Bombay High Court
The Divisional Controller, ... vs Narendra Nandlal Chatre on 5 July, 2016
Bench: P.R. Bora
1 WP No. 5756/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5756 OF 2015
The Divisional Controller,
Maharashtra State Road Transport
Corporation, Dhule Division,
Dhule. = PETITIONER
VERSUS
Narendra s/o Nandlal Chatre,
Age: 44 Yrs., occu. Service,
R/o Behind Madhyamik Vidyalaya,
Deopur, Dhule, Dist. Dhule. = RESPONDENT
-----
Mr.RN Jain, Adv.h/for Mr. DS Bagul,Advocate for
Petitioner;
Mr.SP Tiwari, Advocate for Respondent.
-----
CORAM : P.R.BORA, J.
DATE OF RESERVING JUDGMENT :
13 th
June,2016.
DATE OF PRONOUNCING JUDGMENT:
5
th
JULY, 2016
JUDGMENT:
1) Heard. Rule. Rule made returnable
forthwith and heard finally with consent of the
learned Counsel appearing for the parties.
2) The present petition is filed against
judgment and order dated 7th August, 2014 passed
by the Member, Industrial Court, Dhule in
Complaint (ULP) No.27/2013.
. The aforesaid Complaint was filed by the
present respondent against the present petitioner
alleging unfair labour practice on the part of
the present petitioner in imposing punishment
upon him of reducing his basic pay by one stage
permanently. The learned Member of the
Industrial Court has allowed the Complaint and
has thereby set aside the order passed by the
present petitioner on 12.10.2007, thereby
imposing the aforesaid punishment. Aggrieved
thereby, the present petition is filed.
3) Shri Bagul, learned Counsel appearing
for the petitioner, submitted that before
imposing the subject punishment, the respondent
was duly served with a charge sheet and
subsequently a Departmental Enquiry was also
conducted against the respondent in regard to the
charges levelled against him. The learned
Counsel further submitted that the charge of
financial irregularity and misappropriation was
levelled against the respondent. The learned
Counsel further submitted that due opportunity
was given to the respondent at every stage of the
enquiry proceedings to defend himself. The
learned Counsel further submitted that the
Enquiry Officer, on the basis of evidence brought
in the enquiry proceedings, held the respondent
guilty for the charge levelled against him and
accordingly, having regard to the nature of the
charge proved against the respondent, the
punishment of reducing his basic pay by one stage
permanently, was imposed upon him. The learned
Counsel further submitted that the learned Member
of the Industrial Court ought to have framed a
preliminary issues as about fairness of the
enquiry conducted against the respondent and
whether the findings recorded by the Enquiry
Officer were perverse. The learned Counsel
submitted that without framing the aforesaid
issues and without recording any finding on the
said aspects, the Industrial Court ought not have
concluded that the findings recorded by the
Enquiry Officer are not sustainable as the
Enquiry Officer has not properly considered the
findings recorded in the enquiry. The learned
Counsel further submitted that the conclusions of
the Industrial Court are ex facie unsustainable
in the light of the law laid down by this court
in the case of MSRTC, Beed Vs. Syed Saheblal
Syed Nijam - 2014 (3) CLR 514. The learned
Counsel, therefore, prayed for setting aside the
impugned judgment and remand the matter to the
Industrial Court with a direction to frame
preliminary issues as regards to the enquiry and
to decide the matter afresh.
4) Shri S.P.Tiwari, learned counsel
appearing for the respondent, has supported the
impugned judgment. The learned Counsel submitted
that the reasoning given by the Industrial Court
after having perused the proceedings of enquiry,
cannot be faulted with and no further enquiry is
required, as has been submitted on behalf of the
petitioner. The learned Counsel, therefore,
prayed for dismissal of the writ petition.
5) After having considered the submissions
advanced by the learned Counsel appearing for the
respective parties and on perusal of the impugned
judgment, it is apparently revealed that in view
of the law laid down by this Court in the case of
MSRTC, Beed (cited supra), the impugned judgment
cannot be sustained.
6) It is not in dispute that before
imposing the subject punishment on the
respondent, departmental enquiry was conducted
against him. It is further not in dispute that
the petitioner did participate in the said
departmental enquiry. It is further not in
dispute that due opportunity was given to the
respondent to make his submissions on the
findings recorded by the Enquiry Officer. It is
further not in dispute that second show-cause
notice was also issued to the respondent and
after having considered the findings recorded by
the Enquiry Officer and having regard to the
misconduct proved against the respondent in the
enquiry proceedings, the punishment of reducing
basic pay of the respondent by one stage
permanently, was imposed upon him. If it was the
contention of the respondent before the
Industrial Court that he was not given proper
opportunity to defend him in the said enquiry
proceedings and for the said reason, the enquiry
was liable to be vitiated, the Industrial Court
was bound to frame a preliminary issue as about
the enquiry. The industrial Court has admittedly
not framed any such issue. The Industrial Court,
in para 12 and 13 of the impugned judgment has
observed that, `the conclusions of the Enquiry
Officer are not sustainable as he has not
properly considered the findings recorded in the
enquiry.' The Industrial Court has further
observed that `the findings do not support the
charges.' The findings so recorded by the
Industrial Court necessarily amount to branding
the finding of the Enquiry Officer as perverse,
which has in turn effect of setting aside the
enquiry.
7) The law is well-settled that if the
findings recorded by the Enquiry Officer are
branded as perverse, a de novo enquiry can be
permitted. In the instant case, since the
learned Industrial Court has, without framing any
issue as regards to the fairness of the enquiry
and whether the findings recorded by the Enquiry
Officer are perverse, has held the punishment
imposed upon the respondent by the petitioner
Corporation, to be unsustainable, the impugned
order cannot be sustained and deserves to be set
aside and the matter needs to be remanded back to
the Industrial Court to decide it afresh by
framing appropriate issues and to decide the
issues as regards to the enquiry to be the
preliminary issues. In the result, the following
order, -
ORDER
i) The Writ Petition is partly
allowed;
ii) The impugned judgment and order
dated 7th August, 2014 passed by the
learned Member, Industrial Court, Dhule
in Complaint (ULP) No.27/2013, is
quashed and set aside;
iii) The matter is remitted back to
the Industrial Court with a direction to
frame appropriate issues as regards to
the fairness of the enquiry and about
the findings of the Enquiry Officer
whether perverse or otherwise and to
decide the aforesaid issues as
preliminary issues;
. In the event the aforesaid
issues are answered in affirmative, the
petitioner Corporation be granted
liberty to conduct a de novo enquiry or
to adduce evidence before the court to
prove the charges levelled against the
respondent (original complainant);
iv) The Parties shall appear before
the Industrial Court, Dhule on
20.7.2016.
v)
ig The Industrial Court, Dhule to
decide the matter as expeditiously as
possible and preferably within a period
of six months from today.
vi) Rule is made absolute in the
aforesaid terms.
sd/-
(P.R.BORA,J.)
bdv/
fldr 1.7.16
