Allahabad High Court
Swarup Vegetable Products Industries ... vs Labour Court-Ii, Meerut And Another on 28 July, 1997
Equivalent citations: 1998(1)AWC491, (1997)2UPLBEC1395
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, C.J.
1. The learned single Judge, before whom the case was initially laid, referred the following 2 questions for consideration by a larger Bench:
1. Whether the Labour Court/Industrial Tribunal have any statutory or legal obligation to decide any issue as preliminary issue while adjudicating an Industrial dispute in accordance with procedure provided under Rules framed under U. P. Industrial Disputes Act?
2 Whether the High Court can in exercise of its jurisdiction under Article 226 of the Constitution mandate a Court or Tribunal to follow a procedure contrary to statutory Rules?
When the case was listed before a Division Bench, the Bench took the view that the matter should be placed before a Full Bench for deciding the questions referred by the learned single Judge. That is how the case has been listed before this Full Bench for decision on the aforementioned questions.
2. Shortly stated, the question that falls for determination is whether in a case where the validity of an order of dismissal, discharge, removal or termination of service is referred to the Industrial Tribunal or Labour Court for adjudication, the management can insist on the issue regarding legality of the domestic enquiry conducted by the management to be decided as a preliminary issue and thereafter to decide whether it will adduce evidence before the Industrial Tribunal or Labour Court to prove the charges. Experience shows that in such cases the management in its written statement pleads in favour of summary dismissal of the case on the ground that the order of dismissal, removal or termination was preceded by a valid domestic enquiry held in accordance with the procedure laid down in the service rules or standing order and therefore, the Industrial Tribunal/Labour Court should decline to interfere in the matter. in the pleadings the Management also takes an alternative stand to establish the charges before the Industrial Tribunal or Labour Court. The question is whether in such cases the Management is entitled as of right to have the issue of legality of the domestic enquiry decided as a preliminary issue or the Industrial Tribunal or Labour Court may pass an order to take up all the issues together and decide the entire case at a time. The difference in following the two procedures will be that the battle will be fought piecemeal, first on the issue of legality and validity of the domestic enquiry and thereafter on the issue of Justifiability or otherwise of the charges. If necessary. It is often contended on behalf of the management in such cases that it Js entitled to have the decision of the Industrial Tribunal/Labour Court on the preliminary issue before it can be called upon to decide whether to adduce evidence to establish the charges before the Industrial Tribunal/Labour Court.
3. Before discussing the point on merit, it will be convenient to notice the relevant statutory provisions in the U. P. Industrial Disputes Act. 1947 (U. P. Act No XXVIII of 1947) (hereinafter referred to as the U. P. Act) and the Industrial Disputes Act. 1947 (Act No. XIV of 1947) (hereinafter referred to as the Central Act). Section 6 of the U. P. Act reads as follows :
"6 Awards and action to be taken thereon.--(1) Where an Industrial dispute has been referred to a Labour Court or Tribunal for adjudication, it shall hold its proceedings expeditiously and shall as soon as it is practicable on the conclusion thereof, submit its award to the State Government.
(2) The award of a Labour Court or Tribunal shall be in writing and shall be signed by Its Presiding Officer.
(2A) An award in an Industrial dispute relating to the discharge or dismissal of a workman may direct the setting aside of the discharge or dismissal and reinstatement of the workman on such terms and conditions, If any, as the authority making the award may think fit, or granting such other relief to the workman, including the substitution of any lesser punishment for discharge or dismissal, as the circumstances of the case may require.
(3) Subject to the provisions of sub-section (4) every arbitration award and the award of a Labour Court or Tribunal, shall, within a period of thirty days from the date of its receipt by the State Government be published in such manner as the State Government thinks fit.
