JUDGMENT : S.K. Mishra, J. - A subtle but interesting question arises in this batch of writ petitions. Whether the Industrial Tribunal or Labour Court is required to decide as a preliminary issue, the question regarding the validity/fairness of the domestic enquiry in pursuance of which a punitive dismissal order has been passed against the workman? Short facts leading to filing of these writ petitions are that the opposite parties were working as Mazdoor of the petitioner. On 22.4.2006, it is alleged that while working in the Dungri Lime Stone Quarry of ACC Cement Ltd., they indulged in disruptive activities which amounted to misconduct. So explanation was called for from them. Not finding explanation to be satisfactory, disciplinary actions were initiated and after due enquiry they are found guilty as alleged. Thereafter, 2nd show-cause notices were issued. Causes shown were found unsatisfactory. Thereafter, as a disciplinary measure, the management imposed punishment for their dismissal from service. On being aggrieved by such order of dismissal, the opposite parties raised industrial dispute which cumulated in reference to the Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar, hereinafter referred to as the CGIT for brevity. Thereafter, the parties appeared before the CGIT and put in their pleadings. On the basis of pleadings, the following issues were casts by the CGIT: (i) Whether the domestic enquiry conducted by the First Party-Management M/s. U.K. Sahu, Contractors of Dungri Lime Stone Quarry of ACC Ltd. against Panchanan Pradhan, Sanatan Biswal, Sukadeb Biswal, Arjun Biswai and Binaya Pradhan is fair and proper? (ii) Whether the action of the Management of M/ s. U:K. Sahu, Contractor of Dungri Lime Stone Quarry of M/s. ACC Ltd., to dismiss the workmen viz. S/Sh. Panchanan Pradhan. Sanatan Biswal, Sukadeb Biswai, Arjun Biswal, Binaya Pradhan, with effect from 29.6.2007 for the alleged serious misconduct is justified. (iii) If not/what relief the workmen is entitled to? 2. The petitioner-management in its written statement took up the plea that since the workmen have challenged the fairness of the domestic enquiry, the question of fairness of domestic enquiry be decided as a preliminary issue, and in case the Tribunal finds any frailty in the enquiry, the petitioner be granted opportunity to establish the charges against the opposite parties-workmen. Such a prayer was made as an alternative plea and not as an admission of illegality in the domestic enquiry. 3. Such a prayer was made as an alternative plea and not as an admission of illegality in the domestic enquiry. 3. An application was also filed by the petitioner to decide it as a preliminary issue. While the learned Presiding Officer, CGIT, Bhubaneswar disposed of this petition to take up issue No. 1 as preliminary issue on 1.6.2011, it held that the proceedings are of summary nature and there is a catena of judgments of the issues in such a proceeding shall be heard and decided at the final stage after taking evidence of the parties at one stage and the same time. Thus, the CGIT rejected the application filed by the management. Such order has been assailed in these-writ petitions. In course of hearing the learned Counsel for the petitioner submitted the ratio decided by the Supreme Court in various cases, who does not leave any room for doubt that, in such a case, if the workman has raised the question of fairness of the domestic enquiry and the management asserts that domestic enquiry was in accordance with law and was fair at the earliest stage, then the issue relating to the fairness of such domestic enquiry should be decided as a preliminary issue so that in case the Labour Court comes to the conclusion that such enquiry was not fair or the findings recorded by the enquiring officer is incorrect, further evidence may be given by the management to substantiate the charge of misconduct. The learned Counsel for the opposite parties, on the other hand, submitted that the ratio decided in various cases leads to the only conclusion is that such an issue cannot be decided as a preliminary issue. 4. In Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory, the Hon'ble Supreme Court held that it is now well-settled by a number of decisions of the Supreme Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to justify 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 enquiries have been held. In such a case, the employer would not have the benefit which he had in cases where domestic enquiries 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 Tribunal where domestic enquiry has been properly held but also to satisfy itself on the evidence adduced before it by the employer whether the dismissal or discharge was justified. The Hon'ble Supreme Court further observed that if it is held that in cases where the employer dismisses his employee without holding any 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 enquiry and pass an order dismissing him 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 meantime. This course would mean delay and on the second occasion it would entitle the employee 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 merits of his case considered by the Tribunal for itself and that clearly would be to the benefit of the employee, That is why the Hon'ble Supreme Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the Tribunal may give 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 the industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical consideration and with an object of avoiding delay in disposal of industrial disputes. 