Bombay High Court
M.S.R.T.C.,Aurangabad vs Shaikh Jamadar Shaikh Azimoddin on 26 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5310 OF 1995
Maharashtra State Road Transport
Corporation.
Through Divisional Controller,
Aurangabad.
...PETITIONER
-VERSUS-
Shaikh Jamadar Shaikh Azimoddin,
Age : 35 years, Occupation : Driver,
R/o Barshi Kasba Peth, Paranda Road,
At Present : Workshop No.2,
Aurangabad.
...RESPONDENT
...
Advocate for Petitioner : Mrs.R.D.Reddy.
Advocate for Respondent : Shri V P Latange.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 26th August, 2016
Oral Judgment :
1 The Petitioner/ MSRTC is aggrieved by the judgment and
order dated 11.10.1994 delivered by the Industrial Court, Aurangabad by
which Complaint (ULP) No.573/1990 has been allowed and the order of
punishment of stoppage of one increment for five years, is directed to be
withdrawn.
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2 The learned Advocate for the Petitioner/ MSRTC submits that
though the Respondent/ Employee has retired on attaining the age of
superannuation in 2002, that would not render this petition infructuous.
The issue is as regards an accident having been committed by the
Respondent/ Employee who was working as a Driver. On 02.01.1987, the
charge sheet was served upon him and after conducting an enquiry, the
Petitioner/ MSRTC showed leniency towards the Respondent and awarded
the punishment of stoppage of one increment for five years.
3 The Respondent approached the Industrial Court in
Complaint (ULP) No.573/1990, which has been allowed. The grievance is
that the enquiry was interfered with by the Industrial Court and the
findings were declared to be perverse and in the same judgment, the
Industrial Court has allowed the complaint.
4 Shri Latange, learned Advocate for the Respondent/
Employee, has strenuously defended the impugned order. He contends
that the enquiry was ex-parte and as such, the principles of natural justice
were violated. The enquiry was rightly vitiated by the Industrial Court. In
this backdrop, the evidence recorded in the enquiry was considered by the
Industrial Court and it concluded that the findings of the Enquiry Officer
are perverse.
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5 I have considered the submissions of the learned Advocates.
6 It is settled law in the light of the judgment of the Honourable
Supreme Court in the matter of the Workmen of the Motipur Sugar Factory
Private Limited vs. The Motipur Sugar Factory Private Limited, AIR 1965 SC
1803, that when an enquiry and the findings of the Enquiry Officer are
assailed by the litigant, the Court dealing with the case has to frame the
two preliminary issues which are as follows:-
(a) Whether, the Complainant/ Delinquent proves that the
findings of the Enquiry Officer are perverse?
(b) Whether, the Complainant/ Delinquent proves that the
enquiry conducted is vitiated for non observance of the principles of
natural justice?
7 The entire law on this count has been considered by this
Court in the matters of MSRTC, Beed v/s Syed Saheblal Syed Nijam, 2014
(III) CLR 547 : 2014(4) Mh.L.J. 687 and the Maharashtra State
Cooperative Cotton Growers Marketing Federation Ltd. v/s Vasant Ambadas
Deshpande, 2014(1) CLR 878 : 2014(3) Mh.L.J. 339. It is, thus, settled
that unless the above said two issues are not framed and unless the Court
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passes the part-1 order on the said two issues, the complaint cannot be
taken up for final adjudication. In the event, the enquiry is set aside for
any reason, the Management would have an opportunity of conducting a
de-novo enquiry subject to law as is laid down by the Honourable
Supreme Court (five judges Bench) in the matter of KSRTC v/s
Lakshmidevamma, 2001 (2) CLR 640.
8 It is apparent that neither the said two issues were cast by the
Industrial Court nor did the Industrial Court grant an opportunity to the
Petitioner/ MSRTC to conduct a de-novo enquiry. In the same judgment,
the Industrial Court declared that the enquiry was vitiated and after
branding the findings of the Enquiry Officer as being perverse, set aside
the enquiry and allowed the complaint.
9 In the light of the above, this Writ Petition is allowed. The
impugned judgment dated 11.10.1994 is quashed and set aside.
Complaint (ULP) No.573/1990 is remitted back to the Industrial Court on
the following conditions:-
(a) The Petitioner/ MSRTC shall appear before the Industrial
Court on 13.09.2016.
(b) Since the learned Advocate for the Respondent/ Employee
submits that he is unable to contact the Respondent, the
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notice may be issued on the fresh address as would be
supplied through a Purshis by the Petitioner/ MSRTC before
the Industrial Court on 13.09.2016.
(c) The Industrial Court shall frame the two issues as recorded
above.
(d) While dealing with it's part-1 judgment on the above said two
issues, the Industrial Court shall keep in view the law laid
down by this Court in the matters of the MSRTC, Beed v/s
Syed Saheblal Syed Nijam and the Maharashtra State
Cooperative Cotton Growers Marketing Federation Ltd. v/s
Vasant Ambadas Deshpande (supra).
(e) After the part-1 judgment is delivered and in the event, the
enquiry is set aside for any reason, the Industrial Court shall
keep in view the ratio laid down by the Honourable Apex
Court in the matter of Lakshmidevamma (supra).
(f) Since the complaint pertains to the year 1990, the Industrial
Court shall decide the said complaint as expeditiously as
possible and in any case, on or before 28th February, 2017.
10 Rule is made absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
