- (1.) IN this writ application the petitioner challenged order no. 74 dated 6th off November, 1984 passed by the Third Industrial Tribunal, west Bengal, in case no. 8/326/78. The said reference arises out of an order of dismissal passed by the petitioner, against respondent no. 4, dated 2 7 of August, 1975. The reference was made by the government Order dated 21. 9. 1973. That by an earlier order, being order no. 48, dated 31. 3. 1982, the Tribunal found that the enquiry in respect of the said respondent no. 4 was not fair and proper, set aside the order of dismissal and the petitioner was directed to prove its case for the first time before the tribunal. Being dissatisfied with the said order of the Tribunal, the petitioner challenged the same by invoking the writ forum of this Court whereupon C. R. 5527 (W) of 1982 was issued. Against the order, passed by S. C. Basak, J. on 25. 4. 84 in the said Civil Rule, which was challenged in appeal, the Court of Appeal on 28. 6. 1984 passed an order, inter alia, quashing the order of the respondent Tribunal as far as respondent no. 4 was concerned and remitted the case back to the tribunal for a decision on the validity of the domestic enquiry afresh as a preliminary issue by finding out whether the said enquiry was held in accordance with the principles of natural justice and the provisions of the standing order (service conditions ). The Tribunal was further permitted by the Court of appeal to offer the employer an opportunity of adducing evidence in case the finding was against the employer. The impugned order has been passed by the Tribunal in pursuance of the Liberty granted by the Court of Appeal.
(2.) MR. R. C. Deb, appearing in support of the Rule, has challenged the impugned order on the ground that the same is perverse and suffers from legal infirmity. In developing the said submissions Mr. Deb has tried to point out that the findings of the Tribunal about the violation of the principles of natural justice suffered from serious legal infirmities, rendering the same unsustainable in law. It is further contended by Mr. Deb that in purporting to decide the preliminary issue the tribunal has over-stepped its jurisdiction and has decided the entire case on merit, concerning the order of dismissal. Mr. Deb has submitted, in view of the findings arrived, at by the Tribunal, it is desirable, for the sake of justice, that the matter should not be allowed to be decided by the same learned Judge but some other learned Judge, to avoid the effects of the impression already created in the mind of the learned judge.
(3.) MR. N. N. Gupta, learned Government pleader, opposing the writ application, on behalf of the workmen respondent no. 4, has emphatically challenged the propriety and correctness of the submissions of Mr. Deb. It has been argued by Mr. Gupta that the findings of the Tribunal relating to the violation of the principles of natural justice are based on cogent and acceptable materials and there is no. excess of jurisdiction committed by the tribunal in deciding upon the merits of the allegations against the petitioner by reference to the standing orders which, in this case, meant the terms and conditions including those arrived at by settlement, governing the service conditions of the workman concerned. In the context of the aforesaid facts, Mr. Gupta has submitted that there is no merit in the writ application as the Tribunal has really noted in compliance with the directions given by the Court of Appeal of this Court, Mr. Gupta has further submitted that the whole attempt of the employer is to drag the proceeding to the detriment of the workman cocerned on the pretext of obtaining a proper decision on the preliminary point, a practice which has been deprecated by the highest judiciary of the country. Mr. Gupta has contended that the serious prejudice to the workman becomes at on of apparent when it is considered that the so called report which is the basis of the allegation against the workman concerned, be it an oral report or a written report, is not forthcoming nor the maker of the report ha been produced as a witness.;