# Shamli Distillery & Chemical Works Shamli v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 1218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-13
- **Case number:** Writ-C No. 31147 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamli-distillery-chemical-works-shamli-v-state-of-u-p-ors-44907
- **Pages:** 12

## Headnote

A. Labour Law - Termination of service
of workman - Domestic enquiry -
Opportunity of hearing to the employer -
Adjudication process to be adopted by
Labour Court - Principle laid down - It is
obligatory upon the Labour Court to first
decide the preliminary issue as to the
legality of the domestic enquiry and in
case it proceeds to hold the domestic
enquiry to be not fair and proper it
would be open to the employer to ask for
such opportunity to lead evidence to
prove the charge of misconduct and once
such prayer is made either orally or by
application or in the pleading, the same
is to be granted to enable the employer
to prove the misconduct. (Para 18)

Held -In view of the specific pleading having
been made by the petitioner-employer the
Labour Court before proceeding to hold the
termination to be illegal and invalid ought to
have granted an opportunity to the petitioneremployer to lead evidence and prove its case
and the Labour Court could not have
straightaway
proceeded
to
hold
the
termination to be illegal and invalid.

Writ Petition allowed. (E-1)

List of cases cited: -

## Text

1218 INDIAN LAW REPORTS ALLAHABAD SERIES
letter dated 31.12.2018 to the SubDivisional
Magistrate,
Loni,
District
Ghaziabad
to
get
a
spot
inquiry
conducted, so that the exact situation may
be verified and it may be seen as to
whether there existed any dispute with
regard to the management of the Society.
The status of the entries in the revenue
records was also directed to be verified.

41. In response to the aforesaid
request sent by the Deputy Registrar the
Sub-Divisional Magistrate, Loni vide his
letter dated 10.07.2019 forwarded an
inquiry report stating therein that the
matter was inquired into by the Tehsildar
Loni and a report dated 05.07.2019 had
been submitted wherein it has been stated
that the property in question was not a
public property and that there existed a
dispute with regard to the management of
the society in the name of "Sri 1008
Parshvanath Digamber Jain Mandir" and
there also existed a dispute with regard to
the title and ownership between two rival
parties in respect of the property in
question. It was disclosed that a civil suit
being Original Suit No. 946 of 2018 (Sri
1008 Parshvanath Digamber Jain Mandir
vs. Pravin Kumar Jain and others) was
pending before the court of Civil Judge
(Senior Division) Ghaziabad.

42. It is on the basis of aforesaid
report submitted by the Sub-Divisional
Magistrate, Loni that the Deputy Registrar
has drawn an inference that there existed
a dispute with regard to the ownership
and title pertaining to the movable and
immovable properties of the society in
question and also a dispute with regard to
the management of the society and that a
civil suit was pending between the two
rival factions both of whom applied for
grant of registration under the Act, 1860.

43. In view of the aforesaid facts
and circumstances of the case the
conclusion drawn by the Deputy Registrar
with regard to the existence of a dispute in
respect of the ownership of the properties
of the Society and also with regard to its
management and that it would not be
appropriate
to
grant
certificate
of
registration to either of the two sets of
claimants and thereafter rejecting the
applications filed by both the contesting
parties leaving it open to them to submit
applications afresh upon disposal of the
pending suit between the parties cannot be
faulted with.

44. No other ground was raised.

45. Learned counsel for the
petitioners has not been able to point out
any material error or irregularity in the
order dated 11.07.2019 passed by the
Deputy Registrar, Firms Societies and
Chits
Meerut
Region,
Meerut
i.e.
respondent No.4, which may warrant
interference in exercise of powers in writ
jurisdiction under Article 226 of the
Constitution of India.

