ORDER
1. This judgment will dispose of Civil Writ Nos. 3244 of 1968, 3245 of 1968 and 3246 of 1968, filed by the Atlas Cycle Industries Ltd., Sonepat, against Shri P. N. Thukral, as also Civil Writ No. 1441 of 1969, M/s. Krishna Embfastners Pvt. Ltd. v. Presiding Officer, Labour Court, Faridabad, which has been directed to be heard with Civil Writ No. 3244 of 1968, as common questions of law arise in all these petitions.
2. The facts in the first three writ petitions are identical and I only state the facts of Civil Writ No. 3244 of 1968. The Governor of Haryana, by an order dated October 9, 1967, referred the industrial dispute regarding the termination of services of respondent 2 for adjudication to the Labour Court, Rohtak. The parties filed their respective statements before the Labour Court. The management raised objections to the constitution of the Labour Court and the appointment of its Presiding Officer, on the following grounds:-
(I) After the formation of the State of Haryana, no notification has been issued constituting the Labour Court for the State of Haryana and, therefore, the present reference and proceedings are without jurisdiction.
(II) The Labour Court has come to an automatic end because the appointment of Shri Hans Raj Gupta, the predecessor of the present Presiding Officer has been held to be invalid.
(III) There was no Presiding Officer in this Court on the date of reference because the appointment of the Presiding Officer as required by Rule 5 of the Industrial Disputes (Punjab) Rules, 1958, had not been notified in the official gazette.
(IV) The notification dated July 2, 1968, notifying the appointment of the present Presiding Officer does not vest any jurisdiction in the Court because Section 8 of the Industrial Disputes Act is not attracted, there being no vacancy which could be filled up and it could not be filled up with retrospective effect.
Another objection that was taken was that Section 2A of the Industrial Disputes Act, 1947 (Act 14 of 1947) (hereinafter called the Act) was ultra virus and no reference could be made of the individual dispute between the petitioner and respondent 2. Section 2A was added to the Act by the Industrial Disputes (Amendment) Act, 1965 (Act 35 of 1965). On the pleading of the parties, the following issues were framed by the learned Labour Court on February 27, 1968 :-
(1) Whether the objection regarding constitutional validity of S. 2A of the Industrial Disputes Act can be raised in this Court ?
(2) Whether the reference is invalid for the reasons mentioned in Cls. (b) and (c) of the preliminary objection?
(3) Whether the termination of services of Shri Prem Pal Bedi is justified and in order ? If not to what relief he is entitled?
3. An application was made by the management on August 29, 1968 raising the objections to the constitution of the Labour Court and the appointment of its Presiding Officer, as set out above. Another application was made on September 17, 1968, in which a request was made to decide the preliminary objections in the first instance as they related to the jurisdiction of the Court to decide the reference. It was also pleaded in this application that respondent 2 had been dismissed after a proper enquiry and respondent 2 had raised a number of objections to the enquiry to which a reply had been filed by the management. It was submitted that the management had a right to lead evidence on merits if it was held that the enquiry was not proper and the question whether evidence on merits should be led or not would arise only after the Court gave a finding whether a domestic enquiry was proper or not. It was, therefore, submitted that a decision should be given by the Labour Court as to whether domestic enquiry was proper or not before calling upon the management to lead evidence to prove that the termination of the services of respondent 2 was in order. The learned Labour Court, by order dated September 28, 1968, decided that his appointment as the Presiding Officer of the Labour Court, Rohtak, was in order and the reference to that court had been validly made.
With regard to the vires of Section 2A of the Act, it was held that the court had no jurisdiction to go into the matter and that the petitioner-company could seek this remedy in the High Court. With regard to the request of the management to decide about the domestic enquiry being fair and proper before calling upon it to lead evidence on the point whether the termination of the services of respondent 2 was justified or not, it was held that the management had made this request after the lapse of seven months from the date on which the issues were framed and that the decision of the reference could not be made piece-meal. A further reason was stated that the decision of a reference made to the Labour Court is not an announced to the parties but is sent to the Government for publication in the Government Gazette and, therefore, the giving of piece-meal award will not be correct. It was further observed that the management knew whether the domestic enquiry held by it was proper or not and it was for the management to lead or not to lead evidence o the merits of the termination of he services of the respondent. The Labour Court thus refused to decide the point with regard to the propriety and fairness of the domestic enquiry as a preliminary issue. The present writ petition has been filed questioning the correctness of the decision on the preliminary points canvassed before the learned Labour Court. This writ petition was filed on October 16, 1968 ad was admitted on the following day. Further proceedings before the Labour Court were stayed.
