Judgment Rajesh Balia, J.-This appeal is directed against the Judgment of learned Single Judge dated 012.1999 passed in S.B. Civil Writ Petition No. 992/1996. The writ petition filed by the appellant challenging the award passed by the Labour Court, Jodhpur on 03.01.1996 was dismissed by the Judgment under appeal. 2. The facts leading to this stage of litigation are that the Respondent No. 1 was appointed at the appellant Bank as LDC vide order dated 01.01.1981. The respondent got married to an Army Officer in 1986, who was posted outside. 3. Annexure-1 filed alongwith the writ petition a charge-sheet dated 09.09.1987 was issued to the respondent. From the perusal of the charge-sheet it appears that during the period October, November and December, 1986, respondent had availed leave to be with her husband and while she was on sanctioned leave upto 31.03.1987, she applied for extension of leave on 03.04.1987. 4. After giving the background, which led to the issuance of charge-sheet, the charges levelled against the respondent were that she is continuing on leave w.e.f. 01.04.1987 voluntarily and that she is in habit of remaining absent without sanctioned leave from which it is inferred that the respondent is not wiling to work and is availing leave for gaining unfair benefit somehow, which amounts to insubordination and causing financial loss to the Bank. 5. After issuing the charge-sheet, the respondent was dismissed from service vide order dated 05.02.1988. The order was prefaced with certain difficulties faced by the appellant-bank in effecting the service of memorandum of charges on the respondent. The reasons which weighed for passing the dismissal order were that the memorandum of charges could be served on the respondent only at 4.00 PM on 212.1987 at Railway Station, Jalore, that she left the bank in the morning of 212.1987 for delaying the enquiry, that notwithstanding service of letter dated 212.1987, she has not disclosed the reason of her absence on that date nor she has replied the earlier memorandum of charges and by doing this, she has obstructed the work of the bank and has disobeyed the orders of the bank. It was also stated that earlier also by remaining absent from 210.1986 to 13.03.1987, she has obstructed the working of the bank and after 14.03.1987 she left the Bank and returned only on 212.1987 and on 212.1987 she has remained absent. It was also stated that earlier also by remaining absent from 210.1986 to 13.03.1987, she has obstructed the working of the bank and after 14.03.1987 she left the Bank and returned only on 212.1987 and on 212.1987 she has remained absent. With these statements, the disciplinary authority concluded that the respondent is not interested in working with the bank and she has never maintained discipline, which has resulted in financial loss to the bank, therefore, the services of the respondent is being terminated w.e.f. 05.02.1988. 6. Dismissal of services of respondent led to raising of industrial dispute, which was referred to the Labour Court vide notification dated 10.07.1991. It was a common ground before the Labour Court that the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 were adopted by the bank for taking disciplinary proceeding and that no inquiry in terms of Rule 16 of the CCA Rules, 1958 was conducted by the appellant-bank. It was claimed by the respondent-workman that she did not receive the memorandum of charges dated 212.1987 and 09.09.1987 and that all allegations levelled against her were groundless. 7. The appellant-bank has urged that the memorandum of charges dated 09.09.1987 was served on the respondent-workmen on 16.09.1987. When the respondent-workman did not reply to the charge-sheet dated 09.09.1987 memorandum of charges was again sent on 212.1987 to the respondent and the same was served on her by hand. Since, the respondent has not replied the memorandum of charges, it was assumed that she has nothing to say against the memorandum of charges and on that premise the order of removal from service was passed in accordance with the law and was justified. 8. It is also common ground that neither the appellant-bank, while filing reply, claimed any opportunity to establish the charges levelled against the respondent before the Tribunal by leading evidence in case Tribunal comes to the conclusion that inquiry was not conducted or the inquiry conducted by the Employer was not fair, nor any such opportunity was sought to establish the charges on the basis of which removal order was passed, at any time, during the pendency of proceedings before the Labour Court. 9. So far as service of memorandum of charges is concerned, the Labour Court found against the workman and held that memorandum of charges was served on the respondent-workman. 