46. The writ petition lacks merit and
is accordingly dismissed.
----------
(2019)12 ILR A1218

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 31147 of 2019

Shamli Distillery & Chemical Works
Shamli ...Petitioner
Versus
4 All. Shamli Distillery & Chemical Works Shamli Vs. State of U.P. & Ors.
1219
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Diptiman Singh

Counsel for the Respondents:
C.S.C., Ms. Bushra Maryam

A. Labour Law - Termination of service
of workman - Domestic enquiry -
Opportunity of hearing to the employer -
Adjudication process to be adopted by
Labour Court - Principle laid down - It is
obligatory upon the Labour Court to first
decide the preliminary issue as to the
legality of the domestic enquiry and in
case it proceeds to hold the domestic
enquiry to be not fair and proper it
would be open to the employer to ask for
such opportunity to lead evidence to
prove the charge of misconduct and once
such prayer is made either orally or by
application or in the pleading, the same
is to be granted to enable the employer
to prove the misconduct. (Para 18)

Held -In view of the specific pleading having
been made by the petitioner-employer the
Labour Court before proceeding to hold the
termination to be illegal and invalid ought to
have granted an opportunity to the petitioneremployer to lead evidence and prove its case
and the Labour Court could not have
straightaway
proceeded
to
hold
the
termination to be illegal and invalid.

Writ Petition allowed. (E-1)

List of cases cited: -

1. Management of Ritz Theatre (P) Ltd. Delhi
Vs. Workmen AIR 1963 SC 295

2. Workmen of the Motipur Sugar Factory
Private Ltd. Vs. The Motipur Sugar Factory
Private Ltd. AIR 1965 SC 1803

3. Delhi Cloth & General Mills Co. Vs. Ludh
Budh Singh (1972) 1 SCC 595

4. State Bank of India Vs. R.K.Jain and others
(1972) 4 SCC 304
5. The Workmen of M/S Firestone Tyre and
Rubber Co. of India (P) Ltd. Vs. The
Management and others (1973) 1 SCC 813

6. The Cooper Engineering Limited Vs. Shri
P.P.Mundhe (1975) 2 SCC 661

7. Shankar Chakravarti Vs. Britannia Biscuit
Co. Ltd. and another (1979) 3 SCC 371

8. Kurukshetra University Vs. Prithvi Singh
(2018) 4 SCC 483

9. Indian Iron & Steel Co. Ltd. Vs. Workmen
AIR 1958 SC 130

10 M.L.Singla Vs. Punjab National Bank and
Another (2018) 18 SCC 21

11. Bharat Sugar Mills Ltd. Vs. Jai Singh
(1962) 3 SCR 684

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava,J.)

1. Supplementary counter affidavit
filed by Ms. Bushra Maryam on behalf of
the respondent no. 3 is taken on record.

2. Sri Diptiman Singh, learned
counsel for the petitioner has stated that
he does not propose to file any response
to the aforesaid supplementary counter
affidavit.

3. With the consent of the parties the
writ petition is taken up for final disposal
as per the Rules of the Court.

4. Heard learned counsel for the
parties.

5. The present petition seeks to
challenge the award dated 27.03.2019,
published on 25.06.2019, passed by the
Labour
Court,
U.P.
Saharanpur
in
Adjudication
Case
No.69
of
2008,
whereby
the
Labour
Court
while
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
answering the reference with regard to the
legality/validity of the termination of the
services of the respondent no.3-workman
w.e.f. 14.03.2008 has held the termination
to be illegal/invalid and directed his
reinstatement with full back wages and
consequential benefits.

6. The sole contention raised on
behalf of the petitioner is that the services
of the respondent-workman had been
terminated pursuant to a domestic enquiry
and the Labour Court having framed an
issue with regard to the fairness of the
domestic enquiry and having held the
same to be not fair and proper it ought to
have granted opportunity to the petitioneremployer to lead evidence and prove the
case before the Labour Court. It is
submitted that upon coming to the
conclusion that the domestic enquiry was
not fair and proper, the Labour Court
could not have straightaway proceeded to
hold the termination to be illegal/invalid
without grant of opportunity to the
petitioner-employer to prove the case
before the Labour Court.

7. Counsel for the respondent no. 3workman submits that though a plea was
raised in the written statement filed by the
employer that in the event the domestic
enquiry is held to be not fair and proper it
may be permitted to lead evidence and
prove the case before the Labour Court,
but the order-sheet does not indicate that
the said plea was pressed by the employer
at any stage of the proceedings.