(4) Before publication of an award of a Labour Court or Tribunal under sub-section (3), If the State Government is of the opinion that-
(a) the adjudicating authority has unreasonably refused permission to any party to adduce evidence ; or
(b) any party was prevented by any other sufficient cause from adducing evidence; or
(c) new and important material fact or evidence has come to notice, which after the exercise of due diligence, was not within the knowledge of, or could not be produced by, the parry at the time when the award was made; or
(d) the award is likely to disturb the Industrial peace ; or
(e) the award is likely to affect prejudicially the national or State economy; or
(f) the award is likely to interfere with the principles of social justice ; or
(g) the award has left undetermined any of the matters referred for adjudication and such matter cannot be separated without affecting the determination of the matters referred ; or
(h) the award is so indefinite as to be incapable of being enforced ; or
(i) Illegality of the award is apparent upon the face of it, it may after giving the parties reasonable opportunity of being heard, for reasons to be recorded, remit the award for reconsideration of the adjudicating authority, and that authority shall, after reconsideration, submit its award to the State Government, and the State Government shall publish the award in the manner provided in sub-section (3).
(5) Subject to the provision of Section 6A, an award published under subsection (3) shall be final and shall not be called in question to any court in any manner whatsoever.
(6) A Labour Court, Tribunal or Arbitrator may either of its own motion of on the application of any party to the dispute, correct any clerical or arithmetical mistakes in the award, or errors arising therein from any accidental slip or omission ; whenever any correction is made as aforesaid, a copy of the order shall be sent to the State Government and the provision of this Act ; relating to the publication of an award shall mutatis mutandis apply thereto."
The part materia provision of this section in the Central Act is Section 11A which reads :
"11 A. Powers of Labour Courts. Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.--Where an Industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified. It may, by its award, set aside the order of discharge or dismissal was not justified, tt may, by Its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions. If any, as It thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
4. Sub-section (2A) of Section 6 of the U- P. Act was inserted by amendment by U. P. Act No. 34 of 1978 with effect from 23.10.1978 and Section 11A of the Central Act was introduced by Industrial Disputes (Amendment) Act No. 45 of 1971 with effect from 15.12.1971.
5. The position is well-settled that the principal intent and purpose of the Industrial Disputes Act is to ensure Industrial peace in undertakings and to ensure expeditious disposal of disputes between management and its workmen either by conciliation or by adjudication. For achieving this purpose, it is necessary that Industrial adjudications should reach finality as early as possible. Judicial notice of this position has been taken in several decisions of the Supreme Court and different High Courts. The Importance of expeditious disposal has been felt mainly for the reason that litigation between the mighty management and poor workman is a fight of unequal and in such cases, experience shows that management usually tries to delay the proceedings as much as possible to harass the workman who has lost means of earning his bread on account of the dismissal, discharge or termination order. The question whether there should be piecemeal disposal of the dispute referred for adjudication by deciding one of the issues relating to validity and legality of the domestic enquiry as a preliminary and thereafter take up the charges framed against the workman, if necessary, or all the issues should be decided together is to be approached in the light of this well accepted principle. Viewed from this angle, it is not difficult to see that the answer to the question in the context of the matter is in favour of, trial of all the issues together. But that is not to say that in an appropriate case judged on the facts and circumstances, the Tribunal/Labour Court cannot decide the issues relating to validity of the domestic enquiry as a preliminary issue before proceeding further in the matter. But it cannot be laid down as a general principle of universal application that the Management as of right can insist that the Industrial Tribunal/Labour Court is bound to accept its request to take up such issues as a preliminary issue whenever sought for in a case.
