DINESH KUMAR SHARMA,J :

A. Background facts:

1. Present writ petition has been filed challenging the impugned order dated 22.08.2019 in ID No.120 of 2016 titled Shri Praveen Kumar vs. Indian Bank. The facts, in brief, are that the respondent/workman joined services with the petitioner/management as a clerk on 04.06.2010. The job of the respondent/workman was to collect money from the customers from their business place/residence and give the counter foil of the receipt to the customer/s then and there. The cash so collected was then supposed to be deposited in the bank. Allegations were made against the respondent/workman that the amount so collected from the client known as M/s South Delhi Public School was not deposited by him in the branch on the same day of cash collection but was deposited subsequently on different dates. A departmental enquiry was initiated against the respondent/workman. The respondent/workman was served with a charge sheet containing five charges of misappropriation of the customer’s money, which are summarized hereunder:

(a) Collected cash amounting to Rs. 2,45,000/- on 10.07.2012 from the premises of Bank's customer (M/s South Delhi Public School) for depositing in their SB A/c. Issued counter foil of the pay-in-slip for this amount to the Party but did not remit the cash in the bank for crediting in their bank account on 10,07.2012. The cash of Rs. 2.45 lacs was misappropriated by the Respondent, which was subsequently deposited by his father on 14.07.2012, only after the customer made complaint to the Defence Colony Branch of the Petitioner-Bank.

(b) Collected cash of Rs. 1,58,000/- on 19.06.2012 from the premises of M/s South Delhi Public School for depositing in their Current Account. Issued counter foil of the pay-in-slip for this amount to the Party but did not remit the cash on 19.06.2012 in the bank for crediting in their bank account. Cash amount of Rs. 1,58,000/- was misappropriated and deposited by the Respondent in the Current Account of M/s South Delhi Public School on 09.07.2012.

(c) Collected cash of Rs. 77,500/- on 20.06.2012 from the premises of M/s South Delhi Public School for depositing in their Current Account. Issued counter foil of the pay-in-slip for this amount to the Party but did not remit the cash on 20.06.2012 in the bank for crediting in their bank account. Cash amount of Rs. 77,500/- was misappropriated and deposited by the Respondent in the Current Account of M/s South Delhi Public School on 09.07.2012.

(d) Collected cash of Rs. 25,000/- on 20.06.2012 from the premises of M/s South Delhi Public School for depositing in the SB A/c held in the name of SAKSHAM (sister concern of SDPS). Issued counter foil of the pay-ln-slip for this amount to the Party but did not remit the cash on 20.06.2012 in the bank for crediting the customer's bank account. The cash amount of Rs. 25,000/- was misappropriated and deposited by the Respondent in the SB Account of SAKSHAM on 12.07.2012 through Gurgaon Branch.

(e) Similarly, collected cash from the premises of South Delhi Public School on 13.06.2012, 18.06.2012 and 09.07.2012 for remittance in their different accounts. Did not remit cash in their respective on the date of collection, and deposited the amounts in their account on the next date.

2. The respondent/workman submitted his reply but it was not found to be satisfactory and an Enquiry Officer was appointed to conduct a detailed enquiry into the charges made against the respondent.

3. The petitioner/management examined four witnesses, namely, Mr. Mukesh Kumar, Senior Accountant, (South Delhi Public School), Ms.Y.Manimala, AGM/Branch Manager, Defence Colony Branch, Mr.G.Prasad Rao, ABM/CM, Defence Colony Branch, Mr.Gopal, Manager, Defence Colony Branch. However, the respondent/workman did not produce any defence witness and the enquiry proceedings were concluded.

4. The enquiry officer submitted his enquiry report dated 21.05.2013 and held charges no. 1 to 4 to be proved in full and charge no. 5 as partially proved. A copy of the enquiry report was sent to the respondent/workman vide letter dated 22.05.2013 but the respondent/workman did not submit his representation against the findings of the enquiry officer. A personal hearing was accorded and the disciplinary authority passed a detailed speaking order dated 04.07.2013 imposing the punishment of ‘dismissal without notice’ as per clause 6 (a) of the Memorandum of Settlement on Disciplinary Action and Procedure dated 10.04.2002. It is pertinent to mention that the departmental appeal filed against the order of disciplinary authority was also dismissed after giving a personal hearing to the respondent/workman.

