1. Heard learned Senior Advocate Mr.Kamal Trivedi for M/s. Trivedi & Gupta on behalf of petitioners and learned advocate Mr.Rajesh P. Mankad for respondent No.2.

2. In present petition, the petitioner has challenged interim order passed by Industrial Tribunal, Baroda in Reference (IT) No.130 of 2004, Exh.23, dated 21.7.2009. The Industrial Tribunal, Baroda has declared departmental inquiry invalid and illegal. The Industrial Tribunal, Baroda has given permission / opportunity to petitioner as per averments made in reply to lead oral evidence for proving the charges against respondent No.2 before Industrial Tribunal, Baroda. Thereafter, matter has been adjourned on 1.9.2009.

3. Initially, this Court on 1.10.2009 issued notice for final disposal making it returnable on 9.11.2009 and meanwhile, status-quo with regard to proceedings in respect of Reference (IT) No.130 of 2004 directed to be maintained till returnable date which has been subsequently extended by this Court.

4. On behalf of respondent No.2, affidavit-in-reply is filed on 5.11.2009, against which rejoinder is also filed by petitioner.

5. Mr.Kamal Trivedi, learned Senior Advocate for the petitioners submitted that petitioner Company has received complaints against respondent No.2 workman of having committed mis-conducts such as physical assault and use of abusive language against the Superior Officer and attempt the molest misbehave and harass the female apprentices. The preliminary inquiry was therefore made into the charges against the respondent workman. Thereafter, departmental inquiry was held against respondent workman and ultimately, on 7.8.2002, the petitioner Company after considering explanation of respondent workman took a lenient view so as to afford opportunity to the respondent workman to improve and thus, passed an order of demotion in stead of dismissal.

6. Against aforesaid punishment, industrial dispute was raised by respondent workman which referred by an order dated 4.12.2004 by appropriate Government. Before the Industrial Tribunal, after filing statement of claim, written statement was filed by present petitioner. The statement of claim is at Exh.4 and written statement at Exh.11. In statement of claim, preliminary contention has been raised by respondent workman challenging legality and validity of departmental inquiry Exh.13. The request was made by respondent workman to Industrial Tribunal, Baroda that as a preliminary issue decide legality and validity of the departmental inquiry. The respondent workman was examined vide Exh.14 (Page-252) in support of preliminary point raised in statement of claim. One Shri Vinod C. Patel, Enquiry Officer was examined on behalf of petitioner in support of petitioner company to establish that departmental inquiry which was conducted against respondent no.2 is legal and valid and not against the principles of natural justice. The Industrial Tribunal has come to conclusion that departmental inquiry which was conducted against respondent No.2 is held to be illegal and unreasonable means vitiated and opportunity was given to petitioner company to prove mis-conduct against respondent No.2 by leading evidence before the Industrial Tribunal.

7. Learned Senior Advocate Mr.Trivedi submitted that workman who was examined at Exh.14 (Page-252) has not uttered a single word in respect of Charge No.1. Even the Industrial Tribunal, Baroda has also not given any finding in respect to Charge No.1 and come to conclusion that inquiry is vitiated. He emphasized that in respect of Charge No.1, how the inquiry is considered to be bad, for that no reasoning given by the Industrial Tribunal, Baroda. In respect of second Charge, Mr.Vani conducted preliminary inquiry was examined in departmental inquiry. He also emphasized that Mr.Vani who was examined on behalf of petitioner company not cross-examined by respondent workman and refused it and also not requested to petitioner company or Inquiry Officer to produce three female apprentices. After some time on 10.10.2001, during the pendency of inquiry, he produced three affidavits dated 21.12.2000 of three female apprentices in departmental inquiry, against which department wants to cross-examine three ladies but, respondent workman has refused it. Therefore, learned Senior Advocate Mr.Trivedi submitted that in interim order passed by Industrial Tribunal, Baroda, there is no discussion in respect of Charge No.1 and this issue now not necessary to be proved by petitioner company against respondent No.1 by leading fresh evidence before the Industrial Tribunal, Baroda. He also submitted that in second issue, the finding is given by Industrial Tribunal, Baroda that inquiry is vitiated. He relied upon page-73 and 74 bottom where specific objection was raised by department that if three employees are not produced for cross-examination for department, then said affidavit is not to be taken on record because no opportunity is made available to department to cross-examine three ladies apprentices. He also submitted that at page-74 specific question was asked to respondent workman, whether respondent workman wants to examine three ladies apprentices as a defence witness in departmental inquiry or not. The answer was given by respondent workman that he is not examining three ladies apprentices for his defence. Therefore, he submitted that page-44, witness of petitioner company Mr.P.C.Vani was not cross-examined by respondent workman and made clear statement in departmental inquiry that he does not want cross-examine Mr.Vani, witness of petitioner company. Even at that occasion respondent workman has not made request to call three ladies apprentices in departmental inquiry as he wants to examine three ladies apprentices. The allegations made against Inquiry Officer which has been bias against respondent workman. Therefore, in short, his submission is that the Industrial Tribunal, Baroda has committed gross error in deciding preliminary issue in respect of Charge No.1 there is no finding and in respect of Charge No.2, in support of affidavit, these three ladies apprentices were not produced in departmental inquiry for cross-examination by department. Therefore, learned Senior Advocate Mr.Trivedi submitted that matter requires consideration because Industrial Tribunal, Baroda has committed gross error in coming to conclusion that departmental inquiry conducted by petitioner company is held to be vitiated. He also placed reliance upon decision reported in the case of Patel Filters Limited v. Barkatbhai V. Narsindani and Anr. reported in 2000 (1) GLR 562. Relevant Para.7 is quoted as under :

