JUDGMENT

DESAI, J.:—There is no dissent from the judgment prepared by my learned brother Varadarajan, J. and I concur in the same. This short epilogue is provoked by one statement made in the judgment in Shankar Chakravarti v. Britannia Biscuit Co Ltd., (1979) 3 SCR 1165 which was relied upon by Mr. Damania, learned counsel for the respondents to support the decision of the High Court. The statement relied upon by Mr. Damania may be properly understood so that in future the meaning of the statement may not remain obscure resulting in a fresh round of litigation commencing from Bharat Sugar Mills Ltd. v. Jai Singh, (1962) 3 SCR 684 and ending with a decision in Shankar Chakravartis case.

2. At the outset it is necessary to extract the passage relied upon by Mr. Damania in support of his submission that if the employer makes an application to the Labour Court /Industrial Tribunal that in the event the domestic enquiry is found to be either improper, invalid or vitiated, the Labour Court / Industrial Tribunal should accept the application of the employer and give it an opportunity to substantiate the charges imputing misconduct and leading to the termination of the service of the workman. The passage reads as under :

"Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under Section 10 or Section 33 of the Act questioning the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take a certain action or seeking approval of the action taken by it. If such a request is made in the statement of claim, application or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings."

If this passage is examined divorced from the context in which it was drawn-up, we may feel that the contention of Mr. Damania deserves to be accepted. But the journey through the courts of the point, involved in dispute if kept in view the passage explains itself. Most of the decisions bearing on the subject were examined in Shankar Chakravartis case (AIR 1979 SC 1652), but firm reliance was placed in that case by the employer on the decision of this Court in Cooper Engineering Ltd, v. P. P. Mundhe, (1976) 1 SCR 361 and especially the following passage therein (at p. 1652) :

"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."

Relying on this statement of law in Cooper Engineering Ltd. case, it was contended in Shankar Chakravartis case that it is the obligatory duty of the Labour Court / Industrial Tribunal to frame a preliminary issue whether the domestic enquiry is valid or vitiated? After answeri