The Maharashtra Electricity ... vs Bhagwat Sukhdeo Dhekle
2016 Latest Caselaw 4859 Bom

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO.8088 OF 2016

    Bhagvat Sukdev Dhekale,
    Age-60 years, Occu-Retired,




                                                 
    R/o Plot No.17, Sagar Nagar,
    Old Khedi Road, Jalgaon, 
    Tal. And Dist. Jalgaon                             -        PETITIONER




                                        
    VERSUS

    Competent Authority and Executive Engineer,
                              
    Jalgaon Mandal, Maharashtra State
    Electricity Distribution Company Ltd.,
    Vidyut Bhavan, Old MIDC,
                             
    Ajintha Road, Jalgaon, 
    Dist. Jalgaon.                                     -        RESPONDENT

WITH WRIT PETITION NO.8927 OF 2016

The Maharashtra Electricity Distribution

Company Limited, Through its, Superintending Engineer, MSEDCL, Vidyut Bhawan, Old MIDC, Ajanta Road, Jalgaon,

Tq. and Dist. Jalgaon - PETITIONER

VERSUS

Bhagwat Sukdev Dhekale,

Age-60 years, Occu-Retired, R/o Plot No.17, Sagar Nagar, Old Khedi Road, Jalgaon, Tal. And Dist. Jalgaon - RESPONDENT

Mr.V.A.Pawar, Advocate for the petitioner/employee. Mr.S.M.Godsay, Advocate for the respondent/employer.

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( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 24/08/2016

ORAL JUDGMENT :

1. Rule in both these matters and Rule is made returnable

forthwith by the consent of the parties.

2.

The petitioner in the first petition is the employee and the

respondent is the employer. Considering the submissions of the

employee, this Court had passed an order on 04/08/2016 as under :-

"1 The Petitioners / Employees are aggrieved by the

orders dated 12.04.2016 passed by the Industrial Court below applications Exhibits C-14 in Complaint (ULP) Nos.83/2015 and

06/2014 by which the Industrial Court has permitted the Respondent/ Management to conduct an enquiry for proving the

misconduct alleged to have been committed by the Petitioners.

2 Shri Pawar, learned Advocate for the Petitioners, has strenuously criticized the impugned orders on the ground

that, firstly, the orders dated 02.03.2016 thereby setting aside the summary enquiry under Regulation 90, have not been challenged by the Respondent- Management and secondly, that the Respondent could not have sought permission to conduct an enquiry unless it has reserved its right in the Written Statement to do so.

khs/AUGUST 2016/8088-d

3 Shri Pawar has placed reliance upon the judgment

of the Honourable Supreme Court (five judges Bench) in the matter of Karnataka State Road Transport Corporation vs. Smt.Lakshmidevamma, AIR 2001 SC 2090 : 2001(2) CLR

640. He has also placed reliance on the judgment of the Honourable Supreme Court (three judges Bench) in the matter of

Balwant Rai Saluja vs. AIR India Ltd., 2014 (III) CLR 751.

Notwithstanding the strenuous submissions of Shri Pawar and reliance placed on the above referred reports, the

facts of this case need to be considered as they appear to be peculiar.

5 The Respondent is the Maharashtra State

Electricity Distribution Company Limited, Jalgaon. A summary proceeding under Regulation 90 ("ka" and "kha") of it's Regulations was conducted. It is not disputed that though it is

termed as a summary enquiry, in fact it is neither a summary enquiry, nor a regular departmental enquiry. The Regulation 90 ("ka" and "kha") deals with a summary proceeding undertaken by the said Department. A regular departmental enquiry is

provided under Regulation 88.

6 It is, therefore, apparent that by resorting to a summary proceeding which was preceded by a formal charge- sheet without conducting an enquiry, Regulation 90 was relied upon by the Respondent and after concluding the summary

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proceedings in which the Employees were only heard and no oral and documentary evidence was recorded, the orders of

punishment were passed against these Petitioners- Employees.

7 Sequence of events in these matters assume

significance. In the first case, the charge sheet is dated 26.05.2011 and in the second case, it is 27.01.2011. The order of punishment in the first case is 11.08.2011 and in the second

case it is 20.12.2012.

8 The learned Division Bench of this Court, in the

matter of Sudhakar Shankar Chapke vs. The Maharashtra State Electricity Distribution Company Limited, 2013(1) ALL MR 564, has concluded that Regulation 90 is invalid and the summary

proceedings pursuant to the charge sheet under Regulation 90

are unsustainable.

