Bombay High Court

Jalindar Ganpat Lawate vs Secretary on 28 November, 2013

Bench: R.V. Ghuge

                                                                     WP/6396/2012+
                                         1

                 IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                            BENCH AT AURANGABAD




                                                                         
                         WRIT PETITION NO.6396 OF 2012




                                                 
     Jalindar Ganpat Lawate,
     Age 45 Years, Occ. Nil,
     R/o Chinchpur, Taluka
     Sangamner, Dist.Ahmednagar.                  ..Petitioner




                                                
     VERSUS

     Pravara Medical Trust,
     Loni, At Post Loni,




                                     
     Taluka Rahata, District
     Ahmednagar, through its
                      
     Secretary.                                   ..Respondent

                                     WITH
                         WRIT PETITION NO.7167 OF 2012
                     
     Isaq Ahmed Shaikh
     Age 45 Years, Occ. Nil,
     R/o Durgapur, Post Hasnapur,
      

     Taluka Rahata,
     Dist.Ahmednagar                              ..Petitioner
   



     VERSUS

     Pravara Medical Trust,
     Loni, At Post Loni,





     Taluka Rahata, District
     Ahmednagar, through its
     Secretary.                                   ..Respondent

                                       ...
                 Shri P.V.Barde, Advocate for the petitioners and





                   Shri V.D.Hon, Advocate for the respondents.
                                       ...

                               CORAM :       RAVINDRA V. GHUGE, J.

                               Dated :       November 28, 2013


     JUDGMENT:-

1. Heard learned Advocates for the respective parties.

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2. Rule. By consent, Rule is made returnable forthwith and the

petitions are heard finally. Both the petitions are taken up together for

decision.

3. The question raised before me, in both the petitions is, as to

"whether the Industrial Court can refuse to register a Revision (ULP) filed

under Section 44 of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971?"

ABOUT WRIT PETITION NO.6396 OF 2012

4. The petitioner in this petition is taking exception to the impugned

order dated 7.7.2012, passed by the learned Industrial Court, Ahmednagar

in Rejected Application No.6 of 2012.

5. The grievance of the petitioner is that the Revision Petition filed

before the Industrial Court, Ahmednagar is refused registration by the

Industrial Court on the ground that the impugned order in the Revision

Petition is an interlocutory order passed by the Labour Court. The

Revision Petition seeks to challenge such an order in relation to the

fairness of the enquiry and the findings of the Enquiry Officer, which can

be termed as Part-I order.

6. In Complaint (ULP) No.110 of 2001, the petitioner had challenged

his dismissal, awarded to him by the respondent - employer by way of

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punishment. Domestic enquiry was held in to the charges levelled upon

the petitioner and he was dismissed from service in accordance with law.

After the pleadings of the parties were completed, the Labour Court

framed preliminary issue as to whether the domestic enquiry conducted

against the petitioner is fair and proper.

7. After hearing the parties, the Labour Court came to a conclusion on

27/06/2007 that the charge sheet is vague and therefore, the enquiry

stands vitiated.

8. This order dated 27.6.2007 was challenged before the Industrial

Court by the employer in Revision (ULP) No.61 of 2007. Said Revision

Petition was allowed by the present Industrial Court, which has

subsequently refused to register the Revision filed by the petitioner. The

present learned Member of the Industrial Court entertained the revision

and passed the following order dated 07.10.2010 :-

"ORDER

1. Revision is allowed.

2. The order passed by the learned Labour Judge on 27.6.2007 in Comp. ULP No.110 of 2001 on preliminary issue is hereby quashed and set aside. The enquiry conducted against the opponent is hereby held to be fair, proper and in accordance with the principles of natural justice.

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3. The complaint to proceed further on merits.

4. No order as to costs.

5. The R & P be sent to the Labour Court forthwith.

            Ahmednagar                              (P.S.Shinde)
            Date: 7.10.2010                           Member
                                          Industrial Court, Ahmednagar"




                                         
     9.

The petitioner had challenged the said judgment dated 7.10.2010,

passed by the Industrial Court, in Writ Petition No.341 of 2011. The

observations of the Industrial Court in the said judgment were set aside.

