Gulam Mustaffa Kureshi Vs. Member Industrial Court and ors. - Court Judgment

Kamdar S.U., J.

1. By the present Letters Patent Appeal, the appellant is challenging the orders dated 23-1-2003 and dated 23-2-2004 passed in Civil Application No. 485/2001 and C.A. No. 1194 respectively. By the said orders, the learned Single Judge has stayed the further proceedings in complaint ULPA No. 594 of 1998 pending before the Labour Court till hearing and final disposal of the main Writ Petition No. 4855 of 2003. The consequent result is that the proceedings before the Labour Court has been stayed. In our view the said order is likely to affect both the parties since there would be substantial delay in adjudication of the pending complaint before the Labour Court. The Apex Court has repeatedly held that as far as possible proceedings before the Labour Court should not be stayed because it results in inordinate delays. In light of the aforesaid facts, both the learned Counsel appearing for the parties have filed a purshis dated 16-10-2004 in the present appeal requesting this Court that the main writ petition itself should be disposed of at the admission stage of this LPA itself. In defence to the joint request of both the learned Counsel through their joint purshis dated 16-10-2004, we take up the main Writ Petition No. 4855 of 2003 itself for hearing and final disposal.

2. Some of the brief facts of the present case are enumerated as under :-

3. For the purpose of the present judgment, we will described the company as the petitioner since the said company is a writ petitioner in Writ Petition No. 4855 of 2003 and the workman will be described as respondent since the said workman is a respondent in the main Writ Petition No. 4855 of 2004. The petitioner company is engaged in manufacture of Rubber V-Beats and has its factory at M.I.D.C. Industrial Area, Hingna Road, Nagpur. The conditions of service of the workmen in the company are governed by the Model Standing Orders framed under the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act). The respondent workman was appointed in the post of helper with effect from 1-2-1990 and was posted subsequently on Bais cutting machine and thereafter posted on soulding machine. With effect from 1-2-1991, the petitioner was made permanent in the said post and was paid daily wages rate of Rs. 69/- per day.

4. On 17-6-1997, a charge-sheet was issued against the petitioner on the ground of assault of his superiors and others workers and another charge was that he was provoking insubordination amongst the workmen and used filthy language against the superiors. A departmental inquiry was conducted in which the respondent-workman participated and led evidence before the Inquiry Officer. Ultimately, the Inquiry Officer submitted his report on 27-1-1998 and found the respondent workmen guilty of the charges. The said recommendation of the Inquiry Officer was accepted by the Disciplinary Authority and on 7-7-1998 punishment was imposed on the respondent workman and he was terminated from service.

5. On 6-10-1998, the respondent workman filed a complaint before the First Labour Court being ULPA No. 594 of 1998 under the provisions of Section 28 read with Item l(a), (b), (c), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the M.R.T.U. & P.U.L.P Act). In the complaint it was inter alia alleged that the said charge-sheet and the departmental inquiry was bad in law; the same was not fair and just. It was also alleged that there is breach of principles of natural justice in the said inquiry and the findings arrived at by the Enquiry Officer are perverse. It was, therefore, pleaded in the complaint that the said enquiry should be quashed and it should be declared that the petitioner company has committed Unfair Labour Practices under the provisions of Item l(a), (b), (c), (d), (f) and (g) of Schedule IV of the M.R.T.U. & P.U.L.P. Act.

6. On 16-1-2000, the petitioner company filed a reply to the said complaint and contested the said allegations of unfair labour practice. The petitioner company reiterated the allegations as framed in the charge-sheet as well as the findings of the Enquiry Officer.

7. In view of the aforesaid rival contentions between the parties, the Labour Court was required to first frame preliminary issue, namely that, whether the enquiry procedure is fair and whether the findings recorded by the Enquiry Officer are valid or perverse.

8. The Labour Court framed two preliminary issues which are as under : -

Issue No. 1

Whether the domestic enquiry held against the complainant was fair, proper and as per the principles of natural justice ?

Issue No. 2.

