D. P. KUNDU, J. ( 1 ) IN this writ application the petitioner hereinafter referred to as the Company has challenged the Award dated 6. 6. 1987 passed by the First Labour Court, West Bengal in Case No. VIII-C/60/79. ( 2 ) IT appears that Government of West Bengal, Labour Department by a reference dated 5th July, 1979 referred the following issue for adjudication to the First Labour Court, West Bengal. "issue whether the dismissal of Sri Jiten Pandit w. e. f. 9. 12. 77 is justified? to what relief, if any, is he entitled?" it appears that by order No. 71, dated 22. 4. 86 the First Labour Court held that the domestic enquiry held against respondent No. 3 (hereinafter referred to as the workman) was proper and fair and the enquiry was held to be valid by the Labour Court. ( 3 ) IN Delhi Cloth and General Mills Co. Ltd. v Ludh Budh Singh reported in 1972 (1) LLJ 180 , Supreme Court laid down the principles to be followed by the Labour Courts and Tribunals constituted under Industrial Disputes Act, 1947 in connection with the proceedings which have come before it either on a reference under section 10 or by way of an application under section 33 of the Act. Those principles as enumerated in paragraph 61 of the reported decision are as follows: (1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it. (2) If a domestic enquiry hed been held, it is open to the management to rely upon the domestic enquiry held by it in the first instance, and alternative and without prejudice to its plea that the enquiry is proper and binding simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more that the management has given up the enquiry conducted by it. In such a case no inference can be drawn, without anything more that the management has given up the enquiry conducted by it. (3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merit no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. (4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with, in the first instance as a preliminary issue, the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal the position, under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestice Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct. (5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If on such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper. (6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it. (7) The above principles appply to the proceedings before the Tribunal, which have come before it either on a reference under section 10 or by way of an application under section 33 of the Act. (7) The above principles appply to the proceedings before the Tribunal, which have come before it either on a reference under section 10 or by way of an application under section 33 of the Act. " ( 4 ) IN Bharat Iron Works v. B. B. Patel reported in 1976 (32) FLR 72 Supreme Court observed, inter alia, as follows:-"there is also no difference in principle of the law applicable to a case under section 10, Industrial Disputes Act and that under section 33. To put it clearly, it is this: when an application under section 33 whether for approval or for permission is made to a Tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer, to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal, then will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an event, the employer's findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits. There is a two-fold approach to the problem and if lost sight of, it may result in some confusion. In other words, in such an event, the employer's findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits. There is a two-fold approach to the problem and if lost sight of, it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or other of the following conditions:- (1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse findings. (2) Even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis that the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No. 1 above. A prima facie case is not as in a criminal case, proved to the hilt. It must be made clear in following the above principles, one or the other, as may be applicable in a particular case, the Tribunal does not sit as a court of appeal, weighing or reappreciating the evidence for itself but only examines the finding of the enquiry officer on the evidence in the domestic enquiry as it is, in order to find out either whether there is a prima facie case or if the findings are perverse. Secondly, in the same case i. e. whether there is no failure of the principles of natural justice in the course of domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisidiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice in the course of domestic enquiry will absolutely lose it importance or efficacy. In that event the fact that there is no violation of the principles of natural justice in the course of domestic enquiry will absolutely lose it importance or efficacy. " ( 5 ) IT appears that in the instant case a preliminary issue was considered and by order No. 71 dated 22. 4. 