JUDGMENT K.M. THAKER, J. 1. Heard learned advocate for the petitioner and learned advocate for the respondent. 2. In present petition, the petitioner - Gujarat State Road Transport Corporation ["the Corporation" for short] has prayed, inter alia, that: "8(b) Be pleased to allow this Special Civil Application by way of issuing appropriate writ, writ of mandamus or writ or order or directions quashing and setting aside the order dated 24/02/2016 passed by the Hon'ble Industrial Tribunal at Vadodara in an application below 30 moved by Respondent No.1 in Reference (IT) No.70 of 2010 quashing and setting aside the Penal order dated 28/02/2001 of stoppage of two increments with future effect, annexed as Annexure-G in the interest of justice." 3. The petitioner is aggrieved by the order dated 24.2.2014 passed by learned Tribunal at Vadodara in Reference No.70 of 2010. The said order is passed at interlocutory stage. By impugned order, the learned Tribunal declined permission to present petitioner to lead evidence (i.e. to conduct denovo inquiry) to prove the charge and allegations against the workman after the learned Tribunal declared domestic inquiry defective and therefore, illegal. 3.1 The short issue, which is raised in and involved in present petition is as to whether the petitioner should be granted opportunity to conduct the (domestic) inquiry denovo i.e. should the petitioner be granted opportunity to prove the allegations before the Tribunal after the Tribunal declared that the domestic inquiry conducted by the employer (present petitioner) is defective. Whether opportunity to prove the charge should be granted to the employer, is the question. 3.2 Ordinarily, this Court would not entertain a petition against interlocutory order and would ask the petitioner who approach this Court against interlocutory order passed during pendency of the parent proceedings before learned Tribunal, to let the proceedings before the learned trial Court progress further and to challenge the interlocutory order after final order is rendered, if the grievance and cause to challenge interlocutory order survives. 3.3 However, in present case, challenge against the interlocutory order is required to be decided either in favour of or against the petitioner at this stage because not only the petitioner's challenge against the said order would, otherwise, be rendered infructuous and it may ultimately result into further delay in the proceedings if the order is challenged after final decision in reference case, but the petitioner may be deprived of his right and opportunity to lead evidence. Therefore, this Court considers it appropriate to examine the petitioner's dispute against the interlocutory order which is placed under challenge in present petition. 4. So far as factual background is concerned, it has emerged from the record that the respondent herein was in service with present petitioner. He worked as Driver. While the respondent was on duty on 26.1.2000 and was driving a bus from Vadodara to Jambusar, he, allegedly, caused an accident and knocked down a cyclist in Rajkot city. Therefore, a show cause notice was issued and domestic inquiry was conducted. Upon conclusion of the inquiry proceedings, the Inquiry Officer submitted his report wherein he held that the charge and allegations against the workman are proved. Therefore, the competent authority passed order of penalty. The authority directed stoppage of two increments with future effect vide penalty order dated 28.2.2001. 4.1 The workman felt aggrieved by the said decision and that therefore he raised industrial dispute. Appropriate government referred the dispute for adjudication to learned Tribunal. The learned Tribunal registered the dispute as Reference No.70 of 2010. 4.2 During the proceedings of said reference case before the learned Tribunal, the workman questioned legality and propriety of the inquiry with the allegation that the inquiry was defective, inasmuch as the corporation committed breach of principles of natural justice and he did not get sufficient, reasonable and effective opportunity to defend his case. 4.3 Therefore, the learned Tribunal framed preliminary issue to decide said primary objection raised by the workman. 4.4 After hearing the parties, learned Tribunal passed order dated 1.2.2014 and declared that the inquiry is defective. The learned Tribunal found that the workman did not get reasonable opportunity to defend his case and that the Inquiry Officer had put immaterial questions to the claimant during the proceedings and that therefore, the inquiry cannot be sustained. The learned Tribunal, therefore, vide order dated 1.2.2014 set aside the inquiry. The learned Tribunal found that the workman did not get reasonable opportunity to defend his case and that the Inquiry Officer had put immaterial questions to the claimant during the proceedings and that therefore, the inquiry cannot be sustained. The learned Tribunal, therefore, vide order dated 1.2.2014 set aside the inquiry. With said order, the learned Tribunal also clarified that further proceedings will be conducted on 21.5.2014. 4.5 At this stage, it is relevant and necessary to mention that in its written statement/reply (i.e. at the first available opportunity), the petitioner corporation had mentioned that if at all the learned Tribunal, on any ground, declares the inquiry defective and illegal, then, to lead evidence and prove the charge and allegations before the learned Tribunal i.e. to conduct denovo inquiry) permission may be granted. The said request was made in consonance with the legal position clarified by Hon'ble Apex Court in case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd & Another., (1979) AIR SC 1652. After the learned Tribunal declared the inquiry defective, the petitioner herein, according to the respondent, failed to produce oral or documentary evidence to prove the charge. 