JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. R.B. Phookan, learned counsel for the petitioner. Also heard Mr. K.L. Gupta, learned counsel for the respondent no.1. 2. The petitioner/Management has put to challenge the Award dated 23.02.2027 passed by the learned Labour Court, Guwahati in Reference Case No.2/2013, by which the dismissal of the respondent no.1 from service on 12.11.2011 by the Management in the Domestic Enquiry has been set aside. Further, the petitioner/Management has been directed to reinstate the respondent no.1 with full back wages. 3. The petitioner’s counsel submits that the learned Labour Court has passed the impugned Award in favour of the respondent no.1 on three grounds. Firstly, the Domestic Enquiry was held by an Advocate as an inquiry officer, who was not an independent counsel/inquiry officer and as the said Advocate had been gainfully engaged by the Management in other proceedings/litigations. As such, the inquiry officer could not be said to be impartial. The second ground for setting aside the dismissal of the respondent no.1 by the learned Labour Court was on the ground that the petitioner had not examined any person from whom the respondent No.1 had demanded a bribe. Further, the management witness, MW-2 in his cross-examination had admitted the fact that he had not seen the incident of bribe taking personally and MW-5 in his cross-examination had stated that he could not say what was written in the evidence on affidavit. Thirdly, the inquiry report had not been served upon the respondent workman and there was no document to show that the same had been served upon the respondent workman. Thus, the mandatory requirement of supplying an inquiry report before passing the penalty order was violative of the principles of natural justice. 4. The petitioner’s counsel submits that though the inquiry officer, who was an Advocate, had some-times being engaged in the Management/petitioner for conducting it’s cases, the same could not be said to have caused any prejudice to the respondent no.1, in terms of the judgment of the Supreme Court in the case of Saran Motors Private Ltd. New Delhi Vs. Vishwanath & Another, reported in 1964 SCC OnLine SC 9 , wherein it had been held that when an officer of the employer is competent to hold an inquiry, the lawyer who is not a paid employee of the employer, cannot be held to be incompetent to hold the inquiry. 5. Vishwanath & Another, reported in 1964 SCC OnLine SC 9 , wherein it had been held that when an officer of the employer is competent to hold an inquiry, the lawyer who is not a paid employee of the employer, cannot be held to be incompetent to hold the inquiry. 5. The petitioner’s counsel submits that the question of the respondent No.1 having taken a bribe had already been proved by the evidence given by Binod Kumar Gupta, the Proprietor of Tractor Firm and Machinery, Jakhalabandha, Nagaon and Rajesh Rai of M/s Binod Kumar, Amoni, Nagaon, Assam, during the Domestic Enquiry. As such, when the bribe givers had deposed during the Domestic Enquiry that the respondent No.1 had demanded a bribe and the same was given, the learned Labour Court could not have ignored the evidence recorded in the Domestic Enquiry. 6 . The learned counsel for the petitioner submits that the respondent no.1 had never taken a stand during the Domestic Enquiry or during the proceeding before the learned Labour Court, to the effect that a copy of the inquiry report had not been furnished to him. No averment in that respect had been made in his written statement before the learned Labour Court. The said stand had been taken by the respondent no.1 only at the time of cross-examining the Management Witness No.1 before the learned Labour Court. He submits that in any event, the respondent no.1 had been served a copy of the inquiry report, as can be seen from the letter dated 01.11.2011 issued by the acting Manager, Kellyden Tea Estate, which had been exhibited as Exbt-18 during the proceedings before the learned Labour Court. 7. The petitioner’s counsel further submits that even if it is assumed that inquiry report had not been furnished to the respondent no.1, the respondent no.1 would have to show that prejudice had been caused to him, for non- furnishing of the inquiry report, as held by the Supreme Court in the case of Divisional Manager, Plantation Division, Andaman & Nicobar Islands vs. Munnu Barrick & Others, reported in (2005) 2 SCC 237 and in the case of Ajit Narayan Vs. Union of India & Ors., reported in 2024 SCC OnLine MP 9245. Union of India & Ors., reported in 2024 SCC OnLine MP 9245. The learned counsel for the petitioner further submits that the respondent no.1 having been given the opportunity to cross-examine the witnesses and the respondent no.1 having done the same, the finding of the learned Labour Court that Management Witnesses were not properly examined was not justified. 