JUDGMENT Kochu Thommen, J. 1. The petitioner is the General Secretary of an Employees' Union. Against one of its members, disciplinary proceedings were initiated by the 2nd respondent, the Manager. The petitioner challenges Ext. P-1 award in I.D. No. 72 of 1980 whereby the Labour Court, Ernakulam found the employee guilty of the two charges levelled against him in Ext. P-2 and converted the punishment of dismissal imposed upon him by the management into one of discharge and affirmed the same. 2. Counsel for the petitioner Shri Sebastian Paul raises two fundamental objections against the impugned award. Counsel submits that the court wrongly held that the domestic enquiry conducted by the management was proper, notwithstanding the fact that that enquiry was vitiated by reason of failure to observe the principle stated by the Supreme Court in Meenglass Tea Estate v. Its Workmen ( (1963) 2 LLJ 392 , 394) and Associated Cement Cos. v. Their Workmen ( (1963) 2 LLJ 396 , 400) Counsel further points out that, having upheld the validity of the domestic enquiry, and having further found that the finding of the enquiry officer on charge No. 2 was perverse, the court conducted a fresh enquiry as regards that charge by examining witnesses, and came to the conclusion that charge No. 2 was proved. 3. It was contended by the petitioner before the Labour Court that the domestic enquiry was improper. The court considered that question at length. In the course of the consideration of that question, the court first came to the conclusion that charge No. 1 was "well established". Then the court said that the finding on charge No. 2 was perverse and that it was vacated. Having come to a finding on these two charges, this is what the court says in Para.9: "9. In the result it is found that there was a proper and valid domestic enquiry. The finding regarding the first item of the charge is confirmed as correct and the other finding is vacated as it is perverse Ordered accordingly." 4. Counsel for the respondents Shri. P. F. Thomas submits that these findings form part of the preliminary order which is incorporated in the final order of the court. I fail to see how all that is stated by the court could be read as part of the preliminary order. Counsel for the respondents Shri. P. F. Thomas submits that these findings form part of the preliminary order which is incorporated in the final order of the court. I fail to see how all that is stated by the court could be read as part of the preliminary order. In a preliminary order, the only question that arises is as regards the validity of the domestic enquiry if that question has been raised before the court as an issue. After coming to a finding that the domestic enquiry was proper, the court must necessarily confine itself to the evidence already recorded at the domestic enquiry. It is open to the court by virtue of its power under S.11A of the Industrial Disputes Act, 1947 to reappreciate the evidence and come to a finding on the charges independently. But a finding on the charges on the basis of the evidence recorded by the enquiry officer can be come to only after holding that the domestic enquiry was proper. These two questions cannot be mixed. It is, however, unnecessary for the court to make separate orders; one dealing with the preliminary question as to the validity of the enquiry and the other with the merits of the case. Both the questions can be dealt with in a composite order. But necessarily, the court must deal with the preliminary question first and only then shall it deal with the merits. If it is found that the enquiry was not properly conducted by the management, it is open to the court to conduct a fresh enquiry by giving an opportunity to both sides to let in evidence. However, the parties can let in evidence at the very outset, both on the preliminary question and on the merits. There is no need for the court to shut out evidence on the merits at the time of consideration of the preliminary question and wait till the preliminary order is made. It is open to both sides to let in evidence on all the issues, including those on the merits, at the very out set. In that event, the court can first proceed to consider the preliminary question and come to a finding either way on that question. It is open to both sides to let in evidence on all the issues, including those on the merits, at the very out set. In that event, the court can first proceed to consider the preliminary question and come to a finding either way on that question. If the finding were to be in favour of the management on the question of the validity of the domestic enquiry, then the consideration of the merits regarding the charges should be exclusively based on the evidence already on record. Any fresh evidence adduced before the court should be ignored. On the other hand, if the finding were to be against the management on the preliminary question, the court should consider the evidence on the merits let in before the court and shut out of its consideration any evidence which had been adduced at the time of the domestic enquiry which has been found to be improper. 