# Amity Int. School v. Presiding Officer Labour Court & Anr

- **Citation:** (2024) 5 ILRA 2372
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Writ-C No. 16608 of 2024
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amity-int-school-v-presiding-officer-labour-court-anr-52078
- **Pages:** 10

## Headnote

--

Natural justice-Application by the Petitioner to
decide issue no.1 as preliminary issue rejectedimpugned-workman (Respondent no.2) has
been terminated after departmental enquiryaggrieved-he moved claim petition under U.P.
5 All. Amity Int. School Vs. Presiding Officer Labour Court & Anr.
2373
Industrial Disputes Act, 1947-labour court
framed two issues-first adhering to natural
justice-second as to legality and validity of
terminating the services -issue qua violation of
principles of natural justice and fair play during
the domestic enquiry should be decided as a
preliminary issue.

W.P. allowed. (E-9)

List of Cases cited:

## Text

2372 INDIAN LAW REPORTS ALLAHABAD SERIES
26. In the instant case also,
admittedly, the acquisition proceedings
were not finalized before 01.01.2014 as no
award was declared by the Parishad by that
time. The award has been declared, as noted
above, on 27.02.2024 and, therefore, in our
opinion, the Competent Authority should
have determined compensation as per the
provisions of the New Act, 2013 by treating
the reference date as 01.01.2014, i.e. the
date of enforcement of the New Act as
emerges
from
combined
reading
of
Chandra Shekhar (supra) and EE,
Gosikhurd Project (supra).

27. In Jainul Islam (supra), the
Larger Bench of Supreme Court has held
that the beneficial provisions of the
Amending
Act,
1984
relating
to
determination of compensation would
apply to the acquisitions made under the
Adhiniyam to save it from arbitrariness and
discrimination. As the Act, 1894, as
amended from time to time, stands replaced
by the New Act, 2013, we are of the
considered opinion that the affected
persons would be entitled to compensation
as per the New Act, 2013, again to save
Section 55 of the Adhiniyam from being
rendered unconstitutional on the touchstone
of Article 14 of the Constitution.

28. In the impugned award,
reliance has been placed on Division Bench
decision of this Court in Atul Sharma
(supra), which in view of the judgment of
Supreme Court in Chandra Shekhar
(supra) stands impliedly overruled in so far
as it holds that compensation for acquired
land under the Adhiniyam would be
payable under the Land Acquisition Act,
1894 even in respect of acquisition which
could not be finalized until the enforcement
of the said Act, i.e. 01.01.2014. The
judgment in Jainul Islam (supra), in our
opinion, has wrongly been interpreted in
the impugned award and the said judgment,
when read with the recent pronouncement
made in Chandra Shekhar (supra),
clarifies the legal position that the
acquisitions made under the Adhiniyam
which could not be finalized until coming
into force of New Act, 2013, would be
governed by the New Act in respect of
determination of compensation.

29. Accordingly, the impugned
award is hereby quashed and the matter is
remitted back to the Additional District
Magistrate
(Land
Acquisition),
Agra
(respondent no.3) for determining the
compensation afresh in the light of
observations made herein above.

30. The writ petition stands
allowed. There is no order as to costs.
----------
(2024) 5 ILRA 2372
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ-C No. 16608 of 2024

Amity Int. School ...Petitioner
Versus
Presiding Officer Labour Court & Anr.
 ...Opp. Parties

Counsel for the Petitioner:
Rahul Chaudhary

Counsel for the Opp. Parties:
--

Natural justice-Application by the Petitioner to
decide issue no.1 as preliminary issue rejectedimpugned-workman (Respondent no.2) has
been terminated after departmental enquiryaggrieved-he moved claim petition under U.P.
5 All. Amity Int. School Vs. Presiding Officer Labour Court & Anr.
2373
Industrial Disputes Act, 1947-labour court
framed two issues-first adhering to natural
justice-second as to legality and validity of
terminating the services -issue qua violation of
principles of natural justice and fair play during
the domestic enquiry should be decided as a
preliminary issue.

