- (1.) R. A. Sharma, J. A learned single Judge has referred the following questions for decision by a larger Bench: 1. Whether the Labour Court/industrial Tribunal have any statutory of legal obligation to decide any issue as preliminary isaue while adjudicating an industrial dispute in accordance with procedure provided under Rules framed under U. P. Industrial disputes Act and
(2.) WHETHER the High Court in exercise of its jur'- diction under Art. 226 of the Constitution an date a Court or Tribunal to follow a procedure contrary to statutory rules? 2. this matter has accordingly been placed before us by Hon'ble the Chief Jus tice. We have heard learned counsel for the partie'. . " Labour Court Industrial Tribunal are to decide the disputes referred to them under the Industrial Disputes Act. They have Me jurisdiction to decide not only the issues specified in the order of reference but also the never incidental there to. Supreme Court, while considering the scope of power. of the Labour Court and Industrial Tribunal in the matter arising cut of dismiss al of discharge of the workman has laid down that these adjudicatory bodies do not act as court -Aappeal and, therefore, cannot substitute heir own judgment for that of the judgment if the management and they can interfere with the order of punishment passed by the employer only when: (i) there is a want of good faith; (ii) there is victimisation or unfair labour practice; (iii) management is guilty of basic error or violation of principles of natural justice; and. (iv) the finding is perverse. 4. Reference in this connection may be made to the leading case of Indian Iron and Steel Co. Ltd. v. Their Workman, AIR 1958 SC 130. Before dismissing an employee, the employer is expected to hold a domestic inquiry into the alleged misconduct of the employee. It has been laid down by the Supreme Court that when a dispute arising out of the dismissal or discharge of action of the validity of the domestic enquiry as a preliminary issue and if such an issue is decided against the employer, he should be given an opportunity to justify the order of punishment on merit by adducing evidence, Reference here may be made to- the Cooper Engineering Ltd. v P. P. Mundhe, AIR 1975 SC 1900 where in it was laid down 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 prelimi nary issue whether the domestic enquiry has vio lated the principles of natural justice. When there is no domestic enquiry or defective- enquiry is admitted by the employer there will be no difficul ty. 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. " 5. As the decision of any issue as preliminary issue before going into merit of the issues specified in the order of reference was causing undue delay in adjudication of the main controversy, Supreme Court in D. P. Maheshwari v. Delhi Administration and Others, AIR 1984 SC 153, observed that the Labour Court/industrial Tribunal should decide both the preliminary issues and the issued on merit together. This is clear from paragraph I of the said judgment of the Supreme Court which is reproduced below: "it was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Gov ernment to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and also policy to decide preliminary issues first but the time appears to have arrived for a reversal of that policy. We think it is better that tribunals particularly those entrusted with the task of ad judicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for ad judication of peripheral issues, avoiding decision on issues more vital to them. Art. 226 and Art. 136 are not meant to be used to break the resistance of workman in this fashion. Tribunals and Courts who are requested to decide preliminary ques tions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful conse quences. After all Tribunals like Industrial Trib unals are constituted to decide expeditiously spe cial kinds of disputes and their jurisdiction to so decide is not to be shifted by all manner of prelimi nary objectionsand journeyings up and down. " 6. In view of the conflicting decisions of the learned Single Judges of this Court regarding the necessity of deciding some issues as preliminary issues before entering into the merits of the main dispute, the matter was referred to larger Bench in M/s. D. C. M. Sriram Industries Ltd. v. State of U. P (Writ Petition No 43983 of 1993), which has been decided by a Division Bench. The Division Bench held that the observations made in D. P. Maheshwari's case (supra) are general in nature and the law laid down in Cooper Engineering's case (supra) still holds good with the result that the Labour Court/industrial Tribunal have to decide first the validity of domestic enquiry as a preliminary issue before going into the merits of the main issue. The learned Single Judge, who has referred the two issues men tioned before for decision by a larger Bench, was of the view that the decision of the Division Bench in M/s. D. C. M. Sriram In dustries Ltd. v. State of U. P (Supra) does not lay down correct law and requires recon sideration, because Sub-section (2-A) of Section 6 of U. P. Industrial Disputes Act and Section 11-A of the Central Industrial Disputes Act as well as Rule 12 of the In dustrial Disputes Rules and certain other relevant aspects were not considered by it. 7. Section 11-A, which was incor porated in the Industrial Dispute Act. 1947 is reproduced below: "11-A Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman.- Where an industrial dispute relating to the dis charge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its ward, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in liew of discharge or dismissal as the circumstances of the case may. require. Provided that in any proceeding under this section the labour Court, Tribunal or National Tribunal as the case may be, shall rely only on the materials on record and shall not make any fresh evidence in relation to the matter. " 8. The said Section 11-A came up for consideration before the Supreme Court in the Workmen of M/s. Firestone Tyre and Rub ber Co. of India P. Ltd. v. The Management and others MR 1973 SC 1227, where in it was laid down as under "previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infir mities pointed out by this Court in Indian Iron and Steel Co. Ltd. 1958 SCR 667 ; AIR 1958 SC 130 existed. The conduct of the disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by S. 11-A. The words" in the course of the adjudication proceeding the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power to reap praise the evidence in the domestic enquiry and satisfy itself whether the said evidence relief on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limita tion imposed on the powers of the Tribunal by the decision in Indian Iron af (d Steel Co. Ltd. 1958 SCR 667. AIR 1958 SC 130 case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter. " Therefore, it will be seen that both in respect of cases where a domestic enquiry' has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman con cerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and Ending of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no miscon duct is proved. " 9. It was further laid down by the Supreme Court that Section 11-A is prospe ctive in its operation and it will apply only to those disputes, which have been referred to for adjudication after its enforcement. 