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PETITIONER: SHANKAR CHAKRAVARTI

       Vs.

RESPONDENT: BRITANNIA BISCUIT CO.LTD. & ANR.

DATE OF JUDGMENT04/05/1979

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KRISHNAIYER, V.R. KOSHAL, A.D.

CITATION:  1979 AIR 1652            1979 SCR  (3)1165  1979 SCC  (3) 371  CITATOR INFO :  E          1984 SC 289  (1,2,15)  R          1984 SC1696  (8)  F          1984 SC1805  (7)

ACT:      Industrial Dispute  Act, 1947, Section 33(2)(b)-Whether the Industrial  Tribunal, not  deciding the  validity of the enquiry against a workman but adjudicating preliminary issue that the  enquiry was  in accordance  with the principles of natural justice,  should necessarily given an opportunity to the employer  to adduce  further  evidence  as  to  charges, irrespective  of  the  fact  whether  such  opportunity  was sought.

HEADNOTE:      In the  ex parte departmental enquiry conducted against the appellant  who was  under detention under the Prevention of Violence  Act, 1970  the Enquiry officer held the alleged charges proved and on the report of the enquiry officer, the management of  the Ist  respondent  company  terminated  the services of  the appellant and gave one month’s wage in lieu of notice.  Since an  industrial dispute  was  then  pending before the  Tribunal, an  application was made under section 33(2)(b)  of  the  Industrial  Disputes  Act,  1947  seeking approval of  the Industrial  Tribunal to  the action  of the management terminating  the services  of the appellant. On a notice issued  by the Tribunal to the appellant in the Jail, he submitted  his written statement. The Tribunal was of the opinion that  the enquiry  was conducted in violation of the principles  of   natural   justice   and   hence   vitiated. Accordingly by  its Award  dated 1  5th September  1973, the Tribunal rejected the application for approval of the action terminating service of the appellant made by the Company.      The Writ  Petition preferred by the Company against the said Award  was dismissed  and the  decision of the Tribunal was upheld.      In the  Letters Patent  Appeal No.  80/74, preferred by the Company,  a Division  Bench of  the Calcutta  High Court held that after the Industrial Tribunal adjudicated upon the preliminary issue whether the enquiry was in accordance with the principles  of natural  justice and  having held against

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the company it was incumbent upon the Industrial Tribunal to give an  opportunity to  the employer  to lead  evidence  to prove the  charges alleged  against the  workman and  as the issue about the validity of the enquiry was not decided as a preliminary issue and as thereafter no opportunity was given to tho  employer it  would be necessary to remand the matter to the  Industrial Tribunal for giving an opportunity to the employer for  further  evidence,  if  so  advised  and  then finally dispose  of the  application made  by  the  employer under section  33(2) (b)  of the  Industrial  Disputes  Act. 1947.      Allowing the appeal by special leave, the Court ^      HELD: l.  Both on  precedent and  on principle,  it  is undeniable that  there is  no duty  cast on  the  Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 1166 or under  Section, 33  to call  upon the  employer to adduce additional evidence to substantiate the charge of misconduct by giving  some specific  opportunity after  decision on the preliminary issue whether the domestic enquiry was all held, or if  held, was  defective in favour of the workman. Cooper Engineering  Ltd.   case  is   not  an   authority  for  the proposition that  every ease  coming before the Labour Court or Industrial Tribunal under Section 10 or Section 33 of the Act complaining  about the  punitive termination  of service following a domestic enquiry that the Court or Tribunal as a matter of  law must frame a preliminary issue and proceed to decide the  validity or  otherwise of  the enquiry  and then serve a  fresh notice  on the  employer  to  adduce  further evidence to  sustain tho  charges if  it so  chooses to  do. Cooper  Engineering  Ltd.  ease  [1976]  1  SCR  361  merely specifies the  stage at  which such  an opportunity is to be given, if sought. 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  a specific  request. If such an opportunity is sought in the  course of proceeding, the Industrial Tribunal or the Labour  Court,   as  the  case  may  be,  should  grant  the opportunity to  lead additional evidence to substantiate the charges. But  if no  such opportunity is sought nor there is any pleading  to that  effect no  duty is cast on the Labour Court or  the Industrial  Tribunal suo motu to call upon the employer to  adduce additional  evidence to substantiate the charges. [1192B-E]      In the  present case,  there was  neither a pleading in which any  such claim  for adducing  additional evidence was made,  nor  any  request  was  made  before  the  Industrial Tribunal till  the proceedings were adjourned for making the Award ar  d till the Award was made. The case squarely falls within the  ratio of Delhi Cloth & General Mills Co., [1972] 3 SCR 29 which laid to lest the ghost of any obligatory duty cast on  a quasi-judicial  authority viz.  Labour  Court  or Industrial Tribunal  to notify  one of  the parties  to  the proceedings before  it, what  it should  do or  what are its rights and  by what procedure it should prove its case, even when the  party is a well entrenched ’employer ably assisted by the  best  available  talent  in  the  legal  profession. Therefore, the  Division Bench of the High Court was clearly in error  in granting  such a  non-sought opportunity at the stage of the Letters Patent Appeal. [1183G-H, 1192F-G]      2. Precedents  make  it  clear  that  a  quasi-judicial Tribunal is  under no  such obligation  to acquaint  parties

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appearing before  it  about  their  rights  more  so  in  an adversary system  which these  quasi-judicial Tribunals have adopted. Therefore,  it is  crystal clear  that  the  rights which the  employer has in law to adduce additional evidence in a  proceeding  before  the  Labour  Court  or  Industrial Tribunal either  under Section  10 or  Section 33 of the Act questioning  the  legality  of  the  order  terminating  the service must  be availed  of by  the employer  by  making  a proper request  at the  time when  it files its statement of claim or  written statement  or makes an application seeking either permission  to  take  a  certain  action  or  seeking approval of  the action  taken by  it. If  such a request is made in  the statement  of  claim,  application  or  written statement, the  Labour Court or the Industrial Tribunal must give such  an opportunity. If the request is made before the proceedings  are   concluded,  the   Labour  Court   or  the Industrial Tribunal  should ordinarily grant the opportunity to adduce  evidence. But  if no  such request is made at any stage of  the proceeding there is no duty in law cast on the Labour Court  or the  Industrial Tribunal.  to give such a l opportunity and if there is no such obligatory duty in law, 1167 failure to  give any  such opportunity  cannot and would not vitiate the proceedings. [1188D-H]      Bharat Sugar  Mills Ltd.  v. Sri  Jai Singh  and  Ors., [1962] 3  SCR 684;  Management of  Ritz Theatres (P) Ltd. v. Its Workmen,  [1963] 3  SCR 461;  Workmen of  Motipur  Sugar Factory (P) Ltd. v. Motipur Sugar Factory. [1965] 3 SCR 588; State Bank  of India  v. R.  K. Jain  and ors., [1972] 1 SCR 755; Delhi  Cloth &  General Mills  Co. v.  Ludh Budh  Singh [1972] 3  SCR 29;  Workmen of M/s. Firestone Tyre and Rubber Company of  India (P) Ltd. v., Management and ors., [1973] 3 SCR 587;  Cooper Engineering  Ltd. v. P. P. Mundhe, [1976] 1 SCR 361; explained.      3. The  challenge to  penar termination of service of a workman by the employer whose undertaking is governed by the Industrial Disputes  Act is  likely to  come before a Labour Court  or  Industrial  Tribunal  or  National  Tribunal  for adjudication either  by way  of a reference under Section 10 or by way of an application by the employer under Section 33 Preceding  domestic   enquiry  is   implicit  in   both  the situations. Where  a workman  is  accused  of  misconduct  a domestic enquiry  has to  be held  against him in accordance with  the   provisions  contained  in  the  Standing  orders governing the  industrial establishment or in the absence of such Standing  order in  accordance with  the principles  of natural justice.  After such  a domestic  enquiry is held it would be  open to the employer to impose a penalty including one of  termination of  service howsoever  styled. If it the time of  imposition of  penalty no  other industrial dispute between the  employer aud  its workman as comprehended by s. 33 is  pending before  any of  the authorities  mentioned in that section it would be open to the workman to approach the appropriate  Government   to  refer  he  industrial  dispute arising out  of termination of his service to an appropriate authority under  the Act.  But if  at the  relevant  time  a situation obtains  such as is comprehended by s. 33, namely, pendency or  a conciliation proceeding before a conciliation officer or a board or of any proceeding before an arbitrator or a  Labour Court  or  Tribunal  or  National  Tribunal  in respect of an industrial dispute touching the workman of the employer, the  employer before his order terminating service of the  workman becomes  effective has. to seek either prior permission or subsequent approval of the action, as the case may be, under s. 33 [1172D-H]

