1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Manager, Branch office-Sahara India Vs. The Judge, Industrial Tribunal-cum Labour Court, Udaipur and Another. S.B.Civil Writ Petition No. 1348/2007 ......... Date of Order : 28/05/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR BY THE COURT Mr. Harish Purohit, for the petitioner. Mr. R.S.Saluja for the respondent. The matter comes up for orders on an application being I.A. No. 8461/07 filed by the respondent workman under Article 226 (3) of the Constitution of India seeking vacation of the ex-parte stay order. Learned counsel for the parties submit that the writ petition itself may finally be heard at this stage. With the consent of learned counsel for the parties, the writ petition is finally heard. 2 By the instant writ petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks quashing of order Annex.1 dated 6.12.2006 passed by the respondent No.1, Industrial Tribunal-cum-Labour Court, Udaipur (for short 'the Labour Court' hereinafter) holding therein that the domestic enquiry conducted by the petitioner management was unfair and declared the domestic enquiry as unfair. However, the petitioner management was permitted to produce the evidence to establish the charges levelled against the respondent workman. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the Labour Court exceeded its jurisdiction in holding the domestic enquiry unfair. No cogent reasons have been assigned by the Labour Court in holding the domestic enquiry as unfair and it would be difficult for the petitioner management to adduce the evidence in respect of the delinquencies of the respondent workman which were of the year 1985, 1987 and 1988 etc. as more than 20 years have since elapsed and evidence by now is out of reach of the management and therefore, the order of the Labour Court suffers from the error of law. Learned counsel appearing for the respondent workman submits that the Labour Court on the material placed before it, came to the conclusion that before holding the domestic enquiry, notice was not served on the respondent 3 workman and he was neither given an opportunity of hearing nor to rebut the evidence produced by the petitioner management and that is a finding of fact arrived at by the Labour Court on the basis of the material placed before it and petitioner management has not been rendered remedy less because the opportunity has been granted to the management to adduce evidence and establish the charges before the Labour Court levelled against the respondent workman which was available before the management at the time of terminating the services of the respondent workman. Learned counsel for the respondent has relied on a Constitution Bench decision of Hon'ble Supreme Court in Karnataka State Road Transport Corporation Vs. Smt. Lakshmidevamma and another, AIR 2001 SC 2090 wherein by majority it has been held that by the judgment in Shambu Nath Goyal's Case, AIR 1984 SC 289, the management was given the right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under Section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under Section 10 of the Act, meaning thereby the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/ Labour Court. Hon'ble Supreme Court further held that keeping in mind the object of 4 providing an opportunity to the management to adduce evidence before the Tribunal/ Labour Court, we are of the opinion that the directions issued by this Court in Shambu Nath Goyal's case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workman inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/ Tribunal could get prolonged. In our opinion, the procedure laid down in Shambu Nath Goyal's case is just and fair. Thus, it cannot be said that the management has been prejudiced by directing to adduce the evidence before the Labour Court. A similar view was taken by Hon'ble Supreme Court in Shambu Nath Goyal's case (supra). The decision relied on by learned counsel for the respondent workman squarely applies to the facts and circumstances of the present case and therefore, in my view, the Labour Court was justified in holding the domestic enquiry unfair and permitting the petitioner 5 management to adduce the evidence to establish the charges levelled against the respondent workman. In this view of the matter, I do not find any merit in the writ petition and it is dismissed accordingly. No order as to costs. Ad-interim stay order dated 19.3.2007 stands vacated and stay petition stands dismissed. The application being I.A. No.8461/07 also stands disposed of. No costs. (H.R.PANWAR), J. rp