Bombay High Court
Sheshrao Motiram Jadhav ... vs Division Controller, Msrtc, ... on 26 August, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4617 OF 2015
PETITIONER: Sheshrao Motiram Jadhav, Age 53
years, Conductor, MSRTC,
Mangrulpir, Tq. Mangrulpir & Dist.
Washim.
-VERSUS-
RESPONDENTS: 1. Division Controller, MSRTC, Akola
Division, Divisional Office, Kaulkhad
Road, Akola, Tq. & Dist. Akola.
ig 2. Divisional Traffic Superintendent,
MSRTC, Akola Division, Division
office, Kaulkhad Road, Akola, Tq. &
Dist. Akola.
3. Divisional Traffic Officer, MSRTC,
Akola Division, Division Office,
Kaulkhad Road, Akola Tq. & Dist.
Akola.
4. Vice Chairman & Managing Director,
M.S.R.T.C. Central Office, 3rd Floor,
Dr. Anandrao Nair Marg, Belasis
Road, Maharashtra Vahatuk Bhavan,
Mumbai-8.
Shri P. N. Verma, Advocate for the petitioner.
Shri V. G. Wankhede, Advocate for the respondents.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 10-08-2016.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 26-08-2016.
ORAL JUDGMENT :
1. Heard.
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2. The challenge in the present writ petition is to the
order dated 11-2-2015 passed by the Industrial Court in the
revision application preferred by the respondents challenging the
order passed by the Labour Court granting interim relief in favour
of the petitioner. By the impugned order, the revision application
has been allowed and the order passed by the Labour Court has
been set aside.
3. The facts in brief are that the petitioner was in the
employment of the respondents on the post of Conductor. During
the course of service, disciplinary proceedings were initiated
against the petitioner by issuing chargesheet dated 3-12-2012.
The petitioner submitted his reply to the chargesheet. Thereafter
the enquiry was held in which the petitioner participated. As per
the report of Enquiry Officer, the charges as framed were held to
be proved. On 10-6-2014, a show cause notice came to be issued
to the petitioner seeking his response as to why he should not be
dismissed from service. The petitioner after receiving the show
cause notice on 16-6-2014 submitted his reply on 17-6-2014. In
the said reply, the petitioner demanded various documents on the
basis of which the enquiry proceedings were held. It was stated
that unless these documents were supplied, it would not be
possible to effectively submit an explanation to the show cause
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notice. However, without prejudice to the said stand, the
petitioner also gave his response to the show cause notice. The
respondents thereafter issued an order of termination on
19-6-2014 to the petitioner.
4. The petitioner being aggrieved by the order of
termination filed a complaint under Section 28 of the Maharashtra
Recognition of Trade Union and Prevention of Unfair Labour
Practices Act, 1971. This complaint was filed under Item 1 to
Schedule IV of the said Act. Alongwith the complaint, an
application for grant of interim relief was also moved. In the
application for interim relief, a prayer for staying the effect and
operation of the order of termination was made. This application
was contested by the respondents. The Labour Court by order
dated 2-9-2014 found that the petitioner was not supplied
necessary documents and his services came to be terminated
without granting him proper opportunity in that regard. Hence,
the Labour Court granted interim relief directing reinstatement of
the petitioner during pendency of the complaint.
The respondents being aggrieved by the aforesaid
order preferred a revision application under Section 44 of the said
Act. The Industrial Court found that granting interim relief to the
petitioner would amount to grant of final relief. After noticing
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that a prima facie case had not been made out by the petitioner,
the Industrial Court allowed the revision application and set aside
the interim order passed by the Labour Court. Hence, this writ
petition.
