M. R. MALLICK, J. ( 1 ) THE Court : This writ petition arises out of the award dated, Mar 1983 made by the Second Industrial Tribunal, West Bengal in Cast VIli-156/80. ( 2 ) THE facts are briefly as follows : as a result of a domestic enquiry held against the respondent No. 3 Pranab Kumar Banerjee, the petitioner passed the order of dismissal against him. Over such dismissal a dispute was raised and a reference has been made by another of reference dated, August 2, 1980 to the Industrial Tribunal as follows : "whether the termination of service with effect from 1st December 1975 of Shri Pranab Kumar Banerjee is justified ? To what relief, if any, is he entitled ?" ( 3 ) ON or about 28th October 1980 Shri Banerjee filed a written statement, inter alia, alleging for the first time that no officer below the rank of Factory Manager was competent to initiate disciplinary proceedings and Shri K. K. Roy who issued the charge-sheet was not competent to issue such charge-sheet. The writ petitioner filed the written statement, inter alia, contending that Sri Banerjee at all material times was employed by the Company as one of its officers and the charges against Shri Banerjee has been fully proved improperly conducted, domestic enquiry. It was also denied that the management staff below the rank of Factory Manager was not competent to initiate disciplinary proceeding or that Shri K. K. Roy was not competent to issue the charge-sheet. The petitioner also challenged the maintainability of the reference. On or about 16th April 1981 the petitioner filed an application, inter alia, with a prayer to take up preliminary issue first in regard to the maintainability of the reference and subsequently on the question of validity of the enquiry proceedings in the event it is held by the learned Tribunal that it has jurisdiction to entertain the said order of reference. A copy of the said application is annexed with the writ petition. However, the petitioner did not press the preliminary objection on the first point i. e. whether Shri Banerjee is a workman or not and/or whether the Tribunal has jurisdiction to entertain the reference. The learned Judge has by his order No. 1s dated, August 4, 1981 held that Shri Banerjee was a workman within the meaning of the Industrial Dispute Act. The learned Judge has by his order No. 1s dated, August 4, 1981 held that Shri Banerjee was a workman within the meaning of the Industrial Dispute Act. Thereafter the learned Judge by order No. 16 dated 1st September 1981 fixed September 22, 1981 for hearing on the validity of the domestic enquiry. On September 22, 1981 the company produced the enquiry officer and examined him in the matter of validity of the enquiry proceedings. The original minutes of the enquiry proceedings along with all the relevant documents were produced before the Tribunal. As the preliminary enquiry was limited to the question of the validity of the enquiry no other evidence was produced. Shri Banerjee also examined himself before the Tribunal. ( 4 ) THE learned Judge on 8th March 1983 purported to pass an award while dealing with and/or disposing of the preliminary issue with regard to the validity of the enquiry and on disposing of the preliminary point of law the learned Judge has held that the said order is his final award. By passing that order he set aside the order of dismissal and ordered that Respondent No. 3 is deemed to be continuing in service. The petitioner challenges the impugned award as illegal and invalid. It is contended that the learned Judge took up alleged preliminary point of law which was not an issue before the Tribunal and for which no opportunity was given to the petitioner either for adducing evidence or making submission, that learned Tribunal has illegally held that the workman succeeds in preliminary point of law and as such he is entitled to claim that he is continuing in service although the alleged law point was never taken as preliminary issue and no opportunity was given for adducing evidence any submission. It is, therefore, contended that the purported award is ex facie bad in law, passed in violation of fundamental principles and a nullity and is liable to be set aside. ( 5 ) THE Respondent No. 3 has, alone contested the writ petition. It is, therefore, contended that the purported award is ex facie bad in law, passed in violation of fundamental principles and a nullity and is liable to be set aside. ( 5 ) THE Respondent No. 3 has, alone contested the writ petition. It is contended that the learned Tribunal having found that the Deputy Factory Manager had no authority to initiate a departmental proceeding and another Deputy Factory Manager