7.

nor should a party be permitted to while away time by challenging the orders on preliminary issues and not permitting the court to decide the real issues. But this is not a case where the issue in question could have been decided along with other issues. The nature of the issue is such which has to be decided as a preliminary issue. This is the view taken by the Hon'ble Supreme Court in the matter of Cooper Engineering Ltd. (supra). Ordinarily, the courts do not entertain petition against the decision on preliminary issues where such issues can as well be challenged after final adjudication. However, it can not be accepted as universal principle of law to be applied in all cases irrespective of its merits. In the present case, the issue raised is a clear question of law and the relevant facts are undisputed. Since the question does not raise disputed questions of facts, I feel the matter can be entertained against the decision on preliminary issue also and that is what I am inclined to do.

7.1 Except that, learned Senior Advocate Mr.Kamal Trivedi has not made any other submissions and relied upon any other decision.

8. Learned advocate Mr.R.P.Mankad appearing for respondent No.2 workman submitted that in written statement filed by company before Industrial Tribunal in Para.18, petitioner has been demanded in case if departmental inquiry is vitiated for proving charge against employee, permission may be given to petitioner company for leading fresh evidence to prove charge against respondent workman. He submitted such request was made by petitioner company as reflected in Para.18. He also submitted that affidavit-in-reply is filed by respondent No.2 workman where in Para.4 this contention has been specifically raised by respondent No.2 workman. He relied upon certain decisions in support of his submission as indicated in affidavit-in-reply of respondent No.2 workman. Therefore, Para.3 to7 of affidavit-in-reply is relevant and are quoted as under :

3. Without prejudice to the above at the outset it self, I deny all the averments and contentions raised in the memo of the petition save and except those that are specifically admitted by me hereinafter. I say that I am filing this affidavit in reply for the limited purpose of opposing the admission of the petition on the ground of maintainability as this being the petition challenging interlocutory order and against such challenge law is settled by this court holding that decision of labour court/ Industrial tribunal on challenge to the departmental inquiry is interlocutory in nature and therefore such petition is not maintainable and I reserve my rights to file detailed affidavit as and when if necessary.

4. I say and submit that in the present petition, the petitioner has challenged the impugned order dated 21.7.09 by which Ld. Industrial tribunal has declared, inquiry conducted by the petitioner against the deponent herein as illegal and improper and has permitted the petitioner to prove the charges before the Court since the petitioner had made such a request in the written statement. I say that such an order is an interlocutory order and no rights of parties are finally decided by the said order and therefore present petition against an interlocutory order is not maintainable and is required to be rejected in the interest of justice.

5. Without prejudice to the above, it is submitted that it is by now settled by series of judgments that in such a circumstances if a request is made for proving the charges before Hon ble Tribunal or Labour Court in case inquiry is declared as having been vitiated the employer can challenge the said order at the time of the final award on merit if it is against the employer. The challenge to such an interlocutory order is not open to any employer. I say that such a situation has been appreciated by Hon'ble Apex Court in the decision of Cooper Engineering Ltd. Vs. P.P. Mundhe reported in A.I.R. 1975 S.C. 1900. It is submitted that Hon'ble Apex Court was pleased to hold and observe that when the Ld. Labour Court's order is questioned, which decision is in regard to the preliminary issue, it will be legitimate for the Hon'ble High Court to refuse to intervene at that stage. In paragraph 22 of the said decision, the following observations are made.

22. We are 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 as a preliminary issue. On that decision being pronounced it will be for the management to decide 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 proceedings to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter if worthy can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.

I further say that this decision of the Hon'ble Apex Court in case of Cooper Engineering Ltd. (Supra) has been followed by this High Court on number of occasions. I say that, following the decision referred above and also taking note of all decisions of this Hon'ble Court in the case of Ramshray Ramsukh Verma Vs. Reliance Industries Limited, reported in 2004 3 CLR P.491 following observations are made.

