K. Bhaskaran, J.
1. On a reference under Section 10 of the Industrial Disputes Act by the 1st respondent (the State of Kerala), the 2nd respondent (the Labour Court, Quilon) by Ext. PI award dated 23-3-1974 set aside the order of dismissal from service passed by the appellant (employer) in respect of the third respondent (employee) and directed him to be reinstated with back wages. The writ petition filed by the appellant for quashing Ext. PI award having been dismissed by a learned single Judge of this Court this appeal has been preferred.
2. Sri K.J. Joseph counsel for the appellant submitted before us that Ext. PI award is bound to be set aside for the sole reason that 2nd respondent declined to accede to the request of the appellant that the question whether the enquiry alleged to have proceeded the dismissal was a proper and valid one was to be considered and decided as a preliminary issue. We may here extract paragraph 14 from Ext. PI award i
Before leaving this case, it is also necessary to refer to a petition filed by the learned Counsel for the management at the final stage. In that petition he wanted to decide the question whether the enquiry was proper or not as a preliminary issue aLd if it is found that the enquiry was not proper, the management should be given further time to adduce independent evidence before this Court. There is absolutely no scope to allow such a request at the final stage of the case. It is for the management to decide whether the enquiry was proper and to proceed on That basis or to adduce independent evidence before this Court regarding the charges levelled against the employee. As such, this request cannot be allowed.
3. We may now notice in brief the events during the course of the proceedings leading to Ext. PI award. On 21-10-19/2 with the examination of W W.I and marking of Exts. W 1 to W 3 the evidence on the side of the employee was closed. The enquiry adjourned for evidence on the side of the management to 12-1-1973 was further adjourned to 19-4-1973 and 27-7-1973. On 27-7-1973, out of the five names mentioned in the witness schedule, E.W. 1 was examined and Exts. E1 to E5 which laeluded tht domestic enquiry report, were marked. The enquiry was then adjourned mined to 29-8-1973 for further evidence on the side of the management. That day E.W. 2, the then Secretary was examined and the enquiry was adjourned to 25-9-1973. That day, the 2nd respondent, on the ground of delay, rejected the management's application dated 24-9-1973 where the prayer was that the question as to whether there was a proper domestic enquiry might be decided as a preliminary issue, and to allow the management to adduce independent evidence to substantiate the dismissal in case the finding on the preliminary issue would turn out to be against the management.
4. The dispute was posted for award; but there was subsequently a hearing on 29-1-1974. Ultimately the impugned award was passed on 18-M974. Before we proceed to consider the questions of law urged by the counsel for the appellant, it would be advantageous to notice what the management had stated about the domestic enquiry in its counter-statement dated 13-S-1969 filed before the 2nd respondent. Paragraph 12 of the counter-statement reads as follows:
The domestic enquiry held by the Society was proper regular and fair. The charges were explained to the petitioner and he understood the proceedings. He knew who proposed to conduct the enquiry, the witnesses were cross-examined by the petitioner and he was given a fair opportunity to meet the charges and the committee considered the matter with an open mind and bore no malice against him. The decision of the Managing Committee is not liable to be substituted by any other.
5. The principles governing the limits and the scope of the exercise of the Industrial Tribunal's jurisdiction in respect of industrial disputes arising from orders passed by the employers terminating the services of their employees have been laid down by the Supreme Court in the case of Ritz Theatre (Private) Limited [1962- II L.L.J. 498] The guideline given by Gajendragadkar, J., in that decision could be briefly stated as follows. Where the employer serves the relevant charge or charges on his employee and holds a proper and fair enquiry, it is open to him to act upon the report submitted to him by the Enquiry Officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against the employee as a result of such an enquiry can be challenged if it is shown that the conclusions reached at the departmental enquiry were perverse or the impugned dismissal is vindictive or mala jide, and amounts to an unfair labour practice. In such an enquiry before the Tribunal, it is not open to the Tribunal to sit in appeal over the findings recorded at the domestic enquiry. When a proper enquiry has been held, it would be open to the enquiry officer holding the domestic enquiry to deal with the matter on the merits, bona fade, and come to his own conclusion. Where it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the-employee, to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry baa been held at all. In regard to case in which no enquiry was held are the enquiry held by the employer was found to be not fair, it is, however, open to the employer to adduce additional evidence and satisfy the Tribunal that the dismissal of the employee concerned is justified. And m such a case, the Tribunal would give opportunity to the employer to lead such evidence, would give an opportunity to the employee to meet that evidence and deal with the dispute between the par-ties in the light of the whole of the evidence thus adduced before it. In such a case it cannot be urged that wherever the employer seeks to lead additional evidence before the Tribunal in support of the dismissal of his employee, it must necessarily follow that he has given up his stand based on the previous departmental enquiry and the Tribunal is entitled to examine the dispute on the merits for itself. The above principles have been reiterated and emphasised by the subsequent decisions of the Supreme Court. It was observed in Stale Bunk of India v. R.K. Juin : (1971)IILLJ599SC , as follows:
Even assuming that the domestic enquiry conducted by the Bank was in any manner vitiated, the Industrial tribunal 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.