5. The Hon'ble Supreme Court having taken into consideration the aforesaid ratio and many other decided cases in the Cooper Engineering Ltd., v. P.P. Mundhe, 1975 (31) FLR 188 (SC), has held that it is of the opinion 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 enquiry is violative of principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. The Hon'ble Supreme Court, further, held that 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 would adduce evidence before the Labour Court. If he chooses not to adduce any evidence, it will not be thereafter permissible to raise the issue. It is further made clear that there will be no justification for any party to stall the final adjudication by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be adjudicated even after the final award. 6. Thus, on the basis of this ratio, the learned Counsel for the petitioner contended that the CGIT erred in rejecting the petition filed by the management to try the issue regarding the fairness of domestic enquiry as a preliminary issue is erroneous. The learned Counsel for the opposite parties, on the other hand, relied upon the cases of Shambhu Nath Goyal v. Bank of Baroda, 1983 (47) FLR 438 (SC), Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, and the Constitution Bench decision in. Karnataka State Road Transport Corporation v. Smt Lakshmidevamma and another. 2001 (90) FLR 92: 2001 LLR 529 (SC); The learned Counsel for the opposite parties also relied upon the cases of D.P. Maheswari v. Delhi Administration and another, 1983 (47) FLR 477 (SC); Sankar Prasad Vs. Tata Iron and Steel Company Ltd., and unreported case of this Court in W.P. (C) No. 866 "of 2012. 7. The facts involved in Sankar Chakravarti case (supra) is somewhat different, in that case, the management argued on the basis of Cooper Engineering case, that it is the duty and obligation of the Tribunal to call upon the employer by giving it a specific opportunity to lead evidence if it so chooses to do, to substantiate the charges preferred against the workman. It was further argued that failure to give such an opportunity either on request of the employer or suo motu by the Tribunal, the proceedings would be vitiated. It was further argued that failure to give such an opportunity either on request of the employer or suo motu by the Tribunal, the proceedings would be vitiated. After considering various case laws governing the field, the Hon'ble Supreme Court came to the conclusion that if no pleading is put forth either on the initial stage or during pendency of the proceeding, then there arises no question of advisory role of the Labour Court or Industrial Tribunal, unintended by the Act, to advise the employer, a party must much better off than the workman, to inform about its rights, namely, right to lead additional evidence and then give an opportunity which was never sought. The Hon'ble Supreme Court, further, held that the ratio decided in Cooper Engineering Ltd., (supra) do not laid down any duty on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either u/s 10 or u/s 33 of the Act to call upon the employer to adduce additional evidence to substantiate charges of misconduct by giving specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. Cooper Engineering case merely specified the stage at which such opportunity is to be given, if sought. The Hon'ble Supreme Court, further, held that both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate charge of misconduct. It is for the employer to avail such opportunity by a specific pleading or by specific request, if such an opportunity is sought in course of proceeding, the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any. pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges. 8. The ratio decided in the aforesaid case is, therefore, not applicable to this case as it is contended that the CGIT should give a chance of rebuttal evidence to the management. 8. The ratio decided in the aforesaid case is, therefore, not applicable to this case as it is contended that the CGIT should give a chance of rebuttal evidence to the management. In this case is whether the correctness or otherwise of the domestic enquiry is to be decided as a preliminary issue or not is the question. 9. In Shambhu Nath Goyal's case (supra) the question is regarding the stage at which the management should seek permission for adducing evidence regarding the fairness of the domestic enquiry. In the aforesaid case, the Hon'ble Supreme Court has not decided whether or not the issue has to be decided as a preliminary issue or not. A. Varadarajan, J, speaking himself and on behalf of O. Chinnappa Reddy, J, in the said case, has come to the conclusion that the application of the management to seek 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 workman in the application, which may be filed by the management during pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission u/s 33 of the I.D., Act to take 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 u/s 33 of the I.D. Act. Then, if the management chooses to exercise its right it must make 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 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 u/s 10 of the Act after the workman has been punished pursuant to a finding of the guilt recorded against him in the domestic enquiry, there is no question of 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 domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or industrial Tribunal after reference has been received and, the management has the opportunity to look into that statement made before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make a 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 proceeding 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 cannot otherwise do in this case, D.A. Desai (J), has also held that the management filing an application after 13 years of the reference is without merit. 