Dr Babasaheb Ambedkar Sahakari ... vs Prasad Abhimanyu Pangare
2016 Latest Caselaw 4595 Bom

                                                                      WP/3290/2016
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                              WRIT PETITION NO. 3290 OF 2016




                                                      
     Dr. Babasaheb Ambedkar Sahakari
     Sakhar Karkhana Limited, Kesegaon,
     Tq. and Dist. Osmanabad, through
     it's Managing Director.                           ..Petitioner




                                                     
     Versus

     Prasad Abhimanyu Pangare,
     Age 40 years, Occ. Service,




                                          
     R/o Upala (Makadache),
     Tq. and Dist. Osmanabad. ig                 ..Respondent

                                          ...
                      Advocate for Petitioner : Shri Salunke M.V.
                                h/f Shri Salunke V.D.
                            
                      Advocate for Respondent : Shri Bhosale S.B.
                                          ...

                              CORAM : RAVINDRA V. GHUGE, J.

Dated: August 10, 2016 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

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

is taken up for final disposal.

4. The petitioner is aggrieved by the order dated 13.3.2014,

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delivered by the Industrial Court, Latur by which, Revision (ULP)

No.30 of 2012, filed by the petitioner was dismissed. The petitioner

is also aggrieved by the judgment dated 4.5.2012, delivered by the

Labour Court, by which, Complaint (ULP) No.227 of 2004 has been

allowed and the respondent is granted reinstatement with continuity

and full backwages and the order dated 5.8.2011, vide amended

prayer clause C-1.

5.

I have considered the submissions of the learned Advocates.

6. The petitioner had issued an order of termination, dated

10.12.2003, made effective from 10.9.2003. The respondent

preferred Complaint (ULP) No.11 of 2004 on the sole ground that the

termination is effected retrospectively and principles of natural

justice were violated. He claimed to be working from 1.1.2001 till

the date of the order of termination dated 10.12.2003. By the

interim order dated 15.10.2004, the Labour Court allowed

application Exhibit U-2 and after considering that the order of

termination was retrospective from 10.9.2003. The petitioner

therefore, reinstated the respondent.

7. On the allegation of unauthorized absenteeism, which is

vehemently denied by the respondent before this Court, the

petitioner claims to have conducted a domestic enquiry and after the

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respondent was found guilty of the charge of unauthorized

absenteeism, he was again dismissed from service on 10.12.2006.

8. It is an admitted position that the respondent had not raised

any issue with regard to the domestic enquiry and the subsequent

dismissal in Complaint (ULP) No.227 of 2004. In short, the Complaint

was not amended by the respondent. It is stated by Shri Bhosale

learned Advocate for the respondent that the respondent is not

aware about any enquiry and his subsequent dismissal dated

10.12.2006.

9. What surprises this Court is that without there being any

pleadings in the complaint and without there being any challenge to

the subsequent purported enquiry, the Labour Court, Latur framed

preliminary issues as to whether the enquiry was conducted in a fair

manner and whether the findings of the enquiry officer are perverse.

Since the R & P of the enquiry was not before the Court, it concluded

by order dated 5.8.2011, that the enquiry is defective and the

findings are perverse. Thereafter, by judgment dated 4.5.2012, the

Complaint was allowed and the respondent was granted

reinstatement with continuity and full backwages.

10. It is equally surprising that the petitioner challenged the

judgment dated 4.5.2012, before the Industrial Court in Revision

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(ULP) No.30 of 2012. However, the Part I judgment of the Labour

Court on the enquiry dated 5.8.2011 was not challenged before the

Industrial Court.

11. Shri Salunke, learned Advocate clarifies that in amended

prayer clause C-1, though the Part I judgment is challenged,

inadvertently the date 5.8.2011 is not written and instead the date

4.5.2012 has been mentioned. He, therefore, seeks leave to correct

the date in prayer clause C-1. Leave is granted.

12. Shri Bhosale submits that the Industrial Court has permitted

the respondent to challenge his termination dated 10.12.2006 as well

as the enquiry before the appropriate forum in the event the

respondent so desires.

13. In these peculiar and somewhat unusual facts of the case,

though Complaint (ULP) No.227 of 2004 has been rightly allowed by

the Labour Court as well as by the Industrial Court, the respondent,

deserves to be granted the liberty to challenge his purported

subsequent dismissal dated 10.12.2006, which is said to be pursuant

to a purported enquiry conducted by the petitioner, which is not

within the knowledge of the respondent.

14. As such, this petition is partly allowed only to the extent of

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observing that, the impugned order dated 5.8.2011, which was

totally uncalled for, since the issue of enquiry and subsequent

dismissal was not a part of Complaint (ULP) No.227 of 2004, stands

quashed and set aside. Consequentially, the order of reinstatement

by the Labour Court, dated 4.5.2012, would become inoperative

since the respondent / employee is said to have been dismissed

w.e.f. 10.12.2006, pursuant to a purported enquiry. The impugned

judgment dated 13.3.2014 of the Industrial Court also deserves to be

quashed and set aside. However, he will be entitled for wages from

10.9.2003 upto his reinstatement in 2004/2005.

15. Notwithstanding the above, since I find it quite peculiar that

the petitioner claims to have conducted a domestic enquiry after

reinstating the respondent in 2004 and the respondent claims to have

not received any notice of the enquiry or even the dismissal dated

10.12.2006, he would be at liberty to challenge his alleged dismissal

dated 10.12.2006, as well as the enquiry, if any, that has been

conducted by the petitioner.

16. The respondent can, therefore, prefer a proceeding under the

Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 1971 or the Industrial Disputes Act, 1947 for

challenging his purported dismissal dated 10.12.2006 as well as the

enquiry and the time spent in litigation before the Labour Court, the

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Industrial Court as well as this Court, shall be a good ground for

condonation of delay in the event the respondent prefers such a

complaint within six weeks from today. Needless to state, his claim

for all benefits, inclusive of wages from his alleged absence from

2005, shall be subject to the result of his proposed case.

17. Rule is made partly absolute, accordingly.

                              ig         ...
                                               ( RAVINDRA V. GHUGE, J. )
                            
     akl/d