6. The Supreme Court in the case of Workmen of M/s. Firestone Tyre and Rubber Co. of india (Pvt.) Ltd. v. Management and others. AIR 1973 SC 1227, considering the change in the legal position brought about by introduction of Section 11A of the Industrial Disputes Act, 1947 held that even where the dismissal of a workman by an employer on ground of misconduct is preceded by a proper and valid enquiry, Section 11A now empowers the Labour Court or Tribunal to reappraise the evidence and examine the correctness of the finding thereat ; that Section 11A further empowers it to interfere with the punishment and alter the same : that the mere fact that no enquiry or defective enquiry has been held by the employer does not by Itself render the dismissal of workman illegal; that the right of the employer to adduce evidence justifying his action for the first time in such a case is not taken away by the proviso to Section 11A. The court further held that Section 11A is prospective in its operation ; that is. It applies only to disputes referred for adjudication on or after the date of its coming into force (15.12.1971). The discussions in the Judgment, relevant for the present purpose, are quoted hereunder :
"30. This will be a convenient stage to consider the contents of Section 11A. To invoke Section 11A, it is necessary that an Industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. in the course of such adjudication, the Tribunal has to be satisfied that the order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the workman including the imposition of a lesser punishment having due regard to the circumstances. The proviso casts a duty on the Tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence. Even a mere reading of the section, in our opinion, does indicate that a change in the law as laid down by this Court has been effected. According to the workmen the entire law has been completely altered, whereas according to the employers, a very minor change has been effected giving power to the Tribunal only to alter the punishment, after having held that the misconduct is proved. That is according to the employers, the Tribunal has a mere power to alter the punishment after it holds that the misconduct is proved. The workmen, on the other hand, claim that the law has been rewritten."
"32. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by the Court in indian Iron and Steel Co. Ltd., 1958 SCR 667 : AIR 1958 SC 130, existed. The conduct of disciplinary proceeding and the punishment to be Imposed were all considered to be a managerial function which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been charged by Section 11A. The words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not Justified, clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in indian Iron and Steel Co. Ltd.. 1958 SCR 667 : AIR 1958 SC 130, case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out what was once largely in the realm of the satisfaction of the employer, has ceased to be so : and now it is the satisfaction of the Tribunal that finally decides the matter."
"33. If there has been no enquiry held by the employer or if the enquiry is held to be defective. It is open to the employer even now to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. We are not inclined to accept the contention on behalf of the workmen that the right of the employer to adduce evidence before the Tribunal for the first time recognised by this Court in its various decisions has been taken away. There is no indication in the section that the said right has been abrogated. If the intention of the Legislature was to do away with such a right, which has been recognised over a long period of years, as will be noticed by the decisions referred to earlier, the section would have been differently worded. Admittedly there are no express words to that effect, and there is no indication that the section has impliedly changed the law in that respect. Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he had held no enquiry or the enquiry held by him is found to be defective. Of course, an opportunity will have to be given to the workman to lead evidence contra. 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., 1972 (1) Lab LJ 180 : AIR 1972 SC 1031. 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."
"34. All parties are agreed that even after 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."
"36. 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 can now differ from that finding in a proper case and hold that no misconduct is proved."
"46. We have indicated the changes effected in the law by Section 11A. We should not be understood as laying down that there is no obligation whatsoever on the part of an employer to hold an enquiry before passing an order of discharge or dismissal. This Court has consistently been holding that an employer is expected to hold a proper enquiry according to the standing orders and principles of natural Justice. It has also been emphasised that such an enquiry should not be an empty formality. If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the Management, will have to give very cogent reasons for not accepting the view of the employer. Further by holding a proper enquiry, the employer will also escape the charge of having acted arbitrarily or mala fide. It cannot be over emphasized that conducting of a proper and valid enquiry by an employer will conduce to harmonious and healthy relationship between him and the workmen and it will serve the cause of Industrial peace. Further it will also enable an employer to persuade the Tribunal to accept the enquiry as proper and the finding also as correct."
7. in the case of Scooter india Limited, Lucknow v. Labour Court, Lucknow and others, AIR 1989 SC 149, a Division Bench of the Supreme Court construing Section 11A. Industrial Disputes Act and Section 6 (2A) of the U. P. Industrial Disputes Act, 1947 and considering the facts of the case held that though the domestic enquiry held by the Management was found to be fair and lawful and the finding not to be vitiated in any manner, but the court interfered with the quantum of punishment. The court held that it cannot, therefore, be said that the Labour Court had exercised its powers under Section 6 (2A) of the Act in an arbitrary manner and not in a Judicial manner. The Labour Court has taken the view that Justice must be tampered with mercy and that the erring workman should be given an opportunity of reform himself and prove to be a loyal and disciplined employee of the petitioner company. it cannot, therefore, be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section 6 (2A) of the Act.
