Bombay High Court
The Divisional Controller, ... vs Abdul Karim Saifansab Javalge on 2 September, 2015
Bench: R.V. Ghuge
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3527 OF 2012
THE DIVISIONAL CONTROLLER,
Maharashtra State Road Transport
Corporation, Osmanabad,
Tq. & District Osmanabad.
...PETITIONER
-VERSUS-
ABDUL KARIM SAIFANSAB JAVALGE,
Age : 54 years, Occ : Nil,
R/o At Post Murum, Tq.Omarga,
District Osmanabad.
...RESPONDENT
...
Advocate for Petitioner : Shri Bagul D.S.
Advocate for Respondents : Shri V.D.Gunale h/f Shri R G Shirsath.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 02nd September, 2015
Oral Judgment:
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 I have heard Shri Bagul, learned Advocate for the Petitioner/
MSRTC and Shri Gunale, learned Advocate for the Respondent,
extensively.
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3 The following two points emerge for determination in this
petition:-
(i) If the Industrial Court in it's revisional powers under Section
44 of the MRTU & PULP Act, 1971 overturns the findings of
the Labour Court and concludes that the findings of the
Enquiry Officer are perverse, thereby, vitiating the entire
enquiry, then, whether, it can decide the whole issue and
grant reinstatement, without remanding the matter back to
the Labour Court for enabling the Employer to conduct a de-
novo enquiry in the light of the ratio laid down by the Apex
Court (five judges) in the matter of KSRTC v/s
Lakshmidevamma reported in 2001 (2) CLR 640?
(ii) Whether, the Industrial Court, within it's revisional
jurisdiction under Section 44 of the MRTU & PULP Act, 1971,
can set aside the order of dismissal which was passed prior to
the institution of the revision petition and after the Labour
Court dismissed the complaint filed for challenging the show
cause notice?
4 The undisputed facts emerging from the record are as under:-
(a) The Respondent/ Employee joined the Petitioner/ MSRTC as
a Driver in 1993.
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(b) A complaint was received by the Petitioner/ MSRTC in 1998
wherein it was pointed out that several drivers (including the
Respondent herein) had obtained employment on the basis of
false and forged documents.
(c) A preliminary enquiry was conducted by the Petitioner/
MSRTC.
(d) The preliminary enquiry report dated 30.04.1998 indicates
that the Respondent had not acquired education in a
recognized school and had claimed to have passed his 08 th
standard in a school which was imparting education only up
to the 04th standard.
(e) By communication dated 29.12.1999, the Education Officer
(Primary), Zilla Parishad, Latur informed that the school,
namely, Shri Dayanand Balvikas Mandir School, Killari,
District Latur in which the Respondent claimed to have taken
education, was a private school/ tuition class and the same
was not recognized and was not an authorized school.
(f) The Petitioner initiated a departmental enquiry against the
Respondent/ Employee.
(g) Upon conclusion of the enquiry, the second show cause notice
dated 18.03.2000 was issued to the Respondent/ Employee
proposing the punishment of dismissal.
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(h) The Respondent/ Employee filed Complaint (ULP)
No.34/2000 before the Labour Court which was allowed on
06.07.2002.
(i) The Petitioner/ MSRTC preferred Revision (ULP)
No.203/2004 (old No.110/2002) before the Industrial Court,
which was decided on 17.02.2007 resulting in setting aside
the judgment of the Labour Court and remanding back the
complaint for adjudication afresh.
(j) By the judgment and order dated 09.07.2010, the Labour
Court dismissed the complaint by holding that the enquiry
was conducted in a fair and proper manner and the action of
the Petitioner/ MSRTC was justified.
(k) On the next day, the Respondent was dismissed from service
by the order dated 10.07.2010.
(l) The Respondent/ Employee preferred Revision (ULP)
No.32/2010.
(m) The said revision was instituted on 20.09.2010, which is two
months and 10 days after the dismissal of the Respondent.
(n) By the impugned judgment and order dated 08.11.2011, the
Industrial Court allowed the Revision, set aside the judgment
of the Labour Court concluding that the charges are not
proved against the Respondent/ Employee and further set
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aside the order of dismissal dated 10.07.2010 and directed
reinstatement with continuity and full back-wages.
5 It is trite law that the Industrial Court, under Section 32 of
the MRTU & PULP Act, 1971, while dealing with an incidental issue,
cannot expand it's jurisdiction beyond what was originally vested in it by
law. (See National General Mazdoor Union v/s M/s Nitin Casting Limited,
1990 (II) CLR 641 : 1991(1) BCR 8).
6 The Industrial Court has concluded that since the show cause
notice on punishment was issued to the Respondent, the Industrial Court
can deal with the order of dismissal which has been passed after the
complaint was dismissed by the Labour Court.
7 The entire journey of litigation in between these parties has
been with reference to the second show cause notice dated 18.03.2000. It
cannot be overlooked that the order of dismissal dated 10.07.2010 has
been delivered after the Labour Court dismissed Complaint (ULP)
No.34/2000 vide judgment dated 09.07.2010. The Petitioner was,
therefore, at liberty to proceed pursuant to the second show cause notice.
8 The revision before the Industrial Court was filed on
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20.09.2010, which is two months and 10 days post the dismissal of the
Respondent. The Respondent was not precluded from challenging the
dismissal order by filing a separate complaint since the earlier complaint
was already dismissed by the Labour Court.
9 Sections 4 and 5 under Chapter-II of the MRTU & PULP Act,
1971 define the Industrial Court and it's duties. Section 5 reads as under:-
"5. Duties of Industrial Court.
