The main legal point established is that in cases of dismissal or discharge of an employee referred for industrial adjudication, the Labour Court should first decide whether the domestic enquiry violated the principles of natural justice as a preliminary issue.

ORDER :

1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has challenged the orders dated 2.2.2017 and 5.10.2017 passed by the Labour Court, Anand in Reference (LC) No.92 of 2000.

2. Heard learned senior advocate Mr.K.M.Patel assisted by learned advocate Mr.Varun Patel for the petitioner and learned advocate Mr.Girish Das for the respondent.

3. Learned senior advocate Mr.Patel has mainly submitted that the Reference (LC) No.92 of 2000 is pending before Labour Court, Anand. During the pendency of the said reference, the respondent filed application under Section 11(A) at Exh.14 on 9.1.2004 claiming that the punishment of dismissal inflicted upon the workman is disproportionate to the misconduct. Therefore, under this application, the respondent-workman admits the validity and legality of the departmental inquiry but challenges the degree of punishment. However, thereafter, application Exh.15 came to be filed by the respondent on 9.1.2004 wherein the respondent challenges the validity and legality of the departmental inquiry. The respondent also filed additional statement of claim Exh.16 and the petitioner company filed additional written statement Exh.19. The petitioner produced documentary evidence of departmental inquiry before the Labour Court vide Exh.20 to support its case and to prove the legality and validity of the departmental inquiry. At this stage, it is pointed out that the petitioner submitted application Exh.25 before the Labour Court and urged that the issue of legality of departmental inquiry be decided as preliminary issue. Learned senior advocate has pointed out from the record that vide order dated 22.2.2005, the Labour Court allowed the application Exh.25 and thereby it was held that the issue with regard to the validity of the departmental inquiry be decided as preliminary issue. It is submitted that the respondent has not challenged the said order by filing petition before this Court and thereby the respondent has accepted the order passed by the Labour Court below Exh.25. At this stage, it is also pointed out that the petitioner submitted application Exh.29 and submitted that the respondent-workman has challenged the legality and validity of the departmental inquiry proceedings by submitting application Exh.15. Therefore, the burden to prove the same is upon the respondent-workman. First, the workman has to lead the evidence regarding the validity of the departmental inquiry proceedings and on the merits of the case as well. Learned senior advocate has, at this stage, further submitted that the Labour Court passed an order on 25.1.2007 and allowed the application Exh.29 and thereby held that the respondent workman has to step into the witness box first as burden to prove that the departmental inquiry is illegal is on the respondent workman. It is pointed out from the record that the respondent has challenged the said order by filing petition being Special Civil Application No.29801 of 2007 before this Court. This Court admitted the said petition, however, no stay was granted in favour of the respondent. Thereafter, on 7.2.2013, the petition filed by the respondent workman was dismissed for default.

3.1 In view of the aforesaid facts, learned senior advocate submitted that both the orders passed by the Labour Court, first below Exh.25 and another order passed below exh.29 have attained finality.

3.2 At this stage, it is contended that thereafter the respondent workman filed affidavit Exh.41 and thereby led the oral evidence on merits of the case as a whole. The petitioner therefore submitted application Exh.42 and requested the Labour Court to hear the application Exh.15 first and decide the issue of legality of the departmental inquiry. The Labour Court passed the impugned order contrary to the order passed below Exh.25. Thereafter, the respondent workman again filed another affidavit Exh.46 leading oral evidence on merits of the case as a whole. On the v