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P.N. Mishra, C.J.—Though a short, but of far-reaching consequence question, has arisen in the instant appeal which has come before us at the instance of the management against the order of a learned single Judge of this Court in W.P. No. 16832 of 1994, to the effect that the petitioner seeking amendment of the counter in a proceeding on reference of an Industrial dispute u/s 2A(2) of the Industrial Disputes Act, 1947, to raise additional plea that the management cannot repose confidence in the workman in view of his subversive and negligent activities cannot be permitted as, "no charge memo was served on the first respondent (employer) (sic. employee) that the petitioner (employee) (sic. employer) had lost confidence; that the first respondent was not made known that his conduct amounts to subversive activities and negligent of duties; and that there was also no enquiry and as such, he had no opportunity to meet said charges in the domestic enquiry, the petition is also a belated one and no reasons are forthcoming and the said ground was not taken earlier, and therefore, the same cannot be permitted to be pleaded for the first time in Labour Court. The view taken by the Labour Court cannot be said to be unwarranted or unreasonable. The Labour Court felt that the matter requires a regular enquiry before an Enquiry Officer wherein both parties would be entitled to adduce evidence in support of their respective contentions. This view of the Labour Court cannot be said to be unrealistic. That apart by such a course, the petitioner also would not be prejudiced as he is entitled to go before an Enquiry Officer afresh on this charge where he will have full opportunity to adduce evidence". We are of the opinion that the above goes contrary to the law that in a case where there is a ground to find that the domestic enquiry is invalid, it is open to the employer to seek Labour Court/Tribunal''s permission to lead evidence to justify its action and in a way for the reason of the defect in enquiry, the Labour Court/Tribunal would be setting aside the order of discharge or dismissal and remitting the case for a fresh domestic enquiry without affording opportunity to the management to justify its action. It is quite educative to see the judgment in the case of State Bank of India v. R. K. Jain (1971-II-LLJ-599) in which the Supreme Court while considering the law which existed before the introduction of Section 11-A of the Industrial Disputes Act, observed :
"The legal position regarding the circumstances under which the Tribunal can interfere with the domestic enquiry have been laid down by this Court. Among the circumstances which will justify the interference by the Tribunal are : when the order of discharge is punitive or mala fide or when it amounts to victimisation or unfair labour practice (vide The Tata Oil Mills Co., Ltd. Vs. Workmen and Another, The order terminating the services of the workman can also be set aside when there has been a violation of the principles of natural justice in the conduct of the inquiry which led to the passing of the order of termination. The extent of the jurisdiction of a Labour Court or Industrial Tribunal to interfere with an order of termination passed on the basis of a domestic enquiry held by the management have also been reiterated by this Court in Ananda Bazar Patrika (P) Ltd. Vs. Its Workmen, ."
"True it is, that it has been held by this Court in Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory, .
"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 domestic inquiry has been properly held (See Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, , but also to 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 Sasa Musa Sugar Works (P) Ltd. Vs. Shobrati Khan and Others, ; Phulbari Tea Estate Vs. Its Workmen, and The Punjab National Bank Ltd. Vs. Its Workmen, . These three cases were further considered by this Court in Bharat Sugar Mills Ltd. Vs. Shri Jai Singh and Others, and reference was also made to the decision of the The Burmah-shell Refineries Limited Vs. Their Workmen, . It was pointed out that ''the important effect or omission to hold an enquiry was merely this : that the tribunal would not have to consider only whether there was 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 Estate''s case, (supra) were on applications u/s 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the Tribunal for approval u/s 33 or on a reference u/s 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate''s case, (supra) was on a reference u/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 discharge was proper''.
(Para 33)
"From the above extract it is clear that it is open to the management to rely upon the domestic inquiry conducted by it and satisfy the Tribunal that there is no infirmity attached to the same. The management has also got a right to justify on facts as well that its order of dismissal or discharge was proper."
(Para 34)
"The above principles have also been reiterated in the later decision of this Court. Under those circumstances, we fail to see why the High Courts should raise a controversy about the stage when the management has to adduce evidence before the Tribunal to justify the action taken by it."
(Para 35)
"It should be remembered that when an order of punishment by way of dismissal or termination of service is effected by the management, the issue that is referred is whether the management was justified in discharging and terminating the service of the workman concerned and whether the workman is entitled to any relief. In the present case the actual issue that was referred for adjudication to the Industrial Tribunal has already been quoted in the earlier part of the judgment. There may be cases where an 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 those 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 enquiry held by it is proper and valid and if 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 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."
(Para 36)
The legal position after the amendment and insertion of Section 11-A has been explained in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, and in a candid discussion on the subject, the Court has reiterated the law in its earlier pronouncement in State Bank of India v. R. K. Jain (supra) and in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, and said that following principles broadly emerge :
"1. The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case.
