Sohani, C.J:— This Letters Patent Appeal is directed against the judgment, dated 27 January, 1989, passed by a learned Single Judge of this Court in Civil Writ Jurisdiction Case No. 1542 of 1986 (R).

2. The material facts giving rise to this appeal, briefly, are as follows: Respondent 2 was employed as an auto-electrician by the appellant. In a domestic enquiry held against respondent 2 for misconduct he was found guilty of the charges levelled against him and was, accordingly, dismissed from service. Aggrieved by the order of dismissal, respondent 2 raised an industrial dispute, which was referred by the State of Bihar to the Presiding Officer, Labour Court, Ranchi, for adjudication under S. 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). In the written statement filed by respondent 2 before the Labour Court he averred that the enquiry officer was prejudiced against him and that the enquiry was not fair and proper, inasmuch as after the management and respondent 2 had adduced evidence and closed their case, the management was permitted to examine one more witness without giving an opportunity to respondent 2 to rebut that evidence. It was also averred that on account of certain incidents referred to in the written statement, the officers of the appellant were extremely prejudiced against respondent 2 and that the order of dismissal was the result of victimisation. In the written statement filed on behalf of the appellant it was prayed that the Labour Court be pleased to decide first the question of propriety of the domestic enquiry and that if it was held that the enquiry was not proper, the appellant would adduce evidence in support of the action taken against respondent 2. The Labour Court thereafter proceeded to decide the question of validity of the domestic enquiry as a preliminary issue. The Labour Court found, on the basis of the material produced before it, that after the management had adduced evidence and closed its case and after the evidence of the workmen was recorded the enquiry officer permitted the management to adduce further evidence and that instead of giving opportunity to the workman to lead evidence in rebuttal, he was allowed to be cross-examined by the management. It was also found that the enquiry officer had made spot inspection without informing the workman about it. In view of these findings, the Labour Court held that the enquiry was violative of the principle of natural justice and was, therefore, invalid. Aggrieved by this order passed by the Labour Court, the appellant filed a petition before this Court under Arts. 226 and 227 of the Constitution of India. That was registered as Civil Writ Jurisdiction Case No. 33 of 1984 (R). A learned Single Judge of this Court allowed that petition holding that the reasons given by the Labour Court for setting aside the domestic enquiry were unsustainable in view of the fact that respondent 2 had stated before the enquiry officer that he was given all opportunity to defend his case and that the enquiry officer, even if he had made local inspection, behind the back of respondent 2, had not relied upon the report of that inspection, while arriving at his finding. The learned Single Judge, therefore, quashed the order passed by the Labour Court. When the matter went back to the Labour Court, respondent 2 submitted an application before the Labour Court that he be allowed to adduce evidence to show that the action of the management was mala fide and that he was victimised as he had refused to attend to the private work of officers of the appellant. This application was resisted by the appellant on the ground that the Labour Court had no jurisdiction to permit the workman to adduce any evidence in view of the proviso to S. 11-A of the Act. The Labour Court, however, held by its order, dated 5 September, 1986, that the workman was not debarred from adducing evidence to prove victimisation, unfair labour practice or mala fides on the part of the management. Aggrieved by that order, the appellant filed a petition before this Court under Arts. 226 and 227 of the Constitution. That petition was dismissed by a learned Single Judge of this Court by a very well considered judgment. Aggrieved by the judgment, the appellant has filed this Letters Patent Appeal. When this appeal came up for hearing before a Division Bench of this Court, the correctness of a Division Bench decision of this Court in Bihar State Road Transport Corporation, Patna v. State of Bihar [Civil Writ Jurisdiction Case No. 58 of 1982 (R) disposed of on 4 December, 1984], on which reliance was placed by the learned Single Judge, was doubted. A Full Bench, was, therefore, constituted to hear this appeal. That is how this matter has come up before us for consideration.

3. Dr. Devi Pal, learned counsel for the appellant, contended that in view of the proviso to S. 11-A of the Act the Labour Court had no jurisdiction to take any fresh evidence in relation to the dispute referred to it under S. 10 of the Act, and the learned Single Judge, therefore, erred in holding that the proviso to S. 11-A of the Act did not have the effect of curtailing the jurisdiction which a Labour Court possessed prior to the insertion of S. 11-A in the Act, to decide whether the management was guilty of unfair labour practice, mala fide or victimisation. It was further contended that in any event the workmen having failed to adduce any evidence regarding bias or victimisation when the preliminary issue was fixed for hearing by the Labour Court, he could not thereafter be allowed to adduce any evidence in that behalf. In reply, it was contended by Sri Mitter, learned counsel for respondent 2, that in view of the decision of the Supreme Court in Workmen of Firestone Tyre and Rubber Company of India (Private), Ltd. v. Firestone Tyre and Rubber Company of India (Private), Ltd., [1973-I L.L.N 278], the learned Single Judge was right in upholding the order passed by the Labour Court.

