Madras High Court
Management Of Sundaram Industries Ltd. vs P.O., Labour Court And Anr. on 23 September, 1999
Equivalent citations: (2000)IILLJ32MAD
ORDER E. Padmanabhan, J.
1. The petitioner prays for the issue of writ of certiorari to call for the records in I.A. No. 125 of 1999 in I.D. No. 353 of 1992 on the file of the first respondent Labour Court, Madurai and to quash the same.
2. On July 30, 1999, this Court directed Mr. Dwarakanathan, learned counsel appearing for the writ petitioner to serve copy of the affidavit and typed set of papers on Mr. V. Prakash, who had appeared for the first respondent workman, before the Labour Court. Accordingly Mr. V. Prakash has been served. On August 10, 1999 this Court admitted the writ petition. Subsequently, Mr. Dwarakanathan as well as Mr. V. Prakash appearing respectively for the writ petitioner and contesting respondents jointly requested that the writ petition itself be taken up for final disposal in view of the question that arises for in the writ petition arising out of I.A. No. 125 of 1999 in I.D. No. 353 of 1992 on the file of the first respondent Labour Court as according to the counsel for either side an earlier decision in the writ petition is essential instead of keeping the writ petition pending.
3. Heard Mr. Dwarakanathan for the writ petitioner and Mr. V. Prakash for the second respondent.
4. Though no counter has been filed on behalf of the contesting second respondent-workman, Mr. V. Prakash, learned counsel appearing for the second respondent submitted detailed arguments at the hearing as according to him the points raised are legal points and there is not much of factual controversy.
5. The second respondent who was employed with the writ petitioner since March 1, 1974 and working as mould press operator along with three others accosted at the entrance of the petitioner's factory, the Junior Foreman on September 21, 1989 at about 4.30 p.m. when he was coming back to work abused arid attacked the said foreman, who had to run into the factory for his safety, as he was threatened by the second respondent and others. With respect to the alleged incident a charge memo dated September 25, 1989 was served on the second respondent workman calling upon him to show cause as to why disciplinary action should not be taken for the misconduct reported against him and the second respondent in his explanation dated September 27, 1989 denied the charges.
6. It is further stated that the second respondent was placed under suspension and the same was challenged by filing a suit. The second respondent's attempt to get orders of injunction with respect to the orders of suspension was not successful. Not being satisfied with the objections, the writ petitioner management conducted enquiry and appointed an Advocate to be the Enquiry Officer. After prolonged enquiry and after following the procedure prescribed and principles of natural justice, the enquiry came to be concluded on November 1, 1990. The second respondent workman had been demanding copies or for a common enquiry and raised other objections with a view to delay the proceedings.
7. Witnesses were examined before the enquiry officer and the workman declined to cross examine witnesses under the pretext that he had not been paid the subsistence allowances. The enquiry officer submitted his findings on February 15, 1991 holding that the charges against the second respondent are proved. The writ petitioner management concurred with the findings reported and after communicating the findings and calling for the objections, the writ petitioner management dismissed the second respondent.
8. Being aggrieved the second respondent raised industrial dispute under Section 2A of the Industrial Disputes Act, 1947 in I.D. No. 353 of 1992 on the file of the first respondent Labour Court. The second respondent-workman had filed his claim statement and the writ petitioner-management had filed its objections. In the claim petition, the workman had raised number of pleas and contentions. In the counter statement filed by the writ petitioner management, while denying all allegations and averments, the writ petitioner management contended that there was a valid enquiry and the irregularities pointed out by the workman with respect to the enquiry are imaginary afterthought that the workman persisted in his illegal demands and walked out of the enquiry, that the domestic enquiry was conducted in accordance with the Standing Orders and there is no obligation to give a second show cause notice and that non-communication of the findings will not vitiate the proceedings.
9. It was also pointed out by the writ petitioner that the workman is not entitled to have the assistance of a lawyer as the Presenting Officer appointed by the Management was not a legally trained person and the workman was permitted to avail the assistance of a co-worker. In other words, the writ petitioner/management contended that the enquiry has been conducted perfectly in accordance with the principles of natural justice and on no ground can it be assailed.
10. It was further pointed out by the writ petitioner/management, if the Labour Court comes to the conclusion that the enquiry is vitiated, the respondent may be permitted to lead evidence before the Labour Court and justify their action in dismissing the second respondent from service, as has been held by the Apex Court in Cooper Engineering case.