5. The respondent/workman thereafter raised an industrial dispute. Since the conciliation proceedings did not succeed, the matter was referred under Section 10 of the Industrial Dispute Act, 1947 to the learned Industrial Tribunal. The respondent/workman filed a statement of claim dated 05.08.2016 before the learned Tribunal and the petitioner/management filed its reply. The learned Tribunal vide its order dated 06.01.2017 framed a preliminary issue pertaining to the fairness of domestic enquiry and the parties were directed to adduce evidence on the preliminary issue. The respondent/workman made his deposition before the learned Tribunal on 19.09.2017 and the petitioner/management also tendered an affidavit of Sh.Anand Kumar Srivastava, Chief Manager, Zonal Office as their witness. The learned Tribunal vide impugned order dated 22.08.2019 inter alia held that the petitioner/management had failed to prove the enquiry proceedings and enquiry report against the workman. Therefore, the enquiry conducted against the respondent/workman was held to be vitiated. The petitioner/management has challenged the impugned order on the ground that the same is contrary to the facts and law.

6. During arguments, the respondent/workman raised an issue as to the maintainability of the writ petition challenging the finding of the learned tribunal only on the preliminary issue in view of the judgments of the Supreme Court in Cooper Engineering Ltd. v. Shri P.P. Mundhe (1975) 2 SCC 661 [LQ/SC/1975/290] and D.P. Maheshwari v. Delhi Administration (1983) 4 SCC 293 [LQ/SC/1983/251] .

B. Contentions of the Petitioners:

(i) There is no absolute bar on this Court from entertaining a writ petition against a preliminary issue.

(ii) The Gujarat High Court in the matter of Patel Filters Ltd v. Barkatbbal V. Narsindani&Anr 1999 SC Online Guj 580 held that the judgment of the Supreme Court in Cooper Engineering Ltd’s case (Supra) with respect to interfering with the order on the preliminary issue cannot be accepted as a universal principle of law to be applied in all cases irrespective of its merits.

(iii) The observations made by the Supreme Court in Cooper Engineering Ltd.’s case(supra) have to be interpreted in it’s letter and spirit. They can't be stretched to the point that the High Courts do not intervene on the preliminary issue, even when the order of the Labour Court is contrary to law. Reliance in this regard has been placed on the judgment of this Court in the case of Dhawan Engineering Works v. P. Balakrishnan & Ors (2010 SCC Online Del 1699)

(iv) Relegating the parties again before the learned Tribunal for adducing evidence would amount to inordinate delay in industrial adjudication which would defeat the purpose of the observations made by the Supreme Court in the case of Cooper Engineering Ltd (Supra). To buttress this submission, the learned Counsel on behalf of the petitioner has relied upon the judgment of Karnataka High Court in the case of Motor Industries Company Ltd v. D. Adinarayanappa 1978 SCC Online Kar 26 and the judgment of High Court of Kerala in the case of Standard Pottery Works, Alwaye v. Standard Pottery Works Employees' Union 1981 SCC Online Ker 259.

(v) The reliance placed by the Ld. Tribunal on the judgment of this Court in the case of Kangra Co-operative Bank Ltd. v. Ms Seema Sharma (2012 LLR 231) is misplaced. The ratio decidendi of the said judgment is that the Presenting officer who appeared on behalf of the Management to prove the domestic enquiry would be an interested witness and therefore, it is impermissible for the Presenting officer to prove the enquiry report before the industrial adjudicator. In the instant case, it is an admitted position, that the officer who was produced as the petitioner/management witness before the Industrial Tribunal was not the Presenting Officer in the domestic enquiry. In Kangra Co-operative Bank Ltd’s case only the Presenting officer was produced before the learned Adjudicator and neither the Enquiry officer nor any other employee was produced by the Management to prove the enquiry whereas, on the other hand, the petitioner in the given case had produced one Mr. Anand Kumar Srivastava, Chief Manager with the Zonal Officer at the New Delhi branch as a Management witness to prove the enquiry proceedings.

