Civil Appeal No 1716 of 1969
Appeal by special leave from the award dated the 31st March 1969 of the Labour Court Kolhapur Maharashtra in Reference IDA No f 1968
B Sen and I N Shroff for the appellant
R K Garg section C Agarwal and V J Francis for the respondent
The Judgment of the Court was delivered by GOSWAMI J
The important question which has been pinpointed hl this appeal by special leave is whether when a domestic inquiry held by an employer is found by the labour court as violative of the principles of natural justice there is any duty cast upon that court to give an opportunity to the employer to adduce evidence afresh before it and whether to do so would vitiate its award
362 In the present case the workman concerned was charged under the standing orders of the company for soliciting or collecting from the employees contributions for some purpose allegedly purchase of microphone and loud speaker arrangements within the factory premises
The workman denied the charge of soliciting or collecting contribution within the factory premises for purchase of microphone and loudspeaker but added that for this purpose I collect the said contribution outside the gate of the Company and this being so such erroneous information supplied to you by someone should not be considered acceptable
After holding the domestic inquiry in which some witnesses were examined by the employer and cross examined by the workman and questioning the workman at the outset as well as at the end of the inquiry the Enquiry Officer Submitted very brief report to the Works Manager hereinafter the Manager holding that the charges were established
He did not give any detailed reasons for preferring the evidence of the six witnesses examined on behalf of the employer in the inquiry to the version of the workman
The Manager after perusal of the report of the Enquiry officer passed the order of dismissal without adverting to the evidence in the inquiry
This was particularly necessary since the Enquiry Officer had not given his reasons for his finding
Another incident occurred during the inquiry before the Manager
The workman after answering the first question of the Manager
when another question was put abruptly left the inquiry without paying any heed to the orders of the Manager and to persuasion of other officer resent asking him to wait
The dismissal order was passed the same afternoon
In this appeal we will proceed on the assumption that the domestic inquiry was rightly found by the labour court to be defective
The labour court is aware of the legal position that it was competent in this case to take evidence of the parties and come to its own conclusion on the merits of the case and to decide whether the order of dismissal was justified or not to enable it to consider about the relief if any to he awarded to the workman
The labour court however observed in its award that in the instant case no evidence regarding merits is led by the opponent before this Court
It is open to the Labour Court to hold an enquiry itself
But the opponent has chosen not to lead any evidence regarding the merits of the alleged misconduct
The natural result of vitiating the enquiry would therefore be to set aside the order of dismissal and to direct the reinstatement in service of the dismissed employee with all back wages
The question posed at the commencement of our judgment is thus highlighted by the aforesaid observations of the labour court and we are required to consider whether after the labour court comes to a decision about the inquiry being defective it has any duty to announce its decision in that behalf to enable the employer an opportunity to adduce evidence before it to justify the order on the charge levelled against a workman
363 There is however no doubt that when the employer chooses to do so the workman will have his opportunity to rebut such evidence
There is also no doubt whatsoever that if the employer declines to avail of such an opportunity it will be open to the labour court to make an appropriate award and the employer will thereafter be able to make no grievance on that score
In dealing with a case of dismissal of an industrial employee this Court has time and again adverted to various principles and it is not necessary to recount all those decisions
It will be sufficient to concentrate our attention only on a few of the decisions so far as material for our purpose and which are also rightly referred to at the bar
The first case arising out of an award that has a material Bearing on the question is that of Workmen of Motipur Sugar Factory Private Limited vs Motipur Sugar Factory1 which is a decision of four learned Judges
Inter alia the question that arose in that appeal was as to whether since the management held no inquiry as required by the standing orders it could not justify the discharge before the Tribunal
In Motipur Sugar Factory s case supra the Court observed at page 597 of the report as follows  If it is held that in cases where the employer dismisses his employee without holding an enquiry the dismissal must he set aside by the industrial tribunal only on that ground it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again
In that case another industrial dispute would arise and the employer would be entitled to rely
upon the enquiry which he had held in the meantime
This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given
On the other hand if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee
That is why this Court has consistently held that if the domestic enquiry is irregular invalid or improper the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself
This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes
The consequence that can ensue from a contrary view as noticed by the Court in Motipur Sugar Factory s case supra will appear from what took place in the Management of Northern Railway
Cooperative Society Ltd vs Industrial Tribunal Rajasthan Jaipur and Anr2 where pursuant to the award after reinstating the employee the management 1  2  364 drew a fresh proceeding and passed a fresh order of removal and the A said order was again the subject matter of another reference to the industrial tribunal
The pertinent question that arises for consideration is whether it is the duty of the tribunal to make known its decision to the parties on this jurisdictional aspect of the case so that the employer can avail of the opportunity to justify the dismissal based on the charge
In Management of Ritz Theatre P Ltd vs Its workmen 1 this Court was required to deal with rather ingenious argument
It was contended in that case by the workmen in support of the tribunal s decision that since the management at the very commencement of the trial before the Tribunal adduced evidence with regard to the merits of the case it should be held that it had given up its claim to the propriety or validity of the domestic enquiry
While repelling this argument this court made some significant observations In enquiries of this kind the first question which the Tribunal has to consider is whether a proper enquiry has been held or not
Logically it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the finding recorded at such an enquiry are perverse that the Tribunal derives jurisdiction to deal with the merits of the dispute
Ir the view taken by Tribunal was held to be correct it would lead to this anamoly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself because as soon as he asks for permission to lead additional evidence it would follow that he gives up his stand based on the holding of the domestic enquiry
