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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5310 OF 1995
Maharashtra State Road Transport
Corporation.
Through Divisional Controller,
Aurangabad.
...PETITIONER
-VERSUS-
Shaikh Jamadar Shaikh Azimoddin,
Age : 35 years, Occupation : Driver,
R/o Barshi Kasba Peth, Paranda Road,
At Present : Workshop No.2,
Aurangabad.
...RESPONDENT
...
Advocate for Petitioner : Mrs.R.D.Reddy.
Advocate for Respondent : Shri V P Latange.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 26th August, 2016 Oral Judgment :
1 The Petitioner/ MSRTC is aggrieved by the judgment and order dated 11.10.1994 delivered by the Industrial Court, Aurangabad by which Complaint (ULP) No.573/1990 has been allowed and the order of punishment of stoppage of one increment for five years, is directed to be withdrawn.
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2 The learned Advocate for the Petitioner/ MSRTC submits that
though the Respondent/ Employee has retired on attaining the age of superannuation in 2002, that would not render this petition infructuous.
The issue is as regards an accident having been committed by the Respondent/ Employee who was working as a Driver. On 02.01.1987, the charge sheet was served upon him and after conducting an enquiry, the Petitioner/ MSRTC showed leniency towards the Respondent and awarded the punishment of stoppage of one increment for five years.
3 The Respondent approached the Industrial Court in Complaint (ULP) No.573/1990, which has been allowed. The grievance is that the enquiry was interfered with by the Industrial Court and the findings were declared to be perverse and in the same judgment, the Industrial Court has allowed the complaint.
4 Shri Latange, learned Advocate for the Respondent/ Employee, has strenuously defended the impugned order. He contends that the enquiry was ex-parte and as such, the principles of natural justice were violated. The enquiry was rightly vitiated by the Industrial Court. In this backdrop, the evidence recorded in the enquiry was considered by the Industrial Court and it concluded that the findings of the Enquiry Officer are perverse.
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5 I have considered the submissions of the learned Advocates.
6 It is settled law in the light of the judgment of the Honourable
Supreme Court in the matter of the Workmen of the Motipur Sugar Factory Private Limited vs. The Motipur Sugar Factory Private Limited, AIR 1965 SC 1803, that when an enquiry and the findings of the Enquiry Officer are assailed by the litigant, the Court dealing with the case has to frame the two preliminary issues which are as follows:-
(a) Whether, the Complainant/ Delinquent proves that the findings of the Enquiry Officer are perverse?
(b) Whether, the Complainant/ Delinquent proves that the enquiry conducted is vitiated for non observance of the principles of natural justice?
7 The entire law on this count has been considered by this Court in the matters of MSRTC, Beed v/s Syed Saheblal Syed Nijam, 2014 (III) CLR 547 : 2014(4) Mh.L.J. 687 and the Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd. v/s Vasant Ambadas Deshpande, 2014(1) CLR 878 : 2014(3) Mh.L.J. 339. It is, thus, settled that unless the above said two issues are not framed and unless the Court ::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:21:56 ::: *4* 901.wp.5310.95 passes the part-1 order on the said two issues, the complaint cannot be taken up for final adjudication. In the event, the enquiry is set aside for any reason, the Management would have an opportunity of conducting a de-novo enquiry subject to law as is laid down by the Honourable Supreme Court (five judges Bench) in the matter of KSRTC v/s Lakshmidevamma, 2001 (2) CLR 640.
8 It is apparent that neither the said two issues were cast by the Industrial Court nor did the Industrial Court grant an opportunity to the Petitioner/ MSRTC to conduct a de-novo enquiry. In the same judgment, the Industrial Court declared that the enquiry was vitiated and after branding the findings of the Enquiry Officer as being perverse, set aside the enquiry and allowed the complaint.
9 In the light of the above, this Writ Petition is allowed. The impugned judgment dated 11.10.1994 is quashed and set aside.
Complaint (ULP) No.573/1990 is remitted back to the Industrial Court on the following conditions:-
(a) The Petitioner/ MSRTC shall appear before the Industrial Court on 13.09.2016.
(b) Since the learned Advocate for the Respondent/ Employee submits that he is unable to contact the Respondent, the ::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:21:56 ::: *5* 901.wp.5310.95 notice may be issued on the fresh address as would be supplied through a Purshis by the Petitioner/ MSRTC before the Industrial Court on 13.09.2016.
(c) The Industrial Court shall frame the two issues as recorded above.
(d) While dealing with it's part-1 judgment on the above said two issues, the Industrial Court shall keep in view the law laid down by this Court in the matters of the MSRTC, Beed v/s Syed Saheblal Syed Nijam and the Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd. v/s Vasant Ambadas Deshpande (supra).
(e) After the part-1 judgment is delivered and in the event, the enquiry is set aside for any reason, the Industrial Court shall keep in view the ratio laid down by the Honourable Apex Court in the matter of Lakshmidevamma (supra).
(f) Since the complaint pertains to the year 1990, the Industrial Court shall decide the said complaint as expeditiously as possible and in any case, on or before 28th February, 2017.
10 Rule is made absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
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