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(b) Does the Complainant/ second party workman prove that the findings of the Enquiry Officer are perverse ?

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10              The   learned   counsel   for   the   Petitioner   raised   an   issue   that 

lawyers and litigants are still unsure as to how the case of a challenge to the second show cause notice proposing a punishment, is to be dealt with by the Labour/ Industrial Court or Tribunal, as the case may be.

"14. Referring to the decision of the learned Single Judge in Chandrikaprasad's case, it was strenuously argued by the learned Advocate for the respondent that there was not even an attempt on the part of the petitioner in the course of argument to submit that the petitioner would lead evidence in support of the charges of misconduct, in case the Labour Court holds the findings of the Enquiry Officer to be perverse. Indeed, in Chandrikaprasad's case, the learned Single Judge while considering the point of failure on the part of the Labour Court to allow the employer to adduce evidence pursuant to the finding that the domestic enquiry was not fair and proper and the findings recorded by the Enquiry Officer were perverse. It was observed that in the written statement filed by the employer, no plea was raised in the alternative that in case the enquiry held against the employee is not fair and proper or is held to be perverse, the employer be given an opportunity to prove the charges against the employee and even *7* 9wp2730o04 when issues were framed after the parties had tendered draft issues, the employer had never pressed that the issue regarding fairness of the enquiry or the correctness of the findings recorded by the Enquiry Officer should be tried as preliminary issue. Not only that when during the course of arguments no request was made that if the Court holds that enquiry against the employee was not fair and proper or the findings recorded by the Enquiry Officer were perverse, the employer should be given opportunity to lead evidence. Having sat on the fence and allowed the proceedings to complete, it was not open to the employer, after the proceedings were closed before the Labour Court and judgment was delivered, to raise the contention, during the course of hearing of revision application for the first time even in absence of any ground in memo of revision that Labour Court ought to have asked employer to lead evidence to prove the misconduct on merits before the Labour Court. According to the learned Advocate for the petitioner, the facts of the case in hand are similar to those of Chandrikaprasad's case inasmuch as, there was no request made by the petitioner in the course of arguments for allowing the petitioner to lead evidence in case the Labour Court holds that the findings of the Enquiry officer to be perverse nor, the issue in that regard was requested to be tried as preliminary issue. It cannot be disputed that the petitioner could have certainly drawn attention of the Labour Court at the time of framing issues that the issue in relation to whether the findings of the Enquiry Officer to be perverse, ought to have been tried as preliminary issue. It is also a matter of record that on completion of the evidence led by the petitioner in answer to the evidence, led by the respondent, the petitioner had filed purshis closing its evidence. The impugned order also does not disclose any request having been made by the petitioner to the Labour Court in the course of arguments for reserving its right to lead evidence in support of the charges of misconduct and punishment imposed, in case the Labour Court holds the findings of the Enquiry Officer to be perverse. However, as *8* 9wp2730o04 rightly submitted by the learned Advocate for the petitioner, in spite of these facts, the point which is required to be considered is whether the employer was afforded or not an opportunity to exercise his right to adduce evidence once the tribunal holds that the findings of the Enquiry Officer are perverse. Undisputedly, the decision of the Labour Court that the findings of the Enquiry Officer in the Domestic Enquiry were perverse was arrived in the judgment and order dated 6th April, 1999 itself and not prior to the delivery of the said judgment and order and, thereafter, there was no opportunity made available to the petitioner to lead any evidence in support of the charges against the respondent in spite of the fact that the pleadings in that regard disclose the required alternative plea. Undisputedly, in Chandrikaprasad's case, there was no such plea raised in the written statement. Basically, therefore, the employer had not disclosed any willingness on its part to lead evidence in support of the charges and punishment imposed by the management in case the Labour Court comes to the conclusion that the findings arrived at by the Enquiry Officer were perverse. Considering the law laid down by the Apex Court in Bharat Forge Company Limited's case and Karnataka State Road Transport Corporation's case, it being the matter of right of the employer on necessary alternative plea being made in the written statement, it was necessary for the Labour Court to afford an opportunity to the employer to lead evidence in support of the charges and punishment imposed once, the Labour Court has held that the findings arrived at by the Enquiry Officer were perverse. In this connection, it was sought to be contended by the learned Advocate for the respondent that there is no procedure prescribed whereby the parties are entitled to lead evidence in piecemeal on every issue. There can be no quarrel about the proposition canvassed by the learned Advocate for the respondent. However, the fact remains that it was necessary for the Labour Court to frame issue as to whether the findings of the Enquiry Officer being perverse along with the issue regarding *9* 9wp2730o04 the Domestic Enquiry to be in accordance with the principles of natural justice or not. For the lapse on the part of the Labour Court, the parties cannot be blamed in that regard. No doubt, the parties also could have assisted the Labour Court by bringing the said fact to the notice of the Labour Court at the time of holding of the enquiry in relation to the point as to whether the Domestic Enquiry was in accordance with the principles of natural justice or not. But, having not done so, apparently, the right of the employer to lead evidence in support of the charges and punishment imposed, once the Labour Court comes to the conclusion that the findings of the Enquiry Officer were perverse, cannot be denied to the employer, and more particularly, when denial of such right has resulted in prejudice to the petitioner.

