IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28-4-2008 CORAM THE HON'BLE MR.JUSTICE K. CHANDRU WRIT PETITION NO.10849 of 1997 and M.P.Nos.17354/97 and 25063/2000 The Management of Calcium (India) Private Limited 125, SIPCOT Hosur Post Dharmapuri District ... Petitioner vs 1. The Presiding Officer, Labour Court, Vellore 2. G. Chandran .... Respondents Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the records from the file of the first respondent in ID No.1045 of 1993 on its file and quash its Award dated 10.1.1997. For petitioner : Mr.S. Jayaraman For respondents : Mr.J. Narayanamurthy ORDER The petitioner is the Management. Aggrieved by the order of the Labour Court in I.D.No.1045 of 1993 dated 10.1.1997, the writ petition has been filed. 2. The second respondent has raised a dispute against his non-employment, which was caused by the dismissal order dated 29.2.1992, after a finding of guilt rendered by the Enquiry Officer. It was processed by the Labour Officer and finally the Labour Court took up the matter in I.D.No.1045/93 and issued notice to the parties. Before the Labour Court, it was the stand of the second respondent/workman that the Management though conducted an enquiry opportunities were denied to defend himself. 3. The petitioner Management filed a counter statement stating that they have conducted a proper enquiry and only after a show cause notice and getting reply from the workman, he was dismissed from service. They have also stated that the workman's complaint before the Labour Officer that the enquiry was vitiated was made without any supporting allegations. In paragraph-9 of the counter it is stated that in the event of Labour Court finding that the enquiry was not fair and proper, the Management may be allowed to prove the misconduct by letting in evidence under Sec.11-A of the Industrial Disputes Act. 4. The Labour Court, without having the procedural aspects to be followed in terms of Sec.11-A, allowed both parties to lead fresh evidence. Documents were also marked as Exs.M.1 to M.9. In paragraph-6 of the Award, the Labour Court found that if the dismissal was preceded by an enquiry and based upon the finding of the Enquiry Officer, it is not open to the Management to let in oral and documentary evidence to prove the charges before the Court. After stating so, the Labour Court analysed the evidence let in as well as made some references to the enquiry held by the Management and came to a conclusion that the charges levelled against the workmen was not proved and therefore, dismissal order was liable to be set aside. After saying so, the Labour Court passed an award directing the second respondent/workman to be reinstated with continuity of service and back wages. It is this Award dated 10.1.1997, which is under challenge before this Court. 5. Pending the writ petition, an interim stay was granted on 22.7.97 and subsequently, it was modified by an order dated 26.4.2001 by which Management was directed to deposit a sum of Rs.75,000/- to the credit of I.D.No.1045/93 on the file of the first respondent and the second respondent/workman was permitted to withdraw half of the amount without furnishing security or guarantee and the remaining shall be invested in Fixed Deposit in any one of the Nationalised Banks for a period of three years and the workman was permitted to withdraw the quarterly interest. The second respondent/workman was directed to be paid Rs.650/- every month commencing from June 2001 till the disposal of the writ petition in terms of Sc.17-B of Industrial Disputes Act. 6. It is now stated by both the parties that Sec.17-B of the Industrial Disputes Act has been complied with. But with reference to deposit, since there was time lapse, they could not comply with the order. It is now stated that the interim stay does not subsist any more in favour of the Management. 7. It is the admitted case of both sides that an enquiry was preceded before dismissal and that was the reason why the workman raised an issue in the claim statement that the enquiry was not fair and proper. 8. Further, Mr.S. Jayaraman, learned counsel for the petitioner argues that the Labour Court has adopted the procedure by which without deciding the validity of the enquiry, it straight away allowed the parties to let in evidence and did not refer to the enquiry conducted by the Management which preceded the dismissal of the second respondent/workman. This procedure adopted by the Management is completely erroneous. He also brought to the notice of this Court the judgment of the Supreme Court reported in 1976 II LLJ 379 (Cooper Engineering Limited vs P.P. Mundhe). The learned counsel referred to paragraphs 19 and 20 of the judgment, which read as follows: "19. 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 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. 20. 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. 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. The learned counsel submits that the Labour Court failed to discharge its obligation in terms of the above binding precedent of the Supreme Court. Whether the Labour Court can allow the parties to lead evidence without deciding the preliminary issue, also came up for consideration by a Division Bench of this Court vide its judgment reported in 1976 II LLJ 447 (Madurai-Devakottai Transport Private Limited vs Labour Court, Madurai and another). The Division Bench, after referring to the Cooper Engineering case, observed as follows: " When as a result of a domestic enquiry, there is a dismissal or removal from service of a workman and the matter takes the shape of an industrial dispute, the Presiding Officer has first to see whether the domestic enquiry was properly held in accordance with the norms of the principles of natural justice and if there was any defect or violation of such principles of natural justice. Of course, when this question itself is in controversy, the Presiding Officer will be justified in taking evidence confined to that question. The complaint before us is that, without adopting that course and satisfying himself whether the domestic enquiry was proper in that sense, the Presiding Officer has called upon the parties to adduce evidence on the merits. If that is so, this will be erroneous. We direct the Presiding Officer to follow the procedure as laid down in Cooper Engineering Ltd vs P.P. Mundhe (Supra) before proceeding further. There will be an order accordingly. No costs. 10. In the light of the same, there is no difficulty in setting aside the Award passed by the Labour Court. Accordingly, the award passed by the Labour Court dated 10.1.1997 is set aside and I.D.No.1045 of 1993 will stand restored to the file of the Labour Court. The Labour Court shall proceed to determine the issue strictly in terms of the judgments referred to above. 11. Since the matter is already 16 years old, the Labour Court will give preference in hearing of the Industrial Dispute and in any event, shall dispose of the same within a period of three months from the date of receipt of the copy of the order. 12. The writ petition stands allowed. No costs. 28-4-2008 sr Index:yes/no Website:yes/no Note: The Registry is directed to despatch the original register, if any received from the Labour Court within a period of one week from today. N. CHANDRU,J., sr W.P.No.10849/1997 28-4-2008