8. I also find that the learned Single Judge of this High Court in a decision reported in 1998 II CLR 480 (Dinesh Mills Ltd. v. Kedarnath R. Pande) relying on the decision of the Hon'ble Supreme Court in the case of Cooper Engineering (supra) came to the conclusion that interference in exercise of powers under Article 226 and 227 of the Constitution would not be called for against the decision of the Labour Court which as a preliminary issue held that the domestic inquiry conducted by the employer was illegal and improper since either party can ultimately challenge the same after final adjudication of the dispute. I also find that a Division Bench of this High Court also had taken a similar view in the judgment and order dated 17.3.2003 passed in Letters Patent Appeal No.655 of 2002 in Special Civil Application No.2510 of 2001. In the said decision, the Division Bench also relying on the decision of the Hon'ble Supreme Court in Cooper Engineering case upheld the order of the learned Single Judge refusing to entertain the petition against the interlocutory order passed by the Labour Court regarding the validity of the Departmental enquiry conducted by the employer.

9. From the above decisions, and in particular from the decision of the Hon'ble Supreme Court in Cooper Engineering (supra) one thing is clear that whenever the Labour Court or the Industrial Tribunal decides the validity of the departmental enquiry conducted by the employer at the interlocutory stage, writ petition challenging the said order would not be maintainable. The Hon'ble Supreme Court in Cooper Engineering (supra) observed that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision which is at a preliminary issue and the same can be agitated even after the final award. The Hon'ble Supreme Court had also observed that it will be legitimate for the High Court to refuse to intervene at that stage. The Hon'ble Supreme Court had also observed that the above observations are made to ensure that there is no undue delay in industrial adjudication.

I say that in view of the above settled legal position as laid down by the Hon'ble Apex Court in Cooper Engineering Vs. P.P. Mundhe (supra), as followed by the series of decision of this Hon'ble Court, present petition challenging the interlocutory order requires to be rejected at the admission stage itself in the interest of justice.

6. Without prejudice to the above, I say and submit that it is by now well settled that no party should be permitted to stall the adjudication proceedings without any justified reasons. It is submitted that firstly in the present case the petitioner has though affirmed the petition on 31.8.09 has moved for hearing on 1.10.2009 and that too without joining proper parties and therefore the intention of the petitioner is unambiguously clear and that is to delay the adjudication of real dispute on merit by frivolous litigation and thereby tiring out the deponent herein. I say and submit that it is an obligation of the employer to conduct fair and proper enquiries into the charges, while in the present case, as held by the Ld. Industrial Tribunal , the petitioner-employer has completely given a go by to the settled norms of inquiry and therefore, the Ld. Industrial Tribunal has rightly declared the inquiry having been vitiated and has very rightly granted opportunity to the petitioner to prove the charges before the Ld. Industrial Tribunal while conducting the fresh inquiry which cannot be said to be any way unjust or improper and in this view of the matter present petition is required to be rejected at the admission stage itself and accordingly the same may be rejected in the interest of justice.

7. I say that even other vise on merits the petitioner has no case as inquiry officer has relied upon the so-called statement of three women recorded in the preliminary inquiry which was never proved before the inquiry officer and in spite of this Inquiry officer has consider as proved evidence/ fact for holding me as guilty for such misconduct for which no opportunities of cross examination was given by the inquiry officer. In view of this Ld. tribunal has rightly held that inquiry is in violation of principal of natural justice. I say that i have also raised the issue regarding malafide and biasness of the inquiry officer and I have also said in the evidence before the tribunal that inquiry was conducted in collusion with the management by the inquiry officer and therefore inquiry held against me is illegal. Against this no evidence is led on this aspect and therefore petitioner have accepted this part of the evidence and therefore on this ground also departmental inquiry suffers material irregularity and therefore also this petition is required to be rejected.

8.1 Learned advocate Mr.Mankad also submitted that workman was examined vide exh.14 for limited purpose in establishing the fact that departmental inquiry conducted against respondent No.2 workman is violated basic principles of natural justice and it vitiated.

9. I have considered submissions made by both learned advocates and also perused interim order Exh.23 passed by Industrial Tribunal, Baroda deciding legality and validity of departmental inquiry and come to conclusion that departmental inquiry conducted against respondent workman is held to be illegal. According to respondent workman, charge sheet is dated 15.9.2001 and it was given for the alleged incident took place on 18.11.2000 and one Mr.Vani was appointed as Preliminary Inquiry Officer. The request was made by workman to allow the advocate to appear in the departmental inquiry for his defence but, that application was rejected and he was allowed to remain present with office bearers. Thereafter, petitioner company has appointed learned advocate Mr.Yogesh Mehta as representing officer on 9.10.2001. Therefore, according to workman, Inquiry Officer was bias granting permission to company to engage Advocate as a representing officer and rejected the request made by workman to engage Advocate for his defence. In preliminary inquiry, statement of three ladies apprentices were obtained. Mr.Vani, was not the eye witness. These three ladies apprentices were not examined in departmental inquiry and according to workman, no such incident occurred and all the three ladies apprentices had filed affidavit and Inquiry Officer has relied upon statement obtained in preliminary inquiry of three ladies apprentices by Mr.Vani. If the statement of three ladies are relied upon by Inquiry Officer which was not obtained in presence of respondent workman, then opportunity to cross-examine must be given to respondent workman and Mr.Vani being a formal witness, an affidavit which was produced by workman in respect to three ladies apprentices has been rejected because it was not given opportunity to cross-examine to the department. Therefore, on these grounds, request was made by workman to declare inquiry as vitiated.

