1998(1) ALL MR 125
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. LODHA, J.

The Bombay Port Trust Vs. Shri Vishnu Vithal Vichare & 2 Ors.

Writ Petition No.2201 of 1994

30th June, 1997

Petitioner Counsel: Shri R. S. PAI, Advocate i/b MULLA & MULLA
Respondent Counsel: Mr. J. P. CAMA, Sr. counsel with Mr. K. P. ANILKUMAR

Industrial Disputes Act (1947), S.10, Schedule II, Item 3 - Jurisdiction of Tribunal - Employer requesting Tribunal in its written statement for permission to lead additional evidence to prove charges - Tribunal held that charges were not proved in domestic enquiry - No opportunity given to employer to adduce evidence - Held, award of Tribunal cannot be sustained.

Industrial dispute - Reference of dispute to Industrial Tribunal - Question of validity of domestic enquiry and affording opportunity to employer to lead additional evidence to prove charges - Jurisdiction of Tribunal.

The employer may rely upon validity of the domestic enquiry held by it in first instance and alternatively may also make request to the Labour Court or Industrial Tribunal, as the case may be, for permitting it to lead additional evidence in support of its action taken by it. Such request by the employer for adducing additional evidence is ordinarily to be made as early as possible and at the earliest opportunity. If the employer opts to make the request to the Labour Court or Industrial Tribunal at the first available opportunity in reference proceedings either by way of statement of claim or by way of written statement for adducing additional evidence, the Labour Court or Industrial Tribunal must accede to such prayer made by the employer. There is no obligation on the part of the Labour Court or Industrial Tribunal to frame preliminary issue to try the validity of the domestic enquiry or ask the employer to adduce evidence for justification of its action but at the same time if the employer prays for a preliminary issue to be framed to try the validity of the domestic enquiry, and, also prays to the Labour Court or the Industrial Tribunal that in case on the preliminary issue the finding is given against the employer, he may be permitted to adduce evidence for justification of its action, the Labour Court or Industrial Tribunal may frame preliminary issue to try the validity of the domestic enquiry and in case the said issue is decided against the employer, the opportunity has to be given to the employer to adduce evidence for justification of its action since the prayer for that has already been made. However, if the issue is decided in favour of the employer, then no additional evidence need be adduced by the employer. The employer has always right to make an effort to sustain its order or the action taken against the employee by leading independent evidence before the tribunal and if that right has been exercised by the employer by making request to the Labour Court or Industrial Tribunal at the first available opportunity i.e. such prayer has been made either in the statement of claim or by way of written statement, the tribunal has to give opportunity to the employer to lead evidence. However, it is not expected nor it is the function of the Labour Court or Industrial Tribunal to invite on its own the employer to adduce evidence before it to justify the action taken by it. If no request is made to the tribunal by the employer for permitting to adduce independent evidence in support of its action, later on it cannot raise any grievance that tribunal did not provide an opportunity to the employer to prove its action. [Para 9,10]

In the present case, when the industrial dispute regarding compulsory retirement of the employee was referred for adjudication to the Industrial Tribunal, the employer filed its reply. In the said reply, the employer submitted that it had held a fair and proper enquiry against the charges levelled against the employee. In the alternative, the employer prayed in its written statement that it may be given an opportunity to lead additional evidence to prove the charges before the Tribunal. But the Tribunal did not afford any opportunity to the employer to adduce evidence to prove charges after it held that the charges were not proved in the enquiry, though such request was made in the written statement. In the circumstances, the award passed by the Tribunal cannot be sustained. The Tribunal ought to have granted opportunity to the employer to lead evidence to justify its action taken against the employee. AIR 1972 SC 1031, AIR 1979 SC 1652 and (1996) 4 SCC 374 foll. [Para 11,12]

Cases Cited:
AIR 1972 SC 1031 [Para 4]
41 FJ 24 [Para 4]
AIR 1958 SC 79 [Para 4]
AIR 1961 SC 860 [Para 4]
AIR 1969 SC 983 [Para 4]
AIR 1975 SC 1900 [Para 5]
AIR 1979 SC 1652 [Para 6]
1975 Lab IC 1441 [Para 6]
1972 Lab IC 13 [Para 6]
1972-3 SCR 29 = (1972 Lab IC 573 p.588 [Para 6]
AIR 1963 SC 295 [Para 6]
1973 Lab IC 851 (SC) [Para 6]
AIR 1984 SC 289 [Para 7]
(1996) 4 SCC 374 [Para 8]


JUDGMENT

JUDGMENT :- The focus of the forensic debate in this writ petition filed at the instance of the employer centered round two issues: (i) whether the Industrial Tribunal erred in not affording opportunity to the employer to lead evidence to prove the charges of misconduct against the employee despite the fact that such prayer was made by the employer in the written statement and, (ii) whether the finding of the industrial tribunal that the employer failed to prove the charges of misconduct in the enquiry on the ground that Shri Shaikh was not produced as a witness and the statement of Shri Pawaskar was hear-say was justified?

