Arijit Banerjee, J.

(1) This matter is before us by reason of a reference made by a Division Bench of this Court by an order dated 15th December, 2011 passed in the course of hearing an appeal against the judgment and order dated 7th April, 2005 passed by the Ld. Single Judge in W.P No. 2392 of 2001.

(2) By an order dated June 25, 1999 the Government of West Bengal had referred an industrial dispute between the appellant and one of its employees to the First Industrial Tribunal. The dispute arose as the said employee was dismissed from service after a domestic enquiry was held by the management. The Ld. Tribunal considered the issue of validity of the domestic enquiry and by an order dated 22nd August, 2001, held that the participation of the Presenting Officer as a witness in the domestic enquiry rendered the enquiry as well as the entire proceeding inoperative and without jurisdiction. In passing such order the Ld. Tribunal relied on two decisions of this Court:-

(i) Sarajit Coomer Mazumder vs. Calcutta Dock Labour Board & Ors. reported in Cal. LT. 1998 (1) HC 431.

(ii) Mohd. Miya v. State of West Bengal & Ors. reported in 2000 (86) FLR 1.

(3) The appellant challenged the said order of the Ld. Tribunal by way of a writ petition being WP NO. 2392 of 2001.

(4) The Ld. Single Judge held that as the Presenting Officer appeared as a witness in the domestic enquiry, the principle of natural justice was violated and, therefore, finding of the Enquiry Officer was liable to be set aside and the order of punishment of dismissal imposed on the employee should be quashed.

(5) Being aggrieved, the appellant preferred the above appeal.

(6) The Hon’ble Division Bench noted the decisions rendered by two Ld. Single Judges of this Court in the cases of Sarajit Coomer Mazumdar (supra) and Mohd. Miya (supra). In Sarajit Coomer Mazumder the Ld. Single Judge held that the participation of the Presenting Officer as a witness in the enquiry, rendered the enquiry and the entire proceedings inoperative and without jurisdiction. In Mohd. Miya (supra) the aforesaid principle of law was reiterated and Sarajit Coomer Mazumder (supra) was relied upon.

(7) However, the Division Bench was faced with a dilemma since two earlier Division Bench judgments of this Court were placed before it, which came to diametrically opposite conclusions.

(8) The Ld. Advocate for the delinquent employee relied on a decision of the Division Bench of this Court in the case of Bharat Cocking Coal Ltd. vs. Surendra Pratap Narayan Singh reported in 2003 (3) CLR 719. In this case the Court observed that the fact that the Presenting Officer acted as a witness in the enquiry proceeding was an abnormal feature in the conduct of the enquiry. Normally, the Presenting Officer has to present the case of a management and he cannot appear as a witness, but peculiarly, in this case the Presenting Officer appeared as a witness and what was submitted by him was taken as Examination-in-Chief and the delinquent was asked to cross-examine him. This was a peculiar method adopted by the authorities in conducting the enquiry which was unknown in law.

(9) Ld. Counsel for the appellant on the other hand relied on another Division Bench decision of this Court in the case of Life Insurance Corporation of India Ltd. vs. Presiding Officer, Central Labour Court reported in 2007 (3) CHN 558. In this case the Division Bench took a diametrically opposite view and held as follows:-

“21. Let us now come to the third objection raised by the delinquent and accepted by the Tribunal with regard to the evidence laid by the Presenting Officer.

22. Employer herein being a corporate entity was to act through individuals. The Presenting Officer deposed before the Enquiry Officer. The delinquent had an opportunity to cross-examine him. We are unable to find out any law by which the Presenting Officer was precluded from giving any evidence. In the instance case, the Presenting Officer was an employee of the appellant. He was