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    When the  dispute comes  before the Industrial Tribunal by way  of a  reference under  s. 10  it  is  the  aggrieved workman  who  has  sought  adjudication  of  the  industrial dispute arising  from the  termination of  his service. When the matter  comes before  the appropriate authority under s. 33 it  is the  employer who  has  moved  for  permission  or approval of its intended action.[1173A-B]      Where the  reference is  at the  instance of  a workman under s. 10 the Tribunal would call upon the workman to file his statement  of claim and thereafter the employer would be called upon  to file  its written statement. Rule 10B of the Industrial Disputes  (Central) Rules.,  1957  provides  that within two  weeks of  the date  of receipt  of the  order of reference, the  party representing  workmen and the employer involved in  the  dispute  shall  file  with  the  concerned authority a statement of demands relating only to the issues an are  included in  the order  of reference  and shall also forward a copy of such statement to each one of the opposite parties involved  in tho  said dispute.  similarly, when the employer seeks  permission for taking the intended action or seeks approval  of the action taken by it under s. 33 it has to make an 1168 application as  provided by rule 60 in either Form J or K as the case  may be.  Both the forms require that the necessity for and circumstances, in which the proposed action is taken or is  intended to be taken must be clearly and specifically set out  and either  express  permission  should  be  sought before taking  the intended  action or  an approval  of  the already taken action must be sought. [1173B-E]      4. The  Labour Court  or Industrial  Tribunal to  which either a  reference under Section 10 or an application under Section 33  for permission  to take  an intended  action  or approval of  an action  already  taken  is  made,  would  be exercising quasi-judicial  powers, which  would imply that 3 certain content of the judicial power of the State is vested in it and it is called upon to exercise it. [1189A-B]      Bharat Bank  Ltd: v.  Employees  of  Bharat  Bank  Ltd, [1950] SCR 459; referred to.      5. A  quasi-judicial decision  presupposes an  existing dispute  between   two  or   more   parties   and   involves presentation of their case by the parties to the dispute and if the  dispute between  them is  a question  of  fact,  the ascertainment of  the fact  by means  of evidence adduced by the parties  to the dispute and often with the assistance of arguments by  or on  behalf of  the parties on the evidence. Parties are  arrayed before  these quasi judicial Tribunals. either upon  a reference under s. 10 or s. 33. There is thus a lis  between the  parties. There  would be  assertion  and denial of  facts on  either side. With the permission of the Tribunal and  consent of  the  opposite  side,  parties  are entitled to appear through legal practitioners. before these quasi-judicial  Tribunals.   The  system  adopted  by  these Tribunals is  an adversary  system, a  word as understood in contra-distinction to inquisitorial system. The Labour Court or Tribunal has to decide the lis between the parties on the evidence adduced  before it.  While it may not be hide bound by  the   rules  prescribed   in  the  Evidence  Act  it  is nonetheless  a   quasi-judicial   Tribunal   proceeding   to adjudicate upon  a lis between the parties arrayed before it and must  decide the  matter on the evidence produced by the parties before  it. It would not be open to it to decide the lis on  any extraneous  consideration. Justice,  equity  and good conscience will inform its adjudication. Therefore, the Labour  Court   or  the  Industrial  Tribunal  has  all  the

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trappings of a Court. [1189B-D, 1190C-E]      If such  be the  duties and functions of the Industrial Tribunal or  the Labour Court, any party appearing before it must make  claim or  demur the  claim of  the other side and when there  is n  burden upon  it to  prove or establish the fact so  as to  invite a  decision in  its favour, it has to lead evidence. [1190E-F]      Cooper v.  Wilson,  [1937]  2  K.B.  309;  quoted  with approval.      M/s.Dalmia Dadri  Cement Ltd.  v. Its  Workmen,  [1970] Labour and Industrial Cases 350; referred to.      6. The  quasi-judicial  Tribunal  is  not  required  to advise the  party either  about its rights or what it should do or  omit to  do. Obligation to lead evidence to establish an allegation  made by  a party  is on  the party making the allegation. The  test would be who would fail if no evidence is led.  It must  seek  an  opportunity  to  lead  evidence. Allegation which  is not  pleaded, even if there is evidence in support  of it, cannot be examined because the other side has not  notice of it and if entertained it would tantamount to granting an unfair 1169 advantage to the first mentioned party. The pleadings before such Tribunals  have  not  to  be  read  strictly,  but  the pleadings must  be such  as to give sufficient notice to the other party of the case it is called upon to meet. The rules of fair  play demand  that where  a party  weeks establish a contention which  if proved  would  be  sufficient  to  deny relief to  the opposite  side, such  a contention has, to be specifically pleaded  and then  proved. But  if there  is no pleading there  is no question of proving something which is not pleaded. [1190 FH,1191 AB]      This  elementary   principle  does   inform  industrial adjudication. If  an application  is made  by  the  employer under Section  33, as  it is  required to  be  made  in  the prescribed form  all facts  are required to be pleaded. If a relief is  asked for  in the  alternative  that  has  to  be pleaded. In  an application  under s. 33 the employer has to plead that  a domestic enquiry has been held and it is legal and valid.  In the  alternative it  must plead  that if  the Labour Court or Industrial Tribunal comer, to the conclusion that either  there was  no  enquiry  or  the  one  held  was defective,   the   employer   would   adduce   evidence   to substantiate the  charges of  misconduct alleged against the workman. Now, if no such pleading in put forth either at the initial stage  or during  the pendency  of  the  proceedings there arises  no question  of a sort of advisory role of the Labour Court  or the  Industrial Tribunal  unintended by the Act to advise the employer, a party much better off than the workman, lo inform it about its rights, namely, the right to lead additional  evidence and then give an opportunity which never sought.  This runs  counter to the grain of industrial jurisprudence. Undoubtedly  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 by  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, namely, the right to adduce  additional evidence  to substantiate  the charges when it  failed to  make good the domestic enquiry ,and then to give  an opportunity to it to adduce additional evidence. This, apart from being unfair to the workman, is against the