W.P. allowed. (E-9)

List of Cases cited:

1. Shankar Chakravarti Vs Britannia Biscuit Co.
Ltd & anr. reported in 1979 AIR 1652

2. M.L. Singla Vs Punjab National Bank reported
in 2018 (18) SCC 21

3. Kurukshetra University Vs Prithvi Singh
reported in AIR 2018 S.C. 973

4. Shamli Distillery & Chemical Works Shamli Vs
St. of U.P. & ors. in Writ-C No.31147 of 2019

5. Gregory Patrao & ors. Vs Mangalore Refinery
and Petrochemicals Ltd. & ors. reported in
(2022) 10 SCC 461

6. M/s. Swarup Vegetable Product Industries
Ltd. Vs Labour Court II, Meerut reported in 1998
(1) AWC 491

7. H.R. Sugar Factory Vs St. of U.P. reported in
1997 (76) FLR 355

8. D.P. Maheshwari Vs Delhi Administration &
ors., AIR 1984 SC 153

9. Cooper Engineering Ltd. Vs Shri P.P. Mundhe
(1975) 2 SCC 661

10. Karnataka St. Road Transport Corpn. Vs
Lakshmidevamma (Smt.) & anr. (2001) 5 SCC
433

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel for
respondent
no.1
and
Shri
Shekhar
Srivastava, Advocate who has assisted the
Court
without
filing
his
memo
of
appearance on behalf of respondent no.2.

2. In view of the peculiar facts and
circumstances of the present case and the
order proposed to be passed hereunder, this
Court proceeds to decide the instant writ
petition
finally,
without
calling
for
respective
affidavits
of
the
parties
concerned, with the consent of learned
counsel for the parties present in the Court.

3. The petitioner has invoked the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India assailing the order dated 18.11.2023
passed by the Presiding Officer, Labour
Court, Ghaziabad whereby application
dated 08.08.2023 (Paper No.13-D) moved
on behalf of the petitioner to decide the
issue no.1 as a preliminary issue has been
rejected.

4. Facts culled out from the record
are that the workman (respondent no.2) has
been
terminated
from
service
after
departmental enquiry vide order dated
20.05.2020 w.e.f. 01.06.2020. Having been
aggrieved, respondent no.2 has moved
claim petition under the U.P. Industrial
Disputes Act, 1947 (in brevity 'Act, 1947').
On the said application, question has been
referred for adjudication with respect to
termination of respondent no.2 since
01.06.2020.
During
pendency
of
adjudication case, labour court, vide order
dated 27.01.2023, has framed two issues,
first, qua adhering to the principles of
natural justice while conducting the
domestic enquiry and, second, legality and
validity of terminating the services of
workman with effect from 01.06.2020. At
later stage, the petitioner has moved an
application dated 08.08.2023 (Paper No.13D) to decide the issue no.1 as a preliminary
2374 INDIAN LAW REPORTS ALLAHABAD SERIES
issue. The labour court has rejected the said
application, vide order dated 18.11.2023,
which is under consideration before this
Court.
5. It is submitted by learned counsel for the
petitioner that the labour court has illegally
rejected the said application (Paper No.13D) without properly considering the gravity
of issue no.1. The question relating to
violation of principles of natural justice
while conducting the domestic enquiry is a
paramount consideration for deciding the
adjudication case under the Act, 1947,
therefore, same is liable to be decided as a
preliminary issue. In support of his
submission, learned counsel for the
petitioner has cited the following cases :-

(i)
Shankar
Chakravarti
vs.
Britannia Biscuit Co. Ltd & Another
reported in 1979 AIR 1652 (Full Bench
decision).
(ii)
M.L.Singla
vs.
Punjab
National Bank reported in 2018 (18) SCC
21.
(iii) Kurukshetra University vs.
Prithvi Singh reported in AIR 2018 S.C.
973.
(iv)
Shamli
Distillery
And
Chemical Works Shamli vs. State of U.P.
And 2 Others decided by Coordinate
Bench of this Court on 13.11.2019 in WritC No.31147 of 2019.