4. Before I proceed to appreciate the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of S. 11-A of the Act. That section reads as follows:

“11A. Power of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman.— Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks 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 may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”

The aforesaid provision was inserted in the Act by the Industrial Disputes (Amendment) Act, 1971, which came into force on 15 December, 1971. In order to construe it properly it would be just and proper, as observed by the Supreme Court in Goodyear India, Ltd. v. State of Haryana, [1989 (4) J.T.S.C 229], to see what was the position before the amendment and find out what was the mischief sought to be remedied and then discover the true rationale for such remedy. The following observations of Lord Reid in Black-Clawson International, Ltd. v. Papierwerke Waldhof-Aschaffenburg As., [1975 (1) All E.R 810], are pertinent:

“It has always been said to be important to consider the ‘mischief which the Act was apparently intended to remedy. The word ‘mischief is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act.”

The aforesaid observations were approved by the Supreme Court in 1989 (4) J.T 229 (vide supra). In the light of the aforesaid observations let us see what was the position before insertion of S. 11-A in the Act and whether it disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the amending Act. Now prior to insertion of S. 11-A the Act did not contain any provision with regard to powers of a Labour Court while adjudicating a dispute relating to discharge or dismissal of a workman, referred to it under S. 10 of the Act. Therefore, industrial jurisprudence was slowly built up by the Supreme Court in the direction indicated by the Constitution in its directive principles. By the year 1971, when S. 11-A came to be inserted in the Act, the principles governing the jurisdiction of a Labour Court while adjudicating disputes relating to dismissal or discharge of a workman were well settled by the Supreme Court. One of these principles was that when a proper enquiry, which was not violative of the principles of natural justice, had been held by an employer and the finding of misconduct was a plausible conclusion flowing from evidence adduced at the said enquiry, the Labour Court would have no jurisdiction to sit in judgment over the decision of the employer as an appellate body but would be justified in interfering with the decision of the employer only when the findings arrived at in the domestic enquiry were perverse or the management was found guilty of victimisation, unfair labour practice or mala fide. In the absence of these infirmities, it was held to be beyond the reach of a Labour Court to interfere with the managerial function. Similarly, the question of punishment was also considered to be a managerial prerogative and could not normally be interfered with on the ground of propriety or adequacy. In addition to these principles evolved by the Supreme Court governing industrial adjudication relating to discharge or dismissal of a workman by an employer, the Supreme Court also recognised the original jurisdiction of a Labour Court to go into the matter of the justifiability of the action of discharge or dismissal in the case of an invalid enquiry or no enquiry. In State Bank of India v. R.K Jain, [1971-II L.L.J 599], the Supreme Court held that the enquiry before the Tribunal was a composite one. The right of the management to sustain its order by adducing independent evidence before the Tribunal was recognised.

5. Thus the parameters of industrial adjudication in the matter of disciplinary proceedings against employees were well settled when S. 11-A was inserted in the Act on 15 December, 1971. There was, however, one aspect which was not satisfactory. Even though adjudication by Tribunals was provided for settling disputes relating to disciplinary action by the employer or the jurisdiction of the Tribunals hearing these matters did not extend to reappraisal of evidence led in domestic enquiry, like an appellate body. The Tribunal did not also have power to award lesser punishment in lieu of discharge or dismissal if the circumstances of the case so required. It was with a view to confer these powers on the Tribunal that S. 11-A was inserted in the Act as would be clear from the following statement of object and reasons appended to Bill No. XXIII of 1971, which resulted in the enactment of the Industrial Disputes (Amendment) Act, 1971, inserting S HA in the Act:

“Statement of Objects and Reasons

In Indian Iron and Steel Company, Ltd. v. Their workmen, [1958-I L.L.J 260], the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has observed that in cases of dismissal on misconduct the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc., on the part of the management.

2. The International Labour Organisation, in its recommendation (No. 119) concerning ‘termination of employment at the initiative of the employer’ adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination, among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and in the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organisation has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages should be paid adequate compensation or afforded some other relief.

3. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power, in cases wherever necessary, to set aside the order of discharge or dismissal any direct reinstatement of the workman on such terms and conditions, if any, as it thinks 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 may require. For this purpose, a new S. 11-A is proposed to be inserted in the Industrial Disputes Act, 1947.”

It would thus be clear that S. 11-A was not inserted in the Act to limit the jurisdiction of the Tribunal which it passed by virtue of the law laid down by the Supreme Court but it was inserted to confer power on the Tribunal to reappraise evidence adduced in the domestic enquiry and to grant appropriate relief to workman, powers which the Tribunal did not possess earlier. In the circumstances, the question for consideration is how S. 11-A of the Act should be construed.