(vi) In the case Asst. General Manager, State Bank of India v.Ashok Kumar Bhatia, W.P.(C) No. 7548/2017, this court while relying on several judgments viz. Delhi Transport Corporation v. Shree Kumar &Anr (113 (2004) DLT 505 [LQ/DelHC/2004/281] ), Ashok Kumar v. D.T.C, W.P (C) No. 6748/ 2003 and NDMC v. Hari Tiwari , W.P.(C.) No. 12808/2019 decided on 09.10.2020, held that non-production of the enquiry officer cannot per se lead to a conclusion that the enquiry was bad.

(vii) Principles of natural justice were duly complied with during the domestic enquiry and the Respondent was given due opportunity to defend himself. However, Respondent chose not to appear/participate in the enquiry proceedings on three occasions i.e., on 03.01.2013, 22.01.2013 and 12.03.2013. Neither the respondent nor his Defense representative appeared to cross-examine the petitioner witnesses on 12.03.2013 in the domestic enquiry despite the fact that he was informed about the same on 09.03.2013. It was held in the case of State Bank of India v. Hemant Kumar (2011) 11 SCC 355 [LQ/SC/2011/514] that the principles of natural justice cannot be stretched to a point where they would render the in-house proceedings unworkable.

C. Contentions of Respondent:

(i) The judgments relied upon by the petitioner/management to prove the maintainability of the present writ petition does not come to the aid of the petitioner.

(ii) The arguments advanced by the petitioner proceeded on the premise that the learned Tribunal has disregarded the report of the enquiry proceedings and the report of the enquiry officer on the ground that the enquiry officer has not been examined by the petitioner/ management, which is fallacious as it is the non-examination of the enquiry officer 'or any other official who was associated with the enquiry proceedings' which has been held to be fatal by the learned Tribunal so far as proving the enquiry report and its proceedings is concerned.

(iii) The enquiry proceedings were not conducted in a just and fair manner and were in complete violation of principles of natural justice as the Enquiry Officer proceeded to examine all the witnesses produced by the petitioner/managementin the absence of the respondent. There was no occasion whatsoever for the respondent to have cross-examined management witnesses. The respondent/workman had absented himself only on two dates before the date of 12.03.2012 when his right for adducing his defence evidence was closed by the Enquiry Officer. This was wholly unfair and was done in the absence of the defence representative of the respondent.

D. Findings and Analysis:

7. In the case of Municipal Corporation of Delhi v. . Jai Narain Bansal & others (37(1989) DLT 183 [LQ/DelHC/1988/396] ), this court while relying on Cooper Engineering Ltd.’s case (supra), this court had inter alia held as under:

“5. In support of this submission, learned counsel for the respondent has placed reliance on a Judgment reported as The Cooper Engineering Ltd. V. P.P.Mundhe, AIR 1975 SC 1900 [LQ/SC/1975/290] . The relevant observations of the Supreme Court on this aspect are reproduced below:

" We are, therefore, clearly of opinion 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 matter is in controversy between the parties that question must be decided as a preliminary issue.

On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court, it will not thereafter be permissible in any proceedings, to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.

6. The observations of the Supreme Court fairly and squarely apply to the facts and the findings of the present case. Even though the enquiry proceedings have been set aside being not in conformity with the principles of natural justice, but the petitioner/management has been given another opportunity to prove the alleged misconduct by leading evidence before the Labour Court. The impugned order, thus, is an interlocutory order against which writ is not maintainable. After the parties are allowed to lead evidence, the final order will be passed by the Labour Court.”

8. In the case of M/S Ryan International School v. Shri Pan Singh , W.P. (C) 14365/2021 decided on 15.12.2021, this court while dealing with a challenge to the order passed by the learned Labour court in which the enquiry report of the petitioner/school against the respondent/workman was held to be in violation of the principles of natural justice, inter alia held as under:

“7. In the opinion of this Court, a two-tranche challenge - first against the preliminary award or opinion and thereafter against the final award, ought not to be entertained. This is the settled position of law as laid down by the Supreme Court in Cooper Engineering Limited v. Sh. P.P. Mundhe [(1975) 2 SCC 661] [LQ/SC/1975/290] .”