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principles of rules governing the procedure to be adopted by quasi judicial  Tribunal, against  the  grain  of  adversary system and  against the principles governing the decision of a lis  between the  parties arrayed  before a quasi judicial Tribunal.      Tin Printers  (P) Ltd. v. Industrial Tribunal, 1967 LLJ 677 @ 680; approved.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1168 of 1978      Appeal by  Special Leave  from the  Judgment and  order dated 22-4-1976  of the  Calcutta High  Court in  Appeal No. 80/74.      P. Das Gupta and Mrs. L. Arvind for the Appellant.      V. M.  Tarkunde, Anand  Prakash, P.  H. Parekh,  C.  B. Singh,  Mukul   Mudgal  and   Mrs.  Anand  Prakash  for  the Respondent. 1170      The Judgment of the Court was delivered by      DESAI, J. The hollow plea of the employer of an alleged denial of an opportunity (never claimed‘ at any stage except in  Letters   Patent  Appeal)  to  substantiate  an  alleged misconduct of  the workman  by  evidence  aliunde  has  been responsible  for  dragging  a  tiny  dispute  rendering  the workmen jobless  for an unusually long period of more than 7 years to this apex court.      Facts now  beyond the  pale of  controversy are few and may be  briefly stated.  Appellant pined  service  with  the first respondent  company (’company’  for short)  in  August 1963 and  was confirmed  in  March  1964.  In  October  1970 appellant was  drawing a  composite salary  of Rs. 180/-. An industrial dispute  touching the  workman d  the company was pending before  the  Industrial  Tribunal,  given  the  even leading to  the present appeal occurred. On 1st October 1970 around 5  p.m. appellant  is alleged to have hoisted two red flags  atop   the  Branch   office  building  simultaneously shouting  inflammatory   slogans.  He  is  alleged  to  have threatened the shift Manager Shri Manik Mukherjee who was on duty at  the relevant time. The incident reported to police. Respondent employer  felt  aggrieved  by  such  indiscipline exhibited  by   the  appellant   and  decided   to  hold   a disciplinary enquiry,  as a  first  step  towards  which,  a charge sheet  dated Ist  October 1970  was served  upon  the appellant calling  upon him to submit his explanation within three days  from the  receipt of  the charge  sheet. In  the meantime  on  3rd  October  1970  first  respondent  company declared a  lock out. Appellant submitted his explanation on 18th October  197 denying  all the  charges and  complaining that as  he is  a trade union leader he is being singled out for victimisation. On the same day appellant was arrested by police and  some criminal  case was  lodged against  him  in which he  was discharged  by the  Magistrate on 2nd December 1970. Somehow  or the  other the  Management did not proceed with the  enquiry till  as late  as 30th June‘ 1971 when the appellant was  informed that  the enquiry  would be  held on July 8,  1971. In  the meantime  the appellant  was detained under the  Prevention of Violence Act, 1970, with the result that when  he received  the intimation  of the date on which the enquiry  was to be held, he informed the company that as he is  in detention  he would  not be  able  to  attend  the enquiry and  sought an  adjournment. Adjournment  appears to have been  granted but  a fresh  notice was  served upon the

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appellant in the Jail intimating to him to appear before the enquiry officer  on 15th September 1971 but as the appellant 16  still   in  detention,   he  could  not  avail  of  this opportunity. Consequently on 16th September 1971 the enquiry proceeded ex parte. Enquiry officer held the charges 1171 proved  and  on  the  report  of  the  enquiry  officer  the management of  the first  respondent company  terminated the service of  the appellant and gave one month’s wages in lieu of notice.  Since an  industrial dispute between the workmen of the  company and  the company was then pending before the Industrial Tribunal,  an application  was made under section 33 (2)  (b) of  the Industrial Disputes Act, 1947 (’Act’ for short) seeking  approval of  the Industrial  Tribunal to the action  of   the  management   terminating  service  of  the appellant. This  case came  to be  registered  as  Case  No. 128/71  under   s.  33(2)(b)  of  the  Act  before  the  III Industrial Tribunal, West Bengal.      on a notice issued by the Industrial Tribunal appellant was produced  before the  Tribunal from the Jail custody and he  submitted  his  written  statement.  The  Tribunal  then proceeded to  adjudicate upon  the dispute. The Tribunal was of the  opinion that  the enquiry was conducted in violation of the  principles of  natural justice  and hence  vitiated. Accordingly, by  its Award  dated 15th  September 1973,  the Tribunal rejected the application for approval of the action terminating the service of the appellant made by the company and declined to grant approval.      The company  preferred a  Writ Petition  under Articles 226 and  227 of  the  Constitution  to  the  High  Court  of Calcutta. The  learned single Judge of the High Court before whom the  writ petition  came up  for hearing  dismissed the petition observing  that the  enquiry was not held according to  the   principles  of   natural  justice  and  the  order terminating the  service made  in such an enquiry is invalid and of  no effect  and the  Industrial  Tribunal  was  fully justified in  declining to grant approval of such an action. It may  specifically be  mentioned that  no  contention  was raised  before   the  learned   single  Judge   that  no  F‘ opportunity was  afforded to the first respondent company to lead evidence in proof of charges after the domestic enquiry was found to be defective.      The company  preferred Letters Patent Appeal No. 80/74. A Division  Bench of the Calcutta High Court held that after the Industrial  Tribunal adjudicated  upon  the  preliminary issue  whether  the  enquiry  was  in  accordance  with  the principles of  natural justice  and having  held against the company it  was incumbent  upon the  Industrial Tribunal  to have an  opportunity to  the employer  to lead  evidence  to prove the  charges alleged  against the  workman and  as the issue about the validity of the enquiry was not decided as a preliminary issue and as thereafter no opportunity was given to the  employer it  would be necessary to remand the matter to the Industrial Tribunal for giving 1172 an opportunity  to the  employer to adduce further evidence, if  so   advised,  and   then  to  finally  dispose  of  the application made by the employer under s. 33 (2) (b) .      The present  appeal by  special leave  is filed  by the aggrieved work  man. While granting leave this Court limited it to  the question  as to  whether the  principle in Cooper Engineering Ltd.  v. P. P. Mundhe,(1) applies to a situation where the management seeks approval of an order of dismissal under  s.   33(2)(b)   of   the   Act.   That   necessitates ascertainment of  the principle  enunciated by this Court in

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Cooper Engineering Ltd. case.      Before the contention raised in this appeal is adverted to, the  limited nature  of the  controversy must  be put in focus to avoid deviation from the central issue.      The challenge  to penal  termination of  service  of  a workman by the employer whose undertaking is governed by the Act is  likely to  come before  a Labour Court or Industrial Tribunal or National Tribunal for adjudication either by way of a  reference under  s. 10 or by was. Of an application by the employer  under s.  33. Preceding  domestic  enquiry  is implicit in  both the situations. Where a workman is accused of mis conduct a domestic enquiry has to be held against him in accordance  with the provisions contained in the Standing orders governing  the industrial  establishment  or  in  the absence of  such Standing  orders  in  accordance  with  the principles of natural justice. After such a domestic enquiry is held it would be open to the employer to impose a penalty including one of termination of service howsoever styled. If at that  time of  imposition of  penalty no other industrial dispute between the employer and its workmen as comprehended by s.  33 is pending before any of the authorities mentioned in that  section it would be open to the workman to approach the appropriate  Government to  refer the industrial dispute arising out  of termination of his service to an appropriate authority under  the Act.  But if  at the  relevant  time  a situation obtains  such as is comprehended by s. 33, namely, pendency of  a conciliation proceeding before a conciliation officer or  a Board or d any proceeding before an arbitrator or a  Labour Court  or  Tribunal  or  National  Tribunal  in respect of an industrial dispute touching the workmen of the employer, the  employer before his order terminating service of the  workman becomes  effective has  to seek either prior permission or subsequent approval of the action, as the case may be, under s. 33. (1) [1976] I S. C. R. 361. 1173      When the  dispute comes  before the Industrial Tribunal by way  of a  reference under  s. 10  it  is  the  aggrieved workman  who  has  sought  adjudication  of  the  industrial dispute arising  from the  termination of  his service. When the matter  comes before  the appropriate authority under s. 33 it  is the  employer who  has  moved  for  permission  or approval of its intended action.      Where the  reference is  at the  instance of  a workman under s.  10 the  Tribunal would  call upon  the workman  to fire‘ his  statement of  claim and  thereafter the  employer would be called upon to file its written statement. Rule 10B of the  Industrial Disputes  (Central) Rules,  1957 provides that within two weeks of the date of receipt of the order of reference, the  party representing  workmen and the employer involved in  the  dispute  shall  file  with  the  concerned authority a statement of demands relating only to the issues as are  included in  the order  of reference  and shall also forward a copy of such statement to each one of the opposite parties involved  in the  said dispute. Similarly,, when the employer seeks  permission for taking the intended action or seeks approval  of the action taken by it under s. 33 it has to make an application as provided by rule 60 in either Form J or  K as  the case may be. Both the forms require that the necessity for and circumstances in which the proposed action is taken  or is  intended to  be taken  must be  clearly and specifically set out and either express permission should be sought before  taking the  intended action or an approval of the already taken action must be sought.      The matter  in this  case came before the Tribunal upon

