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7. The learned Counsel appearing for the Corporation Smt. A. Vijayanti, contended that where the Labour confirms the order of removal after considering further evidence adduced by the management before the Labour Court, the order relates back to the date of removal after domestic enquiry and therefore the order of the learned Single Judge not awarding 50% backwages as penalty relates back to the date of removal after domestic enquiry.

8. In view of the above stated contentions the important question that emerges for consideration in this appeal is :

Where the Labour Court holds that the domestic enquiry was not properly conducted and permits the management to adduce evidence on the basis of which the order of removal is confirmed, whether the order of removal dated back to the date of removal passed by the employer or to the date of order passed by the Labour Court and whether the doctrine of relation back theory applies.

9. Where a charge is levelled against an employee by the management, the management has to conduct domestic enquiry after giving fair opportunity to the employee. If any penalty is imposed, it is open to the employee to challenge the same before the Labour Court by seeking reference under the Industrial Dispute Act. In case, the Labour Court finds that the domestic enquiry if fair and proper, the Labour Court cannot interfere with the findings of the domestic enquiry, but Court can scrutinise whether the penalty imposed is proportionate to the guilt as per Section 11-A of Industrial Disputes Act. If the Labour Court comes to conclusion that the domestic enquiry was not properly conducted, then it is open to the management to adduce further evidence and the employee can adduce rebuttal evidence. The Labour Court after considering the above evidence had to pass an award. In case, the Labour Court holds the employee guilty and confirms the penalty to removal, the question will be whether that penalty imposed relates back to the date of order of removal passed by the employer or it comes into effect only from the date of award of the Labour Court.

16. In the above case, the Supreme Court clearly laid down the principle that once the Labour Court approves or confirms the dismissal order passed after domestic enquiry, considering the evidence produced before it by the management and the employee, the approval of the order of dismissal by the Labour Court relates back to the date of dismissal after domestic enquiry.

17. In D. C. Roy v. Presiding Officer Labour Court (AIR 1976 SC 1960) the Supreme Court held as follows.

"Where although the Labour Court found that the domestic inquiry was defective as it infringed the principles of natural justice, the employer led evidence before the Labour Court in support of the order of dismissal and on a fresh appraisal of dismissal and on afresh appraisal of that evidence, the Labour Court found that the order of 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.... The employee was not therefore entitled to back wages from the date of dismissal until the date on which the Labour Court delivered judgment."

21. In view of the above laid down principle we hold that where the dismissal of the employee is confirmed by the Labour Court on fresh evidence produced where the domestic enquiry is found to be defective, the order of dismissal confirmed by the Labour Court dates back to the date of dismissal by the management after domestic enquiry and in such cases the employees are not entitled for back wages. Where a domestic enquiry is illegal or no domestic enquiry is conducted and an employee is dismissed and the matter is carried to the Labour Court which holds that there is no inquiry and gives an opportunity to the management to adduce evidence on the basis of which order of dismissal is passed, then the order of dismissal will not date back the date of dismissal passed after domestic enquiry, but come into force from the date of order of Labour Court. In the present case, enquiry was held to be defective and hence the appellant is not entitled for back wages. However, since the learned Single Judge directed payment of 50% backwages, we do not want to interfere with the same.