Does the complainant prove that the findings of the Enquiry Officer are perverse ?

9. In support of his complaint the respondent workman sought to lead oral evidence on both the aforesaid preliminary issues. As soon as the examination-in-chief commenced the petitioner company raised an objection that the oral evidence which is sought to be led before the Court pertains to the merits of the case and till and until the aforesaid issues are decided, the respondent workman is not entitled to lead evidence on merits of the case or otherwise. Thereafter the respondent petitioner company filed an application restraining the respondent workman from leading any evidence on the issue as to the perversity of the findings of the Enquiry Officer and contended that save and except the issue that the petitioner has duly complied with the procedure required to be complied with and that the principles of natural justice are complied with, the respondent workman is not entitled to lead other evidence till and until the aforesaid two issues are decided. Only if the said two preliminary issues are decided and held in favour of the respondent workman that the question of leading oral evidence on the merits of the case may arise. It was further contended that if the issues are decided against the petitioner company then the petitioner company will require to re-establish the misconduct of the respondent-workman before the Labour Court by leading oral evidence and thereafter in rebuttal the respondent workman is also entitled to lead oral evidence. On the said application, reply was filed by the respondent-workman and the Labour Court permitted the oral evidence on the aspect of perversity of enquiry which essentially requires leading of oral evidence on the merits of the case. Being aggrieved by the said order passed by the Labour Court on 27-3-2003, the petitioner company preferred a revision application before the Industrial Court at Nagpur being Revision (ULPN) No. 112 of 2003. The said matter was heard by the Industrial Court and by its order and judgment dated 15-11-2003 the Industrial Court had dismissed the said revision petition with costs and remanded the matter back to the Labour Court for further proceedings. This order of the Industrial Court dated 15-11-2003 has been challenged before the learned Single Judge in Writ Petition No. 4855 of 2003. The learned Single Judge has by an order dated 9-12-2003 admitted the petition and granted ad interim stay as set out herein above which ad interim stay has been confirmed by the impugned judgment dated 2-1-2004. Being aggrieved by the said order, the respondent-workman has filed the present Letters Patent Appeal to this Court.

10. In the background of this factual matrix, we are required to consider the point of law that whether the respondent workman is in law entitled to lead oral evidence even in respect of the perversity of the findings of the Enquiry Officer or he is required to assail the findings being perverse on the basis of the record as existed before the Enquiry Officer. It is not disputed by either of the parties before us that the respondent workman is entitled to lead oral evidence to establish that there is no proper service of notice and/or that on other grounds the principles of natural justice are violated. The only issue before us pertains to issue No. 2 whether the question of perversity of the enquiry proceedings is required to be established before the Industrial Court by leading oral evidence or on the basis of record which existed before the Enquiry Officer in departmental proceedings.

11. The learned Counsel for the respondent workman has inter alia contended before us that the respondent workman is entitled to adduce evidence before the Tribunal to make out a case of victimisation or unfair labour practice and/or lack of good faith and/or bias to hold that the departmental enquiry is vitiated and the same is perverse. It has been further contended by the learned Counsel for the respondent workman that it is open for the respondent workman to bring on record the said material by way of oral evidence to establish perversity of the enquiry. In his opinion it will be necessary to show by leading oral evidence that the domestic enquiry held was not an enquiry in the eyes of law and that the same is perverse, It has been further urged by the learned Counsel for the respondent workman that the said fact need not be established merely on the basis of the record as exists in the departmental proceedings but he is entitled to lead additional evidence by way of oral evidence before the Labour Court itself. In support of the aforesaid contentions the learned Counsel for the respondent workman has relied upon authorities which are briefly enumerated as under :-

12. The learned Counsel for the respondent-workman has relied upon the judgment of the Apex Court in the case of Delhi Cloth and General Mill Co. Ltd. v. Thejvir Singh, reported in 1972 L.I.C. 1276, particularly para 18 of the judgment which reads as under :-

'Coming to the second contention which relates to the request made by the management in its application dated March 15, 1966 for being given an opportunity to adduce evidence, if the domestic enquiry is held to be defective we agree with the Tribunal when it rejected the application; but however, we do not agree with the reasons given by the Tribunal for rejecting the same. In its order the Tribunal has stated that if the management is allowed to adduce evidence, it will mean that it can coach up its witnesses so as to give improved statements before the Tribunal. This is not a proper approach to be made when dealing with such an application. The nature of the evidence to be let in before the Tribunal is entirely a matter for the management and if such witnesses give a version different from the one given in the domestic enquiry, then it will -be a matter for the Tribunal to consider these aspects in appreciating their evidence.'

