M. L. SHRIMAL, J. - (1.) M/s Podar Spinning Mills, Jaipur (hereinafter called 'the petitioner') is an industrial establishment within the meaning of the provisions embodied in the Industrial Disputes Act, 1947 (to be referred to hereinafter as 'the Act' ). Respondent No. 2, Nizamuddin, son of Shri Sabudin, was an employee of the petitioner. A charge-sheet, dated March 17, 1976, was served upon the respondent No. 2. The reply sent by him was received by the Management on March 19, 1976. In the opinion of the Management the reply furnished by the respondent No. 2 was not satisfactory. Accordingly a notice, intimating that an enquiry would be conducted in the matter was issued to non-petitioner No. 2 on March 20, 1976. It is alleged that though this notice had beed served personally on the non-petitioner No. 2, he failed to appear on the due date, fixed for the purpose of enquiry.
(2.) THE enquiry officer directed the Management to give one more opportunity to the workman in the interest of justice and the enquiry proceedings were post-ported to April 21, 1976. A fresh notice was issued on March 22, 1976, to the non-petitioner No. 2, intimating the time, date and place of enquiry. This notice was sent through the peon of the concern, Sanwar Mal. THE notice could not be served personalty on non-petitioner No. 2 as he was not available at his residence. On April 21, 1976, the Enquiry Officer recorded the statement of Sanwar Mal, but instead of proceeding ex-parte in the matter he directed the Management to effect the service of the fresh notices by way of its publication in a daily news-paper having wide circulation in the locality in which the respondent No. 2 was last known to have been actually residing. THE notice was published in 'dainik Navjyoti', dated 22. 4. 76, whereby respondent No. 2 was purported to have been informed that an enquiry would be held by the Enquiry Officer on April 26, 1976. Respondent No. 2, however, did not appear before the Enquiry Officer. The said Officer thereafter held enquiry in respect of the charges. He recorded finding of guilt against the respondent No. 2. The Management accepted the finding, recorded by the Enquiry Officer and passed an order, dated May 5, 1976, dismissing the respondent No. 2 from service. Thereafter the State Govern-ment, in exercise of its power conferred under Clause (c) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1957, referred the dispute, namely, whether the Management, Podar Spinning Mills, was justified in terminating the service of the workman Nizamuddin, son of Sabuddin; if not, to what relief the workman was entitled to the Labour Court, Rajasthan, Jaipur, for adjudication. The non-petitioner No. 2 filed his claim, setting forth as to how the order of his dismissal was illegal and prayed for an award setting aside the order of dismissal, passed by the Management against him and for his reinstatement and other consequential benefits. The Validity of the domestic enquiry on which the dismissal order against the respondent No. 2 was based by the Management was also challenged One of the grounds of challenge was that service of the notice prior to the enquiry had not been properly effected on the workman. The Management also submitted a reply, wherein it was mentioned inter alia that a preliminary finding be given with respect to the fairness of the domestic enquiry. The Labour Court i. e. respondent No 1, reached the conclusion that sufficient opportunity had not been given to the respondent No. 2 to defend himself. 'this finding was arrived at on the grounds That: (i) The original peon-book was not produced by the Management and as such there was nothing on record to suggest that the notice had actually been served; (ii) the evidence regarding evading of service of notice by the respondent No. 2 was not convincing; (iii) no standing order was shown to suggest that the notice could be served by way of publication in a newspaper; and (iv) even otherwise a mere publication of the notice could not amount to effective service. At the time of the dictation of the order the learned counsel appearing on behalf of the Management expressed his desire to led evidence on merits. The Labour Court allowed him to do so and the case was posted for recording evidence of the defendants on April 24, 1978. The Management has challenged the verdict of the Labour Court through this writ petition. The contention of the Management is that the impugned order of the Labour Court is patently illegal and perverse. It had no jurisdiction to disregard the admissible evidence. It could not have conferred jurisdiction on itself to record evidence for deciding the point of jurisdiction. It was further urged that this Court, in exercise of its jurisdiction under Article 226 of the Constitution, could examine the question whether or not, the fact of jurisdiction had been rightly decided by the Labour Court. Reliance in this connection has been placed on M/s. Raza Textiles Ltd. , Rampur vs. The Income-tax Officer, Rampur (1), The State of Madhya Pradesh vs. Sardar D. K. Jadav (2), and Phongseh Misso V. Collector of Land Acquisition (3 ). Seeking support on the Bata Shoe Co. , (P) Ltd. vs. D. N. Ganguly (4) learned counsel urged that as there were no standing orders regarding the mode of publication of the notice, its publication, giving the name and place of the residence of the respondent No. 2 and mentioning therein the next date of hearing in a news-paper in the regional language with a wide circulation was sufficient. The Management did everything possible, which it could have done to serve the notice on the workman. Learned counsel, appearing on behalf of the workman, has raised a preliminary objection about the maintainability of the writ petition. It has been urged that the present writ petition has been submitted at an interlocutory stage of the proceedings, pending before the Labour Court. The workman and the Management have been directed by respondent No. 1 to produce their evidence. The Labour Court had had the jurisdiction to record the finding regarding the service of notice upon the workman. It would not be proper for this Court, in the circumstances narrated above, to interfere with the proceedings before the Labour Court at this stage and quash the impugned order. It is not open to the Management to hinder final adjudication of the dispute by a Labour Court by challenging its decision on a preliminary issue more especially when the same could be agitated after the final order was passed.