10. On behalf of petitioner company, submission was made before Industrial Tribunal, Baroda that while deciding validity of inquiry, only question of procedure is to be taken into account but, on merits it is not necessary to be examined by Industrial Tribunal, Baroda. The documents have been produced by petitioner company vide Exh.12. Thereafter, Mr.V.C.Patel, Inquiry Officer, was examined before the Industrial Tribunal, Baroda vide Exh.21. Ultimately, Industrial Tribunal, Baroda has considered in Para.11 of the order that in respect to three ladies apprentices where allegations of mis-behaviour made against respondent workman which statement has been obtained by officer, who has conducted preliminary inquiry but, in departmental inquiry, none of lady apprentice was examined in present of Inquiry Officer and subsequently, these three ladies were submitted affidavit that no such incident is occurred with them which has been produced in departmental inquiry by workman and workman has made clear that he does not want to examine three ladies apprentices as a defence witness.

11. In light of these facts which have been found from record of the Industrial Tribunal, Baroda, that statement of three ladies apprentices which was obtained by officer who has conducted preliminary inquiry, that statements were relied by Inquiry Officer being an important evidence. But these three ladies apprentices were not examined in departmental inquiry and opportunity to cross-examine such three ladies apprentices were not given to workman and therefore, Industrial Tribunal, Baroda has come to conclusion that in absence of evidence of three ladies apprentices in support of proving statement which was obtained by Mr.Vani by conducting preliminary inquiry against workman and subsequently, these three affidavits filed by three ladies apprentices produced on record, but that affidavit has not been taken into account by Inquiry Officer while considering charge levelled against workman. Therefore, Industrial Tribunal, Baroda has come to conclusion that in respect to mis-behaving with three ladies apprentices, reasonable opportunity has not been provided by Enquiry Officer to respondent workman. The Industrial Tribunal, Baroda has come to conclusion that opportunity must be given to both parties; department as well as concerned workman. The statement which was obtained by Mr.Vani of three ladies apprentices cannot consider to be proved by evidence of Mr.Vani because that statements of three ladies apprentices have been taken into account for proving charge against respondent workman. Therefore, opportunity of cross-examination of three ladies apprentices must be given by Inquiry Officer which has not been given. Therefore, the Industrial Tribunal, Baroda has come to conclusion that departmental inquiry which has been conducted against present respondent workman is held to be illegal and vitiated.

12. The Industrial Tribunal, Baroda has mainly considered the question while deciding preliminary issue raised by respondent workman that preliminary inquiry conducted by Mr.Vani, Vigilance Officer and he obtained statements of certain persons while conducting preliminary inquiry. But in departmental inquiry except Mr.Vani, Vigilance Officer, no one was examined for proving such statements of persons which obtained by Mr.Vani for proving misconduct relating to Charge Nos.1 and 2. Therefore, contention which has been raised by learned Senior Advocate Mr.Trivedi that in respect of Charge No.1, Industrial Tribunal, Baroda has not considered and no finding is given, cannot be accepted because in departmental inquiry only Mr.Vani was examined and except Mr.Vani, no other persons, whose statement recorded by him, were examined in departmental inquiry. Therefore, Charge Nos.1 and 2 both are not proved against respondent workman and no reasonable opportunity of cross-examining such persons or statement recorded by Mr.Vani, given by Inquiry Officer to respondent workman. In departmental inquiry merely examined Mr.Vani who has conducted preliminary inquiry and recorded certain statements which relied by Enquiry Officer without examining such persons in inquiry in respect to charges Nos.1 and 2 and none of such statements recorded in presence of respondent workman and without giving opportunity to cross-examining such persons, that itself violative of basic principles of natural justice in respect of both charge Nos.1 and 2. Therefore, Industrial Tribunal, Baroda has come to conclusion that finding which has been given by Inquiry Officer relying upon statement obtained by Mr.Vani and for that, no opportunity was given to workman to cross-examine such persons, whose statements are relied by Inquiry Officer. Therefore, in finding given by Industrial Tribunal, Baroda which relate to both charges and therefore, contention raised by learned Senior Advocate Mr.Trivedi cannot be accepted because as a whole departmental inquiry has been vitiated because it is decided contrary to principles of natural justice on the ground that except Mr.Vani, no one was examined in departmental inquiry, even though whatever statement obtained by Mr.Vani while conducting preliminary inquiry, that statement has been relied by Inquiry Officer in coming to conclusion that both charges levelled against workman, are found to be proved as per evidence of Inquiry Officer Exh.21 given before the Industrial Tribunal, Baroda. Therefore, considering finding given by Inquiry Officer in respect of second charge, none of the apprentice was examined in departmental inquiry, even though similarly statement obtained by Mr.Vani of three ladies apprentices has been utilized and used by Inquiry Officer in finding for proving charge against respondent workman. Therefore, no opportunity was given by Inquiry Officer to respondent workman against both charges and therefore, Industrial Tribunal, Baroda has rightly come to conclusion that whatever statement recorded by Mr.Vani, that statement must have to be taken into account unless and until right to cross-examination to workman concerned must be given by Inquiry Officer. But non of the persons were examined in departmental inquiry, whose statements have been recorded by Mr.Vani. Therefore, entire inquiry held to be vitiated which include both charges and not only second charge. When charges levelled against workman is found to be serious, then it is a clear finding given by Industrial Tribunal, Baroda that relying upon statement obtained by Mr.Vani in absence of respondent workman without giving opportunity of cross-examining such person, then entire inquiry is held to be vitiated and found to be contrary to principles of natural justice. Therefore, contentions raised by learned Senior Advocate Mr.Trivedi cannot be accepted.