had no authority to appoint the enquiry officer has rightly disposed of his reference finally and passed this award that the domestic enquiry is invalid, that there is no valid dismissal by enquiry and that the Respondent is deemed to be continuing in service. ( 6 ) ON behalf of the writ petitioner it is seriously contended that the learned Tribunal while considering the preliminary issue regarding the validity of the domestic enquiry should not have disposed of the whole reference and when the writ petitioner has filed an application before the learned Tribunal requiring the Tribunal to decide by way of a preliminary point of law /issue as to whether the enquiry that has been conducted was a valid and proper one the Tribunal should not have entered into decision as to whether the enquiry officer had the proper authority to hold the enquiry or not. It is also contended that after deciding the preliminary issue the Tribunal has to fix a date for final hearing of the reference the learned Tribunal committed a great illegality but disposing of the whole reference while deciding the preliminary issue of law. In support two decisions of the Supreme Court, namely, AIR 1975 page 1900 Engineering's case and AIR 1973 SC 1031 Budh Singh's case have been cited. ( 7 ) MR. Arun Prokash Chatterjee, learned Advocate appearing on behalf of the Respondent No. 3 has, on the contrary, submitted that the learned Tribunal did not commit any error of law. It is pointed out that in the written statement the Respondent No. 3 challenged the dismissal on the ground that the person who had issued the charge-sheet dated 6. 8. 75 (Annexure 'g' to the writ petition) and the person who has issued the letter dated, 3. 9. It is pointed out that in the written statement the Respondent No. 3 challenged the dismissal on the ground that the person who had issued the charge-sheet dated 6. 8. 75 (Annexure 'g' to the writ petition) and the person who has issued the letter dated, 3. 9. 75 (Annexure 'e' to the writ petition) appointing the enquiry officer was not competent to issue the charge-sheet or the appointment letter, as the case may be, being subordinate to the appointing/disciplinary authority who is admittedly the Factory Manager of the Company and the whole enquiry proceeding including the order of dismissal has been vitiated and is liable to be set aside and quashed, that the learned Tribunal has accepted the contention of the Respondent No. 3 in this regard and relying on a decision of the Andhra Pradesh High Court reported in 1982 Lab. I. C. 1936 (IDL Chemicals Ltd. Vs. Sk. Yusuf and another) has rightly set aside the order of dismissal and has declared the petitioner to be deemed to be continuing in service. ( 8 ) IT is true that the decisions of the Supreme Court referred to by the learned Advocate for the petitioner have indicated that in a referee be- fore the Tribunal as to whether the order of dismissal is justified or not the Tribunal can frame a preliminary issue regarding the validity of the domestic enquiry and can decide that issue before entering into the decision of the reference finally. In this case, the validity of the enquiry has been sought to be challenged by the Respondent No. 3 before the Tribunal by taking a point which according to the Respondent No. 3 affects the whole proceeding. The point that was raised by the Respondent No. 3 also covers the question of validity of the domestic enquiry. However, if the enquiry is challenged on the ground that the principle of natural Justice has been violated etc. and if the Tribunal while deciding that issue agrees with the workmen that it has been so vitiated then the above decisions of the Supreme Court indicate that in such case if the management wants to adduce evidence in support of the order of dismissal the Tribunal had to give such opportunity. and if the Tribunal while deciding that issue agrees with the workmen that it has been so vitiated then the above decisions of the Supreme Court indicate that in such case if the management wants to adduce evidence in support of the order of dismissal the Tribunal had to give such opportunity. If, on the contrary, the tribunal comes to the finding that the domestic enquiry has been held legally and properly even then the tribunal cannot decide the reference finally and can thereafter decide as to whether punishment awarded is commensurate with the guilt proved and can also substitute the order of dismissal by any other suitable punishment. ( 9 ) MR. Chatterjee rightly points out that if the whole enquiry proceeding is illegal and invalid then there was no enquiry proceeding at all and if charge-sheet that was submitted is also