6. Now the main provision in S. 11-A does not present any difficulty. Section 11-A read without the proviso does not indicate that the entire law as laid down by the Supreme Court in the matter of adjudication of industrial disputes relating to dismissal or discharge of a workman has been altered and replaced. The proviso, however, creates difficulty. It is so worded that if construed literally, it would have the effect of debarring a Labour Court from receiving any evidence whatsoever while adjudicating a dispute relating to discharge or dismissal of a workman. If the rule of literal construction is followed, the proviso would have the effect of taking away the jurisdiction which a Tribunal possessed, as a result of evolution of industrial jurisprudence by the Supreme Court over all these years, to decide questions of fact as to whether the disciplinary action taken against a workman by the management was actuated by mala fides, victimisation or unfair labour practice or was violative of the principle of natural justice, or whether in the case of no enquiry or defective enquiry the action of the employer could be sustained by allowing the employer to adduce evidence before the Tribunal to prove misconduct. It cannot be disputed that the determination of all these questions would require investigation into facts which will have to be brought on record for the first time before the Tribunal by adducing evidence in that behalf. If the proviso is construed to shut out any fresh evidence whatsoever before the Tribunal in relation to the matter before it, which is the justifiability of the disciplinary action taken against the workman, then the proviso would have the effect of curtailing the jurisdiction of the Tribunal which it possessed prior to the insertion of S. 11-A of the Act by virtue of the law laid down by the Supreme Court. It is well settled, as observed by the Supreme Court in 1989 (4) J.T 229] (vide supra), that reasonable construction should be followed and literal construction may be avoided if that defeats the manifest object and purpose of the Act. That is why the Supreme Court held in 1973-I L.L.N 278 (vide supra), that by the insertion of S. 11-A in the Act the entire law, as laid down by the various decisions of the Supreme Court, had not been altered and that there was no indication in S. 11-A that the rights of parties recognised by the Supreme Court in its various decisions in the matter of industrial adjudication relating to disciplinary action taken by an employer, had been taken away. The Supreme Court rejected the contention that the expression “materials on record” occurring in the proviso to S. 11-A referred only to the materials available at the domestic enquiry and the expression “fresh evidence” referred to the evidence to be adduced for the first time before the Tribunal. In this connection, the Supreme Court observed as follows:

“… 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 Supreme Court thus held that proviso to S. 11-A of the Act does not deprive an employer of his right to adduce evidence for the first time before the Tribunal in the case of no enquiry or defective enquiry. It follows from the decision that the proviso to S. 11-A has not to be construed literally because if it is construed literally, it would have the effect of altering the entire law relating to adjudication of industrial dispute in the matter of discharge or dismissal of a workman, laid down by the Supreme Court, which was not the object of insertion of S. 11-A in the Act. That object, as we have seen, was to confer wider jurisdiction on the Tribunal which it did not possess in adjudication proceedings relating to disciplinary action taken by the management referred to the Tribunal under S. 10 of the Act. The object was not to take away the rights conferred on the management or the workman in such adjudication proceedings by virtue of the decisions of the Supreme Court in the field of industrial adjudication. If these rights were not intended to be disturbed by S. 11-A, as held by the Supreme Court in 1973-I L.L.N 278 (vide supra), it follows that the right of the workman to adduce evidence before the Tribunal to make out a case of bias, want of good faith or victimisation or unfair labour practice cannot be held to have been taken away by insertion of S. 11-A in the Act.

7. If the proviso to S. 11-A of the Act is construed reasonably, it would be clear that the proviso was inserted by the Parliament to place limitation on the powers of a Tribunal as an appellate authority hearing appeals from the decision in the domestic enquiry. The proviso to S. 11-A lays down, as held by the Supreme Court in 1973-I L.L.N 278 (vide supra), that the Tribunal for the purpose of exercising power conferred by the main provision of S. 11-A 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 bar to receiving fresh evidence contemplated by the proviso to S. 11-A would apply only against receiving fresh evidence, while reappraising evidence recorded in the domestic enquiry.