9. So far as service of memorandum of charges is concerned, the Labour Court found against the workman and held that memorandum of charges was served on the respondent-workman. However, in terms of Sub-rule (4) of Rule 16 of CCA Rules, 1958, which was admitted to be applicable to the departmental proceedings of the appellant-bank the Labour Court came to the conclusion that if no reply is submitted to the memorandum of charges then it will be assumed that the delinquent does not admit his/her guilt and inquiry has to be conducted and conclusion has to be recorded on the basis of that inquiry. Since, admittedly, said procedure was not followed, proceedings remained at the stage of not admitting the guilt by the delinquent in terms of Rule 16(4) of the CCA Rules. No finding of guilt could be recorded without holding any inquiry and consequently no punishment could have been imposed. With these findings termination was held to be invalid and reinstatement was directed. 10. Finding that reference has been made after three years of passing of dismissal order and that workman has contributed to delay in deciding the Industrial Dispute, she was held entitled to only 50% of the arrears of wages from the date of reference till reinstatement. 11. Against the award of reinstatement with 50% back wages, the appellant-bank filed Writ Petition No. 992/1996. 12. Learned Single Judge agreed with the learned Labour Court that inquiry as contemplated under Rule 16(4) of the CCA Rules, 1958 had never been conducted against the respondent-workman. Even if the workman has not responded to the show cause notice/memorandum of charges, the appellant-bank ought to have proceeded against her ex parte. The learned Single Judge also found that there is nothing on record to show that the absence of the respondent workman was such a long that it could raise presumption that she had abandoned the service while repelling the contention of the learned Counsel for the appellant-bank that it may be deemed to be a case of abandonment of service by presuming it to be a long unauthorised absence. It was also found by the learned Single Judge that she had given application for extension of leave and she also joined on 212.1987, therefore, no such inference of voluntarily abandonment of service could be drawn against the workman. 13. It was also found by the learned Single Judge that she had given application for extension of leave and she also joined on 212.1987, therefore, no such inference of voluntarily abandonment of service could be drawn against the workman. 13. No such contention was raised before the learned Single Judge as was sought to be raised before us for the first time that in case it is concluded that inquiry was not conducted as required under the Rules of 1958, the employer-bank was entitled to prove the same before the Labour Court by leading evidence. 14. Before the Division Bench when the matter came up on 112.2005, after hearing the parties and referring to Rule 16(4) of the CCA Rules, the Court concluded that in view of these provisions, it is clear that there is no room for assumed admission of guilt in case no statement of defence is submitted. Only express admission of guilt either in written statement of defence or orally on being asked to plead guilty or has a defence, that finding of guilt can be returned on the basis of admission of guilt obtained under signature of the delinquent officer. 15. Admittedly, the appellant has not acted in terms of Sub-rules (4) and (4-A) of Rule 16 but had erroneously assumed that non-submission of written statement of defence amounts to admission of guilt. The Labour Court when found that bank had not acted in terms of the rules by holding inquiry against the delinquent, it held that the order of punishment cannot be sustained. 16. Learned Counsel for the appellant stated before the Court that the respondent is not interested to join the service as she has not joined the service notwithstanding there is no stay against the award of reinstatement. 17. Learned Counsel for the respondent, on the other hand, stated that despite making many efforts for taking on duty, the appellant has not responded and stated that she is still willing to join the service. The learned Counsel for the appellant reported that the bank is still prepared to reinstate the respondent if she appears on duty. 18. Considering this aspect of the matter, the Court directed the respondent to appear before the Branch Manager/ Secretary, Jalore Bhumi Vikas Bank Ltd., Jalore by 212.2005 and on such appearance she will be taken back on duty. The learned Counsel for the appellant reported that the bank is still prepared to reinstate the respondent if she appears on duty. 18. Considering this aspect of the matter, the Court directed the respondent to appear before the Branch Manager/ Secretary, Jalore Bhumi Vikas Bank Ltd., Jalore by 212.2005 and on such appearance she will be taken back on duty. On her reinstatement, the matter shall be listed for orders on 13.01.2006 for considering the prayer regarding allowance of back wages. 19. When the case was listed on 13.01.2006, learned Counsel for the appellant insisted that he has not stated that on reinstatement, claim of the appellant challenging the award of reinstatement shall not be perused, and, therefore, the entire case may be heard on merit. The matter was ordered to be listed on 20.01.2006 to be heard and decided finally at the orders stage. 