11. The writ petitioner management filed 56 documents relating to the enquiry and other relevant materials and they were marked by consent on January 4, 1994. On January 22, 1996, the second respondent/workman filed an interlocutory application I.A. No. 11 of 1996 seeking to file certain documents in his defence, which was objected to by the writ petitioner in the counter. As the second respondent workman had no right to file any document at that stage as the Labour Court will get jurisdiction to consider when evidence is placed before it for the first time in justification of the action taken only, if it conies to the conclusion that there had been no valid enquiry or that the enquiry conducted by the employer is vitiated or defective.
12. The writ petitioner management contended that the documents filed by the second respondent workman cannot be looked into at all by the Labour Court at that stage without deciding the preliminary issue. After certain amount of hearing the first respondent Labour Court passed orders on July 19, 1996 dismissing the said I.A. No. 11 of 1996 taken out by the second respondent/workman upholding the objections raised by the Management holding that the second respondent cannot seek to lead evidence by presenting documents until a finding on the preliminary issue as regards the validity of the enquiry and findings was rendered thereon. The Labour Court posted the matter for hearing on the Preliminary issue on August 28, 1996.
13. The second respondent workman after seeking adjournments came out with a petition to stay all the proceedings as the second respondent workman had already filed a writ petition. But in fact no such writ petition has been moved. The industrial dispute came to be posted on November 14, 1997 and by then the Presiding Officer of the Labour Court had retired. Even on November 14, 1997, the workman persisted again in arguing that he has a right to lead evidence even before the decision on the preliminary issue is made. The Labour Court once again dismissed the petition by orders dated December 10, 1997, holding that the opportunity to lead evidence will be given at the appropriate time and the workman will get chance to produce the same.
14. Thereafter the workman filed another petition I.A. No. 191 of 1998 before the first respondent Labour Court praying for the reception of copy of the judgment in CC No. 267 of 1990. The said I.A. No. 191 of 1998 was dismissed after contest as the earlier order passed in identical interlocutory application will constitute res judicata and as the preliminary issue has to be decided at the first instance. Even thereafter the workman filed I.A. No. 125 of 1999 once again praying for permission to lead evidence on his side and also prayed for reopening the side, of the second respondent to adduce evidence. The said interlocutory application was resisted by the writ petitioner management on various grounds.
15. It is being contended that extensive arguments were advanced by both the sides before the first respondent Labour Court on various dates and lastly on June 29, 1999 by placing reliance on various pronouncements of the Apex Court. The Labour Court by order dated July 7, 1999 allowed I.A. No. 125 of 1999 filed by the second respondent workman and had posted the matter for leading evidence by the workman to July 28, 1999. At that stage, the present writ petition has been filed challenging the order passed in I.A. No. 125 of 1999 on various grounds.
16. The above facts are not in controversy. It will be useful to refer to the material portion of the earlier orders as well as the impugned order passed by the first respondent Labour Court before taking up the contentions.
17. In I.A. No. 11 of 1996 by order dated July 19, 1996 the Labour Court dismissed the interlocutory application taken out by the workman for reception of certain documents, as before deciding the issue of validity or priority of domestic enquiry the workman is not entitled to mark any documents on his side. The said order has not been challenged and it has reached finality. Thereafter after lapse of 17 months I.A. No. 191 of 1998 was taken out by the second respondent/workman for reception of documents filed on his side and the said application was also rejected on the same reasoning by the Labour Court.
18. Once again the workman filed an interlocutory application after a gap of 17 months for reopening his side to enable him to adduce evidence which was taken on file as I. A. No. 125 of 1999. Thus on more than two occasions, the very Labour Court had taken the view that till the legality or validity of the domestic enquiry claimed to have been conducted by the writ petitioner management is decided the workman is not entitled to lead evidence or reopen the earlier orders and also holding that before seeking to let in evidence the Labour Court has to record a finding on the preliminary issue.
19. The Labour Court by order dated July 7, 1999 framed the point for consideration as herein:
"Whether the petitioner is entitled to reopen his side to enable him to adduce evidence?"
The Labour Court also incidentally considered the objections as to the plea of res judicata put forward by the writ petitioner management. On the said point for consideration, the Labour Court presumably placing reliance on certain observations made in the later pronouncement of the Apex Court ordered the interlocutory application filed by the workman to reopen and let in evidence even before deciding the preliminary issue, besides over ruling the objections regarding the plea of res judicata.