13. In our view, the judgment of the Apex Court itself makes it very clear that the question of adducing evidence arises only if the finding given by the Labour Court on the preliminary issue is that the domestic enquiry which is held is defective. In that view of the matter, we do not find that any such proposition of law as propounded by the learned Counsel for the respondent workman has been laid down by the Apex Court in the aforesaid judgment.

14. Thereafter, the learned Counsel for the respondent workman has relied upon the judgment of the Andhra. Pradesh High Court in the case of A.N. Pandu v. Management of Bharat Heavy Electricals Ltd. and Ors., reported in 1997(1) C.L.R. 1135, particularly paragraphs 4 and 8 of the said judgment. The said paragraphs 4 and 8 read as under :-

'4. The main contention of the petitioner respondent in the writ petition was that the 1st respondent Labour Court (R-2 herein) made a fresh enquiry by recording the evidence notwithstanding the fact that the domestic enquiry had already been held by the petitioner Management, without holding such enquiry was vitiated by reason of its being perverse or that there was no evidence to support the finding of guilt. Such a course was not open to the Labour Court when a dispute was referred for its adjudication. Only when the disciplinary enquiry was found to be vitiated for the reasons stated above, then the Labour Court will permit the Management to adduce the evidence of justify the order of punishment against the workman. If the Labour Court finds that the domestic enquiry was properly held, no further question arises as to the misconduct of the workman. It may, however, interfere with the order of punishment, if the punishment was wholly disproportionate to the misconduct established. In the instant case, without such a preliminary enquiry the workman was given opportunity to adduce evidence. This is also not a case where the Management wants to justify the order of punishment. Such a course was not permissible under law.

'8. The Labour Court, therefore, committed an error of jurisdiction in allowing the appellant respondent to lead evidence in the enquiry before it and come to a decision, after considering such evidence. The award is, therefore, liable to be quashed.'

15. On a plain reading of the said judgment of the Andhra Pradesh High Court, once again it is clear that the question of oral evidence arises only when a finding is given by the Industrial/Labour Court that enquiry is perverse and is bad in law. In the said judgment the Labour Court in fact without giving a finding on the preliminary issue that the domestic enquiry has been vitiated sought to decide the validity of the said punishment and guilt of the workman thus, the High Court has held that such a course is an error of jurisdiction and that the workman should not have been allowed to lead the evidence in the enquiry before it come to the conclusion that the enquiry is vitiated. The learned Counsel for the appellant has thereafter relied upon the judgment of the Full Bench of the Patna High Court in the case of Indian Aluminium Co. Ltd. v. Labour Court, Ranchi and Anr., reported in : (1991)ILLJ328Pat , particularly paragraphs 6, 43 and 55 of the said judgment. The issue before the Full Bench of the Patna High Court, was in view of the insertion of Section 11-A of the Industrial Disputes Act, 1947 the right of the workman to establish that there is a bias in conducting the enquiry can be treated to have been taken away. In that case from the facts it is clear that when the matter was heard by the Labour Court on a preliminary issue the Labour Court gave a finding that the enquiry was violative of the principles of natural justice and, therefore, invalid. The said finding was challenged by filling a writ petition in the High Court and the learned Single Judge of that Court quashed and set aside the finding of the Labour Court and the matter was sent back to the Labour Court. It is only at that stage that the application was made for leading of oral evidence contending that the action of the management that the dismissal was mala fide and that the respondent was victimised. This application was resisted by relying upon Section 11-A of the I.D. Act. It is in light of the said facts that the provisions of Section 11-A fell for consideration before the Full Bench of the Patna High Court. Relying upon the aforesaid Full Bench judgment of the Patna High Court, the learned Counsel for the respondent workman has contended that he is entitled to lead oral evidence before the Labour Court on a preliminary issue. We do not find any such proposition of law being laid down in the said judgment that even at a stage of consideration of preliminary issue the Court must permit an oral evidence.