20. In the first instance, learned Counsel for the appellant faintly sought to urge that CCA Rules are not applicable to the bank by their own force and same cannot be made applicable to the present case and, therefore, the award founded on Rule 16 of CCA Rules is erroneous. 9.21. However, applicability of CCA Rules to the departmental proceedings of the bank has been admitted throughout and has not been challenged at any stage of proceeding until now. Learned Single Judge has clearly found that CCA Rules were adopted by the bank for governing the disciplinary proceedings. The grounds challenging the award also do not challenge the position that CCA Rules are not applicable to the present case, nor any such ground has been taken in memo of appeal. When this was pointed out to learned Counsel for the appellant, the contention was not pursued further. 22. In fact, vide notification No. F 15(22) dated 03.01.1980, the Registrar of the Cooperative Societies in exercise of powers conferred under Rule 41 of the Rajasthan Cooperative Societies Rules, 1966 directed to apply the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 in disciplinary proceedings against the employees of the Central Cooperative bank and the Rajasthan State Cooperative bank in the absence of approved Service Rules of the Institution. Vide another notification No. F-15 (20) dated 03.03.1980, the Registrar in exercise of powers conferred under Rule 41 of the Rajasthan Cooperative Societies Rules, 1966 laid down that in the absence of any approved Service Rules of the Cooperative Institution, the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 laying down the procedure of disciplinary action shall apply with amendment made thereto from time to time in all the disciplinary actions against the employees of the Cooperative Societies. Two notifications read together make it clear that in the banking Cooperative Societies as well as in Non-banking Cooperative Societies, in the absence of approved Service Rules, the procedure relating to disciplinary proceedings laid down under CCA Rules, 1958 will be applicable to which fact learned Single Judge has taken notice. No such approved Service Rules to displace the applicability of CCA Rules to Banking Cooperative Societies have been brought to our notice, or relied on. 10.23. At the beginning of the arguments, learned Counsel for the appellant has filed an application alongwith additional affidavit on behalf of the appellant. The additional affidavit appears to be an attempt to provide new foundation for sustaining the order of dismissal by referring to the absence from 23.04.1986 to 13.03.1987 for a period of 278 days, from 15.03.1987 to 212.1987 and further w.e.f. 30.12.1987 to 04.02.1988 totalling 321 days. These allegations are finding place for the first time by way of additional affidavit, which, in our opinion, cannot be taken into consideration at this stage without affording an opportunity in the matter of these allegations which include not only the period for which the respondent was on sanctioned leave, even as per charge sheet as well as period subsequent to date of memorandum of charges which was not even subject of allegations to be enquired into. 24. Further, an averment has been made that the respondent has remained absent from 23.04.1986 to 13.03.1987 total for a period of 278 days and that respondents brother Shri Om Prakash is also working in the bank and the respondent married to an Army Officer in 1986. Bringing of these facts on record by way of additional affidavit appear to be wholly unwarranted and to prejudice the case of the respondent on merits. Bringing of these facts on record by way of additional affidavit appear to be wholly unwarranted and to prejudice the case of the respondent on merits. It will not be out of place to mention here that as per this very affidavit respondent married to an Army Officer in 1986 and October, 1986 to March, 1987 was the initial period of marriage and leave of absence for different periods upto 31.03.1987 were duly sanctioned by the appellant as is apparent from the memorandum of charges. No legitimate grievance can be made if a newly married employee of the bank has asked for leave at the early stage of marriage to make the smooth changeover to family life, and which was duly sanctioned to impute unwillingness to continue in service. As a matter of fact, the charge-sheet and additional affidavit smacks of gender prejudice against an unmarried employee getting married during employment. 25. Be that as it may, once the leave was duly sanctioned and paid for, no grievance can be made about the absence from duty. Moreover, one fails to understand what is the purport of bringing on record, at this stage, that brother of respondent was also working in the bank about which there is no mention earlier. The additional affidavit appears to have been filed containing extraneous material with object not germane to the result of the litigation. If any, the additional affidavit provides humane ground for availing greater amount of leave during initial period of marriage, which cannot be said to be unnatural. 