1986 the Labour Court held that domestic enquiry held against the workman was proper and fair and the enquiry was held to be valid by the Labour Court. In the above referred cases one of the principles laid down by Supreme Court is that when a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. It was held that under such circumstances it is open to the Tribunal to deal with, in the first instance as a preliminary issue, the validity of the domestic enquiry and if its finding on the preliminary issue is in favour of the management then no additional evidence need be cited by the management but if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial come to an end. Thus it appears that if the Tribunal or Labour Court's finding on the preliminary issue is in favour of the management then no additional evidence is required to prove that the workman is guilty of misconduct and that the action taken by the management is proper. Once such decision is taken the following points are to be considered by the adjudicating forum. The points are :- (1)if there is legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic enquiry. The points are :- (1)if there is legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse finding. (2)even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis of evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No. (1) above. A prima facie case is not, as in criminal case, proved to the hilt. (3)where there is no failure of principles of natural justice in the course of the domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of principles of natural justice in the course of the domestic enquiry will absolutely lose its importance or efficacy. (4)if the adjudicating forum is satisfied that the order of discharge or dismissal was not justified, it may, by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief, to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require under section 11a of the Industrial Disputes Act, 1947. While exercising jurisdiction under section 33 (2) (b) the adjudicating forum cannot exercise its power under section 11a of the Act. Power under section 11a of the Act can be exercised by the adjudicating forum only when a reference has been made under section 10 of the Act. ( 6 ) THE Tribunal or Labour Court cannot for the second time go into the question of validity of the domestic enquiry held against the employee. Power under section 11a of the Act can be exercised by the adjudicating forum only when a reference has been made under section 10 of the Act. ( 6 ) THE Tribunal or Labour Court cannot for the second time go into the question of validity of the domestic enquiry held against the employee. ( 7 ) IT appears that the Labour Court in the award under challenge, inter alia, held:"the Enquiry Officer's finding of guilt was with regard to the misconduct which differed from the suspension order. In such a petition the company was bound to afford a reasonable opportunity to the workman of explaining and defending his action in respect of the misconduct as referred to in the charge-sheet. The company has not proved any document in this court to show that it gave such opportunity to the workman. The commission of an act of taking away of articles of the company may be said to be an act of theft. From the dismissal letter it can be understood that the General Manager of New Alipore Works had gone through various records of the worman. The records of service of the vorkman has not been proved by the company in this case to show that the previous records of the workman were bad. If the company produced the service book of the workman this court could have at least ascertained whether the dismissing authority acted faithfully, or not with regard to the previous records of service of the workman before inflicting punishment upon him. "in my opinion the above quoted finding of the Labour Court is against the principles laid down by Supreme Court in the above referred cases. The reasons for my opinion have already been recorded in the earlier in this judgement. ( 8 ) THE workman was a sweeper of the company. By an order dated 21. 5. 77 the workman was placed under suspension. The relevant portion from the order of suspension is quoted hereinbelow:"suspension Order : it has been alleged to us that yesterday the 20th May, 1977 at about 5 PM, you attempted to take away hiding in your hand bag 2 Pcs. old aluminium piston weighing about 3. 5 Kgs. of value of Rs. 28 for your personal gain you are put under suspension with immediate effect pending issue of charge-sheet. old aluminium piston weighing about 3. 5 Kgs. of value of Rs. 28 for your personal gain you are put under suspension with immediate effect pending issue of charge-sheet. "thus it appears that the workman was placed under suspension on the ground that he attempted to take away hiding in his hand bag two pieces of old aluminium piston weighing about 3. 5 kgs. of value of Rs. 28 for his personal gain. ( 9 ) IT further appears that by a charge-sheet dated 27th/30th May, 1977 certain charges were levelled against the workman. The relevant portion of the charge-sheet is quoted hereinbelow:"charge Sheet : it has been reported against you as under:-that on 20. 5. 77 at about 5. 00 P. M. while you were going out of the New Alipore Factory Premises with a bag in your hand a routine search was carried out by Sri Ramkhelon Singh, watchman T. No. 3390, who was on duty at the Main Gate at that time in presence of other Security Watchman. That on searching the bag which you were carrying at the time of going out of the Factory premises it was found that you were taking out two pieces old Aluminium Piston weighing about 3. 