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an application  made by  the  company  under  s.  32(2)  (b) seeking approval  of its  action terminating  service of the appellant. A copy of the application is not put on record of this appeal.  However, it  was stated at the Bar that in the application charges preferred against the appellant were set out. The fact that an enquiry and upon the findings recorded in the enquiry, order terminating the service of the workman was passed  was also  being set  out in the application. The Tribunal was  called upon  to accord  its  approval  to  the action. The  appellant  appeared  before  the  Tribunal  and contested this application totally denying the charges.      It  must   be  specifically   noticed  that  the  first respondent company  in its  application seeking  approval of its action  has set  out  in  its  application  the  charges preferred by  it and the domestic enquiry held in respect of the charges.  A prayer  was made in the application that its action it  terminating service of the appellant be approved. No where  in this  application either in express terms or by implication it was averred that 1174 in the  event the  Tribunal comes to the conclusion that the enquiry was  defective the employer first respondent company proposes to  offer evidence  for substantiating the charges. Neither such an averment was made in the application made to the Industrial  Tribunal but  till the  Industrial  Tribunal concluded its  proceedings by  saying that the matter is set down for  making the  Award any  oral or written application was made  on behalf  of the  company that over and above the record of  enquiry it  proposed  to  lead  evidence  in  its possession in  respect of  the charges  to substantiate  the same to  the satisfaction  of the Tribunal. Not only no such request was  made at  any time  before the award was made by the Industrial  Tribunal but  no such  contention appears to have been  taken before  the learned  single  Judge  of  the Calcutta High  Court in  Writ Petition  filed by the company questioning the  validity and  correctness of the Award made by the Industrial Tribunal declining to grant approval. Such an opportunity  was sought  for the  first time  before  the appellate Bench of the Calcutta High Court at the hearing of the Letters Patent Appeal preferred by the company.      Mr.  Tarkunde,   learned  counsel   for   the   company formulated his  contention thus:  When an industrial dispute touching the punitive termination of service of a workman is brought before  the Labour Court or the Industrial Tribunal, either under  s. 10 or s. 33 of the Act, irrespective of the fact whether  the employer  has made  any express or implied request in  its application  or in the course of proceedings either orally  or  in  writing,  the  Labour  Court  or  the Industrial Tribunal  must as  an obligation  in law  at  the initial stage of the proceeding frame a preliminary issue as to whether  the domestic  enquiry was  in fact  held and  if held, was  in accordance  with the  Standing orders  or  the principles  of   natural  justice   or  was  in  any  manner defective. If this issue, urged Mr. Tarkunde, is answered in favour  of   the  workman   and  against   the  employer,  a preliminary finding  to that  effect should  be recorded and then notwithstanding the fact that the employer has not made any request  in its original application or in the course of proceedings  before   the  Tribunal   it  is  the  duty  and obligation of  the Tribunal  to call  upon the  employer  by giving it  a specific  opportunity to lead evidence if it so chooses to  do to substantiate the charges preferred against the workman.  Failure to  give such an opportunity either on request of  the employer  or suo  motu by  the Tribunal, the proceedings would  be vitiated.  According to  Mr.  Tarkunde

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this proposition  is no more res integra and is concluded by the decision  of this  Court in Cooper Engineering Ltd. case (supra).      As this  contention was  sought to  be substantiated on some of  the  cases  decided  by  this  Court  it  would  be advantageous to  examine the  proposition first on precedent and then, if it is open, on principle. 1175      In Bharat Sugar Mills Ltd. v. Shri Jai Singh & ors.,(l) the matter  A came before this Court questioning an Award of the Industrial  Tribunal by  which the  Tribunal declined to grant permission  under s.  33  except  in  respect  of  one workman holding that the domestic enquiry was not proper and that the  employer was  guilty  of  mala  fide  conduct  and victimisation. Before  this Court the workman contended that once the  domestic enquiry  was found  to be  improper,  the Tribunal had  to dismiss  the application  and it  could not take independent evidence and arrive at a finding of its own as to  the guilt  of the  workman. It  may be mentioned that there was  no preliminary  issue framed  in this case by the Tribunal about the validity of the enquiry. Yet the employer had adduced evidence to substantiate the charges against the workman simultaneously  relying upon  the papers of domestic enquiry. Negativing  this contention  of  the  workman  this Court observed as under.           "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. But the mere      fact that  no enquiry has been held or that the enquiry      has not  been properly  conducted  cannot  absolve  the      Tribunal of  its duty  to decide  whether the case that      the workman  has been  guilty of the alleged misconduct      has been  made out.  The proper way for performing this      duty where  there has  not been a proper enquiry by the      management is for the Tribunal to take evidence of both      sides in  respect of the alleged mis conduct. When such      evidence is  adduced before the Tribunal the management      is deprived  of the  benefit of  having the findings of      the domestic  tribunal being accepted ,‘ as prima facie      proof of  the alleged  misconduct unless the finding is      perverse and  has to  prove to  the satisfaction of the      Tribunal itself  that the  workman was  guilty  of  the      alleged misconduct.  We do  not think it either just to      the management  or indeed  even  fair  to  the  workman      himself that  in such  a case  the Industrial  Tribunal      should refuse  to take  evidence and  thereby drive the      management to make a further application for permission      after holding a proper enquiry and dep rive the workman      of the  benefit of  the Tribunal itself being satisfied      on evidence adduced before it that he was guilty of the      alleged misconduct". (1) [1962] 3 S. C. R 684. 1176 This question  again surfaced  in Management of Ritz Theatre (P) Ltd.  v. Its  Workmen.(l) The  matter camel  before this Court challenging  an Award  of the  Industrial Tribunal  by which the  Industrial Tribunal  in a  reference under  s. 10 directed reinstatement  of two  workmen who  were  dismissed after holding  a domestic  enquiry against  them.  When  the matter was  before the Tribunal the employer relied not only

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on the  papers of  domestic enquiry  but 11  witnesses  were examined on  behalf of  the employer  and an equal number of witnesses were  examined on  behalf of  the workmen.  In the appeal by  the employer a contention was raised on behalf of the workmen  that once  the employer adduced evidence before the Industrial  Tribunal to substantiate the charges against the workmen, that by itself would amount to a con cession on behalf of  the employer  that the enquiry held by it was not proper or  was defective and, therefore, the employer cannot then rely  upon the  fact that  the enquiry being proper the Tribunal cannot  go into  the merits of the case. Negativing this contention  after referring to Bharat Sugar Mills case, (supra) this  Court expressed an opinion 1) that there is no authority for  the proposition  that whenever  the  employer seeks to  lead additional  evidence before  the Tribunal  in respect of  dismissal of  its employee  it must  necessarily follow that  he has given up his stand based on the previous departmental enquiry and the Tribunal is entitled to examine the dispute  on merits  itself and on the principles of fair play and  justice the proposition is unsound. E: In reaching this conclusion  this Court made some pertinent observations which may be extracted:           "If the  view taken by the Tribunal was held to be      correct,  it  would  lead  to  this  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 (1) [1963] 3 S. C. R. 461. 1177      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".      It may  be noted that in this case evidence was adduced by the  employer before any preliminary finding was recorded on the  validity of  the enquiry.  In fact,  application for adducing additional  evidence as  made by  the employer much before the Tribunal proceeded to examine the validity of the enquiry  and   evidence  was  recorded  before  recording  a preliminary  finding   that  the  enquiry  was  improper  or defective.  The   observations  in  this  case  have  to  be understood in the r contest of the facts found.      In Workmen  of Motipur  Sugar Factory (Private) Ltd. v. Motipur Sugar  Factory(l) the  workmen contended before this Court  that  as  respondent  employer  held  no  enquiry  as required by  the Standing  orders before dispensing with the services of the appellants by way of discharge on the ground

