IMPORTANT POINT
An employer retains the right to justify dismissal or discharge of an employee before a tribunal by presenting evidence, even if no prior inquiry was conducted, and this right exists regardless of the timing of the request.

JUDGMENT/ORDER

BHARAT P. DESHPANDE, J. - Heard. Rule. Rule made returnable forthwith. Heard learned counsel appearing for the parties, with consent for final disposal.

2. The order impugned in the present petition is dtd. 07/09/2022 below Exh.C-9 passed by the learned Labour Court, Amravati, thereby rejecting the application filed by the employer to permit them to conduct an enquiry / to prove the charges before the said Tribunal on the ground that no enquiry was conducted before removal of the respondent.

3. Learned counsel for the petitioner would submit that first of all, such right is available to the petitioner. As it is settled that even if no enquiry is conducted or even defective enquiry is found to be conducted, the employer is entitled to seek permission for proving the charge in order to justify the decision taken by the employer.

4. Learned counsel for the petitioner placed reliance on 1] Workmen of the Motipur Sugar Factory Private Ltd. Vrs. The Motipur Sugar Factory, reported in (1965) 3 SCR 588, 2] (The workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vrs. The management and others, reported in (1973) 1 SCC 813) and 3] State of Uttarakhand and others Vrs. Sureshwati, reported in (2021) 3 SCC 108.

5. Per contra, learned counsel for respondent would submit that the proposition of the permission to prove the charges against the employee before the concerned Tribunal is not disputed, however, he would submit that the application has to be filed at proper and appropriate stage, which is the stage of filing of the written statement i.e. at the earliest stage, where the employer has to make request or justify the action for proving action of the employer before the concerned Tribunal. He would submit that in the present matter, written statement filed by the employer clearly goes to show that there was no such request. The application was filed subsequently and when the matter was pending for further evidence of the employee.

6. The rival contention calls for consideration.

7. The Hon'ble Apex Court in the case of Workmen of the Motipur Sugar Factory Private Ltd. (supra) while dealing with this aspect and more particularly in Paragraph No.11 observed thus :-

"11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held (see Indian Iron and Steel Co. v. Workmen) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to Sana Musa Sugar Works (P) Limited v. Shobrati Khan, Phulbari Tea Estate v. Workmen, and Punjab National Bank Limited v. Workmen. These three cases were further considered by this Court in Bharat Sugar Mills Limited v. Jai Singh, and reference was also made to the decision of the Labour Appellate Tribunal in Ram Swarath Sinha v. Belsund Sugar Co. It was pointed out that "the important effect of omission to hold an enquiry was merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out". It is true that three of these cases, except Phulbari Tea Estate case, were on applications under Sec. 23 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Sec. 33 or on a reference under Sec. 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if