J.S. Verma, J.

1. The appellant was employed as a technician with M/s. Madras Fertilizers Ltd. - Respondent No. 2. He was dismissed from service after a domestic inquiry on November 18, 1981 on proof of misconduct. The appellant challenged his dismissal before the Labour Court. The Labour Court found the domestic inquiry to be defective and permitted the management to prove the misconduct before it. On the basis of the evidence adduced before the Labour Court, it came to the conclusion that the punishment imposed was justified as the misconduct was duly proved. The Labour Courts order is dated December 11, 1985. Appellant then filed a writ petition before the High Court which was dismissed by a Single Bench. The writ appeal filed by the appellant was also dismissed by a Division Bench of the High Court. Hence this appeal by special leave.

2. The leave granted in this appeal is confined only to the question : whether the dismissal will take effect from the date of the order of the Labour Court, namely, December 11, 1985 or it would relate to the date of the order of dismissal passed by the employer, namely, November 18, 1981.

3. The only point involved for decision is apparently concluded by the decision of the Constitution Bench in P.H. Kalyani v. M/s. Air France, Calcutta, 1964(2) SCR 104. However, this point appears to have been raised on behalf of the appellant on the basis of certain observations made in Gujarat Steel Tubes Ltd v. Gujarat Steel Tubes Mazdoor Sabha, 1980(2) SCR 146 which appear to be contrary.

4. Reference may be made first to the decision in Kalyani. The point arose directly before the Constitution Bench and such a contention was rejected, making a distinction between a case where no domestic inquiry had been held and another in which the inquiry is defective for any reason and the Labour Court on its own appraisal of evidence adduced before it reached the conclusion that the dismissal was justified. It was held that in a case where the inquiry was found to be defective by the Labour Court and it then came to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, the order of dismissal made by the employer in a defective inquiry would still relate to the date when the order was made. In that decision it was stated thus:-

"...... If the inquiry is defective for any reasons, 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. In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however, to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the Labour Court will relate back to the date on which the respondent passed the order of the dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Courts award came into operation must fail.

(Pages 113 and 114)

5. In our opinion, the authoritative pronouncement by the Constitution Bench in Kalyani puts the matter beyond doubt.

6. We may now refer to the decision by a three Judge Bench in Gujarat Steel Tubes Krishna Iyer, J. speaking for the three Judge Bench observed at page 215 (SCR) as under:-

"Kalyani (1963 (1) LLJ 679 [LQ/SC/1963/44] ) 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. Juriprudentially, approval is not creative but confirmatory and therefore relates back. A void dismissal is just, void and does not exit. If the Tribunal, for the first time, passes an order recording a finding on misconduct and thus brethes life into the dead shell of the Managements order, predating of the nativity does not arise. The reference to Sasa Musa in Kalyani enlightens this position. The latter case of D.C. Roy v. The Presiding Officer Madhya Pradesh Industrial Court, Indore and others (supra) specifically refers to Kalyanis case and Sasa Musas 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 jurisdictional difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still-born 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.

We agree that the law stated in D.C. Roy (supra) is correct but not that the termination orders are being set aside, the problem does not present itself directly ..... (emphasis supplied)

7. Apparently these observations appear to strike a discordant note, even though Kalyani is referred therein. The basis of the observation is that "A void dismissal is just dismissal and does not exist. In other words, the reason for making these observations is that a void order does not come into existence until by a subsequent judicial resuscitation it comes into being inasmuch as a void order is still-born. Is this assumption jurisprudentially correct

8. It is significant that the Constitution Bench decision in Kalyani, by which the three Judge Bench was bound, is referred in Gajarat Steel Tubes and attempt made to indicate that there is no difference in the view taken therein. It is also significant that agreement is expressed with the decision in D.C. Roy v. The Presiding Officer, Madhya Pradesh, Industrial Court, Indore and others, 1976(3) SCR 801, to which Krishna Iyer, J. was a party and in which Kalyani has been expressly followed. It has now to be seen whether the above observations in Gujarat Steel Tubes are in consonance with Kalyani and D.C. Roy and also conform to the juristic basis indicated therein.