On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
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.
It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held if the said enquiry is found to be defective.
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.
Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
In a particular case, after setting aside the order of dismissal, whether a workrnan should he reinstated or paid compensation is, as held by this Court in the The Management of Panitole Tea Estate Vs. The Workmen, within the judicial decision of a Labour Court or Tribunal."
Dealing with the question whether Section 11-A has let any change in the legal position mentioned above and if so to what extent, the Supreme Court has said :
We cannot accept the extreme contentions advanced on behalf of the workmen and the employers. We are aware that the Act is beneficial piece of legislation enacted in the interest of employees. It is well settled that in construing the provision of a welfare legislation, Courts should adopt, what is described as a beneficient rule of construction. If the constructions are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees, has to be preferred. Another principle to be borne in mind is that the Act in question which intends to improve and safeguard the service conditions of an employee, demands an interpretation liberal enough to achieve the legislative purpose. But we should not also lose sight of another canon of interpretation that a statute or for the matter of that even a particular section, has to be interpreted according to its plain words and without doing violence to the language used by the legislature. Another aspect to be borne in mind will be that there has been a long chain of decisions of this Court, referred to exhaustively earlier, laying down various principles in relation to adjudication of disputes by industrial Courts arising out of orders of discharge or dismissal. Therefore it will have to be found from the words of the section whether it has altered the entire law, as laid down by the decisions, and if so, whether there is a clear expression of that intention in the language of the section.
(Para 31)
We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously, the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron and Steel Co. Ltd. (supra) existed. The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by Section 11-A. The words in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified'' clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron and Steel Co. Ltd. (supra) case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter.
(Para 32)
If there has been no enquiry held by the employer or if the enquiry is held to be defective, it is open to the employer even now to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. We are not inclined to accept the contention on behalf of the workmen that the right of the employer to adduce evidence before the Tribunal for the first time recognised by this Court in its various decisions, has been taken away. There is no indication in the section that the said right has been abrogated. If the intention of the legislature was to do away with such a right, which has been recognised over a long period of years, as will be noticed by the decisions referred to earlier, the section would have been differently worded. Admittedly there are no express words to that effect, and there is no indication that the section has impliedly changed the law in that respect. Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he had held no enquiry or the enquiry held by him is found to be defective. Of course, an opportunity will have to be given to the workman to lead evidence contra. The state at which the employer has to ask for such an opportunity, has been pointed out by this Court in Delhi Cloth and General Mills Co. Ltd. (supra). No doubt, this procedure may be time consuming, elaborate and cumbersome. As pointed out by this Court in the decision just referred to above, it is open to the Tribunal to deal with the validity of the domestic enquiry, if one has been held as a preliminary issue. If its finding on the subject is in favour of the management then there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action. This right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been held or if the enquiry is held to be defective, has been given judicial recognition over long period of years.
(Para 33)
All parties are agreed that even after Section 11-A, the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if none had been held by an employer.
(Para 34)
Having held that the right of the employer to adduce evidence continues even under the new Section, it is needless to state that, when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workmen concerned. The law, as laid down by this Court that under such circumstances, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and that it has to decide for itself whether the misconduct alleged is proved, continues to have full effect. In such a case, as laid down by this Court, the exercise of managerial functions does not arise at all.
(Para 35)
Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, tht satisfaction u/s 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from the finding in a proper case and hold that no misconduct is proved.
(Para 36)
We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference u/s 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion ensures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A.
(Para 37)
Another change that has been effected by Section 11-A is the power conferred on a Tribunal to alter the punishment imposed by an employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. u/s 11-A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11-A.
(Para 38)
Speaking in particular in respect of the Proviso to Section 11-A, the Supreme Court has observed :
"We will now pass on to consider the proviso to Section 11-A. Mr. Deshmukh relied on the terms of the proviso in support of his contention that it is now obligatory to hold a proper domestic enquiry and the Tribunal can only take into account the materials placed at that enquiry. The counsel emphasised that the proviso places an obligation on the Tribunal ''to rely only on the materials on record'' and it also prohibits the Tribunal from taking ''any fresh evidence in relation to the matter''. According to him, the expression ''materials on record'' refers to the materials available before the management at the domestic enquiry and the expression ''fresh evidence'' refers to the evidence that was being adduced by an employer for the first time before the Tribunal. From the wording of the proviso, he wants us to infer that the right of an employer to adduce evidence for the first time has been taken away, as the Tribunal is obliged to confine its scrutiny only to the materials available at the domestic enquiry.