15. It was also sought to be contended on behalf of the respondents that the plea that no opportunity was afforded to the petitioner to lead evidence after the said findings of the Enquiry Officer being held to be perverse, was not specifically raised in the revision application before the Industrial Court. However, the ground (C) of the revision application specifically refers to the point as to improper framing of issues resulting in miscarriage of justice and reference to the decisions of the Apex Court in Bharat Forge Company Ltd's case. Certainly, the decision of the Apex Court in Bharat Forge Company Ltd's case is regarding the employers right to adduce evidence in case the Labour Court comes to the conclusion that the findings arrived in disciplinary proceedings are perverse. Besides, the impugned judgment dated 16-1-2001 specifically refers to the arguments advanced in that regard and placing of reliance in the decision of the Apex Court in Bharat Forge Company Ltd's case. Being so, it cannot be said that it is for the first time the issue regarding the failure on the part of the Labour Court to give an opportunity to the employer to lead evidence pursuant to the decision regarding the findings of the Enquiry Officer being perverse is raised."

28 On the above count, in my view, the law applicable to cases wherein the delinquent has approached the Court post dismissal, would not be any different than the case in which the delinquent has approached the Court against the proposed punishment of dismissal. The Division *29* 9wp2730o04 Bench of this Court and the Honourable Apex Court in the Hindustan Lever Case (supra) have crystallized this position that, while a delinquent would have a right to approach the Labour Court under Item 1 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (for short "the MRTU and PULP Act"), the Labour Court will have to prima facie assess whether, the proposed action of the employer amounts to unfair labour practice under any of the sub-clauses of Item 1 of Schedule IV. No relief is to be granted by the Labour Court merely because the Complainant has approached the Court for challenging the second show cause notice. 29 Therefore, the law and procedure applicable to cases post dismissal would mutatis mutandis apply even to those cases, wherein, the employee has approached the Labour Court against the second show cause notice proposing the punishment of dismissal. While dealing with such cases and at the stage of issuing notice to the Employer, it is incumbent upon the Labour Court to consider whether, a strong prima facie case is made out by the delinquent for which he can be granted an ex-parte ad- interim protection pending appearance of the Employer, keeping in view the note of caution struck by the Honourable Supreme Court in paragraph 54 of the Hindustan Lever judgment (supra). It cannot be ignored that invariably the delinquent approaches the Labour Court at the last moment so as to practically compel the Court to grant ad-interim protection on the *30* 9wp2730o04 plea that the complaint would become infructuous. The Labour Court should not get swayed by such circumstances. 30 After the Employer appears and the pleadings are complete, the Labour Court would have to frame the above mentioned two issues and decide them peremptorily by following the same procedure as is applicable to the cases wherein, the delinquent has approached the Court after dismissal. The employer in such cases is under a legal obligation to produce the entire record and proceedings of the enquiry so as to enable the Labour Court to scan through the said record while deciding the first two issues. No oral evidence is required to be adduced by any side when the Labour Court is dealing with the first two issues which are exclusively restricted to the record and proceedings of the enquiry. 31 In the instant case, the Labour Court neither framed the above stated two issues, nor did it set aside the enquiry either for being conducted in violation of the principles of natural justice or on account of the findings of the Enquiry Officer being rendered perverse. The Labour Court noted that though no oral evidence is adduced by either of the parties, (which in any case they were not entitled to lead), it has interfered with the findings of the Enquiry Officer by concluding that the charges are not proved against the delinquent. The second show cause notice was, therefore, set aside.