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that the  appellants had  resorted to  go-slow in  the Sugar Factory, the  Tribunal in a reference under s. 10 of the Act was in  error in  holding that  the appellants  had in  fact resorted to go-slow tactics and the respondent was justified in discharging  them E from service. The specific contention raised was  that where  no domes  tic enquiry is held before terminating the  service of  a workman  as required  by  the Standing orders all that the Tribunal was concerned with was to decide whether the discharge of the workman was justified or not  and that  it was no part of the duty of the Tribunal to decide  that there  was go-slow  which would  justify the order of  discharge. Negativing  this contention,  the Court held as under:-           "It is  now well-settled  by a number of decisions      of this Court that where an employer has failed to make      an enquiry  before dismissing  or discharging a workman      it is  open to  him to  justify the  action before  the      tribunal by leading all relevant evidence before it. In      such a  case the  employer would  not have  the benefit      which he  had in  cases where  domestic inquiries  have      been held.  The entire  matter would be open before the      tribunal which  will have  jurisdiction not  only to go      into the  limited questions  open to  a tribunal  where      domes tic  inquiry has  been properly  held (see Indian      Iron & Steel Co. v. Their Workmen, [1958] SCR 667), but      also to (1) [1965] 3 S. C. R. 588. 19- 409 SCI/79 1178      satisfy itself  on the  facts adduced  before it by the      employer  whether   the  dismissal   or  discharge  was      justified. We may in this connection refer to M/s. Sasa      Misa Sugar Works (P) ltd. v. Shobrati Khan [1959] Supp.      SCR 836;  Phulbari Tea  Estate v.  Its Workmen [1960] I      SCR 32;  and the  Punjab National  Bank Limited  v. Its      workmen [1960]  I  SCR  806.  These  three  cases  were      further considered  by this Court in Bharat Sugar Mills      Ltd. v. Shri Jai Singh, [1962] 3 SCR 684, and reference      was also  made to  the decision of the Labour Appellate      Tribunal in  Shri Ram  Swarath Sinha  v. Belaund  Sugar      Co.. (1954)  L.A.C. 697.  It was  pointed out that "the      important effect  of commission  to hold an enquiry was      merely this:  that  the  tribunal  would  not  have  to      consider only  whether there was a prima facie case but      would decide for itself on the evidence adduced whether      the charges have really been made out". It is true that      three of  these cases, except Phulbari Tea Estats case,      were on  applications under  s. 33  of  the  Industrial      Disputes  Act,   1947.  But  in  principle  we  see  no      difference whether the matter comes before the Tribunal      for approval  under s. 33 or on a reference under s. 10      of the  Industrial Disputes  Act, l 947. 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 facts as well that its order      of.  missal  or  discharge  was  proper.  Phulbari  Tea      Estate’s was  on a  reference under s. 10, and the same      principle was  applied there  also, the only difference      being that in that case, there was an enquiry though it      was defective.  A  defective  enquiry  in  our  opinion      stands on  the same footing as no enquiry and in either      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

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    discharge was proper      This Court rejected the contention that as there was no enquiry in  this case  it was  not open  to  the  respondent company to justify the discharge before the Tribunal. It may be noted that in the situation as was disclosed in this case there was  no question  of deciding  a preliminary issue and then giving  an opportunity  to  the  employer  to    adduce additional  evidence   justifying  the  punitive  action  on merits. This  Court went  into the  allegations  of  go-slow tactics resorted to by the workmen as canvassed on behalf of the employer  and agreed  with the  finding of  the Tribunal that the  allegations were proved and accordingly upheld the order of discharge and affirmed the Award. 1179      In State  Bank of  India v.  R. K. Jain & ors.,(1) in a reference made  A by  the Central  Government the Industrial Tribunal held  that  the  respondent  R.  K.  Jain  was  not afforded a  reasonable opportunity  to produce  evidence his defence during  the enquiry an(l that the management was not justified ill  terminating his  service on  the basis of the report of  the enquiry officer. This Award was questioned in an appeal to this Court, inter alia, on the ground that even assuming that the domestic enquiry conducted by the Bank was in any  manner vitiated,  The Tribunal  erred in  law in not giving an  opportunity to  the management to adduce evidence before the  Tribunal to  establish the validity of the order of discharge.  The contention  in terms  raised was that the Tribunal has  first to consider whether the domestic enquiry on the  basis of  which the  order of  termination has  been passed has  been conducted  properly and  bona fide  by  the management and  if it  comes  to  the  conclusion  that  the domestic enquiry is vitiated, it is only then that the stage is set  for giving  an opportunity  lo  the  management  the adduce evidence before the Tribunal the support the order of termination. In  support of  this  contention  reliance  was placed on  the decision  of a  Division Bench  of the Orissa High Court in M/S. Hindustan Steel Ltd. v. their Workman.(1) A contrary  view taken  by the  Madhya Pradesh High Court in Madhya  Pradesh   State  Road   Transport   Corporation   v. Industrial Court, Madhya Pradesh,(3) was also brought to the notice of  the Court.  Attention of the Court was also drawn to a  decision of  a learned  single Judge of the Delhi High Court in  Prem Nath  Motors Workshop Pvt. Ltd. v. Industrial Tribunal Delhi,(4)  which accepted  the view  of the  Madhya Pradesh High Court. The conflict of decisions may be noticed first. The  Orissa High  Court was of the opinion that there was no  obligation in law on the part of the Labour Court to indicate its  mind about  the infirmities  in the enquiry at any stage  before  it  gave  its  findings  and  the  Award. Contrary view expressed by the Madhya Pradesh and Delhi High Courts was  that it  is a healthy practice that after coming to the  conclusion that  the domestic enquiry was not proper the Industrial  Tribunal or  Labour  Court  should  give  an opportunity to  the employer  to produce evidence to satisfy the authority that the action taken by it is justified. Thus this Court  in R.  K. Jain’s  case was clearly seized of the conflict of  opinion and  the controversy raised was whether there was  any obligation  in law on the Industrial Tribunal or the  Labour Court,  notwithstanding that  no such request was made by the employer, to call upon (1) [1972] I S.C.R. 755 (2) (1970) Labour & Industrial Cases, 102. (3) (1970) Labour & Industrial Cases. 510. (4) (1971) T. F. & L. R. 370. 1180

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the employer  to adduce  additional evidence  to sustain the charges after  a formal  preliminary order  is recorded that either there  was no  domes tic  enquiry or the one held was defective. Negativing  this contention  this Court  held  as under:           "It  should  be  remembered  that  when  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  workmen 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 inquiry has been      held preceding  the order  of termination  or there may      have been  no inquiry at all. But the dispute that will      be referred  is not  whether the  domestic inquiry  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   these      circumstances it  is the  right of the workman to plead      all infirmities  in the  domestic inquiry,  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 inquiry 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      inquiry  that   is  conducted  by  the  Tribunal  is  a      composite inquiry  regarding the  order which  is under      challenge. If  the management defends its action solely      on the  basis that  the domestic  inquiry held by it is      proper and  valid and in the Tribunal holds 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 inquiry, 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 inquiry. 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 1181      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".      The Court  also in  terms held  that by  and large this Court was in agreement with the view expressed by the Orissa High Court meaning thereby that no such obligation in law is fastened on  the Labour  Court or the Industrial Tribunal to indicate its  mind about  the  infirmities  in  the  enquiry before it  gave its  finding and  the Award and then calling upon the  employer  to  start  the  next  round  of  leading evidence in  its attempt  to  sustain  the  charges  alleged against the workman.      If the  matter were to rest here, the contention of the appellant must  fail on precedent. But it was urged that the point has  been re-examined  in later  cases to which we may

