Bhatu Kautik Kumbhare vs The Divisional Controller, Dhule
2016 Latest Caselaw 4360 Bom

                                                          WP/2736/2015/Group
                                          1

                  IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                             BENCH AT AURANGABAD




                                                                             
                            WRIT PETITION NO. 2736 OF 2015




                                                     
                                        WITH
                            WRIT PETITION NO. 2737 OF2015
                                        WITH
                            WRIT PETITION NO. 3027 OF 2015




                                                    
     Bhatu Kautik Kumbhare,
     Age 54 years, Occ. Service
     R/o Prabhat Nagar, Deopur Dhule.                          ..Petitioner

     Versus




                                         
     The Divisional Controller,
                             
     Maharashtra State Road Transport
     Corporation, Dhule Division, Dhule.                       ..Respondent

                                       ...
                            
              Advocate for Petitioner : Shri Paranjape Prakash S.
          Advocate for Respondent : Shri Jain Rakesh h/f Shri Bagul D.S.
                                       ...
      

                            CORAM : RAVINDRA V. GHUGE, J.

Dated: August 02, 2016 ...

ORAL JUDGMENT:-

1. Heard learned Advocates for the respective parties.

2. Rule.

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

petitions are taken up for final disposal.

4. Considering the order that I intend to pass, I am not

WP/2736/2015/Group

required to advert to the entire submissions of the learned

Advocates for the respective parties. However, while remanding

the matters to the Industrial Court, I intend to ensure that the

issue which needs to be dealt with by the Industrial Court shall be

specifically set out in this order.

5. In all these three matters, issue of three different

accidents, committed by the petitioner / Driver, while driving the

MSRTC Bus, are at issue. In each of these three accidents, death

of one person, has occurred, meaning thereby, that three persons

have died. In each of these matters, the petitioner has been

awarded a punishment of stoppage of increments for limited

periods, mentioned in the orders which have been challenged by

the petitioner in independent three ULP Complaints before the

Industrial Court.

6. The petitioner had questioned the fairness of the enquiry

and the findings of the Enquiry Officer. In each of these matters,

the following two issues were not specifically framed:-

(A) Whether the complainant proves that the enquiry is vitiated in account of non-observance of the principles of natural justice?

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(B) Whether the complainant proves that the findings of

the Enquiry Officer are perverse?

7. Despite the above, it appears from the impugned judgment

that the litigating sides have addressed the Industrial Court on the

issue of perversity in the findings of the Enquiry Officer.

Considering their submissions, the Industrial Court has come to a

conclusion that the evidence on record before the Enquiry Officer

support his conclusions and therefore, the findings arrived at can

be said to be based on the oral and documentary evidence

available. The contention that the findings are perverse is thus,

rejected in all these three matters, by the Industrial Court.

8. From the discussion in the impugned judgment, by which all

these three complaints filed by the petitioner have been dismissed

by the Industrial Court, I do find that the evidence before the

Enquiry Officer was considered by the Industrial Court and after

concluding that the findings are supported by the available

material, the Industrial Court has rightly held that the Enquiry

Officer's findings cannot be termed as being perverse. The

challenge to this extent thus stands rejected in this petition and

shall not be reopened after the three complaints are remanded to

the Industrial Court.

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9. In so far as the fairness of the enquiry is concerned, there is

no discussion in the impugned judgments. Though it cannot be

overlooked that neither of the litigating sides have taken the

efforts to request the Industrial Court to frame the issue with

regard to the fairness of the enquiry, the duty cast on the

Industrial Court in framing a proper issue, has not been performed

and which cannot be ignored. The Industrial Court was obliged to

frame the proper issues, in view of the law laid down by this Court

in the matter of Permanent Magnets Vs. Vinod Vishnu Wani and

others [2002 (93) FLR, 32].

10. As such, since the contention of the petitioner that the

challenge to the fairness of the enquiry has not been dealt with by

the Industrial Court, I am constrained to remand the matter to the

Industrial Court for framing an additional issue as under:-

" Whether the complainant proves that the enquiry is vitiated for non-observance of the principles of natural justice?"

11. In the light of the law laid down by this Court in the case of

Maharashtra State Roadways Transport Corporation Vs. Syed

Saheblal Syed Nijam [2014 III CLR 547 = 2014 (4) Mah.L.J.687] and

Maharashtra State Co-operative Cotton Growers Marketing

Federation Ltd. & another Vs. Vasant Ambadas Deshpande [2014

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MLJ 339 : 2014 I CLR 878], the Industrial Court shall allow the

litigating sides to address the Court only on the basis of the R & P

of the domestic enquiry and no further evidence will be permitted

to the adduced.

12. If the above issue is answered in the negative, the parties

will also address the Industrial Court as to whether the punishment

awarded is shockingly disproportionate to the gravity and

seriousness of the misconduct. Needless to state, the past service

record of the petitioner will also be considered since a blemished

service record amounts to an aggravating factor and would,

therefore, aggravate the seriousness and the gravity of the

misconduct proved against the petitioner in the enquiry.

13. In the light of the above, these petitions are partly allowed

only to the extent of the directions set out in the above paragraph

Nos. 10, 11 and 12. The impugned judgments of the Industrial

Court are set aside only for the purpose of enabling the Industrial

Court to consider the above issues. The Complaints (ULP) Nos. 86

of 2012, 14 of 2013 and 13 of 2013 are remitted back to the

Industrial Court only for the above purpose. Needless to state, the

issue of perversity in the findings of the Enquiry Officer having

been answered and this Court having rejected the challenge to

that extent, stands closed.

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14. The litigating sides shall appear before the Industrial Court

on 20.8.2016 and formal notices need not be issued.

15. Rule is made partly absolute accordingly.

( RAVINDRA V. GHUGE, J. )

...

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