4. The return to the writ petition has been filed only by respondent 3, the State of Haryana, in which the order of the Labour Court has been justified.
5. I have decided today Civil Writ No. 1129 of 1969 (Punj & Har) M/s. George Tools (I) Pvt Ltd., v. The State of Haryana in which I have held that the appointment of Shri. P. N. Thukral as the Presiding Officer of the labour Court. Rohtak, was valid \and in order but his appointment as the presiding Officer, Rohtak, was vaid and in order not his appointment as the Presiding Officer of the Lower Court. Faridiabad, which was established by notification dated June 20, 1968, was not in order. On that basis, the reference of the industrial dispute made to the Labour Court, Rohtak, in all the four writ petitions which are being decided by he judgment, was in order but those references were not transferred to the Labour Court, Faridabad, and Shri. P. N. Thukral had no jurisdiction to pass any orders in these cases after June 20, 1968. I have also held in that writ petition by the Industrial Disputes (Amendment)Act (35 of 1965),is a constitutionally valid piece of legislation and that a dispute between an individual workman and the management can be referred for adjudication to the Labour Court. I have dealt with all the arguments advanced by the learned counsel for the parties in the writ petitions which have been disposed of by that order and the counsel appearing in these cases in that judgment and I need not repeat the same in this judgment.
6. Although the impugned order dated September 28, 1968 is liable to be quashed on the ground that the appointment of Shri P. N. Thukral as the Presiding Officer of the Labour Court, Faridabad, in which capacity he has passed this order, was not legal, I have considered the learned Labour Court should have decided the matter with regard to the propriety and fairness of the domestic enquiry before requiring the management to adduce evidence to justify the termination of the services of respondent 2, as this is the only point canvassed in C. W. 3244 of 1968.
It has been submitted by the learned counsel for the petitioner that in case the Labour Court comes to the conclusion that the domestic enquiry was fair and proper and no defect could be found therewith, the Labour Court has no jurisdiction to proceed with the reference and the only award that it has to make is to dismiss the reference, so that the parties are relieved of the necessity to lead evidence on the merits of the termination of service. In case the Labour court comes to the conclusion that the domestic enquiry was in any way defective, an interim order to tat effect can be passed and the parties can be directed to lead evidence on the merits of the termination of the service. The reason stated by the learned Labour Court that it will mean piece-meal decision of the reference is not correct. In case the Labour Court comes to the conclusion that the enquiry was defective, the order passed will be an interlocutory order and not an award. An interlocutory order can be announced to the parties and has not to be published in the Government Gazette. It is the award finally deciding the reference that has to be published in the Government Gazette and cannot be announced to the parties. This reasoning of the learned Labour Court is, therefore, not sound and, in my opinion, the rejection of the request on this ground was not legal or proper. The learned Presiding Officer has himself observed that in case the domestic enquiry is held to be proper and fair, he will have no jurisdiction to decide whether the termination of services of respondent 2 was justified and in order, from which it follows that if the decision on the preliminary point goes in favour of the petitioner, the reference can be decided finally and the award so made can be sent to the Government for publication. I, therefore, consider that the proper course for the learned Presiding Officer of the Labour Court was to decide the matter with regard to the propriety and fairness of the domestic enquiry before requiring the management and the workman to produce evidence to justify the termination of the services of the respondent.
7. It is submitted by the learned counsel for the respondents that under Section 11 of the Act, the Labour Court can follow such procedure as it may think fit and the Labour Court did not act illegally in the exercise of its jurisdiction while deciding that it shall not decide the preliminary point before deciding issue No. 3 on merits and no case for interference with that order by this Court has been made out. It is no doubt true that the Labour Court can follow such procedure as it may think fit but that procedure must be in consonance with the accepted principles of procedure which are followed by such Courts and Tribunals. The learned counsel for the petitioner has referred to a judgment of their Lordships of the Supreme Court, in Punjab National Bank Ltd. v. Their Workmen, (1959) 2 Lab LJ 666 = (AIR 1960 SC 160) in which the following observations occur :-
“Where an application is made by the employer for the requisite permission under Section 33, the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive servility; not can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer.”