4.6 It appears that after 21.5.2014 the learned Tribunal adjourned the proceedings for some time and subsequently, at the request of the workman to refuse/to close the opportunity to lead evidence and prove the allegations because the corporation failed to produce any witness, the learned Tribunal passed the order dated 24.2.2016 and declined opportunity to the corporation to lead evidence in support of the charge and allegations. 4.7 The corporation is aggrieved by the said order. Hence, present petition. 5. From above mentioned facts, it would emerge that if the order challenged in present petition is maintained, then, the corporation will never get opportunity to prove the charge. 6. In this background, learned advocate for the petitioner corporation assailed the order on various grounds. The crux of the submission by learned advocate for the petitioner corporation is that impugned order is unreasonable and unjustified. Learned advocate for the petitioner would submit that after the inquiry is declared defective, the employer should be granted opportunity to prove the allegations, more particularly when such request is specifically made in the reply/written statement. He submitted that if the opportunity is not granted, the respondent would go scot-free and despite the fact that the workman committed misconduct viz. Learned advocate for the petitioner would submit that after the inquiry is declared defective, the employer should be granted opportunity to prove the allegations, more particularly when such request is specifically made in the reply/written statement. He submitted that if the opportunity is not granted, the respondent would go scot-free and despite the fact that the workman committed misconduct viz. negligence in performance of duty and though on account of his rash driving, accident occurred, he would not suffer any penalty. On said and such grounds, learned advocate for the petitioner corporation submitted that the order passed by the learned Tribunal may be set aside and opportunity to lead evidence, on appropriate condition, may be granted. 7. Mr. Brahmbhatt, learned advocate for the respondent opposed the submissions and supported impugned order. He submitted that, at initial stage, i.e. after the learned Tribunal declared domestic inquiry defective, the workman had not raised objection against corporation's request for opportunity to lead evidence. However, for long time, the corporation failed to produce any witness and the proceedings were being delayed. Therefore, the workman was left with no alternative but to submit application (Exh.30) with the request to the learned Tribunal to close the stage of corporation's evidence and to conduct the proceedings further. The learned Tribunal considered said request and passed order and closed the corporation's opportunity. He submitted that there is no illegality or error in the order and the said order cannot be said to be unjust or unreasonable. 8. I have considered rival submissions and material available on record. 9. It is not in dispute that the Inquiry Officer, who conducted the domestic inquiry, submitted his findings and report wherein he held that allegations are proved. 9.1 It is also not in dispute that the accident did occur. 9.2 Of course, whether it was on account of the driver's negligence or on account of fault of the cyclist and whether the charge and allegations about negligence in performance of duty can be said to have been proved or not, are question and issues of evidence which should be addressed and answered by learned Tribunal. 9.3 However, the factum of the accident is, not in dispute. 9.4 It is also not in dispute that the workman challenged the legality of the inquiry on the ground that he was not granted opportunity to defend his case. 9.3 However, the factum of the accident is, not in dispute. 9.4 It is also not in dispute that the workman challenged the legality of the inquiry on the ground that he was not granted opportunity to defend his case. It is also not in dispute that in view of such contention, the learned Tribunal decided the said objection/preliminary issue and vide order dated 1.5.2014, the learned Tribunal declared that the inquiry was defective. At this stage, it would be appropriate to take into account the observations by Hon'ble Apex Court in case of Shankar Chakravarti v. Britannia Biscuit Co.Ltd. & Another., (1979) AIR SC 1652. In the said decisions, Hon'ble Apex Court observed and held that: "33. The employer terminates the service of a workman. That termination raises an industrial dispute either by way of an application under Section 33 of the Act by the employer or by way of a reference by the appropriate Government under Section 10. If an application is made by the employer as it is required to made in the prescribed form all facts are required to be pleaded. If a relief is asked for in the alternative that has to be pleaded. In an application under Section 33 the employer has to plead that a domestic enquiry has been held and it is legal and valid. In the alternative it must plead that if the Labour Court or Industrial Tribunal comes to