8. The learned counsel for the respondent workman submits that there is no infirmity with the Award passed by the learned Labour Court, as the reasons given by the learned Labour Court for setting aside the dismissal of the petitioner was proper. He submits that the petitioner has been given his wages till June, 2025. The counsel for the respondent No.1 submits that the learned Labour Court is now clothed with the power to reappraise the evidence in the Domestic Enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. As such, on reappraisal of the evidence of the Domestic Enquiry, the learned Labour Court has rightly come to a finding that there was no evidence given by the alleged bribe givers, that bribe had been demanded by the respondent No.1 or the same had been given to the respondent No.1. He accordingly submits that the reappraisal of the evidence recorded in the Domestic Enquiry has been correctly done by the learned Labour Court and the same should not be interfered with. In this regard, he has relied upon the judgment of the Supreme Court in the case of The Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Ors., reported in (1973) 1 SCC 813 . 9. I have heard the learned counsels for the parties. 10. As can be seen from the pleadings, a Domestic Enquiry had been held against the respondent No.1 on three issues which are as follows: “ Issue No.1- Whether on 21st July/2011, the delinquent employee was assigned duty of repairing of spraying machine of the Misa dvision and report to the in-charge of the Divi-sion, but he was found at Pachim Kaliabor Block to see the construction of his own house without repoting and attending to his duty? Issue No. 2- Whether delinquent employee Sarder Kuldip Singh Virdi Dishonestly solicited bribes for repairing works of the garden and Purchase goods from - (A) M/S Tractor Farm and machinaries, Jakhalabandha, Nagaon, Assam. (B) M/S Sankar Motor Works-Jakhalabandha, Nagaon, Assam. (C) M/S Binod Kumar, Amoni, Nagaon Issue No. 3- Whether on 21st July/2011 at 6:30 AM the delinquent employee Sri Kuldip Singh Virdi entered into Sr. Manager's office without permission and shouted top of his voice demanding the balance amount for the welding machine and misbehaved the Sr. Manager lowering his prestige and his behaviour was completely illegal and wilful insubordination.” In this regard, it would be fruitful to refer to the reference made to the learned Labour Court, which is as follows:- i) Whether the Management of Kellyden Tea Estate, P.O. Salona, Nagaon, Assam is justified in terminating the service of their employee, Sardar Kuldip Singh Virdi ? ii) If not, whether the employee is to be reinstated with back wages ? 11. The enquiry report pursuant to the Domestic Enquiry concluded with the Enquiry Officer coming to a finding that issue No.1 was not proved against the respondent No.1. However, issue Nos. 2 & 3 stood proved against the respondent No.1. 12 . The challenge made to the domestic enquiry by the respondent No.1 before the learned Labour Court was thus in respect of issue Nos.2 & 3 and as has been stated by the petitioner’s counsel, the learned Labour Court set aside the dismissal of the respondent No.1 from service on three grounds. Firstly, the Domestic Enquiry was held by an Advocate as an inquiry officer, who was not an independent counsel/inquiry officer and as the said Advocate had been gainfully engaged by the Management in other proceedings/litigations. As such, the inquiry officer could not be said to be impartial. The second ground for setting aside the dismissal of the respondent no.1 by the learned Labour Court, was on the ground that the petitioner had not examined any person in the proceedings before the learned Labour Court from whom the respondent No.1 had demanded a bribe. The management witnesses, MW-2 in his cross-examination had admitted the fact that he had not seen the incident of bribe taking personally and MW-5 in his cross-examination had stated that he could not say what was written in evidence on affidavit. The management witnesses, MW-2 in his cross-examination had admitted the fact that he had not seen the incident of bribe taking personally and MW-5 in his cross-examination had stated that he could not say what was written in evidence on affidavit. Thirdly, the inquiry report had not been served upon the respondent workman and there was no document to show that the same had been served upon the respondent workman. Thus, the mandatory requirement of supplying an inquiry report before passing the penalty order was violative of the principles of natural justice. 13. In the case of Saran Motors Private Ltd. New Delhi (supra), the Hon’ble Supreme Court had held that a lawyer, who is not a paid employee of the employer, cannot be held to be incompetent to hold an enquiry only because he had sometimes been engaged by the Management for conducting it’s cases. By following the above decision of the Hon’ble Supreme Court, this Court holds that the finding of the learned Labour Court that the Enquiry Officer, who was an Advocate, could not be partial during the Domestic Enquiry, is not sustainable. The finding of the learned Labour Court on this ground is accordingly set aside, as there is nothing to show that the Enquiry Officer was not impartial. 