Judgment LALIT MOHAN SHARMA and GOVIND MOHAN MISRA JJ. 1. By this application under Arts. 226 and 227 of the Constitution of India, the petitioner has challanged the order passed by the Presiding officer, Labour Court, Muzaffarpur, Respondent No.1, as contained in Annexure 6 to the writ application. The petitioner was employed as the chief Operator in the cinema hald know as Chitra Bani in the town of Purmen. Respondent No. 2 was the managing partner of the cinema. 2. According to the case of the petitioner, on 1-4.1971 he received a notice (Annexure 2) demanding explanation in respect of his conduct in a matter mentioned therein. The petitioner submitted his explanation (Vide Annexure 2/1.). On the 11th May, 1871, the petitioner is said to have recevied another letter through registered post from Respondent No. 2 calling upon to explain as to why he refused to received as letter dated 6-5-71 sent to him through peon with a peon book and why he had misbehaved with the manager of the cinema. The petitioner submitted his explanation as contained in Annexure 3 dated 13-5-71. Respondent No. 2 thereafter without holding an enquiry dismissed the petitioner by order dated 21-5-1971 as contained in Annexure 1. The petitioner then made a complaint before Respondent No. 1 under sub-s. (2) of S. 26 of the Shops and Establishments Act, 1953 (herein after referred to as the Act); copy of the application has been annexed to the writ petition as Annexure 4. After service of notice, Respondent No. 2 filed show cause on 28-7-72 supporting the petitioners dismissal. On 22-11-1971 Respondent No. 2 by an amendment introduced, inter alia, a new plea that a domestic enquiry had been held on the 17th and 18th May, lfc71 against the petitioner and although the petitioner had appeared at the enquiry, but he did not defend himself, and that the petitioner was found guilty of the charges of misconduct by the enquiring Officer. The petitioner stated that the amendment was wrongly allowed by Respondent No. 1 after the period of limitation. Besides, both sides adduced oral and documentary evidence before the Labour Court which ultimately dismissed the petitioners application by the impugned order as mentioned in Annexure 6. The petitioner has also prayed before this court for a direction to Respondent No. 2 to reinstate the petitioner. 3. Mr. Besides, both sides adduced oral and documentary evidence before the Labour Court which ultimately dismissed the petitioners application by the impugned order as mentioned in Annexure 6. The petitioner has also prayed before this court for a direction to Respondent No. 2 to reinstate the petitioner. 3. Mr. B C. Ghose, learned Counsel for the petitioner, contended that the employer did not hold a domestic enquiry before dismissing the petitioner, nor one months notice was served oa him and, for that reason, the Labour Court should have set aside the dismissal order. Alternatively, he said that assuming that an enquiry was held by respondent No. 2 it was defective on the very finding recorded in Annexure 6, and therefore, the requirement of service of notice cannot be dispensed with. As will appear from the language of S. 26 of the Act, the following two conditions are essential before an employer can dismiss an employee who has served him for a period of six months or more: 1. the dismissal should be for a reason, able cause, and 2. the employer has given one months notice or one months wages in lieu of such notice. The proviso to sub-s. (1) states that such notice shall not be necessary where service of such employee is dispensed with on a charge of such misconduct as may be prescribed, supported by satisfactory evidence recorded at the enquiry held for the purpose. Admittedly in the present case, the second condition has not been complied with and the order of dismissal is defended on the basis of the Proviso According to the case of Respondent No. 2, the petitioner misbehaved with the cinema Manager and abused him on 4-5.71 and the Manager made a complaint in writing. The Respondent No. 2 sent a copy of the complaint with a forwarding letter dated 5-5. 