9. In the case of Hari Tiwari (supra) no opportunity was granted to management/ NDMC to lead evidence to prove the charges against the workman after the preliminary issue of domestic enquiry was held against the management/ NDMC. The said case can not be made applicable to the factual matrix in hand as the learned Tribunal has granted the opportunity to the petitioner to adduce evidence on merits. Therefore, it was not open to the petitioner to have challenged the preliminary order passed by the learned Tribunal regarding the fairness of the enquiry proceedings and the enquiry report.

10. The judgment dated 24.11.2021 in W.P (C) No. 6748/ 2003 titled as Ashok Kumar vs. DTC does not squarely cover the facts of the present case and is distinguishable from the facts of the present case on two grounds. Firstly, in the said case both the orders, that is one deciding the preliminary issue of whether the enquiry against the workman was according to the principles of natural justice or not and the other being the final award, were challenged by the management, unlike the present case where only the preliminary order passed by the learned Tribunal has been assailed in teeth of judgment passed by the Supreme Court in ‘Cooper's case. Secondly, A Junior clerk (typist) , who happened to be present during the enquiry proceedings along with the enquiry officer was examined by the management before the Learned Tribunal which is not the position in the instant case where one, Mr.Anand Kumar Srivastava working as Chief Manager with the Zonal Office of the petitioner was examined as the sole witness. Admittedly, the said witness was not associated with the departmental enquiry proceedings in any capacity. Therefore, his knowledge about the conduct of departmental enquiry proceedings is not first hand and thus inadmissible.

11. Mr.Anand Kumar Srivastava nowhere in his deposition deposed that he was associated with the enquiry or how he acquired the knowledge about the enquiry proceedings. Therefore, there was no requirement for the respondent /workman to have put questions to the said witness regarding his participation in the enquiry proceedings.

12. The contention of the learned counsel for the petitioner/management is that the law laid down in Cooper Engineering Ltd (supra) cannot be held as a universal principle. It has been contended that each case has to be seen in its peculiar facts and circumstances. Learned counsel for the petitioner/workman has submitted that in the present case the respondent/management has committed misappropriation and there is a complete loss of faith therefore, in such cases, the court should take a different view.

13. The proposition of law as laid down in Cooper Engineering Ltd.’s case (supra) is well established and still holds grounds. It is also pertinent to mention here that the judgments of this court in Jai Narain Bansal’s case (supra) and M/S Ryan International School’ case (supra) also hold grounds as of now.

14. In Vyasya Bank Ltd. vs. M.Namadeva Pai and Anr., 1994 – I L.L.N.417, the High Court of Karnataka has followed the ratio of Cooper Engineering’s case (supra) and inter alia held as under:

“25. That, from an analysis of the decisions aforementioned, it is clear that this Court, in exercise of its jurisdiction under Art.226 of the Constitution, shall refuse to intervene at the stage of adjudication on a preliminary issue, except in exceptional cases. It is clear that generally whenever an order on a preliminary issue, like the validity of a domestic enquiry is entertained, the proceedings before the adjudicating authority will be stalled, which results in undue delay. This prolonged litigation chokes the voice of protest besides breaking the resistance of the workmen. This Court has interfered with the orders on preliminary issue as they relate to jurisdictional issue. It is significant to note that the facts in the cases which came up for consideration before the Supreme Court and the cases which came up for consideration before this Court are distinguishable. This Court would refuse to exercise jurisdiction under Art.226 of the Constitution on the validity of a domestic enquiry as the management can challenge the very order, if worthy, even after the final award.”

15. In Vyasya Bank Ltd.’s case (supra), earlier judgments of Motor Industries Company Ltd. vs. D.Adinararayanappa (1978-I-L.L.N.500) and Rangaswamy and Company vs. D.V.Jagdish (1990-II L.L.N.745) of the High Court of Karnataka were also discussed and distinguished.

