A. J. SADASHIVA, J.

( 1 ) THOUGH the petitions are listed for preliminary hearing, since the first respondent had entered caveat, the petitions are taken up for final disposal with the consent of both the parties.

( 2 ) THESE two writ petitions are by the same petitioner against two orders passed by the second respondent in Reference No. 22/89, In W. P. No. 17495/93, the petitioner has sought for a writ of certiorari to quash the order dated 18-8-1992 passed by the second respondent, answering the preliminary issue against the petitioner, and, the order dated 5-3-1993 directing the petitioner to pay the first respondent 50% of gross salary with effect from 1-10-1992 as an interim-relief, is sought to be quashed in W. P. No. 17496/93.

( 3 ) SRI B. C. Prabhakar, learned counsel for the petitioner submits that, the validity of the order impugned in W. P. No. 17496/93 is dependent upon the validity of the order impugned in W. P. No. 17495/93 by which the domestic enquiry has been set aside. Accordingly W. P. No. 17495/93 is taken up for consideration first.

( 4 ) SRI V. Gopala Gowda, learned counsel for the first defendant has raised a preliminary objection as to the maintainability of the writ petitions. He submits that, in view of the pronouncements of the Supreme Court in the decisions reported in this court would refuse to entertain the writ petitions against an order of the second respondent on a preliminary issue like the validity of the domestic enquiry.

( 5 ) SRI B. C. Prabhakar, learned counsel for the petitioner submits that, the pronouncement of the Supreme Court in the aforesaid cases will not have an universal application, as the Supreme Court has not held that the writ petitions are not at all maintainable against the order passed by the Labour Court or Industrial Tribunal on a preliminary issue. It is his further submission that, the application of the aforesaid decisions of the Supreme Court, is dependent upon the facts and circumstances of each case, as the Supreme Court has observed that, in order to prevent undue delay in industrial adjudication resulting in the workmen being shuttled from court to court, neither the High Court nor the Supreme Court, in exercise of their jurisdiction under Articles 226 and 136 of the Constitution is required to be too astute to interfere with the exercise of jurisdiction by the Tribunals at interlocutory stage on preliminary issue. He further submits that there is no total prohibition for this court to act in exercise of its jurisdiction under Article 226 of the Constitution, if the circumstances so warrants. In support of his contention Sriprabhakar has referred me to two decisions of this court reported in Placing reliance on these two decisions Sri B. C. Prabhakar submits that, this court would not reject the writ petition against the orders of the tribunals on preliminary issue as not maintainable, but it would exercise its jurisdic tion under Article 226 of the Constitution, depending upon the facts and circumstances of each case, as has been done by this court in the aforesaid cases, wherein, the reference was also made to the decisions of the Supreme Court. Sri Prabhakar further submits that, the order impugned in these writ petitions are illegal and unsustainable both on law and on, facts as the order of the second respondent is not based on any evidence, but on surmises and conjuctures. He further submits that, it is not sufficient, for the second respondent to set aside the domestic enquiry, if it is shown that the enquiry is not conducted fairly and properly, it must be further proved that by improper enquiry, it has resulted in prejudice to the interest of persons against whom enquiry was held. In this context, it is his submission that, the domestic enquiry, despite refusal to examine the witnesses afresh in the presence of the first respondent, has not resulted in any prejudice to the case of the first respondent, as he has chosen to cross-examine the witnesses in d

Click Here to Read the rest of this document