It shall be the duty of the Industrial Court:-
(a) to decide an application by a union for grant of
recognition to it;
(b) to decide an application by a union for grant of
recognition to it in place of a union which has already
been recognised under this Act;
(c) to decide an application from another union or an
employer for withdrawal or cancellation of the
recognition of a union;
(d) to decide complaints relating to unfair labour
practices except unfair labour practices falling in Item
1 of Schedule IV;
(e) to assign work, and to give directions, to the
Investigating Officers in matters of verification of
membership of unions, and investigation of
complaints relating to unfair labour practices;
(f) to decide references made to it on any point of law
either by any civil or criminal court and
(g) to decide appeals under Section 42."
10 Sections 6 and 7 define the Labour Court and provide for
duties of the Labour Court. Section 7 reads as under:-
"7. Duties of Labour Court:-
It shall be the duty of the Labour Court to decide
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complaints relating to unfair labour practices
described in Item 1 of Schedule IV and to try offences
punishable under this Act."
11 In the light of the above, the order of termination or dismissal
would have fallen within the jurisdiction of the Labour Court and not the
Industrial Court. In my view, Section 32 would not enlarge the scope of
jurisdiction beyond the extent to which it has been conferred upon the
Industrial Court under the provisions of the Act. Merely because the
Industrial Court was dealing with the second show cause notice which was
the penultimate stage in the disciplinary proceedings, would not create
jurisdiction in the Industrial Court to deal with the order of dismissal
which is by way of imposition of penalty upon the Respondent/ Employee.
12 In M/s Nitin Casting Limited (supra), this Court has already
concluded that the Industrial Court while dealing with the connected
issues under Section 32, would not be able to decide the issues which
were inherently not within it's jurisdiction. Relevant observations of this
Court in paragraph 9 are as under:-
"9. From the language of section 32, it is clear to me that
this does not enlarge the scope or the extent of the
jurisdiction of the Industrial Court beyond what is
conferred upon it by the other provisions of the PULP
Act. If under the other provisions of the PULP Act the
Industrial Court has no jurisdiction to deal with the
unfair labour practices mentioned in Schedule IV of
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the Act, section 32 does not give such power to the
Industrial Court. What is contemplated in section 32
is that the Industrial Court or, for that matter, even
the Labour Court has power to decide all matters
arising out of an application or a complaint referred
to it for decision under the provisions of the PULP Act.
The complaint or the application which is referred to
the concerned Court must be made to the proper
Court. While deciding such a complaint or an
application if certain matters or issues or questions
arise, the concerned Court has been invested with the
power to decide all those matters, issues or questions
so arising. The Court is not debarred from dealing
with such matters, issues or questions arising merely
on the ground that no specific provision has been
made elsewhere conferring power upon the concerned
Court to deal with such incidental questions. This is
the meaning of section 32 of the PULP Act. It does not
enlarge the jurisdiction of either the Industrial Court
or of the Labour Court which is otherwise not being
conferred upon it by the other provisions of the PULP
Act."
13 The crystallized position in law has been considered by this
Court in the case of Maharashtra State Cooperative Cotton Growers
Marketing Federation Ltd. v/s Vasant Ambadas Deshpande, 2014(1) CLR
878 : 2014(3) Mh.L.J. 339 and in the case of MSRTC, Beed v/s Syed
Saheblal Syed Nijam, 2014 (III) CLR 547 : 2014(4) Mh.L.J. 687, in so far
as the manner in which the first two issues are to be dealt with by the
Labour or Industrial Court in a complaint.
14 As such, in my view, the Industrial Court should have
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restricted it's judgment only to the aspect of whether, the judgment of the
Labour Court dated 09.07.2010 was perverse or not. When it concluded
that the judgment was perverse and set aside the findings of the Enquiry
Officer, the Industrial Court was left with no jurisdiction to grant
consequential reliefs to the Respondent and surely not to the extent of
granting reinstatement in service by setting aside the order of dismissal
which was not assailed and which could not have been assailed in the
revision proceedings. It should have remanded the complaint to the
Labour Court for enabling the Petitioner/ Management to conduct a de-
novo enquiry.
15 Hence, I conclude that the Industrial Court could not have
granted relief of reinstatement, continuity of service and full back-wages
to the Respondent, while holding that the findings of the Enquiry Officer
are perverse. So also, the Industrial Court could not have assumed
jurisdiction under Item 1 of Schedule IV of the MRTU & PULP Act, 1971
for setting aside the order of dismissal issued to the Respondent. When
this was not permissible even in a complaint, the Industrial Court could
have never done so in a revision petition under Section 44.
16 Shri Gunale, learned Advocate, at this juncture, submits that
as the earlier complaint has already been dismissed and the judgment of
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the Industrial Court is now set aside by this Court, liberty be granted to
the Respondent to file a fresh complaint for challenging the order of
dismissal dated 10.07.2010 and the time spent in litigation post dismissal
be considered as a good ground for condonation of delay.
17 The Petitioner/ Corporation has no objection in the light of
the law that the Respondent cannot be rendered remedy-less and can
challenge the dismissal before a competent court.
18 In the light of the above, the impugned judgment of the
Industrial Court dated 08.11.2011 is quashed and set aside. Revision
(ULP) No.32/2010 stands disposed of. The judgment of the Labour Court
dated 09.07.2010 shall be deemed to be in relation to the second show
cause notice dated 18.03.2000.
19 In the event, the Respondent/ Employee files a complaint
before the Labour Court for challenging the order of dismissal dated
10.07.2010 within a period of THIRTY DAYS from today, time spent by the
Respondent/ Employee before the Industrial Court from 20.09.2010 till
the decision in this petition, shall be considered as a good ground for
condonation of delay on an application which the Respondent shall file
along with the complaint.
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20 In the light of the above, this Writ Petition is partly allowed
and Rule is made absolute in the aforesaid terms.
(RAVINDRA V. GHUGE, J.)
