Learned counsel for the petitioner referred us to a decision of Bench of two leamed Judges of this Court in the case of R. Thiruvirkolam v. Presiding Officer, reported in (1997) 1 SCC9 : (1997 AIR SCW 321) which has been later followed by a Bench of three learned Judges in the case of Punjab Dairy *W. A. Nos. 7 of 1996 and 4362 of 1995, D/- 4-7-1997 (Kant).
KO/KO/S832/97/VVG/CSL Development Corporation Ltd. v . Kala Singh,
2. Leamed counsel is very sanguine when he contends that the decision of the Constitution Bench in the case of P. H. Kalyani v. M/s. Air France, Calcutta, reported in (1964) 2 SCR 104: (AIR 1963 SC 1756) squarely applies tb the facts of the-present case also and for that purpose he submi ts that the observation in the Constitution Bench judgment regarding M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan, reported in (1959) Supp (2) SCR 836 : (AIR 1959 SC 923) would not apply in connection with the termination orders passed without domestic inquiry and that ratio of the Constitution Bench judgment in Kalyani's case would squarely apply , where admittedly no enquiry was held by the management before terminating the services of the employee. In our view , these observations in Kalyani's case were rendered in connection with proceeding for approval of the management's action under S. 33(2) of the Industrial Disputes Act, 1947. Even Sasa Musa Sugar Works' case also pertains to a proceeding under S. 33(1) of the I.D. Act for permission. Therefore, the observations of the Constitution Bench in Kalyani's case (AIR 1963 SC 1756) in connection with Sasa Musa Sugar Works' case (AIR 1959 SC 923) which is under S. 33(1) of the Act will require a closer scrutiny in so far as they are to be applied to a proceeding arising out of a reference under S. 10 or 10-A of the Industrial Disputes Act which would stand on a dif ferent footing.
3. The moot question would arise whether the ratio of the Constitution Bench judgment in Kalyani's case (AIR 1963 SC 1756) would almost automatic ally apply to such cases apart from the cases arising under S. 33 of the I.D. Act. We may, in this connection, mention that the decision of the Ihree -Judge Bench of this Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha. Reported in (1980) 2 SCC 593 : (AIR 1980 SC 1896) wherein Krishna Iyer, J., spoke for the majority , was an authority on the question of leading evidence before the Industrial Court in proceedin gs under S. 10-A of the Act and on the question of relation back of ultimate penalty order passed by the arbitrator on the basis of evidence led by the management for justification of its action before such Tribunal. Therefore, the question would drise whether the ratio of this decision would still apply to a case where the proceedings relate to S. 10 or 10-A of the Act apart from S: 33 of the Act. The latter decisions of this Court have applied the ratio of the decision in Kalyani's case to matters arising under Ss.
10 and 10-A of the Act. In our view , therefore, the dispute in the present proceedings could be better resolved by a Constitution Bench of this Court'which can consider the scope and ambit of the decision of the earlier Constitution Bench judgment in Kalyani's case which has beien the sheet-anchor of the subsequent cases referred to earlier on which a strong reliance has been placed by learned counselfor the petitioner and which had nothing to do with proceedings under S. 33 of the Act. The latter decisions of this Court will also, therefore, require a re-look.
4. Leave granted.
5. The appeals will now be placed for final disposal before a Constitution Bench of this Court pursuant to the present order .
6. Printing dispensed with. All the relevant documents are permitted to be filed by the parties concerned.
7. Notice to issue on the prayer for interim relief. There will be ad interim stay of the order of the Division Bench of the High Court to the extent of 50% of the back wages.