The Industrial Tribunal is not obligated to frame a preliminary issue on the fairness and propriety of an enquiry before considering an application under Section 33(2)(b) of the Industrial Disputes Act. It is the employer's responsibility to avail of the opportunity to lead evidence by making a suitable request before the proceedings are closed.

JUDGMENT :

R.C. Patnaik, J. - In this writ application, the employer has assailed the awards of the Industrial Tribunal in I.D. Misc. Case Nos. 6/86 and 16/86 declaring the termination of the services of opposite parties 3 to 7 as invalid declining to grant approval u/s 33(2)(b) of the Industrial Disputes Act (for short, "the Act") and declaring that the workmen would be deemed to be continuing in employment without interruption and entitled to wages and other service benefits.

2. On allegation that the opposite parties 3 to 7 assaulted Shri Ramakanta Banu, Supervisor, while he was proceeding to report to duty, they were dismissed from service with effect from August 1, 1986. The workmen filed an application u/s 33A of the Act against the management for contravention of the mandatory provisions contained in Section 33(2)(b) of the Act as the management had not sought approval from the Tribunal prior to the dismissal. The application was registered as I.D. Misc. Case No. 6 of 1986. An application filed by the management u/s 33(2)(b) was registered I.D. Misc. Case No. 16 of 1986. The workmen had alleged that the punishment of dismissal had been imposed without a disciplinary proceeding, whereas the management pleaded that there was no infirmity in the termination of the services of the opposite parties 3 to 7. A disciplinary proceeding was initiated and at the said enquiry, the workmen had failed to establish their innocence and there was no infraction of the principles of natural justice. The management further pleaded that it would substantiate its action "through documentary and oral evidence at the time of hearing" and sought the dismissal of the application filed by the workmen both on the preliminary ground as well as on merits.

3. The application filed by the management and that filed by the workmen were clubbed together at the request of the parties for analogous hearing and disposal. At the hearing, the management examined one witness and the workmen examined three witnesses and documents were exhibited and award was passed, as stated above.

4. The Tribunal held that the application u/s 33(2)(b) filed by the management had not been simultaneously despatched. Secondly, the enquiry was not fair and proper inasmuch as the workmen were not afforded reasonable opportunity to defend themselves and there was violation of principles of natural justice. Thirdly, the Tribunal held that there was no material before it to justify the termination of services of the workmen on grounds of misconduct. The Tribunal even observed that no request was made by the management to adduce evidence before it to establish the charges and justify the punishment imposed.

5. It was contended by the counsel for the management that the application u/s 33(2)(b) was forwarded to the Labour Court instead of the Industrial Tribunal before which the Industrial dispute was pending due to typographical mistake. As soon as the mistake was detected, necessary steps were taken. This point should not detain us here having regard to the more important question on which the case proceeded. The management has not disputed the finding recorded by the Tribunal that the enquiry was not fair and proper inasmuch as the workmen had not been afforded adequate opportunity to defend themselves and principles of natural justice were contravened thereby. Counsel for the petitioner vehemently urged that the Tribunal should have framed a preliminary issue if the enquiry was fair and proper and it should have called upon the management to substantiate the charges and the punishment if it were of the view that the enquiry was not fair and proper. By its failure to grant the management an opportunity, it failed to exercise jurisdiction vested in it under the law. Therefore, the award was not sustainable.

6. The questions that were mooted were if the Tribunal was obliged to frame a preliminary issue as to whether the enquiry was fair and proper and then if the finding was against the man