JUDGMENT : V.V. Vaze, J.—One Ganpatrao Pandurang Suryawanshi, in the employment of Sahyadri Sahakari Sakhar Karkhana Ltd. Karhad, after being dismissed for misconduct, challenged the same by filing an application u/s 78 of the B.I.R. Act, 1946. The Karkhana filed a counter-statement contesting the claim of Suryawanshi. Issues were framed by the Labour Court and evidence was being led. At that stage, the employer-Karkhana filed an application to the effect that a preliminary issue may be framed as to whether the enquiry held is legal and proper. This application was rejected by the Labour Court and an Appeal preferred before the Industrial Court having been dismissed, the present petition has been filed by the employer. 2. The Industrial Court found fault with the reasoning of the Labour Court that the application being under the B.I.R. Act, there is no provision nor need to consider in a preliminary way the propriety of preliminary enquiry. However, on the authority of Shambhu Nath Goyal Vs. Bank of Baroda and Others, AIR 1984 SC 289 , the Industrial Court concluded that a request for treating the legality of the enquiry as the preliminary issue should be made in the Written Statement itself and not thereafter, 3. As admittedly the employer had not made the request in the Written Statement, the Industrial Court confirmed the dismissal of the application by the Labour Court though for different reasons. 4. One can have no quarrel with the approach of the Industrial Court which has, in the manner of speaking, culled out certain sentences from Goyal's case. In Goyal's case, the majority judgment observes :- "Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any delay. In Goyal's case, the majority judgment observes :- "Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any delay. But when the question arises in a reference u/s 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do". In contrast, Desai J. in a concurring judgment, observes :- "Ordinarily, where a party claims relief, it must plead for the same. The pleading can be incorporated in a statement of claim or a written statement of defence. It was not for a moment suggested that an application at any stage of the proceedings without explaining why the relief was not claimed in the original pleadings has to be granted. If a separate application is made, it would be open to the Labour Court/Industrial Tribunal to examine the question whether it should be granted or not depending upon the stage when it is made, the omission to claim the relief in the initial pleading, the delay and the motivation for such delayed action? If a separate application is made, it would be open to the Labour Court/Industrial Tribunal to examine the question whether it should be granted or not depending upon the stage when it is made, the omission to claim the relief in the initial pleading, the delay and the motivation for such delayed action? Without being specific, it can be said that such an application has to be examined as if it is an application for amendment of original pleadings keeping in view all the aforementioned considerations and if it does not appear to be bona fide or has been made after a long unexplained delay or the explanation for the omission of claiming the relief in the initial pleading is unconvincing, the Labour Court/Industrial Tribunal would be perfectly justified in rejecting the same. The observation was not made to lay down a proposition of law that as and when it suits the convenience of the employer at any stage of the proceedings, it may make an application seeking such opportunity and the Labour Court/Industrial Tribunal was obliged to grant the same.'' 5. A later judgment of the Supreme Court in Rajendra Jha Vs. Presiding Officer, Labour Court, Bokaro Steel City, District Dhanbad and Another, AIR 1984 SC 1696 may usefully be adverted to, though the main challenge to the order of the Labour Court in that case was that it had acted on its own initiative. The employer in Jha's case had filed an application u/s 33(2)(b) of the Industrial Disputes Act, 1947, but did not ask alternatively in the application itself for an opportunity to lead evidence to justify the order of dismissal. The Supreme Court, after gleaning through the record of the Lower Court concluded that in all probabilities an oral request for permission to adduce evidence was made by the employer to the Labour Court when the hearing of the application u/s 33(2)(b) came to a close. The Court observed that it could not be said that the Labour Court acted on its own initiative. 6. In the facts of the present case, a scrutiny of the application dated 13.8.1985 shows that the employer referred to the defence of the workman that the enquiry was a farce and that it was illegal and improper. The Court observed that it could not be said that the Labour Court acted on its own initiative. 6. In the facts of the present case, a scrutiny of the application dated 13.8.1985 shows that the employer referred to the defence of the workman that the enquiry was a farce and that it was illegal and improper. The employer also observed: "We have long back submitted an application requesting the Court that in case the enquiry is held to be illegal and improper we may be permitted to lead evidence." 7. A search of the record did not reveal any application filed before 13.8.1985. Mr. Pai, learned Counsel for the employer, conceded that in all probabilities the application must have been an oral one or that this statement in this application dated 13.8.1985 may be erroneous. I would proceed on the hypothesis that no written application was made by the employer for trying the issue as a preliminary one and on facts the Labour Court as well as the Industrial Court were justified in rejecting the application for trying the issue about legality of the enquiry as a preliminary issue. 8. The petition therefore fails. Rule discharged. As the workman is out of employment for the last seven years, the employer Karkhana shall pay Rs. 500/- as costs to the employee.