16. The learned Counsel for the appellant has thereafter relied upon the judgment of the Apex Court in the case of Employer in Relation to Management of Central Mine Planning and Design Institute Ltd. v. Union of India and Anr., reported in 2001(1) C.L.R. 704. The said judgment also has no application to the facts of the present case because the contention raised therein in about the maintainability of L.P.A.

17. The learned Counsel has thereafter relied upon a judgment in the case of Omkar Sitaram Rane v. Maharashtra State Khadi and Village Industries Board, Bombay and Ors., reported in 2003 Bom.C.R. 143 : 2003(1) C.L.R. 560. Even the said case arises only after the matter was finally heard and not at the preliminary issue stage. The facts in paragraph 1 of the said case themselves make it clear that the complaint filed by the worker in that case was heard finally and after giving opportunity to the management to reestablish that the respondent workman was guilty by leading necessary evidence that the matter was heard. However, the learned Counsel for the petitioner has relied upon the said judgment particularly paragraphs 15 thereof which reads as under :-

'15. In view of the abovesaid observation of the learned Single Judge and the Apex Court, we hold that in deciding complaint under the Act of 1971, the procedure that is formulated by the Apex Court will equally applicable. The trial of industrial dispute either under Act of 1971, or the Act of 1947 by the Court/Tribunal cannot make any difference as by now the procedure as approved by the Apex Court in respect of industrial dispute will have to follow.'

We do not see any application of the said judgment to the facts of the present case because the issue raised in the present petition has not even arose in that case for consideration.

18. On the other hand, the learned Counsel for the petitioner has filed his submission and has inter alia contended that the preliminary issue as to the perversity has to be decide by the Enquiry Officer and by the Labour Court on the basis of the record of evidence led before the Enquiry Officer and the Labour Court cannot permit the workman to lead fresh oral evidence to establish perversity of findings before the Enquiry Officer. In the respectful submission of the learned Counsel for the petitioner that would tantamount to conduct the two parallel departmental proceedings and such a jurisdiction is not vested in the Labour Court till and until a finding is given that the enquiry conducted by the departmental proceedings is vitiated. It has been further urged by the learned Counsel for the petitioner that permitting the respondent to lead further oral evidence would tantamount to give him an opportunity to improve his case before the Labour Court without the Labour Court first holing on the basis of the record before the Enquiry Officer that the said proceedings are bad in law or invalid. He has further contended that the judgments which are relied upon by the appellant in support of his case have no relevance. He has submitted that the issue is in fact settled by various judgments of the Apex Court and he drew our attention to the case in the matter of Management of Ritz Theatre (P) Ltd. v. Its Workman, reported in : (1962)IILLJ498bSC , particularly on the following paragraph.

'We do not think that this view can be accepted as correct. In enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not. Locally, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the finding recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. It is quite conceivable, and in fact it happens in many cases, that the employer may rely on the enquiry in the first instance and alternatively and without prejudice to his plea that the enquiry is proper and binding, may seek to lead additional evidence. It would, we think, be unfair to hold that merely by adopting such a course, the employer gives up his plea that the enquiry was proper and that the Tribunal should not go into the merits of the dispute for itself. If the view taken by the Tribunal was held to be correct, it would lead to this anomaly that the employer would be precluded for justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence it would follow that he gives up his stand based on the holding of the domestic enquiry. Otherwise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be led by the employer; if the finding on the said issue is against him, permission will have to be given to the employer to cite additional evidence, instead of following such an elaborate and somewhat cumbersome procedure, if the employer seeks to lead evidence in addition to the evidence adduced at the departmental enquiry and the employees are also given an opportunity to lead additional evidence, it would be open to the Tribunal first to consider the preliminary issue and then to proceed to deal with the merits in case the preliminary issue is decided again the employer. That, in our opinion, is the true and correct legal position in this matter.'

