JUDGMENT Hon’ble A.P. Sahi, J.—This petition arises out of an award of the Labour Court in favour of respondent-workman who had been served two charge-sheets in a domestic enquiry and two separate orders were passed on 21st April, 2001 terminating his services. The first charge was relating to unauthorized absence and the second charge was in relation to misbehaviour. 2. The proceedings in the domestic enquiry culminated in the orders passed on the ground that so far as absence without leave is concerned the defence set up by the respondent-workman was false and the evidence indicated that he was habitual of unauthorized absence without information. On the issue relating to misbehaviour, the respondent-workman was found to have indulged into using unparliamentary language and forcing his superiors to record his unauthorized absence in the attendance register. 3. The industrial dispute was raised and the employers, who are the petitioners herein, filed their written statement also bringing on record the material that was available with them in relation to the domestic enquiry to demonstrate that the enquiry was just and proper and even otherwise the punishment order was valid. 4. Sri Gopal Narain for the respondent-workman contends that even though a counter-affidavit has been filed but the order-sheet has not been brought on record and he has produced a copy of the order-sheet where on 15th October, 2004 the Labour Court passed an order framing an additional issue in relation to the fairness of the domestic enquiry. He has further invited the attention of the Court at Page No. 63 of the paper book of the writ petition to contend that the employers themselves had taken a stand that if the Labour Court comes to the conclusion that the domestic enquiry was not fair then the employer should be given an opportunity to further defend himself by leading fresh evidence. He therefore submits that the employers availed of the said opportunity and also led fresh evidence whereafter the Labour Court has rendered its award holding that neither the enquiry was fair and proper and on the basis of the fresh evidence the employers were unable to prove the charge against the petitioner. He therefore submits that the employers availed of the said opportunity and also led fresh evidence whereafter the Labour Court has rendered its award holding that neither the enquiry was fair and proper and on the basis of the fresh evidence the employers were unable to prove the charge against the petitioner. Sri Narain has relied on the judgment of the Apex Court in the case of Neeta Kaplish v. P.O. Labour Court and another, 1999 (81) FLR 188 at Page 196 to substantiate his submissions which runs as follows : “In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence. In the instant case, the appellant had questioned the domestic enquiry on a number of grounds including that her own answers, in reply to the questions of the Presiding Officer, were not correctly and completely recorded and that the Enquiry Officer was not impartial and was biased in favour of the respondent. It was further contended that her own witnesses were not called and she was not given the opportunity to lead evidence. The Labour Court has discussed a few of these grounds, but has not given any finding on the bias of Enquiry Officer or the ground relating to incorrectly recording the statement of the appellant. The Labour Court however, found that the enquiry was not fairly and properly held. It was after recording this finding that the Labour Court called upon the Management to lead evidence on merits which he did not do. The Labour Court however, found that the enquiry was not fairly and properly held. It was after recording this finding that the Labour Court called upon the Management to lead evidence on merits which he did not do. Learned counsel for the appellant contended that inspite of the direction by the Labour Court to the respondent Management to lead evidence, it was open to the Management to rely upon the domestic enquiry proceedings already held by the Enquiry Officer, including the evidence recorded by him, and it was under no obligation to lead further evidence, particularly as the Management was of the view that the charges, on the basis of the evidence already led before the Enquiry Officer, stood proved. It was also contended that under Section 11-A, the Labour Court had to rely on the “materials on record” and since the enquiry proceedings constituted “material on record” the same could not be ignored. The argument is fallacious. The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record” as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings, on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be and were in fact relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be “material on record” within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequence.” 5. If such evidence has not been led, the Management has to suffer the consequence.” 5. The respondent-workman therefore contends that once the Labour Court after holding that the domestic enquiry was not fair and just has further considered the evidence on record, which was fresh evidence, and has rendered its award, then in that view of the matter the employer cannot be now permitted to plead that the award is perverse on the basis of the evidence that was led during the domestic enquiry as it ceased to be material evidence for the purpose of the proceedings before the Labour Court. This argument is founded on the law laid down by the Apex Court referred to hereinabove. 