71 to the petitioner who refused to receive the same. A letter with the charges was, thereafter, sent by registered post to which the petitioner replied on 13-5-71. A charge sheet was served on the petitioner on 14.5.71 again, mentioning some new charges and also including the aforesaid misbehaviour and other misconducts, and Shri S. N. Sarkar, the Accountant of the cinema was entrusted with the enquiry. Shri Sarkar requested the petitioner to file his show cause and adduce his evidence. A charge sheet was served on the petitioner on 14.5.71 again, mentioning some new charges and also including the aforesaid misbehaviour and other misconducts, and Shri S. N. Sarkar, the Accountant of the cinema was entrusted with the enquiry. Shri Sarkar requested the petitioner to file his show cause and adduce his evidence. The petitioner had been informed about the time and place of the enquiry which was held on the 17th and 18th May, 1971. The petitioner was personally present and made some oral statements, but refused to further participate in the enquiry. The Enquiry Officer took the evidence which was led before him and submitted his report holding the petitioner guilty. The petitioner was thereafter dismissed. 4. Both the parties led evidence before the Labour Court which, so far as the merits of the charges are concerned, came to the following findings : (a) The occurrence of 4.5 71 as alleged by the management was true and the petitioner abused the manager who was his superior officer and uttered filthy language against the respondent No. 2, (b) The petitioner was also proved to have misappropriated a fan belonging to the cinema; and (c) The misconduct of the petitioner, found by the Labour Court amounts to major misconduct as provided in R. 20 of the Bihar Shops and Establishment Rules, 1955, framed under S. 40 of the Act. The Court held that some other charges levelled by the employer were not established. 5 On behalf of the petitioner, it has not been said that the misconduct found, by the respondent No. 1 is not of the nature as contemplated by the R. 20 of the Rules. The attack is on the ground that a domestic enquiry as contemplated by the Proviso to S. 28 (1) of the Act has not been held in this case. As was held in the Indian Tube Co. v. Pratap Mishra, (1969 B L J R 589) on failure to give one months notice or one months wages in lieu of such notice or,.in the alternative, to hold an enquiry and record a finding against the employee, the order of dismissal was illegal. In the present case bowaer the finding of the Labour Court is that an enquiry had in fact, been held, but the same was defective. In the present case bowaer the finding of the Labour Court is that an enquiry had in fact, been held, but the same was defective. The question which arises in this case is whether a defective enquiry would satisfy the condition mentioned in the proviso to S. 26 (i)of the Act. 6. Mr. Ghose has also urged another point. The plea that a domestic enquiry had actually been held was introduced by the Respondent No. 2 by an amendment in November, 1971. It is contended that after the show cause of Respondent No. 2 had been filed in July, 1971, the amendment the show cause should not have been permitted. Reliance was placed on R. 21 (4) of the Rules which says that the authority concerned should call upon the employer by a notice to supper on the date fixed before him together with all the relevant documents and witnesses If the employer fails to appear on the date fixed, the authority may proceed to hear the case ex parte, as provided in sub-r. (5). The argument is that after the date fixed in the case, the authority cannot accept any show cause filed by the employer. There does not appear to he any force in this contention. Neither the rule relied upon nor any other provision is tbe Act, or the Rules lends support to the view that an amendment of the pleading is not permissible or that, in any event, it is not permissible after the date fixed in the case. The sab-rules (4) and (5) of R. 21 do not throw my light on the question. The power of a judicial or quasi-judicial authority to amend the pleading of a party must be assumed to exist. If a party by accident or due to certain circumstances which can satisfactorily explain he conduct, commits a mistake in his pleading, it will be against all cannons of justice to bind him down by his erroneous statement and not permit him to correct the mistake. This does not mean that a party will be at liberty to give up bis stand and take a new one when ever he likes. The principle dealing with the amendment is, by now, quite establishes and if a party makes out a proper case, only then a prayer for amendment ought to be entertained. As was indicated in L.J Leach aad Co. The principle dealing with the amendment is, by now, quite establishes and if a party makes out a proper case, only then a prayer for amendment ought to be entertained. As was indicated in L.J Leach aad Co. v. Jardine Skinner &.Co. ( AIR 1957 SC 357 ), an amendment can be permitted in proper case, even after the period of limitation is over I therefore, oversale the objection taken on behalf of the petitioner to the order of the Labour Court permitting the amendment of the show cause of Respondent No- 2. 