26. In fact, if one closely peruses the memorandum of charges, the core grievance which appears to have been ventilated betrays a stray gender prejudice against a woman employee marrying while in service and trying to adjust her home in typical Indian conditions demanding additional burden on woman partner to marriage. It is reflected in complaint that the respondent is taking more leave for attending to her household. In the additional affidavit it has been stated that in 1986 respondent Smt. Aruna Mathur married to an Army Officer Shri Yogendra Kumar Mathur and it has been stated in the charge sheet that her husband was posted at Pune and she had gone to Pune, from which place she had asked for extention of leave. In the additional affidavit it has been stated that in 1986 respondent Smt. Aruna Mathur married to an Army Officer Shri Yogendra Kumar Mathur and it has been stated in the charge sheet that her husband was posted at Pune and she had gone to Pune, from which place she had asked for extention of leave. If the respondent-workman had applied for leave due to her and after considering the circumstances, the Management has thought it fit to sanction the leave with full pay then no cause of grievance can be raised about that later for the purpose of any subsequent conduct. 27. It is not the case of the appellant that married woman is not entitled to continue in employment. It is unfortunate that on the one hand State is making policy statement time and again for strengthening the position of women in all spheres of life, the appellant bank notwithstanding knowing that marital status of respondent has changed in 1986 only and during her initial period of marriage requires little more time to settle in married life have taken adverse view of leave availed by her and the allegation in the memorandum of charges clearly goes to show the bias against the married female employees working in the bank. 28. The applicability of CCA Rules is no more in dispute and provisions of CCA Rules in the departmental proceedings have not been complied with and it has to be held that no enquiry was conducted on erroneous assumption of admitting the guilt by not filing reply to the memorandum of charges is contrary to Rule 16(4) of the CCA Rules. The conclusion reached by the Labour Court cannot be said to be contrary to law, much less suffering from any error apparent on the face of record so as to warrant interference in writ of certiorari. 29. Faced with the situation, learned Counsel for the appellant contended that it is well settled principle that the employer, even if he has not held any inquiry can justify the dismissal order before the Labour Court but such opportunity has been given to the appellant and, therefore, opportunity ought to have been given to the appellant to justify the removal order. 30. 30. Learned Counsel for the respondent pointed out by referring to the Constitutional Bench decision of the Supreme Court that it is upon the employer to justify the order of dismissal or punishment by leading evidence before the Labour Court in case no inquiry has been conducted before removal or dismissal by way of punishment or the inquiry has been conducted which is found to be defective, but such opportunity can be availed only if the employer seeks such an opportunity. It is not the obligation of the Labour Court to invite the employee to avail such an opportunity. This opportunity, the employer can seek at any time during the pendency of the proceedings before the Labour Court and may not be confined to making such a prayer alongwith the claim petition. 3.31. In this connection reference was made to the decision of Supreme Court in Karnataka State Road Transport Corporation vs. Smt. Lakshmidevamma reported in 2001 (2) SCT Page 1041. In the aforesaid Judgment of the Supreme Court consisting of a Bench of five judges, it was held that an employer, who has terminated the services of an employee without holding an inquiry or by holding an inquiry which is found to be defective, can avail an opportunity to justify the order of termination before the Labour Court before whom the matter comes up for consideration. 4.32. It was noticed that, as early as, in 1965 (3) SCR 588 Workman of Motipur Sugar Factory (Pvt.) Ltd. vs. Motipur Sugar Factory, this Court has held that if the domestic enquiry is irregular, invalid or improper, the Tribunal may give an opportunity to the employer to prove his case and in doing so the Tribunal tries the merits of the case itself . 33. Thereafter, the Court had occasion to examine this aspect of the matter in Delhi Cloth and General Mills Co. vs. Ludh Budh Singh, [ 1972 (3) SCR 29 ], wherein the Court emphasised that:-“When a domestic enquiry has been held by the management and the management relies on it, the management may 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. In such a case if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to adduce additional evidence and also give a similar opportunity to the employee to lead evidence contra. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of before the proceedings were closed, the employer can make no grievance that the Tribunal did not provide for such an opportunity.” 34. The similar view was expressed in Cooper Engineering Limited vs. Sri P.P. Mundhe, 1976 (1) SCR 361. The Court said that:-“When a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first decide as a preliminary issue whether the domestic inquiry has violated the principles of natural justice. When there is no domestic inquiry or defective inquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.” 35. This principle was also accepted by the Supreme Court in Shankar Chakravarti vs. Britannia Biscuit Company Ltd. & Anr., 1979 (3) SCR 1165 . The Court observed that such an opportunity can be availed by the employer during the proceedings before the Labour Court. However, the Court made the observations that at what stage the management must exercise its right to avail opportunity to lead evidence to justify the order of discharge, removal or dismissal from service. The Court observed that such an opportunity can be availed by the employer during the proceedings before the Labour Court. However, the Court made the observations that at what stage the management must exercise its right to avail opportunity to lead evidence to justify the order of discharge, removal or dismissal from service. Accepting this right of availing an opportunity to lead evidence to justify its order, the Court pointed out that in a proceeding initiated by the management for seeking permission of the Labour Court or Industrial Tribunal seeking approval of such an order under Section 33 of the Industrial Disputes Act, an opportunity can be availed by the management during the pendency of the application before the Labour Court since the management is made aware of the workmans contention regarding the defect in the domestic inquiry by the written statement of defence filed by him. However, the Court said: - “When the question arises in a reference under Section 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 defeat in the domestic enquiry is pointed out 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 .” The Court went on to say:-“If it does not choose to do so at that stage it cannot be allowed to do it 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.” 1.36. Thus, the consistent view of the Supreme Court has been that the employer can avail the opportunity before the Labour Court to justify its order of discharge, dismissal or removal by leading evidence before it where such order has come into existence without holding any domestic inquiry or by holding a domestic enquiry which is found to be defective. However, the common thread is that such an opportunity has to be availed by the employer himself and it is for him to seek an opportunity. 2.37. As noticed above, the question arises at what stage the employer can avail such an opportunity before the Labour Court. There is unanimous opinion that such opportunity can be availed, in any case, before the termination of the proceedings before the Labour Court and not thereafter. Existing difference of opinion was about at what stage before the Labour Court/Tribunal such opportunity can be sought. However, on account of view expressed in Shankar Chakravartis case, as noticed above, and the orders passed in other cases referred to above when the Karnataka State Road Transport Corporation appeal was before the Supreme court and reference was made to five Judges Bench in view of conflicting decision between Shambhu Nath Goyal vs. Bank of Baroda & Ors., 1984 (1) SCR 85 and Rajendra Jha vs. Labour Court, 1985 (1) SCC 544. The controversy referred was at what stage the employer can ask for such an opportunity when there being no controversy that employer can avail such an opportunity before the Labour Court either in seeking approval of the order of discharge, dismissal or removal or when the reference is made in respect of order of discharge, dismissal or removal by the employer under Section 10. 3.38. The controversy before the Five Judges Bench was in respect of the stage at which the employer can avail this opportunity before the Labour Court. It was also not in dispute that if the opportunity has not been availed before Labour Court/Industrial Tribunal, it cannot be availed later on. 4.39. 3.38. The controversy before the Five Judges Bench was in respect of the stage at which the employer can avail this opportunity before the Labour Court. It was also not in dispute that if the opportunity has not been availed before Labour Court/Industrial Tribunal, it cannot be availed later on. 4.39. While in the leading Judgment rendered by Honble Justice N. Santosh Hegde, the principle enunciated in Shambhu Nath Goyals case was stated to be laying down correct procedure namely that request should be made at the time of filing written statement by the employer for availing the opportunity to lead evidence before the Labour Court/Industrial Tribunal for justifying such order and if he does not choose to do so, the opportunity cannot be allowed at any later stage. 40. In his dissenting Judgment , Honble Justice Y.K. Sabh