JUDGMENT Honble Shishir Kumar, J.—This writ petition has been filed for quashing the award dated 23.4.1988 passed by Industrial Tribunal (I) Allahabad in Misc. Case No. 60 of 1987. 2. The facts arising out of the writ petition are that respondent No. 2 was a workman in the petitioner’s Corporation. The petitioner is a government company within the meaning of Companies Act, 1956 and is engaged in manufacturing of textile and woollen goods. The service conditions of the workmen of the company laid down certain terms and conditions in the Standing Order certified in the Industrial Employment (Standing Orders) Act, 1956. Clause 23 of the certified Standing Order enumerates regarding misconduct. In the weaving department about 400 workers are employed. Criteria for calculating production of clothes in this department is taken by number of in one inch of woollen clothes. Respondent No. 2 who was employed as weaver in the weaving department, it was reported by one Sri C.R. Singh, Incharge of the shed on 2.11.1987 that on the instigation of respondent No. 2 and one Kamla Prasad workers working in the weaving department have been resorting to “go slow” with the result that the production of this department has gone down. It has also been reported by the Incharge that respondent No. 2 also misbehaved with him. On the receipt of the aforesaid report, management decided to issue a charge-sheet to respondent No. 2 and accordingly he was suspended by order dated 6.11.1987 and was also served with a charge-sheet alleging that workers have resorted to “go slow” on his instigation and the aforesaid behaviour of respondent No. 2 is a misconduct punishable under Standing Order 23. The said charge-sheet was served on 6.11.1987. He has not submitted a reply within the period allowed by the management nor he has filed any application for extension of time. Even after the issuance of the charge-sheet, no improvement was there and after waiting about three days as the company was suffering heavy losses in production, respondent No. 2 as well as one Kamla Prasad was dismissed from service - vide order dated 9.11.1987. While passing the order of dismissal, management has paid one month’s wages and filed an application for approval of the order of dismissal as provided under Section 6-E (2) (b) of the U.P. Industrial Disputes Act before the Industrial Tribunal. While passing the order of dismissal, management has paid one month’s wages and filed an application for approval of the order of dismissal as provided under Section 6-E (2) (b) of the U.P. Industrial Disputes Act before the Industrial Tribunal. The said application filed by the petitioner was registered as Misc. Case No. 60 of 1987. 3. On receipt of notices petitioner as well as respondent-workmen filed their affidavits. With the affidavit petitioner also filed a copy of the complaint, charge-sheet and the order of dismissal before the Tribunal. One Sri Ajay Jha was examined in support of the case whereas respondent No. 2 examined himself. By order dated 23.4.1998, the Industrial Tribunal has refused to accord approval to the dismissal of the respondent No. 2. 4. The Industrial Tribunal in its award has held that since the management did not hold any domestic enquiry and the management was obliged to produce evidence to prove the alleged misconduct of respondent No. 2, it has also been held that the charge-sheet given to the respondent No. 2 did not specify sub-clause of the relevant Standing Order and other particulars. 5. Learned Counsel for petitioner has submitted before this Court that question of holding enquiry arises only when a workman disputes the allegation or charges levelled against him. Since the workman did not give any reply to the charges levelled against him, management bona fide believed that he has no explanation to offer and punished him on the ground that the charges have not been disputed. Further it has been submitted that the Industrial Tribunal has not applied its mind to the facts of the present case and has misdirected itself in presuming that petitioner was bound to hold enquiry or prove charges before him. Under Section 6 E-(2)(b) of the Act Industrial Tribunal has to consider whether the management has been able to establish prima facie case against respondent workman and its action was bona fide. The Industrial Tribunal ought to have given the approval as a prima facie case had been proved against the workman by the management. An application was filed to lead evidence before the tribunal but the said request was not accepted. The Industrial Tribunal ought to have given the approval as a prima facie case had been proved against the workman by the management. An application was filed to lead evidence before the tribunal but the said request was not accepted. Therefore, in view of the settled principle, either the opportunity to lead evidence should have been granted or the approval should have been accorded to the dismissal of the respondent No. 2 with effect from 10.11.1987. Reliance has been placed upon a judgment reported in 2006 (6) SCC 325 , Amrit Vanaspati Co. Ltd. v. Khem Chand and another and reliance has been placed upon Para 8 of the said judgment : “8. We are unable to countenance the submission made by the learned counsel for the respondent. This Court in a judgment reported in 1973 (1) SCC 813 , Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. etc. v. The Management and others etc.) exhaustively referred to various decisions of this Court and gave a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge. Paragraph 32 of the said judgment is reproduced here : “32. From those decisions, the following principles broadly emerge : (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer, or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. The Workmen, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.” 6. Another judgment relied upon by the learned counsel for the petitioner is 2005 (2) SCC 684 , Divyash Pandit v. Management NCCBM. Taking support of the aforesaid judgment learned counsel for the petitioner submitted that once the labour Court came to the finding that the domestic enquiry was non-est, facts of the case warranted that it should have been given opportunity to the management to establish charges before passing an award in favour of the workman. 