6. Sri Gopal Narain further submits that this procedure adopted by the Labour Court to simultaneously render its decision on both counts is on account of the judgment of the Full Bench of this Court in the case of M/s Swarup Vegetable Products Industries Ltd. v. Labour Court-II, Meerut and another, 1997 (77) FLR 546 paragraph 15 quoted hereinunder : “Para 15: From the conspectus of views expressed by the Supreme Court in the aforementioned decisions, the position that emerges is that once a reference has been made to an Industrial Tribunal, then all the issues which arise, whether jurisdictional or merit, must be decided together. The process of adjudication by the Industrial Tribunal/Labour Court must be completed as expeditiously as possible. It is not obligatory on the Industrial Tribunal or Labour Court to frame a preliminary issue. Law does not enjoin the Tribunal to decide if the enquiry was fair and proper initially and then to grant an opportunity to the management if the finding went against it, to adduce evidence on the delinquency of the workmen and the punishment imposed. On the other hand the law casts a duty on the Industrial Tribunal/Labour Court to decide not only whether the domestic enquiry was fair and proper but also whether the punishment imposed by the employer was justified in the facts and circumstances of the case. The Industrial Tribunal/Labour Court should consider the entire case in the light of the evidence adduced before it. The Industrial Tribunal/Labour Court should consider the entire case in the light of the evidence adduced before it. The Industrial Tribunal/Labour Court should particularly bear in mind the provisions of Section 11-A of the Central Act and Section 6(2-A) of the U.P. Act (U.P. Industrial Disputes Act), and remember that the main purpose of creating a forum for industrial adjudication is to avoid delay in disposal of proceedings. Viewed in this angle, we hold the Division Bench of this Court in the case of D.C.M. Shriram Industries Ltd. was not right in holding that the management can lead evidence to establish the charge against the workman only after decision on the issue whether domestic enquiry was fair and proper and, therefore, such issue should be taken as a preliminary issue. It is, accordingly, overruled. The decision of the single judge in the case of M/s Star Paper Mills Ltd. (supra) is also overruled. The decision of the single judge in the case of M/s Vikram Cotton Mills (supra) has our approval.” 7. He further submits that in the event this Court comes to the conclusion that the procedure adopted by the Labour Court is not correct then the aforesaid full bench decision will require a reconsideration by a Larger Bench as it is causing impediment to the Labour Courts in proceeding with such matters by deciding the preliminary issue alongwith the entire issues simultaneously. He submits that this full bench decision holds the field and as such in view of the various judgements of the Apex Court and other High Courts it may require a reconsideration. 8. Sri Sameer Sharma on the other hand submits that even assuming for the sake of arguments that the Labour Court has proceeded on the basis of the law laid down in the full bench decision referred to hereinabove, then too even the finding on the issue relating to domestic enquiry being perverse, the impugned order has to be set aside. He submits that so far as the evidence in relation to domestic enquiry is concerned, it always remains relevant for the purpose of the issue relating to the question of the domestic enquiry being fair or unfair which issue was framed by the Labour Court in this case on 15.10.2004. He submits that so far as the evidence in relation to domestic enquiry is concerned, it always remains relevant for the purpose of the issue relating to the question of the domestic enquiry being fair or unfair which issue was framed by the Labour Court in this case on 15.10.2004. His contention in short therefore is that if the issue of domestic enquiry is answered in favour of the employer on the ground of perversity then it would no longer be necessary to proceed further to examine the correctness or otherwise of the fresh evidence as urged on behalf of the learned counsel for the respondent. Learned counsel for the respondent has also raised the issues of the proportionality of the punishment and has submitted that on the aforesaid grounds the award even otherwise in so far as the reinstatement of the answering respondent is concerned is sustainable. 9. The issue as to whether the preliminary issue of domestic enquiry should have been decided first or not cannot be now at this stage be given a different dimension than what has been stated in paragraph 15 of the full bench decision. However, the subsequent decision of the Supreme Court as relied upon by the learned counsel for the respondent himself in the case of Neeta Kalpish (supra) does indicate that the Labour Court has to record a finding on the domestic enquiry and then call for a fresh evidence. In my considered opinion, the subsequent Supreme Court decision which categorically indicates the aforesaid procedure to be adopted by the Labour Court would impliedly dilute the impact of the full bench decision relied upon by the learned counsel for the respondent to the said extent. The Labour Court in the present case has therefore not considered the impact of the judgment in the case of Neeta Kaplish (supra) before proceeding to simultaneously decide both the issues together. 10. Sri Gopal Narain is therefore right in his submission that if the view that if such an additional issue is framed after filing of the written statement such an additional issue relating to domestic enquiry should be decided first before giving an opportunity to the employer to lead fresh evidence. In my opinion, Sri Gopal Narain is correct as this is in conformity with the Apex Court decision in the case of Neeta Kaplish. 11. In my opinion, Sri Gopal Narain is correct as this is in conformity with the Apex Court decision in the case of Neeta Kaplish. 11. In the instant case the Labour Court did notice the request of the employer-petitioner that the employer has made an offer to the effect that if the issue of domestic enquiry is answered against the employer then fresh evidence should be allowed to be led. The Labour Court did not decide the domestic enquiry as a preliminary issue and has proceeded to mix-up the decision making process by recording findings on the domestic enquiry and the fresh evidence led together. This perversity is therefore evident from a perusal of the impugned award itself. The learned counsel for the petitioner-Corporation is right in his submission that the evidence with regard to domestic enquiry should have been segregated in order to decide the issue of domestic enquiry also on the basis of the material that had been made available during the domestic enquiry. In my opinion, this is also in conformity with the view expressed by the Apex Court in the case of Neeta Kaplish (supra). The Apex Court decision clearly recites that the opportunity to the employer to lead fresh evidence has to be preceded by a finding on the issue of fairness of domestic enquiry. This is possible only if the finding is recorded first before the employer is given opportunity to lead fresh evidence. There is therefore no need to refer the matter as on the facts of this case the ratio of the Apex Court squarely applies which is binding being delivered later and after the Full Bench. 12. Learned counsel have further invited the attention of the Court to the decision of a learned Single Judge in the case of Dwarikesh Sugar Industries Ltd. v. Presiding Officer, Labour Court, Rampur and another, 2010 (125) FLR 523. This judgment reaffirms the view taken by the Full Bench after having noticed the judgement of the Apex Court in paragraph 6 of the said decision. 13. The said judgment is subject-matter of a Special Leave Petition before the Apex Court where the following order has been passed on 6.8.2010 at the interim stage itself : Mr. This judgment reaffirms the view taken by the Full Bench after having noticed the judgement of the Apex Court in paragraph 6 of the said decision. 13. The said judgment is subject-matter of a Special Leave Petition before the Apex Court where the following order has been passed on 6.8.2010 at the interim stage itself : Mr. V.K. Gupta, learned counsel appearing for the petitioner, in support of the proposition that where the validity of a domestic enquiry is put in issue before a Labour Court, it is to be decided as a preliminary issue, has placed reliance on the decision of this Court in The Cooper Engineering Limited v. Shri P.P. Mundhe, (1975) 2 SCC 661 . Learned counsel submits that in D.P. Maheshwari v. Delhi Administration and Others, (1983) 4 SCC 293 , where a contra view has been expressed, the decision in Cooper Engineering case (supra) has not been noticed. According to the learned counsel, there is a divergence of opinion on the issue and, therefore, the matter requires consideration. Issue notice. In the meantime, it will be open to the Labour Court to decide the issue of domestic enquiry as a preliminary issue. But if the Labour Court decides to deal with all the issues collectively, the final award shall not be announced without the leave of this Court.” 14. A perusal of the said interim order of the Apex Court reaffirms the view taken by me hereinabove. 15. The Labour Court in the instant case while dealing with the material in relation to the relevant registers and documents has held that the enquiry has proceeded and the Enquiry Officer has given his opinion without looking into the said material. This finding of the Labour Court appears to be perverse as the Enquiry Officer in his report which has found favour with the disciplinary authority categorically records that the registers have been perused and the same have been taken into account. 16. Apart from this, the defence taken by the workman was that he had given telephonic messages which has been admitted by the employer in relation to his absence which was on account of the ailment of his wife. The Enquiry Officer and the disciplinary authority have found as a fact that this statement was false as the workmen at one place has stated that it was he who was ailing and not his wife. The Enquiry Officer and the disciplinary authority have found as a fact that this statement was false as the workmen at one place has stated that it was he who was ailing and not his wife. The Labour Court has not adverted to this aspect and has construed the statement of the workman to be correct. In my opinion, this also indicates perversity in the Labour Court’s award in relation to the issue of domestic enquiry. There are other similar infirmities also to which the attention of the Court was invited. The aforesaid findings are in relation to the evidence of the domestic enquiry. If according to the Apex Court judgment the same cannot be taken into account after fresh evidence has been led by the employer, then too also the impugned award is vitiated as the Labour Court has taken into consideration the material of the domestic enquiry to record its findings whereas the same could not have been done as it is only the fresh evidence which can be considered for recording a finding in view of the judgment of the case in Neeta Kaplish (supra). 17. Without delving into any further it would be appropriate and also in the interest of the workman as well as the employer that matter should not be lingered any further. 18. Accordingly, for the reasons aforesaid, the impugned award dated 30th May, 2005 is set aside and the matter is remitted back to the concerned Labour Court for disposing of the matter as expeditiously as possible preferably within a period of six months after deciding the preliminary issue of domestic enquiry as observed hereinabove first and in the event the enquiry is found to be unfair then allow the petitioner-employer to lead fresh evidence in the light of the judgment of the Apex Court in the case of Neeta Kaplish (supra) and then render its award. 19. The writ petition is allowed with the aforesaid directions. ——————