20. The following points arise for consideration in this writ petition:
i) Whether even before recording a finding on the preliminary issue as to the legality or validity of domestic enquiry conducted by the management, the workman could be allowed to let in evidence on merits relating to the imputations, charges and findings?
ii) Whether the earlier orders passed in two interlocutory applications in the same industrial dispute constitute res judicata?
21. Point:- It is to be pointed out that the industrial dispute is pending since 1992, for which the worker alone cannot be held responsible for the delay as factually every one including the Management and Labour Court had contributed for the delay of seven years. The worker also had been taking out applications after applications and when his applications were rejected he had been taking considerable time under the pretext that he had taken up the matter before this Court.
22. Conceedingly, no writ petition has been filed challenging the earlier two orders passed by the Labour Court. In the earlier applications, a specific order has been passed by the Labour Court to the effect that the preliminary issue will be decided at the first instance and if the preliminary issue is answered in favour of the workman then other issues of substantiating the charges arise. In that view of the matter the Labour Court posted the matter for arguments on the preliminary issue.
23. Admittedly, with respect to the preliminary issue voluminous number of documents were marked on behalf of the writ petitioner/management with the consent of either side and arguments were progressing. At that stage, the present interlocutory application has been filed.
24. The learned counsel appearing for either side had relied upon various pronouncements of the Apex Court as well as the various other High Courts in support of their respective contentions and each counsel attempted to outwit the other by advancing hair splitting arguments.
25. According to Mr. Dwarakanathan, the decision of the Apex Court in Cooper Engineering, case is the law on the subject and the latter pronouncement in Cipla's case had not changed the legal position while Mr. Prakash contends that the latter pronouncement of the Apex Court had made it clear that in the guise of deciding preliminary issue the industrial dispute shall not be kept pending indefinitely and the Labour Court would be justified in taking up the preliminary issue as well as the very dispute referred simultaneously and it need not postpone the decision on merits of the case in the guise of deciding preliminary issue.
26. The learned counsel appearing for either side referred to the pronouncement of the Apex Court in Cipla Ltd. and Ors. v. Ripu Daman Bhanot and Anr. (1999-I-LLJ-900) (SC) referred as Cipla for brevity besides various other pronouncements. In Cipla's case, their Lordships of the Apex Court had observed that the Labour Court should decide all the issues together and shall not compartmentalise or split the issues into preliminary or non-preliminary issues as such a procedure if adopted may result in delay. In this respect, SAGHIR AHMAD, J. speaking for the Bench towards the end of the judgment observed thus at p. 903:
"13. We would only say that the Labour Court should decide all the issues together and shall not split the issues into preliminary or non-preliminary issues so that the proceedings may come to an end at the earliest.
14. In view of the above, the interim award passed by the Labour Court cannot be sustained nor can the judgment passed by the High Court be upheld. The appeal is consequently allowed. The interim award passed by the High Court is set aside and the Labour Court is directed to decide the whole matter afresh in the light of the observations made above and in accordance with law."
27. Mr. Dwarakanathan, learned counsel for the writ petitioner emphasised that the above observation made by the Honourable Supreme Court has to be confined to the facts of the said case and the Supreme Court had neither the occasion nor decided the point in Cipla's case, (supra) but had merely pointed out the necessity of deciding all the issues both preliminary or non-preliminary for an earlier disposal in a matter which had prolonged history.
28. It is needless to state that in Cipla's case (supra) the matter has been pending for quite some time and the point that was canvassed was that the delinquent employee has a right to be represented by an Advocate in the departmental proceedings and whether a right to be represented by co-workman would not be bad only for the reason that the assistance of an Advocate was not provided to him. On the facts of the case, the Apex Court held that the General Manager (Marketing) who was superior in rank to the Personnel Manager had passed the impugned orders. The decision of the Apex Court in Cipla's case (supra) will not support the contention advanced by Mr. Prakash.
29. Per contra, very many decisions referred to by Mr. Dwarakanathan, learned counsel appearing for the writ petitioner will support the contention put forward by the Management in this writ petition and it is essential for the Labour Court to decide the preliminary issue before allowing the parties to let in evidence with respect to the merits and de-merits of the charges of misconduct or materials in support of it and the conclusions that would arise therein. It was contended by Mr. Dwarakanathan that when only the Labour Court comes to the conclusion that the domestic enquiry was not fair, it could issue a notice to the management at that stage calling upon the management to adduce evidence to establish the charges before the Labour Court.
