M. Govindaraj, J.
1. For the sake of convenience, the parties are referred to as 'the Management' and the 'delinquent'.
2. Both the Writ Petitions are preferred against the Award passed by the Labour Court in I.D.No.28 of 1994, dated 17.03.2008.
3. The Labour Court in the award dated 17.03.2008 set aside the punishment of dismissal and ordered reinstatement without back wages. The Management has challenged the interference of the punishment imposed by them and the delinquent has challenged a portion of the award for not awarding back wages.
4. The facts of the case projected by the parties is as under: The Management is running a Textile Mill and producing cotton yarn and the delinquent was working as a Spinning Sider in the Mill. The delinquent was issued with a show cause notice on 10.03.1992 for causing production loss on 08.03.1992. On 12.03.1992, while the delinquent was working in the second shift, at about 03.15 p.m., he wilfully threw 20s counts simplex bobbin weighing about 1.5 Kilograms with a view to break the glass window, which resulted in the breakage of the glass and the bobbin fell outside. He was placed under suspension on 13.03.1992 and his explanation dated 24.03.1992 being not satisfactorily, a domestic enquiry was held. The domestic enquiry commenced on 04.04.1992, affording sufficient opportunities to the delinquent. On the side of the Management, 4 witnesses were examined and 28 documents were marked. On the side of the delinquent, 3 witnesses were examined and 25 documents were marked. Ultimately, charges were held to be proved and the second show cause notice was given to the delinquent. He submitted his explanation on 23.01.1993. However, the termination order was passed by the Management on 05.02.1993. The termination order was approved by the Industrial Tribunal in I.D.No.2 of 1993. Aggrieved over the termination, the delinquent raised an Industrial Dispute in I.D.No.28 of 1994. The Labour Court passed the impugned award dated 17.03.2008 reinstating the delinquent into service without back wages. Hence, W.P.(MD)No.8178 of 2008 is at the instance of the Management and W.P.(MD)No.1848 of 2010 is at the instance of the delinquent.
5. As far as the Management is concerned, it is contended that the Labour Court has not found fault with fairness of the enquiry. Having found that the delinquent had admitted, in his evidence, that he had thrown the bobbin, the Labour Court ought not to have interfered with the punishment.
6. On the other hand, the delinquent would contend that having set aside the punishment and ordered for reinstatement, the Labour Court ought to have awarded full backwages.
7. The learned counsel for the Management would rely on the following judgments, in support of their contention:
(i) 1975(2) LLJ (SC) 379 [The Cooper Engineering Ltd. v. Shri P.P.Mundhe];
(ii) 1999(1) L.L.N.7 [Neeta Kaplish v. Labour Court]; and
(iii) 2007-I-LLJ 444 [Management, Britannia Industries Ltd. v. Presiding Officer].
8. The learned counsel for the Management would submit that the Tribunal shall frame a preliminary issue as to the validity of the domestic enquiry and decide the same. If it is decided that the domestic enquiry is held to be fair and proper, then, it shall not interfere in the merits of the matter. On the other hand, if it is held that the enquiry is irregular, improper and invalid, an opportunity should be given to the Management for adducing additional evidence. The Management have specifically made a request that in the event of the finding that the domestic enquiry held by them is invalid and improper, the Management shall be given given an opportunity to adduce additional evidence. But, without rendering any finding as to the validity of the enquiry, setting aside the termination is illegal.
9. On the other hand, the learned counsel for the delinquent would contend that the principles of natural justice were not followed and he was not given an ample opportunity to put forth his case. Therefore, the Tribunal, while awarding reinstatement of the delinquent into service, ought to have ordered full backwages.
10. I have considered the rival contentions.
11. In 1975(2) LLJ (SC) 379 [The Cooper Engineering Ltd. v. Shri P.P.Mundhe], the Supreme Court, at Paragraph Nos.5 and 16, as follows:
"5. The question posed at the commencement of our judgment is thus highlighted by the aforesaid observations of the labour court and we are required to consider whether after the labour court comes to a decision about the inquiry being defective it has any duty to announce its decision in that behalf to enable the employer an opportunity to adduce evidence before it to justify the order on the charge levelled against a workman. There is, however, no doubt that when the employer chooses to do so the workman will have his opportunity to rebut such evidence. There is also no doubt, whatsoever, that if the employer declines to avail of such an opportunity, it will be open to the labour court to make an appropriate award and the employer will thereafter be able to make no grievance on that score."
16. We may now refer to the propositions (4), (5) and (6) in the A Delhi Cloth and General Mills' case (supra):
(4) "When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end ...."
12. In 1999(1) L.L.N.7 [Neeta Kaplish v. Labour Court]; the Supreme Court observed thus:
"13. Statement of Objects and Reasons appended to the amending Act 45 of 1971 reads as under:-
"In Indian Iron and Steel Co. Limited v. Their Workmen, (1958) 1 L.L.J. 260, the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has observed that in cases of dismissal for misconduct the, Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practise, etc., on the part of the management.