19. He has thereafter invited our attention to another judgment of the Apex Court in the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Anr., reported in : (1979)IILLJ194SC of the said judgment which read as under :-

'28. It was contended that the Court has in unambiguous and incontrovertible terms laid down that there is an obligatory duty in law fastened on the Labour Court or the Industrial Tribunal dealing with a case of punitive termination of service either under Section 10 or Section 33 of the Act, irrespective of the fact whether there is any such request to the effect or not, to raise a preliminary issue as to whether domestic enquiry allowed to have been held by the employer is proper or defective and then record a formal finding on it and if the finding is in favour of the workman the employer should be called upon which must demonstrate on record, without waiting for any such request or demand or pleading from the employer, to adduce further evidence to sustain the charge of misconduct if it so chooses to do. We are afraid that much is being read into the observation of this Court which is not either expressly or by necessary implication stated. There is nothing to suggest that in Cooper Engineering Ltd., case this Court specifically overruled the decision in R.K. Jain case where the Court in terms negatived the contention of the employer that there is an obligatory duty in law on the Labour Court or the Industrial Tribunal to give an opportunity to the employer irrespective of the fact whether it is asked for or not to adduce additional evidence after recording a finding on the preliminary issue that either no domestic enquiry was held or the one held was defective. It would be advantageous to refer to an observation of this Court in Delhi Cloth & General Mills Co. case at page 53 (SCC p. 614, para 55), where after examining the ratio of the decision in R.K. Jain case this Court held that there was no question of opportunity to adduce evidence having been denied by the Tribunal as the appellant therein had made no such request and that the contention that the Tribunal should have given an opportunity suo motu to adduce evidence was not accepted in the circumstances of that case. This observation in fact rejects the contention that there is any such obligatory duty cast by law on the Labour Court or the Industrial Tribunal to give such an opportunity to the employer and then leave it to the sweet will of the employer either to avail it or not. This view in R.K. Jain case was reaffirmed in Delhi Cloth and General Mills Co. case and there is nothing in the decision in Cooper Engineering Ltd. case that case overrule the two earlier decisions. It was not possible so to do because the decision in the Ritz Theatre case (supra) wherein even though the application for adducing additional evidence was given before the Tribunal passed its final order, this Court declined to interfere saying that such a request was made at a very late stage and that is the decision of three Judges and the decision in Cooper Engineering Ltd. case is equally a decision of three Judges. Further, the decision in Cooper Engineering Ltd. case does not propose to depart from the ratio of the earlier decisions because this Court merely posed a question to itself as to what is the appropriate stage at which the opportunity has to be given to the employer to adduce additional evidence, if it so chooses to do. Merely the stage is indicated, namely, the stage after decision on the preliminary issue about the validity of the enquiry. Cooper Engineering Ltd., case is not an authority for the proposition in every case coming before the Labour Court or the Industrial Tribunal under Section 10 or Section 33 of the Act complaining about the punitive termination of service following a domestic enquiry that the Court or Tribunal as a matter of law must first frame a preliminary issue and proceed to decide the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling upon the employer to adduce further evidence to sustain the charges if it so chooses to do. No section of the Act or the Rules framed thereunder was read to pin point such an obligatory duty in law upon the Labour Court or the Industrial Tribunal. No decision was relied upon to show that such is the duty of the Labour Court or the Industrial Tribunal. This Court merely indicated the stage where such opportunity should be given meaning thereby if and when it is sought. This reading of the decision in Cooper Engineering Ltd. case is consistent with the decision in Ritz Theatre case because there as the application for permission to adduce additional evidence was made at a later stage the Tribunal rejected it and this Court declined to interfere. Now, if the ratio of the Cooper Engineering Ltd. case is to be read to the effect that in every case as therein indicated it is an obligatory duty of the Industrial Tribunal or the Labour Court to give an opportunity after recording the finding on the preliminary issue adverse to the employer to adduce additional evidence it would run counter to the decision in Ritz Theatre case. Such is not the ratio in Cooper Engineering Ltd. case. When read in the context of the propositions culled out in Delhi Cloth & General Mills Co. case and the Firestone Tyre & Rubber Co. of India (P) Ltd. case, the decision in Cooper Engineering Ltd. case merely indicates the stage at which an opportunity is to be given but it must not be overlooked that the opportunity has to be asked for. Earlier clear cut pronouncements of the Court in R.K. Jain case and Delhi Cloth & General Mills Co. case that this right to adduce additional evidence is a right of the management or the employer and it is to be availed of by a request at appropriate stage and there is no duty in law cast on the Industrial Tribunal or the Labour Court suo motu to give such an opportunity notwithstanding the fact that none was ever asked for are not even departed from. When we examine the matter on principle we would point out that a quasi judicial Tribunal is under no such obligation to acquaint parties before it about their rights more so in an adversary system which these quasi judicial Tribunals have adopted. Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under Section 10 or Section 33 of the Act questioning the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take a certain action or seeking approval of the action taken by it. If such a request is made in the statement of claim, application or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request in made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings.

