ORDER
T. Meenakumari, J.
1. In this writ petition, the petitioner Management has chosen to question the award passed in I.D. No. 404 of 1988, dated October 1, 1991 on the file of the first respondent-Labour Court, Madras.
2. The second respondent was engaged as a sales assistant in Kamadhenu Co-operative Super Market and he was posted to work at the other branches of the petitioner-Society and was paid a salary of Rs. 472 per month. A memo dated June 15, 1983 was issued to the second respondent for his having caused the stock deficit to the tune of Rs. 22,409.96 as on May 31, 1983. By his explanation dated June 29, 1983, the petitioner has stated that since he was not in a position to make good the shortage amount, the same may be recovered from his salary.
3. On July 29, 1983, the petitioner-Society ordered for an enquiry and the second respondent participated in the enquiry and exhibits were marked. Before the Enquiry Officer, the second respondent seems to have admitted his guilt. The Enquiry Officer has submitted his report. Basing on the findings of the Enquiry Officer, the second showcause notice has been issued on the second respondent on February 17, 1984 to showcause as to why he could not be dismissed from service. However, the second respondent in his reply stated that still recovery of Rs. 150 is being done from the salary for the past four years. Having not satisfied with his explanation, the second respondent was dismissed from service on March 26, 1984.
4. The dispute was raised by the second respondent herein seeking reinstatement. The matter has been adjudicated by the Labour Court. The main contention on behalf of the second respondent is that the enquiry held by the petitioner-Management was not in conformity with by-laws of the society and he has been denied reasonable opportunity to contest his case. He has contended the other grounds also.
5. It is stated in the affidavit filed in support of the writ petition that the petitioner-Management has prayed the first respondent that the validity of the domestic enquiry may be adjudicated as preliminary issue and in case it comes to the conclusion that the enquiry is held to be invalid, the petitioner-Management may be given an opportunity to let in evidence afresh to establish the charge.
6. It is also stated in the affidavit that the file relating to conciliation of the above dispute was marked as Ex.M-1 through M.W. 1 and the second respondent was examined as W.W. 1. The main contention of the petitioner is that the Labour Court has not chosen to frame the preliminary issue to find out whether the domestic enquiry was conducted properly and in case it is held that the domestic enquiry was invalid, the petitioner-Management should be given an opportunity to let in evidence to prove the charges.
7. Learned counsel for the petitioner has argued that in the counter statement filed by the petitioner-Management before the first respondent-Labour Court, it is prayed that in view of the challenge to the domestic enquiry held by the petitioner, an opportunity may be afforded to the Management to adduce evidence afresh and establish the charge.
8. Learned counsel for the petitioner has further argued that the Labour Court, without framing the preliminary issue as to whether the enquiry conducted is valid or not, has proceeded to decide the matter on merits. He has further argued that the Labour Court has given a categorical finding that domestic enquiry was not conducted properly and when the domestic enquiry was not conducted properly, it is not proper to dismiss the order of dismissal. In such event, the Labour Court should have given an opportunity to the management to adduce additional evidence to prove the charge. In support of his contention, learned counsel for the petitioner relied on a decision reported in Cooper Engineering Ltd. v. P.P. Mundhe, .
9. Learned counsel for the petitioner also relied upon an un-reported judgment in W.P.No. 1295 of 1999, dated September 23, 1999 of this Court. Learned counsel for the second respondent has argued that the Labour Court has got ample power to decide the matter on merits ignoring the proceedings of the domestic enquiry. He has further argued that the claim was not made in the counter statement. The Management has now come forward with an application seeking an opportunity to let in evidence before the Tribunal. Learned counsel has further argued, that the petitioner- Management has never requested the Tribunal to try the validity of the domestic enquiry on the preliminary issue either by way of an application or in the counter claim.
10. Learned counsel for the second respondent has further argued that even though they have stated that the management may be afforded an opportunity to adduce evidence afresh in view of the challenge to the domestic enquiry they have not come forward with an application to try the validity of the domestic enquiry as a preliminary issue. He has also argued that in the absence of the request made by the petitioner-Management, there is no duty cast, in law for the Tribunal to try it as a preliminary issue.
11. In this case, the Management has marked conciliation proceedings as Ex.M-1 through M.W. 1 before the Labour Court. The second respondent has examined himself as W.W. 1. On the Management side, M.W. 1 was examined and Exs.M-1 to M-4 were marked. It has been accepted by M.W. 1 that only the persons who have completed S.S.L.C. can be appointed as Accountant. The second respondent has studied only 6th standard and he cannot be appointed as Accountant. The job of the second respondent is to pack the goods and to give the same to the consumers.
