ORDER
R. Gururajan, J.
1. The petitioner is before this Court, aggrieved by the award of the Labour Court, Hubli, in KID No. 119 of 1993.
2. The petitioner-workman joined the respondent in the year 1981. On completion of his probation, he was confirmed in the services. He was illegally dismissed on 26-7-1993. The said dismissal was subsequent to a departmental enquiry on an allegation of the petitioner’s failure to issue tickets to 16 passengers, despite collecting the fare. The dismissal was challenged by way of a reference in KID No. 119 of 1993. Matter was contested. After contest, the Labour Court has passed the following award:
“Petition is allowed in part.
So far the order of dismissal against the claimant is set aside and the same is remanded to the disciplinary authority of respondent, with a direction to make afresh enquiry in accordance with procedure after giving sufficient opportunity to the claimant and then pass a suitable order in accordance with law.
Under these circumstances, the parties are hereby directed to bear their own costs in the case”.
3. This is challenged by the petitioner in the case on hand.
4. Heard Smt. Kulkarni, learned Counsel for the petitioner and Sri Shankar Goud, learned Counsel appearing for the management. Perused the material placed before the Court.
5. The admitted facts reveal of a dismissal, after an enquiry by the Corporation. The dismissal was challenged before the Labour Court. The Labour Court framed an issue with regard to the validity of the enquiry. The Labour Court in its order dated 16-5-1996 has ruled that the enquiry is not fair and proper. Thereafter, the respondent has not led any evidence and the matter was heard. The learned Judge, in the impugned award has set aside the order of dismissal and has ordered remand with a direction to make a fresh enquiry in accordance with the procedure, after giving sufficient opportunity to the claimant and then pass a suitable order in accordance with law. This order of the Labour Court, in my view, runs counter to the well-accepted principles governing these matters. It is a well-settled principle of law that the management can terminate the services of the workman for a misconduct, after an enquiry in accordance with law. It is equally well-settled that when the said dismissal is challenged in a Court of law that Court has to treat the enquiry issue as a preliminary one and has to give its findings with regard to the validity of the enquiry. The Courts have ruled that in the event of the Court holding the enquiry issue against the management, the management has a right to lead evidence on merits subject to a request in that regard. This principle is well-settled and reiterated by the Supreme Court in a number of cases. In the case on hand, the Labour Court has ruled that the enquiry is not fair and proper. Therefore, the Labour Court has rightly directed the management to lead evidence. Management has not chosen to lead any evidence, whatsoever. In these circumstances, the Labour Court ought not to have remanded the matter and ought to have passed an award by itself. The remand to the Corporation, in my view, is wholly without jurisdiction and contrary to the well-accepted principles in these matters. In such circumstances, the workman is entitled to reinstatement and other relief. In this case, the workman is reinstated and is working factually. Therefore, his working in the respondent-Corporation is not disturbed. The Corporation is directed to continue him in its employment. In the normal circumstances, I would have myself granted the other relief in a case like this, but on the peculiar facts of this case, I deem it is proper to remand the matter to the Labour Court with an opportunity to the management to lead evidence before the Labour Court itself.
6. This Court in the famous case of Escorts Limited v. Regional Director, ESIC, has ruled under what circumstances, a remand can be made in para 11 reading as under:
“On a careful consideration of the matter, it appears to us that the contentions advanced by Sri Ullal, if accepted, would put impediments in the way of the working of the statutory scheme.
The argument, in our opinion, also overlooks the correct inter-relationship between the functionaries exercising jurisdiction under Section 45-A on the one hand and Section 75 on the other. The jurisdiction of the ESI Court under Section 75 is, it must be emphasised, not in the nature of an appeal against the determination under Section 45-A. Nor does the ESI Court exercise powers of judicial revjew over the determination. The jurisdiction under Section 45-A is an independent one; though, however, once there is an adjudication under Section 75 that adjudication prevails over the corresponding matters determined under Section 45-A. The jurisdiction under Section 75 is a superior jurisdiction. The jurisdiction of the Court of Reference under Section 18 of the Land Acquisition Act in relation to an award under Section 11 may provide some analogical assistance though we are sensible that the two positions may not, otherwise, be comparable. A Court of Reference under Section 18 does not sit in appeal over an award under Section 11. The proceedings before the Land Acquisition Officer are not ipso facto a part of the record in the reference. The Court of Reference does not have the power to set aside the award and remit the award to the Land Acquisition Officer for a fresh determination”.
7. In these circumstances, the matter is remitted back to the Labour
Court for leading evidence on merits by the Corporation. Parties are
directed to appear before the Labour Court on 26-11-2001 without wait
ing for any notice, whatsoever. The Counsels are requested to inform
their clients with regard to the postings of the case. In the event of the
failure of the management to lead evidence in terms of this order, the
Labour Court may decide and grant relief in accordance with law in this
case. The reinstatement is subject to the final orders of the Labour.
Court. No costs.