(Para 43)
We are not inclined to accept the above contention of Mr. Deshmukh. The proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression ''materials on record'' occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the ''materials on record'' in the proviso must be held to refer to materials on record before the Tribunal. They take in -
(1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or
(2) the above evidence and in addition, any further evidence led before the Tribunal, or
(3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.
The above items by and large should be considered to be the ''materials on record'' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The Proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. From the Proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression ''fresh evidence'' has to be read in the context in which it appears namely, as distinguished from the expression ''materials on record''. If so read, the Proviso does not present any difficulty at all.
(Para 44)
The Legislature in Section 11-A has made a departure in certain respects in the law as laid down by this Court. For the first time, power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power, also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the Proviso. The Proviso only emphasises that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the ''materials on record'' before it. What those materials comprise of have been mentioned earlier. The Tribunal, for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The ''matter'' in the Proviso refers to the order of discharge or dismissal that is being considered by the Tribunal.
(Para 45)
It is to be noted that an application made by an employer u/s 33(1) for permission or S. 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act. It has been held by this Court that even in cases where no enquiry has been held by an employer before passing an order of dismissal or discharge, it is open to him to adduce evidence for the first time before the Tribunal. Though the Tribunal is exercising only a very limited jurisdiction under this Section, nevertheless, it would have applied its mind before giving permission or approval. Section 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. Quite naturally, when the dispute is being adjudicated, the employer will rely upon the proceedings that were already held before a Tribunal u/s 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Deshmukh that if no enquiry is held, the order of dismissal will have to be set aside, if accepted, will lead to very incongruous results. The Tribunal would have allowed an employer to adduce evidence before it in proceedings u/s 33 for the first time, even though no domestic enquiry had been held. If it is held that another Tribunal, which adjudicates the main dispute, has to ignore those proceedings and straightway order reinstatement on the ground that no domestic enquiry had been held by an employer, it will lead to very startling results. Therefore, an attempt must be made to construe Section 11-A in a reasonable manner. This is another reason for holding that the right to adduce evidence for the first time recognised in an employer, has not been disturbed by Section 11-A.
(Para 46)
There may be other instances where an employer with limited number of workmen may himself be a witness to a misconduct committed by a workman. He will be disabled from conducting an enquiry against the workman because he cannot both be an Enquiry Officer and also a witness in the proceedings. Any enquiry held by him will not be in keeping with the principles of natural justice. But he will certainly be entitled to take disciplinary action for which purpose he can serve a charge sheet and, after calling for explanation, impose the necessary punishment without holding any enquiry. This will be a case where no enquiry at all has been held by an employer. But the employer will have sufficient material available with him which could be produced before any Tribunal to satisfy it about the justification for the action taken. Quite naturally, the employer will place before the Tribunal, for the first time, in the adjudication proceedings material to support his action. That material will have to be considered by the Tribunal. But if the contention of Mr. Deshmukh is accepted, then the mere fact that no enquiry has been held will be sufficient to order reinstatement. Such reinstatement, under the circumstances mentioned above, will not be doing justice either to the employer or to the workmen and will not be conducive to preserving industrial peace.
(Para 47)
We have indicated the changes effected in the law by Section 11-A. We should not be understood as laying down that there is no obligation whatsoever on the part of an employer to hold an enquiry before passing an order of discharge or dismissal. This Court has consistently been holding that an employer is expected to hold a proper enquiry according to the Standing Orders and principles of natural justice. It has also been emphasised that such an enquiry should not be an empty formality. If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give very cogent reasons for not accepting the view of the employer. Further by holding a proper enquiry, the employer will also escape the charge of having acted arbitrarily or mala fade. It cannot be over-emphasised that conducting of a proper and valid enquiry by an employer will conduce to harmonious and healthy relationship between him and the workmen and it will serve the cause of industrial peace. Further it will also enable an employer to persuade the Tribunal to accept the enquiry as proper and the finding also as correct."
(Para 48)
We have quoted from the above two Judgments of the Supreme Court rather exhaustively to convince ourselves that before the management is called upon to exercise its option to adduce evidence in support of its action against the employee, it cannot be said that he cannot bring on the record such pleas which would justify removal from service, including the loss of confidence for the reason of certain conduct and thus that the Court or Tribunal may exercise its jurisdiction under the Proviso to Section 11-A of the Act, but for such evidence and reasons as are available with the employer which he proposes to adduce before the Court/Tribunal, removal from service is justified. Learned Counsel for the respondent workman has however strenuously argued that unless the domestic enquiry is held to be invalid, there is no occasion for the employer to ask for any opportunity to adduce evidence and to introduce materials which were not taken into consideration in the domestic enquiry. He has, for the said purpose, placed reliance upon a Division Bench decision of this Court in Janardhana Reddy v. APSRTC 1990 (1) An. W.R. 642, in which this Court has observed.