2. It would be beneficial to refer to the broad facts of the first before I venture to address the contentious issues. The first Respondent Shri Vishnu Vithal Vichare (for short, 'employee') was employed as a clerk, Grade-II with the Petitioner the Bombay Port Trust (for short, 'employer'), a statutory port trust constituted under the Bombay Port Trust Act and Major Port Trust Act. On 14.09.1984 Shri S. G. Pawaskar, Zonal-Officer was on his round and he noticed Shri I. A. Shaikh, a watchman moving under suspicious circumstances. The Zonal Officer detained Shri Shaikh and reported the matter to the police. Shri Shaikh was searched by the police in the presence of panchas and from his possession two ball-bearings were recovered. The said ball-bearings were taken charge of under panchanama by police. Shri Shaikh led the panchas to 'A' warehouse, III floor wherein he pointed-out to employee with whose help he had removed the two ball bearings. Both the employee and Shri Shaikh pointed out the place at Bay No.126 in 'A' warehouse, III floor and the carton from which they had removed the two ball-bearings. The employee was arrested by the police that very day alongwith Shri Shaikh for the alleged theft of two ball-bearings. The employee was detained in custody for more than 48 hours and, therefore, he was placed under suspension in terms of Regulations of Bombay Port Trust Employees CCA Regulations, 1976. It appears that on 30th January, 85 the employee was discharged by the criminal court. In view of this discharge by the criminal court, the suspension of the employee was revoked and he was allowed to resume his duty without prejudice to the department's right to proceed against him in departmental enquiry. The employee resumed his duties on 15.2.85. The Docks Manager, disciplinary authority decided to hold departmental enquiry for the major misconduct against the employee for violation of Regulation 3(1) of the BPT Employees CCA Regulations, 1976 for failure to maintain absolute integrity and devotion to duty read with other provisions of Regulations. Accordingly, an enquiry was held against the employee for the alleged misconduct. The enquiry officer found the employee guilty of misconduct. The disciplinary authority considered the findings of the enquiry officer and issued a showcause notice to the employee as to why he should not be compulsorily retired from service. The employee submitted his explanation. The disciplinary authority considered the reply to the showcause notice submitted by the employee and passed an order compulsorily retiring the employee from service. Accordingly, the employee was compulsorily retired from service from 23.7.98. The employee preferred an appeal to the Chairman against the order of compulsory retirement, but the said appeal too was dismissed by the appellate authority. The employee then raised the industrial dispute through the union. The said industrial dispute viz. "whether the action of the management of Bombay Port Trust in ordering compulsory retirement of Shri Vishnu Vittal Vichare, Ex-clerk Grade-II from service in Dock department w.e.f. 27.3.1989 is just, proper and legal? If not, to what relief the workman entitled to?" was referred for adjudication to the Central Government Industrial Tribunal No.1, Bombay and registered as Reference CGIT 58 of 1992. The employee filed statement of claim on 19.5.1993. The reply was filed by the employer and in the said reply in paragraph 7 the employer submitted that it had held a fair and proper enquiry against the charge levelled against the workman. In the alternative the employer prayed that it may be given an opportunity to prove the charges before the tribunal. Before the industrial tribunal the employer produced papers of enquiry and the appeal preferred by the employee before the appellate authority. The Industrial Tribunal by the Award dated February 4, 1994 held that there was no satisfactory evidence before the Enquiry Officer for proof of the charges against the employee and the findings recorded by the Enquiry Officer were based on unsustainable evidence. The industrial tribunal, therefore, held that the order of compulsory retirement was not justified. The industrial tribunal accordingly set aside the order of compulsory retirement and ordered employee's reinstatement with full backwages and consequential benefits.

3. I would like to take up first issue first. If first issue is decided in favour of the employer, there may not be any necessity of going into second issue. Conversely, if first issue is decided against the employer, the second issue raised by the learned counsel for the parties will have to be gone into.