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now turn.      In Delhi  Cloth  &  General  Mills  Co.  v.  Ludh  Budh Singh,(1) the  appellant company  questioned the correctness of  the   decision  of   the  Industrial  Tribunal  refusing permission to  dismiss the  respondent as he was held guilty of  misconduct  in  a  domestic  enquiry  conducted  by  the appellant. The  question of seeking permission arose because s. 33  was attracted  as an  industrial dispute  between the appellant company  and its  workmen was  then pending before the Industrial  Tribunal. p,  Before the Tribunal pronounced its order  rejecting the application for permission under s. 33, an  application was  made on the day next after the dale on which  the respondent  filed his written statement before the Tribunal  requesting in  clear and unambiguous terms the Tribunal that  in case  the Tribunal  held that  the enquiry conducted by  it  was  defective,  it  should  be  given  an opportunity to  adduce evidence  be- fore  the  Tribunal  to justify  the   action  proposed  to  be  taken  against  the respondent. Neither  party examined  any witness  before the Tribunal.  The  appellant  merely  produced  the  papers  of enquiry.  The  Tribunal  reached  the  conclusion  that  the enquiry proceedings  had  not  been  conducted  against  the respondent in  accordance with  the  principles  of  natural justice and  that  the  findings  recorded  by  the  enquiry officer were  not in  accordance with  the evidence  adduced before him.  In accordance  with these findings the Tribunal concluded that  the appellant  had not  made out  a case for permission for dismissing the respondent and the application was rejected.  It may be noticed that there was no reference to the  application  made  by  the  appellant  for  adducing additional evidence in the order rejecting permission and (1) [1972] 3 S.C. R. 29. 1182 no order  appears to  have  been  made  on  the  application whether it  was granted  or rejected,  Before this Court the appellant contended that the Tribunal was in error in law in not permitting  the appellant  to adduce evidence before it, to justify  the action  proposed to  be  taken  against  the respondent. After  an exhaustive  review  of  the  decisions bearing on  the question  and affirming  the ratio  in R. K. Jain’s  case  (supra)  this  Court  extracted  the  emerging principles from  the review  of decisions. Propositions 4, 5 and 6 would be relevant for the present discussion. They are as under:           "(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  ar; 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 contract 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

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    against the  management and  the latter  leads evidence      before  the   Tribunal,  the   position,   under   such      circumstances, will be, that the management 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 cr  was  not      guilty of the alleged misconduct. 1183           (5). The  management has got a right to attempt to      sustain its  order  by  adducing  independent  evidence      before the  Tribunal. But  the management  should  vail      itself of  the said  opportunity by  making a  suitable      request to  the Tribunal  before  the  proceedings  are      closed. If  no such  opportunity has been available 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 the matter. If the Tribunal decides      that the  domestic enquiry  has not been held properly,      it is  not its function to invite suo moto the employer      to adduce  evidence before  it to  justify  the  action      taken by it."      The point  worthy of note is that the contention of the appellant that there is something like an obligatory duty of the Industrial  Tribunal to call upon the employer to adduce additional evidence  if it  so  chooses  after  recording  a specific finding  on the preliminary issue whether there was no enquiry  or the one held was defective has been, in terms and demonstrably  negatived. As  a corollary a principle was enunciated that  such an opportunity should be availed of by the employer  by making  suitable request  to  the  Tribunal before the  proceedings are  closed. If  no such opportunity has been  asked for by the management before the proceedings are closed  the  employer  can  make  no  grievance  at  the Tribunal did  not provide  such an  opportunity The ghost of any obligatory duty cast on a quasi-judicial authority viz., Labour Court  or Industrial  Tribunal to  notify one  of the parties to  the proceedings  before it, what it should do or what are  its rights  and by  What procedure it should prove its case, even when the party is a well entrenched employer, ably assisted  by the  best available  talent in  the  legal profession. was  laid to  rest. We  would presently  examine Cooper Engineering  Ltd case (supra) where the employer made some attempt  to  infuse  life  into  that  ghost  but  that decision rests  on the  facts of  the case  In this case the fact that before the final order

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1184 was pronounced by the Tribunal a written request was made on behalf of  the employer  for adducing additional evidence to sustain the  charge on  which the  Tribunal appears  to have passed no  order, was  held insufficient  by this  Court  to entertain a contention that the employer was denied any such opportunity.      Reference was next made to Workmen of Messrs. Firestone Tyre &  Rubber Company  of India  (P) Ltd.  v. Management  & ors.(l)  Contention   raised  therein   was  that   by   the introduction of  s. 11A  with its  proviso in  the  Act  the legislature has  once and  for ever  put its final seal upon the controversy  whether the employer who has failed to hold proper, legal  and  valid  domestic  enquiry  before  taking punitive action,  was entitled to adduce fresh evidence when the matter  is  brought  before  the  Labour  Court  or  the Industrial Tribunal either under s. 10 or under s. 33 of the Act. The proviso to s. 11A provides that the Labour Court or the Industrial  Tribunal in  a proceeding  under s.11A shall rely only  on the materials on record and shall not take any fresh evidence  in relation  to the  matter. This contention was in  terms negatived  by this Court observing that at the time of  introducing s. 11A in the Act legislature must have been aware  of the  long line  of decisions  of  this  Court enunciating several  principles bearing  on the  subject and therefore it  is difficult to accept that by a single stroke of pen  by the  expression used in the proviso to s. 11A all these  principles  were  set  at  naught.  This  Court  then exhaustively reviewed  all the previous decisions bearing on the  subject   and  formulated   the   principles   emerging therefrom. The  relevant principles  are 4, 6, 7 and 8. They read as under:           "(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, has 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           (5).x x x x x x x x x           (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. (1) [1973] 3 S. C. R. 587. 1185           (7) It has never been recognised that the Tribunal      should straightaway, without anything more, direct rein      statement 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".      The noticeable  feature  of  principle  8  is  that  an employer who  wants to  avail himself  of the opportunity of

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adducing evidence  for the first time before the Tribunal to justify his  action should  ask for  it at  the  appropriate stage. If  any such  opportunity  has  been  asked  for  the Tribunal has  no power to refuse. But it is not for a moment suggested that  there is some duty or obligation as a matter of law  cast upon  the Tribunal to call upon the employer to adduce additional  evidence even if h no such opportunity is sought by  the employer.  At page 610 the Court has observed that the  stage at which the employer has to ask for such an opportunity has been pointed out by the Court in Delhi Cloth & General  Mills Co.  case (supra)  and  the  ratio  of  the decision was affirmed      In the quest of the principle bearing on the subject we come to  the last  decision relying  on which  the  Division Bench of  the Calcutta  High Court  in Letters Patent Appeal allowed a  contention to  he raised  for the  first time and remanded the  matter back to the Industrial Tribunal. It was said that  the point  decided by  the Division  Bench of the Calcutta High  Court is no more res integra and is concluded by the  decision in  Cooper Engineering Ltd. case (supra) In that case  the workman  was dismissed by the employer and an industrial dispute arising out of the termination of service was referred  to the  Labour Court.  The Labour  Court found that  the   domestic  enquiry  was  defective  and  directed reinstatement of  the workman.  In appeal  by  the  employer company it  was contended  that the  Labour Court  failed to give an  opportunity to  the employer  to adduce  additional evidence to 1186 sustain the  charge  after  recording  a  finding  that  the domestic enquiry  held by  the employer  was defective. This Court referred  to propositions nos. 4, 5 and 6 in the Delhi Cloth & General Mills Co. case and propositions Nos. 4, 6, 7 and 8  in the  case of  Workmen of Messrs. Fire stone Tyre & Rubber Co.  of India  (P) Ltd.  case and  posed to  itself a question as  to what  is the appropriate stage, specifically adverted to in the Delhi Cloth & General Mills Co. case when the Court  is now  required to  seriously consider  that the opportunity should  be  given  to  the  employer  to  adduce evidence. The Court then recorded its opinion as under:           "We arc, 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 at a      preliminary issue. On that decision being pronounced it      will be  for the management to decided- 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."      It was contended that this Court has in unambiguous and incontrovertible terms laid down that there is an obligatory duty in  law fastened  on the Labour Court or the Industrial Tribunal dealing  with a  case of  punitive  termination  of service either under s. 10 or s. 33 of the Act, irrespective of the fact whether there is any such request to that effect or not,  to raise a preliminary issue as to whether domestic enquiry alleged  to have been held by the employer is proper or defective  and then  record a formal finding on it and if the finding  is in favour of the workman the employer should

