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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO.53 OF 2008
IN
WRIT PETITION NO. 6079 OF 2006(D)
The Principal,
B.N. College of Engineering,
Pusad, District Yavatmal. .... APPELLANT
VERSUS
Sultan Khan s/o Hamidullahkhan,
Aged about 34 years,
Resident of Vasant Nagar, Pusad,
District Yavatmal. .... RESPONDENT
______________________________________________________________
Shri D.A. Sonawane, Advocate for the appellant,
Shri B.M. Khan, Advocate for the respondent.
______________________________________________________________
CORAM : B.P. DHARMADHIKARI AND
ROHIT B. DEO, JJ.
DATED : 16-06-2017 ORAL JUDGMENT : (PER : B.P. DHARMADHIKARI, J.)
1. Heard Advocate Shri D.A. Sonawane for the appellant/employer and Advocate Shri B.M. Khan for the ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 00:24:17 ::: 2 lpa53.08 respondent/employee.
2. After hearing respective Advocates, we find that remand of matter back to the Industrial Court is necessary as there is material irregularity in exercise of jurisdiction by that Court, which has vitiated the entire adjudication. Hence, we are not required to delve into details of the controversy or misconduct.
3. The respondent filed U.L.P. Complaint No.522/1996. This complaint was later on registered as U.L.P. Complaint No.533/1999 before the Industrial Court at Yavatmal. From documents made available to this Court, it appears that appellant/employer filed reply to application under Section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 opposing grant of interim relief, however, no formal written statement was filed.
4. The Industrial Court framed following issues and recorded its answer to the same as under :
Issues Answer
1) Does it prove that the respondent ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 00:24:17 ::: 3 lpa53.08 held departmental enquiry against the petitioner ? - Yes
2) Does it prove that the punishment imposed as per order dated 31-05-1996 is disproportionate and against the principles of natural justice ? - No.
3) Does complainant prove that the respondent is indulged in unfair labour practice ? - No.
4) What order and reliefs ? - As per final order.
5. Aggrieved by dismissal of his complaint, employee approached this Court in Writ Petition No.6079/2006. He contended that there was no formal charge-sheet, no proper departmental enquiry and as such punishment was unsustainable. Learned Single Judge after hearing respective Advocates and after perusal of the service conditions found that punishment could not have been inflicted without holding proper departmental enquiry. It appears that Rule 43 of the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non- Teaching Employees) Rules, 1984 has been relied upon for this purpose.
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6. The learned Single Judge, therefore, on finding of fact that the petitioner was not served with charge-sheet and was not given a reasonable fair opportunity of defence, allowed writ petition and made Rule absolute in terms of prayer clauses (b) and (c) in writ petition i.e. the order of punishment dated 01-06-1996 was quashed and set aside.
7. In present letters patent appeal, Advocate Shri Sonawane is relying upon deposition of respondent/employee to urge that respondent/employee accepted receipt of charge-sheet and grant of full opportunity of defence to him in cross-examination.
8. Advocate Shri Khan submits that the learned Single Judge has looked into provisions of law and thereafter arrived at appropriate findings.
9. It is well settled law that in such matters when punishment imposed after departmental enquiry is questioned either before the Labour Court or Industrial Court, the said Court is expected to frame a preliminary issue regarding fairness and validity of departmental enquiry and about perversity or otherwise of the findings of enquiry officer. If the enquiry is found to be vitiated or the findings ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 00:24:17 ::: 5 lpa53.08 are held to be perverse, employer needs to be given opportunity to prove misconduct before the said Court by producing witnesses, if he has reserved that right while filing written statement. Judgment in case of Bharat Forge Company Ltd. vs. A.B. Zodge and another reported at AIR 1996 SC 1556, the Hon'ble Apex Court has pointed out this position.
10. It appears that in present matter before the Industrial Court the proper assistance was not given and hence issue accordingly was not framed and has not been answered. Had the issue been so framed and answered, the controversy looked into by the learned Single Judge of this Court while deciding the writ petition would not have surfaced.
11. In this situation, as we find that the Industrial Court has acted with material irregularity in exercise of jurisdiction available to it and it has vitiated the further consideration of the controversy, we quash and set aside the judgment dated 30-11-2005 delivered by the Industrial Court in U.L.P. Complaint No.533/1999. U.L.P. Complaint No.533/1999 is restored back to the file of Industrial Court, Yavatmal for its appropriate consideration from the stage of framing the issues- ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 00:24:17 :::
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preliminary issue.
12. Needless to mention that in view of this, the judgment delivered by the learned Single Judge on 21-09-2007 in Writ Petition No.6079/2006 does not hold the field. It is also set aside.
13. The parties are directed to appear before the Industrial Court at Yavatmal on 28-07-2017 and to abide by its further directions. The Industrial Court shall attempt to complete further adjudication as per law in next six months.
Letters Patent Appeal is thus partly allowed and disposed of. No costs.
JUDGE JUDGE
adgokar
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