7. Another judgment relied upon by the learned counsel for the petitioner is 1973 SCC 813 , The Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt) Ltd. v. The Management and others and reliance has been placed upon Paras 26 & 28 of the said judgment which are quoted below : "26. The powers of a Tribunal when a proper enquiry has been held by an employer as well as the procedure to be adopted when no enquiry at all has been held or an enquiry held was found to be defective again came up for consideration in Management of Ritz Theatre (P) Ltd. v. Its Workmen. The powers of a Tribunal when a proper enquiry has been held by an employer as well as the procedure to be adopted when no enquiry at all has been held or an enquiry held was found to be defective again came up for consideration in Management of Ritz Theatre (P) Ltd. v. Its Workmen. Regarding the powers of a Tribunal when there has been a proper and fair enquiry, it was held : “It is well settled that if an employer serves the relevant charge or charges on his employee and holds a proper and fair enquiry, it would be open to him to act upon the report submitted to him by the Enquiry Officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against the employee as a result of such an enquiry can be challenged if it is shown that the conclusions reached at the departmental enquiry were perverse or the impugned dismissal is vindictive or mala fide and amounts to an unfair labour practice. In such an enquiry before the Tribunal, it is not open to the Tribunal to sit in appeal over the findings recorded at the domestic enquiry. This Court has held that when a proper enquiry has been held, it would be open to the Enquiry Officer holding the domestic enquiry to deal with the matter on the merits bona fide and come to his own conclusion.” Again regarding the procedure to be adopted when there has been no enquiry or when there has been a defective enquiry, it was stated : “It has also been held that if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the enquiry officer are perverse, the whole issue is at large before the Tribunal. This position also is well settled.” It was further held that it is only where a Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the finding recorded is perverse that the Tribunal derives jurisdiction to deal with the merits of the dispute, when permission has to be given to an employer to adduce additional evidence.” 28. In Workmen of Motipur Sugar Factory (P.) Ltd. v. Motipur Sugar Factory, the employer had charge-sheeted certain workmen and without conducting any enquiry, as required by the Standing Orders, passed orders discharging the workmen. Before the Tribunal, the employer adduced evidence justifying the action taken against the workmen. The workmen were also given an opportunity to adduce evidence in rebuttal. After a consideration of such evidence, the Tribunal held that the workmen were guilty of misconduct alleged against them and that the orders of discharge passed by the employer were fully justified. Before this Court it was contended on behalf of the workmen that when no enquiry whatsoever had been conducted by the employer, as required by the Standing Orders, the Tribunal had no jurisdiction to hold an enquiry itself by permitting the employer to adduce evidence before it for the first time. In rejecting this contention, it was held : “It is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held ..........but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified..............if the enquiry is defective or if no enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper...............A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper”. 28-A. The reasons for allowing an employer to lead evidence before the Tribunal justifying his action have been stated thus : “If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits, the employee has the advantage of having the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently 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 itself. That is why this Court has consistently 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 itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. Therefore, we are satisfied that no distinction can be made between cases where the domestic enquiry is invalid and those where the enquiry has in fact been held”. 8. On the other hand learned counsel for the respondent has submitted that in view of the certified Standing Order, it was necessary to hold an enquiry and the clauses under which charge-sheet has been issued, has to be mentioned. In such a situation, respondent No. 1 has rightly held that charges are vague and in violation of principles of natural justice. Further it has been said that the answering respondent has not been given proper opportunity to submit a reply to the charge-sheet though an application for time was made but in spite of the aforesaid fact, the services of the respondent have been terminated. As such, the tribunal has recorded a finding to this affect that as the workman concerned has not been given opportunity in spite of the fact that he has submitted an application for time to submit reply, therefore, approval cannot be granted to dismissal of workman. As regards the argument raised on behalf of the petitioner regarding proving the case on the basis of relevant record, a finding has been recorded that no such evidence has been produced before the Court to suggest that the charges levelled against respondent No. 2 have been proved. The complainant Sri C.R. Singh has not been produced to depose that respondent No. 2 has misbehaved with him. A finding to this effect has also been recorded that it is an admitted position that there is no domestic enquiry. A permission to that effect was sought by management to prove its case by producing witness before the tribunal. The same was accepted and the management was given full opportunity to produce any witness as they like. A finding to this effect has also been recorded