8. There is also another aspect which has to be borne in mind while construing the proviso to S. 11-A of the Act. It is well settled that the language of a proviso, even if general, is normally to be construed limiting its operation to the field covered by the section to which the proviso is appended. The following observations in Dwarka Prasad v. Dwarka Das Saraf , [(1976) 1 SCC 128 : A.I.R 1975 S.C 1758], are pertinent:

“… The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. ‘Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context’ [1912 A.C 544]…”

The proviso to S. 11-A of the Act cannot be held to exclude reception of evidence in relation to matters not touched or intended to be touched by the section to which the proviso is appended. In Mohan Meakin Breweries, Ltd. v. Commissioner of Excise, Bihar, [A.I.R 1970 S.C 1171], the Supreme Court held that though in the proviso to rule 147 of the rules framed under the Bihar and Orissa Excise Act, 1915, the expression used was “an excisable article” that expression did not embrace foreign liquor not imported under the bond because the main part of the rule, to which the proviso was appended applied only to foreign liquor imported under the bond. The proviso to S. 11-A of the Act will, there fore, come into play only when the wider powers of an appellate authority conferred on a Tribunal by S. 11-A are sought to be exercised by the Tribunal for ascertaining the correctness or otherwise of the finding in the domestic enquiry. In matters not covered by the main section, the proviso would not be attracted. That is why the Supreme Court held in 1973-I L.L.N 278 (vide supra), that the proviso did not bar reception of fresh evidence by the Tribunal when the domestic enquiry was set aside and the management proceeded to justify its action by adducing evidence before the Tribunal about the guilt of the workman in exercise of right available to the management under the law evolved by the Supreme Court in the matter of adjudication of disputes relating to disciplinary action taken by the management. For the same reasons, if according to law laid down by the Supreme Court prior to the year 1971, a workman became entitled to assail the action of the employer before the Tribunal on the ground that the action against him is vitiated on account of violation of the principles of natural justice, or on the ground of victimisation or unfair labour practice or mala fide and if this matter is not covered by the main section, how can a workman be debarred from adducing evidence in that behalf on the ground that the proviso to S. 11-A of the Act shut out that evidence? The learned Single Judge was, in my opinion, right in holding that the proviso to S. 11-A of the Act did not take away the right of respondent 2 to adduce evidence with regard to bias or victimisation.

9. It was then contended on behalf of the appellant that respondent 2 having failed to adduce evidence as prayed for, when the question of validity of the domestic enquiry was being tried by the Labour Court as a preliminary issue, he could not now be allowed to adduce evidence in that behalf. Apart from the fact that this point was not urged by the appellant before the Labour Court or before the learned Single Judge or in the memorandum of appeal before this Court, because the only contention advanced on behalf of the appellant was that in view of the proviso to S. 11-A, no evidence whatsoever can be taken by the Tribunal, I do not find from the record of the Labour Court that any issue relating to bias or victimisation was framed by the Labour Court. The question of the validity of the domestic enquiry was tried as a preliminary issue in the context of the plea taken by respondent 2 that the enquiry was vitiated because the management was permitted in the domestic enquiry to adduce evidence after it had closed its case and after the evidence of respondent 2 was recorded. Though the plea was upheld by the Labour Court and domestic enquiry was found to be farcical, the order of the Labour Court was set aside by a learned Single Judge of this Court. I refrain from expressing any opinion about the merits of that order because that order is not the subject-matter of appeal before this Court. There is no material on record to hold that in the instant case the Labour Court had applied its mind to the question as to whether the action taken by the management was vitiated because of bias of the enquiry officer or for want of good faith or on account of victimisation. Respondent 2 has raised these pleas in his written statement and it is but proper that he should be allowed opportunity to adduce evidence to substantiate these pleas. It was contended that the question of victimisation would not be relevant if misconduct was proved. What would be the effect of bias or victimisation on the action taken by the management are matters for the consideration of the Labour Court and I refrain from expressing any opinion in that behalf. But at this stage, respondent 2 cannot be debarred from adducing evidence in that behalf. This is not a case where an issue was framed by a Labour Court embracing all the pleas taken by a workman assailing the action of the management and the workman had failed to adduce evidence in that behalf when the said issue was being tried. In the circumstances of the case, therefore, the learned Single Judge was, in my opinion right in holding that there was no error apparent on the face of record for quashing the impugned order passed by the Labour Court, I see no cogent reason to take a view different from that taken in the decision in Civil Writ Jurisdiction Case No. 58 of 1982 (R) on which reliance was placed by the learned Single Judge. No case is, therefore, made out for interference with the order passed by the learned Single Judge.

10. The appeal fails and is, accordingly, dismissed. In the circumstances of the case, parties shall bear their own costs of this appeal.

11. Roy, J.:— I agree. However, I am adding few words of my own.

12. During the course of hearing of the writ petition, it was found necessary to notice the order-sheet of the Presiding Officer, Labour Court, Ranchi. The record was called for.

12A. The management had in the written statement stated that the domestic enquiry held against respondent 2 the workman was fair and proper. Respondent 2 in his written statement stated that the domestic enquiry was vitiated as there has been violation of the principles of natural justice.

13. The management prayed for deciding the question of validity of the domestic enquiry as a preliminary issue. I may notice that no specific order or point in this regard was framed by the Labour Court. But from the order of the Labour Court, dated 11 July, 1983, that appeared to be the position. This fact is again confirmed by the order of the Labour Court, dated 29 September, 1983, wherein it was recorded that argument on the question of validity of the domestic enquiry began. On 14 December, 1983, order was passed and the first paragraph of that order reads as follows:

“This is an order on legality and validity of the domestic enquiry.”

