ORDER : Sanjay K. Agrawal, J. 1. Steel Authority of India/petitioner herein after holding domestic inquiry against respondent No. 2/workman herein dismissed him from service. He filed an application under Section 31(3) read with Section 61 of the Chhattisgarh Industrial Relations Act, 1960 (hereafter called as "CGIR Act") in the Labour Court for declaring his termination void and illegal. The petitioner/management in its written statement justified the domestic enquiry conducted against respondent No. 2 and accordingly, sought adjudication on validity of domestic enquiry as preliminary issue. It was also stated in the written statement that if the preliminary issue is decided against the management holding the domestic enquiry illegal, an opportunity may be given to the petitioner/management to adduce evidence to support the charges levelled against respondent No. 2/workman. Accordingly, preliminary issue was framed as to whether the domestic enquiry is valid or not and by order dated 27.9.2010, preliminary issue was decided against the petitioner/management and in favour of respondent No. 2/workman by holding that domestic enquiry conducted against the workman to be illegal and void and after holding so, the Labour Court noted that since the management has already taken a plea in its written statement to adduce fresh evidence to justify the charge against workman leading to his dismissal, the management was granted opportunity to adduce evidence to justify the dismissal of workman/respondent No. 2 along with all other issues. Against that order, respondent No. 2/workman filed an application before the Labour Court for not granting opportunity to the petitioner/management to adduce evidence on alleged misconduct of the workman, that application was rejected by the Labour Court by order dated 29.1.2011. Feeling aggrieved against the order dated 29.1.2011, respondent No. 2/workman preferred an application under Section 67 read with Section 64A of the CGIR Act before the Industrial Court. The Industrial Court relying upon the Division Bench decision of High Court of Madhya Pradesh in the matter of R.K. Nair v. General Manager, Bhilai Steel Plant, Hindustan Steel Ltd., Bhilai & another, 1977 MPLJ 497 : 1977 Lab IC 1079 by its impugned order held that since the Labour Court found the inquiry to be illegal on the ground that enquiry report was not proved, it could have examined evidence of the enquiry to find out whether the charges were proved or not. There was no need to hold fresh inquiry on the issue and allowed that application and set aside the order of the Labour Court dated 27.9.2010 leading to filing of the instant writ petition by the petitioner/management questioning the said order stating inter alia that once domestic enquiry held against the workman is declared to be illegal by the Labour Court, the petitioner/management is entitled to adduce evidence to support the charge of misconduct levelled against respondent No. 2/workman and the Industrial Court has committed grave legal error in setting aside the order passed by the Labour Court. The petitioner has also challenged the consequential order passed on 22.12.2011. 2. Return has been filed on behalf of respondent No. 2/workman supporting the order stating inter alia that the Labour Court found the enquiry report perverse and declared the same as invalid, but the Industrial Court has rightly set aside the order of the Labour Court in view of the law down by the Division Bench of High Court of Madhya Pradesh in the matter of R.K. Nair (1977 Lab IC 1079) (supra) and order of the Industrial Court setting aside the order of the Labour Court does not warrant interference in exercise of jurisdiction under Article 227 of the Constitution of India. 3. Mr. Himanshu Sinha, learned counsel appearing for the petitioner would submit that the Labour Court having declared the preliminary enquiry to be illegal and vitiated as proper opportunity of hearing was not afforded to the workman to prove his date of birth and the management having sought opportunity to prove the charge of misconduct levelled against respondent No. 2/workman, the Labour Court has rightly granted an opportunity to the petitioner/management to prove charge of misconduct as per law declared by the Supreme Court and the said order has been set aside by the Industrial Court which is per se illegal and not in accordance with law and therefore, order of the Industrial Court dated 28.4.2011 and consequential order be set aside and order of the Labour Court dated 27.9.2010 be restored. 4. Mr. 4. Mr. Rajeev Shrivastava, learned counsel appearing for respondent No. 2/workman would submit that since the domestic enquiry was not found defective, the Labour Court was not justified in directing to hold fresh enquiry by giving fresh opportunity to the management to lead evidence to prove the charges against respondent No. 2/workman, therefore, the Industrial Court has rightly interfered with the order passed by the Labour Court and as such, the writ petition filed against an interim order would not be maintainable and it deserves to be dismissed. 5. I have heard learned counsel appearing for the parties, also considered the rival submissions made therein and gone through the record of the case with utmost circumspection. 6. The petitioner/management after conducting domestic enquiry against respondent No. 2/workman dismissed him from service, against which, he preferred an application under Section 31(3) read with Section 61 of the CGIR Act and thereafter, issue No. 1 (preliminary issue) was framed as to whether domestic enquiry conducted against respondent No. 2/workman is illegal. The Labour Court by its order dated 27.9.2010 declared the domestic enquiry illegal and since the management has already sought opportunity to prove the charge of misconduct levelled against respondent No. 2 and in view of that, the Labour Court granted opportunity to adduce evidence on the said issue along with other issues to the management, which respondent No. 2/workman challenged unsuccessfully before the Labour Court and the Industrial Court relying upon the decision of the Division Bench of High Court of Madhya Pradesh in the matter of R.K. Nair 1977 Lab IC 1073, (supra), set aside the order of Learned Labour Court. 7. Way back in the year 1973, the Supreme Court in the matter of The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management and others, (1973) 1 SCC 813 : AIR 1973 SC 1227 (Para 27), considered the various earlier decisions of the Supreme Court and laid down the principle governing the jurisdiction of the Tribunal adjudicating the dispute relating to dismissal and catalogued the principles in paragraph 32 of the said judgment which states as under:-- "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 later 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 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 victimization, 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 later, 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 jurisdiction of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. 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 jurisdiction 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. (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 the 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 The Management of Panitole Tea Estate v. The Workmen, (1971) 1 SCC 742 : ( AIR 1971 SC 2171 ), within the judicial decision of a Labour Court or Tribunal." In the aforesaid judgment, it has been clearly held by the Supreme Court that 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. 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. The aforesaid decision has been followed by the Supreme Court with approval in the matter of Amrit Vanaspati Co. Ltd. v. Khem Chand and another, 2006 SCC (L & S) 1331 : AIR 2006 SC 2739 and also in the matter of Amar Chakravarty and others v. Maruti Suzuki India Limited, (2010) 14 SCC 471 . 8. In the matter of Shambhu Nath Goyal v. Bank of Baroda and others (1983) 4 SCC 491 : AIR 1984 SC 289 , the Supreme Court laid down the principle that the management should make a request in the written statement itself for the opportunity to adduce evidence in case the domestic enquiry was held to be invalid. If it does not chose 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 leading to wrecking the morale of the Workman and compel him to surrender which he may not otherwise do. 9. The Constitution Bench of the Supreme Court in the matter of Karnataka State Road Transport Corpn. v. Laksh midevamma (Smt.) and another, (2001) 5 SCC 433 : AIR 2001 SC 2090 , considered some of the decisions by holding in Shambhu Nath Goyal, AIR 1984 SC 289 (supra) that the management was given the right to adduce evidence to justify its action if it had reserved its right to do so in the application made by it under Section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under Section of the Act, meaning thereby that the management had to exercise its right of leading fresh evidence at the first available opportunity. The Constitution Bench has also considered that procedure laid down in Shambhu Nath Goyal (supra) is just and fair and the law laid down therein is correct law on the point. It has also been observed that opportunity of leading evidence is being sought by the management only as an alternative plea and observed as under:-- "17. The Constitution Bench has also considered that procedure laid down in Shambhu Nath Goyal (supra) is just and fair and the law laid down therein is correct law on the point. It has also been observed that opportunity of leading evidence is being sought by the management only as an alternative plea and observed as under:-- "17. Keeping in mind the object providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambhu Nath Goyal 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 an admission of illegality in its domestic enquiry. At the same time, it is also advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambhu Nath Goyal case is just and fair. 19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shabhu Nath Goyal v. Bank of Baroda is the correct law on the point." 10. The decision rendered by the Constitution Bench in the matter of Karnataka State Road Transport Corpn. ( AIR 2001 SC 2090 ) (supra) has been followed with approval in the matter of Divyash Pandit v. Management, NCCBM, (2007) 15 SCC 787 ). 11. In the case in hand, the petitioner/management has taken an alternative plea in his written statement that if a domestic enquiry is held to be vitiated, then fresh opportunity to lead evidence to support the charge of misconduct levelled against respondent No. 2/workman be given to the management and the Labour Court after having declared a domestic enquiry illegal has extended an opportunity to adduce evidence to the management, which is in accordance with the decision rendered by the Supreme Court in the matter of The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd., AIR 1973 SC 1227 ) (supra) (See Proposition No. 4) and followed by the Supreme Court in the matter of Amrit Vanaspati Co. Ltd. ( AIR 2006 SC 2739 ) (supra). 12. The Industrial Court by its impugned order interfered with order of the Labour Court by relying upon the decision rendered by the Division Bench of Madhya Pradesh High Court in the matter of R.K. Nair, 1977 Lab IC 1079 (supra). Paragraph 13 of the said decision states as under:-- "13. The last question is whether the Labour Court should hold a fresh enquiry on the charges of misconduct or whether it should give its findings on the charges on the basis of the enquiry conducted by the management when there is no defect in the enquiry. It is well settled that when an enquiry is not defective and when a competent authority has passed an order of punishment, the Labour Court can see whether the finding of misconduct is a plausible conclusion flowing from the evidence adduced at the said enquiry although it has no jurisdiction to sit in judgment over the decision of the management as an appellate body [See Proposition No. 3 in the case of Workmen of F.T. & R. Co. v. The Management.] In our opinion, when there is no defect in the domestic enquiry, it would be duplication of proceedings for the Labour Court to hold a fresh enquiry into the charges and it would be fair to both sides if the Labour Court gives its own finding on the charges on the basis of the domestic enquiry conducted by the Management.........." In R.K. Nair (supra), the Division Bench found that Proposition No. 3 of The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd., AIR 1973 SC 1227 (supra) would apply. In that case, domestic enquiry was found to be valid and proper (See paragraph 11 of R.K. Nair (supra). But in the present case, the Labour Court has clearly recorded a finding that domestic enquiry was defective. of India (Pvt.) Ltd., AIR 1973 SC 1227 (supra) would apply. In that case, domestic enquiry was found to be valid and proper (See paragraph 11 of R.K. Nair (supra). But in the present case, the Labour Court has clearly recorded a finding that domestic enquiry was defective. Paragraph 9 of order of the Labour Court states as under:-- ^^9- ;g fd eSus mHk; i{kksa ds rdZ ij fopkj fd;k] vfHkys[k dk voyksdu fd;k vfHkys[k ds eqrkfcd foHkkxh; tkap esa lEiw.kZ izfØ;k dk ikyu fd;k x;k gS fdUrq pqafd ;g izdj.k vkosnd ds tUefrfFk ls laEcf/kaaar gS] blfy;s Ldwy ds iz/kkukpk;Z rFkk ek/;fed f'k{kk eaM+y ds fdlh vf/kdkjh ;k deZpkjh dk c;ku djk;k tkuk pkfg;s FkkA ,oae vkosnd dks Hkh muds okLrfod tUefrfFk ds lEcU/k es izek.k izLrqr djus dk volj nsuk Fkk ,oa ml ij vk;h lk{; dk leqfpr fo'ys"k.k djuk Fkk] ftldk vkHkko tkap izfØ;k esa utj vkrk gS blfy;s vkosnd ds fo:) dh x;h foHkkxh; tkap dks voS/k Bgjk;k vkrk gSA vukosnd i{k ls nqjkpj.k izekf.kr djus dk volj pkgk x;k gSA blfy;s nqjkpj.k ds iz'u ij ,oa vU; okniz'Uk ij izdj.k mHk; i{kksa ds lk{; gsrq fu;e gksA okn iz'u Øekad&1 dk fujkdj.k ^^gks^^ esa fd;k tkrk gS 13. Thus, in the light of clear-cut finding recorded by the Labour Court that domestic enquiry conducted by the petitioner/management was defective, said Court proceeded to grant opportunity to the management to lead evidence in support of charge of misconduct as rendered by the Supreme Court in the matter of The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd., ( AIR 1973 SC 1227 ) (supra) (See Proposition No. 4). The Industrial Court without holding the domestic enquiry to be valid and proper, interfered with the finding of the Labour Court, depriving an opportunity to the petitioner/management to lead evidence to prove the charges of mis-conduct against respondent No. 2/workman which is contrary to the law declared by the Supreme Court in the matter of The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd., ( AIR 1973 SC 1227 ) (supra). The Industrial Court committed legal error in applying the law laid down by the Division Bench of High Court of Madhya Pradesh in the matter of R.K. Nair (1977 Lab IC 1079) (supra), which is inapplicable to the facts of the present case. of India (Pvt.) Ltd., ( AIR 1973 SC 1227 ) (supra). The Industrial Court committed legal error in applying the law laid down by the Division Bench of High Court of Madhya Pradesh in the matter of R.K. Nair (1977 Lab IC 1079) (supra), which is inapplicable to the facts of the present case. Therefore, order passed by the Industrial Court interfering with order of the Labour Court is bad and unsustainable in law and accordingly, order dated 28.4.2011 and consequential order dated 22.12.2011, passed by the Industrial Court are hereby set aside and order dated 27.9.2010 and 29.1.2011 passed by the Labour Court are hereby restored. Accordingly, the writ petition is allowed to the extent indicated hereinabove. No order as to cost(s). Petition Partly Allowed