IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT DB. CIVIL SPECIAL APPEAL NO. 1313/97. IN SB CIVIL WRIT PETITION NO. 3985/89. SHRI MANGEJ SINGH Vs. NATIONAL TEXTILE CORPORATION LTD. & ANR. DATE OF JUDGMENT : JANUARY 22, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. N.K. Maloo for the appellant. None for the respondents. (PER HON'BLE R.S. CHAUHAN J. ) Reportable Riding on the roller coster of litigations, from the Labour Court to this Court, the appellant has challenged the judgment dated 29.8.97 whereby the learned Single Judge has remanded the case back to the Labour Court. Briefly, the facts of the case are that the appellant was working as H.T. Operator in the mills owned by the National Textile Corporation, respondent No.1 at Beawar. On 18.6.83, the appellant refused to wind the fuse of gang operating switch by stating that the winding up of the said fuse was the job of the Rajasthan State Electricity Board ('RSEB', for short) and not of the H.T. Operator. His refusal to wind the fuse resulted in obstruction of the production of the mill for about 1 hour and 48 minutes. Since his refusal amounted to a misconduct, the appellant was charge-sheeted. The appellant submitted a reply to the charge-sheet. The inquiry officer eventually found the appellant guilty of the charges and subsequently the appellant was dismissed from the service. Through the Textile Labour Union, the appellant went before the Conciliation Officer. But, even the Conciliation Officer did not succeed in reconciling the management and the appellant. Thus the Conciliation Officer submitted a failure report to the Government of Rajasthan. The Government of Rajasthan referred an industrial dispute to the Labour Court questioning the legality of the dismissal. Vide award dated 21.11.88 the Labour Court passed the award in favour of the appellant and directed his reinstatement with full back wages. The respondent, National Textile Corporation, challenged the said award before the learned Single Judge of this Court. Vide judgment dated 29.8.98 the learned Single Judge held that the petition could be disposed of on the point that the Labour Court failed to deal with the application moved by the respondent-Corporation for summoning a competent officer from the RSEB who could give evidence as to whether to wind the fuse of the gang pole operating switch was to be done by them, or by the workman. Therefore, it remanded the case back to the Labour Court to record the additional evidence of such a witness. Since the appellant is aggrieved by the said order, he has filed the present appeal before this court. Mr. N.K. Maloo, learned counsel for the appellant, has vehemently argued that once the Labour Court comes to the conclusion that the domestic inquiry held by the employer was fair and reasonable, there is no scope for permitting the employer to lead any further evidence before the Labour Court. In order to substantiate this contention, the learned counsel has relied on Management of Ritz Theatre Delhi Vs. Workmen (AIR 1963 SC 295) and on J.K. Synthetics Ltd. Vs. Labour Court & Anr. (DB Special Appeal (Writ) No. 272/96 decided by this court on 23.1.2007). As no one has appeared on behalf of the respondent- Corporation, this court does not have the benefit of any assistance from the side of the respondent. We have heard the learned counsel for the appellant, have examined the record and have perused the impugned judgment. A bare perusal of the award dated 21.11.88 clearly shows that the learned Labour Court had concluded that the domestic inquiry held against the appellant was valid. However, it also concluded that it was not the job of the appellant to wind the fuse of the gang operating switch. For, before a person was permitted to climb on the electricity pole, the prior permission from the RSEB had to be taken. In the absence of such a permission, the appellant was justified in refusing to wind the fuse of gang operating switch. Therefore, the Labour Court came to the conclusion that the appellant had not committed any misconduct. Hence, his dismissal from service was illegal. Once the learned Labour Court had concluded that the procedure for holding the departmental inquiry had been followed but the conclusion drawn by the inquiry officer and by the disciplinary authority was illegal, there was no occasion for the learned Labour Court to call for any witness from the RSEB. In the case of Management of Ritz Theatre, Delhi (supra) the Hon'ble Supreme Court has indicated thus: We do not think that this view can be accepted as correct. In inquiries 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 findings recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. It is quite conceivable, and in fact it happens in many cases, that the employer may rely on the enquiry in the first instance and alternatively and without prejudice to his plea that the enquiry is proper and binding, may seek to lead additional evidence. It would, we think, be unfair to hold that merely by adopting such a course, the employer gives up his plea that the enquiry was proper and that the Tribunal should not go into the merits of the dispute for itself. If the view taken by the Tribunal was held to be correct, it would lead to this anomaly 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 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. Otherwise,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 him, permission will have to be given to the employer to cite additional evidence. Instead of following such an elaborate and somewhat cumbersome procedure, if the employer seeks to lead evidence in addition to the evidence adduced at the departmental enquiry and the employees are also given an opportunity to lead additional evidence, it would be open to the Tribunal first to consider the preliminary issue and then to proceed to deal with the merits in case the preliminary issue is decided against the employer. That, in our opinion, is the true and correct legal position in this matter. Evidently, the Apex Court in the afore-quoted judgment held that the first question which the Tribunal has to consider is whether proper enquiry has been held or not. If this first question is tried as preliminary issue and the finding of preliminary issue is in favour of employer, then no additional evidence need be cited by the employer. This view has also been expressed by this court in the case of J.K. Synthetics Ltd. (supra). Keeping in mind the settled principle of law as mentioned above, the learned Single Judge was certainly not justified in reminding the case back to the Labour Court and in directing the Labour Court to take additional evidence of a witness from the RSEB. For these reasons we allow the appeal and set aside the impugned order dated August 29, 1997 of the learned Single Judge and restore the award of Labour Court dated November 21, 1988. However, there shall be no order as to costs. ( R.S. CHAUHAN ) J. ( SHIV KUMAR SHARMA ) J. MRG.