M.L. Shrimal, J.
1. M/s. Podar Spinning Mills, Jaipur (hereinafter called 'the petitioner') is an industrial establishment within the meaning of the provisions embodied in the Industrial Disputes Act, 1947 (to be referred to hereinafter as 'the Act'). Respondent No. 2, Nizamuddin, son of Shri Sabuddin was an employee of the petitioner. A charge-sheet, dated March 17, 1976, was served upon the respondent No. 2. The reply sent by him was received by the Management on March 19, 1976. In the opinion of the Management the reply furnished by the respondent No. 2 was not satisfactory. Accordingly a notice, intimating that an enquiry would be conducted in the matter was issued to non-petitioner No. 2, on March 20, 1976. It is alleged that though this notice had been served personally on the non-petitioner No. 2, he failed to appear on the due date, fixed for the purpose of enquiry.
2. The enquiry officer directed the Management to give one more opportunity to the workman in the interest of justice and the enquiry proceedings were postponed to April 21, 1976. Afresh notice was issued on March 22, 1976, to the non-petitioner No. 2, Intimating the time, date and place of enquiry. This notice was sent through the peon of the concern, Sanwar Mal The notice could not be served personally on non-petitioner No. 2 as he wait not available at his residence. On April 21, 1976, the Enquiry Officer recorded the statement of Sanwar Mal, but instead of proceeding ex parte in the matter he directed the Management to effect the service of the fresh notices by way of its publication in a daily newspaper having wide circulation In the locality In which the respondent No. 2 was last known to have been actually residing. The notice was published in 'Dainik Navjyoti', dated 22-4-76, where by respondent No. 2 was purported to Lave been informed that enquiry would be held by the enquiry Officer on April 26, 1976.
3. Respondent No. 2 however, did not appear before the Enquiry Officer The said Officer therefore held enquiry ex parte in respect of the charges. He recorded finding of guilt against the respondent No. 2. The Management accepted the finding, recorded by the Enquiry Officer and passed an order, dated May 5 1976, dismissing the respondent No. 2 from service. Thereafter the State Government, in exercise of its power conferred under Clause(c) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1S47, referred the dispute, namely, whether the Management, Podar Spinning Mills, was justified in terminating the services of the workman Nizamuddin, son of Sabuddin; if not. to what relief the workman was entitled to the Labour Court, Rajasthan, Jaipur, for adjudication. The non-petitioner No. 2 filed his claim, setting forth as to how the order of his dismissal was illegal and prayed for an award setting aside the order of dismissal, passed by the Management against him and for his reinstatement and other consequential benefits. The validity of the domestic enquiry on which the dismissal order against the respondent No. 2 was based by the Management was also challenged. One of the grounds of challenge was that service of the notice prior to the enquiry had not been properly effected on the workman. The Management also submitted a reply, wherein it was mentioned inter alia that a preliminary finding be given with respect to she fairness of the domestic enquiry. The Labour Court i.e. Respondent No. 1, reached the conclusion that sufficient opportunity had not been given to the respondent No. 2 to defend himself. This finding was arrived at on the grounds that:
(i) the original peon book was not produced by the management as such there was nothing on record to suggest that the notice had actually been served;
(ii) the evidence regarding evading of service of notice by the respondent No. 2 was not convincing;
(iii) no standing order was shown to suggest that the notice could be served by way of publication in a newspaper; and
(iv) even on otherwise a mere publication of the notice could not amount to effective service.
At the time of the dictation of the order the learned Counsel appearing on behalf of the Management expressed his desire to lead evidence on merits. The Labour Court allowed him to do so and the case was posted for recording evidence of the defendants on April 24, 1978 The Management has challenged the verdict of the Labour Court through this writ petition.
4. The contention of the Management is that the impugned order of the Labour Court is patently illegal and perverse. It had no jurisdiction to disregard the admissible evidence. It could not have conferred jurisdiction on itself to record evidence for deciding the point of jurisdiction. It was further urged that this Court, in exercise of its jurisdiction under Article 226 of the Constitution, could examine the question whether or not, the fact of jurisdiction had been rightly decided by the Labour Court. Reliance in this connection has been placed on Raza Textiles Ltd., Rampur v. The Income Tax Officer, Rampur : 87ITR539(SC) , The State of Madhiya Pradesh and Ors. v. Sardar D.K. Jadao AIR 1968 SC 1186, Phongseh Nisso v. Collector of Land Acquisition and ors. AIR 1977 Gauhati 47.
5. Seeking support on the Bata Shoe Co., (P) Ltd., v. D.N. Ganguly and Ors. : (1961)ILLJ303SC learned Counsel urged that as there were no standing orders regarding the mode of publication of the notice, its publication, giving the name and place of the residence of the respondent No. 2 and mentioning there in the next date of hearing in a newspaper in the regional language with a wide circulation was sufficient. The Management did everything possible, which it could have done to serve the notice on the workman. Learned Counsel, appearing on behalf of the workman, has raised a preliminary object about the maintainability of the writ petition. It has been urged that the present writ petition has been submitted at an interlocutory stage of the proceedings, pending before the Labour Court. The workman and the Management have been directed by respondent No. 1 to produce their evidence. The Labour Court had, the, jurisdiction to record the finding regarding the service of notice upon the workman It, would not be proper for this Court, in the circumstances narrated above, to interfere with the proceedings before the Labour Court at this stage and quash the impugned order. It is not open to the Management to hinder final adjudication of the dispute by a Labour Court by challenging its decision on a preliminary issue, more especially when the same could be agitated after the final order was passed.
