consequently, each of the Petitioners has withdrawn the said amount of Rs. 50,000/- which was deposited by the 1st Respondent in this Court. It is made clear that the said amount shall be deemed to have been received by the petitioners from the 1st Respondent employer in full and final satisfaction of the 1st Respondent's liability under the impugned Award.