D.P.Kundu, J. - (1.) In this writ application the petitioner hereinafter referred to as the Company has challenged the Award dated 6.6.1987 passed by the First Labour Court, West Bengal in Case No. VIII-C/60/79.
(2.) It appears that Government of West Bengal, Labour Department by a reference dated 5th July, 1979 referred the following issue for adjudication to the First Labour Court, West Bengal. "ISSUE Whether the dismissal of Sri Jiten Pandit w.e.f. 9.12.77 is justified? To what relief, if any, is he entitled?" It appears that by order No. 71, dated 22.4.86 the First Labour Court held that the domestic enquiry held against respondent No.3 (hereinafter referred to as the workman) was proper and fair and the enquiry was held to be valid by the Labour Court.
(3.) In Delhi Cloth and General Mills Co. Ltd. v Ludh Budh Singh reported in 1972(1) LLJ 180, Supreme Court laid down the principles to be followed by the Labour Courts and Tribunals constituted under Industrial Disputes Act, 1947 in connection with the proceedings which have come before it either on a reference under section 10 or by way of an application under section 33 of the Act. Those principles as enumerated in paragraph 61 of the reported decision are as follows: (1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it. (2) If a domestic enquiry hed been held, it is open to the management to rely upon the domestic enquiry held by it in the first instance, and alternative and without prejudice to its plea that the enquiry is proper and binding simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more that the management has given up the enquiry conducted by it. (3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merit no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. (4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with, in the first instance as a preliminary issue, the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal the position, under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestice Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct. (5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If on such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper. (6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it. (7) The above principles appply to the proceedings before the Tribunal, which have come before it either on a reference under section 10 or by way of an application under section 33 of the Act.";