6. Per contra, Shri Shekhar
Srivastava, Advocate vehemently opposed
the submissions advanced by counsel for
the petitioner and contended that issue no.1
regarding violation of principles of natural
justice in domestic enquiry cannot be
considered as preliminary issue inasmuch
as it is a question of fact and requires
evidence to decide the same. It is further
contended
that
intention
of
the
establishment is only to protract the
litigation. Both the issues, as framed by the
labour court, vide order dated 27.01.2023,
requires common evidence to be adduced
by the parties, therefore, once the evidence
are adduced by the parties, there is no
justification to decide one issue as a
preliminary issue inasmuch as both the
issues can be decided simultaneously. In
support of his case he has cited the
following cases :-

(i) Judgment of the Apex Court in
the case of Gregory Patrao & Others vs.
Mangalore Refinery and Petrochemicals
Limited & Others reported in (2022) 10
SCC 461.
(ii) Full Bench judgment of this
Court in the case of M/s. Swarup
Vegetable Product Industries Ltd. vs.
Labour Court II, Meerut reported in 1998
(1) AWC 491.
(iii) Division Bench of this Court
in the case of H.R. Sugar Factory vs. State
of U.P. reported in 1997 (76) FLR 355.

7. Having considered the rival
submissions advanced by learned counsel
for the parties and perusal of record, it is
manifested that question for consideration
in the instant matter lies in a narrow
compass as to whether issue relating to the
violation of principles of natural justice,
while conducting domestic enquiry, can be
tried/examined as a preliminary issue.

8. The Labour Court has rejected
the application dated 08.08.2023 moved in
this regard citing the Full Bench judgment
of the Hon'ble Supreme Court in the case
of
D.P.
Maheshwari
vs.
Delhi
Administration & Others reported in AIR
1984 SC 153. In the said judgment, the
Hon'ble Supreme Court has raised concern
qua protraction of litigation before the
Labour Court/Labour Tribunal which may
5 All. Amity Int. School Vs. Presiding Officer Labour Court & Anr.
2375
led to misery and jeopardize industrial
peace. Consequent thereto, ultimately
workman is the sufferer. It is apposite to
mention that equal Bench strength (Hon'ble
Three Judges Bench) of the Hon'ble
Supreme Court in the matter of Cooper
Engineering Ltd. vs. Shri P.P. Mundhe
reported in (1975) 2 SCC 661 and Shankar
Chakravarti (Supra) has emphasized that
violation of principles of natural justice,
during the domestic enquiry, should be
decided first as a preliminary issue. In the
subsequent judgments passed by the
Hon'ble Supreme Court, the case of
Shankar Chakravarti (Supra) has been
followed as a law of the land. Case of D.P.
Maheshwari (Supra) has been decided
subsequent to the cases of Cooper
Engineering Ltd. (Supra) and Shankar
Chakravarti
(Supra).
However,
while
deciding the case of D.P. Maheshwari
(Supra), the Hon'ble Supreme Court has
observed that with the change of time, the
policy to decide the preliminary issue first
should be reversed. For ready reference
observation made by the Hon'ble Supreme
Court is quoted herein below :-

"There was a time when it was
thought prudent and wise policy to decide
preliminary issues first. But the time
appears to have arrived for a reversal of
that policy. We think it is better that
tribunals, particularly those entrusted with
the task of adjudicating labour disputes
Where delay may lead to misery and
jeopardise industrial peace, should decide
all issues in dispute at the same time
without trying some of them as preliminary
issues. Nor should High Courts in the
exercise of their jurisdiction under Article
226 of the Constitution stop proceedings
before a Tribunal so that a preliminary
issue may be decided by them. Neither the
jurisdiction of the High Court under Article
226 of the Constitution nor the jurisdiction
of this Court under Article 136 may be
allowed to be exploited by those who can
well afford to wait to the detriment of those
who can ill afford to wait by dragging the
latter from Court to Court for adjudication
of peripheral issues, avoiding decision on
issues more vital to them. Article 226 and
Article 136 are not meant to be used to
break the resistance of workmen in this
fashion. Tribunals and Courts who are
requested to decide preliminary questions
must therefore ask them selves whether
such threshold part-adjudication is really
necessary and whether it will not lead to
other woeful consequences. After all
tribunals like Industrial Tribunals are
constituted to decide expeditiously special
kinds of disputes and their jurisdiction to so
decide is not to be stifled by all manner of
preliminary objections journeyings up and
down. It is also worth while remembering
that the nature of the jurisdiction under
Article 226 is supervisory and not appellate
while that under Article 136 is primarily
supervisory but the Court may exercise all
necessary
appellate
powers
to
do
substantial justice. In the exercise of such
jurisdiction neither the High Court nor this
Court is required to be too astute to
interfere with the exercise of jurisdiction by
special tribunals at interlocutory stages
and on preliminary issues."