invalid in law, there is no such question of. the Tribunal giving any opportunity to the management to adduce evidence in support of the charge-sheet as in such a case there is neither a valid charge-sheet nor a valid enquiry. ( 10 ) I am of the view that there is some force in the above submissions made by Mr. Chatterjee. ( 11 ) HOWEVER, on behalf of the writ petitioner it is submitted that the finding of the Tribunal that the charge-sheet is invalid or that the enquiry officer has not been not validly appointed, is a perverse finding and should be set aside. It is contended that the learned Tribunal referred the decision of the Andhra Pradesh High Court 1982 Lab. I. C. 1936 where it is found that the order of dismissal has been passed by an authority or officer who was not competent to do so and in such circumstance it has been held by the Andhra Pradesh High Court that the order of termination or dismissal passed by an authority or officer not competent to do so a nullity and that being the position, the award of the Tribunal setting aside the order of dismissal and declaring the workmen to be deemed to be continuing in service is a proper award but in this particular case the order of dismissal has been passed by the Factory Manager who according to the Respondent No. 3 is the appointing/the disciplinary authority so far as the Respondent No. 3 is concerned. He, therefore, submits that the learned Tribunal could not have passed the impugned order while deciding the preliminary issue when admittedly in this case the order of dismissal has been passed by the Factory Manager. ( 12 ) MR. Chatterjee on the contrary, submits that in this case the order of dismissal has been passed by the Factory Manager no doubt but he had no valid enquiry report to pass the order of dismissal and in that view of the matter the order of dismissal having no basis whatsoever must also be held to be vitiated and rendered invalid. ( 13 ) THIS takes us to the decision as to whether the learned Tribunal was justified in holding that the person who had issued the charge-sheet and the person who had issued the order, appointing the enquiry officer as also fixing the date of the enquiry was competent to do so or not. ( 14 ) IT is submitted on behalf of the writ petitioner that the learned Tribunal was not at all justified in holding that the charge-sheet issued by an officer subordinate to the appointing authority is invalid. He has referred to several decisions in support of his contention that if implied or express approval of the appointing authority can be proved then the departmental proceeding cannot be held to be vitiated. He has cited before me the decision of Calcutta High Court reported in 1974 Lab. I. C. page 1954 Mahananda Bhaduri vs. Assistant Commercial Superintendent, Kharagpur and Others. In that decision the learned Single Judge of this Court has held that only because the charge-sheet against the delinquent Government servant has been issued by an officer subordinate to the appointing authority it does not vitiate the entire departmental proceedings and the proof of implied or express approval of the appointing authority to same would cure the defect. Another decision reported in AIR 1958 Kera1a Page 164 M. C. Vasudevan vs. S. N. D. P. Yogan, has been cited. There it has been held by Kerala High Court that in taking a disciplinary action against a member of a domestic tribunal it is not necessary that the charge and demand for explanation must proceed from the vary authority competent to inflict the punishment and on principle there is no reason as to why this should not proceed from some subordinate authority. ( 15 ) ANOTHER decision to which my attention has been drawn is reported in 1973 (1) LLJ page 316 Workmen of India Overseas Bank vs. Indian Overseas Bank and another. In that decision, Delhi High Court following a Supreme Court decision of State of Madhya Pradesh vs. Sardul Singh, (1971) 1 SCC 108 has observed that it was not necessary for the authority who has to pass the order of dismissal to initiate the enquiry itself and even if the charge-sheet were not issued by a person who is the designated authority the same is not an infirmity as to render the whole proceedings illegal and void. ( 16 ) IT has also been observed by the Delhi High Court that when the workmen had not objected to the issue of the charge-sheet by Sri Rai who was not the designated authority at the earliest stage they could not be allowed to urge the same as a ground to challenge the ultimate order of dismissal by the disciplinary authority against them. ( 17 ) ON carefully considering the order passed by the learned Tribunal, I am unable to