6. Learned Counsel for the petitioner vehemently urged that the finding of the Labour Court regarding the invalidity of the service of the notice was patently illegal and perverse, and it would be in the interest of justice to reverse the impugned finding so that the petitioner might be able to press before the Labour Court to accept the finding of the dismissal of the respondent No. 2, given by the Management The conduct of the disciplinary proceedings and the punishment to be imposed being in the nature of managerial function, the Labour Court could not interfere unless and until it reached the conclusion that the findings arrived at by the Enquiry Officer were the result of victimization or unfair labour practice or patently illegal or without any evidence on record and the acceptance of the writ petition would save a lot of trouble to the either party because even after the final decision of the Labour Court the issue regarding proper service of the respondent No. 2 could be raised by the aggrieved party through a writ petition before this Court and the dismissal of this writ petition on a preliminary ground would be cumbersome. It was also urged that the respondent No. 2 had taken ad advantage during the pendency of the writ petition by obtaining an Interim order, dated, August 10, 1979, whereby he has been paid Rs. 200/-per month during the pendency of the writ petition and it is not open to him to raise the preliminary objection at this stage After the induction of Section 11-A of the Act the Labour Court is required to be satisfied that the order of discharge or dismissal was not justified If it comes to such a conclusion the Tribunal can set aside the dismissal and direct the reinstatement of the workman. The Court has also the power to give any other relief to the workman including the lesser punishment having due regard to the circumstances of the case The provisions cast a duty on the Court or the Tribunal to rely only on the material on record and prohibit It from taking any fresh evidence. In case the Tribunal comes to the conclusion that there had been no enquiry or the enquiry held by the domestic tribunal is found to be defective, an opportunity is to be given to the Management to sustain its order by adducing independent evidence if it so desires Of course an opportunity would also be given to the workman to lead evidence in rebuttal. There can be no dispute on the point that even after the introduction of Section 11-A the employer & employee can adduce evidence regarding the legality or validity of the domestic enquiry.
7. Thus, both in respect of the cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before if for the first time, the satisfaction under Section 11A about the guilt or otherwise about the workman concerned is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or the other. Even in a proper case, wherein enquiry has been held by an employer and finding of misconduct has been arrived at, the Labour Court or the Tribunal can differ from that finding & hold that no misconduct is proved It can also held that the punishment is not justified, because the misconduct alleged and found proved is such as it does not warrant the dismissal or discharge. The Labour Court can also held that the order of dismissal or discharge is not justified, because the alleged misconduct itself is not established by evidence. To come to a conclusion either way the Tribunal will have to re-appraise the evidence for itself. The Labour Court can also hold that the proved misconduct does not merit extreme punishment 'of discharge or dismissal. In the proved circumstances of the case it can award lesser punishment. The power to interfere with the punishment and alter the same has been now conferred on the Labour Court or Tribunal by Section 11A of the Act. It is agreed by the learned Counsel for the petitioner that even if the service of the notice on the respondent No. 2 is held valid, the case regarding the validity or the quantum of punishment will have to be decided by the Labour Court. In substance the question to be decided in this writ petition is whether it will be advisable for this Court at this stage to again examine the validity of the preliminary issue decided by the Labour Court.
8. In the Cooper Engineering Ltd., v. P P. Mundhe : (1975)IILLJ379SC the Supreme Court held as under:
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 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 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 (Emphasis added)
9. The Labour Court while examining the validity of the order passed by the domestic tribunal held that the evidence regarding evading of service of the respondent No. 2 was not convincing. This is purely a finding of fact. Even if two views of the evidence led before the domestic tribunal were possible and if the Labour Court look one view, then also it can not be held that the Labour Court has acted without jurisdiction or has assumed jurisdiction not vested In it.
10. I have given my anxious consideration to the arguments advanced by both the parties. The finding arrived at by the Labour Court in the case on hand cannot be said to be contrary to the law interpreted by their Lordships of the Supreme Court in the Bata Shoe Company's case (supra). The finding also cannot be termed to be perverse and as such the decision of the Kanataka High Court reported in Motor. Industries Co., Ltd. v. D. Adinarayanppa and Anr. 1978 (36) FLR 430 is clearly distinguishable on facts. The paramount object of the Apt is industrial peace. Piecemeal decision of issues in such cases is likely to protract or prolong the litigation ad infinitum. It Would not be in the interest of justice to allow a party to obtain a decision on a preliminary point, challenge the same before this Court and thereafter before the Supreme Court to the great disadvantage of the workmen. Taking a conspectus of the circumstances of the care I am of the view that it is not a fit case in which this Court, in exercise of its extraordinary jurisdiction, should interfere with the proceedings pending before the Labour Court at this stage and quash the impugned order. It is, however, made clear that it would be open to the petitioner to challenge the decision of the Labour Court regarding the preliminary issue after the final decision of the case through on appropriate writ proceeding if so advised.
11. With these observations, the writ petition is dismissed. No order as to costs.