5. In the present case, what the court has done was to come to a finding on the merits regarding the charges and then say that the enquiry was proper. For some strange reason the order has been reversed. 6. But the more vitiating circumstance is that, having held that the enquiry was proper and the finding on charge No. 2 was perverse and having vacated the finding on that charge, the court allowed the management to examine two witnesses before the court and produce documents. It is true that the workman was also allowed to examine himself before the court and to produce a document. But to have relied on fresh evidence adduced before the court to come to a finding on the merits after holding that the domestic enquiry was proper and the finding of the management on charge No. 2 was perverse, was violative of all the known principles of law in regard to the manner in which the court ought to have functioned. The court ought to have exonerated the workman on charge No. 2 on the strength of its finding that the management's finding was perverse. 7. The petitioner's counsel is also well justified in contending that the principle stated by the Supreme Court in the decisions cited above was not acted upon by the court. Ext. P-4 contains the proceedings before the enquiry officer. It shows that the domestic enquiry started with the examination of the employee. 7. The petitioner's counsel is also well justified in contending that the principle stated by the Supreme Court in the decisions cited above was not acted upon by the court. Ext. P-4 contains the proceedings before the enquiry officer. It shows that the domestic enquiry started with the examination of the employee. The employee had no other witness to examine on his behalf. The witnesses for the management were subsequently examined. The employee did not cross examine them. But the examination of the employee, for some strange reason, preceded the examination of the management's witnesses. The petitioner's counsel rightly points out that the employee was examined by the management or, in other words, cross examined by the management, at great length. He was made to depose on matters on which he had no knowledge as to what evidence the management had against him, for none of the witnesses on the side of the management had been so far examined. 8. The respondents' counsel submit that Ext. P-4 does not show that the employee was cross examined or examined. He only gave a statement. He was not in fact examined at all, counsel contends. I do not agree. Ext. P-4 shows that the domestic enquiry officer took down only the answers. No question put to the employee appears to have been recorded. The deposition of the employee shows that every word of what he said was said in answer to questions. This was, in my view, nothing short of cross examination conducted at length by the management before the employee had any opportunity to know what exactly was the evidence against him. This was indeed an unfair and invalid enquiry. The court, in my view, ought to have so found. The court in fairness to parties ought to have conducted a fresh enquiry. If that had been done at the time when the court was seized of the matter, much delay could have been avoided. The memory of the witnesses would have been fresh. It would have been much easier for both sides to let in evidence on the merits. 9. In O.P. No. 473 of 1981 this is what I stated on the procedure adopted by the Labour Court in I.D. No. 97 of 1979: "2. The petitioner's counsel, Shri Ashok Cherian has raised certain fundamental objections. He says that the Labour Court upheld the validity of the enquiry. 9. In O.P. No. 473 of 1981 this is what I stated on the procedure adopted by the Labour Court in I.D. No. 97 of 1979: "2. The petitioner's counsel, Shri Ashok Cherian has raised certain fundamental objections. He says that the Labour Court upheld the validity of the enquiry. The infirmity that was found was held to be not serious enough to vitiate the enquiry as such. The Labour Court specifically stated that the rules of natural justice were not violated and the enquiry was not biased. In the circumstances, the Labour Court had no option but to shut out any additional evidence. When the enquiry is held to be proper, the power of the Labour Court under S.11A of the Industrial Disputes Act, 1947 is the power to reappreciate the evidence already on record. That evidence was reappreciated and it came to the conclusion that the employee was not guilty of the charge. But the Labour Court allowed additional evidence to be adduced by the management and came to a directly opposite conclusion which is adverse to the employee. This was acting beyond the competence of the Labour Court. I fully agree." The same defect as above, in so far as charge No. 2 is concerned, has been repeated by the court. 10. For the reasons I have stated, Ext. P-1 award is unsustainable. It is quashed. The court is directed to reconsider the questions in the light of what is stated above after issuing proper notice to the parties. It will be open to the parties to adduce fresh evidence before the court. The Original Petition is allowed in the above terms. No costs.