10. Sub-section (2-A) of Section 6 of U. P. Industrial Disputes Act, which was incor porated in 1978 is as under: "6. (2-A ). An award in an industrial dispute relating to the discharge or dismissal of a workman may direct the setting aside of the dis charge or dismissal and reinstatement of the workman on such terms and conditions if any, as the authority making the award may thinks fit, or granting such other relief to the Workman, includ ing the substitution of any lesser punishment for discharge or dismissal, as the circumstances of the case may require. " Sub-Section (2-A) of Section 6 of the U. P. Act is almost analogous to the provisions contained in Section 11-A of the Central Act. Supreme Court in Scooter India Limited, Lucknow v. Labour Court, Lucknow and others, AIR 1989 SC 149, has laid down that Labour Court can interfere with the order of termination of service of an employee in view of the powers conferred on it by sub-section (2-A) of Section 6 of the U. P. Act. even if the domestic inquiry has been found to be fair and lawful and the findings are not vitiated in any manner. The adjudicatory Tribunals under the Industrial Disputes Act are thus entitled to reappraise the evidence in order to find out as to whether the misconduct alleged against an employee has been established or not. These authorities thus, have not only the jurisdiction but have also statutory duty to go into the questions of fact and to reappreciate the evidence in order to find out whether the order of discharge or dismissal was justified or not. It has also the power to award lesser punishment to a workman in place of his dismissal or discharge. As held by the Supreme Court in Scooter India Limited Lucknow v. Labour Court, Lucknow and others (supra) even if the domestic en quiry if found to be fair and reasonable the labour Court has the power to find out whether the dismissal or discharge of a workman was, in view of the facts and cir cumstances of the case justified or not. WHETHER it is still necessary to decide the validity of a domestic inquiry as a prelimi nary issue before going into the merits of the main controversy when the adjudicatory Tribunal have to go into the merits of the issue relating to the dismissal or discharge of workman even if the domestic inquiry has been found fair and reasonable, is a ques tion which has direct bearing on the point in issue about which we are expressing no opinion at this stage. But this is a relevant question and Section 11-A of the Central Act and sub-section (2-A) of Section 6 of the U. P. Act are the relevant statutory provisions, which are to be considered while deciding the question about the necessity of framing and deciding a preliminary issue relating to the validity of a domestic inquiry. We find that the above aspects and the statutory provisions were not placed before the Division Bench and were not considered by in the aforesaid case of M/s. D. C. M. Sriram Industries Ltd. v. State of U. P. 11. Power, which has been conferred on the Labour Courts and the Industrial Tribunals by Section 11 -A of the Central Act and sub-section (2-A) of Section 6 of the U. P. Act were not available to these Tribunals before the insertion of the said provisions. The aforesaid newly added provisions were also not considered by the Supreme Court in the case of Cooper En gineering Ltd. (supra) probably because as mentioned earlier Section 11-A of the Central Act has been held to be perspective in its operation and it would apply only to a case when a dispute has been referrea after its enforcement. As the legal position has now changed and wide powers have been conferred on the adjudicating Tribunals, the matter is liable to be decided in the light of the aforesaid provision. 12. A Full Bench of this Court in Rama Pratap Singh v. State of U. P, 1995 Allahabad Civil Journal 200 has laid down that when a question has been decided by a Bench, every doubt with regard thereto does not justify the reconsideration there of unless the case falls with in the exceptions laid down there in, one of which is that when the Bench has given the judgment in ignorance of the relevant statutory provision. In the instant case Section 6 (2-A) of U. P. Act as well as Section 11-A of the Central Act, which are the relevant statutory provisions do not ap pear to have been placed before the Division Bench, which has decided the case of M/s. D. C. M. Sriram Industries Ltd. v. State of U. P. (supra) and were, therefore, not con sidered by it. What will be the impact of those provisions on the issues in question we express no opinion, but we are of the opinion that these are the relevant statutory provisions, which are liable to be con sidered while deciding such issues. We therefore, consider it proper to refer this case to a Full Bench. 13. Let the papers of this case be placed before the Hon'ble the Chief Justice with a request to place this matter before a Full Bench for deciding the questions referred to by the learned Single Judge. An early dicision by the Full Bench is required in this case, because such questions are raised in variably in every case when a dispute arising out of the dismissal or discharge of an employee is referred to the Labour Court. An early decision is also required, because the adjudication of the main issue referred in the present case to the Labour Court has been held up due to stay order passed in this writ petition. 14. The Registrar is directed to lay the file of this case before the Hon'ble the Chief Justice for placing this matter before a Full Bench as early as possible. Order accordingly. .;