the conclusion that either there was no enquiry or the one held was defective, the employer would adduce evidence to substantiate the charges of misconduct alleged against the workman. Now, if no such pleading is put forth either at the initial stage or during the pendency of the proceedings there arises no question of a sort of advisory role of the Labout Court or the Industrial Tribunal unintended by the Act to advice the employer, a party much better off than the workman, to inform it about its rights, namely, the right to lead additional evidence and then give an opportunity which was never sought. This runs counter to the grain of industrial jurisprudence. This runs counter to the grain of industrial jurisprudence. Un-doubtdedly, if such a pleading is raised and an opportunity is sought, it is to be given but if there is no such pleading either in the original application or in the statement of claim or written statement or by way of an application during the pendency of the proceedings there is no duty cast by law or by the rules of justice, reason and fair play that a quasijudicial Tribunal like the Industrial Tribunal or the Labour Court should adopt an advisory by informing the employer of its rights, namely, the right to adduce additional evidence to substantiate the charges when it failed to make good the domestic enquiry and then to give an opportunity to it to adduce additional evidence. This, apart from being unfair to the workman, is against the principles or rules governing the procedure to be adopted by quasijudicial Tribunal, against the grain of adversary system and against the principles governing decision of a lis between the parties arrayed before a quasijudicial Tribunal. 34. Having given our most anxious consideration to the question raised before us, and minutely examining the decision in Cooper Engineering Ltd. case, (1975) LabIC 1441 (SC) to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some 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 Ltd. case merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and abligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the 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. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the 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." 9.5 From the said observations, it emerges that the obligation to seek opportunity to prove charge and allegations in the event domestic inquiry is declared defective, is on the employer. From the said observations, it also becomes clear that such opportunity should be requested for at the first available opportunity (in the written statement) and without request from side of employer, the learned Labour Court or learned Tribunal does not have any obligation to suomotu offer such opportunity. When the facts of present case are examined in light of said observations, it emerges that the corporation had, in paragraph No.4 of its reply (written statement) dated 20.1.2015 specifically requested for such opportunity. 9.6 Therefore, the requirement viz. to make specific request of such particular, at first available stage, was fulfilled and complied by the corporation. Under the circumstances, the learned Tribunal had no ground or reason to refuse the opportunity to the corporation. However, the controversy and dispute which is brought before this Court in present petition seems to have arisen because the corporation, according to the workman's allegation, failed to produce evidence/witness before the learned Tribunal to prove the charge. 9.7 On this count, learned advocate for the workman emphasised observations by the learned Tribunal in the impugned order dated 24.2.2016, wherein in paragraph No.4, the learned Tribunal has observed, inter alia, that the request for opportunity to lead evidence to prove allegation was submitted by the corporation by way of application (Exh.28). The learned Tribunal has observed that in respect of the said application (Exh.28) the workman had put his remark and that after considering the workman's remark. The learned Tribunal has further observed that after the Court passed the order below Exh.28, the corporation did not produce witness for long time. The learned Tribunal has observed that in respect of the said application (Exh.28) the workman had put his remark and that after considering the workman's remark. The learned Tribunal has further observed that after the Court passed the order below Exh.28, the corporation did not produce witness for long time. Therefore, the workman submitted that the application (Exh.30) on the premise that the workman crossed age of superannuation in August 2012 and that he is now not in service and that, therefore, the opportunity to conduct enquiry and to prove charge should not be granted. 9.8 The learned Tribunal considered the said allegation and on the ground that the workman has retired from service, the permission to prove charge and allegations came to be refused vide impugned order with the observation that after retirement, inquiry cannot be initiated/conducted. 