16. Similarly, the Division Bench of the High Court of Calcutta in Sonodyne Television Co.Employees Union & Ors. vs. Sonodyine Television Co. Employees’ Union and Ors., F.M.A.T. No.3689 of 1994 decided on 27.03.1995 took into account the judgment of the Supreme Court in Cooper Engineering’s case (supra) and D.P. Maheshwari’s case (supra) as well as the judgment of High Court of Calcutta in Peerless Employees’ Union vs. Peerless General Insurance and Investment Co. Ltd., F.L.R. 1991 (62) page 596 and inter alia held as under:

“5. Considering the facts and circumstances of the case we are of the view that the scope of preliminary issuers quite limited. It is not necessary to consider the correctness of the decision made in the domestic enquiry on merits at that stage. The tribunal is required to decide the dispute and ultimately give his award. For deciding the preliminary issue the correctness of the ultimate decision made by the tribunal is not required to be considered at this stage. Whatever may be the merits of the case, in our view, this is not an appropriate stage where the writ court should interfere and/or entertain the writ application when all the questions that are decided by the tribunal in the preliminary form or in the final form can be adjudicated after the award is passed and the aggrieved party comes up to the High Court. We are unable to appreciate the arguments made by Mr. Sen that the decisions of the Cooper Engineering's case as well as of the Maheswari's case are only confined to the management and management only and the principles laid down therein have no application whatsoever in case the writ application is filed by the workman. One reason for which the Supreme Court had laid down the law was that such course of action would result delay in disposing of the industrial disputes. Delay may be caused by the management or by the workman and that in order to avoid delay and multiplicity of proceedings the matter should not be entertained at this stage but after the final award is made……”

17. The learned Single Judge of Rajasthan High Court in Manager, Poddar Spinning Mills vs. The learned Labour Court of Rajasthan and Ors. S. B. Civil Writ Petition No.18 of 1978 decided on 25.01.1980 has inter alia held as under:

“10. ……..The paramount object of the Act is industrial peace. Piecemeal decision of issues in such cases is likely to protract or prolong the litigation ad infinitum. It would not be in the interest of justice to allow a party to obtain a decision on a preliminary point, challenge the same before this Court and thereafter before the Supreme Court to the great disadvantage of the workmen. Taking a conspectus of the circumstances of the case I am of the view that it is not a fit case in which this Court, in exercise of its extraordinary jurisdiction, should interfere with the proceedings pending before the Labour Court at this stage and quash the impugned order. It is, however, made clear that it would be open to the petitioner to challenge the decision of the Labour Court regarding the preliminary issue after the final decision of the case through on appropriate writ proceeding if so advised.”

18. The judgments relied upon by the petitioner to bring home the point that the learned Tribunal committed an error in disregarding the enquiry proceedings and the enquiry report are respectfully distinguished on the facts and circumstances of the case. A perusal of the impugned order dated 22.08.2019 would show that it was the non-examination of the enquiry officer 'or any other official who was associated with the enquiry proceedings' which was held to be fatal by the learned Tribunal so far as proving the enquiry report and its proceedings is concerned.

19. From the above decisions and in particular, from the decision of the Supreme Court in Cooper Engineering(supra), one thing is clear that whenever the Labour Court or the Industrial Tribunal decides the validity of the domestic enquiry conducted by the management as the preliminary issue, the writ petition challenging the said order should not be entertained. The Supreme Court in Cooper Engineering(supra) observed that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court/Tribunal by questioning its decision which is a preliminary issue and the same can be agitated even after the final award. The Supreme Court had also observed that it will be legitimate for the High Court to refuse to intervene at this stage.

20. It is pertinent to mention here that the Industrial Dispute Act, 1947 is a piece of beneficial legislation meant to protect the interest of the workman. The duty of the court is to interpret the provisions of this Act in the manner that it fulfills its object and purpose. The court is also is required to strike a balance while conducting the proceedings for resolving the dispute between the employer and the workman. The procedure which is favouorable of the workman and weaker of the two should be adopted.

21. This Court has not examined the merits of the case. Any expression made herein shall not tantamount to be an expression on the merits of the case. It will also be open to the petitioner to challenge the decision of the Labour Court regarding the preliminary issue after the final decision of the case through an appropriate court proceedings.

22. I consider that there is no substance in the contentions of the petitioner. Therefore, the present writ petition along with the pending application is dismissed.