4. Both Mr. Pai, the learned counsel appearing for employer, and, Mr. J. P. Cama, the learned Sr.counsel appearing for the employee ably assisted the Court and cited the relevant judgments of the Apex Court in support of their rival contentions on the first issue. Having noticed the fact that the employer in paragraph 7 of the written statement submitted to the industrial tribunal in alternative that an opportunity may be given to the employer to prove the charges, the question arises whether tribunal erred in not affording any opportunity to the employer in leading evidence once the industrial tribunal held that charges against the employee were not proved. The jurisdiction of the Industrial Tribunal in the reference under Section-10 of the Industrial Disputes Act, 1947 or the applications under Section-33 of the said Act have come up for consideration before the Apex Court from time to time. In Delhi Cloth and General Mills Co..Appellant Vs. Ludh Rudh Singh..Respondent AIR 1972 Supreme Court 1031, the Apex Court considered good number of decisions viz. Delhi Cloth and General Mills Co. Vs. Ganesh Dutt 41 FJ 24, Punjab National Bank Ltd. Vs. Its Workmen, Martin Burn Ltd. Vs. R. N. Banerjee AIR 1958 SC 79, Lord Krishna Textile Mills Vs. Its Workmen AIR 1961 SC 860, Central Bank of India Vs. Prakash Chand Jain AIR 1969 SC 983 and other decisions and summarised the law thus:

"60. From the above decisions the following principles broadly emerge:

(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 had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively 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 relied 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 is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced by it on merits, 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, 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 domestic 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 no 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 relied 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 apply 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."

5. The Apex court in the Cooper Engineering Limited Vs. P. P. Munde, AIR 1975 SC 1900 was seized with the question whether when domestic enquiry held by the employer is found by Labour Court as violative of the principles of natural justice is there any duty cast upon that Court to give an opportunity to the employer to adduce evidence afresh before it and whether failure to do so would vitiate its award, and, to the said question the Supreme Court answered thus:

"22. 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 the 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."

6. Three judge bench of Apex Court in Shankar Chakravarty Vs. Britannia Biscuit Co. Ltd. & Anr. AIR 1979 SC 1652 after considering its earlier judgments explained the Cooper Engineering case by observing that decision in Cooper Engineering case does not propose the departure from the ratio of the earlier decisions because the court merely posed a question to itself as to what was the appropriate stage on which opportunity has to be given to the employer to adduce additional evidence if it so chooses to do. In Shankar Chakravarty the Apex Court clarified that in Cooper Engineering merely stage was indicated and, therefore, Cooper Engineering case was not an authority for the proposition that in every case coming before the Industrial Tribunal or Labour Court under Sec.10 or 33 of the Act the Court or tribunal as a matter of law must frame a preliminary issue and to proceed to decide the validity or otherwise of the enquiry and then serve fresh notice on the employer by calling upon the employer to adduce further evidence to sustain charges if it so chooses to do. Cooper Engineering was thus explained by the Apex Court in Shankar Chakravarty in following terms:

"28. It was contended that this 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 S.10 or S.33 of the Act, irrespective of the fact whether there is any such request to that effect or not, to raise a preliminary issue as to whether domestic enquiry alleged 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 (1975 Lab IC 1441) this Court specifically overruled the decision in R. K. Jain's case (1972 Lab IC 13) 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 (of 1972-3 SCR 29): (1972 Lab IC 573 at p.588) where after examining the ratio of the decision in R. K. Jain's 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's case was re-affirmed in Delhi Cloth & General Mills Co. case and there is nothing in the decision in Cooper Engineering Ltd. case that case overrules the two earlier decisions. It was not possible so to do because of the decision in the Management of Ritz Theatre case (AIR 1963 SC 295) 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 Industrial Tribunal under S.10 or S.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 pinpoint 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 the when it is sought. This reading of and 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 late 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 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 (1973 Lab IC 851) (SC) 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's case and Delhi Cloth & General 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 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 S.10 or S.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 is 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 cannot and would not vitiate the proceedings."

It would be pertinent to note that after explaining the ratio of Cooper Engineering the Apex Court in Shankar Chakravarty also held that the employer has to make a proper request at the time when it files its statement of claim or written statement or make an application seeking either permission to take a certain action or seeking approval of the action taken by it for adducing additional evidence in proceeding before the Labour Court or Industrial Tribunal either under Sec.10 or Sec.33 of the Act. If such request is made in the statement of claim, application or written statement, the Labour Court or Industrial Tribunal must give such opportunity. If the request is made before proceedings are concluded, the Labour Court or 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 Industrial Court to give employer an opportunity of leading additional evidence.

