S.S. Dewan, J.
1. This is a petition under Articles 226/227 of the Constitution of India for a writ of certiorari or other suitable directions to quash the award dated September 22, 1975, made by Shri Mohan Lal Jain, Presiding Officer of the Industrial Tribunal, Faridabad, in the matter of industrial dispute between the management of M/s. East India Cotton . (hereinafter called 'the management') and their workman.
2. The Governor of Haryana referred the following dispute to the Industrial Tribunal, Faridabad, by an order dated December 8,1972:
Whether the termination of services of Shri Rishi Lal was justified and in order;
If not, to what relief is he entitled?
By his award, the learned Tribunal found that (i) the domestic enquiry was vitiated, and (ii) the order of termination of his services was unjustified and not in order. Accordingly, he ordered his reinstatement and also directed the management to pay back wages from the date of his dismissal.
3. Aggrieved by the award, the petition was filed by the management for the above relief.
4. It is unnecessary to advert to the facts in any great detail. In the present case, the workman concerned was charged under the standing orders of the management for approaching a contractor for payment of commission on the boxes to be supplied to the company and in consideration thereof promised to obtain false receipts for supply of boxes from the company's stores department without any actual supply of boxes by the contractor. The workman denied the said charge. The management held a domestic enquiry in which some witnesses were examined by the management. The workman, however, withdrew from the enquiry. On the basis of the enquiry report, the management dismissed the workman.
5. In this petition, we will proceed on the assumption that the domestic enquiry was rightly found to be defective by the Industrial Tribunal. The important question which has been pinpointed in this petition is whether when a domestic enquiry held by an employer is found by the Industrial Tribunal to be defective, there is any duty cast on that Court to give an opportunity to the employer to adduce evidence afresh to prove that the termination of the services of the employee was good in law whether failure to do so would vitiate its award. Mr. Jaswant Singh, learned Counsel for the petitioner, has contended that the Tribunal having held that the order of dismissal cannot be sustained because the domestic enquiry has been conducted improperly, the petitioner, should have been given an opportunity by the Tribunal to adduce evidence to justify the order terminating the services of the workman-That is, according to the learned Counsel, the Tribunal has first to consider whether the domestic enquiry on the basis of which the order of termination has been passed, has been conducted properly and bona fide by the management. If it comes to the conclusion that the domestic enquiry is vitiated, it is only then that the stage is set for giving an opportunity to the management to adduce evidence before the Tribunal to support the order of termination. In this connection, the learned Counsel referred to us the decisions of the High Courts of Madhya Pradesh and Delhi, In Madhya Pradesh State Road Transport Corporation v. Industrial Court, Madhya Pradesh (1970) 40 F.J.R. 448, a Division Bench of the said High Court has held that it is a healthy practice that after coming to the conclusion that the domestic enquiry was not proper, the Industrial Tribunal or the Labour Court should give an opportunity to the employer to produce evidence to satisfy the authority that the action taken by it is justified. A similar view has also been taken by the learned single Judge of the Delhi High Court in Prem Nath Motors Workshop Private Ltd. v. Industrial Tribunal (1970) 39 F.J.R. 4. In the said decision, it has been held that it is essential that a Tribunal or a labour Court gives at first a finding about the legality of the domestic enquiry before it decides to consider the merits of the charges. At that stage the Tribunal must give the parties an opportunity to adduce such evidence regarding the charges as the Tribunal might consider relevent. In Cooper Engineering Ltd. v. P.P. Mundhe 1975-II L.L.J 379 : (1975) 48 F.J.R. 152, it has been observed that when a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first decide as preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective 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. 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 adjudicated upon even after the final award.
6. In the present case, the actual issue that was referred for adjudication to the Industrial Tribunal has already been quoted in the earlier part of the judgment. There may be cases where an enquiry has been held preceding the order of termination or there may have been no enquiry at all. But the dispute that will be referred is not whether the domestic enquiry has been conducted properly or not by the management but the larger question whether the order of termination, dismissal or the order imposing punishment on the workman concerned is justified. Under those circumstances it is the right of the workman to plead all infirmities in the domestic enquiry if one has been held, and also to attack the order on all grounds available to him in law and on facts. Similarly, the management also has a right to defend the action taken by it on the ground that a proper domestic enquiry has been held by it on the basis of which the order impugned has been passed. The learned Counsel for the petitioner has placed on record an order dated 6th May, 1974, of the Tribunal which shows that the management requested the Tribunal to decide the vires of the domestic enquiry first and then on merits. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. The Tribunal came to the conclusion that the domestic enquiry was not fair but it gave no opportunity to the management before recording a finding on merits. After the preliminary finding that the enquiry was vitiated, the Tribunal must proceed to consider the merits of the charges against the workman itself. The scope of a domestic enquiry is more limited than a full-fledged enquiry before the Tribunal itself. The Tribunal must give an opportunity to the employer as well as the workman to adduce such additional evidence as the Tribunal considers relevant before it undertakes an enquiry into the merits of the charges. Unfortunately, the Tribunal did not apprise the parties at any stage of the hearing that it had come to the conclusion that the domestic enquiry was invalid. Consequently, the parties had no opportunity to adduce additional evidence before the Tribunal in respect of the charge of misconduct. Therefore, it is not only in form but also in substance that the award is bad.
7. The failure of the Tribunal to give an opportunity to the parties to adduce additional evidence and then to enquire into the merits of the charges is an error apparent on the face of it which vitiates the award. The impugned award is set aside. The parties are directed to appear before the Tribunal who shall give the parties opportunity to adduce such evidence as is deemed relevant by it; the learned Tribunal would be well advised in enquiring into the merits of the charge and in the light of its findings make the appropriate order giving or refusing the approval of the dismissal of the workman within a period of six months. There will be, however, no order as to costs.
B.S. Dhillon, J.
8. I agree.