10. The petitioner submits that the matter was then remanded back to

the Labour Court at Ahmednagar for conducting a de novo enquiry. The

petitioner moved an application for discarding the evidence filed by the

respondent. The Labour Court rejected the said application, concluding

that when the enquiry is held to be vitiated or findings are perverse, the

employer has to prove the charges before the Court. As such, the

application filed by the petitioner dated 22.3.2012 was rejected by the

Labour Court, vide it order dated 13.6.2012.

11. The petitioner had challenged the said order dated 13.6.2012

before the Industrial Court, Ahmednagar by filing Revision (ULP) Petition,

which was termed as Rejected Application No.6 of 2012. However, the

Industrial Court, vide its order dated 7.7.2012, concluded that the

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Revision is not entertainable against an interlocutory order and held as

under:-

"ORDER

Perused the application along with the Orders passed

and produced along with list.

Considering the fact that, the learned Judge, Labour

Court, held the enquiry to be not fair and proper, considering the settled legal position and the observation of

Hon'ble High Court in Writ Petition No.341 of 2011 in my opinion since the enquiry is vitiated, duty is cast upon the

employer to prove the charges before the Court. The present applicant has got liberty to cross examine the witnesses to establish the vagueness of the changes for that

matter neither the Labour Court nor this Court can restrain the employer from adducing evidence for proving the

misconduct. As well the order under challenge is a Order of interlocutory nature. In the circumstances, the Revision is not entertainable hence, filed.

Sd/-

07.07.2012"

ABOUT WRIT PETITION NO.7167 OF 2012

12. The petitioner in this petition, upon being dismissed from service on

account of two mis-conducts, filed Complaint (ULP) No.33 of 2005 before

the Labour Court at Ahmednagar. The respondent in this petition is the

same establishment as like in Writ Petition No.6396 of 2012.

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13. In the said proceedings, Labour Court framed preliminary issues and

by two different orders dated 20.8.2010 and 29.3.2013 held that the

enquiry conducted against the petitioner is fair and proper and there are

no perversities in the findings of the Enquiry Officer.

14. The petitioner, being aggrieved by the said findings filed Revision

(ULP) before the Industrial Court, Ahmednagar, which was noted as

Rejected Application No.1 of 2012. The same Industrial Court refused

registration and held that the revision is not maintainable by passing the

following order on 18.4.2012:-

" ORDER

This is a revision against the preliminary point i.e.

perversity or otherwise of the findings. Hence, considering

the over all view of Hon'ble Apex Court, this revision is not maintainable The applicant in the pleading no where highlighted any point on the basis of which it can be said that

the Revision deserves admission. No perversity is highlighted. Hence, the revision is not maintainable therefore filed.

Sd/-

18.4.2012."

15. In the light of the above stated facts, the learned Advocate for

petitioners in both these petitions has posed an issue for consideration of

this Court, as referred above in paragraph 3 of this judgment.

16. The petitioners have placed reliance upon few judgments / orders

passed by this Court, which are as under:-

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(a) In the case of Maharashtra State Road Transport Corpn. Vs. Abdul

Usman Meboob Shaikh [2003 (3) ALL MR 283], it was held in paragraph No.

3 as under:-

".....It is seen from the impugned judgment that the Tribunal has not considered the various points raised on behalf of the petitioner, on the other hand it has merely recorded its

approval to the finding reached by the Labour Court generally. This is surely not a satisfactory way of deciding

the revision application by the Industrial Court. What is expected of the Industrial Court, even while exercising its

Revisional Jurisdiction, is to record the rival contentions and adjudicate the same on merits by recording a clear finding with regard to each contention raised by the parties, in my

view, the Industrial Court has not properly exercised its jurisdiction, for having failed to adjudicate the rival

contentions on merits in detail. This Court, therefore, has no option but to remand the matter to the Industrial Court to re-examine the same in accordance with law....."

