Gupta, J. - (1.) In this writ petition two grounds have been urged by the learned counsel for the petitioner. His first submission was that there was no industrial dispute within the meaning of Section 2 (k) of the Industrial Disputes Act (hereinafter called 'the Act') in as much as the workman never made a demand for reinstatement with the management. In support of his Lordships of the Supreme Court in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal, Gujarat and other, 1968 (1) LLJ 834 :- "An industrial dispute, as defined must be a dispute between employers and employers, employers and workmen and workmen & workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute. Consequently, the material before the tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant - Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion." Obviously Section 10 of the Industrial Disputes Act requires that an industrial dispute should exist or be apprehended before a reference is made by the State Government to a Board, Labour Court or Industrial Tribunal for adjudication. After a demand is made by the workman and the same is rejected by the employer, whether such demand is made directly to the employer or is made to him through a Conciliation Officer, an industrial dispute would certainly arise. It would be sufficient if there is a demand on behalf of the workman and refusal in respect thereof on the part of the employer, before the date of reference for constituting an industrial dispute. Learned counsel also relied upon a Bench decision of the Delhi High Court in Fedders Lloyd Corporation (Pvt.) Ltd. v. Ltd. Governor, Delhi through Under Secretary (Labour), Delhi and other, AIR 1970 Delhi 60 , in support of his submission, wherein it has been held:- "That a demand by the workmen must be raised first on the Management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such a demand to the Conciliation Officer and its communication by him to the Management, who reject the same is not sufficient to constitute an industrial dispute." With respect, I am unable to agree with the latter part of the aforesaid observations as neither the provisions of Section 2 (k) nor those of Section 10 nor any other provision of the Act supports such a proposition. What their Lordships of the Supreme Court have laid down in Sindhu Resettlement Corporation case (1) is that an industrial dispute should exist, in the sense that there should be a demand and refusal before the State Government called upon to make a reference under Section 10 of the Industrial Disputes Act. In the present case the facts are absolutely different. A charge sheet was served upon the workman alleging misconduct and he was asked to show cause why departmental proceedings should not be taken against him. The workman denied the alleged misconduct and a domestic enquiry ensued, as a result of which the workman was dismissed from employment. Thus, the misconduct which was the very basis of the dismissal of the workman concerned was disputed by him before the employer. After the order of dismissal was passed by the employer, the Union took up the matter and filed an application before the Conciliation Officer demanding reinstatement of the employee concerned and a copy of the same was furnished to the employer. The employer contested the demand for reinstatement of the dismissed employee and after a failure report was made by the Conciliation Officer, a reference was made by the State Government to the Labour Court. Thus, there can be no doubt, in the circumstances of the present case, that an industrial dispute existed within the meaning of Section 2 (k) of the Act, before the reference under Section 10 of the Act was made by the Statement Government.
(2.) A Division Bench of this Court in Good Year India Ltd., Jaipur v. The Industrial Tribunal Rajasthan, Jaipur, 1968 RLW 536 , took a similar view in as much as Bhandari J, as he then was, observed in para 14:- "....by the time the reference was made by the State Government on 16th May, 1967, the respondent had clearly raised a dispute with the petitioner before the Conciliation Officer for his re-instatement and the State Government was referring this dispute to the Industrial Tribunal." The first contention of the learned counsel, therefore, cannot be accepted.
(3.) The second argument advanced by the learned counsel for the petitioner was that the Labour Court was bound to decide as a preliminary issue as to whether the domestic enquiry was fair or not before proceeding to adduce evidence relating to the alleged misconduct. In this context learned counsel relied upon para 6 of his reply dated July 26, 1973/ September 27, 1973 (Annexure - E) wherein it was submitted that the departmental enquiry which preceded the passing of the order of dismissal was fair and independent and an alternative argument was also advanced that in case a lacuna or infirmity was found in the departmental enquiry then the management reserved its right to lead evidence in support of the charge sheet before the Labour Court and that before considering the merits of the case this preliminary objection, along with other preliminary objection raised by the employer, should be decided. A copy of the order sheets of the Labour Court have been placed on the record. It appears from a perusal thereof that on October 30, 19973 learned counsel for the employer submitted that he did not desire to produce any document or other evidence in respect of the preliminary objections raised by him. On November 12, 1973, the learned counsel appearing for the workman before the Labour Court specifically submitted an application before that Court to the effect that the papers relating to the domestic enquiry conducted by the employer should be called for from the employer before hearing the arguments regarding the preliminary objections, yet the learned counsel appearing for the employer stoutly opposed this request and stated that the documents relating to the domestic enquiry had no relation to the hearing of the preliminary objections, and, therefore, it was not necessary to produce those documents at that stage. Still the parties were given an opportunity by the Labour Court to lead evidence in respect of the preliminary objection and an affidavit of the employee was filed and he was cross examined in respect thereof Learned Council for the employer on December 3, 1973 stated that he did not desire to produce any evidence in respect of the preliminary objections and closed his evidence and thereafter the arguments were heard in respect of the preliminary objections. From the order of the Judge, Labour Court dated September 6, 1974 deciding the preliminary objections it appears that the only objection pressed before the Labour Court as a preliminary objection was that there was no demand by the workman and in consequence there of, there was no industrial dispute. The Judge, Labour Court did not accept this contention and the preliminary objection was disallowed. From that order of the Labour Court it does not appear that the present objection was at all pressed before it as a preliminary objection. When the present writ petition came up for admission in this Court on January 29, 1975 a specific question was put by me to the learned counsel appearing for the petitioner as to whether it was pressed on behalf of the petition before the Labour Court that the question relating to the fairness of the domestic enquiry should be decided first before the evidence of the parties relating to the merits of the dispute was recorded. Learned counsel replied that an employer September 28, 1974 in this respect asking the Labour Court to give a preliminary finding about the validity of the disciplinary proceedings conducted against the workman, before proceeding to record the evidence on merits in the case and he prayed for time to produce a copy of the aforesaid application and of the order of the Labour Court passed there on September 28, 1974, which was allowed. It is now submitted on behalf of the petitioner that although no such application in writing was filed before the Labour Court on behalf of the petitioner objection was taken in this respect. The order sheet of the Labour Court dated September 28, 1974 does not show that any such contention was at all raised before it on that day. It has ben recorded by the Labour Court that the evidence of the employee was taken and the record of the domestic enquiries was produced on behalf of the employer and that the employee was not examined of the employer but he was examined in his own right. Thus, from the facts mentioned above, it clearly emerges that at the time when the preliminary objections were heard and decided by the Labour Court, the employer did not consider it necessary to produce the record relating to the domestic enquiry conducted against the employee, from a perusal of which alone the Labour Court could have come to the conclusion as to whether the said domestic enquiry was fair or not. On the other hand, in spite of a specific request being production of the records relating to the domestic enquiry at that stage as appears from the order sheet dated November 12, 1973. The Labour Court could not, therefore on account of the attitude adopted by the employer in the proceedings before it, decide the question relating to the fairness of the domestic enquiry as a preliminary issue.;