8. In order to appreciate the
controversy involved it would be relevant
to advert to the legal position with regard
to the scope of the powers exercisable by
a Labour Court while deciding a dispute
relating to the legality and correctness of
a termination order passed against the
workman pursuant to a domestic enquiry
and the rights of the employer to lead
evidence and defend the order of
termination before the Labour Court.

9. The right of the Management to
defend its action solely on the basis of a
domestic enquiry by demonstrating it to
be fair and proper, or taking the other
course of relying firstly on the validity of
domestic enquiry and alternatively and
without prejudice to the plea that the
enquiry is fair and proper also seeking to
adduce evidence before the Tribunal to
justify its action was upheld in the case of
Management of Ritz Theatre (P) Ltd.
Delhi Vs. Workmen1. The observations
made in the judgment in this regard are as
follows :-

"12...In enquiries of this kind,
the first question which the Tribunal has
to consider is whether a proper enquiry
has been held or not. Logically, 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
findings 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
4 All. Shamli Distillery & Chemical Works Shamli Vs. State of U.P. & Ors.
1221
anomaly that the employer would be
precluded from 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 cited 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 against the
employer. That, in our opinion, is the true
and correct legal position in this matter."

10. The question as to whether in a
case where no enquiry as required under
the applicable Standing Orders had been
held could the Management justify the
order of dismissal before the Industrial
Tribunal
was
subject
matter
of
consideration in the case of Workmen of
the Motipur Sugar Factory Private Ltd.
Vs. The Motipur Sugar Factory Private
Ltd.2. The observations made in the
judgment in this regard are as follows :-

"12. If it is held that in cases
where
the
employer
dismisses
his
employee without holding an enquiry, the
dismissal must be set aside by the
Industrial Tribunal only on that ground, it
would inevitably mean that the employer
will immediately proceed to hold the
enquiry and pass an order dismissing the
employee once again. In that case, another
industrial dispute would arise and the
employer would be entitled to rely upon
the enquiry which he had held in the
meantime. This course would mean delay
and on the second occasion it will entitle
the employer to claim the benefit of the
domestic enquiry. On the other hand, if in
such cases the employer is given an
opportunity to justify the impugned
dismissal on the merits, the employee has
the advantage of having the merits of his
case being considered by the tribunal for
itself and that clearly would be to the
benefit of the employee. That is why this
Court has consistently held that if the
domestic enquiry is irregular, invalid or
improper, the tribunal may give an
opportunity to the employer to prove his
case and in doing so, the tribunal tries the
merits itself. This view is consistent with
the
approach
which
industrial
adjudication generally adopts with a view
to do justice between the parties without
relying
too
much
on
technical
considerations and with the object of
avoiding
delay in the
disposal
of
industrial disputes..."

11. The nature of the jurisdiction
exercised by an Industrial Tribunal while
examining the validity and propriety of a
domestic
enquiry
held
by
the
Management came up for consideration in
the case of Delhi Cloth & General Mills
Co. Vs. Ludh Budh Singh3, wherein it
was held that in a case where the
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
termination
order
has
been
passed
pursuant to a domestic enquiry it is open
to the Management 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 enquiry is
against the Management. The principles
culled out in the judgment are as follows
:-

"61. 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 relies
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 before 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
4 All. Shamli Distillery & Chemical Works Shamli Vs. State of U.P. & Ors.
1223
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."