(b) In the case of Yuvraj Kalu Patil Vs. Dhule and Nandurbar Zilla

Parishad Karmachari Sahakari Patpedhi [2012 II CLR 366] this Court has

concluded that a revision application ought not to have been dismissed on

the ground that remedy is available to the complainant to raise a

challenge to the preliminary issue at an appellate stage.

This judgment of this Court was challenged in LPA before the

Division Bench of this Court. Vide order dated 3.7.2012 the view taken by

the learned Single Judge was upheld and the LPA was dismissed.

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Ahmednagar Zilla Dekh-Rekh Sahakari Sanstha) decided on 27.7.2012,

learned Single Judge of this Court has considered the grievance of the

petitioner that the Industrial Court had refused to register the Revision

Petition since the order of the Labour Court upholding the enquiry to be

fair and proper and findings of the Enquiry Officer not being perverse

were challenged in the Revision Petition. Paragraph No.4 of the said

order reads as under:-

"4. In view of the reasons recorded above, the order passed by the Member, Industrial Court Ahmednagar on 2.5.2012 is un-sustainable and deserves to be quashed and

set aside. Revisional Court shall register the revision application and proceed to decide the same in accordance

with the provisions of law. Rule is accordingly made absolute. There shall be no order as to costs."

The writ of this Court was issued on 30/10/2012 to the said Industrial

Court.

(d) In Writ Petition No.4693 of 2012 (Mohan Eknath Upasani Vs. Shri

Saibaba Sansthan) decided on 21.8.2012, learned Single Judge of this

Court noted that the same Industrial Court had declined to register the

Revision Petition filed by the petitioner. This Court has observed in

paragraph Nos.5,6 and 7 as under:-

" 5. With the assistance of learned counsel I have gone

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through the judgments. The Division Bench of this Court and

the learned Single Judge of this Court in the judgments referred supra have consistently held that the revision

against the preliminary issue dealing with the legality and fairness of an enquiry is maintainable.

6. In view of the judgments referred supra, it will have to be held that the revision is maintainable.

7. In the light of above, the impugned judgment and order passed by the Industrial Court holding that the revision

is not maintainable and not registering the revision is quashed and set aside. The revision filed by the petitioner

challenging the order dated 12.04.2012 passed by the 02nd Labour Court, Ahmednagar in Complaint ULP No. 30/2009 be registered, if it otherwise complies with all other legal

requirements."

The writ of this Court was issued on 21.11.2012 to the said Industrial

Court.

(e) In Writ Petition No. 6080 of 2012 (Shri Sai Arihant Nagari Vs.

Lalitkumar Deepchand Parekh) decided on 26.9.2012, once again the issue

of the same Industrial Court concluding that the Revision is not

maintainable was considered and this Court has observed in paragraph No.

6 as under:-

"6. In Writ Petition No.4693/2012 vide judgment dated 21.8.2012, I have already held that Revision filed against the decision on a preliminary issue regarding the validity and the fairness of the inquiry is maintainable if the same is under

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the provisions of MRTU and PULP Act."

The writ of this Court was issued on 15/10/2012 to the said Industrial

Court.

(f) In Writ Petition No.4950 of 2012 (Bhausaheb Tulshiram Shinde and

others Vs. The President, Administrative Committee) decided on

13.9.2012, challenge was to the dismissal of Revision Petition being

untenable and this Court has observed in paragraph No.4 as under:-

"4.

This Court in Writ Petition No. 4693 of 2012 vide Judgment dated 21/08/2012 relying on the Judgment

delivered by the Division Bench and the learned Single Judge of this Court in the case of Suryabhan Maruti Avhad V/s Mahindra and Mahindra Ltd., so also The Dhule and

Nandurbar Zilla Parishad V/s Yuvraj Kalu Patil delivered in

L.P.A. No. 109 of 2012 and the Judgment of the learned Single Judge of this Court in the case of Maharashtra State Road Transport Corporation V/s Abdul Usman Meboob Shaikh

reported in 2000 ( 3 ) All M.R. 283 has held that the Revision filed by party being aggrieved by the decision against the preliminary issue about the fairness of the enquiry under the M.R.T.U. and P.U.L.P. Act is maintainable."