(3.) LEARNED counsel for the petitioner vehemently urged that the finding of the Labour Court regarding the invalidity of the service of the notice was patently illegal and perverse, and it would be in the interest of justice to reverse the impugned finding so that the petitioner might be able to press before the Labour Court to accept the finding of the dismissal of the respondent No. 2, given by the Management. The conduct of the disciplinary proceedings and the punishment to be imposed being in the nature of managerial function, the Labour Court could not interfere unless and until it reached the conclusion that the findings arrived at by the Enquiry Officer were the result of victimisation or unfair labour practice or patently illegal or without any evidence on record and the acceptance of the writ petition would save a lot of trouble to the either party because even after the final decision of the Labour Court the issue regarding proper service of the respondent No. 2 could be raised by the aggrieved party through a writ petition before this Court and the dismissal of this writ petition on a preliminary ground would be cumber-son. It was also urged that the respondent No. 2 had taken an advantage during the pendency of the writ petition by obtaining an interim order, dated, August 10, 1979, whereby he has been paid Rs. 200/- per month during the pendency of the writ petition and it is not open to him to raise the preliminary objection at this stage. After the introduction of sec. 11-A of the Act the Labour Court is required to be satisfied that the order of discharge or dismissal was not justified. If it comes to such a conclusion the Tribunal can set aside the dismissal and direct the reinstate-ment of the workman. The Court has also the power to give any other relief to the workman including the lesser punishment having due regard to the circumstances of the case. The provisions cast a duty on the Court or the Tribunal to rely only on the material on record and prohibit it from taking any fresh evidence. In case the Tribunal comes to the conclusion that there had been no enquiry or the enquiry held by the domestic tribunal is found to be defective, an opportunity is to be given to the Management to sustain its order by adducing independent evidence if it so desires, Of course, an opportunity would also be given to the workman to led evidence in rebuttal. There can be no dispute on the point that even after the introduction of section 11-A the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry. Thus, both in respect of the 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 11a about the guilt or otherwise about the workman concerned is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or the other. Even in a proper case, wherein enquiry has been held by an employer and finding of misconduct has been arrived at, the Labour Court or the Tribunal can differ from that finding and hold that no misconduct is proved. It can also held that the punishment is not justified, because the misconduct alleged and found proved is such as it does not warrant the dismissal or discharge. The Labour Court can also hold that the order of dismissal or discharge is not justified, because the alleged misconduct itself is not established by evidence. To come to a conclusion either way the Tribunal will have to re-apprise the evidence for itself. The Labour Court can also hold that the proved misconduct does not merit extreme punishment of discharge or dismissal. In the proved circumstances of the case it can award lesser punishment. The power to interfere with the punishment and alter the same has been now conferred on the Labour Court or Tribunal by section 11-A of the Act. It is agreed by the learned counsel for the petitioner that even if the service of the notice on the respondent No. 2 is held valid, the case regarding the validity or the quantum of punishment will have to be decided by the Labour Court. In substance the question to be decided in this writ petition is whether it will be advisable for this Court at this stage to again examine the validity of the preliminary issue decided by the Labour Court. In the Cooper Engineering Ltd. vs. P. P. Mundhe (5), the Supreme Court held 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 preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between 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. " (Italic added) ;