'29. Having examined the matter on precedent it would be worthwhile to examine the matter on principle. The Labour Court or the Industrial Tribunal to which either a reference under Section 10 or an application under Section 33 for permission to take an intended action or approval of an action already taken is made, would be exercising quasi judicial powers, which would imply that a certain content of the judicial power of the State is vested in it and it is called upon to exercise it See Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. : (1950)NULLLLJ921SC . A quasi judicial decision presupposes an existing dispute between two or more parties and involves presentation of their case by the parties to the dispute and if the dispute between them is on a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of arguments by or on behalf of the parties on the evidence See Cooper v. Wilson 1937(2) K.B. 309. Parties are arrayed before these quasi judicial Tribunals either upon a reference under Section 10 or Section 33. There is thus a lis between the parties. There would be assertion and denial of facts on either side. With the permission of the Tribunal and consent of the opposite side, parties are entitled to appear through legal practitioners before these quasi judicial Tribunals. The system adopted by these Tribunals is an adversary system, a word as understood in contradistinction to inquisitorial system. This also becomes clear from Rule 10-B(1) of the Industrial Disputes (Central) Rules, 1957, which provides they when a reference is made to the Labour Court or Industrial Tribunal, within two week of the date of receipt of the order of reference the parties representing workmen and the employer involved in the dispute shall file with the Labour Court or the Industrial Tribunal a statement of demands relying only upon issued which are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the dispute. Sub-rule (2) provides that within two weeks of receipt of the statement referred to in sub-rule (1) to opposite party shall file it rejoinder with the Labour Court or the Industrial Tribunal as the case may be and simultaneously forward a copy thereof to the other party. Sub-rule (4) provides that the hearing of the dispute shall ordinarily be continued from day-to-day and arguments shall follow in immediately after the closing of the evidence. Sub-rule (6) casts a duty on the Labour Court or the Industrial Tribunal, as the case may be, to make a memorandum of the substance of the proceedings of what the witnesses depose and such memorandum shall be written and signed by the Presiding Officer.

'35. Having given our most anxious consideration to the question raised before us, and minutely examining the decision in Cooper Engineering Ltd. case to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudication upon a penal termination of service of a workman either Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. Cooper Engineering Ltd. case merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charge. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges.'

20. He has thereafter relied upon the judgment of the Apex Court in the case of Neeta Kaplish v. Presiding Officer, Labour Court and Anr., reported in : (1999)ILLJ275SC , particularly paragraphs 14 and 15 of the said judgment which read as under : -

'14. Provisions of the Industrial Disputes Act were thus amended on the recommendation of the international labour organisation and Section 11-A was introduced in the Act by Parliament, wherein it was provided that the Tribunal had not only the power to set aside the order of dismissal and direct reinstatement of the workman, it had also the power to award lesser punishment. The proviso to Section 11-A, however, provided that the Tribunal would rely only on the material already on record and shall not take any fresh evidence.