The writ of this Court was issued on 06.12.2012 to the said Industrial

Court.

(g) In Writ Petition No. 5041 of 2012 and another (Garware Marine

Industries Ltd. Vs. Prakash Chandrashekhar Atitkar) decided on 6.9.2012,

challenge to the rejection of two Revision Petitions on the ground of

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maintainability was considered and this Court has observed in paragraph

No.5 as under:-

"5. The Division Bench of this Court in a case of Suryabhan Maruti Avhad Vs. Mahindra and Mahindra Ltd., so also in a

case of The Dhule and Nandurbar Zilla Parishad Vs. Yuvraj Kalu Patil delivered in L. P. A. No. 109/2012 and the learned Single Judge of this Court in a case of Maharashtra State

Transport Corporation Vs. Abdul Usman Meboob Shaikh reported in 2000(3) All M. R. 283 had considered the said

aspect and has held that in case of ULP if an order is passed on preliminary issue dealing with the fairness of enquiry,

then the revision is maintainable."

The writ of this Court was issued on 26.09.2012 to the said Industrial

Court.

17. Shri Barde, learned Advocate for the petitioners makes a

serious grievance about the said Industrial Court, Ahmednagar, either

refusing to register the Revision Petition or taking up the Revision Petition

for hearing on maintainability and rejecting it without considering it on its

merits and without issuing notice to the respondents.

18. Section 44 of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (for the sake of brevity,

hereinafter referred to as "the Act of 1971") reads as under:-

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"44. INDUSTRIAL COURT TO EXERCISE

SUPERINTENDENCE OVER LABOUR COURTS. -

The Industrial Court shall have superintendence over

all Labour Courts and may, -

                   (a)    call for returns;




                                                    
                   (b)    make and issue general rules and prescribe forms for

regulating the practice and procedure of such Courts in

matters not expressly provided for by this Act and in particular, for securing the expeditious disposal of cases;

(c) prescribe form in which books, entries and accounts

shall be kept by officers of any such Courts; and

(d) settle a table of fees payable for process issued by a

Labour Court or the Industrial Court."

19. It is trite law that any order passed by the Labour Court under

Chapters VI and VII of the Act of 1971 can be challenged before the

Industrial Court under Section 44 of the Act of 1971. There is no provision

as regards the jurisdiction vested in the Industrial Court to consider

whether a revision petition can be admitted or not? There is no scope for

the Industrial Court to refuse to register a Revision Petition as long as it is

filed in accordance with the scheme provided under the Act of 1971 and

so far as it challenges an order passed by the Labour Court dealing with a

complaint under Section 28(1) and an application for interim relief under

Section 30(2) of the Act of 1971.

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20. Learned Advocate for the respondents made a valiant effort to

support and justify the impugned orders in these two petitions. However,

when called upon to point out, as to whether there is any provision under

the Act of 1971 which empowers or unables the industrial Court to resort

to this methodology, he was unable to locate any such provision.

21. I find that several such orders, as like the impugned orders in the

present petitions, passed by the same Industrial Court, Ahmednagar were

challenged before this Court. All such orders challenged have been

quashed and set aside and the matters have been remanded back to the

Industrial Court with a direction to register the said Revision Petitions and

decide them in accordance with law. I am able to draw this conclusion

since many of the orders referred above have been placed before me by

the learned Advocate for the petitioners.

22. So far as the merits of these two petitions are concerned, in the

light of the judgments/orders cited before me supra, the impugned order

dated 7.7.2012 passed in Rejected Application No.6 of 2012 and the

impugned order dated 18.4.2012 passed in Rejected Application No.1 of

2012 are hereby quashed and set aside. Both these petitions are allowed.

23. The Industrial Court is hereby directed:-

(a) To register the two Revision Petitions filed by the petitioners Jalindar Ganpat Lawate and Isaq Ahmed Shaikh.

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(b) To hear and decide both the Revision Petitions in

accordance with law and the scheme of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour

Practices Act, 1971.

(c) To note that this Court has not considered the merits

involved in the two Revision Petitions and has left all points/ contentions open to be considered by the Industrial Court in accordance with law.