12. Learned counsel for the second respondent argued that as per special bye-law 11-C, the second respondent, can take the assistance of co-employee during the domestic enquiry and the Enquiry Officer did not afford an opportunity to the second respondent to have the assistance of co-employee during the domestic enquiry. There was a variation in the amount relating to the stock deficiency. On the basis of the enquiry report, the second respondent was dismissed on March 26, 1984. The evidence on behalf of the respondents was that the stock deficiency can be adjusted from his salary. Learned counsel has argued that the Labour Court was right in concluding that the domestic enquiry was not conducted properly and the Management was not right in dismissing the second respondent on the basis of the findings of the Enquiry Officer.
13. In this case, it is not in dispute that the Management has marked conciliation proceedings as Ex.M-1. But at any point of time, they have not chosen to ask the Labour Court to try the validity of the domestic enquiry as a preliminary issue. In paragraph 13 of the counter statement, it is stated as follows:
“The respondent submits that misappropriation of the stock by the petitioner is a serious misconduct warranting the punishment of dismissal and in a society as that of the respondent which deals in distribution of essential commodities it is unsafe to retain the petitioner in service. However in view of the challenge to the domestic enquiry by the petitioner, it is prayed that this Hon’ble Court may be pleased to afford an opportunity to the respondent to adduce evidence afresh and establish the charge in the light of the judgment of the Supreme Court reported in Cooper Engineering case (supra) .”
14. In the above context, it has to be seen that at no point of time, the Management has requested the Labour Court to try the validity of the enquiry report as a preliminary issue. In this case, it has to be seen in Shri Shambu Nath Goyal v. Bank of Baroda and Ors., wherein the Supreme Court has held as follows at p. 425 of LLJ:
“15. If an application is made during the pendency of the proceedings it does not mean that some independent right to make an application at any time is conferred on the employer. If a separate application is made, it would be open to the Labour Court/ Industrial Tribunal to examine the question whether it should be granted or not depending upon the stage when it is made, the omission to claim the relief in the initial pleading, the delay and the motivation for such delayed action”.
The Supreme Court has also held that the observation was not made to lay down a proposition of law that as and when it suits the convenience of the employer at any stage of the proceedings, it may make an application seeking such opportunity and the Labour Court/Industrial Tribunal was obliged to grant the same. If the request is made before the proceedings are concluded, the Labour Court/Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. If such a pleading is raised and an opportunity is sought, it is to be given, but if there is no such pleading either in the original application or in the statement of claim or written statement or by way of an application during the pendency of the proceedings, there is no duty cast in law or by the rules of justice, reason and fair play that a quasi-judicial Tribunal like the Industrial Tribunal or the Labour Court should adopt an advisory role by informing the employer of its rights.
15. In this case also, the Labour Court has decided the matter on merits relying upon the evidence adduced on both sides and as held by the Apex Court in Neeta Kaplish v. Presiding Officer, Labour Court and Anr.,, which is as follows:
“Even though the Management refused to avail opportunity to lead evidence to justify dismissal of workman and the workman did not lead any evidence since the Management did not lead evidence to justify dismissal on merits, the jurisdiction of the Labour Court or Tribunal to itself decide merits on fresh evidence remains unaltered even after introduction of Section 11-A of the Industrial Disputes Act. …The tribunal had not only power to set aside the order of dismissal and direct reinstatement but also power to award lesser punishment under Section 11-A. The proceedings of defective domestic enquiry would not constitute “Fresh Evidence” and “Material on Record”… The defective enquiry proceedings had to be ignored altogether and the workman is entitled to relief as claimed.”
16. In this case, the petitioner-management has never come forward with an application during the pendency of the proceedings that the validity of the enquiry has to be tried as a preliminary issue and in case the enquiry is held to be bad, he has to adduce evidence afresh. In the absence of such application, there is no duty cast in law or the rules of justice, the tribunal should adopt an advisory role by informing the petitioner of its rights.
17. Following the judgments reported in Shambu Nath Goyal v. Bank of Baroda (supra), and Neeta Kaplish v. Presiding Officer, Labour Court (supra), it has to be held that the Labour Court has decided the matter on merits and hence I see no ground to interfere with the award in I.D. No. 404 of 1988 dated October 1, 1991. Accordingly the writ petition is dismissed. Consequently, the connected W.M.Ps. are also dismissed. No costs.