9.9 In the first place it should be mentioned that the learned Tribunal failed to appreciate distinction between domestic enquiry before the workman retires from service and/or continuation of the proceedings of domestic enquiry (which was already initiated before superannuation of employee) even after the employee is allowed to retire from service on ground of superannuation as against the case, wherein the domestic enquiry is already conducted and the order of penalty is already passed long time before the workman attained age of superannuation and the proceedings challenging penalty order are pending before the learned Tribunal where it becomes necessary to conduct the inquiry denovo. The said two situations cannot be equated and cannot be put at par with one other. The Rules which oblige the employer to complete domestic enquiry before retirement of an employee or to allow the workman to retire from service after reserving the right to conclude the proceedings of domestic enquiry is altogether different from permission and opportunity to conduct de novo enquiry before the Court after the enquiry was already conducted and was completed even before the employee retired on superannuation and such is declared defective. The former situation and the relevant Rules would not be applicable in the later situation i.e. wherein the domestic enquiry was already conducted and was completed enquiry even before the employee retired on superannuation and is followed by penalty order but denovo inquiry becomes necessary on account of Tribunal's order. The former situation and the relevant Rules would not be applicable in the later situation i.e. wherein the domestic enquiry was already conducted and was completed enquiry even before the employee retired on superannuation and is followed by penalty order but denovo inquiry becomes necessary on account of Tribunal's order. In case where the learned Tribunal declares the enquiry defective, the matter would stand on altogether different footing and it cannot be compared with unconcluded inquiry and is pending at the time of superannuation. Without appreciating the said aspect the learned Tribunal passed impugned order. Therefore, the order is not sustainable. 10. So far as the ground of delay in leading evidence to prove the charge and allegations before the Court is concerned, it is relevant to note that the learned Tribunal has, in paragraph No.3 of the order, observed that one Mr. Jadeja was presented before the learned Tribunal and the corporation intended to examine him as witness, however, the adjournments were sought for by the workman. The said observations clearly indicate the workman also contributed to the delay. 10.1 Thereafter in paragraph No.4 of the order, the learned Tribunal has observed that the corporation did not produce witness for long time and the proceedings were being unnecessarily delayed. 10.2 The said observations are conflicting and it is not possible to reconcile such conflicting observations in paragraph Nos.3 and 4. 10.3 In this background, this Court passed order dated 30.7.2018 which reads thus: "As a last opportunity a day's time is granted to learned advocate for the petitioner to declare as to whether the record of domestic inquiry is available with the corporation and whether any witnesses, to prove the charge and allegation, are available and whether the corporation would be in position to produce any witness before the learned Labour Court whose deposition, to prove the charge and allegation in the lis before the learned Labour Court, can be recorded. If yes, then name of such witness may be declared so that appropriate order can be passed. If yes, then name of such witness may be declared so that appropriate order can be passed. If it is shown by learned advocate for the petitioner corporation that relevant witness who can give evidence about charge and allegation about misconduct against the claimant is available and the corporation would be able to call the said person/employee as witness and lead his evidence before learned Tribunal, then the corporation's request and corporation's challenge against impugned order will be considered. However, if it turns out that as of now the record of inquiry is not available with the corporation and/or any witness who can give evidence with regard to alleged incident/misconduct is also not available with the corporation then entire exercise of examining the legality and propriety of impugned award and/or setting aside the impugned and granting opportunity to the petitioner corporation to examine witness and lead evidence would be an exercise in futility and it would result into only in delay in proceedings further. S.O. to 31.7.2018 at 2.30 p.m." 10.4 In response to the said order, learned advocate for the corporation submitted that entire record of the domestic enquiry is available with the corporation and the concerned witness (whose name was declared before the learned Tribunal and who was also presented before the learned Tribunal) i.e. one Mr. M.H. Jadeja (who has now retired from service) would be available as witness and the corporation would examine him as witness and lead his evidence, if the opportunity is granted. 