- (1.) HEARD Sri Samir Sharma, learned counsel for the petitioners, Sri Brahma Prakash Mishra, learned counsel for respondent no.1 and Sri Ram Sewak Prajapati, learned Standing Counsel for respondent nos. 2 and 3.
(2.) SHRI Sharma submits that the impugned final award in Adjudication Case No.29 of 2009 has been passed, while considering preliminary issue as to whether the inquiry conducted was fair and proper or not. He submits that the preliminary issue was framed by the respondent no.2 on the application of respondent no.1.Written statement to the application was filed by the petitioner, which has been annexed as Annexure -4. In para -7 of the written statement it is clearly stated that if the inquiry is found to be defective by the respondent no.1, then the petitioners reserved their rights to adduce evidences before the respondent no.4 in support of the charges levelled against the respondent no.1. He submits that the respondent no.2 decided the preliminary issue by the impugned order dated 24.4.2013, but while, passing this order he passed the final award without affording any opportunity to the petitioners to lead evidences in support of the charges. He submits that in view of these facts the impugned award is liable to be set aside and the matter may be remitted back to the respondent no.2 for decision afresh after affording opportunity to lead evidence in support of the charges levelled against the respondent no.1.
(3.) IN support of his submission the learned counsel for the petitioners relied upon a decision in the case of U.P.State Road Transport Corporation, Meerut v. Rajendra Singh and another, 2012 133 FLR 986, in which in paragraph 9 and 11 this Court held as under : "9 -The issue as to whether the preliminary issue of domestic enquiry should have been decided first or not cannot be now at this stage be given a different dimension than what has been stated in paragraph 15 of the full bench decision. However, the subsequent decision of the Supreme Court as relied upon by the learned counsel for the respondent himself in the case of Neeta Kalpish does indicate that the Labour Court has to record a finding on the domestic enquiry and then call for a fresh evidence. In my considered opinion, the subsequent Supreme Court decision which categorically indicates the aforesaid procedure to be adopted by the Labour Court would impliedly dilute the impact of the full bench decision relied upon by the learned counsel for the respondent to the said extent. The Labour Court in the present case has therefore not considered the impact of the judgment in the case of Neeta Kaplish before proceeding to simultaneously decide both the issues together. 11. In the instant case the Labour Court did notice the request of the employer -petitioner that the employer has made an offer to the effect that if the issue of domestic enquiry is answered against the employer then fresh evidence should be allowed to be led. The Labour Court did not decide the domestic enquiry as a preliminary issue and has proceeded to mix -up the decision making process by recording findings on the domestic enquiry and the fresh evidence led together. This perversity is therefore evident from a perusal of the impugned award itself. The learned counsel for the petitioner -Corporation is right in his submission that the evidence with regard to domestic enquiry should have been segregated in order to decide the issue of domestic enquiry also on the basis of the material that had been made available during the domestic enquiry. In my opinion, this is also in conformity with the view expressed by the apex court in the case of Neeta Kaplish . The apex court decision clearly recites that the opportunity to the employer to lead fresh evidence has to be preceded by a finding on the issue of fairness of domestic enquiry. This is possible only if the finding is recorded first before the employer is given opportunity to lead fresh evidence. There is therefore no need to refer the matter as on the facts of this case the ratio of the Apex Court squarely applies which is binding being delivered later and after the Full Bench." He also relied upon the decision of the Supreme Court in the case of Bharat Forge Company Ltd. v. A.B. A.B. Zodge and another, 1996 73 FLR 1754, wherein it has been held as under : "There is no dispute in the present case that before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified.";