D.P.Mohapatra, C.J. - (1.) The learned single Judge, before whom the case was initially laid, referred the following 2 questions for consideration by a larger Bench: 1. Whether the Labour Court/Industrial Tribunal have any statutory or legal obligation to decide any issue as preliminary issue while adjudicating an Industrial dispute in accordance with procedure provided under Rules framed under U. P. Industrial Disputes Act? 2 Whether the High Court can in exercise of its jurisdiction under Article 226 of the Constitution mandate a Court or Tribunal to follow a procedure contrary to statutory Rules? When the case was listed before a Division Bench, the Bench took the view that the matter should be placed before a Full Bench for deciding the questions referred by the learned single Judge. That is how the case has been listed before this Full Bench for decision on the aforementioned questions.
(2.) Shortly stated, the question that falls for determination is whether in a case where the validity of an order of dismissal, discharge, removal or termination of service is referred to the Industrial Tribunal or Labour Court for adjudication, the management can insist on the issue regarding legality of the domestic enquiry conducted by the management to be decided as a preliminary issue and thereafter to decide whether it will adduce evidence before the Industrial Tribunal or Labour Court to prove the charges. Experience shows that in such cases the management in its written statement pleads in favour of summary dismissal of the case on the ground that the order of dismissal, removal or termination was preceded by a valid domestic enquiry held in accordance with the procedure laid down in the service rules or standing order and therefore, the Industrial Tribunal/Labour Court should decline to interfere in the matter. in the pleadings the Management also takes an alternative stand to establish the charges before the Industrial Tribunal or Labour Court. The question is whether in such cases the Management is entitled as of right to have the issue of legality of the domestic enquiry decided as a preliminary issue or the Industrial Tribunal or Labour Court may pass an order to take up all the issues together and decide the entire case at a time. The difference in following the two procedures will be that the battle will be fought piecemeal, first on the issue of legality and validity of the domestic enquiry and thereafter on the issue of Justifiability or otherwise of the charges. If necessary. It is often contended on behalf of the management in such cases that it Js entitled to have the decision of the Industrial Tribunal/Labour Court on the preliminary issue before it can be called upon to decide whether to adduce evidence to establish the charges before the Industrial Tribunal/Labour Court.
(3.) Before discussing the point on merit, it will be convenient to notice the relevant statutory provisions in the U. P. Industrial Disputes Act. 1947 (U. P. Act No XXVIII of 1947) (hereinafter referred to as the U. P. Act) and the Industrial Disputes Act. 1947 (Act No. XIV of 1947) (hereinafter referred to as the Central Act). Section 6 of the U. P. Act reads as follows : "6 Awards and action to be taken thereon.--(1) Where an Industrial dispute has been referred to a Labour Court or Tribunal for adjudication, it shall hold its proceedings expeditiously and shall as soon as it is practicable on the conclusion thereof, submit its award to the State Government. (2) The award of a Labour Court or Tribunal shall be in writing and shall be signed by Its Presiding Officer. (2A) An award in an Industrial dispute relating to the discharge or dismissal of a workman may direct the setting aside of the discharge or dismissal and reinstatement of the workman on such terms and conditions, If any, as the authority making the award may think fit, or granting such other relief to the workman, including the substitution of any lesser punishment for discharge or dismissal, as the circumstances of the case may require. (3) Subject to the provisions of sub-section (4) every arbitration award and the award of a Labour Court or Tribunal, shall, within a period of thirty days from the date of its receipt by the State Government be published in such manner as the State Government thinks fit. (4) Before publication of an award of a Labour Court or Tribunal under sub-section (3), If the State Government is of the opinion that (a) the adjudicating authority has unreasonably refused permission to any party to adduce evidence ; or (b) any party was prevented by any other sufficient cause from adducing evidence; or (c) new and important material fact or evidence has come to notice, which after the exercise of due diligence, was not within the knowledge of, or could not be produced by, the parry at the time when the award was made; or (d) the award is likely to disturb the Industrial peace ; or (e) the award is likely to affect prejudicially the national or State economy; or (f) the award is likely to interfere with the principles of social justice ; or (g) the award has left undetermined any of the matters referred for adjudication and such matter cannot be separated without affecting the determination of the matters referred ; or (h) the award is so indefinite as to be incapable of being enforced ; or (i) Illegality of the award is apparent upon the face of it, it may after giving the parties reasonable opportunity of being heard, for reasons to be recorded, remit the award for reconsideration of the adjudicating authority, and that authority shall, after reconsideration, submit its award to the State Government, and the State Government shall publish the award in the manner provided in sub-section (3). (5) Subject to the provision of Section 6A, an award published under subsection (3) shall be final and shall not be called in question to any court in any manner whatsoever. (6) A Labour Court, Tribunal or Arbitrator may either of its own motion of on the application of any party to the dispute, correct any clerical or arithmetical mistakes in the award, or errors arising therein from any accidental slip or omission ; whenever any correction is made as aforesaid, a copy of the order shall be sent to the State Government and the provision of this Act ; relating to the publication of an award shall mutatis mutandis apply thereto." The part materia provision of this section in the Central Act is Section 11A which reads : "11 A. Powers of Labour Courts. Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.--Where an Industrial dispute relating to the discharge 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 award, set aside the order of discharge or dismissal was not justified, tt may, by Its award, 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 lieu 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 take any fresh evidence in relation to the matter.";