Other wise it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue
If the finding on that preliminary issue is in favour of the employer then no additional evidence need be cited by the employer if the finding on the said issue is against hm permission will have to be given to the employer to cite additional evidence
Although this Court in Ritz Theatre s case supra observed that such a procedure may be elaborate and somewhat cumbersome it was not held to be illegal nor had if been rejected out of hand In State Bank of India vs R K Jain  ors2 this Court had to deal with a similar question
The contention on behalf of the management in that case was that Even assuming that the domestic inquiry conducted by the Bank was in any manner vitiated the Industrial Tribunal 1 1963 3 SCR461 469 470 2 1972 I SCR 755766777
365 erred in law in not giving an opportunity to the management to adduce evidence before it to establish the validity of the order of discharge
In dealing with the above contention this Court observed as follows If the management defend its action solely on the basis that the domestic inquiry held by it is proper and valid and if Tribunal holds against the management on that point the management will fail
It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal
It may be emphasised that it is the right of the management to sustain its order by adducing also 
independent evidence before the Tribunal
It is a right given to the management and it is for the management to avail it self of the said opportunity
On the facts of that case this Court held that the management having made it clear to the Tribunal that it was resting its case solely on the domestic enquiry had no right to make a grievance that it should have been given an opportunity to adduce evidence on facts before the Tribunal in justification of its order
This Court further observed in that case that no such opportunity was asked for by the appellant nor even availed of
This Court in that case took into account management s consistent stand throughout before Tribunal as also that it made no grievance on the score of non availability of opportunity to adduce evidence even in the special leave petition
The claim of the Bank in that case was rejected on the peculiar facts found by this Court
Referring to the State Bank s case supra in Delhi Cloth  General Mills Co vs Ludh Budh Singhl this Court observed that the grievance of the management before this Court that the Tribunal should have given such an opportunity Suo moto was not accepted in the circumstances of that case
There was a further observation in the Delhi Cloth  General Mills  case supra to the following effect It may be pointed out that the Delhi and Madhya Pradesh High Courts had held that it is the duty of the Tribunal to decide in the first instance the propriety of the domestic enquiry held by the management and if it records a finding against the management it should suo moto provide an opportunity to the management to adduce additional evidence though the management had made no such request
This view was held to be erroneous by this Court in State Bank of India vs R K Jain  others supra
1  54 56 10 839Sup
CI75 366 We may now refer to the propositions 4 5 and 6 in the A Delhi Cloth and General Mills  case supra 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 r the domestic enquiry as a preliminary issue 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 in the first instance as a preliminary issue the validity of the s 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   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 of 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 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 decodes that the domestic enquiry has not been held properly it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it
In the Delhi Cloth and General Mills  case supra dealing with the case of the management s application to adduce evidence after close of arguments although on the same day after the Court reserved judgment this Court observed as follows The appellant did not ask for an opportunity to adduce evidence when the proceeding were pending nor did it avail itself of the right given to it in law to adduce evidence before he Tribunal during the pendency of the proceedings
367 In Workmen of Messrs Firestone Tyre  Rubber Company of India P Ltd vs Management  Others 1 this Court stated the law laid down by this Court as on December 15 1971
For our purpose we will extract from that decision only propositions 4 6 7 and 8 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
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 recognised that the Tribunal should straightway 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
We are particularly concerned with proposition  8  
What is the appropriate stage was specifically adverted to in the Delhi Cloth  General Mills  case supra which we are now required to seriously consider whether this conclusion is correct and ensures justice to all concerned in an industrial adjudicating
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  Tn our considered opinion it will be most unnatural and unpractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the labour court prior embarking upon an enquiry to decide the dispute on its merits
The reference involves determination of the larger issue of discharge or 1   605 607
368 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 sec 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
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
In the present case however besides the long delay that has already taken place since the law laid down by this Court was not very clear at the time of the award in casting a duty upon the labour court to decide the preliminary issue and also in view of the submission of the appellant that it is prepared to pay the entire salary of the workman upto date it will meet the interest of justice if the order of reinstatement is converted to one of compensation in terms of his entire salary from the date of dismissal to the date of this decision except for what has already been paid to him instead of remitting the
matter to the labour court for disposal in the light of this judgment by setting aside the award
In the result the appeal is dismissed with the above modification of the relief There will be however no order as to cost
PBR Appeal dismissed


Summary:
On the question whether when a domestic inquiry held by an employer was found by the labour court as violative of the principles of natural justice there Was any duty cast upon that court to give an opportunity to the employer to adduce evidence afresh before it and whether failure to do so would vitiate its  HELD 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 was 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 wether 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
Three will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning it decision with regard to the preliminary issue when the matter if worthy can be agitated even after the final award
It will be legitimate for the High Court to refuse to intervene at this stage
368C E Workmen of Motipur Sugar Factory private Limited vs Motipur Sugar Factory  Management of Northern Railway Cooperative Society Ltd vs industrial Tribunal Rajasthan Jaipur and Anr   Management of Ritz Theatre P Ltd vs Its workmen  State Bank of India vs R K Jain  OrS  777 Delhi Cloth  General Mills Co vs Ludh Budh Singh and Workmen of Messrs Firestone Tyre  Rubber Company of lndia P Ltd vs Management  Others  referred to