Amitava Lala, J. - (1.) None appears in spite of fixing the matter on different occasions and ultimately the matter was directed to appear as "Motion (Adjourned) (Unopposed)" after waiting for many occasions. Now, I have no other alternative but to take up the matter for final consideration of the matter even in absence of the contesting respondent. A short point is involved in this matter. An enquiry was held by the Industrial Tribunal in a proceeding under Section 33(2)(b) of the Industrial Disputes Act for approving the action taken by the Company for dismissal of the workmen. It was approved accordingly. Now, when the petitioner wanted to reply upon the enquiry held by the Industrial Tribunal itself this preliminary point is sought to be reagitated at the time of hearing of the petition on merit. I fully agree with the submissions as made by Mr. P.S. Sengupta, learned Senior Counsel appearing for the petitioner Company that the procedural matter has to be adjudicated at first for the purpose of finalisation of the point on merit. The finding, if any, under Section 33(2)(b) may be prima facie but the enquiry which has already been held by the erstwhile Tribunal cannot be ignored by taking a plea that such matter is to be kept one for the purpose of final hearing on merit. Assuming for the moment that at the time of hearing on merit the Court passed an order in respect of such procedural matter either the same has to be adjourned or it will lead a mark of defective finality of the adjudication. This cannot be the welcoming situation at the time of coming to the conclusion. When a judgment was cited by the petitioner before the Tribunal, which has been reported in AIR 1973 SC 1227 : AIR 1973 Lab. I.C. 851 (The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management & Ors., The Dy. General Manager, Larson.& Toubro Ltd. v. Sheikh Ismail Mohammed . The Manager, Larsen & Toubro Ltd. Bombay v. K.P. Ganghare. M/s. Godfrey Philips India Ltd. v. Manik Vasudeo & Ors.) . The Tribunal failed to appreciate the principles laid down by the Supreme Court only on the ground that the facts and circumstances of the present case are not same and identical I have gone through the principle laid down by the Supreme Court wherein it is categorically held "A case of defective enquiry stands on the same footing as no enquiry". A Tribunal gets jurisdiction to consider the evidence placed before it for the first time in deciding the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. It is never recognised that a Tribunal straightway directs 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. Therefore, the domestic enquiry cannot be treated at par with the enquiry to be held by the Tribunal or by the Labour Court. It is just like taking evidence by a Court of law having appropriate jurisdiction regarding suits. If the jurisdiction is changed the evidential part of witness under such jurisdiction will remain as it is. In paragraph 46 of such judgment, I find that the Supreme Court held quite naturally. When the dispute was being adjudicated, the employer will rely upon the proceedings that were already held before a Tribunal under Section 33. Those will form part of the materials on record before the Tribunal. If another Tribunal which adjudicated the main dispute, ignores those proceedings and straightway pases an order for reinstatement on the ground that no domestic enquiry had been held by an employer it will lead to a perverse finding. According to me the aforesaid parts are the principle of law which is governing the field for the purpose of adjudicating the matter in which a proceeding for approval by way of taking earlier evidence on the basis of Tribunal itself necessitated. When such principle is established or enunciated by the highest Court of the land, this cannot be said effectually that it is factually a distinguishable feature. The only question is a question of procedure whether the entire evidence by the Tribunal before it will be accepted or not.
(2.) Therefore, totality of the said order of refusal of consideration of such point before taking a decision in the question of merit can not minimise the litigation. As a result whereof the impugned order is set aside and the Tribunal is directed to adjudicate this point as a preliminary point at first before going into the merit.
(3.) Thus, this writ petition stands disposed of. No order is passed as to costs. Let xeroxed Certified Copy of this judgment be supplied to the parties by the department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the Certified Copy thereof. Order accordingly.;