8. Their Lordships of the Supreme Court, in Bharat Sugar Mills, Ltd. v. Jai Singh, 1961-2 Lab LJ 644 at p. 648 (SC) reiterated the same proposition in the following words :-
“Evidence was, however, adduced by the appellant before the industrial tribunal to make out its case that the workmen concerned were in fact guilty of the alleged misconduct. On behalf of the respondents it has been urged before us that once it is found that the enquiry by the domestic tribunal has been defective, it was not open to the industrial tribunal before which the application under Section 33 is made to allow any evidence to be adduced before it. We see no force in this contention. When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment, the tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself, the tribunal, it has been settled by a number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide.”
The learned counsel for respondent 2 has pointed out that this principle holds good in the case of applications under Section 33 of the Act and not in the adjudication of references made under Section 10 of the Act. This submission is not correct in view of the following observations of their Lordships the Supreme Court, in Workmen of Motipur Sugar Factory (Pvt) Ltd., v. Motipur Sugar Factory (Pvt.) Ltd. (1965) 2 Lab LJ 162, at p. 170 = (AIR 1965 SC 1803 at p. 1808) :-
“It is true that three of these cases, Sasa Musa Sugar Works (Pvt.) Ltd. v. Shobrati Khan, (1959) 2 :an :K 388 = (AIR 1959 SC 923): (1959) 2 Lab LJ 666 = (AIR 1960 SC 160) and (1961) 2 Lab LJ 644 (SC), except Phulbari Tea Estate case, (1959) 2 Lab LJ 663 = (AIR 1959 SC 1111), were on applications under Section 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case, if the enquiry is defective or if no enquiry has been held as required by standing orders, the entire case would be open before the tribunal and the employer would have to justify on fact as well that its order of dismissal or discharge was proper. Phulbari Tea Estate case, 1959-2 Lab LJ 663 = (AIR 1959 SC 1111) (vide supra) was on a reference under Section 10 and the same principle was applied there also, the only difference being that in that case there was an inquiry though it was defective. A defective enquiry, in our opinion, stands on the same footing as no enquiry and in ether case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.”
In view of these judgments of their Lordships of the Supreme Court, it is to be held that the learned Labour Court should have decided in the first instance whether the domestic enquiry held by the management was proper and fair and free from any defect before calling upon the parties to adduce evidence with regard to the justification of the termination of their services of respondent 2. Respondent 2 can lead evidence to show that the enquiry was defective on the grounds available to him, e.g., the principles of natural justice were violated or not observed, he was not given proper opportunity to defend himself, the termination of services was by way of victimisation or there were mala fides on the part of the management or any other reason which would vitiate the enquiry, according to the well-known principles laid down by their Lordships of the Supreme Court in Indian Iron and Steel Co. Ltd. v. Their Workmen, 1958-1 Lab LJ 260 = (AIR 1958 SC 130).
9. The learned counsel for respond 2 has further argued that piece-meal decision on such maters lead to delay order passed by the Labour Court holding that the enquiry was not fair, could be attacked by the management in a writ petition. This ground gain is of no substance, as in the present case the order refusing to decide the point has led to their writ petition being filed and has caused delay in the disposal of the reference. Since the matter goes to the jurisdiction of the Labour Court in case it is decided in a particular manner. I am of the opinion, that the Labour Court should have decided the matter with regard to the propriety of the domestic enquiry before calling upon the parties to adduce evidence with regard to the justification of the termination of services. The order of the Labour Court on this point is also liable to be quashed. No direction is necessary to be given as the order is without jurisdiction on the ground that the learned Presiding Officer, who passed it, had not been validity appointed.
10. In Civil Writ No. 1441 of 1969, M/s. Krishna Embfastners Private Ltd. v. Presiding Officer, Labour Court, Faridabad, the only point that has been canvassed is the last point decided in the case of Atlas Cycle Industries Limited, that is, the learned Labour Court was not justified in refusing to decide the matter with regard to the propriety and fairness of the domestic enquiry before requiring the petitioner to adduce evidence justifying the termination of services of workmen whose dispute had been referred for adjudication to the Labour Court. The impugned order is liable to be quashed for the reasons stated above as also on the ground that it was passed by Shri. P. N. Thukral as Presiding Officer, Labour Court, Fariadabad, on April 16, 9169, whose appointment as such Presiding Officer was illegal and the order passed by him is without jurisdiction.
11. For the reasons given above these petitions are allowed to the extent indicated above and the impugned orders of the Presiding Officer of the Labour Court, Faridabad, in all the four cases, are hereby quashed. Since the points involved were not free form difficulty, I leave the partie to bear their own costs. The Labour Court that will decide these references hereafter shall bear in mind the observations made above.
12. Petitions party allowed.