TMI Blog1975 (8) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... but added that for this purpose I collect the said contribution outside the gate of the Company and this being so, such erroneous information supplied to you by someone should not be considered acceptable . After holding the domestic inquiry in which some witnesses were examined by the employer and cross-examined by the workman and questioning the workman at the outset as well as at the end of the inquiry, the Enquiry Officer Submitted very brief report to the Works Manager (hereinafter the Manager) holding that the charges were established. He did not give any detailed reasons for preferring the evidence of the six witnesses examined on behalf of the employer in the inquiry to the version of the workman. The Manager after perusal of the report of the Enquiry officer passed the order of dismissal without adverting to the evidence in the inquiry. This was particularly necessary since the Enquiry Officer had not given his reasons for his finding. Another incident occurred during the inquiry before the Manager.The workman after answering the first question of the Manager. when another question was put, abruptly left the inquiry without paying any heed to the orders of the Manager ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C.R. 588which is a decision of four learned Judges. Inter alia, the question that arose in that appeal was as to whether, since the management held no inquiry as required by the standing orders, it could not justify the discharge before the Tribunal. In Motipur Sugar Factory's case (supra), the Court observed at page 597 of the report as follows :- If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must he set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely. upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence, it would follow that he gives up his stand based on the holding of the domestic enquiry. Other wise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer; if the finding on the said issue is against hm, permission will have to be given to the employer to cite additional evidence . - Although this Court in Ritz Theatre's case (supra) observed that such a procedure may be elaborate and somewhat cumbersome it was not held to be illegal nor had if been rejected out of hand In State Bank of India v. R. K. Jain ors [1972] I S.C.R. 755,766,777. this Court had to deal with a similar question. The contention on behalf of the management in that case was that- Even assuming that the domestic inquiry conducted by the Bank wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to adduce additional evidence though the management had made no such request. This view was held to be erroneous by this Court, in State Bank of India v. R. K. Jain others (supra). We may now refer to the propositions (4), (5) and (6) in the A Delhi Cloth and General Mills' case (supra): (4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of r 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 s domestic enquiry. If its finding on the preliminary issue is in favour of the management, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action . (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective . (7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective . . (8) 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. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct . We are particularly concerned w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 in casting a duty upon the labour court to decide the preliminary issue and also in view of the submission of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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