9. It is pertinent to mention that in
the case of D.P. Maheshwari (supra), no
independent consideration has been made
by the Hon'ble Supreme Court to the ratio
decided in the previous cases i.e. Cooper
Engineering Ltd. (Supra) and Shankar
Chakravarti (Supra). Besides this Full
Bench of this Court has occasioned to
consider and decide the question in this
respect in the case of M/s. Swarup
Vegetables (Supra). Before the Full Bench,
2376 INDIAN LAW REPORTS ALLAHABAD SERIES
two questions were referred which are
quoted herein below :-

"1.
Whether
the
Labour
Court/Industrial
Tribunal
have
any
statutory or legal obligation to decide any
issue
as
preliminary
issue
while
adjudicating an industrial dispute in
accordance with procedure provided under
Rules
framed
under
U.P.
Industrial
Disputes Act ?
2. Whether the High Court can in
exercise of its jurisdiction under Article 226
of the Constitution mandate a Court or
Tribunal to follow a procedure contrary to
statutory Rules ?"

10. Question no.1 is relevant for
the purposes of deciding the instant writ
petition. While answering the question
no.1, the Full Bench of this Court has
considered the relevant judgment of the
Hon'ble Supreme Court including the case
of Shankar Chakravarti (Supra) and D.P.
Maheshwari (Supra) and concluded in
paragraph 16 of the judgment that all the
issues should be decided simultaneously.
For ready reference paragraph no.16 of the
judgment passed by the Full Bench of this
Court in the case of Swarup Vegetables
(Supra) is quoted herein below :-

"16. From the conspectus of views
expressed by the Supreme Court in the
aforementioned decisions, the position that
emerges is that once a reference has been
made to an Industrial Tribunal, then all the
issues which arise, whether jurisdictional
or merit, must be decided together. The
process of adjudication by the Industrial
Tribunal or Labour Court must be
completed as expeditiously as possible. It is
not obligatory on the Industrial Tribunal or
Labour Court to frame a preliminary issue.
Law does not enjoin the Tribunal to decide
if the enquiry was fair and proper initially
and then to grant an opportunity to the
management if the finding went against it,
to adduce evidence on the delinquency of
the workmen and the punishment imposed.
On the other hand the law casts a duty on
the Industrial Tribunal/Labour Court to
decide not only whether the domestic
enquiry was fair and proper but also
whether the punishment imposed by the
employer was justified in the facts and
circumstances of the case. The Industrial
Tribunal/Labour Court should consider the
entire case in the light of the evidence
adduced
before
it.
The
Industrial
Tribunal/Labour Court should particularly
bear in mind the provisions of Section 11A
of the Central Act and Section 6(2-A) of the
U.P. Act' and remember that the main
purpose of creating a forum for industrial
adjudication is to avoid delay in disposal of
proceedings. Viewed in this angle, we hold
the Division Bench of this Court in the case
of D.C.M. Shriram Industries Ltd. (1996
(72) Fac LR 713) was not right in holding
that the management can lead evidence to
establish the charges against the workman
only after decision on the issue whether
domestic enquiry was fair and proper and,
therefore, such issue should be taken as a
preliminary issue. It is, accordingly,
overruled. The decision of the single Judge
in M/s. Star Paper Mills Ltd. (1987 Lab IC
1854) (supra) is also overruled. The
decision of the single Judge in the case of
M/s. Vikram Cotton Mills (1989 (59) Fac
LR 386) (supra) has our approval."

11. However, the ratio decided by
the Hon'ble Supreme Court in the case of
Shankar
Chakravarti
(Supra)
was
subsequently affirmed by the Constitution
Bench (Hon'ble Five Judges Bench) of the
Hon'ble Supreme Court in the case of
Karnataka State Road Transport Corpn. vs.
5 All. Amity Int. School Vs. Presiding Officer Labour Court & Anr.
2377
Lakshmidevamma (Smt.) and Another
reported in (2001) 5 SCC 433. The relevant
paragraph no.41 of the said judgment
upholding the correctness of law laid down
in the case of Shankar Chakravarti is quoted
herein below :-

"In view of the above, I am of the
opinion that Shambhu Nath Goyal case
does not lay down correct law. The law has
been correctly laid in Shankar Chakravarti
case and Rajendra Jha case. The correct
procedure
is
as
stated
in
Shankar
Chakravarti
case
subject
to
further
safeguards
for
workman
as
already
indicated above."

