Gangadhar Balmukund Gajbhiye vs Sub-Area Manager, W. C. L. Nagpur ...
2016 Latest Caselaw 4442 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                         
                            NAGPUR BENCH, NAGPUR.




                                                                 
                              WRIT PETITION NO.3424 OF 2015


    Gangadhar Balmukund Gajbhiye
    Age : 62 years, Occ. Unemployed




                                                                
    R/o Jaibhole Nage, Ward No.1, 
    Near Thoman Convent School, 
    Khaparkheda, Tah. Saoner, 
    Dist. Nagpur.                                                   ... Petitioner 




                                                   
    -vs-                              
    1.  Sub-Area Manager,
         W.C.L. Sillewara Sub-Area, 
                                     
         Post : Sillewara, Tah. Saoner, 
         Dist. Nagpur. 

    2.  Presiding Officer,
             

         C.G. I. T. cum-Labour Court, 
         Nagpur.                                                    ... Respondents  
          



    Shri D. A. Sonwane, Advocate for petitioner 
    Respondents served. 





                                                      CORAM  : A.S.CHANDURKAR, J. 

DATE : August 04, 2016

Oral Judgment :

Notice for final disposal of the writ petition has been duly served

on the respondents. On 21/12/2015, 22/01/2016 and 15/06/2016 the

hearing of the writ petition was deferred so as to grant an opportunity to the

respondent No.1 to contest the same. However, there is no appearance on

behalf of the respondent No.1. I have accordingly heard Shri Sonwane, the

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learned counsel for the petitioner by issuing Rule and making the same

returnable forthwith.

2. The petitioner is aggrieved by the award dated 20/04/2012

passed by the learned Presiding Officer, Central Government Industrial

Tribunal, Nagpur. By the said order, the action of the respondent No.1 of

dismissing the petitioner from service has been held to be legal and valid. It

is the case of the petitioner that he was appointed as a labourer at the mines

operated by the respondent No.1 on 04/05/1984. During his course of

employment, he sustained injury due to which he remained absent for about

eleven days. The petitioner's services were regularised on 01/01/1990. The

petitioner in the meanwhile had requested the respondent No.1 to provide

light work. As the same was not done, he approached the Labour

Commissioner but the proceedings were not taken further. Ultimately an

inquiry was held against the petitioner and by order dated 24/01/1994 his

services came to be terminated. The petitioner then gave an approach notice

after which the dispute was referred to the Tribunal for adjudication. The

Tribunal held the inquiry proceedings to be fair and proper by order dated

05/03/2007. Thereafter it passed an award on 20/04/2012 holding the

action of the Management of dismissing the petitioner from services to be

legal and valid. Being aggrieved, the present writ petition has been filed.

3. Shri Sonwane, the learned counsel for the petitioner submitted

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that the inquiry proceedings were conducted without grant of proper

opportunity to the petitioner. The inquiry report submitted by the Inquiry

Officer was not supplied to the petitioner nor was the order of dismissal

dated 24/01/1994 served on him. This order of dismissal was published in a

daily newspaper in English. He therefore submitted that failure to supply the

report of the Inquiry Officer as well as the order of dismissal has resulted in

vitiating the action of dismissal of the petitioner. He placed reliance upon

the judgment of the Honourable Supreme Court in AIR 1998 SC 2722 Union

of India and ors. v. Dinanath Shantaram Karekar and ors. and judgment

of learned Single Judge in 2009 Mh.L.J 294 Luthfuddin s/o Tamizoddin

Shaikh vs. Asiatic Oxygen and Acetyline Company Ltd., Aurangabad in

that regard.

4. I have heard the learned counsel for the petitioner and I have also

perused the records of the case. From the record it can be seen that the

Inquiry Officer submitted his report in which it was held that the charge with

regard to absence from the duty without sanction of leave had been proved.

There is no document on record to indicate service of Inquiry Report on the

petitioner. The order of dismissal was issued by the respondent No.1 on

24/01/1994. The same has been published in daily Hitavada on

20/02/1994.

                  The   Tribunal     in   paragraph   5   of   its   judgment   has   noted   the




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submissions made on behalf of the petitioner, that the inquiry proceedings

were conducted behind the back of the petitioner, no show cause notice was

issued to the petitioner prior to his dismissal from service and that the

Inquiry Report was not supplied to him. It has also noted that it was urged

that the order of dismissal dated 24/01/1994 was also not served on the

petitioner. The reasons assigned by the learned Presiding Officer are in

paragraph 7 of the impugned award. However, there is no consideration

whatsoever of the aforesaid submissions that have been recorded in

paragraph 5 of the award.

5. In Union of India (supra) service of show cause notice has been

held to be necessary by having the same actually served. Publication of show

cause notice in newspaper in those facts has been frowned upon. In

Luthfuddin Sheikh (supra) failure to furnish report of the Inquiry Officer has

been held to be violative of principles of natural justice thereby vitiaing the

final order.

In the light of this legal position and as these submissions were

urged before the Tribunal, it was the duty of the learned Presiding Officer to

have recorded some finding on these aspects. The same would go to the root

of the matter and hence failure to record any finding has resulted in vitiating

the impugned award. On that count, the award is liable to be set aside.

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6. Accordingly, the following order is passed :

The award dated 20/04/2012 in Case No.CGIT/NGP/10/2003

is set aside. The proceedings are remanded to the Central Government

Industrial Tribunal/Labour Court, Nagpur for fresh adjudication in the light

of observations made in this judgment.

The record and proceedings be sent back forthwith to the

Tribunal. As the proceedings pertain to the year 2003, the same shall be

decided expeditiously. The petitioner shall appear before the Tribunal on

29/08/2016.

The writ petition is allowed in aforesaid terms with no order as to

costs.

               
            



                                                                              JUDGE






    Asmita





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                                           -:  C E R T I F I C A T  E  :- 




                                                            

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