Judgment:
V.N. Khare, C.J.
1. There will be an order in terms of prayer (a) of the petition.
The appeal is treated as on day's list.
2. This appeal arises out of a judgment and order of the learned Single Judge of this Court dated August 1, 1996 whereby the learned Single Judge had disposed of the writ application filed by the petitioner/respondent.
3. The petitioner/respondent is a publishing company engaged in the business of publishing daily newspaper 'Aajkal'. The appellant/respondent is its employee. It appears that the management of the petitioner/respondent reverted the appellant. Under such circumstances, an industrial dispute arose. The matter was referred to the Tribunal for adjudication.
4. At this stage a writ application was filed in this Court on the ground that since the service of the workman has not been terminated, reference is bad. This was accepted by this Court. Consequently, reference was quashed.
5. Being aggrieved, the employee had taken the matter before the Supreme Court. The Hon'ble Supreme Court by the judgment dated January 18, 1996 quashed the judgment of this Court and remanded the case to the 2nd Industrial Tribunal, Calcutta, with the direction that the Tribunal shall decide the reference as reframed by it on merits. The Supreme Court further directed the Tribunal to decide the reference within three months of the receipt of the order.
6. It is relevant to mention here that while remanding the matter, the Supreme Court struck two issues namely, (1) whether the order of the management dated January 22, 1990 reducing Sri Arunangshu Chakraborty in rank and demoting him to the rank of a Reporter is justified; (2) to what relief, if any is he entitled.
7. On remand when the matter was taken by the Industrial Tribunal, a plea was taken by the management that the Tribunal may decide the validity of the domestic enquiry first and in case it is found that the domestic enquiry was vitiated then it may permit the management to lead evidence to justify the action taken against the employee. This was not accepted by the Tribunal on the ground that this is an additional issue which is not permissible in view of the direction of the Supreme Court. Consequently, the management challenged the order of the Tribunal in this Court by means of petition under Article 226 of the Constitution of India. The Learned Single Judge of this Court, while disposing of the matter, clarified that the Tribunal should proceed to decide the validity of the domestic enquiry first and in case it is found the same is vitiated opportunity be given to the management to justify again against the employee. Against the said order the appellant has come before this Court. The Learned Counsel appearing for the appellant urged that the view taken by the single Judge is inconsistent with the order passed by the Supreme Court and as such the order should be set aside. During the course of hearing, it is admitted between the parties that the Tribunal, consequent upon the order of the Supreme Court, meanwhile has passed and pronounced the award on August 22, 1996. It is also stated at the Bar that the Tribunal in this award upheld the action taken against the appellant. When this fact was brought to our notice, we were reluctant to enter in to the merit of the case as it is open to the appellant to challenge the award on the ground urged by him before us. However, Learned Counsel for the appellant insisted that we should decide the appeal on merits despite the award having been passed not before us and not in dispute in this appeal. A perusal of the order of the Supreme Court shows that Issue No. 1 was 'as to whether the order of management demoting the employee to the rank of Reporter was justified or not'. Necessarily while deciding this issue as to whether the action was justified or not, the Tribunal has to embark upon enquiry as to whether the domestic enquiry was vitiated or not. In case it is found that it is vitiated, of course, it is open to the employer to lead evidence to justify its action against the employee. And if he again fails then of course the issue would be decided in favour of the employee and against the employer.
8. We are, therefore, of the opinion that what the learned Single Judge has observed in the order is implicit in the issue No. 1 of the issues framed by the Supreme Court. We do not find that the Learned Single Judge has acted contrary to the direction. We do not find any merit in the I submission made by the Learned Counsel. Accordingly, we reject this argument and dismiss the appeal.
9. Let a certified copy of this order be issued within 10 days on payment of necessary charges.
Vinod Kumar Gupta J.
10. I agree.