It is thus clear that the parties led evidence only on the question of legality and validity of the domestic enquiry and along with that the order of dismissal of respondent 2 on the ground of victimisation and unfair labour practice was not taken up by the Labour Court.

14. It is not the case of the management that while trying the question of fairness of the domestic enquiry, the Presiding Officer called upon respondent 2 to adduce evidence on his assertion that the order was bad as it was a case of victimisation or unfair labour practice. The allegation of respondent 2 about victimisation and unfair labour practice could not have been gone into by the enquiry officer. Respondent 2 was entitled to raise this question before the Labour Court. Since the Labour Court did not call upon respondent 2 to lead evidence on the question of victimisation and unfair labour practice, while deciding the fairness of the domestic enquiry, respondent 2 was entitled to pray to the Labour Court to allow him to lead evidence on this point, when the domestic enquiry was held to be fair.

15. Dr. Pal in support of his contention that the Labour Court had no jurisdiction to allow respondent 2 to lead further evidence relied in Rohtas Industries, Ltd. v. Workmen, [1978 L. & I.C 949], and Cawnpur Sugar Works v. State of Bihar, [1984 P.L.J.R 813].

16. In Rohtas Industry case, [1978 L.& I.C 949] (vide supra), the award of the Tribunal was challenged both by the management and the workmen, the former challenged on the ground that the Tribunal could not have ordered for reinstatement by holding that the charge bad not been proved, and the latter challenged the award on the ground that as the Labour Court held that charge had not been proved, it should have passed an order of reinstatement. The Tribunal held that the domestic enquiry was fair and the workmen accepted this position. Notwithstanding these facts, the Tribunal directed the parties to adduce fresh evidence with regard to the charge framed against the workman. One of the questions raised before the High Court was that once the Tribunal held the domestic enquiry to be fair whether it could have directed the parties to lead further evidence with regard to the charge framed against the workmen. Relying on Workmen of Firestone Tyre and Rubber Company India, (Private) Ltd., [1973-I L.L.N 278] (vide supra), it was held that the Tribunal had no jurisdiction to admit fresh evidence on that point.

16A. In Cawnpur Sugar Works case, [1984 P.L.J.R 813] (vide supra), the workmen, after holding the domestic enquiry, were dismissed from service. The Labour Court held that the domestic enquiry was fair and proper. The management thereafter had led further evidence before the Labour Court to prove the charge against the workmen. The Labour Court while giving the award confined itself to the records of the domestic enquiry and rejected the prayer of the management to consider the fresh evidence brought by it before the Labour Court. The Division Bench upheld the order of the Labour Court by holding that as the domestic enquiry had been held to be fair and proper, there was no question of leading fresh/additional evidence to prove the charge. The principle laid down in both the cases, i.e, in Rohtas Industry case, [1978 L. & I.C 949] (vide supra) and Cawnpur Sugar Works case (vide supra), has no application to the facts of this case.

17. These are also some of the reasons for which I am of the opinion that the learned Single Judge whose judgment is subject-matter of this appeal was correct.

18. S.B Sinha, J.:— While concurring with the operative portion of the judgment delivered by Hon'ble the Chief Justice, in view of the importance of the question involved in this case, I wish to add a few words of mine:

19. The question involved in this case is:

“Whether in view of proviso to S. 11-A of the Industrial Disputes Act, 1947, any fresh evidence can be adduced on the point of victimisation, unfair labour practice and mala fide on the part of the management?”

The purport and object of insertion of S. 11-A in the Industrial Disputes Act, 1947, by reason of Industrial Disputes (Amendment) Act, 1971 (Act 47 of 1971), has been discussed by Hon'ble the Chief Justice in details.

20. There cannot be any doubt that in terms of the aforementioned provisions, the jurisdiction of the Tribunal to give an appropriate relief to the workman has been extended to a great extent.

21. By reason of the aforementioned provisions, the Labour Courts and the Tribunals have been conferred with a wide power not only to consider the materials of the domestic enquiry held against the delinquent workman afresh, so as to come to a finding, as to whether the workman can be said to be guilty of the misconduct allegedly committed by him and found to be correct in the domestic enquiry but also to consider as to whether the order of discharge or dismissal passed against the concerned workman should be suitably altered so as to meet the exigencies of the circumstances.

22. However, it is now well settled that the power of the Labour Court or the Industrial Tribunal is although wide, it can interfere with the findings of the domestic enquiry only on assigning cogent and sufficient reasons.