15. The provisions of Section 11-A, specially the prohibition contained in the Proviso that the Labour Court would not take any fresh evidence, came to be considered by this Court in several cases which we shall shortly notice but even before the introduction of Section 11 -A, this Court in -Ritz theatre (Pvt.). Ltd. Delhi v. Its Workmen, (1962) 2 LLJ 498 = AIR 1963 SC 285 =  3 SCR 461, laid down that where the Management relied upon the domestic enquiry in defending its action, it would be the duty of the Tribunal to first consider the validity of the domestic enquiry and only when it came to the conclusion that the enquiry was improper or invalid, it would itself go into the merits of the case and call upon the parties to lead evidence.
18(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with, in the first instance, as a preliminary issue, the validity of the domestic enquiry, If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was not guilty of the alleged misconduct."
13. In 2007-I-LLJ 444 [Management, Britannia Industries Ltd. v. Presiding Officer], this Court held thus:
"6. The 2nd respondent, who was employed as a Stacker Line Checker in the petitioner company was dismissed from service by order dated 23.3.2001 for certain acts of misconduct. Before the issuance of the order of dismissal, admittedly, an ex parte enquiry was conducted and basing on the finding of the Enquiry Officer, the order of dismissal has been passed. When the 2nd respondent raised an industrial dispute before the 1st respondent, the petitioner filed a counter justifying the dismissal order and that in the event of the 1st respondent coming to the conclusion that the enquiry conducted by the petitioner is not fair and proper, the petitioner should be permitted to let in fresh evidence justifying the allegations levelled against the workman in the order of dismissal. It is true that the dispute is of the year 2001 and after the I.D. was posted for trial on 12.10.2004, on the second day of the trial, the petitioner had filed the I.As praying before the 1st respondent to render a finding, in the first instance, about the validity of the enquiry and to eschew the evidence let in by the 2nd respondent in the form of proof affidavit and oral evidence. The said applications were resisted by the 2nd respondent. The 1st respondent, on the ground, that the two I.As have been filed only to protract the proceedings and as an Appellate Forum, the 1st respondent has got the right to go on with fresh enquiry on merits, dismissed the two I.As. But, as rightly contended by the learned Counsel for the petitioner, it is settled law, as held by this Honourable Court in the judgment reported in 2003 (2) LLN 629 (K.F.D. F.Co.(P.) Ltd. v. P.O, II Addl. L.C.) that,
"when a preliminary objection is raised with respect to the fairness of the domestic enquiry, the Labour Court has to record a finding whether enquiry is fair and proper...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.
The Tribunal had to deal with, at the first instance, about the validity of the domestic enquiry and thereafter only, the request of the Management to let in evidence comes, when the Labour Court comes to the conclusion that there was no valid domestic enquiry. The same view has been expressed by the Honourable Supreme Court of India in the judgment , (Cooper Engineering v. Shri P.P. Mundhe) at page No. 665, paragraph 22,
"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.
The same has been followed in the judgment reported in 2000 (2) LLJ 32 (Mad) (Management of Sundaram Industries v. P.O., Labour Court, Madurai). Since the order of the Labour Court is contrary to the orders of the Honourable Supreme Court and the orders of this Court, the same cannot be sustained. Accordingly, the impugned orders are set aside and the writ petitions are allowed. The Labour Court is directed to decide the preliminary issue expeditiously and in the event of the Labour court deciding the preliminary issue against the petitioner, it is open to the petitioner Management to substantiate the charges by letting in evidence."
14. On perusal of the materials placed before this Court, it is seen that the Tribunal has given a categorical finding that the delinquent has admitted the delinquency, but, it was made without any intention to cause damage to the property or cause loss to the production. While so, the Tribunal considered that fair opportunity was given to the delinquent and enquiry was conducted in a fair and proper manner. But the Tribunal has not given any finding specifically on the issue.
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br />15. In a catena of decisions, the Hon'ble Supreme Court as well as this Court have held that invoking power under Article 226 of the Constitution of India in a matter of this nature is very remote. While exercising such power, every care and caution must be taken into account. This Court cannot traverse into the factual aspect and nor roving enquiry can be conducted in a matter of this nature. This Court is also afraid of re-appreciating the evidence while exercising power under Article 226 of the Constitution of India. 16. Thus, in the absence of any finding that the enquiry was not conducted in a fair and proper manner, it should be presumed that the domestic enquiry is valid. If the enquiry is valid, the Tribunal ought not to have interfered with the punishment. Thus, the award of the Labour Court dated 17.03.2008 is liable to be set aside. 17. In fine, W.P.(MD)No.8178 of 2008 is allowed and the award of the Labour Court in I.D.No.28 of 1994, dated 17.03.2008, reinstating the delinquent, is set aside. 18. Insofar as the claim of full back wages is concerned, the Management submitted that they have paid the last drawn wages under Section 17-B of the Industrial Disputes Act to the delinquent till the date of his superannuation. In such circumstances, the Management is not liable to pay any back wages. The wages already paid under Section 17-B cannot also be recovered. 19. In view of the above findings, the claim for full back wages sought for in W.P.(MD)No.1848 of 2010 does not survive and accordingly, W.P.(MD)No.1848 of 2010 is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.