find that the Tribunal directed his attention to that aspect of the case i. e. the express or implied authority of the appointing/ disciplinary authority for the person to issue the charge-sheet or for the person to appoint the enquiry officer. ( 18 ) THERE is no dispute in this case that the Factory Manager is the appointing authority as well as the Disciplinary authority of the Respondent No. 3. It is also an admitted position that a Deputy Factory Manager issued the charge-sheet against the Respondent No. 3. The Respondent No. 3 in answer to that charge-sheet never took the point that the Deputy Factory Manager had no legal authority to issue the charge-sheet. ( 19 ) THEREAFTER another Deputy Factory Manager issued the order appointing the enquiry officer. Before the enquiry officer the petitioner represented his case and participated in the enquiry fully. It was also never objected that the enquiry officer was not validly appointed. The Respondent No. 3 never refused to submit to the jurisdiction of the enquiry officer challenging his authority. Before the enquiry officer the petitioner represented his case and participated in the enquiry fully. It was also never objected that the enquiry officer was not validly appointed. The Respondent No. 3 never refused to submit to the jurisdiction of the enquiry officer challenging his authority. ( 20 ) THERE is, however, no doubt that there was no express authority given by the Factory Manager to the Deputy Factory Manager to issue the charge-sheet or the other Deputy Factory Manager to issue the order of appointing the enquiry officer. But the order of dismissal which has been annexed with the writ petition clearly shows that the Factory Manager has referred to the charge-sheet issued by the Deputy Factory Manager and has used the following expression in the order of dismissal as follows :"further to our charge-sheet dated August 2, 1975 and your reply dated, 6. 5. 75 an enquiry was held into the charges against you on 9. 9. 75, 14. 9. 75, 22. 9. 75, 24. 9. 75 and 28. 9. 75. We find from the proceedings of the enquiry that full opportunities were given to you for conducting your defence in the enquiry and that you fully participated in the enquiry. " ( 21 ) ON behalf of the writ petitioner it is submitted that the above two paragraphs of the order of dismissal would clearly indicate that even though the charge-sheet was submitted by an officer subordinate to the disciplinary authority and the enquiry officer was also appointed by an officer subordinate to the disciplinary authority, yet, the disciplinary authority by using the expression "our charge-sheet" etc. in the order of dismissal has clearly given the approval of the action of the subordinate authority to issue the charge-sheet and to appoint the enquiry officer and in this case that the Deputy Factory Manager concerned had the implied authority Factory Manager to issue the charge-sheet and also to appoint the enquiry have been clearly established. ( 22 ) I am in full agreement with the above submission of the learned Advocate for the petitioner. ( 22 ) I am in full agreement with the above submission of the learned Advocate for the petitioner. There is no such proposition in law that under no circumstance any person or authority subordinate to the appointing/disciplinary authority cannot issue the charge-sheet or initiate a departmental proceeding and If it can be established that such subordinate authority has either express or implied approval to the same by the appointing/disciplinary authority then the departmental proceeding initiated at the instance of such subordinate authority cannot be vitiated. ( 23 ) IN this particular case, I am satisfied that even though was initiated by the officer subordinate to the appointing/disciplinary, yet, such authority has the implied authority to issue the charge-sheet and to initiate the enquiry by appointing the enquiry officer. Therefore, the ground on which the learned Tribunal has set aside the order of dismissal cannot be sustained. ( 24 ) IN the result, the order passed by the learned Tribunal be hereby quashed. The Tribunal shall now decide the preliminary point as to whether the domestic enquiry was legally conducted or not and after disposing of such preliminary issue he shall thereafter act in accordance with law to dispose of the reference finally. ( 25 ) AS the reference is pending for long the learned within three months of the date of communication of this order dispose of the reference finally. All parties shall act on the signed copy of the operative portion of this judgment. The writ petition is allowed. No order for costs is passed. Petition allowed.