23. A domestic enquiry held against a workman for the purpose of finding out as to whether he is guilty of the charge of misconduct alleged against him or not in terms of the provisions of the standing order, framed under Industrial Employment (Standing Orders) Act, 1946, is quasi-judicial in nature. Such a proceeding, therefore, has to be held fairly and after giving all reasonable opportunity to the concerned workman to prove his innocence as also in compliance with the procedures laid down therefor in the standing order itself.

24. Even in a case of domestic enquiry, the enquiry officer is required to assign reasons in support of his findings.

25. It is now well known that prior to enactment of S. 11-A in the Industrial Disputes Act, the Industrial Tribunal could interfere with the action taken by the management, if principles of natural justice were violated or the findings were perverse or if there was victimization, mala fide or unfair labour practice on the part of the management was alleged.

25A. Reference in this connection may be made to East India Hotel v. Their Workmen, [1974-I L.L.N 159].

26. In this case, the learned Single Judge relying upon the decisions of the Supreme Court in Workmen of Firestone Tyre and Rubber Company India (Private), Ltd., [1973-I L.L.N 278] (vide supra), in Employers in Relation to Keda North and Kedia Underground Project, Hazaribagh v. Presiding, Officer, Central Government Industrial Tribunal II, Dhanbad, [1988 B.L.T 389], and an unreported decision of a Division Bench of this Court in Bihar State Road Transport Corporation v. State of Bihar [Civil Writ Jurisdiction Case No. 58 of 1982 (R)] (vide supra), held that as even prior to enactment of S. 11-A of the said Act, evidences could be adduced on the question as to whether the order of dismissal or discharge has been passed by the management by way of victimization, mala fide or unfair labour practice, the position in law has not undergone any change despite insertion of S. 11-A.

27. However, as noticed by Hon'ble the Chief Justice, Dr. Pal appearing on behalf of the management submitted that in view of the proviso appended to S. 11-A of the said Act, the Tribunal bad no jurisdiction to take any fresh evidence and has to rely solely upon the materials available on records of the disciplinary proceeding alone.

28. Dr. Pal, in this connection, has placed strong reliance upon Rohtas Industries, Ltd. v. Workmen, [1978 L & I.C 949] (vide supra), Cawnpur Sugar Works v. State of Bihar, [1984 P.L.J.R 813] (vide supra), Divisional Manager (Collieries) of Tata Iron and Steel Company, Ltd. v. Assistant Engineer, [1988 P.L.J.R 12].

29. The question posed at the Bar is difficult and complicated one. The Supreme Court in Firestone case, [1973-I L.L.N 278] (vide supra), held that the materials on record comprise:

(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 action taken by an employer as well as the evidence adduced by the workmen contra.

Reference in this connection may also be made to Idukki District Estate Workers Union v. Labour Court Court, [1988-II L.L.N 296] and Andhra Pradesh State Road Transport Corporation v. Labour Court, Hyderabad, [1986-I L.L.N 739]. In Travancore-Cochin Chemicals, Ltd. v. V.P Damodara Menon, [1981 L. & I.C 233], it has been held that the power under S. 11-A is of an appellate Court.

30. From a plain reading of the “proviso,” it is evident that the same is mandatory in nature. It not only states in unequivocal terms that the Labour Court or the Tribunal shall rely only on the “materials on record” but a prohibition in no uncertain terms has been made in taking any fresh evidence concerning the “matter.”

31. In Firestone case, [1973-I L.L.N 278] (vide supra), the Supreme Court has construed both the words “materials on record” as also the word “matter.”

32. In order to answer the question involved in this appeal, therefore, it is necessary to construe as to whether evidences adduced for the first time before the Labour Court or the Tribunal as the case may be, on victimization, mala fide or unfair labour practice, would constitute materials on records or not.

33. In my opinion, “materials on records” in relation to the “matter” as has been interpreted by the Supreme Court, not only brings within its fold all the evidences led by the parties before the domestic enquiry but also the evidences adduced by the parties before the Tribunal relating to the legality, validity of the said enquiry itself leading to passing of the impugned order of dismissal or discharge.

34. As has been indicated by the Supreme Court in Firestone case, [1973-I L.L.N 278] (vide supra), and the various decisions following the same, that it would be open to the employer to make a prayer before the Labour Court or the Industrial Tribunal, as the case may be, that the legality, validity or otherwise of the domestic enquiry should be decided by way of preliminary issue and in the event if it be held that the said domestic enquiry is found to be vitiated by reason of being illegal or invalid for any reason whatsoever, the employer may pray for adducing fresh evidence before the Labour Court or the Tribunal to prove the charges of misconduct against the concerned workman.

34A. In such a situation, the concerned workman can also lead evidence contra.