7. In support of the main point, Mr. Ghose relied upon the decision in Kotak, and Company v. Additional Commr. for Workmens Compensation 1970 2 Lab LJ 364 (Mad) and M/s. United Wire Ropes Ltd. v. Additional Commr. for Workmens Compensation, Madras (1976) 1 Lab L J 228 = (1976 Lab I C 1458) (Mad). It was said that the provisions of the Madras Shops and Establishments Act, so far as the present question is concerned, are similar to the Bihar Act. Mr. J. C. Sinha. who appeared for the respondent no. 2, contended that the decision in Kotak and Company (supra) instead of supporting the petitioner is in favour of the respondents. He strongly relied upon the observations made in para 16 of tha said judgment which contemplated three possible situations in the matter of holding an enquiry: (1) The employer does not hold any enquiry at all and dismisses the employee on the grounds of misconduct; (2) The employer makes a farce of conducting the enquiry without bona fide intending to conduct any enquiry as contemplated by the section and (3) The employer bona fide conducts an enquiry, bus the enquiry is found to be defective. So far as the first type of eases are concerned, there is no difficulty. As has been held in Indian Tube Co. Ltd. v Pratap Mishra (1969 B. L J. R. 589) the order must be set aside. In the case of the second group also, an order of dismissal must be sat aside in absence of bona fide3. Dealing with the third ease, the Madras Court said that it could not be said that there had been a violation of the statutory requirement and the defect could be remedied by taking additional evidence and disposing of the matter on mertis. Mr. Dealing with the third ease, the Madras Court said that it could not be said that there had been a violation of the statutory requirement and the defect could be remedied by taking additional evidence and disposing of the matter on mertis. Mr. Sinha argued that the present case is covered by third category considered by the Madras High Court. Here too, there was some lacuna, according to the finding of the Labour Court, in the procedure adopted for the enquiry, and now the Labour Court has, on consideration of full evidence led by the parties come to an independent finding against the petitioner. There should not therefore, be any interference. Mr. Ghose, submitted that, in the present case, the bona fides of the employer are lacking. There is no such finding by the Labour Court and it cannot, therefore, be assumed that the enquiry held by the employer was not bonafide. But for that reason alone I do not think that the petitioners grievance can be brushed aside. So far as the Madras Act is concerned, it appears that an appeal is provided from the employers order and the scope of the jurisdiction of the appellate Court under the Madras Act cannot be equated with the nature of jurisdiction of the Labour Court in the Bihar Act. Besides, to my mind, it appears that all the defective enquiries cannot be grouped together for the purposes of deciding the present point, irrespective of the nature of the defect with which they suffer. The entire facts, in this regard, will have to be considered for appreciating the substance of the defect in the enquiry and the resultant mischief. If the defect is such that it goes to the root of the matter rendering the result of the enquiry as totally unhelpful, it must be assumed as if no enquiry had been held at all. On the other hand, if the defect is not so vital, it may be ignored. 8. As has been found in Annexure 6, so far as the charge in regard to the petitioners misbehaviour with the cinema Manager on 4.5-1971 is concerned, it had been duly served on the petitioner. He, however, refused to receive the letter communicating the charge sent with the peon book on 6-5.1971. 