12. Importance of deciding the
issue relating to violation of principles of
natural justice during domestic enquiry as a
preliminary issue has succinctly been
decided and upheld by the Hon'ble
Supreme Court in both the cases i.e. Cooper
Engineering Ltd. and Shankar Chakravarti
(Supras). In all the subsequent judgments,
the Hon'ble Supreme Court has followed
the judgment of Shankar Chakravarti
(Supra) and upheld that the preliminary
issue qua violation of principles of natural
justice during the domestic enquiry has to
be decided first. In the matter of M.L.Singla
(Supra) the Hon'ble Supreme Court has
held that it would obligatory upon the
labour court to first frame the preliminary
issue on the question of legality and validity
of the domestic enquiry and confined its
discussion only for examining the legality
and proprietory of the enquiry proceeding.
For ready reference paragraph nos. 20 to 32
and 46 of the said judgment are quoted
herein below :-

"20. The first error was that it
failed to decide the validity and legality of
the domestic enquiry. Since the dismissal
order was based on the domestic enquiry, it
was obligatory upon the Labour Court to
first decide the question as a preliminary
issue as to whether the domestic enquiry
was legal and proper.
21. Depending upon the answer to
this question, the Labour Court should have
proceeded further to decide the next
question.
22. If the answer to the question on
the preliminary issue was that the domestic
enquiry is legal and proper, the next
question to be considered by the Labour
Court was whether the punishment of
dismissal from the service is commensurate
with the gravity of the charges or is
disproportionate requiring interference in
its quantum by the Labour Court.
23. If the answer to this question
was that it is disproportionate, the Labour
Court was entitled to interfere in the
quantum of punishment by assigning
reasons and substitute the punishment in
place of the one imposed by respondent
No.1-Bank. This the Labour Court could do
by taking recourse to the powers under
Section 11A of the ID Act.
24. While deciding this question, it
was not necessary for the Labour Court to
examine as to whether the charges are
made out or not. In other words, the enquiry
for deciding the question should have been
confined to the factors such as-what is the
nature of the charge(s), its gravity, whether
it is major or minor as per rules, the
findings of the Enquiry Officer on the
charges, the employee's overall service
record and the punishment imposed etc.
25. If the Labour Court had come
to a conclusion that the domestic enquiry is
illegal because it was conducted in
violation of the principles of natural justice
thereby causing prejudice to the rights of
the employee, respondent No.1-Bank was
under legal obligation to prove the
2378 INDIAN LAW REPORTS ALLAHABAD SERIES
misconduct (charges) alleged against the
appellant (employee) before the Labour
Court provided he had sought such
opportunity to prove the charges on merits.
26. The Labour Court was then
under legal obligation to give such
opportunity and then decide the question as
to whether respondent No.1-Bank was able
to prove the charges against the appellant
on merits or not.
27. If the charges against the
appellant were held proved, the next
question to be examined was in relation to
the proportionality of the punishment given
to the appellant.
28. If the charges against the
appellant were held not proved, the
appellant
was
entitled
to
claim
reinstatement with back wages either full or
partial depending upon the case made out
by the parties on the issue of back wages.
29. The second error was that the
Labour Court called upon the parties to
lead evidence on all the issues including the
charge of misconduct in the first instance
itself.
30. The third error committed by
the Labour Court was that it proceeded to
examine the findings of the Enquiry Officer
on the charges like an Appellate Court,
appreciated the evidence adduced before
the Enquiry Officer and the one adduced
before it and then came to a conclusion that
the findings of the Enquiry Officer are
perverse. This the Labour Court could not
do.
31. Assuming that the Labour
Court had the jurisdiction to direct the
parties in the first instance itself to
adduce evidence on merits in support of
the charges yet, in our opinion, it was
obligatory upon the Labour Court to first
frame the preliminary issue on the
question of legality and validity of the
domestic
enquiry
and
confined
its
discussion only for examining the legality
and propriety of the enquiry proceedings.
32. Depending upon the finding
on the preliminary issue on the legality of
the enquiry proceedings, the Labour
Court should have proceeded to decide
the next questions. The Labour Court
while deciding the preliminary issue
could only rely upon the evidence, which
was relevant for deciding the issue of
legality of enquiry proceedings but not
beyond it.
46. In our view, the reasoning,
which we have given while dealing with
the first three errors committed by the
Labour Court in Paras 20 to 33, are
based
on
the
law
laid
down
in
aforementioned
cases,
which
are
approved in Shankar Chakravarti's case
(supra)."

