Anil Soma Thakur vs Competent Authority And ...
2016 Latest Caselaw 4860 Bom

                                                   1




                                                                                         
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                          BENCH AT AURANGABAD




                                                                 
                             WRIT PETITION NO.9093 OF 2016

    Maharashtra State Electricity Distribution 
    Company Ltd., Through its,




                                                                
    Superintending Engineer, M.S.E.D.C.L.
    "Vidyut Bhawan", Old MIDC,
    Ajanta Road, Jalgaon,
    Tq. and Dist. Jalgaon                                             --       PETITIONER




                                                 
    VERSUS

    Anil Soma Thakur,
    Age-54 years, Occu-Service,
                               
    R/o Plot No.35-B, Dhekusim Road,
                              
    Laxminagar, Amalner,
    Dist. Jalgaon                                                     --       RESPONDENT 

WITH WRIT PETITION NO.8090 OF 2016

Anil Soma Thakur,

Age-54 years, Occu-Service, R/o Plot No.35-B, Dhekusim Road, Laxmi Nagar, Amalner, 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 Mr.A.S.Bajaj, Advocate for the petitioner in WP No.9093/2016 Mr.V.A.Pawar, Advocate for the respondent in WP No.9093/2016. Mr.V.A.Pawar, Advocate for the petitioner in WP No.8090/2016 Mr.S.M.Godsay, Advocate for the respondent in WP No.8090/2016.

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( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 24/08/2016

ORAL JUDGMENT :

1. Learned Advocates, on instructions from the respective sides,

submit that they have no objection if this Court hears this petition.

2. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

3. The petitioner is aggrieved by the judgment and order dated

02/03/2016 delivered by the Industrial Court in Complaint (ULP)

No.6/2014 by which the enquiry conducted by the petitioner against

the respondent has been set aside on the ground that the Presenting

Officer of the petitioner/Management has led oral evidence and there

was no opportunity to the respondent to cross examine him.

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

to advert to the extensive submissions put forth of Mr.Bajaj, learned

Advocate for the petitioner and Mr.Pawar, learned Advocate for the

respondent.

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5. Having considered the submissions of the learned Advocates

and having gone through the impugned order, it appears that the

Industrial Court has set aside the enquiry keeping in mind the

Industrial Employment Standing Orders Act, 1946 and the Model

Standing Orders framed therein.

6. The impugned order is based on the conclusion that the

Management/Representative has led evidence and the respondent/

employee had no opportunity to cross examine him. However, after

going through the record, I find that the Management representative

has not led oral evidence. He had merely presented the side of the

petitioner by way of oral submissions. This aspect is nowhere

provided under the Model Standing Orders. However, after

considering Regulation 88 under Chapter VII of the M.S.E.D.C.L.

Employees Service Regulations 2005, prima facie, I find that the

delinquent/employee and the Management/Representative are

permitted to make oral submissions in the form of oral arguments.

Rule 88 needs to read in its entirety so as to arrive at a conclusion as

to whether the manner in which the enquiry was conducted by the

petitioner is supported by the said Rule 88.

7. I also find from the record that the Enquiry Officer had asked

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the respondent whether he would like to lead evidence through any

witness and his answer was in the negative. A similar question was

put to the Management/representative who is commonly known as

the Presenting Officer. He also stated that he would not lead evidence

through any witnesses but would rely exclusively on the documents

to be produced in the enquiry. Since such statements were made,

the Education Officer allowed the Management/representative to

make his oral submissions. That was not recording of oral evidence

of any witness on the part of the petitioner and more so because the

Management/representative cannot be a witness for Management.

8. After recording the oral submissions of the

Management/representative, the Enquiry Officer called upon the

respondent and his defence representative to respond. On

instructions from the respondent, his representative also put forth

oral submissions.

9. The above aspect has been misconstrued by the Industrial

Court to mean that evidence of the Management/representative was

recorded and the respondent/employee was not allowed to cross

examine him.

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10. I find that this confusion has been created before the Industrial

Court only because the petitioner/Management did not produce the

Service Regulations of 2005 and need not apprise the Industrial

Court of the entire scheme of conducting a departmental enquiry

under Regulation 88. Had Regulation 88 been cited, the Industrial

Court could have considered the submissions of the complainant and

the respondent from the perspective of Regulation 88. It is on this

laxity on the part of the Management that the Industrial Court was

not properly assisted.

11. In the light of the above, the impugned order dated

02/03/2016 is quashed and set aside. This Writ Petition

No.9093/2016 is partly allowed by imposing costs of Rs.10,000/-

(Rs.Ten thousand only) on the petitioner which shall be deposited

with the Industrial Court within a period of 4 (four) weeks from today.

On depositing the amount, the respondent shall withdraw the said

amount as costs for the hardships suffered by him.

12. The petitioner shall forthwith produce a copy of the service

regulation before the Industrial Court for its assistance and both the

litigating sides would then address the mind of Industrial Court

afresh by relying upon Regulation 88 and the manner of conducting

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an enquiry as provided thereunder. The Industrial Court shall decide

preliminary issue Nos. 1 and 2 afresh by keeping in view the ratio

laid down by this Court in the matter of Maharashtra State Co-

operative Cotton Growers Marketing Federation Ltd., and another Vs.

Vasant Ambadas Deshpande, 2014(3) Mh.L.J. 339 = 2014(1) CLR 878.

13. The Industrial Court shall note that this Court has taken the

precaution of not deciding the rival contentions of the litigating sides

on issue Nos. 1 and 2 on their merits so as to enable the Industrial

Court to decide the said issue afresh after hearing all the sides in the

light of Regulation 88.

14. Rule is made partly absolute in the above terms.

15. The second petition preferred by the petitioner workman was

considered by this Court and the following order was passed on

04/08/2016 :-

"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.

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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.

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.

4 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

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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 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

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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 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.

11 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."

16. Considering the fact that the order of setting aside the enquiry

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in the first petition has been quashed and set aside and the

preliminary issue Nos. 1 and 2, having been remitted to the

Industrial Court for a fresh decision, the impugned order in the

second petition dated 12/04/2016 below Exh.C-14 in Complaint

(ULP) No.6/2014 does not survive and stands set aside as a natural

consequence. As such, the second petition is rendered infructuous

and is therefore disposed of. Rule is discharged.

( RAVINDRA V. GHUGE, J.)

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