that it is an admitted position that there is no domestic enquiry. A permission to that effect was sought by management to prove its case by producing witness before the tribunal. The same was accepted and the management was given full opportunity to produce any witness as they like. But they have not produced any witness to prove their case and when evidence was closed then a request was made to produce more witnesses. The tribunal has recorded a cogent finding to this effect that now as the evidence has been closed and an opportunity was given to the management but they have not availed the same, therefore, now it cannot be given. In such a situation, the approval to the dismissal order of the contesting respondent workmen was not granted. Reliance has been placed upon a three Judges decision of the Apex Court reported in AIR 1984 SC 289 , Shambhu Nath Goyal v. Bank of Baroda and others and reliance has been placed upon para 16 of the said judgment which is reproduced below : “16. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workmen referred to in the above passage is the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under Section 33 of the Industrial Disputes Act. 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman’s contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. 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 unreasonable delay. 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 unreasonable delay. But 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 defect 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. 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.” 9. In support of the aforesaid judgment the learned counsel for the respondents submits that the Apex Court has held that “if it does not choose to do so at that stage it cannot be allowed to do it at any latter stage of the proceeding.” 10. After hearing learned counsel for the parties and after perusal of the record, it is clear that as regards the management witness Sri Ajay Jha has failed to give any specific reply inasmuch as he could not name the workers who were incited by respondent No. 2 to adopt “go slow”. He failed to point out on which date Sri Shah (respondent No. 2) incited others to resort “go slow” as the same is not mentioned in the charge-sheet. A finding to this effect has also been recorded that workman has clearly in the cross-examination has admitted that he received the charge-sheet on 6.11.1987 and was directed to give reply within 24 hours but he could not do so because he fell ill on 6.11.1987. A finding to this effect has also been recorded that workman has clearly in the cross-examination has admitted that he received the charge-sheet on 6.11.1987 and was directed to give reply within 24 hours but he could not do so because he fell ill on 6.11.1987. He sent a medical certificate through Sri Sarvoday Singh in the department who handed over to the departmental incharge Sri C.R. Singh. He submitted reply with photocopy of the ESI certificate on 11.11.1987 and the dismissal order was passed on 11.11.1987. The tribunal has also recorded a finding that no evidence in spite of the opportunity given to the management, has been produced before the tribunal to suggest that the charges levelled against the respondent No. 2 has been proved. As regards the charges against respondent No. 2 to “go slow” in the production, the management has not filed any document prior to that particular date showing therein to establish that production has gone down. Nobody has been produced on behalf of the management to depose that due to respondent No. 2 regarding “go slow” of the production, the main witness who made the complaint has not been examined. The petitioners themselves has admitted before the tribunal that no domestic enquiry was held though in para 5 of the written statement a permission was sought to prove his case by producing evidence before the tribunal. The request of the management was accepted and was given full opportunity to produce any witness, they like. It was for them to decide whom to produce or whom to not as they were given full opportunity to adduce evidence. When the evidence was closed, they wanted to produce more witnesses and that was not accepted by Tribunal. 11. The judgement cited by the learned counsel for the petitioner do not help the petitioner to this extent that there is no dispute to this effect that if the departmental enquiry held by the employer is not fair and proper opportunity has not been given to the employee concerned, then the tribunal would be entitled to deal with the merits of the dispute and an opportunity has to be given to the employer to justify the impugned dismissal on merits of his case being considered by the tribunal. There is no dispute to this effect that if the tribunal comes to the conclusion that the domestic enquiry was not proper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tried the merit itself. As mentioned above, the opportunity was given to the employer but they have failed to discharge their burden. In such circumstances, the tribunal has not approved the order of dismissal. In Shambhu Nath Goyal’s case (supra) the three Judges of the Apex Court have clearly held that if an opportunity has been given and if the employer does not choose to do so, then they will not be allowed to do it at any later stage of the proceeding by filing an application whatsoever. 12. One thing is very relevant to observe here that the tribunal has disapproved the order of dismissal of respondent No. 2 and award was given on 23.4.1988. If petitioner was of opinion that proper domestic enquiry as held by the tribunal was not done, there was no preclusion on the part of the employer to hold a proper enquiry as provided in the certified Standing Order after affording full opportunity to the respondent No. 2 and to pass a fresh order in accordance with law for the purposes of approval before the tribunal. But that has not been done up-till-date. 13. In view of the aforesaid discussions and findings I am of view that the writ petition is devoid of merit and is hereby dismissed. 14. No order is passed as to costs. ————