12. A similar view was taken in the
case of State Bank of India Vs.
R.K.Jain and others4, while considering
the
question
as
to
whether
the
Management can produce evidence to
prove the grounds for justification of
discharge of the workman before the
Tribunal and if so at what stage of
proceedings. The observations made in
the judgment in this regard are as follows
:-

"35.It should be remembered
that when an order of punishment by way
of dismissal or termination of service is
effected by the management, the issue
that
is
referred
is
whether
the
management was justified in discharging
and terminating the service of the
workman concerned and whether the
workman is entitled to any relief. In the
present case, the actual issue that was
referred for adjudication to the Industrial
Tribunal has already been quoted in the
earlier part of the judgment. There may be
cases where an enquiry has been held
preceding the order of termination or
there may have been no enquiry at all. But
the dispute that will be referred is not
whether the domestic enquiry has been
conducted properly
or not by the
management, but the larger question
whether
the
order
of
termination,
dismissal
or
the
order
imposing
punishment on the workman concerned is
justified. Under those circumstances it is
the right of the workman to plead all
infirmities in the domestic enquiry, if one
has been held and also to attack the order
on all grounds available to him in law and
on facts. Similarly, the management has
also a right to defend the action taken by
it on the ground that a proper domestic
enquiry has been held by it on the basis of
which the order impugned has been
passed. It is also open to the management
to justify on facts that the order passed by
it was proper. But the point to be noted is
that the enquiry that is conducted by the
Tribunal is a composite enquiry regarding
the order which is under challenge. If the
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
management defends its action solely on
the basis that the domestic enquiry held
by it is proper and valid and if the
Tribunal hold0 against the management
on that point, the management will fail.
On the other hand, if the management
relies not only on the validity of the
domestic enquiry, but also adduces
evidence before the Tribunal justifying its
action, it is open to the Tribunal to accept
the evidence adduced by the management
and hold in its favour even if its finding is
against the management regarding the
validity of the domestic enquiry. It is
essentially a matter for the management to
decide about the stand that it proposes to
take before the Tribunal. It may be
emphasised, that it is the right of the
management to sustain its order by
adducing
also
independent
evidence
before the Tribunal. It is a right given to
the management and it is for the
management to avail itself of the said
opportunity."

13. The jurisdiction of an Industrial
Tribunal
while adjudicating
disputes
relating to dismissal or discharge was
exhaustively considered in the case of
The Workmen of M/S Firestone Tyre
and Rubber Co. of India (P) Ltd. Vs.
The Management and others5, and
certain broad principles were laid down.
The observations made in the judgment in
this regard are being extracted below :-

"31.We
have
exhaustively
referred to the various decisions of this
Court, as they give a clear picture of the
principles governing the jurisdiction of
the Tribunals when adjudicating disputes
relating to dismissal or discharge.

32.From those decisions, the
following principles broadly emerge:

(1) The right to take disciplinary
action and to decide upon the quantum of
punishment
are
mainly
managerial
functions, but if a dispute is referred to a
Tribunal, the latter has power to see if
action of the employer is justified.

(2)
Before
imposing
the
punishment, an employer is expected to
conduct a proper enquiry in accordance
with the provisions of the Standing
Orders, if applicable, and principles of
natural justice. The enquiry should not be
an empty formality.

(3) When a proper enquiry has
been held by an employer, and the finding
of misconduct is a plausible conclusion
flowing from the evidence, adduced at the
said enquiry, the Tribunal has no
jurisdiction to sit in judgment over the
decision of the employer as an appellate
body. The interference with the decision
of the employer will be justified only
when the findings arrived at in the
enquiry are perverse or the management is
guilty of victimisation, unfair labour
practice or mala fide.

(4) Even if no enquiry has been
held by an employer or if the enquiry held
by him is found to be defective, the
Tribunal in order to satisfy itself about the
legality and validity of the order, had to
give an opportunity to the employer and
employee to adduce evidence before it. It
is open to the employer to adduce
evidence for the first time justifying his
action, and it is open to the employee to
adduce evidence contra.

(5) The effect of an employer
not holding an enquiry is that the Tribunal
would not have to consider only whether
there was a prima facie case. On the other
hand, the issue about the merits of the
impugned order of dismissal or discharge
is at large before the Tribunal and the
latter, on the evidence adduced before it,
4 All. Shamli Distillery & Chemical Works Shamli Vs. State of U.P. & Ors.
1225
has to decide for itself whether the
misconduct alleged is proved. In such
cases, the point about the exercise of
managerial functions does not arise at all.
A case of defective enquiry stands on the
same footing as no enquiry.