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be called  upon which  must demonstrate  on record,  without waiting for  any such request or demand or pleading from the employer, to  adduce further  evidence to sustain the charge of misconduct  if it  so chooses  to do.  We are afraid that much is  being read into the observation of this Court which is not  either expressly or by necessary implication stated. There is  nothing to suggest that in Cooper Engineering Ltd. case this  Court  specifically  overruled  the  decision  in R.K.Jain’s case  where the  Court  in  terms  negatived  the contention of  the employer that there is an obligatory duty in law  on the  Labour Court  or the  Industrial Tribunal to give an opportunity to the employer irrespective of the fact whether it is 1187 asked  for  or  not  to  adduce  additional  evidence  after recording a  finding on the preliminary issue that either no domestic enquiry  was held or the one held was defective. It would be  advantageous to  refer to  an observation  of this Court in  Delhi Cloth  & General  Mills Co.  case at page 53 where after  examining the  ratio of  the decision  in R. K. Jain’s case  this Court  held that  there was no question of opportunity to  adduce evidence  having been  denied by  the Tribunal as  the appellant  therein had made no such request and that  the contention that the Tribunal should have given an opportunity  suo motu to adduce evidence was not accepted in the  circumstances of that case. This observation in fact rejects the  contention that  there is  any such  obligatory duty cast  by law  on the  Labour Court  or  the  Industrial Tribunal to  give’ such  an opportunity  to the employer and then leave  it to  the sweet  will of the employer either to avail it  or not.  This view  in R.  K.Jain’s case  was  re- affirmed in  Delhi Cloth  & General Mills Co. case and there is nothing,  in the decision in Cooper Engineering Ltd. case that case  overrules the  two earlier  decisions. It was not possible so  to do because the decision in the Management of Ritz  Theatre,  wherein  even  though  the  application  for adducing additional  evidence was  given before the Tribunal passed its  final order,  this Court  declined to  interfere saying that such a request was made at a very late stage and that is  the decision  of three  judges and  the decision in Cooper Engineering  Ltd. case is equally a decision of three judges. Further the decision in Cooper Engineering Ltd. case does not  propose to  depart from  the ratio  of the earlier decisions because  this Court  merely posed  a  question  to itself as  to what  is the  appropriate stage  at which  the opportunity has  to be  given  to  the  employer  to  adduce additional evidence,  if it  so chooses  to do.  Merely  the stage is  indicated, namely, the stage after decision on the preliminary issue  about the validity of the enquiry. Cooper Engineering  Ltd.   case  is   not  an   authority  for  the proposition in  every case coming before the labour Court o- Industrial Tribunal  under  5.  10  or  s.  33  of  the  Art complaining  about   the  punitive  termination  of  service following a domestic enquiry that the Court or Tribunal as a matter of  law must  firs, frame  a  preliminary  issue  and proceed to  decide the  validity or otherwise of the enquiry and then  serve a  fresh notice  on the  employer by calling upon the  employer to adduce further evidence to sustain the charges if it so chooses to do. No section of the Act or the Rules framed  thereunder  was  read  to  pin-point  such  an obligatory  duty  in  law  upon  the  Labour  Court  or  the Industrial Tribunal.  No decision  was relied  upon to  show that such  is the duty of the Labour Court or the Industrial Tribunal This  Court merely  indicated the  stage where such opportunity should  be given  meaning thereby if and when it

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is  sought.   This  reading   of  the  provision  in  Cooper Engineering Ltd. case is consistent 1188 with the  decision in Ritz Theatre case because there as the application for permission to adduce additional evidence was made at a late stage the Tribunal rejected it and this Court declined to  interfere. Now,  if the  ratio  of  the  Cooper Engineering Ltd.  case is  to be  read to the effect that in every case  as therein indicated it is an obligatory duty of the Industrial  Tribunal or  the Labour  Court  to  give  an opportunity after  recording the  finding on the preliminary issue adverse  to the employer to adduce additional evidence it would  run counter  to the decision in Ritz Theatre case. Such is  not the ratio in Cooper Engineering case. When read in the context of the propositions called out in Delhi Cloth & General Mills Co. case and the Firestone Tyre & Rubber Co. Of India  (P) Ltd.  case, the decision in Cooper Engineering Ltd. case merely indicates the stage at which an opportunity ha to  be given  but it  must not  be  overlooked  that  the opportunity  has   to  be   asked  for.  Earlier  clear  cut pronouncements of  the Court  in R. K. Jain’s case and Delhi Cloth &  General Mills  Co. case  that this  right to adduce additional evidence  is a  right of  the management  or  the employer and  it is  to  be  availed  of  by  a  request  at appropriate stage  and there  is no  duty in law cast on the Industrial Tribunal  or the  Labour Court  to give  such  an opportunity notwithstanding  the fact  that  none  was  ever asked for  are not  even departed  from. When we examine the matter on principle we would point out that a quasi-judicial Tribunal is  under no  such obligation  to acquaint  parties appearing before  it  about  their  rights  more  so  in  an adversary system  which these  quasi-judicial Tribunals have adopted. Therefore,  it is  crystal clear  that  the  rights which the  employer has in law to adduce additional evidence in a  proceeding  before  the  Labour  Court  or  Industrial Tribunal either  under s. 10 or s. 33 of the Act questioning the legality  of  the  order  terminating  service  must  be availed of by the employer by making a proper request at the time when  it  files  its  statement  of  claim  or  written statement or  makes an application seeking either permission to take  a certain  action or seeking approval of the action taken by  it. If  such a request is made in the statement of claiming application  or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court  or the  Industrial ’Tribunal should ordinarily grant the  opportunity to  adduce evidence.  But if  no such request is made at any stage of the proceedings, there is no duty in  law cast  on the  Labour Court  or  the  Industrial Tribunal to give such an opportunity and if there is no such obligatory duty  in law failure to give any such opportunity cannot and would not vitiate the proceedings. 1189      Having examined  the matter  on precedent  it would  be worth-while to  examine the  matter on principle. The Labour Court or  Industrial Tribunal  to which  either a  reference under s.  10 or an application under s. 33 for permission to take an  intended action  or approval  of an  action already taken is  made would  be exercising  quasi-judicial  powers, which would  imply that  a certain  content of  the judicial power of  the State is vested in it and it is called upon to exercise it  (see Bharat  Bank Ltd.  v. Employees  of Bharat Bank Ltd.).(l)  A quasi  judicial  decision  presupposes  an existing dispute  between two  or more  parties and involves presentation of their case by the parties to the dispute and