9. The above extract from Kalyani which contains the ratio of the decision clearly indicates that the above observations in Gujarat Steel Tubes are not in conformity with Kalyani. In Kalyani it was held that the defect found in the domestic inquiry is nullified by proof of misconduct on the basis of evidence adduced before the Labour Court so that there is no ground available for the Labour Court to set aside the order of punishment. The question before the Labour Court is whether the order of punishment should be set aside on any ground and when the Labour Court ultimately reaches the conclusion that even though the inquiry was defective, there is material to justify the punishment awarded, it rejects the challenge to the orders of punishment which continue to operate. It is not as if the order of punishment becomes effective only on rejection of the challenge to its validity. Unless set aside by a competent court on a valid ground, the order of punishment made by the employer continues to operate. The operation of the order of punishment made by the employer does not depend on its confirmation by the Labour Court to make it operative. Unless set aside by a competent authority, the order of punishment made by the employer continues to be effective. Obviously this is the ratio of the decision in Kalyani.

10. The decision in D.C. Roy is by a two Judge Bench to which Krishna Iyer, J. was a party. Therein also it was held that award of the Labour Court relates back to the date when the order of dismissal was passed by the employer when it found the inquiry to be defective but reaches the conclusion on the evidence adduced before it that the dismissal was justified. After referring to Kalyani it was held in D.C. Roy as under:-

"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 inquiry.

(Page 805)

11. We may now refer to the juristic principle on which the above quoted observations in Gujarat Steel Tubes appear to be based. There is a very useful discussion of the topic under the heading ``Void and Voidable at pages 339 to 344 in Administrative Law by Wade, Seventh Edition. The gist of the discussion in Wade is as under:-

"....... Here also there is a logical difficulty, since unless an order of the court is obtained, there is no means of establishing the nullity of the list. It enjoys presumption of validity, and will have to be obeyed unless a court invalidaftes it. In this sense every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that it most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radcliffe said:

An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.

(Pages 341 and 342).

"`Void is therefore meaningless in any absolute sense. Its meaning is relative, depending upon the courts willingness to grant relief in any particular situation. If this principle of legal relativity is borne in mind, confusion over `void and voidable can be avoided.

(Pages 343 and 344) (emphasis supplied).

With great respect, we must say that the above quoted observations in Gujarat Steel Tubesat page 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying Juristic principle discussed in Wade. For these reasons, we are bound to follow the Constitution Bench decision in Kalyani which is the binding authority on the point..

12. We may now refer to later decision of this Court in Desh Raj Gupta v. Industrial Tribunal IV, U.P. Lucknow and another, 1991(10 SCT 86(SC) : 1990 Supp. (1) SCR 411, and Rambahu Vyankuji Kheragade v. Maharashtra Road Transport Corporation, 1995 Supp. (4) SCC 157. In Rambahu Kalyani and D.C. Roy were followed by a two Judge Bench and similar view was taken that the order of dismissal takes effect from the date on which it was originally passed and not from the date of the Labour Courts award when the Labour Court, after holding the domestic inquiry to be defective reaches the conclusion on the evidence adduced before it that the punishment awarded was justified. However, in Desh Raj Gupta the observation in Gujarat Steel Tubes were relied on for taking a different view without any reference to either Kalyani or D.C. Roy which appear to have been overlooked. In these circumstances the decision in Desh Raj Gupta cannot be treated as an authority on the point. Both these decisions were by two Judge Bench.

13. As a result of the aforesaid discussion it must be held that the only point involved for decision in the appeal is concluded against the appellant by the Constitution Bench decision of this Court in Kalyani and the observation to the contrary in Gujarat Steel Tubes are, therefore, per incurium and not binding. The order of punishment in the present case operated from November 18, 1981 when it was made by the employer and not from December 11, 1985, the date of Labour Courts award. The appellant is, therefore, not entitled to any relief.

14. The appeal is, accordingly, dismissed. No costs.