(6)
The
Tribunal
gets
jurisdiction to consider the evidence
placed before it for the first time in
justification of the action taken only, if no
enquiry has been held or after the enquiry
conducted by an employer is found to be
defective.

(7) It has never been recognised
that the Tribunal should straightaway,
without
anything
more,
direct
reinstatement
of
a
dismissed
or
discharged employee, once it is found that
no domestic enquiry has been held or the
said enquiry is found to be defective.

(8) An employer, who wants to
avail himself of the opportunity of
adducing evidence for the first time
before the Tribunal to justify his action,
should ask for it at the appropriate stage.
If such an opportunity is asked for, the
Tribunal has no power to refuse. The
giving of an opportunity to an employer
to adduce evidence for the first time
before the Tribunal is in the interest of
both the management and the employee
and to enable the Tribunal itself to be
satisfied about the alleged misconduct.

(9) Once the misconduct is
proved either in the enquiry conducted by
an employer or by the evidence placed
before a Tribunal for the first time,
punishment imposed cannot be interfered
with by the Tribunal except in cases
where the punishment is so harsh as to
suggest victimisation.

(10) In a particular case, after
setting aside the order of dismissal,
whether a workman should be reinstated
or paid compensation is, as held by this
Court in The Management of Panitole Tea
Estatev.Workmen,(1971)
1 SCC
742
within the judicial decision of a Labour
Court or Tribunal."

14. The consequences which would
follow in a case where the domestic
enquiry was found to be defective for
violation of principles of natural justice
and as to whether in such a case a duty
would be cast on the Labour Court to give
an opportunity to the employer to adduce
evidence afresh and whether the failure to
do so would vitiate the award was taken
up for consideration in the case of The
Cooper Engineering Limited Vs. Shri
P.P.Mundhe6. The observations made in
the judgment are as follows :-

"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
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. The question as to whether the
Labour Court is duty bound to afford an
opportunity to the employer to lead
evidence and to prove the charge against
the workman on merits in a case where
the domestic enquiry is held to be illegal
and improper fell for consideration in the
case of Shankar Chakravarti Vs.
Britannia
Biscuit
Co.
Ltd.
and
another7, and while answering the
aforesaid question it was held that it is for
the employer to ask for such opportunity
to lead evidence to prove the charge of
misconduct and once such prayer is made
in any form i.e. orally or by application or
in the pleading the same cannot be denied
to the employer. The observations made
in the judgment in this regard are being
extracted below ;-

"35...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...."

16. The question with regard to the
necessity of framing a preliminary issue
to decide validity of domestic enquiry
again came up for consideration in the
case of Kurukshetra University Vs.
Prithvi Singh8, and after referring to the
earlier judgments in the case of Indian
Iron & Steel Co. Ltd. Vs. Workmen9,
and Shankar Chakravarti Vs. Britannia
Biscuit Co. Ltd.7 it was observed that in
the facts of the case the Labour Court
committed an error in not framing a
preliminary issue for deciding the legality
of the domestic enquiry and having found
fault in the domestic enquiry committed
another error when it did not allow the
employer to lead independent evidence to
prove the misconduct/charge on merits
and straightway proceeded to hold that it
was a case of illegal retrenchment. The
observations made in the aforementioned
judgment in this regard are as follows :-

"12.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 Indian Iron & Steel Co.
Ltd.v.Workmen
till
Shankar
Chakravartiv.Britannia
Biscuit
Co.
Ltd.[Shankar
Chakravartiv.Britannia
Biscuit Co. Ltd., (1979) 3 SCC 371 and
also thereafter in several decisions as
mentioned below.

13.In between this period, this
Court in several leading cases examined
the aforesaid questions. However, in
Shankar case, (1979) 3 SCC 371, this
Court took note of entire case law laid
down by this Court in all previous cases
and reiterated the legal position in detail.

