The Tribunal is not bound to decide the issue of domestic enquiry being fair and proper as a preliminary issue. The employer has the right to adduce additional evidence to substantiate its action, subject to making a request at the earlier stage of the proceedings. The provisions of Section 6-I of the U. P. Industrial Disputes Act, 1947 and Rule 40 of the Industrial Disputes Rules, 1957 are enabling provisions intended to further the welfare of the workman.

( 1 ) THIS is employers writ petition against the workman challenging the validity of two orders passed by the Presiding Officer, Industrial Tribunal-II, Lucknow, in industrial dispute referred by Government Order No. 11280, dated December 2, 1985. The first order under challenge is dated April 23, 1986 contained in Annexure 4 whereby the prayer of the petitioner-employer for deciding the issue of domestic enquiry being fair and proper as preliminary issue was rejected. The second order is also of the same date contained in Annexure 4 to the writ petition whereby the workmans application, dated April 16, 1986 seeking change of his representative to present his case before the Tribunal was allowed.

( 2 ) THE first question arising for consideration in this writ petition is whether in the facts of the case the rejection of prayer of the employer for decision about the domestic enquiry being fair and valid as a preliminary issue was justified and proper and secondly, whether the acceptance of the request of the workman for change of his representative during the course of the proceedings before the Tribunal was proper and according to law.

( 3 ) AFTER perusal of the affidavits exchanged between the parties and upon hearing of the learned counsel for the parties the factual position as regards the first point appears like this. On the basis of the pleadings of the parties the learned Tribunal framed issue No. 1 in the following terms:

(1) Whether the domestic enquiry against the contesting workman has been just and fair? On the same day (4th March 1986) the learned Tribunal, however, passed the order that this issue will not be heard or decided as a preliminary issue in view of the law laid down by the Supreme court in case of D. P. Maheshwari (1983-II-LLJ-425 ). It was added that the employer was at liberty to prove the charges against the workman in the Tribunal. This means that at the time of the framing of the issue request was made on behalf of the employer that the issue relating to the domestic enquiry being just and fair may be decided as a preliminary issue but the learned tribunal rejected this prayer on the same day with a brief order by placing reliance on D. P. Maheshwaris case (supra) (See para 10 of the counter-affidavit ). It appears that the employer re-agitated the matter and submitted an application on April 23, 1986 reiterating his demand for treating issue of domestic enquiry as preliminary issue. This application was rejected with the observation that "in view of the fact that it is only a repetition of an earlier request. There was little merit in the application. " (See the impugned order itself Annexure 4 ).

( 4 ) REGARDING the second point the order passed by the learned Tribunal is quite detailed. The workman was being represented by the Secretary of the espousing union, namely, Vikram Cotton mills Karmchari Sangh. On 16th April 1986 the workman moved an application for change of the representative praying that O. P. Saxena who was Joint Secretary of the other union of the workmen in the same establishment may be permitted to represent him. This prayer was opposed from the side of the employer placing reliance on the decision in Santoo Ram Kodais case (supra ). The learned Tribunal after considering the matter formed the opinion that Santoo Ram kodais case pertaining to the interpretation of the provision of Bombay Industrial Relations Act, 1947 has no direct application to the matter and that the decision relied from the workmans side supported his view point. It was mentioned that the acceptance of the prayer for change of the representative was justified because the workmans espousing union was not taking adequate interest in the dispute and the office-bearer of the union who was looking after his case lost workmans confidence. Another ground mentioned was that D. R. Sinha who was sought to be substituting as representative was an office-bearer of the other union functioning in the sam