P.D. Desai, Actg. C.J.
1. The petitioner was a workman in the employment of the respondent-Company. In respect of an incident which is stated to have taken place on 4th August, 1975, the petitioner was served with a show cause notice on 8th August, 1975 and an intimation was given to him that an inquiry will be held in connection with the said incident on 11th August, 1975. By an order dated 25th August, 1975 the services of the petitioner were terminated.
2. The petitioner thereupon carried the matter to the Labour Court under the provisions of the Bombay Industrial Relations Act, 1946. The Labour Court raised a preliminary issue as to whether the inquiry held against the petitioner was legal and proper. After hearing the parties the Labour Court passed an order on 29th March, 1979 holding that the inquiry was legal and proper. The Labour Court then heard the parties on the question of punishment and held that having regard to the charges levelled against the petitioner, the order of dismissal was justified. Consequently, by the award dated 12th June, 1981, the petitioner's application was dismissed.
3. The petitioner carried the matter in appeal to the Industrial Court. The Industrial Court raised two issues, first, whether the inquiry was proper and legal and, secondly, whether the charges levelled against the petitioner were proved. The Industrial Court came to the conclusion that the inquiry was not legal and proper because it was conducted in violation of the principles of natural justice. The Industrial Court then proceeded to consider as to what course of action should be adopted in view of the aforementioned finding. The petitioner urged that since no request was made by the respondent-Company before the Labour Court to permit it to lead evidence to establish the misconduct and to sustain the order of penalty, such an opportunity ought not to be afforded to the respondent-Company. The Industrial Court made the following observations while considering this plea : (as translated into English from Gujarati) :
'It is true that if no preliminary issue as to the legality and propriety of the inquiry is raised before the lower Court and that if the employer has not even made any such request and if the inquiry is ultimately held to be illegal and reinstatement of the delinquent is ordered, the employer would not be entitled to raise a plea or demand before the appellate Court that he should be afforded an opportunity to lead evidence to establish the charges. However, in the present case, the facts are somewhat different. Herein, the lower Court had raised a specific issue whether the inquiry held against the workman was legal and proper. On the said issue the learned Presiding Officer had recorded a finding that the inquiry was legal and proper. Under those circumstances, even if the employer had not sought an opportunity before the lower Court to establish the charges by leading evidence, his right to adopt such a course is not destroyed. When I have reached the conclusion in appeal that the inquiry was not legal and proper, it appears to me that in the interest of justice I should afford an opportunity to the employer to establish the charges against the workmen.'
In view of the finding recorded in the aforesaid terms, the Industrial Court quashed and set aside the decision impugned in the appeal and remanded the case to the Labour Court with a direction that fresh decision be recorded after affording an opportunity to the respondent Company to lead evidence with a view to establishing the charges levelled against the workman and an opportunity to the petitioner to controvert such evidence, if any. It is this decision of the Industrial Court which is under challenge in the present petition.
4. In our opinion, the course adopted by the Industrial Court is not warranted in law. The question had fallen for consideration before the Supreme Court in a number of cases and the last in the series is Shanker v. Britania Biscuit Co. [1979-II L.L.J. 194]. This Court had an occasion to review all those cases including Shanker's case in Special Civil Application No. 571 of 1979 decided on 15/20, November, 1979. After reviewing the authorities, this Court made the following observations in its decision rendered in the case :
'The broad contention urged on behalf of the petitioner-Company that in each case where a dispute as to the validity or propriety of an order terminating the service of an employee reaches before the Labour Court, it is its obligatory duty in law to raise a preliminary issue as to whether the domestic inquiry, if any, held by the employer was proper or defective and then proceed to decide such issue and record a formal finding on it and if the finding is in favour of the workman, the employer should be called upon, in a demonstrable manner, without waiting for any such request or demand or pleading from the employer, to adduce further evidence to sustain the charge of misconduct if it so chooses to do, cannot possibly be upheld. As observed in Shanker's case (supra), that is not the effect of any of the decisions of the Supreme Court including the decision in Cooper Engineering Ltd's case [1975-II L.L.J. 379] nor is that the true effect of the legal provisions governing the proceedings before the Labour Court. In each case appropriate decision with regard to the procedure to be adopted by it will have to be taken by the Labour Court, having regard to the conduct of the proceedings by the parties. One principle, however, which clearly emerges from the decision in Shanker's cases (supra) is that no duty is cast on the Industrial Tribunal or the Labour Court, while adjudicating upon a penal termination of service of a workman, to call upon the employer to lead additional evidence to substantiate the charge of misconduct, after decision is reached on the preliminary issue whether the domestic inquiry was at all held, or if held, was defective in favour of the workmen. It is both the right and obligation of the employer, if he so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request and if no such opportunity is sought nor there is any pleading to that effect, no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges ..... Besides, as pointed out in Delhi Cloth and General Mills Co. Ltd's case [1972-I L.L.J. 180], if the management wants to avail itself of the right of adducing additional evidence, it has either to adduce evidence simultaneously with its relying on the domestic inquiry or it should ask the Labour Court to consider the validity of the domestic inquiry as a preliminary issue with a request to grant permission to adduce evidence if the decision on the preliminary issue is against the management. If the management does not ask for an opportunity to adduce evidence and does not avail itself of the right given to it in law to adduce evidence, it cannot possibly be said that the opportunity was asked for and refused.'
An appeal carried against the aforesaid decision to the Supreme Court was dismissed on 1st December, 1980 (Special Leave Petition (Civil) No. 6785 of 1980).
5. In the instant case, it is not in dispute that at no stage of the proceeding the respondent-Company had made a request to afford to it an opportunity to adduce evidence to sustain the charge of misconduct. No such specific pleading of request was made in the course of the adjudication proceedings, including the Industrial Court. Under these circumstances, the Industrial Court was not justified in law, in the exercise of its suo motu powers, to remand the case with a view to enabling the respondent-Company to establish the charges against the workman by adducing additional evidence.
6. For the foregoing reasons, in our opinion, the decision rendered by the Industrial Court, in so far as it directs the remand of the case to the Labour Court, is clearly erroneous in law. Under the circumstances, that part of the impugned decision which directs the remand of the cases to the Labour Court for the purpose of enabling the respondent-Company to adduce additional evidence for the purpose of substantiating the charges levelled against the petitioner, is quashed and set aside. Consequently, the respondent is directed to reinstate the petitioner in service with full back wages in his original post. Rule made absolute accordingly. No order as to costs.
7. Before parting with the matter, it requires to be mentioned that it was contended on behalf of the respondent-Company that the matter should be remanded to the Industrial Court for determining the question as to whether reinstatement should be ordered and whether back wages should be directed to be paid and, if so, the extent of back wages payable. We have rejected the said contention in view of the decision in Navinchandra v. Ahmedabad Co-op. Department Stores Ltd. [1979-I L.L.J. 60]. Be it stated that it is not in dispute that there is not an iota of evidence on record to show that the petitioner was employed during the period that he was out of job. Reliance was placed on behalf of the respondent on the decisions in Sadanand Patankar v. New Prabhat Silk Mills, [1974-II L.L.J. 52] (Bombay) and Rakeshwar Dayal v. Labour Court [1962-I L.L.J. 5]. In view of the decision in Navinchandra's case those decisions cannot be of any assistance to the respondent-Company in the present case.
8. At the request of Mr. K. S. Nanavati, the operation and implementation of this judgment is stayed for a period of four weeks from the date of the grant of the certified copy on the condition that the certified copy will be applied for on or before 1st August, 1982 on the payment of urgent charges.
9. Petition allowed.