The Labour Court has two distinct functions under section 33(2)(b) of the Industrial Disputes Act, 1947: (1) to review the validity of the domestic enquiry conducted by the employer, and (2) to enquire into the merits of the charges against the employee if the domestic enquiry is found to be invalid. After finding the domestic enquiry to be invalid, the Tribunal must give an opportunity to the parties to adduce additional evidence and then enquire into the merits of the charges.

( 1 ) THE main point in this case relates to the two distinct and disparate functions of the Labour Court or Industrial Tribunal under clause (b) of sub-section (2) of section 33 of the Industrial Disputes Act, the necessity to keep their difference in mind and the confusion which results otherwise.

( 2 ) THE Respondent No. 2 was charge sheeted for un-authorised and habitual absence in attending to the work of the petitioner, i. e. employer. The charge was that from January to October 1964, the Respondent No. 2 was so absent for a few days in each month. the total absence coming to 33 days. The Industrial Relations Officer held an enquiry and found the charge proved. The petitioner consequently dismissed the Respondent No. 2 and then applied to the Industrial Tribunal Respondent No. 1 for the approval of the said dismissal. The chargesheet is at Annexure A, the report of the Domestic Enquiry Office is at Annexure and the application for approval is at Annexure E to the writ petition. Soon after making the said application, then petitioner field another application befor the Tribunal on 18th March, 1966 at Annexure F stating that in case the Tribunal was not satisfied with the domestic enquiry, the petition may be allowed to lead evidence before the Tribunal The award of the Tribunal is at Annexure G to the writ petition.

( 3 ) THE award given by the Tribunal is brieflly as follows:- (1) That the enquiry held by the petitioner s industrial irelations officer was not proper or fair; (2) the absence of the Respondent No. 2 from duty from 13th February 1964 to 18th February, 1964 was due to strike and should not have been included in the chargesheet but should have been the subject matter of aseparate charge. The absence of the Respondent No. 2 from 4th to 8th of May 1964 was due to his arrest in a criminal prosecution. It was not fair to include that absence in the chargesheet (3) The personal file of the Respondent No. 2 containing his attendance and leave record was filed during the. enquiry proceedings land examined by the Enquiry Officer but was riot produced by the petitioner before the Tribunal except certain attendance charts. The attendence register was not produced though it has been repeatedly referred to in the report of the Enquiry Officer. (4) In the circumstances the Tribunal was unable to record its approval to the dismissal of the respondent No. 2 (5) it is true however that if the past record of the workman including the year 1964 were to form the subject-matter of acomprehensive chargesheet and a fair enquiry is held before an independent person, it would not be difficult for the petitioner to prove the charge of absenteeism against the Respondent No. 2 on the basis of mere documentaryguvn^niary and formal oral evidence if the record is really as ,bad as was sought to be made out at the enquiry Such a fresh enquiry would still be open to management. But on the basis of the present enquiry it is not possible to accord approval to the dismissal.

( 4 ) THIS writ petition is filed by the employer against the abovementioned award of the Industrial Tribunal mainly on the ground that afterholding that the disciplinary enquiry was not proper, the Tribunal failed to give an opportunity to the employer to prove the harge against Respondent No. 2. The Tribunal has failed to give a finding on the merits of the charge as it was bound to do so. The Respondent No. 2 resisted the writ petition on the ground that the Tribunal not only set aside the disciplinary enquiry as being unfair but also rightly refused to approve the dismissal of the Respondent No. 2 by the petitioner. The question which I have to consider is what was the duty of the Tribunal after coming to a finding that the domestic enquiry hell against the Respondent No. 2 was not fair and whether the Tribunal has correctly performed it.

( 5 ) IT is important to remember that the Tribunal or the Labour Court to Whom an application is made under the