6. In Delhi Cloth and General Mills Co, v. Ludh Budh Singh [1972-1 L.L.J. 180] ; A.I.R. 1911 S.C. 1031, the Supreme Court has laid down is follows;
When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter 10 request the Tribunal to try the validity of 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 domestic enquiry. If its finding on the preliminary Issue is in favour of the manage, merit, 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....
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.
7. The Supreme Court has observed in the decision in Workmen of Ftres one Tyre & Rubber Co. of India (P) Ltd. v. Management [1973- I L.L.J. 27] ; A.I.R. 197J SC. 1227, that the Tribunal gets jurisdiction to consider the evidence placed before it for that the time in justification of the action taken only, if 1,0 enquiry bat been held or after the enquiry conducted by an employer is found to be defective. The lame decision and laid down that 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.
8. In paragraph 27 of the decision in Cooper Engineer me Ltd. v. P.P. mundhe : (1975)IILLJ379SC . there occurs the following observation by the Supreme Court:
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 of 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.
9. From the dictum laid down by the Supreme Court in the various decisions it is clear that when, as in the present case, the management has stated in its statement before the Labour Court that the dismissal of the employee was on the bash of a fir ding in a proper and valid enquiry and when the management, any time before the close of the proceedings, made a request to that Court to consider and decide the question concerning the validity of the domestic enquiry which proceeded the dismissal, as a preliminary issue, it is the duty of that Court to accede to that request and neither the delay in filing the application in that behalf nor the fact that the management had begun to adduce evidence without expressly stating that it was confined to matters relating to the domestic enquiry, would be good reason for declining to exercise that jurisdiction ; inasmuch as the Tribunal gets jurisdiction to consider the evidence placed before it for the first time in jurisdiction of the action taken only, if no enquiry has been held or after the enquiry conducted by the employer is found to be defective, it would appear that even in the absence of a specific request in that behalf the Labour Court has not only a right, but also a duty to take a decision on the question of the validity of the domestic enquiry as a preliminary issue so that, thereafter, the management, if it chooses to do so, might be able to let in independent evidence to support its action.
10. In this case the second respondent on 25-9-1973 rejected the appellants application dated 24-9-197) requesting it to consider and decide the question of validity of the domestic enquiry as preliminary issue, on the ground of delay, evidently under a misconception of the legal principle applicable to the facts of the case The appellant is seen to have examined only two out of the live witnesses mentioned in the witness schedule submitted by him on 27-7 193and their depositions show that the primary purpose of their examination was to prove that there was a domestic enquiry before the passing of the dismissal order of the 3rd respondent, and that it was held without violating any statutory provision or the principles or natural justice. It is true that the appellant did not move the second respondent to have the question regarding the validity of the domestic enquiry considered and decided as a preliminary issue at the very outset; but so long as the request in that regard is found to have been made before the proceeding came to an end, it being the right of the management to demand a decision on the point as a preliminary issue, and it being the duty of the Court to decide that issue before proceeding further, by declining to go into that question the 2rd respondent has virtually failed to exercise the jurisdiction vested in that Court in that behalf without justification or any legal basis.
11. In the light of the foregoing discussion we have no hesitation in coming to the conclusion that Ext. P. 1 award passed by the 2nd respondent after rejecting the appellant's application dated 24-9-1973 and without deciding as a preliminary issue the question whether a domestic enquiry was properly and validly held before the passing of the order of dismissal against the 3rd respondent by the appellant, cannot be sustained in law. With due respect to the learned single Judge, we are of the view that the writ petition ought to have been allowed and Ext. P 1 award ought to have been quashed as prayed for by the appellant. Petitioner. We therefore, allow this writ appeal, set aside the judgment of the learned single Judge, quash Ext. P. 1 award and remand the matter to the 2nd respondent (Labour Court, Quilqn) for enquiry and disposal afresh according to law as expeditiously as possible, at any rate within six weeks from the date of receipt of a copy of this judgment in that Court, bearing in mind the observations contained in this judgment. A copy of this judgment shall be sent to the second respondent without delay. In the circumstances of the case we make no order as to costs.