35. However, the workman can bring any evidence on record to show at the time of hearing of the preliminary issue, if decided to be framed and disposed of on the prayer of the employer or if otherwise all the issues are to be determined together, so as to enable him to show that for any reason whatsoever the domestic enquiry was vitiated in law and/or the order of dismissal or discharge is otherwise illegal, invalid or unjust.

36. The pleas of victimization, mala fide or unfair labour practise, by the workmen on the part of the management is a serious one and thus the same, if proved, may entail a finding that the domestic enquiry was vitiated. The pleadings in relation to the aforementioned matters, thus, must contain all the necessary ingredients thereof.

36A. Reference in this connection may be made to Bharat Iron Works v. Bhagubhai Balubhai Patel, [1976-I L.L.N 19].

37. As noticed hereinbefore, Hon'ble the Chief Justice has dealt in details about the intention of the Legislature in inserting S. 11-A in the Industrial Disputes Act. It is absolutely clear that by insertion of the aforementioned provision the Parliament's intention was to confer power upon the Labour Court or Industrial Tribunal which it did not previously have. It also appears to be clear that Parliament, intended to get rid of the limitation of power of the Labour Court and the Industrial Tribunal in the matter of reappraisal of evidence adduced before the domestic enquiry. It is well known that the Parliament is presumed to know the law of land existing at the time of legislation.

38. Evidently thus, the Parliament had no intention to curtail the power of Industrial Tribunal or Labour Court, as the case may be which it had prior to insertion of S. 11-A of the Industrial Disputes Act. Thus, in my opinion, in the instant case, the Parliament by inserting S. 11-A of the Act, has remedied the then existing unsatisfactory state of affairs, See 1975 (1) All E.R 810, which has been referred to by the Supreme Court in Goodyear India, Ltd. v. State of Haryana, [1989 (4) J.T 229]. (vide supra). Section 11-A of the Act has, thus, to be construed in this back-drop. In this view of the matter, the proviso which seeks to restrict the power conferred upon the Industrial Tribunal or the Labour Court as the case may be, in terms of S. 11-A of the Act which must be read in the context of the said provision only and the restrictions imposed by the provision to S. 11-A can not be extended to any other power of the Industrial Tribunal or the Labour Court, as the case may be. Section 11-A read with its proviso, if thus construed, would not only be in consonance with the intent and object of the Act but also would be in consonance with principles of interpretation of statutes. It is true that a proviso may have three separate functions and four different purposes as has been held by the Supreme Court in S. Sundaram Pillai v. V.R Pattabiraman, [(1985) 1 SCC 591 : A.I.R 1985 S.C 582], wherein the Supreme Court held as follows:

“The well-established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment.”

39. Proceeding further the Supreme Court held:

“In short generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modity the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself.”

40. The Supreme Court after considering various authorities on interpretation of statutes and various other decisions summed up the purposes which the proviso may serve—

“(1) qualifying or excepting certain provision from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.”

41. However, in the instant case the proviso evidently relates to the proceeding under S. 11-A of the Act meaning thereby the proviso has to apply where S. 11-A has to be made applicable.

42. However, as noticed herein before, the Supreme Court in Firestone case, [1973-I L.L.N 278] (vide supra), has laid down as to what would constitute the “materials on record” as also what would constitute the “matter”. In this view of the matter, the adduction of fresh evidence is barred in relation to the “matter namely” the order of the discharge or dismissal that is being considered by the Tribunal.”

43. Thus viewed, as evidence can be adduced to show that the departmental proceeding was vitiated for any reason whatsoever which would from part of materials on record in relation to the “matter” in my opinion, there is no bar in adducing evidence on the pleas of mala fide, victimisation or unfair labour practice on the part of the employer.

44. How ever, in this connection some decisions rendered by different High Courts may be noticed.

45. In India Forge and Drop Stamping, Ltd. v. Additional Labour Court, Madras, [1986-I L.L.N 880], it has been held by the Madras High Court that the right of an employer to adduce evidence before the Tribunal is not impaired, when the finding of the domestic enquiry has been held to be valid and in accordance with the principles of natural justice, by the Labour Court but it disagreed with the conclusions arrived at by the enquiry officer in the domestic enquiry.

45A. In State Bank of Patiala v. Central Government Industrial Tribunal-cum-Labour Court [1986-I L.L.N 374], a Full Bench of the Delhi High Court held in the facts of that case that no illegality has been committed by the Tribunal in allowing both the management as also the workmen to lead independent evidence.

46. In Travancore-Cochin Chemicals, Ltd. v. V.P Damodara Menon, [1981 L. & I.C 233] (vide supra), it has been held that additional evidence can be led with regard to the status of an employee.

47. However, in W.S Insulators of India, Ltd., Madras v. Mohamed Moosa, [1979-I L.L.N 155], it has been held that a workman cannot bring in additional evidence to the effect that subsequent to the holding of the departmental enquiry, he has been acquitted by a criminal Court.