Xxxx

20.We
are
constrained
to
observe that first, the Labour Court
committed an error in not framing a
"preliminary issue" for deciding the
legality of domestic enquiry and second,
having found fault in the domestic
enquiry committed another error when it
did not allow the appellant to lead
independent
evidence
to
prove
the
4 All. Shamli Distillery & Chemical Works Shamli Vs. State of U.P. & Ors.
1227
misconduct/charge
on
merits
and
straightaway proceeded to hold that it was
a case of illegal retrenchment and hence
the respondent's termination is bad in
law."

17. The aforementioned proposition
of law has been reiterated in the case of
M.L.Singla Vs. Punjab National Bank
and another10, and it has been stated that
it is obligatory for the Labour Court to
decide
the
validity/legality
of
the
domestic enquiry and in case it is held
that the domestic enquiry was illegal
because it had been conducted in violation
of the principles of natural justice the
employer ought to be granted opportunity
to lead evidence and prove the case before
the Labour Court. The observations in the
aforesaid judgment made in this regard
after examining the earlier decisions in
the case of Bharat Sugar Mills Ltd. Vs.
Jai Singh11, Management of Ritz
Theatre (P) Ltd. Delhi Vs. Workmen1,
Workmen
of
the
Motipur
Sugar
Factory Private Ltd. Vs. The Motipur
Sugar Factory Private Ltd.2, SBI Vs.
R.K.Jain4, Delhi Cloth and General
Mills Co. Vs. Ludh Budh Singh3,
Workmen of M/S Firestone Tyre &
Rubber Co. of India (P) Ltd. Vs.
Management
and
others5,
Cooper
Engineering Limited Vs. P.P.Mundhe6
and Shankar Chakravarti Vs. Britannia
Biscuit Co. Ltd.7 are as follows :-

"13.It is necessary to examine
the legality and correctness of the award
of the Labour Court in the first instance
and then the impugned order.

14.When we examine the award
in the light of detailed facts set out above,
we find that the Labour Court committed
more than one jurisdictional error in
answering the reference.

15.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.

16.Depending upon the answer
to this question, the Labour Court should
have proceeded further to decide the next
question.

Xxxx

20.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
1 Bank was under legal obligation to
prove the misconduct (charges) alleged
against the appellant (employee) before
the Labour Court provided he had sought
such opportunity to prove the charges on
merits.

21.The Labour Court was then
under legal obligation to give such
opportunity and then decide the question
as to whether Respondent 1 Bank was
able to prove the charges against the
appellant on merits or not.

Xxxx

25.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
confine
its
discussion only for examining the legality
and propriety of the enquiry proceedings.

26.Depending upon the finding
on the preliminary issue on the legality of
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

27.In other words, the Labour
Court failed to see that it would have
assumed the jurisdiction to examine the
charges on the merits only after the
domestic enquiry had been held illegal
and secondly, the employer had sought
permission to adduce evidence on merits
to prove the charges and on permission
being granted, he had led the evidence.

Xxxx

35.The law on this subject was
examined by this Court in several
decisions beginning from Bharat Sugar
Mills Ltd.v.Jai Singh, (1962) 3 SCR
684;Ritz
Theatre
(P)
Ltd.v.Workmen(1963)
3
SCR
461;Workmenv.Motipur Sugar Factory
(P) Ltd.,(1965) 3 SCR 588;SBIv.R.K. Jain
(1972) 4 SCC 304;Delhi Cloth and
General
Mills
Co.v.Ludh
Budh
Singh,(1972)
1
SCC
595;
Workmenv.Firestone Tyre & Rubber Co.
of India (P) Ltd., (1973) 1 SCC 813 and
Cooper Engg. Ltd.v.P.P. Mundhe,(1975)
2 SCC 661.

36.All
the
aforementioned
decisions were examined in detail by a
Bench of three Judges of this Court in
Shankar Chakravarti v.Britannia Biscuit
Co. Ltd.,(1979) 3 SCC 371.

37.Though
in
Shankar
Chakravarti case,(1979) 3 SCC 371, the
question was when the domestic enquiry
is held illegal and improper by the Labour
Court, whether the Labour Court is duty
bound to afford an opportunity to the
employer to lead evidence to prove the
charge against the workman on merits
before the Labour Court.

