Judgment

GUPTA, J. :- This appeal by special leave is directed against the Award made on August 9, 1973 by the Fifth Labour Court at Bombay deciding some of the issues arising for consideration in the reference before it.

2. The appellant company owns a factory at Thana near Bombay. Among the Workmen of the company are" Operators"who work under the supervision of "Chargehands". On December 30, 1970. One Ashok Bhambani who was an Operator employed in the Company s aforesaid factory is alleged to have threatened a Charge-hand, Ramesh Thadani, with assault because Ramesh Thadani had reported against another operator who was consequently removed from service. According to the Management Ashok Bhambani followed up this threat by assaulting Ramesh Thadani at abort 5.30 pm. that very day in the train between Thana and Mulund when Ramesh Thadani was on his way home after the day s work. Next day i.e. December 31, 1970 several Junior Assistants and Chargehands employed in the factory submitted to the Factory Manager a memorandum signed by them protesting against the assault on Ramesh Thadani. A chargesheet was served on Ashok Bhambani asking him to explain in writing why disciplinary action should not be taken against him for threatening and Assaulting Ramesh Thadani which, it was stated, constituted a grave misconduct. After Ashok Bhambani had submitted his explanation, them was an enquiry into the charges against him, conducted by Shri D. S. Chandnani, Personnel Officer of the Company. The Enquiry Officer having considered the evidence adduced at the enquiry found that the charges of threat and assault against Ashok Bhambani had been established. Ultimately, on February 9, 1971 Ashok Bhambani was dismissed from service. The employees Union having raised a demand for his reinstatement in service with full back wages and continuity of service, the dispute was referred for adjudication to the Labour Court, Bombay.

3. . At the request of the parties the Labour Court heard as a preliminary issue the question whether the domestic enquiry was unfair, improper and unjust and against the principles of natural justice. It appears that along with this issue the Court also dealt with another question, namely, whether or not Ashok Bhambani was guilty of misconduct as alleged by the Company. Both the parties made their submissions also on this point before the Labour Court. In this Court the findings recorded by the Labour Court on both the questions were assailed by the appellant and supported by the respondent and no objection was taken by either side that the Labour Court while deciding the preliminary issue should not have gone on to record a finding on the other question as well. The propriety of the Award containing the findings of the Labour Court on these,two points is in question in this appeal.

4. On the preliminary issue the Labour Court held that the enquiry had not been conducted in a fair and proper manner, and on the question of misconduct found that the alleged assault did not amount to misconduct under the Standing Orders of the Company.

5. The finding that the enquiry had not been fair is based on the following facts. One Anant Bana, a Charge-hand, who had signed the memorandum dated December 31, 1970 stated before the Enquiry Officer that he had not signed any such memorandum. No one represented the Management at the Enquiry. It appears that the Enquiry Officer made a note that Mr. Bana had "turned hostile" and proceeded to put certain questions to the witness to resolve the apparent conflict between his statement at the enquiry and what the Memorandum dated December 31, 1970 purported to show. In answer to the questions put by the Enquiry Officer Mr. Bana admitted that he had signed the memorandum and that the words "I was present at the time of the incident" appearing against his signature were by his own hand, and further that he presented the memorandum along with others to the Factory Manager. This witness was cross-examined at