48. In the decisions cited by Dr. Pal, interpreting the proviso to S. 11-A of the Act, it has been held that no fresh evidence can be adduced.

49. In Rohtas Industries v. Workmen, [1978 L. & I.C 949] (vide supra), a Division Bench of this Court after holding that the Tribunal could not have admitted or relied upon any fresh evidence and has to base its findings on the domestic enquiry and the evidence produced before it, proceeded to hold as follows:

“The question as to whether the parties can lead further evidence in support of their respective cases and whether the Tribunal can permit them to do can only arise after the Tribunal gives its finding on the merits of the case after confinding its consideration of the evidence in the domestic enquiry.”

(Emphasis supplied.]

49A. In Cawnpur Sugar Works v. State of Bihar, [1984 P.L.J.R 812] (vide supra), another Division Bench of this Court held as follows:

“Accordingly, I hold that in view of the finding that the domestic enquiry held by the petitioner was fair, the petitioner was not entitled to rely on any evidence not led in the domestic enquiry and the Labour Court was perfectly justified in refusing to take into consideration new evidence.”

50. In Esem Tools and Components v. Labour Court, Ranchi, [1988 P.L.J.R (NOC) 12], a learned Single Judge of this Court held that once the domestic enquiry is held to be fair, no further evidence can be allowed to be led.

51. On the other hand, as noticed hereinbefore, the learned Single Judge has relied upon his own decision in Employers in Relation to Keda North and Kedia Underground Project, Hazaribagh v. Presiding Officer, Central Government Industrial Tribunal II, Dhanbad, [1988 B.L.T 389] (vide supra), wherein it was held:

“In view of the above decision, it is now well settled that after the introduction of S. 11-A in the Industrial Disputes Act, the jurisdiction of the Industrial Tribunal has now been considerably widened. It is open to an Industrial Tribunal to consider the evidence produced before the enquiry officer and to reappraise the same. It is also open to the Industrial Tribunal to disagree with the findings recorded by the enquiry officer and to record its own findings on the basis of the materials already placed before the enquiry officer. It cannot permit fresh evidence to be adduced or to be taken into account on the merit of the case. But it is open to the Tribunal to permit such evidence under S. 11-A of the Industrial Disputes Act while considering the question of victimisation or unfair labour practice. It may be observed that even if the Tribunal has found that the domestic enquiry has been held fairly and properly that does not preclude the Tribunal from reappraising the evidence produced in the domestic enquiry and to come to a different conclusion.”

52. The learned Single Judge also relied upon an unreported decision of this Court in Civil Writ Jurisdiction Case No. 58 of 1982(R).

53. In my opinion, there is not much conflict in the aforementioned decisions.

54. The Supreme Court in Firestone, [1973-I L.L.N 278] (vide supra), clearly laid down that although in the event a preliminary issue with regard to the validity or legality of the domestic enquiry is decided against the management, it can lead fresh evidence in order to satisfy the Labour Court or the Tribunal that the concerned workman in fact has committed a misconduct and in that event, the workman will get an opportunity to lead evidence contra. It is thus evident that such evidence will form part of the “materials on records.”

55. While deciding such a preliminary issue, it will be open to the workman also to bring on record such materials as in his opinion, may be necessary to show that the domestic enquiry held by the employer was not an enquiry in the eye of law, i.e, not only the facts suggesting invalidity of the enquiry or violation of the principles of natural justice but the same would also include acts of victimization, mala fide or unfair of labour practice on the part of the management which, if proved, would vitiate the domestic enquiry itself. Similarly the management can also adduce fresh evidence to show that the Tribunal has no jurisdiction to decide the industrial dispute.

56. However, once such evidence has been led by the workman and/or the management, no other evidence can be permitted to be adduced at any subsequent stage, in the event, it is held by the Labour Court or by the Tribunal, as the case may be, that the domestic enquiry was valid, proper and legal or the Tribunal has jurisdiction to decide the dispute.

57. However, as noticed hereinbefore, situation may be different when the preliminary issue is decided in favour of the management and the management, in that event, will not be entitled to lead additional evidence for the purpose of proving the misconduct on the part of the concerned workman.

58. In such a situation only, the entire brought on records whether before the domestic enquiry or before the Labour Court or the Tribunal deciding the preliminary issue, would constitute materials on records.

59. But there cannot be any doubt whatsoever that at no stage, the parties will be allowed to lead any evidence except in the manner as stated hereinbefore with regard to the merits of the case, meaning thereby, the facts which might have been necessary to bring on records for the purpose of proving the guilt of misconduct on the part of the concerned workman or the order of discharge or dismissal as that would constitute additional evidence in the “matter” which is forbidden by reason of the “proviso” to S. 11-A of the Act.