7. In Shambhunath Goyal Vs. Bank of Baroda AIR 1984 SC 289 the Apex Court emphasised that if the management intends to adduce additional evidence to substantiate the charge, the application seeking permission of the court to produce such evidence must be made at the earliest stage without delay and the earliest stage is so far as reference under Sec.10 of the I.D. Act is concerned is the written statement itself if the employer chooses to do so.

8. Recently in Bharat Forge Co. Ltd. Vs. A. B. Zodge & Anr. (1996) 4 SCC 374, the Apex Court considered most of the aforesaid judgments rendered by it and reiterated that the stage on which the employer should ask for permission to adduce additional evidence to justify its action on merits was indicated in Delhi Cloth and General Mills case. It was further observed by the Apex Court in Bharat Forge Co. that the contention that in every case of disciplinary action coming before the tribunal, the tribunal as a matter of law must frame preliminary issue and proceed to see the validity and otherwise of the enquiry and then serve fresh notice to the employer by calling upon him to adduce further evidence to substantiate the charges if the employer chooses to do so as sought to be urged on the basis of Cooper Engineering was not acceptable. The Apex Court held thus:

"7. A domestic enquiry may be vitiated either for non-compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well-recognised. In this connection, reference may be made to the decisions of this Court in Workmen Vs. Motipur Sugar Factory (P) Ltd.4, State Bank of India Vs. R. K. Jain5, Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh6 and Firestone Tyre Co case2. The stage at which the employer should ask for permission to adduce additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill case6. In Shankar Chakravarti case3, the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so, by relying on the decision of this Court in the case of Cooper Engineering Ltd.7, has not been accepted. The view expressed in Delhi Cloth Mill case that before the proceedings are closed, an opportunity to adduce evidence be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Shankar Chakravarti case 3 after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Delhi Cloth Mill case6. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified."

The Apex Court thus held that the Cooper Engineering has not overruled the decision of Delhi Cloth and General Mills and the view expressed in Delhi Cloth & General Mills that before the proceedings are closed an opportunity to adduce evidence would be given with if suitable request is made by the employer to the tribunal still holds the field which has been reiterated in Shankar Chakravarty.

9. The legal position that emerges thus is that the employer may rely upon validity of the domestic enquiry held by it in first instance and alternatively may also make request to the Labour Court or Industrial Tribunal, as the case may be, for permitting it to lead additional evidence in support of its action taken by it. Such request by the employer for adducing additional evidence is ordinarily to be made as early as possible and at the earliest opportunity. If the employer opts to make the request to the Labour Court or Industrial Tribunal at the first available opportunity in reference proceedings either by way of statement of claim or by way of written statement for adducing additional evidence, the Labour Court or Industrial Tribunal must accede to such prayer made by the employer. There is no obligation on the part of the Labour Court or Industrial Tribunal to frame preliminary issue to try the validity of the domestic enquiry or ask the employer to adduce evidence for justification of its action but at the same time if the employer prays for a preliminary issue to be framed to try the validity of the domestic enquiry, and, also prays to the Labour Court or the Industrial Tribunal that in case on the preliminary issue the finding is given against the employer, he may be permitted to adduce evidence for justification of its action, the Labour Court or Industrial Tribunal may frame preliminary issue to try the validity of the domestic enquiry and in case the said issue is decided against the employer, the opportunity has to be given to the employer to adduce evidence for justification of its action since the prayer for that has already been made. The employer has always right to make an effort to sustain its order or the action taken against the employee by leading independent evidence before the tribunal and if that right has been exercised by the employer by making request to the Labour Court or Industrial Tribunal at the first available opportunity i.e. such prayer has been made either in the statement of claim or by way of written statement, the tribunal has to give opportunity to the employer to lead evidence. However, it is not expected nor it is the function of the Labour Court or Industrial Tribunal to invite on its own the employer to adduce evidence before it to justify the action taken by it.