13. Apart from that, a preliminary contention raised by learned advocate Mr.Mankad that at this stage, this petition is not maintainable in view of decision of Apex Court in the case of the Cooper Engineering Ltd. v. P.P.Mundhe reported in AIR 1975 SC 1900. He also relied upon decision reported in the case of Ramshray Ramsukh Verma v. Reliance Industries Ltd. reported in 2004 III CLR 491 and in case of Diensh Mills Ltd. v. Kedarnath R. Pande reported in 1998 II CLR 480 and also decision of Division Bench of this Court in the case of DGP Windsor India Ltd. v. Jaswantbhai Bhagwandas Patel LPA No.655 of 2002 decided on 17.3.2003 where Division Bench of this Court has held that when such preliminary point has been decided by Labour Court or Industrial Tribunal while coming to conclusion that inquiry is vitiated, then petition filed by employer is notto be entertained and maintainable.

14. The aforesaid aspect has been examined by this Court in case of Rajkot Peoples Co-operative Bank Ltd. v. Bharatbhai Hazare reported in 2008 (3) GLR 1937. In that decision of this Court, the decision which has been relied upon by learned Senior Advocate Mr.Trivedi of a learned Single Judge reported in 2000 (1) GLR 562 has been considered by this Court. The relevant discussion are in Para.4, 5, 6, 8 and 9 are quoted as under :

4. Learned Advocate Mrs. Pahwa for the petitioner submits that the very same question was considered by this Court in Patel Filters Limited versus Barkatbhai V. Narsindani and another reported in 2000(1) GLR page 562 wherein she had been appearing for the respondent workman and raised all such contentions that the departmental inquiry was vitiated because lawyer was not permitted by the enquiry officer to defend the case of the workman in departmental inquiry and, therefore, departmental inquiry was held against the workman without help of the lawyer which has been held to be illegal and contrary to the principles of natural justice by the labour court. Said order was challenged by the employer Patel Filters Ltd. Before this Court by filing Special Civil Application NO. 6546 of 1999 which was decided by this Court on 1st October, 1999. She also submitted that the decision of the apex court in The Cooper Engineering Ltd. v. P. P. Mundhe (1975-II- LLJ-379)= AIR 1975 SC page 1900 was cited before this Court and yet the Court has examined legality and validity of the order of the labour court holding that the inquiry is vitiated and ultimately, petition was allowed on the ground that the case of The Cooper Engineering Ltd. (supra) cannot be accepted as universal principle of law to be applied in all cases irrespective of its merits. She has placed reliance on para 7 of the said decision which is, therefore, reproduced as under:

7. I do agree the endeavour of the court should be to hear and decide all the issues arising in a matter simultaneously nor should a party be permitted to while away time by challenging the orders on preliminary issues and not permitting the court to decide the real issues. But this is not a case where the issue in question could have been decided along with other issues. The nature of the issue is such which has to be decided as a preliminary issue. This is the view taken by the Hon'ble Supreme Court in the matter of The Cooper Engineering Ltd. (supra). Ordinarily, the courts do not entertain petition against the decision on preliminary issues where such issues can as well be challenged after final adjudication. However, it can not be accepted as universal principle of law to be applied in all cases irrespective of its merits. In the present case, the issue raised is a clear question of law and the relevant facts are undisputed. Since the question does not raise disputed questions of facts, I feel the matter can be entertained against the decision on preliminary issue also and that is what I am inclined to do.