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if the  dispute between  them is  a question  of  fact,  the ascertainment of  the fact  by means  of evidence adduced by the parties  to the dispute and often with the assistance of arguments by  or on  behalf of  the parties  on the evidence (see Cooper  v. Wilson),(2) Parties are arrayed before these quasi‘ judicial  Tribunals either  upon a reference under s. 10 or  s. 33.  There is thus a lis between the parties There would be  assertion and denial of facts on either side. With the permission  of the  Tribunal and consent of the opposite side,  parties   are  entitled   to  appear   through  legal practitioners before  these  quasi-judicial  Tribunals.  The system adopted  by these Tribunals is an adversary system, a word as  understood in  contradistinction  to  inquisitorial system. This  also becomes  clear from  rule 10B(l)  of  the Industrial Disputes  (Central) Rules,  1957, which  provides that when  a reference  is  made  to  the  Labour  Court  or Industrial Tribunal,  with- in  two weeks  of  the  date  of receipt of  the order  of reference the parties representing workmen and  the employer involved in the dispute shall file with the Labour Court or the Industrial Tribunal a statement of demands  relying only  upon issues  which are included in the order of reference and shall also forward a copy of such statement to  each one  of the  opposite parties involved in the dispute.  Sub-rule (2) provides that within two weeks of receipt of  the statement  referred to  in sub-rule  (1) the opposite party  shall file  its rejoinder  with  the  Labour Court or  the Industrial  Tribunal as  the case  may be  and simultaneously forward  a copy  thereof to  the other party. Sub-rule (4)  provides that the hearing of the dispute shall ordinarily be  continued from day to day and arguments shall follow immediately  after the  closing of the evidence. Sub- rule (6)  casts a duty on the Labour Court or the Industrial Tribunal, as  the case  may be,  to make a memorandum of the substance of  the proceedings  of what  the witnesses depose and such  memorandum shall  be written  and  signed  by  the Presiding officer. (1) [1950] SCR 459.                      (2) [1937] 2 KB 309 1190      Rule 15  confers power  to admit  a call  for evidence. Rule 16  enables the  Labour Court or Industrial Tribunal to administer oath.  Rule 60 prescribes the form of application to be  made under s. 33. the application has to be in Form J or K, as the case may be, and has to be on verification. The cause-title  in   the  prescribed  form  requires  that  the applicant and  the opposite  party  should  be  specifically described in  the application.  These forms are more or less analogous to  a plaint  in a  suit and the reply to be filed would take  more or  less the  form of  a written statement. Where the  parties are  at variance for facility of disposal issues will  have to be framed. It is open to it to frame an issue and  dispose it  of as  a preliminary issue as held in M/s. Dalmia  Dadri Cement  Ltd. v.  Its Workmen(1).  Parties have to  lead evidence. Section 11C confers power of a civil court under  the Code of Civil Procedure on the Labour Court or  Industrial   Tribunal  in  respect  of  matters  therein specified. The  Labour Court or Tribunal would then; proceed to decide  the lis between the parties. lt has to decide the lis an  the evidence  adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is nontheless   a   quasi-judicial   Tribunal   proceeding   to adjudicate upon  a lis between the parties arrayed before it and must  decide the  matter on the evidence produced by the parties before  it. lt would not be open to it to decide the lis on  any extraneous  considerations. Justice,  equity and good conscience will inform its adjudication. Therefore, the

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Labour  Court   or  the  Industrial  Tribunal  has  all  the trappings of a Court.      If such  be the duties’ and functions of the Industrial Tribunal or  the Labour Court, any party appearing before it must make  claim or  demur the  claim of  the other side and when there  is a  burden upon  it to  prove or establish The fact so  as to invite a decision in its favour, if it has to lead evidence.  The quasi-judicial  tribunal is not required to advise  the party  either about  its rights  or  what  it should do  of omit  to do.  Obligation to  lead evidence  or establish an  allegation made  by a  party is  on the  party making the  allegation. The  test would be who would fail if no evidence  is led.  It must  seek an  opportunity to  lead evidence and  lead evidence.  A contention  to  substantiate which evidence  is necessary  has to be pleaded. If there is no pleading  raising a  contention there  is no  question of substantiating such  a non-existing  contention by evidence. It is  well settled  that allegation  which is  not pleaded, even if  there is  evidence in  support  of  it,  cannot  be examined because  the other  side has no notice of it and it entertained  it  would  tantamount  to  granting  an  unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such tribunals have not to be read  strictly, but it is equally true that the pleadings must be (1) (1970) Labour & Industrial Cases 350. 1191 such as  to give sufficient notice to the other party of the case it  is called  upon to meet. This view expressed in Tin Printers (Private)  Ltd. v. Industrial Tribunal,(l) commends to us.  The rules  of fair  play demand  that where  a party seeks to  establish a  contention which  if proved  would be sufficient to  deny relief  to the  opposite  side,  such  a contention has  to be  specifically pleaded and then proved. But if  there is no pleading there is no question of proving something which is not pleaded. This is very elementary.      Can it  for a  moment be suggested that this elementary principle  does  not  inform  industrial  adjudication?  The answer must be an emphatic ’no’. The employer  terminates the  service  of  a  workman.  That termination raises an industrial dispute either by way of an application under s. 33 of the Act by the employer or by way of a  the by  the appropriate  Government under s. 10. If an application is  made by the employer as it is required to be made in  the prescribed  form all  facts are  required to be pleaded. If  a relief  is asked  for in the alternative that has to  be pleaded.  In  an  application  under  s.  33  the employer has  to plead that a domestic enquiry has been held and it  is legal and valid. In the alternative it must plead that if the Labour Court or Industrial Tribunal comes to the conclusion that  either there was no enquiry or the one held was  defective,   the  employer  would  adduce  evidence  to substantiate the  charges of  misconduct alleged against the workman. Now, if no such pleading is put forth either at the initial stage  or during  the pendency  of  the  proceedings there arises  no question  of a sort of advisory role of the Labour Court  or the  Industrial Tribunal  unintended by the Act to advise the employer, a party much better off than the workman, to inform it about its rights, namely, the right to lead additional  evidence and then give an opportunity which was  never  sought.  This  runs  counter  to  the  grain  of industrial jurisprudence. Undoubtedly, 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

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statement or by way of an application during the pendency of the proceedings there is no duty cast by 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,  namely, the right to adduce additional evidence to substantiate  the charges when it failed to make good the domestic enquiry  and then  to give  an opportunity to it to adduce additional evidence. This, apart from being unfair to the workman, is against the principles of rules (1) 1957 L. L. J. 677 at p. 680. 1192 governing the  procedure to  be  adopted  by  quasi-judicial Tribunal, against  the grain of adversary system and against the principles  governing the  decision of a lis between the parties arrayed before a quasi-Judicial Tribunal.      Having given  our most  anxious  consideration  to  the question  raised  before  us,  and  minutely  examining  the decision  in   Cooper  Engineering   Ltd.  case  (supra)  to ascertain the  ratio as  well as the question raised both on precedent and  on principle,  it is undeniable that there is no duty  cast on the Industrial Tribunal or the Labour Court while adjudicating  upon a penal termination of service of a workman either  under s.  10 or under s. 33 to call upon the employer to  adduce additional  evidence to substantiate the charge of  misconduct by  giving some  specific  opportunity after decision on the preliminary issue whether the domestic enquiry was  at all  held, or  if held,  was  defective,  in favour of  the workman.  Cooper Engineering Ltd. case merely specifies the  stage at  which such  opportunity is  to  be. given, if sought. 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. If such an opportunity is sought in the course  of the proceeding the Industrial Tribunal or the Labour  Court,   as  the  case  may  be,  should  grant  the opportunity to  lead additional evidence to substantiate the charges. But  if no  such opportunity is sought nor there is any pleading  to that  effect no  duty is cast on the Labour Court or  the Industrial  Tribunal suo motu to call upon the employer to  adduce additional  evidence to substantiate the charges.      Viewed from  this angle,  in the present case there was neither a  pleading in  which any  such claim  for  adducing additional evidence  was made,  nor  any  request  was  made before the  Industrial Tribunal  till the  proceedings  were adjourned for  making the Award and till the Award was made. The case  squarely falls  within the  ratio of Delhi Cloth & General Mills Co. case. Therefore, the Division Bench of the Calcutta High  Court was clearly in error in granting such a non-sought opportunity  at the  stage of  the Letters Patent Appeal.      Accordingly, this appeal is allowed and the judgment of the Calcutta  High Court  in Letters Patent Appeal No. 80/74 is set  aside and  the Award  of the  Industrial Tribunal is restored with costs quantified at Rs. 2,000/-. S.R.                                         Appeal allowed. 1193