5, clandestinely keeeping the same in your said hand bag. That when you were asked by Sri Singh, the Watchman on duty to produce Gate Pass or Challan for taking out those materials belonging to the company out of the factory premises, neither you could produce any authority for taking out those materials out of the factory premises nor you could submit any satisfactory explanation. That you were taking those 2 pcs. of Aluminium Piston (old) belonging to the company out of the factory premises without any authority for your personal gain. Your above acts, if proved, will constitute major misdemeanours in terms of clause 60 (ii) of the Certified Standing Orders of the company viz. (i)theft of company's property, fraud or dishonesty with the company's business. (ii)commission of any act subversive of good behaviour or of the discipline of the company; You are directed hereby to explain the circumstance as alleged above within 48 hours from receipt hereof and to show-cause as to why adequate disciplinary action shall not be taken against. A> pending final disposal of the charge-sheet you will remain under suspension as advised in our letter No. NAW/per/da/109/158, dated 21. A> pending final disposal of the charge-sheet you will remain under suspension as advised in our letter No. NAW/per/da/109/158, dated 21. 5. 77. You will, however, be entitled to draw subsistence allowance as per the West Bengal Payment of Subsistence Allowance Act. " ( 10 ) THUS it is evident from the charge-sheet that the allegation against the workman was that he was taking out, at the time of going out from the factory premises, two pieces of old aluminium piston weighing about 3. 5 Kgs. clandestinely keeping the same in his hand bag. Thus if the suspension order and the charge-sheet are compared with each other it is apparent on the face of the record that allegation against the workman were substantially same. Under these circumstances I am of the view that the finding of the Labour Court:"ext. A i. e. in the suspension order there is mention about attempting to take away. In the charge-sheet there is no mention about attempting to take away but in the same there are mentions, inter alia, "your above acts, if proved, will constitute major misdemeanours in terms of clause 60 (ii) of the Certified Standing Orders of the company, viz. (i)theft of company's property, fraud or dishonesty with the Company's business. (ii)commission of any act subversive of good behaviour or of the discipline of the Company" As there is no mention regarding attempting to take away in the charge-sheet it is to be said that the charge-sheet differed from the suspension order"is based on no evidence and is perverse. ( 11 ) THE Labour Court in its award held-"after the domestic enquiry and before inflicting punishment on the workman on the misconduct alleged in the charge-sheet the company has not proved to have issued any notice to the workman for explaining and defending his action in respect of such misconduct. As the company has not issued any such notice and has not given any reasonable opportunity of explaining and defending his action in respect of such misconduct, the dismissal of the workman cannot be said to be valid and justified. " ( 12 ) BUT this view of the Labour Court is not good in law. Supreme Court in Associated Cement Co. Ltd. v. T. C. Srivastava and Ors. " ( 12 ) BUT this view of the Labour Court is not good in law. Supreme Court in Associated Cement Co. Ltd. v. T. C. Srivastava and Ors. reported in 1984 (II) LLJ 105 , at pages 109 and 110 observed as follows:"it is thus clear that neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary. This, of course, does not mean that a Standing Order may not provide for it but unless the Standing Order provides for it either expressly or by necessary implication no inquiry which is otherwise fair and valid will be vitiated by non-affording of such second opportunity". ( 13 ) SUPREME Court in Management, Shahdara (Delhi) Saharanpur Eight Railway Co. Ltd. v S. S. Railway Workers Union, reported in AIR 1969 SC 513 in paragraph 18 observed, inter alia, as follows:"as regards the modification requiring a second show-cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice. In none of the decisions given by courts or the Tribunals such a second show-cause notice in case of removal has ever been demanded or considered necessary. The only class of cases where such a notice has been held to be necessary are those arising under Article 311. Even that has now been removed by the recent amendment of that Article. To import such a requirement from Article 311 in industrial matters does not appear to be either necessary or proper and would be equitating industrial employees with civil servants. In our view, there is no justification on any principle for such equation. " ( 14 ) IN view of above referred two decisions of Supreme Court it is evident that the workman was not entitled to a second show-cause notice from the management against the proposed punishment. There is no provision in the Certified Standing Orders of the company that such a notice should be given to the workman. Thus it is apparent on the face of the record the Labour Court committed gross error. There is no provision in the Certified Standing Orders of the company that such a notice should be given to the workman. Thus it is apparent on the face of the record the Labour Court committed gross error. ( 15 ) IN view of the discussions made hereinabove the award under challenge is quashed and set aside, the case is remanded back and the First Labour Court, West Bengal is directed to pass its award in connection with the case No. VIII-C/60/79 in accordance with law. The First Labour Court, West Bengal is further directed to pass a fresh award within three months from the date of communication of this judgement and order. In these terms the writ application is allowed. However, there shall not be any order as to costs. Petition allowed