JUDGMENT 1. - The petitioner has challenged the award passed by the Labour Court, Rajasthan dated June 29, 1972 and learned counsel for the petitioner contends that the learned Judge of the Labour Court misdirected himself on two matters, namely, as to whether the enquiry proceedings were fair and proper opportunity was afforded to the workman concerned to defend himself in the said enquiry proceedings and also on the question whether the management should have been afforded an opportunity to adduce evidence before the Labour Court in order to prove the misconduct complained of by it and the failure on the part of the Learned Judge of the Labour Court to allow the employer an opportunity to adduce evidence in this respect before it has been vitiated the award. 2. The circumstances which have given rise to the filing of the present writ petition briefly are that the respondent No. 2 Shri K.C. Pareek (hereinafter referred to as 'Pareek') was employed as a clerk in the Accounts department at the Jaipur Divisional Office of the petitioner, M/s. Alembic Chemical Works Ltd. (hereinafter referred to as 'the Company'). On January 29, 1971. Pareek is alleged to have reached his office a few minutes late and he was asked to sign the attendance register and note down the time of his arrival, but he refused to do so. This was followed by some exchange of words between Pareek and the Divisional Manager and other officials of the Company. The company there upon served a show cause notice upon Pareek on February 13, 1971. Pareek submitted an explanation and denied the charges, but his explanation was found to be unsatisfactory by the company and an enquiry in the respect of the charges was ordered. As a result of the enquiry, the charges were held proved against Pareek and the Company decided to dismiss Pareek from service. 3. As Pareek was a protected workman, the Company submitted an application before the Labour Court, Rajasthan under Section 33 of the Industrial Disputes Act for permission to dismiss Pareek from service on the charge of misconduct. Before the Labour Court it was contended on behalf of Pareek that the enquiry proceedings were not fair & he was not given full & reasonable opportunity to defend himself at the enquiry. Before the Labour Court it was contended on behalf of Pareek that the enquiry proceedings were not fair & he was not given full & reasonable opportunity to defend himself at the enquiry. His case was that he was late by two minutes only and that at a meeting of the staff and the management of the company held earlier it was decided that if any member of the staff came late by not more than five minutes, he would not be required to make the time of his arrival in the attendance register, meaning thereby that he would not be considered to have reached late on duty. The Labour Court came to the conclusion that the enquiry conducted by the Company was not fair and was bad in law and that the workman concerned was taking active part in the legitimate activities of the Trade Union, which were unpleasent to the management of the company and, therefore, a way was found out by the company to throw Pareek out of service. A request was made before the Labour Court on behalf of the Company that if the findings arrived at by the Enquiry Officer were found to be defective or perverse in any manner, the management of the company should be allowed to lead fresh evidence before the Labour Court in order to prove the misconduct of Pareek. However, the Labour Court refused the aforesaid request made on behalf of the management of the company and rejected the application of the Company for permission to remove Pareek from the service of the company. 4. One of the submission advanced on behalf of Pareek before the labour Court in respect of the fairness of the enquiry was that he was not allowed to be represented by Shri R.C. Bhatia, Secretary, All India Alembic Employees Federation, who was also working as a clerk in the employment of the Company at its New Delhi office, Sub-clause (4) of clause 23 of the Standing Orders of the company was referred to in this connection, which runs as under:- "4. A clerk against whom an inquiry has to be held shall be given a charge sheet clearly setting forth the circumstance appearing against him and requiring explanation. A clerk against whom an inquiry has to be held shall be given a charge sheet clearly setting forth the circumstance appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a clerk working in the same department as himself except for reasons to be recorded in writing by the officer holding the inquiry. The clerk shall be permitted to produce witnesses on evidence the charge rests. A concise summary of the evidence led on either side and the clerk's plea shall be recorded." 5. The application of Pareek dated March 29, 1971 to the effect that he may be allowed to be represented by Shri R.C. Bhatia, Secretary All Indian Alembic Employees' Federation, who was also a clerk in the employment of the Company at its New Delhi office, was turned down by the Enquiry Officer on the ground that Shri Bhatia was "an outsider." According to the company, the employee could be permitted to be defended by a clerk working in the same office in which he himself was working.A perusal of the Standing Orders of the Company does not support the interpretation sought to be placed on behalf of the Company on the provisions of Sub clause (4) of clause 28 which have been quoted above. The words "a clerk working in the same department as himself" cannot be restricted only to clerks working in the same office or at the same place at which the delinquent workman is working. It appears that the Company which has its Head office at Baroda, has several branch offices at various places in the country and one sub office is located at New Delhi while another office is situated at Jaipur. It is not possible to accept the contention of the learned counsel for the petitioner that under the provisions of the aforesaid sub clause (4) of clause 28 of the Standing Orders of the Company, the choice was restricted merely to a clerk working in the same office of the company, in as much as the word "department" used in the aforesaid sub clause is not synonymous with "office". There may be several departments to the company like the manufacturing department, purchase department, sale department, accounts department and the like and in my view, sub clause (4) has the effect of restricting the choice of a person, who may defend