14. With regard to the finding of the learned Labour Court that no evidence had been adduced to prove that bribe had been demanded or taken by examining the person from whom bribe was demanded by the respondent No.1, it is pertinent to note that in the Domestic Enquiry, PW-3 Binod Kumar Gupta and PW-4 Rajesh Rai had stated that bribe had been demanded and taken by the respondent No.1. The relevant portion of the enquiry report is reproduced hereinbelow as follows:- “ Issue No.2- Whether the delinquent employee Sarder Kuldip Singh Virdi dishonestly solicited bribes for repairing works of the garden from- (A) M/S Tractors Firm and machineries, Jakhalabandha, Nagaon(Assam) (B) Sankar Motors Work, Jakhalabandha, Nagaon(Assam) (C) M/S Binod Kumar, Amoni, Nagaon(Assam) That in order to prove the fact of soliciting bribe or illegal gratitution the two witnesses were examined by the management P.W.3 Binod Kumar Gupta, proprietor of Tractor Firm and machinary. Jakhalabandha and P.W.- 4 Rajesh Rai of M/S Binod Kumar, Amoni Nagaon, (Assam). Jakhalabandha and P.W.- 4 Rajesh Rai of M/S Binod Kumar, Amoni Nagaon, (Assam). This two witnesses have deposed that Kuldip Singh Virdi, 2nd Fitter of the Kellyden Tea Estate demanded commission from P.W.3 Binod Kr. Gupta, a sum of Rs. 3000/- (Three thousand only) and 2000/-(two thousand only) in total 5000/-(five thousand only) and also paid to the delinquent employee further demanded Rs. 10,000/- (ten thousand only) as commission from P.W. 3. But the said sum of Rs. was not paid and he thought that asking commission is the business of the delinquent employee. P.W. 4 Rajesh Rai also deposed that the delinquent employee asked for commission for supply of machinaries Both the aforesaid businessman have got their farm at amoni and Jakhalabandha and being delinquent employee was authorised to repair machinaries and goods from the said two Farm, it cannot be argued that the activities of the delinquent employee is out of control of the Sr. Manager. Although, the places of Farms are outside the garden. Yet the Sr. Manager has got jurisdiction to see that no illegality committed by his employee outside the garden for goods and machineries of the garden. By persuing the evidence of the two witness it has been proved beyond doubt that delinquent employee had taken or soliciting, bribe or illegal gratification. Therefore I answer the said issues in favour of the management and against the delinquent employee.” 15. In the case of The Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. (supra), the Hon’ble Supreme Court held that the Tribunal is now clothed with the power to reappraise the evidence in the Domestic Enquiry and satisfy itself whether the said evidence relied upon by an employer establishes the misconduct alleged against the workman. Para 36 to 40 of the said judgment states as follows: “ 36. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. case existed. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. case existed. The conduct of disciplinary proceedings and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation of unfair labour practice. This position, in our view, has now been changed by Section 11-A. The words “in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified” clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. case, can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter. 37. If there has been no enquiry held by the employer or if the enquiry is held to be defective, it is open to the employer even now to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. 37. If there has been no enquiry held by the employer or if the enquiry is held to be defective, it is open to the employer even now to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. We are not inclined to accept the contention on behalf of the workmen that the right of the employer to adduce evidence before the Tribunal for the first time recognised by this Court in its various decisions, has been taken away. There is no indication in the section that the said right has been abrogated. If the intention of the legislature was to do away with such a right, which has been recognised over a long period of years, as will be noticed by the decisions referred to earlier, the section would have been differently worded. Admittedly, there are no express words to that effect, and there is no indication that the section has impliedly changed the law in that respect. Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he had held no enquiry or the enquiry held by him is found to be defective. Of course, an opportunity will have to be given to the workman to lead evidence contra. The stage at which the employer has to ask for such an opportunity, has been pointed out by this Court in Delhi Cloth and General Mills Co. Ltd. case. No doubt, this procedure may be time consuming, elaborate and cumbersome. As pointed out by this Court in the decision just referred to above, it is open to the Tribunal to deal with the validity of the domestic enquiry, if one has been held as a preliminary issue. If its finding on the subject is in favour of the management, then there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action. This right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been held or if the enquiry is held to be defective, has been given judicial recognition over a long period of years.” 38. This right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been held or if the enquiry is held to be defective, has been given judicial recognition over a long period of years.” 38. All parties are agreed that even after Section 11-A, the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer. 39. Having held that the right of the employer to adduce evidence continues even under the new section, it is needless to state that, when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workman concerned. The law, as laid down by this Court that under such circum-stances, the issue about the merits of impugned order of dismissal or discharge is at large before the Tribunal and that it has to decide for itself whether the misconduct alleged is proved, continues to have full effect. In such a case, as laid down by this Court, the exercise of managerial functions does not arise at all. 40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.” 16. In view of the decision of the Supreme Court in the case of The Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. (supra), the learned Labour Court should have looked into the evidence that had been recorded during the Domestic Enquiry, to see whether evidence of the persons from whom bribe had been demanded and taken had been recorded. of India (Pvt.) Ltd. (supra), the learned Labour Court should have looked into the evidence that had been recorded during the Domestic Enquiry, to see whether evidence of the persons from whom bribe had been demanded and taken had been recorded. Unfortunately, the learned Labour Court did not do the same, inasmuch as, the Domestic Enquiry finding shows that the evidence of the Management Witnesses in the Domestic Enquiry, i.e. PW-3 Binod Kumar Gupta and PW-4 Rajesh Rai, proved that the respondent No.1 had demanded and taken bribes. The learned Labour Court has passed it’s order without noticing the evidence of PW-3 Binod Kumar Gupta and PW-4 Rajesh Rai in the Domestic Enquiry and as such, the finding of the learned Labour Court that no evidence had been adduced by the petitioner regarding the demand and acceptance of bribe by the respondent no.1 is clearly not justified, as it is a wrong finding. 16. With regard to the finding of the learned Labour Court that the respondent No.1 was not given a copy of the enquiry report, after making of the enquiry report, it is seen that a letter dated 01.11.2011 had been issued by the Acting Manager of the petitioner to the respondent No.1, which had been exhibited as Exbt.18 and which reads as follows:- “To Shri Kuldip Singh Virdi 2nd Fitter, Kelyden Tea Estate. Reference our charge-sheet dated 05/06/2011 and the domestic enquiry held on 24/09/2011. Before passing the final orders in your case, we are enclosing herewith a copy of the Enquiry officer's report and findings dated 22/10/2011 regarding your case. In case you wish to make any representation, the same may be made to the undersigned on 07/11/2011 at 4:00 pm(IST) at Kellyden Senior Manager's office. In the event of this representation not being made at the aforesaid date and time, the Management will proceed to pass the final orders as would be deemed appropriate.” 17. Assuming that the said letter dated 01.11.2011 along with the enquiry report had not been furnished to the respondent No.1, the respondent No.1 has not been able to show as to how the non-furnishing of the said enquiry report had caused prejudice to him. In the case of Union of India Vs. Bishamber Das Dogra , reported in (2009) 13 SCC 102 and State of U.P. Vs. In the case of Union of India Vs. Bishamber Das Dogra , reported in (2009) 13 SCC 102 and State of U.P. Vs. Harendra Arora , reported in (2001) 6 SCC 392 , it has been held by the Hon’ble Supreme Court that even if the enquiry report has not been made available to the delinquent employee, then it would not by itself vitiate the disciplinary proceedings, unless the delinquent employee establishes that real prejudice had been caused to him by non-furnishing of the same. This has been further reiterated in another decision, such as, ECIL Vs. B. Karunakar, reported in (1993) 4 SCC 727 , wherein it has been held as follows:- “30. (v)…… They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a ‘unnatural expansion of natural justice’ which in itself is antithetical to justice.” 