30. In Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh, (1972-I-LLJ-180)(SC) after reviewing the entire case law on the subject including its decisions in Delhi Cloth and General Mills Co. Ltd. v. Ganesh Dutt and Ors. (1972-I-LLJ-172) (SC); Punjab National Bank v. Its Workmen (1959-II-LLJ-666) (SC); Management of Ritz Theatre v. Its Workmen, (1962-II-LLJ-498) (SC); Mysore Steel Works v. Jitendra Chandra Kar and Ors. (1971-I-LLJ-543) (SC); Lord Krishna Textile Mills v. Its Workmen, (1961-I-LLJ-211)(SC), State Bank of India v. R.K. Jain, (1971-II-LLJ-599) (SC) their Lordships of the Apex Court held thus at pp. 198-200:
"From the above decisions the following principles broadly emerge:
(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it in the first instance and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no, inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issues and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with, in the first instance, as a preliminary issue, the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence, before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act.
Having due regard to the above principles, as could be gathered from the decisions referred to above, in our opinion, the application filed by the management for permission to adduce evidence was highly belated. We have already emphasised that the enquiry proceedings before the Tribunal is a composite one, though the jurisdiction of the Tribunal to consider the validity of the domestic enquiry and the evidence adduced by the management before it are to be considered in two stages. It is no doubt true that the management has a right to adduce evidence before the Tribunal in case the domestic enquiry is held to be vitiated. The Tribunal derives jurisdiction to deal with the merits of the dispute only if it has held that the domestic enquiry has not been held properly. But the two stages in which the Tribunal has to conduct the enquiry are in the same proceedings which relates to the consideration of the dispute regarding the validity of the action taken by the management. Therefore, if the management wants to avail itself of the right, that it has in law, of adducing additional evidence, it has either to adduce evidence simultaneously with its reliance on the domestic enquiry or should ask the Tribunal to consider the validity of the domestic enquiry as a preliminary issue with a request to grant permission to adduce evidence, if the decision of preliminary issue is against the management. An enquiry into the preliminary issue is in the course of the proceedings and the opportunity given to the management, after a decision on the preliminary issue, is really a continuation of the same proceedings before the Tribunal."
31. While considering the application under Section 33 of the Industrial Disputes Act in Ideal Jawa (India) Pvt. Ltd. v. C. Madan Mohan and Anr. (1972-I-LLJ-316) a Division Bench of the High Court of the Judicature at Mysore held thus at p 324:
"To summarise, (1) when an application is filed under Section 33 of the Act, the Tribunal can by taking evidence, if necessary, examine whether the case falls under Sub-sections (1), (2) or (3) of Section 33 of the Act and if the Tribunal comes to the conclusion that the case falls under Sub-s. (1) or Sub-section (3) the application filed under Section 33(2)(b) of the Act has to be rejected; (2) If the application is one filed under Section 33(2)(b) of the Act the Tribunal should consider whether the dismissal or discharge is in accordance with the Standing Orders applicable to the workman concerned and whether wages for one month have been paid or tendered: (3) When the management has relied upon the finding that the workman has committed an act of misconduct arrived at a domestic enquiry held for the purpose of determining whether the workman has committed an act of misconduct or not, the Tribunal should satisfy itself that the enquiry is proper, that there is prima facie proof of the act of misconduct and that the enquiry is not vitiated by mala fides, bias, unfair labour practice or victimisation; (4) if it is satisfied that the enquiry is proper and there are no vitiating circumstances referred to above, the Tribunal should grant approval under Section 33(2)(b) or permission under Section 33(1) or (3) of the Act as prayed for unconditionally without attempting to reassess the evidence led at the domestic enquiry, as an appellate Court; (5) If the Tribunal holds that for any reason the domestic enquiry is defective shall allow evidence to be led before it by the management in support of the action proposed to be taken or already taken and also by the workman, and on a consideration of the material placed before it, it should decide whether the application should be granted or not; vide the decision of the Supreme Court in Mysore Steel Works v. Jitendra Chandra (supra), (6) If there is no defect in the enquiry held, the workman should not be permitted to lead additional evidence before the Tribunal on the merits of the case; vide the decision of the Supreme Court in Tata Oil Mills Co. Ltd. v. The Workmen, (1996-II-LLJ-602); (7) If the workman alleges mala fides, bias, victimisation or unfair labour practice in his statement of objections and if it is shown that the workman either did not know the relevant facts which have to be established in support of the said allegations or could not for sufficient reasons prove them during the domestic enquiry, the Tribunal should permit the workman to lead evidence only to that limited extent even when the management which relies upon the domestic enquiry does not choose to lead evidence on its behalf; and (8) the fact that the permission or approval as the case may be, is granted under Section 33 of the Act does not prevent a reference of the dispute relating to the dismissal or discharge under Section 10 of the Act for adjudication."