9 Shri Pawar, therefore, submits that considering that

the Respondent was relying upon the enquiry notwithstanding that it was not a regular enquiry under Regulation 88, but a summary proceeding under Regulation 90, it was required to reserve a right to conduct a de-novo enquiry in view of

Lakshmidevamma judgment (supra). He submits that reliance placed by the Respondent on the judgment of the Honourable Supreme Court in the matter of Divyash Pandit vs. Management N.C.C.B.M., 2005(2) SCC 684 : AIR 2006 SC 92 concluding that the Labour Court can always give an opportunity to the Employer to conduct a de-novo enquiry without reserving a right

khs/AUGUST 2016/8088-d

in the Written Statement, has been wrongly followed by the Industrial Court.

10 Shri Pawar submits that as on date, the Petitioners have not received any notice with regard to any challenge posed

by the Respondent/ Management as against the orders dated 02.03.2016 passed by the Industrial Court by which the summary proceedings have been set aside.

In the light of the above, issue notice to the Respondents. Shri Godse, learned Advocate, appears and

waives service on behalf of the Respondent-Management in both these petitions and prays for a short accommodation.

12 By consent of the parties, stand over to 11.08.2016

as part-heard. The matter to appear in the supplementary board.

13 Considering the above and the fact that the Petitioners have raised an arguable point, until further orders in this matter, the Industrial Court, Jalgaon shall not proceed with Complaint (ULP) Nos.83/2015 and 06/2014."

3. In the second petition, the petitioner/employer is aggrieved by

the order dated 02/03/2016, by which the enquiry conducted by the

employer under Regulation 90 of the MSEDCL Employees Service

Regulations, 2005 has been set aside only on the ground that the

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enquiry stands vitiated since this Court has struck down Regulation

90.

4. Having considered the strenuous submissions of the learned

Advocates, I am not required to advert to their entire submissions

since the effect of the striking down of Regulation 90 has been

considered by this Court in the case of Prakash Narayan Shinde Vs. the

MSEDCL, WP NO.5778/2015 and connected writ petitions by judgment

dated 29/03/2016, wherein this Court has held that the declaration

that Regulation 90 is invalid shall be prospectively made applicable.

5. Considering the law as above, the 2 nd petition filed by the

petitioner needs to be decided first as the result of the said petition

would affect the outcome of the first petition filed by the employee.

6. Learned Advocates have fairly and jointly submitted that the

reliance placed by the Industrial Court on Sudhakar Shankar

Chapke Vs. MSEDCL and another, 2013(1) ALL MR 564 was

misplaced because the issue in the Sudhakar Chapke case (supra)

was as to whether the employer had rightly invoked Regulation 90 in

the facts of the case. The legality of Regulation 90 was not subject

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matter of the Sudhakar Chapke case (supra) and in fact was a

subject matter of the WP No.3126/2011 filed by Praveen

Prabhakarrao Jawale Vs. M.S.E.D.C.L. and another. The Sudhakar

Chapke case (supra) was decided on 22/08/2013 in which Regulation

90 was not declared as being invalid. This Court, in the Praveen

Jawale case (supra) delivered a judgment on 22/08/2013 declaring

Regulation 90 as being invalid.

7. Considering the above, it needs mention that the employer had

invoked Regulation 90 in this case by charge sheet dated

26/05/2011, recorded the reply of the employee on 04/06/2011,

recorded his statement on 07/07/2011 and then passed an order of

punishment on 11/08/2011, which is prior to the judgment in the

Praveen Jawale case (supra).

8. As such, in my view the Industrial Court has erred in placing

reliance on the Sudhakar Chapke case (supra) while passing the

impugned order. Consequentially, WP No.8927/2016 is partly

allowed. The impugned order dated 02/03/2016 is quashed and set

aside and the Industrial Court is directed to decide preliminary issue

Nos. 1 and 2 afresh by considering the judgment in the Praveen

Jawale case (supra) and the judgment dated 29/03/2016 passed by

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this Court in the Prakash Narayan Shinde case (supra). Rule is

made partly absolute in the above terms.

9. Consequentially, the order dated 12/04/2016 delivered by the

Industrial Court on application Exh.C-14 in Complaint (ULP)

No.83/2015 does not survive and stands set aside. WP No.8088/2016

is, therefore, rendered infructuous and is disposed of. Rule is

discharged.

( RAVINDRA V. GHUGE, J.)

khs/AUGUST 2016/8088-d