ALOKE CHAKRABARTI, J.

( 1 ) THE employer filed an application in the adjudication proceeding pending before the Labour court upon a reference of a dispute arising out of termination of the workman concerned in a disciplinary proceeding praying for deciding the additional issue as to whether the domestic enquiry held was valid and proper as a preliminary issue. By the Impugned order, the said prayer was rejected by the Labour Court and challenging the same this writ petition was filed.

( 2 ) MS. Bharti Sapru, learned counsel for the petitioner-employer relied on the judgments in the case of M/s. D. C. M. Shriram Industries Ltd. v. State of U. P. and others. 1996 (72) FLR 713 ; star Paper Mills Ltd. , Saharanpw v. Presiding Officer and others, 1987 (55) FLR 634 and cooper Engineering Ltd, v. P. P. Mundhe, 1975 (31) FLR 188. Reference was also made to the judgment of the Full Bench in the case of M/s. Swarup Vegetable Products Industries Ltd. v. Labour Court IInd, Meerut and others, 1997 (77) FLR 547, for the purpose of distinguishing in the same in view of the law laid down by the Apex Court.

( 3 ) MR. Y. K. Sinha, learned counsel for the respondent workman contended that such issue need not be decided as a preliminary issue and employer is required to seek for opportunity to adduce evidence in support of its order. In support of such contention, reference was made to the case of workman v. M/s. Fire Stone Tyre and Rubber Co. of India (P.) Ltd. , AIR 1973 SC 1227 ; shanker Chakrauarti v. Britania Biscuits Co. Ltd. , AIR 1979 SC 1652 ; State Bank of India v. R. K. Jain, AIR 1972 SC 136 ; Rana Pratap Singh v. State of U. P. , 1996 (I) Cr LJ 665 and M/s. Swarup Vegetable Producfs Industries Ltd. v. Labour Court IInd, Meerut and others, 1997 (77)FLR 547.

( 4 ) ON behalf of the employer. strong reliance was placed on the judgment in the case of Cooper engineering Ltd. (supra) for the purpose of contending that the validity of the enquiry has to be decided as a preliminary issue. A perusal of the said judgment shows that the question which fell for consideration in the said case, as formulated in the very first paragraph of the judgment, was whether when a domestic inquiry held by an employer is found by the Labour Court as violative of the principles of natural justice, there is any duty cast upon that Court to give an opportunity to the employer to adduce evidence afresh before it and whether failure to do so would vitiate its award. Again, in paragraph 9 of the judgment question under consideration was indicated as to whether it is the duty of the Tribunal to make known its decision to the parties on the jurisdictional aspect of the case so that the employer can avail of the opportunity to justify the dismissal based on the charge. The said judgment apparently was delivered deciding the aforesaid aspect and it was held as follows :

"we are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We a

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