'15. The provisions of Section 11-A, specially the prohibition contained in the proviso that the Labour Court would not take any fresh evidence, came to be considered by this Court in several cases which we shall shortly notice but even before the introduction of Section 11-A, this Court in Ritz Theatre (P) Ltd. v. Workmen, : (1962)IILLJ498bSC laid down that where the management relied upon the domestic enquiry in depending its action, it would be the duty of the Tribunal to first consider the validity of the domestic enquiry and only when it came to the conclusion that the enquiry was improper or invalid, it would itself go into the merits of the case and call upon the parties to lead evidence.'

22. In our view the position of law is now well crystalised particularly in light of the latest judgment of the Apex Court in the case of Neeta Kaplish v. Presiding Officer, Labour Court and another (supra) that the enquiry proceedings before the Tribunal is in two stages firstly the Tribunal is required to consider the preliminary issue whether the said enquiry is commenced in consonance with the said provisions and whether it is just and fair and not perverse. While considering the aforesaid enquiry it is not open to the Tribunal to permit the party to lead oral evidence in the matter on merits of the case. The Tribunal can permit parties to lead oral evidence to a limited extent to establish that there is any breach of the principles of natural justice. It is, therefore, clear that it is nor permissible for the Tribunal to permit the parties to lead oral evidence in support of the issue of perversity of charges. It is settled law that perversity has to be decided on the basis of the material and evidence available before the departmental proceedings. It is because the perversity is an inference which has to be drawn by the Court on the basis of material available before the Tribunal or the Labour Court and by such inference it can be held that whether findings given in the departmental proceedings are perverse or not. It is also possible for the Court to draw an inference of perversity if it has been found on record that on evidence available no prudent person could have arrived at such a conclusion as has been drawn by the Enquiry Officer in the departmental proceedings. We are not impressed by the argument of the learned Counsel for the respondent-workman that he is entitled to lead evidence even at the state of preliminary issue and establish perversity by leading additional evidence before the Industrial Court. The law as laid down is that after the enquiry is conducted at the preliminary stage and if the Labour Court comes to the finding that the enquiry is vitiated either by virtue of non-compliance of the provisions of natural justice and/or it is vitiated by virtue of perversity that the Labour Court can call upon the management to lead evidence before the Labour Court itself for establishing the guilt of the respondent-workman. In our view, therefore, to contend that there are two stages of complete round of litigation available for the workman first to lead evidence and establish that he is not guilty even at the preliminary stage and thereafter re-conduct the matter by leading fresh evidence in rebuttal if the enquiry is held to be invalid in law. In out view such a course is not open for the respondent workman. In our view, the law is clearly laid down by the of judgments of the Apex Court that the Labour Court does not jurisdiction to go into the merits of the complaint till land until a finding is recorded in respect of the validity of the enquiry before the enquiry proceedings. In the aforesaid view of the case, we find that the order passed by the Labour Court dated 27-3-2003 and by the Industrial Court in revision dated 15-11-2003 permitting the workman to lead oral evidence even in respect of the preliminary issue of perversity of findings before the departmental proceedings is unsustainable in law. We do not find any merits in the argument advanced by the learned Counsel for the appellant that he is entitled to establish so called charge of victimisation even before the validity of the enquiry can be established before the Labour Court.

23. In that view of the matter, we allow the present writ petition and quash and set aside the order passed by the Industrial Court in revision application and allow the revision application. We further direct the Labour Court to decide the preliminary issue only on the basis of the record available and permit the respondent workman to lead oral evidence only to the extent of issue pertaining to violation of the principles of natural justice and not on the issue of perversity of the departmental proceedings. We further direct the Labour Court to decide the perversity of the enquiry on the basis of the record which has already been filed before the Labour Court.

24. In light of the aforesaid facts we dispose of the present writ petition accordingly. There shall be no order as to costs.