5. Learned Advocate Mr. Raval for the respondent submitted that in such circumstances, as per the view taken by the apex court in The Cooper Engineering Ltd. v. P. P. Mundhe (1975-II- LLJ-379), this order can be challenged by the petitioner after the final result, if it goes against the petitioner and at this stage, court should not interfere with the order and should refuse to interfere at this stage, because, otherwise, the proceedings will be held up and final adjudication will not be over within reasonable time because, according to him, respondent was dismissed from service on 13.3.2004. According to him, more than four years have passed and if the matter will remain pending before this court and if the stay is granted by this court then, for another four to five years, the petition will remain pending in this court against such order of the revisional court. He submits that if the ultimate result goes against the petitioner, then, the petitioner can challenge such order of the labour court on all the grounds while challenging the order of the revisional court dated 16.2.2008 and, therefore, this petition cannot be entertained by this court.

6. I have considered the submissions made by the learned Advocate Mrs. Pahwa as well as Mr. Raval. I have also considered the observations made by this Court in aforesaid decision, para 7 in particular. However, it is necessary to consider the observations made in para 21 and 22 by the apex court in The Cooper Engineering Ltd. v. P. P. Mundhe (1975-II- LLJ-379). Observations made by the apex court in para 21 and 22 of the said judgment are reproduced as under:

21. Propositions (4). (6) and (7) set out above are well-recognised. Is it, however, fair and in accordance with the principles of natural justice for the Labour Court to withhold its decision on a jurisdictional point at the appropriate stage and visit a party with evil consequences of a default on its part in not asking the Court to give an opportunity to adduce additional evidence at the commencement of the proceedings or, at any rate in advance of the pronouncement of the order in that behalf ? In our considered opinion it will be most unnatural and unpractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the Labour Court prior to embarking upon an enquiry to decide the dispute on its merits. The reference involves determination of the larger issue of discharge or dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal. Besides, even if the order of dismissal is set aside on the ground of defect of enquiry a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to? This is neither going to achieve the paramount object of the Act, namely, industrial peace, since the award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed, pro tempore, as a result of such an award, will be revived and industrial peace will again be ruptured. Again another object of expeditious disposal of an industrial dispute (see S. 15) will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster industrial peace.

22. We are 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 as a preliminary issue. On that decision being pronounced it will be for the management to decide 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. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter if worthy can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.