10. Mr. Cama, the learned Sr.counsel speaking for the employee strenuously urged that in view of the ratio laid-down by the Apex Court in Delhi Cloth and General Mills which still holds the field, it was not sufficient on the part of the employer to make a request in the written statement for permitting the employer to lead evidence in case it was found that domestic enquiry was vitiated but, the employer ought to have adduced the evidence simultaneously without prejudice to its plea that the enquiry proceedings were proper and having not done that the employer cannot raise the grievance that it was not afforded opportunity to adduce evidence in support of its action. The ratio in Delhi Cloth and General Mills is not what Mr. Cama has sought to be made out to be. The crux of the ratio of the Apex Court in the Delhi Cloth and General Mills is that if the employer has held a domestic enquiry, he may rely upon the domestic enquiry held by it in the first instance and alternatively without prejudice to its plea that the enquiry was proper and binding may simultaneously adduce additional evidence justifying its action. In case this course is adopted by the employer, it is a duty of the tribunal to first consider whether the enquiry proceedings conducted by the employer was valid and proper and if the finding is in the affirmative, the question of going into the additional evidence adduced by the employer would not arise. Similarly, when a domestic enquiry has been held by the employer and he relies upon the same, the employer can always request the tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence if the finding on the preliminary to adduce evidence if the finding on the preliminary issue was against the management. In such situation the tribunal has to try the validity of the domestic enquiry as preliminary issue and if it holds in favour of the employer then no additional evidence need be adduced by the employer. However, if the finding on the preliminary issue is given against the employer, the tribunal is required to give an opportunity to employer to lead evidence in support of its action. The employer also has right to attempt to sustain its order by adducing independent evidence before the tribunal but that right has to be exercised before the proceedings are closed. If no request is made to the tribunal by the employer for permitting to adduce independent evidence in support of its action, later on it cannot raise any grievance that tribunal did not provide an opportunity to the employer to prove its action. The Apex Court in Delhi Cloth and General Mills highlighted on two aspects about the procedure that may be adopted by the employer, (a) that employer may rely on the domestic enquiry and in the alternative also lead additional evidence simultaneously for proof of charges against the employee before the tribunal and (b) the employer may rely on the domestic enquiry and in the alternative ask for an opportunity to adduce additional evidence in support of its action. In Shankar Chakravarty's case as a matter of law, the Apex Court laid down in unequivocal terms that if a request is made by the employer for adducing evidence in support of its action either in written statement or statement of claim, the Labour Court or Industrial Tribunal must give such an opportunity. It also held that if the request is made before the proceedings are concluded the Labour Court or Industrial Court should ordinarily grant the opportunity to adduce evidence. Thus, if the request is made by the employer in the statement of claim or in the written statement, the Labour Court or Industrial Tribunal has to give opportunity to the employer to justify its action. The observations made in Shankar Chakravarty by the Apex Court are in consonance with the elaborate statement of law laid down by the Apex Court in Delhi Cloth and General Mills. Even in the recent judgment of Bharat Forge the Apex Court held that the award was vitiated when the tribunal failed to give opportunity to the employer to lead evidence when such request was made before the closure of the proceedings.

11. Applying the aforesaid principles and the law propounded by the Apex Court, it would be seen that in the present case the employer had in paragraph-7 of the written statement clearly requested the tribunal in the alternative that it may be given an opportunity to prove the charges. Such request was made by the employer at the earliest stage in as much as the prayer was made in the written statement itself. When such request was made by the employer in the written statement itself, the tribunal ought to have granted opportunity to the employer to lead evidence to justify its action taken against the employee once it held that the findings in the enquiry report could not be sustained. When the employer has made the prayer in the Written Statement for permitting it to lead evidence in support of its action if the tribunal holds the inquiry vitiated, the employer is not expected to repeat the request at every stage of the proceedings before the tribunal.

12. Since the Industrial Tribunal did not afford the opportunity to the employer to adduce evidence to prove the charges levelled against the employee after it held that charges were not proved in the inquiry, though such request was made in the written statement, the award passed by the Industrial Tribunal cannot be sustained and there is no need for me to go into the second issue canvassed by the learned counsel for the parties.

13. Consequently, award passed by the Central Government Industrial Tribunal no.1, Bombay dated 4 February, 1994, impugned in the present writ petition is quashed and set-aside and the matter is sent back to the said tribunal. It would be open to the employer to lead evidence in support of the action taken by it against the employee. The employee would be free to lead evidence in rebuttal. Since the disciplinary action taken against the employee which culminated in his compulsory retirement is of the year 1989, the tribunal is expected to hear and decide the reference as expeditiously as possible, preferably before 31st March, 1998. The parties are directed to appear before the Central Government Industrial Tribunal No.1, Bombay on 28.07.1997. The tribunal shall fix schedule of dates keeping in mind that reference is to be disposed of on or before 31st March, 1998, keeping in view of the observations aforesaid.

14. Pursuant to the order passed by this Court on October 3, 1994 the employee has withdrawn 50% of the amount of backwages. The said amount withdrawn by the employee shall be subject to the final decision in the reference. The remaining 50% of backwages deposited before this Court may be allowed to be withdrawn by the employer. Needless to say it would be open to the employee to make appropriate application for any interim relief before the Industrial Tribunal pending reference, if so advised.

15. Rule is disposed of in aforesaid terms. No costs. Certified copy expedited.

Petition allowed