10. 10. The learned Counsel for the opposite parties contended that the Constitution Bench of the Supreme Court in Kamataka State Road Transport Corporation (supra) has approved the ratio decided by the Supreme Court in Shambhu Nath Goyal's case, and therefore, the management is precluded from leading any evidence to substantiate the charge in the Labour Court itself, in Karnataka State Road Transport Corporation (supra), Santosh Hedge, J. speaking himself and on behalf of S.P. Bharucha (J), held that the management has to exercise its right of leading fresh evidence at the first opportunity and not at any time thereafter during the proceeding before the Tribunal/Labour Court This observation has been made following the principle laid down in Sambhu Nath Goyal's case, Santosh Hedge, J., further, held that keeping in mind the object of providing opportunity to the management to adduce evidence before the Tribunal/ Labour Court, the Hon'ble Supreme Court are of the opinion that the decisions taken by the Supreme Court in Shambnu Nath Goyal's case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as admission of illegality in its domestic enquiry. At the same time, the Hon'ble Supreme Court, added, it is also of advantage to the workman, in as much as-, they will be put to notice of the fact that the management is likely to adduce fresh evidence, they can keep their rebuttal or other evidence ready. This procedure also eliminates to the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. Thus, the Hon'ble Supreme Court held that the procedure laid down in Shambnu Nath Goyal's case is just and fair. Thus, holding the Supreme Court came to the conclusion that the management-employer did not seek permission to lead evidence until after the Labour Court had held that its domestic enquiry was vitiated. Applying the aforesaid principle to the facts, the Supreme Court was of the opinion that the High Court has rightly dismissed the petition of the applicant. However, Y.K. Sabharwal, J. held that the law laid down in Shambu Nath Goyat's case is not the correct law. Applying the aforesaid principle to the facts, the Supreme Court was of the opinion that the High Court has rightly dismissed the petition of the applicant. However, Y.K. Sabharwal, J. held that the law laid down in Shambu Nath Goyat's case is not the correct law. Shivraj V. Patil, J. speaking himself and on behalf of V.N. Khare, J. on the aforesaid case, reiterated that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court. Tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional evidence including production of document at any stage of proceeding before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice. Thus, reading of the aforesaid case, I am of the affirm that the Constitution Bench in Kamataka State Road Transport Corporation (supra), has not held that the ratio decided by the Supreme Court in Cooper Engineering's case is bad nor the ratio decided in Cooper Engineering's case is over ruled. 11. In Rajendra Jha Vs. Presiding Officer, Labour Court, Bokaro Steel City, District Dhanbad and Another the employer filed an application u/s 33(2) (b), but it did not ask alternatively in the application itself for an opportunity to lead evidence to justify the order of dismissal: The circumstances of the case and the order of the Labour Court, however, revealed that, in all probability, an oral request for permission to adduce evidence was made by the employer to the Labour Court when the hearing of the application was filed u/s 33(2)(b) was coming to close. The Hon'ble Supreme Court held that it could not be said the Labour Court acted on its own initiative in allowing the employer to lead evidence in fact, the delinquent-employee has at one stage accepted the order of Labour Court and has acted upon him. It is, further held that the order of the Labour Court was not being challenged for the first time by the employer, and therefore, the principle of res judicata operated. It is, further held that the order of the Labour Court was not being challenged for the first time by the employer, and therefore, the principle of res judicata operated. If an erroneous decision on a question of law assuming jurisdiction, which does not possess, it may not be possible to argue that the decision cannot operate as res judicata even between the self-same parties. But, in the instant case, the Labour Court had the jurisdiction to decide whether to allow the employers to lead evidence or not. It may have acted irregularly in exercise of that jurisdiction but that is to be distinguished from the cases in which the Court inherently lacks jurisdiction to entertain a proceeding or to pass a particular order. In view of the aforesaid discussion, however, this Court comes-to the conclusion that the ratio decided in the Rajendra Jha's case (supra) is not correct and the decision in Sambhu Nath Goyat's case (supra), which has been approved by the Constitution Bench in Kamataka State Road Transport Corporation case (supra), is laying down the correct position of law. 12. The learned Counsel for the opposite parties has also relied upon the reported case of D.P. Maheswari v. Delhi Administration and another, 1983 (47) FLR 477 (SC) wherein the appellant was an employee in a private limited company. He was working as Accounts Officer. A dispute was raised in 1969 consequent upon termination of his services which was referred under sections 10(1)(c) and 12(5) of the Industrial Disputes Act to the Additional Labour Court for adjudication in 1970. The management raised preliminary objection