8. It is necessary just to understand the industrial law which is not similar to civil law. The proceedings under industrial law which related to right to livelihood and therefore, certain restrictions are imposed by Apex Court in number of decisions. The dismissal or discharge order passed by employer challenged by workman under the industrial forum must have to be adjudicated by Labour Court under the machinery of Industrial Disputes Act, 1947. The dismissal or discharge may be based upon departmental inquiry or may not be based upon departmental inquiry. If the allegations are made against the workman and no departmental inquiry was conducted, then, employer can request the Labour Court to permit them to lead proper evidence before the Labour Court for proving charge against the workman. Once, departmental inquiry was conducted and dismissal order was passed, then, it is for the workman to raise contention against such departmental inquiry that it is vitiated because of no opportunity was given which violates basic principles of natural justice. The employer can defend his inquiry and mentioned it that departmental inquiry conducted against the workman is legal and valid. However, it is open for the employer to ask for opportunity in case if departmental inquiry is vitiated by Labour Court. The preliminary issue is that whether departmental inquiry is proper or not must have to be examined by Labour Court first as a preliminary issue. If preliminary issue decided by Labour Court either in favour of workman or in favour of employer. On both the occasions, either party can challenge it before High Court and can request this Court to entertain this petition and stay the further proceedings. Normally, this practice to challenge preliminary issue order to the higher forum adopted by employer with a purpose to obtain the stay against the further proceedings. Number of cases on having decision on preliminary issue, the further proceedings have been stayed by High Court pending before the Labour Court. Therefore, Apex Court, in various cases, in case of D.P. Maheshwari v. Delhi Administration reported in 1983 (Lab.I.C.) 1629, The Cooper Engineering Ltd., v. P.P. Mundhe reported in AIR 1975 SC 1900 = 1975-II-LLJ 379 and other cases, decided that not to entertain such challenge on preliminary issue on behalf of the employer and both the issues can be decided finally by the Labour Court and same can be examined by Labour Court on the basis of the evidence on record. The object of Industrial Disputes Act, 1947 must have to be achieved to have as early as possible final adjudication on the industrial dispute which maintain industrial peace between the workmen and employer and it may not give a cause of another industrial dispute during the pendency of reference before the Labour Court. Similarly, a preliminary issue relating to departmental inquiry result may come either way and either party is entitled to challenge it, but, in case of The Cooper Engineering Ltd., (supra), Supreme Court has, in terms, held that not to entertain such challenge by either party to the High Court either question of law may involved or not. The reason behind it that in case if inquiry is held to be legal and valid, then, workman can challenge the finding given by inquiry officer whether finding is baseless or perverse or not and thereafter, workman can request the Labour Court to consider his case under Section 11A of the Industrial Disputes Act, 1947 that whether punishment imposed by employer is proportionate to the misconduct in question or not. These two remedies are available with the workman i.e. to challenge the finding and (ii) to request the Labour Court to exercise the power under Section 11A of the Industrial Disputes Act, 1947. So, challenge to order passed by Labour Court on preliminary issue holding inquiry is legal and valid have no fruitful purpose or there is no justification by workman. Similarly, in case, if, departmental inquiry is vitiated in whatsoever reason including the question of law examined by Labour Court, the remedy is available to the employer to request the Labour Court to permit the employer to lead evidence or proving the charge against the workman before the Labour Court. If, employer is able to prove the charge by leading fresh evidence after inquiry is declared vitiated, then, Labour Court may confirm the dismissal order and challenge to order on preliminary issue that inquiry is vitiated becomes meaningless. If, employer satisfactorily proved the charge against the workman by leading fresh evidence, then, that order will relate back to the original order of dismissal. So, employer has not to pay a single rupee when he succeeds in proving the charge against the workman. Therefore, either way challenge by either party the order of Labour Court on preliminary issue, is, ultimate dependent upon the final outcome of reference, meaning thereby that, order passed on preliminary issue cannot be decided the result of reference or fat of reference, but, it merely gives remedy to workmen and employer on different angle, but, ultimately, workmen and employer are not sufferer if preliminary issue decided by Labour Court in respect to departmental inquiry, which can be challenged along with final adjudication. Therefore, this was the object in the mind of Apex Court which reflected in Para 21 of case of The Cooper Engineering Ltd., (supra) and on that basis, the ratio decided by Apex Court in case of The Cooper Engineering Ltd., (supra) in uncertain terms not to encourage the challenge by either party as there is no justification for finalasing the petition against the order passed by Labour Court on preliminary issue. The ratio is very clear and no exception is carved out or kept open by Apex Court which gives discretionary powers to High Court to interfere with an order on preliminary issue if question of law is involved. This is not a civil proceedings, but, this is purely special enactment having subject nature of a dispute and having special effect of order on preliminary issue decided by Labour Court. So, analogy of civil proceedings will not be applicable at all to the challenge of order passed by Labour Court on preliminary issue relating to departmental inquiry.

9. It is a duty of this Court to follow the binding precedent of Apex Court without interpreting such ratio by High Court or without exercising the discretionary power upon binding precedent, this Court must have to understand and apply the precedent under Article 141 decided by Apex Court without using any kind of discussion and using discretion, otherwise, it amounts to ignore the binding precedent of Apex Court by High Court.

15. Similar aspect has also been examined by this Court in the case of Ramshray Ramsukh Verma v. Reliance Industries Ltd., reported in 2004 III CLR 491. Relevant observations are in Para. 6 to 10 are quoted as under :

6. Having noted the factual background of the rival contentions, if one adverts his attention to the legal issue involved in the group of petitions, one finds that the question of law which is required to be considered in the present group of petitions is whether at the interlocutory stage when the Labour Court or the Industrial Tribunal is deciding the question of legality and validity of the departmental inquiry conducted by the employer, interference is permissible and justified in a writ petition filed by the aggrieved party.

Hon'ble Supreme Court in Cooper Engineering case (supra).

In the said decision, the Hon'ble Supreme Court had specifically come to the conclusion that the Labour Court should decide as a preliminary issue whether the domestic inquiry has violated the principles of natural justice and in such a case, there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter if worthy can be agitated even after the final award. Para 22 of the said judgment reads as follows:-

"We are, 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 as a preliminary issue. On that decision being pronounced it will be for the management to decide 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. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."

As discussed earlier, the decision in Cooper Engineering (supra) was also relied upon by the Hon'ble Supreme Court in the decision in Karnataka State Road Transport Corporation (supra) with respect to the question regarding the stage at what the employer has to exercise its right to adduce additional evidence in justification of the action taken by the employer.

8. I also find that the learned single Judge of this High Court in a decision reported in 1998 (3) L.L.N. 795 (Dinesh Mills Ltd v. Kedarnath R. Pande) relying on the decision of the Hon'ble Supreme Court in the case of Cooper Engineering (supra) came to the conclusion that interference in exercise of powers under Article 226 and 227 of the Constitution would not be called for against the decision of the Labour Court which as a preliminary issue held that the domestic inquiry conducted by the employer was illegal and improper since either party canultimately challenge the same after final adjudication of the dispute. I also find that a Division Bench of this High Court also had taken a similar view in the judgment and order dated 17.3.03 passed in Letters Patent Appeal No.655 of 2002 in Special Civil Application No.2510 of 2001. In the said decision, the Division Bench also relying on the decision of the Hon'ble Supreme Court in Cooper Engineering case upheld the order of the learned single Judge refusing to entertain the petition against the interlocutory order passed by the Labour Court regarding the validity of the departmental inquiry conducted by the employer.