10.5 Thus, it has emerged that the record of domestic enquiry is available with the corporation and since the corporation would be obliged to lead fresh evidence to prove charge, even a witness is available with the corporation. Further, before the respondent retired from service domestic inquiry was conducted against him, inquiry was concluded, inquiry officer submitted his findings and disciplinary authority passed penal order in light of the fact that the inquiry officer held that inquiry was defective. Therefore, the petitioner has to prove the charge and allegations before the Court. If the said opportunity is not allowed to the petitioner, the petitioner will be deprived of the opportunity. The reason and ground on which it is denied viz. the petitioner cannot be permitted to conduct inquiry after retirement of employee, is erroneous and cannot be sustained. The petitioner has fulfill the requirement for such permission opportunity. If the said opportunity is not allowed to the petitioner, the petitioner will be deprived of the opportunity. The reason and ground on which it is denied viz. the petitioner cannot be permitted to conduct inquiry after retirement of employee, is erroneous and cannot be sustained. The petitioner has fulfill the requirement for such permission opportunity. Its action/reply (written statement) is in consonance and in tune with Apex Court's decision. Injury to interest of justice would be more if permission is not granted (if impugned order is not set-aside), than what would occur if the permission is granted. Under the circumstances, it would be unfair and unjust if the opportunity to lead evidence so as to prove allegation is not granted. Of course, the said opportunity should not be granted unconditionally. On this count, it is necessary to recall that the learned Tribunal declared enquiry defective in May 2014. The impugned order came to be passed in February 2016. Meaning thereby in the interregnum almost two years passed and during that period the corporation, allegedly, failed to lead evidence and examine any witness. Of course, the observations in paragraph No.3 give rise to some doubt. However, there is lack of clarity on this count and the observations by the learned Tribunal in paragraph Nos.3 and 4 are slightly in conflict with one another. Therefore, it is not necessary to enter into the said controversy at this stage. 10.6 In this context, it would also be relevant to take into account the fact that the workman has already retired from service. On the other hand, it is also relevant to recall that the disciplinary authority had imposed penalty of stoppage of two increments and the said penalty order passed by the competent authority appears to have been implemented. The retiral dues must have been paid to the employee by giving effect to the order of penalty. 11. The facts of the case have brought out that on one hand the corporation has fulfilled the condition for availing the opportunity as explained by Hon'ble Apex Court in case of Shankar Chakravarti. On the other hand, it has also emerged that the corporation had conducted the inquiry before imposing penalty. The accident occurred, allegedly, on account of respondent's negligence in performance of duty. The corporation needs opportunity to prove said allegation. It has the record and the witness. On the other hand, it has also emerged that the corporation had conducted the inquiry before imposing penalty. The accident occurred, allegedly, on account of respondent's negligence in performance of duty. The corporation needs opportunity to prove said allegation. It has the record and the witness. Moreover, observation by the trial Court gives out that on certain occasions corporation's witness was present and that the respondent's conduct played contributory role in causing delay. When such facts stare in the face and when it is necessary that the respondent, if guilty of misconduct, should suffer penalty, the opportunity should not be denied. Otherwise, corporation shall have pay the difference of salary short fall which occurred on implementation of penalty and the respondent may not face any penalty. It would not be in interest of justice to allow such consequence or eventuality. At the same time, corporation should also compensate the workman for the delay. Under the circumstances, on appropriate condition, the opportunity deserves to be granted to the petitioner corporation. Therefore, the following order is passed. 11.1 On condition that the corporation shall pay Rs. 25,000/- as nonrefundable costs to the claimant and shall make available witness for recording his evidence, without any delay, the order dated 24.2.2016 is set aside and the learned Tribunal is directed to grant last opportunity to the corporation to lead evidence so as to prove charge and allegations against the workman (after the enquiry came to be declared defective and illegal). The corporation shall pay the said nonrefundable costs to the workman within three weeks from the receipt of the certified copy of this order. The workman shall execute receipt acknowledging payment. The corporation shall thereafter submit fresh application to the learned Tribunal to open the stage and permission granting opportunity to lead evidence so as to examine the witness to prove the allegation. Along with the application, the corporation shall submit copy of the receipt issued by the workman. 11.2 The learned Tribunal shall pass necessary order on the said application by the corporation and permit the corporation to lead necessary evidence. 11.3 It is clarified that if the corporation fails to produce witness and place necessary document on record before the learned Tribunal without delay, then it would be open to the learned Tribunal to pass appropriate order on taking into account the corporation's failure/delay in producing witness and documents. 11.3 It is clarified that if the corporation fails to produce witness and place necessary document on record before the learned Tribunal without delay, then it would be open to the learned Tribunal to pass appropriate order on taking into account the corporation's failure/delay in producing witness and documents. With aforesaid clarifications, the petition is disposed of. Orders accordingly.