18. In the case of Haryana Financial Corpn. Vs. Kailash Chandra Ahuja , reported in (2008) 9 SCC 31 , the Hon’ble Supreme Court at para 21 has held as follows:- "21. ……It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. (emphasis supplied) If he is unable to satisfy the court on that point, the order of punishment cannot automatically (emphasis in original) be set aside." 19. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. (emphasis supplied) If he is unable to satisfy the court on that point, the order of punishment cannot automatically (emphasis in original) be set aside." 19. Thus, keeping in view the decisions of the Hon’ble Supreme Court, as indicated above, this Court is of the view that the alleged non supply of the enquiry report cannot be said to vitiate the domestic enquiry, inasmuch as, the respondent No.1 has not been able to show that the non supply of the same had caused prejudice to him, which resulted in miscarriage of justice. 20. The impugned Award dated 23.02.2017 passed by the learned Labour Court states that from the scrutiny of the evidence on record, it appears that the Domestic Enquiry was not done in accordance with the principles of natural justice. It further held that it was also apparent from the evidence on record that the charges of misbehaviour, theft of plumber/bearing and alleged demand of money were not proved. It is surprising that the learned Labour Court had made the above observation only at the time of disposal of the reference by the impugned Award and had not decided the same as a preliminary issue, in terms of the judgment of the Supreme Court in the case of Cooper Engineering Ltd. Vs. P.P. Mundhe , reported in (1975) 2 SCC 661 . 21. In the case of Cooper Engineering Ltd. Vs. P.P. Mundhe (supra), the Hon’ble Supreme Court has held 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 has violated the principles of natural justice. When there is no Domestic Enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties, that question must be decided as a preliminary issue. On a decision being pronounced that no enquiry was held or that the enquiry was defective, it will be for the management to decide whether it will adduce any evidence for the first time or adduce additional evidence before the Labour Court. On a decision being pronounced that no enquiry was held or that the enquiry was defective, it will be for the management to decide whether it will adduce any evidence for the first time or adduce additional evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. However, what is noticed in the present case is that the learned Labour Court has not noticed the fact that the petitioner had examined PW-3 Binod Kumar Gupta and PW-4 Rajesh Rai in the Domestic Enquiry, who had apparently proved that the respondent no.1 had demanded and take bribes from different firms. 22. In the present case, no preliminary issue had been made by the learned Labour Court, to decide whether the Domestic Enquiry had violated the principles of natural justice. Instead, it had held that the Domestic Enquiry had violated the principles of natural justice, which is not the case as per the records. The findings of the Enquiry Officer is clear in this regard in the Enquiry Report, where it is stated as follows: “During the enquiry the management side produced six witnesses. However, the delinquent employee decided not to adduce evidence for his defence, but, extensively cross examined the witnesses of the management and all opportunity was given him and even by re-examining the witnesses.” 23. Though the learned Tribunal has completely overlooked the evidence of PW-3 Binod Kumar Gupta and PW-4 Rajesh Rai in the Domestic Enquiry, from whom bribe had been demanded and taken by the respondent No.1, this Court is of the view that no purpose would be served by remanding the case back to the learned Labour Court, for deciding the reference by first making a preliminary issue due to the fact that 13 long years have elapsed from the date of dismissal of the respondent No.1. This Court finds that the finding of the learned Labour Court that the Domestic Enquiry had been conducted, by violating the principles of natural justice is not correct and amounts to perversity, as the learned Labour Court failed to take notice/take into consideration the evidence of PW-3 Binod Kumar Gupta and PW-4 Rajesh Rai. Further, this Court finds that no prejudice has been caused to the respondent no.1. Further, this Court finds that no prejudice has been caused to the respondent no.1. In view of the reasons stated above, the petitioner has made out a case for interference with the impugned Award dated 23.02.2027 passed by the learned Labour Court, Guwahati in Reference Case No.2/2013. The same is accordingly set aside. However, keeping in view the facts of this case and the fact that the respondent no.1 has been given his wages till June, 2025, the petitioner should not recover the wages already paid to the respondent no.1. 24. The writ petition is accordingly disposed of.