5. Shri P. N. Verma, the learned Counsel for the
petitioner submitted that the Industrial Court was not justified in
setting aside the order passed by the Labour Court. He submitted
that under provisions of Section 30(2) of the said Act, the Labour
Court was empowered to grant interim relief so as to prevent the
employer from persisting with the unfair labour practice. He
submitted that while replying to the show cause notice dated
10-6-2014, the petitioner in his communication dated 17-6-2014
had demanded various documents so as to reply to the
said notice. A request was also made to first supply the said
documents after which a reply to the show cause notice would be
given within ten days from receiving the documents. However,
without supplying these documents the respondents in an hasty
manner issued the order of dismissal. Moreover, in the dismissal
order the communication dated 17-6-2014 has been treated to be a
reply to the show cause notice. It was then submitted that the
Labour Court had rightly exercised discretion in favour of the
petitioner by granting interim relief. However, the Industrial
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Court exceeded its jurisdiction when it set aside the said order. In
support of his submissions, the learned Counsel placed reliance on
the judgments of learned Single Judge in Mahindra and mahindra
Ltd. V. Dwarkanath Babaji Dalvi and another 2006 (109) FLR 747,
Birla Cotsyn (India) Ltd., Buldhana V. Tarachand S/o Chiranjilal
Sharma and Ors 2010 III CLR 357 and Spentex Industries Ltd.,
Nagpur Vs. Member, Industrial Court, Nagpur and others 2012 (1)
Mh.L.J. 161. It was, therefore, submitted that the impugned order
was liable to be set aside.
6. Shri V. G. Wankhede, the learned Counsel for the
respondents supported the impugned order. According to him, the
Industrial Court was justified in holding that grant of interim relief
in favour of the petitioner in the present case amounted to grant of
final relief. He submitted that after following the entire procedure
of holding an enquiry, giving show cause notice and thereafter
considering the same, it was clear that the respondents had acted
in accordance with law. In the enquiry held against the petitioner,
the misconduct had been duly proved. He, therefore, submitted
that the Industrial Court did not commit any error when it set
aside the order of the Labour Court.
7. I have heard the respective Counsel for the parties at
length and I have given due consideration to their respective
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submissions. It is not in dispute that after holding an enquiry
against the petitioner, a show cause notice came to be issued to
him on 10-6-2014 as to why he should not be dismissed from
service. Along with this show cause notice, the report of the
Enquiry Officer was supplied. In response to this show cause
notice, the petitioner submitted his say on 17-6-2014. He sought
certain documents that were part of the enquiry proceedings and
stated that until these documents were not supplied, it would not
be possible for him to submit his reply. However, without
prejudice to this stand, the petitioner submitted his detailed
explanation running into almost ten pages in which it was stated
that no action was liable to be taken against him. After considering
this response given by the petitioner, the order of dismissal came
to be issued on 19-6-2014. The same is the subject matter of
challenge in the complaint filed on behalf of the petitioner.
8. A perusal of the response given by the petitioner on
17-6-2014, prima facie, indicates that the petitioner has attempted
to give his explanation to the show cause notice. Thus, by treating
this communication dated 17-6-2014 as reply to the show cause
notice, prima facie, it can be said that the respondents were
justified in considering the same as reply to the show cause notice.
The effect of the failure on the part of the respondents to supply
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the documents demanded by the petitioner vide communication
dated 17-6-2014 and its effect on the order of dismissal is a
matter to be considered on merits. Thus, at this interlocutory
stage, the finding recorded by the Industrial Court that the
petitioner had failed to prima facie make out a case of unfair
labour practice at the behest of the respondents cannot be said to
be perverse. The observations in the impugned order that grant of
reinstatement by way of interim relief in the facts of the present
case have to be considered in the backdrop of the finding that no
prima facie case had been made out by the petitioner.
9. The ratio of the decisions relied upon by the learned
Counsel for the petitioner cannot be disputed. Though the Labour
Court under provisions of Section 30(2) of the said Act has the
jurisdiction to grant interim relief so as to direct the employer to
temporary withdraw the alleged unfair labour practice, at the same
time, for grant of such interim relief, a strong prima facie is
required to be made out. In the facts of the present case, when it
is found that despite demanding certain documents from the
respondents, the petitioner had chosen to submit his reply to the
show cause notice without prejudice to his rights, it cannot be said
that the view as taken by the Industrial Court is not a possible view
of the matter. Moreover, if it is found at the final adjudication of
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the complaint that the respondents had committed any unfair
labour practice, the petitioner can be granted appropriate relief in
such circumstances.
10. In view of aforesaid discussion, I do not find that the
Industrial Court committed any jurisdictional error when it set
aside the order passed by the Labour Court granting interim relief.
By holding that the observations made in the impugned orders as
well as in the present order would not come in the way of either of
the parties when the complaint is decided on merits and by
directing the Labour Court to decide the Complaint (ULP) No.60 of
2014 expeditiously and in accordance with law, the writ petition
stands dismissed with no order as to costs.
JUDGE
//MULEY//
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