9. From the above decisions and in particular from the decision of the Hon'ble Supreme Court in Cooper Engineering (supra), one thing is clear that whenever the Labour Court or the Industrial Tribunal decides the validity of the departmental inquiry conducted by the employer at the interlocutory stage, writ petition challenging the said order would not be maintainable. The Hon'ble Supreme Court in Cooper Engineering (supra) observed that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision which is at a preliminary issue and the same can be agitated even after the final award. The Hon'ble Supreme Court had also observed that it will be legitimate for the High Court to refuse to intervene at that stage. The Hon'ble Supreme Court had also observed that the above observations are made to ensure that there is no undue delay in industrial adjudication.

10. Coming back to the facts of the individual cases, in Special Civil Application No.8754 of 2003, the order under challenge being that of the Industrial Court, deciding the validity of the departmental inquiry being at an interlocutory stage, no interference would be called for. I am unable to accept the contention of the leaned advocate Shri Shahani for the petitioner that the petition is required to be entertained since the Industrial Court also was dealing with a revision application of the respondent which in itself was challenging an interlocutory order passed by the Labour Court. Though it may be true that the Industrial Court itself was considering the order passed by the Labour Court at an interlocutory stage and that therefore it would have been desirable if the Industrial Court had not entertained the revision petition, that by itself would not justify the exercise of powers under Article 226 and 227 of the Constitution of India. In the facts of the present case, since the underlying principle is to avoid further delay and to ensure speedy disposal of the industrial dispute, the order of the Industrial Court being at an interlocutory stage, it would be just and proper to refuse to exercise the jurisdiction under Article 226 and 227 of the Constitution of India in view of the above mentioned decisions. One more reason for coming to the said conclusion is that the petitioner had not filed any reply before the Industrial Court in response to the revision application filed by the respondent and even reading the order of the Industrial Court, the above contention does not appear to have been taken by the petitioner during the course of the arguments also. I am unable to accept the contention of the learned advocate for the petitioner that the Industrial Court in exercise of its powers under section 85 of the Bombay Industrial Relations Act could not have passed the order in question since the Industrial Court enjoys superintending powers over the Labour Courts and that therefore this is not a case of order having been passed without jurisdiction and in view of what is stated hereinabove I am not entertaining the petition on the ground that the order under challenge is an interlocutory order and the legality of the order passed by the Industrial Court is not examined. A somewhat peculiar situation arising in the present petition, however, is that the Industrial Court has by the impugned order already upheld the legality of the departmental inquiry conducted by the respondent though at an interlocutory stage. It is not in dispute that against the final order that may be passed by the Labour Court, appeal would lie to the Industrial Court. If the findings of the Industrial Court in the impugned order are not specified to be of interim nature, in the appeal the same would come in the way of the petitioner, in case ultimately the Labour Court decides the issue against the petitioner. To obviate this difficulty, it is provided that the decision of the Industrial Court under challenge, namely, the order dated 6th December 2001 would not in any manner come in the way of the petitioner in case the Labour Court ultimately decides against the petitioner and the petitioner is required to file appeal before the Industrial Court against the order of the Labour Court. Subject to these observations, I find that the petition is not required to be entertained.

16. In view of aforesaid observations made by this Court considering aforesaid decisions and also considering decision which relied by learned Senior Advocate Mr.Trivedi, according to my opinion, Industrial Tribunal, Baroda has not committed any error in coming to conclusion that departmental inquiry which was conducted by petitioner company against respondent workman is rightly held to be vitiated and also rightly come to conclusion that it is conducted against principles of natural justice and it has not been given reasonable opportunity of cross-examining such persons whose statements recorded by Mr.Vani, Vigilance Officer. Therefore, contentions raised by learned Senior Advocate Mr.Trivedi on merits, cannot be accepted and hence, rejected. Hence, there is no substance in present petition. Accordingly, present petition is dismissed. Notice is discharged. Interim relief, if any, shall stand vacated.

17. It is made clear by this Court that matter has been argued on merits by learned Senior Advocate Mr.Trivedi, therefore, this Court has also considered merits along with preliminary point raised by other side. So, on both grounds, contentions raised by learned Senior Advocate Mr.Trivedi are not accepted by this Court as reasons given by this Court as referred above.

(See :Harjinder Singh V/s. Punjab State Warehousing Corporation, 2010 (1) SCALE page 613 and State of Haryana & Ors. v. Manoj Kumar reported in 2010 AIR SCW 1990.) (H.K.RATHOD,J.) (vipul) Top