32. In Workmen of Firestone Tyre & Rubber Co. of India. P. Ltd. v. Firestone Tyre and Rubber Co. of India P. Ltd. (1973-I-LLJ-278) (SC) it has been held that it is well open to the Tribunal to hold that the misconduct is proved by examining the evidence that may be let in to substantiate the charges. It has also been held that even after introduction of Section 11A the right of the employer to lead evidence before the Tribunal has not been taken away. VAIDIALINGAM, J. after referring to the earlier case law held thus at pp 293-294:
"We have exhaustively referred to the various decisions of this Court, as they give a clear picture of the principles governing the jurisdiction of the Tribunal when adjudicating disputes relating to dismissal or discharge.
From the decisions, the following principles broadly emerge:
1. The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute i5 referred to a Tribunal, the latter has power to see if action of the employer is justified.
2. Before imposing the punishment, an employer is expected to conduct proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
3. When a proper enquiry has been held by an employer and the finding of misconduct is a plausible conclusion flowing from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body; the interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management guilty of victimisation, unfair labour practice or mala fides.
4. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal, in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action and it is open to the employee to adduce evidence contra.
5. The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
6. The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
7. It has never been recognized that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
8. An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
9. Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before the Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
10. In a particular case, after setting aside the order of dismissal, whether the workman should be reinstated or paid compensation is, as held by this Court in Panitola Tea Estate v. Their Workmen, 1971-40 F.J.R. 352, within the judicial decision of a Labour Court or Tribunal.
The above was the law as laid down by this Court as on December 15, 1971, applicable to all industrial adjudications arising out of orders of dismissal or discharge."
33. In the same pronouncement with respect to the scope of Section 11A, it has been held thus:
"The stage at which the employer has to ask for such an opportunity, has been pointed out by this Court in Delhi Cloth and General Mills Co. Ltd. (supra). No doubt, this procedure may be time consuming, elaborate and cumbersome. As pointed out by this Court in the decision just referred to above, it is open to the Tribunal to deal with the validity of the domestic enquiry, if one has been held as a preliminary issue. If its finding on the subject is in favour of the management then there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action. This right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been held or if the enquiry is held to be defective, has been given judicial recognition over a long period of years.
All parties are agreed that even after introduction of (sic) Section 11A, the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer.
Having held that the right of the employer to adduce evidence continues even under the new section, it is needless to state that, when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workman concerned. The law, as laid down by this Court that under such circumstances, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and that it has to decide for itself whether the misconduct alleged is proved, continues to have full effect. In such a case, as laid down by this Court the exercise of managerial functions does not arise at all.
Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal cannot differ from that finding in a proper case and hold that no misconduct is proved.
We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by the employer. It as to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion endures to it when it has to adjudicate upon the dispute referred to it in which an employee relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A".
34. In the Cooper Engineering Ltd. v. P.P. Mundhe, (1975-II-LLJ-379)(SC), a three Judges Bench of the Apex Court after considering the earlier pronouncement in Ritz Theatre P. Ltd. v. Its Workmen, (supra); State Bank of India v. R.K. Jain, (supra); Delhi Cloth & General Mills Co. v. Ludh Budh Singh (supra) and Workmen of Firestone Tyre & Rubber Co. of India v. Management, (supra) it was held thus at pp. 385-386:
"19. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that question being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter if worthy can be agitated even after the final award".