38.This Court while answering
the
aforesaid
question
inShankar
Chakravarti case,(1979) 3 SCC 371 held
that it is for the employer to ask for such
opportunity to lead evidence to prove the
charge of misconduct and once such
prayer is made in any form i.e. orally or
by application or in the pleading, the same
cannot be denied to the employer. It has
to be granted to enable him to prove the
misconduct. This Court further held that
no duty is cast upon the Court to offer
such opportunity to the employer suo
motu, if he does not ask for it. In other
words, he has to ask for from the Court by
any of the three modes mentioned above."

18. From the forgoing discussion it
follows that it is obligatory upon the
Labour
Court
to
first
decide
the
preliminary issue as to the legality of the
domestic enquiry and in case it proceeds
to hold the domestic enquiry to be not fair
and proper it would be open to the
employer to ask for such opportunity to
lead evidence to prove the charge of
misconduct and once such prayer is made
either orally or by application or in the
pleading, the same is to be granted to
enable the employer to prove the
misconduct. It has been consistently held
that the Management would have a right
to defend its action solely on the basis of
the domestic enquiry by demonstrating it
to be fair and proper, or taking the other
course of relying firstly on the validity of
the domestic enquiry and alternatively
and without prejudice to the plea that the
enquiry is fair and proper also seeking to
adduce evidence before the Tribunal to
justify its action.

19. In the instant case, the records of
the present case indicate that in the
4 All. Lov Mandehswari Saran Singh Vs. State of U.P. & Ors.
1229
written statement filed by the petitioneremployer before the Labour Court it was
specifically pleaded that in case the
Labour Court finds any defect in the
enquiry, the management be allowed to
prove the case before the Labour Court
and to lead the evidence for the said
purpose.

20. In view of the specific pleading
having been made by the petitioneremployer
the
Labour
Court
before
proceeding to hold the termination to be
illegal and invalid ought to have granted
an opportunity to the petitioner-employer
to lead evidence and prove its case and
the Labour Court could
not have
straightaway proceeded to hold the
termination to be illegal and invalid.

21. Learned counsel appearing for the
respondent no. 3 has not been able to dispute
the aforementioned legal position and has
fairly submitted that in order to expedite the
proceedings the matter be remanded to the
Labour Court to proceed afresh after giving
due opportunity to the petitioner-employer to
lead evidence and prove the charge.

22. In the light of the foregoing
discussion the award of the Labour Court is
held to be legally unsustainable and is
accordingly set aside and the matter is
remanded to the Labour Court with an
observation that the Labour Court would afford
an opportunity, as sought by the employer in its
written statement, to lead evidence to prove the
misconduct, and thereafter proceed to decide
the issue with regard to the legality/validity of
the termination of the services of the
respondent no. 3-workman, in terms of the
reference made before it.

23. Counsel for the parties have
jointly submitted that they would appear
before the Labour Court and would not
seek any unnecessary adjournment.

24. Having regard to the fact that the
dispute had been referred for adjudication
more than a decade ago it is expected that the
Labour Court would proceed with the matter
and endeavour to conclude the proceedings
expeditiously, preferably within a period of
six months from the date of receipt of a
certified copy of the order of this Court.

25. The writ petition is allowed to
the extent indicated hereinabove.
----------
(2019)12 ILR A1229

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 33360 of 2018
With
Writ-C No. 35154 of 2018

Lov Mandeshwari Saran Singh
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Harihar Prasad Srivastava

Counsel for the Respondents:
C.S.C., Sri M.D. Singh „Shekhar‟, Sri Devi
Prasad Mishra, Sri Ajit Kumar Singh(Addl.
A.G.), Sri Nimai Das & Sri Sudhanshu
Srivastava(Addl. C.S.C.), Sri Amit Verma

A. Nazul property - Nature and meaning
- Nazul is an Arabic word. It refers to a
land annexed to Crown. During British
Regime,
immoveable
property
of