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4. The learned Counsel for the petitioner-workman submits that the Labour Court has found that the petitioner is a protected workman and also that prima facie, the action of the employer is illegal, but the Labour Court denied the interim relief on the ground that the employer is to be given an opportunity to prove the charges and sustain the order of dismissal and if the Labour Court sustains the order of dismissal, it would relate back to the date of order of dismissal and the workman would not be entitled to backwages.

5. The learned Counsel for the workman has relied on a series of Supreme Court judgments and submitted that when there is no inquiry and the workman has been dismissed from service, even if the employer succeeds in establishing the misconduct in the Labour Court for the first time and the Labour Court finds the workman guilty of misconduct and justifies the order of dismissal, such order of dismissal would become operative only from the date of the aware of the Labour Court and it would not relate back to the original date of order of dismissal passed by the employer. It is submitted that this is not a case of a bona fide inquiry having been held by the employer and some defect having been found in such inquiry, and the employer leading the evidence before the Labour Court and satisfying such Court and thereby justifying the order of dismissal. It would be only in a case of dismissal after a bona fide inquiry and later found to be defective and the misconduct being established in the Labour Court, the Labour Court order would relate back to the date of original order of dismissal passed by the employer. For this proposition, reliance had been placed on the following Supreme Court judgments :

"The matter would have been different if in that case an inquiry had been held and the employer had come to the conclusion that dismissal was the proper punishment and then had applied under Section 33(1) for permission to dismiss. In those circumstances, the permission would have related back to the date when the employer came to the conclusion after an inquiry that the dismissal was the proper punishment and had applied for removal of the ban by an application under Section 3(1)."

The Supreme Court further observed that in the case before it, the employer held an inquiry though it was defective and passed on order of dismissal. The Supreme Court held that 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 conclusion 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 and the observations in the case of Sasa Musa would apply to a case where employer had neither dismissed the employee nor had come to the conclusion that the case for dismissal has been made out.

The learned Counsel for the respondent has also relied on another judgment of the Division Bench of this Court in the case of The Ahmedabad Sarangpur Mills Co. Ltd. v. I. G. Thakore & Anr. (1965) VI GLT 259 and it is submitted that in that case, after considering the Supreme Court judgments in the case of Sasa Musa, Phulwari and P. H. Kalyani, the Division Bench has held that the observations made in Sasa Musa case apply only to the case where the employer had neither dismissed the employer nor had come to the conclusion that the case for dismissal had been made out. It is submitted that in the present case, the employer had in fact dismissed the employer and also come to the conclusion that the case for dismissal had been made, though without holding any inquiry. It is, therefore, submitted that having regard to the observations in Sarangpur Mill's case the dismissal if ultimately held to be justified, would relate back to the date of the original order. This is not a correct reading of the judgment in Sarangpur Mill's case. Sarangpur Mill's case was a case of defective inquiry. There was no dispute that the inquiry was held. However, that enquiry was held to be a defective enquiry because a witness who had not been examined by the Company in presence of the workman was only offered for cross-examination. Thus, it was a case of defective inquiry and in that context, the judgment of the Division Bench is that the finding of the Labour Court would relate back to the date of dismissal order by the employer. It was not a case of no enquiry. Here is a patent case of dismissal without any inquiry whatsoever and the dismissal is admittedly on the basis of allegation of misconduct. When there are such clear and gross admitted facts, there is no escape from the conclusion that the case is directly and fully covered by the ratio laid down by the Supreme Court in the case of Sasa Musa, D. C. Roy, Gujarat Steel Tubes and Deshraj Gupta as discussed hereinabove. The distinction is sought to be made out on the ground that in the present case, the employer had dismissed the workman and in the case of Sasa Musa, the employer had applied for permission to dismiss the workman is a distinction without any merit. In fact, in the case of D. C. Roy, the Supreme Court further sounded a note of caution that Kalyani's case was not to be construed as a charter for the employer to dismiss an employee after the pretense of an inquiry. Thus, dismissal by the employer without inquiry or after defective inquiry is a common factor in both the sets of cases and the material point of difference is absence of inquiry and holding a bona fide but defective inquiry. In Gujarat Steel Tubes case also, the Supreme Court has held that the dismissal without inquiry would be a void dismissal and if the Tribunal for the first time passes and order recording a finding of misconduct and thus breaths life into the dead shell of the management's order, per-dating of the nativity does not arise. The ratio of Sasa Musacase was again reiterated holding that if the Management discharges the workman by an order which is void for want of an inquiry, the doctrine of 'relation back' cannot be invoked.