35. The learned counsel for the writ petitioner also relied upon the judgment of M. RAMA Jois, J. in Chowdappa T. and Anr. v. Presiding Officer, Labour Court, Bangalore, 1978 LIC 1452 and the learned Judge after referring to Cooper Engineering Ltd. v. P.P Mundhe (supra), held that it is impossible for the Labour Court to hear the preliminary issue along with the main reference and it has been held thus:
"In the absence of such concession the Labour Court ought to have decided the validity of the domestic enquiry. The consequences which enure the domestic enquiry is valid are entirely different from the consequences which ensue if it is held invalid. The scope of enquiry and hearing gets restricted or enlarged, respectively, as the case may be. (See: Motor Industries Co. Ltd. v. Adinarayanappa,) 1978 I Kant LJ 245 at 254. Therefore, it is impossible for the Labour Court to hear such a preliminary issue along with the main reference, as the scope of hearing and enquiry stands restricted or enlarged, depending on the finding one way or the other on the preliminary issue. Therefore, the procedure followed by the Tribunal was defective and the Award cannot be sustained. In the Cooper Engineering Co. 's case (supra), the Supreme Court has clearly laid down that it is the duly of the Labour Court or Industrial Tribunal, as the case may be to decide the validity of the domestic enquiry as a preliminary issue. Therefore, I hold that, the Award made by the Labour Court without deciding the preliminary issue regarding the validity of the domestic enquiry in the first instance and hearing the other issues thereafter is illegal and liable to be quashed."
36. In Shankar Chakravarti v. Britannia Biscuit Co. and Anr. (1979-II-LLJ-194) (SC). DESAI, J. speaking for the three Judges Bench after referring to the earlier pronouncement held thus at pp 203-206:
Reference was next made to Workmen of Firestone Tyre and Rubber Company of India (P) Ltd. v. Management and Ors. (supra) contention raised therein was that by the introduction of Section 11A with its proviso in the Act the Legislature has once and for ever put its final seal upon the controversy whether the employer who has failed to hold proper, legal and valid domestic enquiry before taking punitive action, was entitled to adduce fresh evidence when the matter is brought before the Labour Court or the Industrial Tribunal either under Section 10 or under Section 33 of the Act. The proviso to Section 11A provides that the Labour Court or the Industrial Tribunal in a proceeding under Section 11A shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. This contention was in terms negatived by this Court observing that at the time of introducing Section 11A in the Act the Legislature must have been aware of the long line of decisions of this Court enunciating several principles bearing on the subject and, therefore, it is difficult to accept that by a single stroke of pen by the expression used in the proviso to Section 11A all these principles were set at naught. This Court then exhaustively reviewed all the previous decisions bearing on the subject and formulated the principles emerging therefrom. The relevant principles are 4, 6, 7 and 8. They read as under:
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and (5) ** *** (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognized that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct".
***** This view in R.K. Jain's case (supra) was re- affirmed in Delhi Cloth and General Mills Co. case (supra) and there is nothing in the decision in Cooper Engineering Ltd. case (supra) that that case overruled the two earlier decisions. It was not possible so to do because the decision in the Management of Ritz Theatre, case (supra) wherein even though the application for adducing additional evidence was given before the Tribunal passed its final order, this Court declined to interfere saying that such a request was made at a very late stage and that is the decision of three Judges and the decision in Cooper Engineering Ltd. case (supra) is equally a decision of three Judges. Further, the decision in Cooper Engineering Ltd. case (supra) does not propose to depart from the ratio of the earlier decisions because this Court merely posed a question to itself as to what is the appropriate stage at which the opportunity has to be given to the employer to adduce additional evidence, if it so chooses to do. Merely the stage is indicated, namely, the stage after decision on the preliminary issue about the validity of the enquiry. Cooper Engineering Ltd. case (supra) is not an authority for the proposition in every case coming before the Labour Court or Industrial Tribunal under Section 10 or Section 33 of the Act complaining about the punitive termination of service following a domestic enquiry that the Court or Tribunal as a matter of law must first frame a preliminary issue and proceed to decide the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling upon the employer to adduce further evidence to sustain the charge if it so chooses to do. No section of the Act or the rules framed thereunder was read to pinpoint such an obligatory duty in law upon the Labour Court or the Industrial Tribunal. No decision was relied upon to show that such is the duty of the Labour Court or the Industrial Tribunal. This Court merely indicated the stage where such opportunity should be given meaning thereby if and when it is sought. This reading of the decision in Cooper Engineering Ltd. case (supra) is consistent with the decision in Ritz Theatre, case (supra) because there as the application for permission to adduce additional evidence was made at a late stage the Tribunal rejected it and this Court declined to interfere. Now, if the ratio of the Cooper Engineering Ltd. case is to be read to the effect that in every case as therein indicated it is an obligatory duty of the Industrial Tribunal or the Labour Court to give an opportunity after recording the finding on the preliminary issue adverse to the employer to adduce additional evidence it would run counter to the decision in Ritz Theatre, case (supra). Such is not the ratio in Cooper Engineering case (supra). When read in the context of the propositions culled out in Delhi Cloth and General Mills Co. case (supra) the decision in Cooper Engineering Ltd. case merely indicates the stage at which an opportunity is to be given but it must not be overlooked that the opportunity has to be asked for. Earlier clear cut pronouncements of the Court in R.K. Jain's case (supra) and Delhi Cloth and General Mills Co. case (supra) that this right to adduce additional evidence is a right of the management or the employer and it is to be availed of by a request at appropriate stage and there is no duty in law cast on the Industrial Tribunal or the Labour Court suo motu to give such an opportunity notwithstanding the fact that none was ever asked for are not even departed from. When we examine the matter of principle.....".