"Section 11-A of the Act was inserted by Central Act 45 of 1971. The Statement of Objects and Reasons recites that the amendment to Act had become necessary for getting over the decision of the Supreme Court in Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, . In that case, it was held, while considering the Tribunal''s power to interfere with the management''s decision to dismiss, discharge or terminate the services of workmen, that the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that it could interfere only when there was want of good faith, victimisation, unfair labour practice etc. on the part of the management. It was further pointed out that the I.L.O. in 1963 had recommended that the workman aggrieved by termination of employment should have a right of appeal to a neutral body which could go into the merits and order reinstatement, with or without back wages or compensation appropriate to the case. In accordance with the said recommendations, Parliament considered it necessary that the Tribunal should have power, in cases wherever necessary, to set aside the order of discharge or dismissal and direct reinstatement on such terms as the Tribunal deemed fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case required.
(Para 6)
Very soon after the amendment, the Section fell for consideration before the Supreme Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management (supra). While holding that the Section was prospective and applied to references made after the amendment, the Supreme Court pointed out that now the Tribunal is entitled to ''satisfy'' itself whether the order of discharge or dismissal was ''not justified'', and also to set aside the award, direct reinstatement or award lesser punishment etc. It was held that the amending Act is a piece of beneficial legislation enacted in the interests of employees and a a liberal interpretation is to be adopted to achieve the legislative purpose. The amending Act gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by the employer as well as the punishment imposed by him. In cases where a proper and valid inquiry has been made by the employer, the Tribunal is now clothed with the power to reappraise the evidence in the domestic inquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against the workman. It was observed that the Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out on the evidence on record. Again in cases where no enquiry is held by the employer or if the enquiry is held to be defective, it is open to the employer now to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. Of course, an opportunity will have to be given to the workman to lead evidence contra. It was further held that the stage, at which the employer has to ask for such an opportunity, has been pointed out by the Supreme Court in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, . It was stated that it was open to the Tribunal to deal with the validity of the domestic inquiry, if one has been held, as a preliminary inquiry. If the finding on such an issue is in favour of the management then, there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence. The employee is also then given opportunity in rebuttal. It will be for the Tribunal then to be satisfied about the guilt or otherwise of the workman concerned. The Supreme Court stated that the Tribunal can also hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal could alternatively interfere with the punishment because the alleged misconduct itself is not established. To come to a conclusion either way, the Tribunal will have to reappraise the evidence itself. Under the proviso to S. 11-A, the Tribunal is to consider not only the evidence on record before the punishing authority but also - in cases where fresh evidence is led in the circumstances stated above - to consider the material for the first time produced before it. The only restriction is that the Tribunal cannot call for further or fresh evidence, by itself, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body."
(Para 8)
We do not however find in the above citation any ratio decidendi to the effect that unless a finding is recorded that domestic enquiry is invalid, employer cannot indicate, to justify imposition of punishment, in its pleadings the grounds other than the grounds stated in the order passed. There is no stage determined for an employer to come forward and ask for leading evidence before the Court or Tribunal in support of its action. It is the duty of the Court to see that such opportunity is afforded to the employer and unless the employer consciously waives the right to lead fresh or further evidence in the course of the enquiry by the Court, it will not be proper for the Court/Tribunal to say that it cannot do so. There is some argument before us on the question that once domestic enquiry is held to be valid, there is no reason to provide to the employer opportunity to adduce evidence in support of the charge and in justification of the imposition of the punishment. This argument is advanced on the presumption that when no attempt is made by the employer in its pleadings to justify its action on the basis of some additional materials and the domestic enquiry findings on the charges are not challenged by the employer, it is a situation in which the domestic enquiry is held to be valid. We have not noticed any such law in Section 11-A of the Act and the Supreme Court has left no manner of doubt that any finding holding that punishment is not justified will amount to holding that enquiry has been defective. For the reason aforementioned, we are inclined to interfere with the order of the learned single Judge and that of the Labour Court and direct that in case the Tribunal is of the opinion that the imposition of the punishment of discharge/dismissal is not justified, it shall be open to the employer to seek opportunity to lead further evidence to justify the imposition of the punishment, and the Court/Tribunal shall be duty-bound to consider this evidence. Amendment in the pleading, however, does not affect the right of the workman in any way. Workman can lead evidence to rebut any evidence produced on behalf of the employer.
In the result, the appeal is allowed. Order in Writ Petition No. 16832/1994 is set aside and that of in the Proceedings in I.D. No. 387 of 1993 on the file of the Addl. Labour Court, Hyderabad is also set aside. The Labour Court is directed to proceed in the matter in accordance with law.