8. As has been found in Annexure 6, so far as the charge in regard to the petitioners misbehaviour with the cinema Manager on 4.5-1971 is concerned, it had been duly served on the petitioner. He, however, refused to receive the letter communicating the charge sent with the peon book on 6-5.1971. This refusal was the basis of another charge, but the misbehaviour charge was already there earlier and the petitioner submitted his explanation to the same. Subsequently, on 14.5-1971, a detailed charge-sheet was drawn up and served on the petitioner. He was granted three days time to file his explanation. There is a controversy as to whether the enquiry held by Shri S. N. Sarkar was actually held on the 17th-and 18th May 1971, as claimed by the Respondent No. 2 or earlier. If the enquiry had been held earlier, the petitioner did not get sufficient time to submit his show cause. The question, in the circumstances, arises as to whether the petitioner was denied reasonable opportunity to defend himself and that the domestic enquiry is vitiated by violation of the principles of natural justice. Before, however, I proceed to examine the circumstances of the present case, I wish to point out that the decision in United Wire Ropes Ltd. v. Additional Commr for Workmens Com. pensation, Madras (1976 Lab I C 1458) (Mad) (Supra), is not helpful to the present case. In that case, the employer terminated the service of the workman offering him one months salary in lieu of notice. Against this order of termination of service, the employee filed an appeal Before the prescribed authority under S. 41 (2) of the Tamil Nadu Shops and Establishments Act and alleged that the manage. meat had terminated his service really on the ground of misconduct, although it did not say so. It was thus a case of colourable exercise of power for dismissing the workman for an allegad misconduct without holding any enqairy therefor, In para. 10 of the judgment, the High Court held that the employers conduct of terminating the service by service of a notice without holding any enquiry was illegal. 9. This decision therefore, does not take us any further than what has been held in Indian Tube Col. Ltd. v. Pratap Mishra,(1969 BLJB 589) (Supra). 10 of the judgment, the High Court held that the employers conduct of terminating the service by service of a notice without holding any enquiry was illegal. 9. This decision therefore, does not take us any further than what has been held in Indian Tube Col. Ltd. v. Pratap Mishra,(1969 BLJB 589) (Supra). v. The finding recorded in Annexure 6 to the writ application about the misbehaviour of the petitioner with the cinema Manager amounts to a misconduct within Rule 20 of the Rules, both under cls. (a) and (h) of sub rule (1). The finding recorded by Shri S. N. Sarkar holding domestic enquiry, on this point, is, therefore, sufficient to fulfil the condition mentioned in the proviso to section 26 (1) of the Act. It cannot be said that the petitioner was not given full opportunity to explain his case at least so far as this charge is concerned. The charge had been served on him earlier than the charge-sheet dated 14th May. 1971 and he submitted a full explanation thereof in his show cause dated the 13th May, 1971, as is evident from Annexure 3 to the writ application. The statements made in Para. 14 of Ext. 6 also may be seen in this regard. It appears that the cinema Manager had made a complaint in writing (Ext. T before the Labour Court) to the Respondent No. 2 who sent a copy thereof along with his letter (Ext. C/10 before the Labour Court) through a peon asking the petitioner to show cause. Exhibit J before the Respondent No. 1 was the Despatch Register. The peon was examined before the Labour Court and he proved that although the petitioner went through the letter, he, refused to sign the peon book. Another letter dated 8-5-1971 (Ext. C/11 before the Labour Court) was sent to the Labour Superintendent clarifying the situation. On the same date, a second letter (Ext. A before the Labour Court) was sent to the petitioner and in reply thereto, the petitioner filed his show cause (a copy whereof is Ext. 3 to the writ application). The fact that on 14.5.1971, a fresh charge-sheet served on the petitioner included this charge also does not appear to be very material. As some fresh charges had been framed against the petitioner, the new charge-sheet had to be served and while so doing, the earlier charges were also recouited. 3 to the writ application). The fact that on 14.5.1971, a fresh charge-sheet served on the petitioner included this charge also does not appear to be very material. As some fresh charges had been framed against the petitioner, the new charge-sheet had to be served and while so doing, the earlier charges were also recouited. The Labour Court has taken the view that in view of three days time granted to the petitioner for showing cause against the charges mentioned in the charge sheet dated 14th May, 1971 the Enquiring Officer Shri Sakar should not have held the enquiry on the 8th or 17th May, 1971. There is a controvery whether the enquiry was held on the 16th May, 1971 at all. The Court below has not given a clear finding