13. In the case of Kurukshetra
University (Supra), the Hon'ble Supreme
Court has discussed this issue in detail in
light of the ratio decided in the case of
Shankar Chakravarti (Supra) and came to
conclusion that preliminary issue with
regard to legality of the domestic enquiry
should
be
decided
first.
Relevant
paragraph nos. 14 to 24 of the said
judgment is quoted herein below :-

"14. The question as to what are
the powers of the Labour Court and how it
should proceed to decide the legality and
correctness of the termination order of a
workman under the Labour Laws in
reference proceedings and what are the
rights of the employer while defending the
termination order in the Labour Court
remains no more res integra and is settled
by series of decisions of this Court
beginning from AIR 1958 SC 130 (Indian
Iron & Steel Co. Ltd. & Anr. Vs. Their
Worken) till AIR 1979 SC 1653 (Shankar
5 All. Amity Int. School Vs. Presiding Officer Labour Court & Anr.
2379
Chakravarti vs. Britannia Biscuit Co. Ltd.
& Anr.) and also thereafter in several
decisions as mentioned below.
15. In between this period, this
Court in several leading cases examined
the aforesaid questions. However, in
Shankar's case (supra), this Court took note
of entire case law laid down by this Court
in all previous cases and reiterated the
legal position in detail.
16. The legal position, in our view,
is succinctly explained by this Court (twoJudge Bench) in the case of Delhi Cloth &
General Mills Co. vs. Ludh Budh Singh,
1972(3) SCR 29-1972(Lab IC) 573 in
Propositions 4, 5 and 6 in the following
words:
"(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 relies 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
2380 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
17. The aforesaid principle of law
was quoted with approval in Shankar's case
(supra) by a Bench of three Judges in Para
23 observing, "..... After an exhaustive
review of the decisions bearing on the
question and affirming the ratio in R.K.
Jain's case (1972 Lab IC 13) this Court
extracted the emerging principles from the
review of decisions. Propositions 4, 5 and 6
would
be
relevant
for
the
present
discussion."
18. The aforementioned decisions
were
extensively
discussed
by
the
Constitution
Bench
in
the
case
of
Karnataka State Road Transport Corpn. vs.
Lakshmidevamma(Smt.) & Anr., 2001 (5)
SCC 433 wherein the law laid down in the
aforementioned two cases was approved.
19. When we examine the facts of
this case in the light of the aforementioned
principles of law, we find that the
termination of the respondent was by way
of punishment because it was based on the
adverse findings recorded against the
respondent in the domestic enquiry.
20. So the question, which the
Labour Court was expected to decide in the
first instance as a "preliminary issue", was
whether the domestic enquiry held by the
appellant (employer) was legal and proper.
In other words, the question to be decided
by the Labour Court was whether the
domestic enquiry held by the appellant was
conducted following the principles of
natural justice or not.
21. If the domestic enquiry was
held legal and proper then the next question
which arose for consideration was whether
the
punishment
imposed
on
the
respondent(delinquent
employee)
was
proportionate to the gravity of the charge
leveled against him or it called for any
interference
to
award
any
lesser
punishment by exercising the powers under
Section 11-A of the ID Act.
22. If the domestic inquiry was held
illegal and improper then the next question,
which arose for consideration, was whether
to allow the appellant (employer) to prove
the misconduct/charge before the Labour
Court on merits by adducing independent
evidence
against
the
respondent
(employee). The appellant was entitled to
do so after praying for an opportunity to
allow them to lead evidence and pleading
the misconduct in the written statement.
(see- also Para 33 at page 1665/66 of
Shankar's case (supra)).
23. Once the appellant(employer)
was able to prove the misconduct/charge
before the Labour Court, then it was for the
Labour Court to decide as to whether the
termination should be upheld or interfered
by exercising the powers under Section 11A of the ID Act by awarding lesser
punishment provided a case to that effect on
facts
is
made
out
by
the
respondent(employee).
24. We are constrained to observe
that first, the Labour Court committed an
error in not framing a "preliminary issue"
for deciding the the legality of domestic
enquiry and second, having found fault in
the domestic inquiry committed another
error when it did not allow the appellant to
lead independent evidence to prove the
misconduct/charge
on
merits
and
straightaway proceeded to hold that it was
a case of illegal retrenchment and hence the
respondents' termination is bad in law."

