Management must seek permission to lead evidence in cases of unfair inquiry at the outset, as established by precedent.

JUDGMENT

1. Heard.

2. This appeal arises out of order dated 12.07.2016 passed by the learned Single Judge, by which the writ petition filed by the respondent-Rajasthan State Road Transport Corporation was allowed and the case was remanded to the Industrial Tribunal, Jaipur (for short 'the Industrial Tribunal') for considering afresh.

3. Brief factual matrix giving rise to present appeal and as adumbrated in the order passed by the learned Single Judge is that the appellant-workman, while working as a conductor in the service of Rajasthan State Road Transport Corporation (for short 'the Corporation'), was subjected to two different departmental inquiries under two charge sheets. In both the inquiries, charges were found proved and taking into consideration the past conduct and seriousness of the allegations levelled against the appellant, the punishment of dismissal from service was inflicted upon the appellant-workman. The Corporation moved an application under Section 33 (2)(b) of the Industrial Disputes Act, 1947 (for short 'the Act') before the Industrial Tribunal seeking its approval to the order of punishment of dismissal from service. The Tribunal, however, was of the view that the inquiry was unfair as no permission was granted to lead evidence to prove the charges and dismissed the application vide order dated 09.01.2006. Aggrieved by the order of the Tribunal, respondents filed writ petition under Article 226 of the Constitution of India seeking interference and intervention mainly on the ground that the Tribunal's findings that the two inquiries were unfair and not in accordance with law were perfunctory casual and without consideration of entire material on record. An incidental issue of entitlement of the management to prove the charges by leading evidence in case the inquiry was found to be unfair, also cropped up for consideration.

4. Learned Single Judge, by impugned order, held that the Tribunal while adjudicating upon the issue as to whether inquiry was fair or not, has not given serious consideration and the order has been passed in casual manner without consideration of entire material on record. Relying upon the Hon'ble Supreme Court decision in the case of Divyash Pandit Vs. Management, NCCBM (2007) 15 SCC 787, learned Single Judge observed that if the Tribunal finds the inquiry to be unfair and order of punishment is liable to be set aside on that ground, it may exercise its discretion as to whether in the circumstance of the case, it would be proper to allow the management/employer to prove the charges by leading evidence. It is this order, which is assailed before us in this writ appeal.

5. Learned counsel appearing for the appellant vehemently contended before us that the order of the learned Single Judge on both the counts is not just and proper under the law. He would submit that the finding of the learned Single Judge that the approach of the Industrial Tribunal has been casual, has been recorded even though no specific ground in that regard was taken in the writ petition. He would contend that writ petition lacked proper foundational pleadings against the Tribunal's order on the ground that the Tribunal had not considered all the material on record. Therefore, it is argued, there was no occasion for the learned Single Judge to dwell into that aspect and record finding that Tribunal adopted casual approach in deciding the issue of fairness of inquiry.

6. Relying upon Constitution Bench judgment of the Hon'ble Supreme Court in the case of Karnataka State Road Transport Corpn. Versus Lakshmidevamma & Another (2001) 5 SCC 433, it has been argued that the legal position with regard to entitlement of the management to lead evidence to prove charges in the event inquiry is found to be unfair, is limited. It has been authoritatively pronounced that it is not open for the management to seek indulgence to lead evidence unless it has been clearly claimed either in the application or in the written statement before