before the Court that the appellant was not a workman u/s 2(s) of the Act. After examining entire evidence adduced by both the parties the Labour Court concluded that the appellant was mainly discharging duties of clerical nature and was a workman. The management then fifed a writ petition under Article 226 and the High Court, which was allowed and the view taken by the Labour Court on the preliminary issue was set aside allowing special-leave appeal under Article 136 of the Constitution. The management then fifed a writ petition under Article 226 and the High Court, which was allowed and the view taken by the Labour Court on the preliminary issue was set aside allowing special-leave appeal under Article 136 of the Constitution. The Hon'ble Supreme Court has observed that employees have been raising various preliminary objections, invite decisions on those objections in first instance, carry the matter to the High Court under Article 226 of the Constitution and to the Supreme Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes over a decade, Industrial peace, one presumes, hangs in the balance in the meanwhile. The Hon'ble Supreme Court, further, held that there was a time thought procedure to decide preliminary issue first. But the time appears to be right for reversal of that policy. We think it better that Tribunal, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardize industrial peace should decide all issues in dispute at the same time without trying some of them as preliminary issue. Nor should High Court in exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. The Hon'ble Supreme Court, further held that neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction under Article 136 of the Supreme Court may be allowed to be exploited by those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Articles 226 and 136 are, not meant to be used to break the resistance of workman in this fashion. Tribunals and Courts who are requested to decide preliminary questions, must therefore ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of dispute and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeying up and down. It is also worthwhile remembering that the nature of jurisdiction under Article 226 is supervisory but the Court may exercise all necessary appellate powers to do substantiate justice. It is also worthwhile remembering that the nature of jurisdiction under Article 226 is supervisory but the Court may exercise all necessary appellate powers to do substantiate justice. In exercise of such jurisdiction, neither High Court nor Supreme Court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues. 13. Thus, the Hon'ble Supreme Court, in the aforesaid case, has held that the Tribunal or the Labour Court should not decide any issue as preliminary issue but it must ask itself whether such threshold part adjudication is really necessary and whether it will not lead to any other woeful consequence. 14. The reported case of D.P. Maheshwart (supra) was taken into consideration by a Bench of this Court in Sankar Prasad Vs. Tata Iron and Steel Company Ltd.. It was held by this Court that a issue regarding the fairness of domestic enquiry cannot be decided as a preliminary issue. 15. In all fitness of things, it must be remembered in mind that in the case of Sankar Prasad (supra) the Bench decided the case has not taken into consideration the ratio decided by the Supreme Court in Workmen of the Motipur Sugar factory Pyt. Ltd., (supra) and in the Cooper Engineering Ltd., case (supra). If at all a departmental proceedings is held to be violative of natural justice then there is every possibility for the management may initiate a further proceeding and remove the defect that was pointed out during the proceeding before the Labour Court and punished the workman again, that is the reason why Supreme Court has developed the procedure of deciding the question fairness of a domestic enquiry as a preliminary issue and if the management has raised an objection and made a prayer on the initial stage to give rebuttal evidence then to allow it to lead rebuttal evidence, so that the matter may be disposed of by the Tribunal itself without being the same again taken up by the disciplinary authority or enquiring officer. Thus, on the analysis resorted to in the fore going paragraphs, this Court comes to the conclusion that the view taken by the learned Presiding Officer, CGIT, Bhubaneswar is erroneous. Hence, the same requires interference. Thus, on the analysis resorted to in the fore going paragraphs, this Court comes to the conclusion that the view taken by the learned Presiding Officer, CGIT, Bhubaneswar is erroneous. Hence, the same requires interference. Accordingly, the orders passed by the CGIT, Bhubaneswar on 1.6.2011, in each of the writ petitions, i.e. I.D. Case No. 10 of 2008 (W.P. (C) No. 16619 of 2011), I.D. Case No, 12 of 2008 (W.P. (C) No. 16620 of 2011), I.D. Case No. 8 of 2008 (W.P. (C) No. 16621 of 2011) and I.D. Case No. 13 of 2008 (W.P. (C) No. 16622 of 2008), respectively, are hereby set aside. It is, further, directed that the parties shall appear before the CGIT, Bhubaneswar on 22.2.2012 whereupon the CGIT shall adjourn the case to another date and take up all the cases on the preliminary Issue. In case, the CGIT comes to the' conclusion that, while deciding the preliminary issue, there was no domestic enquiry or there appears to be some defect in the same, the petitioner shall be given an opportunity to give evidence in that regard on merit. It is needless to say that the opposite parties are at liberty to lead rebuttal evidence on that score also. Accordingly, all the writ petitions are allowed. No costs. Final Result : Allowed