the delinquent, to a clerk working in the same department, irrespective of the place or the branch office in which such clerk was working. It has been stated before me be the learned counsel for the workman that Shri Bhatia, whose services were sought to be availed of by Pareek for the purpose of defending him before the Enquiry Officer, was a clerk employed in the accounts department of the Company although he was working at the New Delhi Branch office of the company at the relevant time. The company was, therefore, not justified in refusing to allow Pareek to avail of the services of Shri Bhatia on the alleged ground that he was an outsider. Learned counsel for the petitioner submitted that the officer holding the enquiry was empowered under the relevant Standing Order to refuse permission to the clerk, against whom action was proposed to be taken, regarding the availability of the services of a clerk of his choice for reasons to be recorded in writing and as such the Enquiry Officer acted within his authority in refusing to Pareek the assistance of Shri Bhatia. There is no doubt that under the provision of sub clause (4) the Enquiry officer could refuse permission to the workman concerned, for reasons to be recorded to avail of the services of a clerk of his choice, but in the present case I find that no valid reason was assigned by the Enquiry officer for refusing such permission except that Shri Bhatia was "an outsider" and thus it appears that the refusal of the Enquiry officer to make the services of Shri Bhatia available to Pareek was based merely upon a mis-interpretation of the provisions of sub clause (4). It has also been brought on the record that the Company was represented to the enquiry proceedings by Shri Deshpandey, and administrative officer of the Company based at the headquarters and it would have been fair it Pareek would have been allowed to be represented by a clerk of his choice, of course, working in the same department, namely, the accounts department in which Pareek himself was working, as was contemplated by sub clause (4), referred to above. There is therefore no doubt that the provisions of sub clause (4) of clause 28 of the Standing Orders were not complied with, as Pareek was not allowed to be properly represented by a person of his choice & the finding of the labour Court in this respect needs no interference. However, the learned Judge of the Labour Court failed to apply his mind to the further question as to whether the aforesaid circumstances caused substantial prejudice to Pareek in the matter of his defence in the enquiry proceedings. 6. Another fault which was found by the learned Judge of the Labour Court with the domestic enquiry conducted by the Co. against Pareek was that the management of the company did not allow inspection to Pareek of certain documents, which were produced as evidence before the Enquiry Officer. I must observe that the finding in this respect is absolutely vague as no reference has been made to specific documents. It was also observed by the learned Judge of the Labour Court that copy of the statement of Shri B.R. Patel was not supplied to Pareek and he was not allowed an opportunity to fully cross examine Sarv Shri Patel, Majundar and P.R. Sharma. This finding also could not be substantiated from a perusal of the record, in as much as copies of examination in chief of a witness could not be furnished to the delinquent immediately after the examination in chief of the particular witness was over. Moreover as a matter of fact, it appears from the record of the enquiry that copies of the statements of Shri B.R. Patel and Shri A.P. Majumdar in examination in chief were actually supplied to the petitioner before the cross examined the aforesaid witnesses. Similarly the copy of the examination in chief of Shri P.R. Sharma was also supplied to Pareek before the cross examination of that witness began. Similarly the copy of the examination in chief of Shri P.R. Sharma was also supplied to Pareek before the cross examination of that witness began. However, in respect of the statement of Shri P.R. Sharma one infirmity was noticed, namely that the Enquiry Officer directed Pareek to restrict the cross examination of that witness only to the matters covered by his examination in chief and Pareek was allowed to ask only two questions to Shri Sharma in cross examination in respect of matters not covered by the examination in chief. In my opinion the Enquiry Officer was not empowered to restrict the cross examination of Shri P.R. sharma merely to matters which were covered by his examination- in-chief. Of course, the Enquiry officer would have been within his right to disallow questions sought to be put in cross examination on the ground that they were not relevant to the subject matter of the enquiry, but that would have been very different thing from holding that questions not relating to matters covered by the examination in chief of a particular witness could not be permitted in his cross examination. The Enquiry Officer appears to have misdirected the enquiry in this respect. 7. The Labour Court has also observed that it was an astonishing feature that the witness, Shri P.R.Sharma was again called for re-examination after the evidence of that witness was closed. I am unable to accept this finding, in as much as re-examination normally follows cross examination of a witness. Moreover, in the present case no prejudice was caused to Pareek by the re-examination of Shri P.R. Sharma as he was allowed full opportunity to cross examine the witness again after his re-examination. It would have been entirely different matter if the questions put to the witness in re-examination would have been objected to on the ground that there was no ambiguity in the earlier statement of the witness and no clarification was needed. The learned Judge of the Labour Court appears to have misdirected himself in this respect as well. 8. Learned Judge of the Labour Court has relied upon the circumstances of re-examination of Shri P.R. Sharma by way of an instance to illustrate the alleged partiality and bias of the Enquiry officer against Pareek. The learned Judge of the Labour Court appears to have misdirected himself in this respect as well. 8. Learned Judge of the Labour Court has relied upon the circumstances of re-examination of Shri P.R. Sharma by way of an instance to illustrate the alleged partiality and bias of the Enquiry officer against Pareek. Another fact relied upon by him in this connection was that leading questions were allowed to be asked to the witnesses appearing on behalf of the Management before the Enquiry Officer. However, I do not propose to give a concluded finding at this stage on the question as to whether the Enquiry officer was biased against Pareek or not as i am ordering a remand of the case back to the learned Judge of the Labour Court for a fresh decision in the matter, because, as already held above, the learned Judge of the Labour Court has mis-directed himself. 