on the point. It has, however, assumed that on the case of either side the enquiry proceeding was rendered defective as reasonable opportunity had been denied to the workman. It was proceeded to observe that : "There was no harm if the Enquiry Officer would have waited for a few days more and should have issued registered letter fixing date of enquiry to the applicant to avoid any criticism about the absence of knowledge of the enquiry. The enquiry, therefore, under these circumstances cannot be said to be quite fair, but it is defective, but it is clear from the statement of the Enquiry Officer as also from the statements of the management witnesses that Shri Sarkar held enquiry into the matter and also examined witnesses." The question is not as to what would have been the more prudent course of action by Shri Sarkar. The point is whether the defect was such which rendered the proceeding illegal. Shri Sarkar had been asked by the management to hold the enquiry and submit his report by 19th May, 1971. By the letter (Ext. A/1 before the Labour Court), the peti. tioner had been asked to appear personally before Shri Sarkar and explain his conduct. The Court below in Para. 15 of Annexure 6 has said that the service of this letter is proved by the entry in the Despatch Register (Ext. J/1) and the peon book (Ext. H/1). The oral evidence of the serving peon has also been referred to. A copy of the letter was also sent to the Labour Superintendent (Vide Ext. E before the Labour Court). 15 of Annexure 6 has said that the service of this letter is proved by the entry in the Despatch Register (Ext. J/1) and the peon book (Ext. H/1). The oral evidence of the serving peon has also been referred to. A copy of the letter was also sent to the Labour Superintendent (Vide Ext. E before the Labour Court). Shri Sarkar also sent a letter (Ext. D) to the petitioner directing him to appear on the 15th May, 1971. The letter was sent under a certificate of posting (Ext. E). Shri Sarkar who had appeared as witness for the management before the Labour Court stated that the petitioner had, in fact, appeared before him on 15-5-1971 and then the enquiry was adjourned to 17-5-1971. According to the further evidence of Shri Sarkar, the petitioner actually appeared before him on 17.5.1971, but refused to take part in the enquiry. It was only thereafter that the Enquiring Officer took statements of the witnesses examined on behalf of the management. The Court below has not disbelieved Shri Sarkar but held the enquiry as defective because three clear days were not allowed to the petitioner. As pointed out earlier, the petitioner cannot be said to have been prejudiced by the holding of the enquiry on the 16th or 17th May 1971. At least in regard to the charge of misbehaviour With the. cinema Manager he had already submitted his show cause on the 13th May, 1971 and was asked by Shri Sarkar to appear on the 15th May, 1971. The "enquiry was adjourned to the 17th May, 1971 when he appeared before Shri Sarkar on the 15th May, 1971. He was again present before Shri Sarkar on the 17th May, 1971 In these circumstances, the objection to the validity of the enquiry is merely technical. On the technical aspect of the matter, I do not think that a domestic enquiry by private employers can be equated with a legal proceeding before a Court of Law or with an enquiry under Art. ill of the Constitution. The test for finding out whether such enquiries are valid for the purpose of the proviso to S. 26 (1) of the Act is to find out whether there was a bona fide attempt to ascertain the correct facts, after giving the employee an opportunity to place his case. The main con. The test for finding out whether such enquiries are valid for the purpose of the proviso to S. 26 (1) of the Act is to find out whether there was a bona fide attempt to ascertain the correct facts, after giving the employee an opportunity to place his case. The main con. sideration in this regard should be whether the petitioner has suffered a substantial prejudice in placing and proving his innocence. In the present case, I am of the view that the petitioner was not so prejudiced either in regard to the charge of misbehaviour with the cinema Manager or even in regard to the other charges which have been found to be correct by the Labour Court. That being the position there is no reason why this Court should interfere with the impugned decision in annexure 6 to the writ application. 10 For the reasons stated above, I dismiss this writ application, but direct that the parties should bear their own costs. 11. I agree.