37. In D.P. Maheswari v. Delhi Admn. and Ors. (1983-II-LLJ-425)(SC) a three Judges Bench of the Apex Court held thus at p. 427:
"Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminarily objections and journeying up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is preliminarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues".
38. In Shambhu Nath Goyal v. Bank of Baroda and Ors. (1983-II-LLJ-415) (SC) it has been held by the Apex Court that the Management has got a right to adduce additional evidence to substantiate the charge while leading evidence when it is held that an enquiry was held to be defective for one or more reasons.
39. A Division Bench of the Kerala High Court in Raveendra Kamath v. Dholakia 1992 ICLR 778 held thus:
"In the context of Section 11A of the Industrial Disputes Act, the matter has been averted to in detail by the Supreme Court and the High Courts in various decisions. The gravamen of the complaint is that the management did not ask for an opportunity to adduce evidence to substantiate the charge before the Labour Court. But it has to be remembered that the Labour Court, in exercising the jurisdiction under Section 11A of the Industrial Disputes Act has to be satisfied that the order of discharge or dismissal was not justified before interfering with the same. In that behalf the Labour Court will have to find preliminarily whether the enquiry was fair and proper and the findings are tainted or perverse or not. Only if these findings are in favour of the worker, the question or the stage arises as to whether the employer could adduce evidence for the first time before the Labour Court justifying the order of discharge or dismissal".
40. In National Council for Cement & Building Materials v. State of Haryana and Ors. (1996-II-LLJ-125) (SC) after referring to Cooper Engineering Ltd. case (supra) while noting down the situation created by preliminary issues held thus at p 128:
"16. The facts in the instant case indicate that the appellant adopted the old tactics of raising a preliminary dispute so as to prolong the adjudication of industrial dispute on merits. It raised the question whether its activities constituted an "industry" within the meaning of the Industrial Disputes Act and succeeded in getting a preliminary issue framed on that question. The Tribunal was wiser. It first passed an order that it would be heard as a preliminary issue, but subsequently, by change of mind, and we think rightly, it decided to hear the issue along with other issues on merits at a later stage of the proceedings. It was at this stage that the High Court was approached by the appellant with the grievance that Industrial Tribunal, having once decided to hear the matter as a preliminary issue, could not change its mind and decide to hear that issue along with other issues on merits. The High Court rightly refused to intervene in the proceedings pending before the Industrial Tribunal at an interlocutory stage and dismissed the petition filed under Article 226 of the Constitution. The decision of the High Court is fully in consonance with the law laid down by this Court in its various decisions referred to above and we do not see any occasion to interfere with the order passed by the High Court. The appeal is dismissed, but without any order as to costs".
41. In Bharat Forge Co. Ltd. v. A.B. Zodge and Anr. (1996-II-LLJ-643) the Apex Court pointed out that the decision of the Supreme Court in Cooper Engineering case has not overruled the earlier decision in Delhi Cloth Mill's case and it has been held thus p. 645 :
"7. A domestic enquiry may be vitiated either for non-compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well-recognised. In this connection, reference may be made to the decisions of this Court in Workmen of Motipur Sugar Factory (P) Ltd. v. Motipur Sugar Factory (P) Ltd. (1965-II-LLJ-162). (SC), State Bank of India v. R.K. Jain, (supra), Delhi Cloth and General Mills and Co. Ltd. v. Ludh Budh Singh, (supra) and Firestone Tyre and Rubber Co's case (supra). The stage at which the employer should ask for permission to adduce additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill's case (supra). In Shankar Chakrabarty's case (supra), the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling him to adduce further evidence to sustain the charges. If the employer chooses to do so, by relying on the decision of this Court in the case of Cooper Engineering Ltd. (supra) has not been accepted. The view expressed in Delhi Cloth Mill's case (supra) that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Shankar Chakrabarty's case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. has not overruled the decision of this Court in Delhi Cloth Mill's case".