8. A three Judge Bench of the Supreme Court in the case of Cooper Engineering Ltd. u. P. P. Mundha, AIR 1975 SC 1900, considered the question of affording opportunity to the Management to adduce evidence before the Industrial Tribunal/Labour Court to substantiate the charges in a case of absence of domestic enquiry or defective enquiry. Referring to the case of Workmen o/M/s. Firestone Tyre and Rubber Co. (supra), the Court ruled ;
"21. Propositions (4). (6) and (7) set out above are well recognised. It is however, fair and in accordance with the principles of natural Justice for the Labour Court to withhold its decision on a Jurisdictional point at the appropriate stage and visit a party with evil consequences of a default on its part in not asking the court to give an opportunity to adduce additional evidence at the commencement of the proceedings or, at any rate, in advance of the pronouncement of the order in that behalf? in our considered opinion it will be most unnatural and unpractical to expect a party to take a definite stand when a decision of a jurisdiction at fact has first to be reached by the Labour Court prior to embarking upon an enquiry to decide the dispute on its merits. The reference involves determination of the larger issue of discharge or dismissal and not merely whether a correct procedure had been followed by the Management before passing the order of dismissal. Besides, even if the order of dismissal is set aside on the ground of defect of enquiry, a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to? This is neither going to achieve the paramount object of the Act, namely. Industrial peace, since the award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed pro-tempore, as a result of such an award, will be revived and Industrial peace will again be ruptured. Again another object of expeditious disposal of an Industrial dispute (See Section 15) will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster Industrial peace."
"22. 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 has 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 decision 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. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in Industrial adjudication."
9. A similar question was considered by a three Judge Bench of the Supreme Court in the case of Shankar Chakrawarti v. Britannia Biscuit Co. Ltd, and another. AIR 1979 SC 1652. Thereat the court ruled that in a proceeding under Sections 33(2)(b) and 10 enquiry was found to be conducted in violation of principles of natural justice and the employer did not ask for an opportunity to lead evidence to prove the charges, no duty was cast on the Tribunal suo motu to call upon the employer to adduce evidence and that the High Court committed error in granting non-sought opportunity at the stage. Considering the power vested in the Industrial Tribunal or the Labour Court under the rules and the procedure laid down for adjudication of disputes referred or raised before it the court observed that the Labour Court on Industrial Tribunal has to decide the lis on the evidence adduced before that while it may not be hidebound by the rules prescribed in the Evidence Act, it is nonetheless a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it ; that it would not be open to it to decide the 11s on any extraneous considerations ; that Justice, equity and good conscience will inform its adjudication ; that the Labour Court or the Industrial Tribunal has all the trappings of a Court. Considering the specific question of duty of the Labour Court or the Industrial Tribunal to call upon the Management to adduce evidence in a case where the domestic enquiry is found to be defective, the court made the following observations :
"31. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi-judicial Tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and it entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Put.) Ltd. v. Industrial Tribunal, (1967) 2 Lab LJ 677 at p. 680, (Punj), commends to us. The rules of fair play demand that where a party seeks to establish a contention which it proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary."
"32. Can it for a moment be suggested that this elementary principle does not inform Industrial adjudication? The answer must be an emphatic 'no'."