9. Before leaving this part of the case, I must refer to another circumstances which has come to my notice on a perusal of the record of the enquiry. In the first information which was sent to the Jaipur Branch office of the Company to its Head office at of Baroda on January 30, 1971 in respect of the incident which took place on the previous day, it was stated that Mr. K.C. Pareek came at 10.05 a.m. to office on January 29, 1971. He was late by 5 minutes". The Enquiry Officer, however, in his report observed "In the complaint Shri Patel has mentioned 10.05 a.m. to be the arrival time of Shri Pareek. This appears to be a mistake Shri Sharma has stated it to be 10.09 A.M. The case of Shri Pareek is that he had come to the office at 10.02 A.M. I have already referred to what is stated by Shri Patel which is supported by Shri Sharma. It is, therefore, clear that at 10.05 a.m. Shri Pareek had not come to the office". It is difficult to appreciate as how the Enquiry officer found the statement made in the first information to be a mistake," merely on the basis of oral statements of witnesses given subsequently during the enquiry. It is, therefore, clear that at 10.05 a.m. Shri Pareek had not come to the office". It is difficult to appreciate as how the Enquiry officer found the statement made in the first information to be a mistake," merely on the basis of oral statements of witnesses given subsequently during the enquiry. It need not be emphasised that the first information, referred to above, was sent by the Jaipur Divisional Office of the company soon after the incident took place on January 29, 1971 and the observation of the Enquiry officer that the time mentioned therein regarding the arrival of Pareek in the office, namely, 10.05 a.m. was a mistake, does not appear to be based on sound reason. The aforesaid facts also would have to be taken into consideration while deciding the question relating to the fairness of the enquiry and the alleged bias of the Enquiry Officer. 10. On the other question, namely as to whether the Company should have been allowed to lead evidence when the Labour Court came to the conclusion that the domestic enquiry was not fair, it must be held that the learned Judge of the Labour Court again mis-directed himself. He disallowed the request made on behalf of the management of the Company to permission to lead evidence before it on the ground that such request was made at a late stage and was not tenable. It appears from the record that the Company in its rejoinder dated January 13, 1972 had expressed its readiness and willingness to produce the relevant evidence before the Labour Court, in case, it was found by it that the enquiry was unfair or improper or perverse. The Company also prayed that the Labour Court should first give its finding on the question as to whether the enquiry conducted by the management was fair and proper or not & in case a finding was recorded to this respect against the Company, that the company should be allowed an opportunity in adduce its evidence before the Labour Court on the merits of the case in support of the charges. I am constrained to observe that the learned Labour Court was, in the aforesaid circumstances, not at all justified in refusing an opportunity to the Company to adduce evidence before, it having come to the conclusion that the domestic enquiry was not fair and proper. I am constrained to observe that the learned Labour Court was, in the aforesaid circumstances, not at all justified in refusing an opportunity to the Company to adduce evidence before, it having come to the conclusion that the domestic enquiry was not fair and proper. The request in this respect was made on behalf of the Company at an early stage of the proceedings and it could not have been brushed aside on the alleged ground that it was not tenable, having been made at a late stage. The law on this question has now been decisively laid down by their Lordships of the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe, 1975(2) LLJ 379 . Their Lordships have reiterated the following propositions amongst others, enunciated earlier in the case of Workman of M/s. Firestone Tyre and Rubber Company of India (P) Ltd. v. Management and ors, 1976(1) LLJ 278 - "4. Even if no enquiry has been held by an employer of if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straight away without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence "LINE MISPRINT" 11. If such an opportunity is asked for the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence "LINE MISPRINT" 11. Thus it has been clearly laid down that if an employer, who wants to avail himself of an opportunity of adducing evidence before the Tribunal to justify his action asks for it at the appropriate stage, the Tribunal has no power to refuse the same. In the instant case also as I have already observed above, a prayer was made on behalf of the Company seeking an opportunity to adduce evidence is support of its action, at an appropriate stage and as such the learned Judge of the Labour Court could not have refused the prayer when it came to the conclusion that the domestic enquiry was not fair and proper. 12. In view of the aforesaid discussion, the writ petition is allowed and the order passed by the Judge, Labour Court dated 24.6.1972 is set aside. The Labour Court is directed to decide the matter afresh in accordance with law and in the light of the observations made above. In case the Labour Court arrives at a finding that the domestic enquiry was not fair and proper, it is directed to allow the Company an opportunity to lead evidence before it, in support of the charges levelled against the workman. As the matter is pending for the last almost five years, the Labour Court should proceed expeditiously in the matter and decide the application under section 33(1) of the Industrial Disputes Act at an early date. In the circumstances of the case, the parties are left to hear their own costs of the proceedings before this Court. *******