42. A Full Bench of the Allahabad High Court in Swarup Vegetable Products Industries Ltd. v. Labour Court II Meerut and Ors. 1997 (77) FLR 546 held that as a general rule of universal application it cannot be held that the Management could insist for the preliminary issue being adjudicated at the first instance.
43. On a consideration of the contention raised by either side and in the light of the various pronouncements of the Apex Court referred to above, this Court reiterated and makes it clear that when a domestic enquiry has been held by an employer and when he relies on the same it is well open to the employer to request the Tribunal to try the validity of the domestic enquiry as the preliminary issue and also ask for an opportunity to let in evidence before the Tribunal, if the finding on the preliminary issue is answered against the management.
44. It is well settled that the Tribunal has to deal with at the first instance as to the validity of the domestic enquiry and the contra view taken by the Labour Court in this respect cannot be sustained and the reliance placed by the Labour Court on Cipla's case in my considered view will in no way support the view taken by the Labour Court. In other words, even as on today the settled position being the preliminary issue has to be decided and only thereafter the request of the management to lead evidence deserves consideration, when the Labour Court comes to the conclusion that there was no valid enquiry. As such it is clear and it is well settled that the Tribunal has to render a finding with respect to the preliminary issue at the first instance. Merely because there is some delay or parties to the proceeding have delayed the matter under some pretext or other, it cannot be held that there is no requirement to decide the preliminary issue as has been held in Cooper Engineering, case (supra).
45. As regard the plea of res judicata the Labour Court had taken the view that the plea of res judicata will not apply on the facts of the present case. This view of the Labour Court cannot also be sustained. Conceedingly on two earlier occasions the Labour Court had rejected identical application of the workmen to let in evidence before deciding the preliminary issue. Even though the Labour Court has got certain functions of a Civil Court it cannot be considered to be a Civil Court in determining the preliminary issue as to whether the principles of res judicata in a given case would apply or not, which has to be noticed from the substantial question that came up for decision in the earlier stage of the proceeding or proceedings as the case may be.
46. It is true that the Industrial Tribunal is not a Court of General jurisdiction and it possesses a limited jurisdiction and as such the Tribunal of limited jurisdiction has the power to decide only to a certain state of fact exist. However, it has to be noticed that in the same industrial dispute between the same parties on the earlier occasion the Tribunal had taken the right view that the preliminary issue deserves to be considered for permitting the Management to let in evidence with respect to the preliminary issue and having taken such a view on more than one occasion, it is not open to the very same Labour Court to take a different view as if there had been a change in law by a latter pronouncement and that it is required or called upon to decide the preliminary issue as well as the substantial issue relating to the merits of the charges simultaneously.
47. This view of the Labour Court cannot be countenanced and the parties are bound by the earlier order passed by the Labour Court, wherein it has been held that preliminary issue has to be decided at first and factually also documents were marked for the purpose of deciding the preliminary issue. As such the second point also deserves to be answered in favour of the writ petitioner and against the workman as a Court is bound by its orders. So also the parties to the proceedings and the view taken by the Labour Court in this respect cannot be sustained in law.
48. In the foregoing circumstances, the writ petition is allowed and the impugned order of the Labour Court is quashed and I.A. No. 125 of 1999 in I.D. No. 353 of 1992 on the file of the first respondent Labour Court alone stands dismissed. No costs. Consequently, the connected W.M.P. is closed.
49. It is heedless to state that the Labour Court shall decide the preliminary issue expeditiously without delay and in the event of the Labour Court deciding the preliminary issue against the management it is open to the management to seek for an opportunity to substantiate the charges by leading evidence. The delay could not be avoided on the facts as the workman had contributed much for the delay.
50. It is needless to add that the Labour Court has to give priority to I.D. No. 353 of 1999 pending on its file since 1992 and see that the matter is disposed of expeditiously.