"33. The employer terminates the service of a workman. That termination raises an Industrial dispute either by way of an application under Section 33 , of the Act by the employer or by way of a reference by the appropriate Government under Section 10. if an application is made by the employer as it is required to be made in the prescribed form all facts are required to be pleaded. If a relief is asked for in the alternative that has to be pleaded. in an application under Section 33 the employer has to plead that a domestic enquiry has been held and it is legal and valid. in the alternative it must plead that a domestic enquiry has been taken and it is legal if the Labour Court or Industrial Tribunal comes to the conclusion that either there was no enquiry or the one held was defective, the employer would adduce evidence to substantiate the charges of misconduct alleged against the workman. Now, if no such pleading is put forth either at the initial stage or during the pendency of the proceedings there arises no question of a sort of advisory role or the Labour Court or the Industrial Tribunal, unintended by the Act to advise the employer, a party much better off than the workman, to inform it about its rights, namely, the right to lead additional evidence and then give an opportunity which was never sought. This runs counter to the grain of Industrial Jurisprudence. Undoubtedly, if such a pleading is raised and an opportunity is sought it is to be given but if there is no such pleading either in the original application or in the statement of claim or written statement or by way of an application during the pendency of the proceedings there is no duty cast by law or by the rules of justice, reason and fair play that a quasi-
Judicial Tribunal like the Industrial Tribunal or the Labour Court should adopt an advisory role by informing the employer of its rights, namely, the right to adduce additional evidence to substantiate the charges when it failed to make good the domestic enquiry and then to give an opportunity to it to adduce additional evidence. This, apart from being unfair to the workman, is against the principles or rules governing the procedure to be adopted by quasi-judicial Tribunal, against the grain of adversary system and against the principles governing decision of a 11s between the parties arrayed before a quasi-judicial Tribunal."
10. in the case of D. P. Maheshwari v. Delhi Administration and others, AIR 1984 SC 153, a three Judge Bench of the Supreme Court specifically held that Tribunal entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise Industrial peace, should decide all issues in disputes at the same time without trying some of them as preliminary issues and the High Courts in the exercise of their jurisdiction under Article 226 of the Constitution, should not stop proceedings before a Tribunal so that a preliminary issue may be decided by them. The relevant observations made by the court on the issue are extracted hereunder :
"It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of Industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, some times for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that Tribunals, particularly those entrusted with the task of adjudicating Labour disputes where delay may lead to misery and unjeopardise Industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the Jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not, meant to break the resistance of workmen in this fashion. 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 stiffed by all manner of preliminary 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 primarily 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."
11. in another case reported in the same volume at page 289 in the case of Shambhu Nath Goyal v. Bank of Baroda and others, the same Bench considering Sections 33, 10, 11 and 11A, Industrial Disputes Act held that after the Management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the Management under Section 33 of the Act, then, the Management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay ; but when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry, there is no question of the Management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the Management has the opportunity to look into that statement before it files its written statement of defeat in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself, if it does not choose to do so at that stage it cannot be allowed to do It at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the moral of the workman and compel him to surrender which he may not otherwise do.
12. D. A. Desal, J,, while concurring with the decision taken by the other learned Judges, observed:
"It cannot be said that some independent right to make an application at any time is conferred on the employer. Ordinarily, where a party claims relief, it must plead for the same. The pleading can be incorporated in a statement of claim or a written statement of defence. It is not the law that an application at any stage of the proceed without explaining why the relief was not claimed in the original pleading has to be granted. If a separate application is made, it would be open to the Labour Court/Industrial Tribunal to examine the question whether it should be granted or not depending upon the stage when it is made, the omission to claim the relief in the initial pleadings, the delay and the motivation for such delayed action. Without being specific, it can be said that such an application has to be examined as if it is an application for amendment of original pleadings keeping in view all the aforementioned considerations and if it does not appear to be bona fide or has been made after a long unexplained delay or the explanation for the omission of claiming the relief in the initial pleading is unconvincing, the Labour Court/Industrial Tribunal would be perfectly justified in rejecting the same. It is not a proposition of law that as and when it suits the convenience of the employer at any stage of the proceedings it may make an application seeking such opportunity and the Labour Court/Industrial Tribunal was obliged to grant the same."
13. Coming to the decisions of this Court, in the case of M/s. Star Paper Mills Ltd. v. Presiding Officer, Meerut. 1987 LIC 1854,3. K. Dhaon, J., held that if a proper request is made at the appropriate stage either by an employer or an employee before the Tribunal or any other forum created under the Act, for the framing of a preliminary issue, the same may be considered and allowed and the Tribunal concerned may frame a preliminary issue, if such an issue goes to the root of the matter. Considering the question of framing a preliminary issue on the validity of the proceedings in the domestic enquiry, the learned Judge held that the decision on a preliminary issue framed on the validity of the proceedings in the domestic enquiry will be a decision on a jurisdictional fact and normally, a court or Tribunal will not only be acting arbitrarily, but also failing to exercise its Jurisdiction if it does not accede to the request of an employer to frame a preliminary issue on the validity of the proceedings in the domestic enquiry and give a decision thereon.