14. Having considered the law laid
down by the Hon'ble Supreme Court in the
cases, as discussed above, and precisely the
observations made by the Constitutional
5 All. M/S Pragyason Cons. Pvt. Ltd. Vs. State of U.P. & Ors.
2381
Bench of Hon'ble Supreme in the case of
Karnataka State Road Transport Corporation
(Supra), this Court has no doubt in mind that the
issue qua violation of principles of natural
justice and fair play during the domestic enquiry
should be decided first as a preliminary issue.
There is no need to discuss the merits of the case
or other points inasmuch as matter referred to
the labour court is still sub judice, therefore, any
observation made by this Court would effect the
merits of the case. As such, instant writ petition
succeeds and is allowed. Order impugned dated
18.11.2023 passed by the Presiding Officer,
Labour Court is hereby quashed. Application
dated 08.08.2023 (Paper No.13-D) filed on
behalf of the petitioner is allowed and the labour
court is directed to decide the issue no.1 as a
preliminary
issue.
It
is
expected
that
unnecessary
adjournment/delay
shall
be
avoided by the parties concerned and the labour
court shall make endeavour to decide the
adjudication case, as early as possible.
----------
(2024) 5 ILRA 2381
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2024

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 21022 of 2021

M/S Pragyason Cons. Pvt. Ltd....Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Sr. Advocate, Udayan Nandan

Counsel for the Opp. Parties:
C.S.C.

A. U.P. Minor Minerals (Concessions)
Rules, 1963 - G.O. dated 14.08.2017 -
Clause 17 - Forfeiture of Earnest Money -
Conditions - Letter of Intent - Nonsubmission of Documents - Refund of
Earnest Money - Right to Claim Refund -
As per Clause 17 of G.O. dated 14.08.2017,
forfeiture of earnest money can only be
ordered
if,
upon
verification,
any
document or certificate submitted by the
individual is found to be false, fabricated,
or incorrect. No letter of intent shall be
issued to such a person. Further, G.O.
dated 09.10.2017, provides that no person
in the State of U.P. shall be granted more
than two mining leases aggregating an
area in excess of 50 hectares. In case
information is provided to the authority by
the applicant himself that the applicant
has been issued two letters of intent for
two or more mining leases or for areas
exceeding 50 hectares, he has the right to
choose one of the mining lease areas, and
the amount deposited for the remaining
areas
would
be
refunded
upon
verification. (Para 21)

B. U.P. Minor Minerals (Concessions)
Rules, 1963 - G.O. dated 14.08.2017 -
Condition of Submission of Documents -
Directory or Mandatory - G.O. mandates
that the relevant documents are to be
submitted by the highest bidder within
three days of acceptance of his bid.
However, the provision does not prescribe
any penalty for non-compliance. It is a
settled principle that in the absence of any
penal provision, such a requirement is
considered directory and not mandatory.
(Para 22)

C. Facts: Petitioner participated in an eauction and deposited an earnest money
of Rs. 90 lakhs - Upon the acceptance of
his bid, a letter was issued to the
petitioner to furnish relevant documents
for the issuance of a letter of intent -
Instead of submitting the documents, the
petitioner sought a refund of the earnest
money, stating that he had been granted
more than two mining leases - District
Magistrate rejected the refund application
on the ground that the petitioner's failure
to furnish documents caused a loss of
revenue to the State - Held - Forfeiture of
earnest money is not sustainable as no