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3. Normally this Court would not have interfered with the interim award. But in the instant case the Labour Court seems to have concluded the controversy as to whether in a case no enquiry was made, and if on evidence let in before the Labour Court, the dismissal if found to be justified, the order of the Labour Court will relate back to the date of dismissal or not? This question, therefore, is not left open. Therefore, the employer has come to this Court contending that the decision that even where a dismissal is held to be justified before the Labour Court, that order will not relate back to the date of dismissal, is contrary to several decisions of the Supreme Court.

Commenting on the decision in Sasa Musa, this Court observed in P.H. Kafyani's case that the matter would have been different if in Sasa Musa, an inquiry had been held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under Section 33(1) for permission to dismiss the employees.' In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under Section 33(1) In D.C. Roy's case , the Supreme Court was conscious of the fact that the same position of law with regard to the order of the Industrial Tribunal relating back to the date of the original order of dismissal would also apply in a case where no enquiry has been held, and the Supreme Court observed:

11. It has been vehemently argued by Mr. Ramasubramaniam that the decision in D.C. Roy's case does not at all decide that in a case where no enquiry has been conducted the dismissal of the employee must be regarded as void and that in such a case the order of the Labour Court cannot relate back to the date of the order of dismissal. He has argued that Sasa Musa's case was a case of 'approval' under Section 33(1) and that is how the case has been distinguished by the Supreme Court in Kalyani's case. 1964 SCR 104 ( and also in D.C. Roy's case . An argument was therefore vehemently advanced that Kalyani's case is a decision given by Five Judges of the Supreme Court and that we must follow the decision in Kalyani's case in preference to the decision in Gujarat Steel Tubes' case . He also invited our attention to a Three Judge Bench decision of the Supreme Court in Punjab Beverages v. Suresh Chand (1978)2 LLJ 1 in which the Supreme Court has taken the view that contravention of Section 33(2)(b) did not have the effect of rendering the decision of dismissal void and inoperative. That was only a case in which the employee was dismissed when a dispute was pending adjudication. The Management had filed an application under Section 33(2) for approval of the Tribunal. That application was however withdrawn. Thereafter the workman filed an application under Section 33(c)(2) for payment of wages on the ground that he continued to be in service as the Management had withdrawn the approval petition. The Tribunal awarded the wages. In appeal before the Supreme Court the question was:

It was argued by Mr. Ramasubramaniam, on the authority of these decision, that the decision in Gujarat Steel Tubes case proceeds on an erroneous assumption that in D.G. Roy's case it was decided by the Supreme Court that where a dismissal order is made without enquiry the order must be treated as a void order and the employee will be entitled to wages till the date of the order of the Labour Court or the Tribunal even if the Labour Court or the Tribunal finds the order to be justified. When an argument like the one that is advanced in the instant case that the High Court should follow one decision of the Supreme Court in preference to the other is advanced, the Court is faced with a delicate task. In the instant case, we have referred to the argument advanced on behalf of the petitioner that though in D.C. Roy's case the question as to whether in the case of an absence of enquiry, the doctrine of relation back will not apply was not finally adjudicated upon because the facts in that case did not warrant a closer consideration thereof, according to the judgment. The Gujarat Steel Tubes' case proceeded on the assumption that in D.C. Roy's case it has been held that where a workman is discharged by an order which is void for want of any enquiry or for blatant violation of the rules of natural justice, the relation back doctrine cannot be invoked. Where such an argument is advanced what is the course to be adopted by the High Court is to be found in Union of India v. K.S. Subramanian in paragraph 12 of the judgment, a part of which has been extracted earlier. The observations quoted earlier will make it clear that not-withstanding contrary decisions of the Supreme Court of different benches the proper course for the High Court is to ascertain and follow the opinion expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court. The logical corollary of these observations would be that it would be open to the High Court to give reasons why the opinion of a particular bench of the Supreme Court was not applicable tod the facts of the case before it. We are therefore inclined to accept the contention of the learned Counsel for the petitioner that having regard to the decision of the Five Judges of the Supreme Court in Kalyani's case, that what is open before the Tribunal is the propriety of an order of dismissal in the case of a defective enquiry and that the Labour Court was entitled to go into the question whether the dismisssal was justified or not. If on evidence it is found that the dismissal was justified then it would operate from the date of the order of dismissal. In Katyani's case it has been expressly held that if on coming to the conclusion of its own on the appraisal of the evidence before it, the Labour Court finds that the dismissal was justified, its approval of the order of dismissal made by the employer in a defective enquiry would still relate back to the date when the order was made. Strictly speaking, it appears to us, that to a certain extent the doctrine of relation back may not be really relevant because the Labour Court in the reference made to it merely goes into the question as to whether the dismissal was justified or not. In a case where a dismissal is held to be justified it declines to interfere with the order of dismissal which means that the order of dismissal is held to be good. But its own force, it operates from the day on which it was made. The scope of the enquiry before the Labour Court is really whether the employer has given evidence in justification of the order of dismissal. We have earlier reproduced propositions 4 and 6 culled out by the Supreme Court in Fire-stone Tyre and Rubber Company's case . The propositions themselves clearly laid down that the jurisdiction of the Tribunal is to consider the evidence placed before it for the first time in justification of the action taken where no enquiry has been held or after an enquiry conducted by an employer is found to be defective. Therefore, the evidence which is tendered by the employer is in justification of the action taken. Once the action of dismissal is found to be justified that order stands and will therefore take effect from the date of the order itself. In view of the decision in Motipur Sugar Factory case the same will he the position even in a case where no enquiry is held by the employer before termination of employment but the misconduct is held to be proved on evidence tendered before the Labour Court. That is the only conclusion which follows from the decision in Kafyani's case, and from the later decisions of the Supreme Court read with the decision in Motipur Sugar Factory case rendered before Gujarat Steel Tubes' case. In the face of this overwhelming authority in favour of the contention raised by the petitioner, we must therefore hold that the view taken by the Trinunal that in a case where no enquiry is held, the dismissal would not be effective from the date of the order on which it was made, is contrary to the series of the decisions of the Supreme Court. We may refer, with advantage, to the decision of the Division Bench of the Kerala High Court in Workmen of Premier Tyres Ltd v. Premier Tyres Ltd (1976) 33 Indian Factories and Labour Reports. 7. That was a case in which the services of a workman were terminated for misconduct without any enquiry whatsoever. On evidence tendered before the Labour Court the termination was found to be justified and bona fide. The Division Bench held that since the action taken to terminate the services of the employee was bona fide the termination took effect from the date on which the order was passed and communicated. The Kerala High Court was called upon to consider the question whether the Labour Court was right in directing the Management to pay the wages for the period from the date of termination of the service to the date of the award. The Labour Court had relied on the decisions in Sasa Musa's case and Phulbari Tea Estate's case . The Kerala High Court explained that Sasa Musa's case was a case in which there was neither an order of termination nor a domestic enquiry and the proceedings under Section 33 were practically converted into an enquiry which normally the Management should have held before applying to the Industrial Tribunal. "It was pointed out that in Pkulhari Tea Estate's case the dismissal was found to be unjustifiable and that is why the Tribunal ordered the Management to pay the wages. The Division Bench of the Kerala High Court referred to the decision in Kalyani's case in which Sasa Musa's case was distinguished on the ground that the relationship of employer and employee continued till the date of the award, and observed that no authority was cited to show that even in a case where the action of the Management justified before the Labour Court the wages must be paid till the date of the award. It was then observed as follows: