JUDGMENT : S.N. Prasad, J. This writ petition having been filed by the Management M/s. Sambalpuri Bastralaya Handloom Cooperative Society Ltd. assailing the order dtd.17.11.2009 passed in Industrial Dispute Case No.23 of 2006 whereby and where under the Tribunal has decided the fairness of the domestic enquiry by way of preliminary issue and answered by holding that the management has not conducted the domestic enquiry fairly and properly. 2. The brief fact of the case of the petitioner as has been pleaded in the writ petition is that the opposite party – workman was engaged as Junior Assistant temporarily w.e.f.23.12.1993 and subsequently was made permanent w.e.f. 1.4.1997, while continuing, she applied for one day casual leave on the ground of illness but without any medical certificate for 17.10.2001 and thereafter continuously remained absent unauthorizedly and submitted some leave application from time to time. One such applicationdtd.20.2.2002 being received by the management wherein leave was sought for from 20.1.2002 to 20.3.2002 but the same was rejected by the petitioner –management and the opposite party – workman was directed to immediately join back duties. It is the case of the petitioner – management that the opposite party – workman has not sought for any permission to leave the station nor she even intimated about any change in her address as available in the service record. The communication regarding the rejection of leave was returned back being sent through registered post, the same was published in the local newspaper for effective intimation to the opposite party, but despite such paper publication the opposite party neither responded to nor joined duties. The management – petitioner considering the unauthorized action of the workman which amounts to misconduct and willful disobedience, issued a charge sheet vide office order no.2799 dtd.29.6.2002. The management made several attempts to serve the charge sheet on the workman by sending the same in person as also through registered post in her last known address, the same was returned unserved. Thereafter a domestic enquiry was instituted by the management by appointing an enquiry officer. The notice for appearance of the workman before the enquiry officer was also sent through registered post to the concerned workman as also through local Dak in her last known address, but the same was also returned unserved. Thereafter a domestic enquiry was instituted by the management by appointing an enquiry officer. The notice for appearance of the workman before the enquiry officer was also sent through registered post to the concerned workman as also through local Dak in her last known address, but the same was also returned unserved. Thereafter the said notice was published in daily newspaper but the workman did not appear before the Enquiry Officer nor made any communication in that regard. Thus the Enquiry Officer had no other option than to conduct the enquiry ex-parte and accordingly enquiry report was submitted before the Management wherein the opposite party – workman was found guilty of misconduct for unauthorized absence from duty and the management after accepting the enquiry report has dismissed the petitioner from service vide office order no.6371 dtd.17.3.2003 and the said order of dismissal was also sent through registered post with A.D. but the opposite party – workman refused to receive the same as revealed from the endorsement on the returned postal envelope. The opposite party – workman thereafter has raised a dispute, on failure of conciliation, a failure report was submitted and thereafter the appropriate Government has referred the dispute by making reference to the effect that:- “Whether the dismissal of Smt. Narmada Mallik by the management of M/s. Sambalpur Bastralaya Handloom Cooperative Society Ltd., Bargarh with effect from 17.3.2001 is legal or justified? If not, what relief she is entitled to?” The reference was registered as Industrial Dispute Case No.23 of 2006 before the Labour Court, Sambalpur. The petitioner – management and the opposite party have appeared, filed their respective pleadings, the learned Labour Court framed certain issues for adjudication of the said reference. From these said issues one of the issue is whether the management conducted the domestic enquiry in a fair and proper manner. The Labour Court thereafter has passed the order on 17.11.2009 holding therein that domestic enquiry is not fair and as such the preliminary issue has been answered accordingly. From these said issues one of the issue is whether the management conducted the domestic enquiry in a fair and proper manner. The Labour Court thereafter has passed the order on 17.11.2009 holding therein that domestic enquiry is not fair and as such the preliminary issue has been answered accordingly. The petitioner being aggrieved with the said order is before this court by way of this writ petition on the ground that the finding given by the Labour Court regarding unfairness in domestic enquiry is absolutely non-application of mind, rather the petitioner – management has taken all sincere efforts to secure the appearance of opposite party –workman but she has chosen not to appear, hence the Enquiry Officer has got no option but to proceed with the enquiry and accordingly after taking into consideration the misconduct and disobedience which was committed by the opposite party – workman regarding unauthorized absence from duty has submitted report proving the charge against the opposite party – workman which has been accepted by the disciplinary authority and thereafter she has been dismissed from service. The Tribunal while dealing with the preliminary issue regarding unfairness of the domestic enquiry since has given finding against the petitioner – management it will prejudice the case of petitioner – management and as such this writ petition has been filed so that the reference may be decided. 3. Since legal question is involved regarding course of action to be taken by the Management in case the Labour Court has reached to conclusion that the domestic enquiry is unfair, what course is left with the Management, this issue has been taken into consideration by the Hon’ble Apex Court in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. Vs. The Management and Others, AIR 1973 SC 1227 wherein their Lordships have been pleased to hold 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 employer 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. In other words whether 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 finding recorded by the enquiry officer are perverse, the whole issue is at large before the Tribunal. Reference in this regard may be made to the paragraph 20 of the said judgment which is being reproduced here under as:- “20. 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. Vs. Its Workmen, 1963 3 SCR 461 : AIR 1963 SC 295 . Regarding the powers of a Tribunal when there has been a proper and fair enquiry, it was held :- "It is well-settled that if in employer serve 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 an 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". This Court has held that when an 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. 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.” The proposition laid down in the judgment rendered in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. (supra) has again been reiterated in the case of Neeta Kaplish Vs. Presiding Officer Labour Court, AIR 1998 Supp (3) SCR 379 wherein after taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of Workmen, M/s. Firestone Tyre & Rubber Co. of India P. Ltd. (supra) has again been reiterated in the case of Neeta Kaplish Vs. Presiding Officer Labour Court, AIR 1998 Supp (3) SCR 379 wherein after taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of Workmen, M/s. Firestone Tyre & Rubber Co. of India P. Ltd. their Lordships have been pleased to hold 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 ground 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 scrutinized and adjudicated upon on the basis of such fresh evidence. In the case of Neeta Kaplish (supra) the fact emerges there after the finding of the Industrial Tribunal holding the domestic enquiry as not proper and fairly held, the Labour Court called upon the Management to lead fresh evidence. The fact of the case in hand is that the domestic enquiry has been held to be improper and unfair and the petitioner has filed this writ petition apprehending that since the Labour Court has held the domestic enquiry as unfair, it will prejudice the merit of the entire issue, hence this order is to be quashed. But after going through the legal proposition laid down by the Hon’ble Apex Court in the cases referred herein above, in our considered view, the argument advanced on behalf of the petitioner is not fit to be accepted and is not accepted for the reasons stated herein above. In the result this court declines to interfere with the order (impugned) passed by the Tribunal. Accordingly, the writ petition fails and it is dismissed. The Labour Court is directed to proceed with the matter in accordance with the proposition laid down by the Hon’ble Apex Court in the cases referred herein above.