14. in the case of M/s. Vikram Cotton Mills v. Presiding Officer, Industrial Tribunal No. II, Lucknow and others, 1989 (59) FLR 386, B. L. Loomba, J., confirmed the order of the Industrial Tribunal declining to consider the question whether the domestic enquiry held by the Management was fair and proper as a preliminary issue. He placed reliance in the cases of D. P. Maheshwari, 1983 (47) FLR 477 ; Shambhoo Nath Goel v. Bank of Baroda, 1983 (47) FLR 438 ; Shanker Chakrawartt v. Britannia Biscuit Co. Ltd. and another, 1979 (39) FLR, and other cases of the Supreme Court.
15. A Division Bench of this Court in the case of M/s. D. C. M. Shriram industries Ltd. v. State of U. P., 1996 (72) FLR 713, considered the decisions in the cases of Cooper Engineering Ltd. (supra) and D. P. Maheshwari (supra) and held that the question of leading any evidence by the petitioner on the merit of termination would only arise in case it is held that the procedure adopted in the domestic enquiry violated the principle of natural justice and for that and other reasons raised in the dispute the said domestic enquiry is set aside. The Court expressed itself thus :
"The question still remains can Management be asked to adduce evidence even before holding whether preliminary issue was defective or not. This decision can only be arrived at after the decision regarding the preliminary enquiry, otherwise there will be parallel evidence one led in the preliminary enquiry and other before the Tribunal on merits that would embarrass to justify both on the basis of evidence of preliminary enquiry and the subsequent evidence led on the merits for the same set of facts. Thus, question of holding enquiry on merits would only arise incase domestic enquiry is held to be illegal."
The Division Bench overruled the decision in M/s. Vikram Cotton Mills as not correctly decided and, approved the decision in M/s. Star Paper Mills Ltd. as rightly decided.
16. From the conspectus of views expressed by the Supreme Court in the aforementioned decisions, the position that emerges is that once a reference has been made to an Industrial Tribunal, then all the issues which arise, whether Jurisdictional or merit, must be decided together. The process of adjudication by the Industrial Tribunal/Labour Court must be completed as expeditiously as possible. It is not obligatory on the Industrial Tribunal or Labour Court to frame a preliminary issue. Law does not enjoin the Tribunal to decide if the enquiry was fair and proper initially and then to grant an opportunity to the Management if the finding went against it, to adduce evidence on the delinquency of the workmen and the punishment imposed. On the other hand, the law casts a duty on the Industrial Tribunal/Labour Court to decide not only whether the domestic enquiry was fair and proper but also whether the punishment imposed by the employer was Justified in the facts and circumstances of the case. The Industrial Tribunal/Labour Court should consider entire case in the light of the evidence adduced before it. The Industrial Tribunal/Labour Court should particularly bear in mind the provisions of Section 11A of the Central Act and Section 6 (2A) of the U. P. Act (U. P. Industrial Disputes Act) and remember that the main purpose of creating a forum for Industrial adjudication is to avoid delay in disposal of proceedings. Viewed in this angle, we hold the Division Bench of this Court in the case of D. C. M. Shriram industries Ltd, was not right in holding that the Management can lead evidence to establish the charges against the workman only after decision on the issue whether domestic enquiry was fair and proper and, therefore, such issue should be taken as a preliminary issue. It is, accordingly, overruled. The decision of the single Judge in M/s. Star Paper Mills Ltd. (supra) is also overruled. The decision of the single Judge in the case of M/s. Vikram Cotton Mlls (supra) has our approval.
17. in view of the above discussion, question No. 1 referred by the Division Bench is answered in the negative. Question No. 1 having been answered in the negative, it is not necessary to answer question No. 2.
18. The case may now be placed before the appropriate Bench for decision.