Bombay High Court

Executive Engineer And Anothers vs Deepak Adhar More on 15 October, 2016

Bench: R.V. Ghuge

                                                                      WP/12338/215
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                             WRIT PETITION NO. 12338 OF 2015




                                                     
     1. Executive Engineer,
     MSEDCL, Chalisgaon Division,
     District Jalgaon.




                                                    
     2. Dy.Executive Engineer,
     MSEDCL Rural Sub Divn. 1
     Hanumanwadi, Chalisgaon,
     District Jalgaon.                                ..Petitioners




                                          
     Versus

     Deepak Adhar More,
                             
     Age 37 years, Occ. Service
     R/o Talegaon, Tq. Chalisgaon
     District Jalgaon.                                ..Respondent
                            
                                           ...
                      Advocate for Petitioner : Shri Gaikwad A.M.
                       Advocate for Respondent : Shri Patil U.S.
      

                                           ...

                              CORAM : RAVINDRA V. GHUGE, J.

Dated: October 15, 2016 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition

is taken up for final disposal.

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4. The petitioners are aggrieved by the interim order dated

18.3.2015 passed by the Labour Court, by which, the Labour Court

has directed the petitioners not to take a final decision in the

disciplinary proceedings and not to act upon the second show cause

notice dated 13.2.2015 until decision in the complaint. The

petitioner is also aggrieved by the judgment of the Industrial Court

dated 2.7.2015, by which, Revision (ULP) No.4 of 2015 filed by the

petitioner has been dismissed.

I have heard the learned Advocates for the respective sides at

length.

6. Normally, a challenge to an interlocutory order in the

supervisory jurisdiction of this Court is not to be entertained.

However, in the instant case, without framing the two issues with

regard to the fairness of the enquiry and the findings of the enquiry

officer, the Labour Court has granted interim relief in the nature of a

final relief. The Industrial Court has also sustained the said order.

7. There is no dispute that the respondent was charge sheeted

for having committed a grave misconduct of negligence, which has

led to the death of a co-employee. On 9.3.2014, there was a break-

down in the supply of electricity at the Ganeshpur 11 KV Sub-Station.

The respondent was engaged in the process of rectification of the

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break down so as to restore the supply of electricity. The respondent

was in charge of the Tambola AV Switch Point. The allegation is that

the AV Switch Point, which was under the control of the respondent,

was switched on when an employee Raju Baban Patil had already

climbed upon the pole at Shamwadi as a part of the rectification

process. He was electrocuted and he died.

8. A departmental enquiry was conducted against the respondent,

which was concluded in one day. After the enquiry officer held the

respondent guilty, a second show cause notice, proposing the

punishment of dismissal dated 13.2.2015 was served on the

respondent. Without offering a reply, which is mandated by law, the

respondent rushed to the Labour Court by lodging Complaint (ULP)

No.9 of 2015 and by the impugned order dated 18.3.2015, the Labour

Court granted interim relief in the nature of final relief. The

Industrial Court by the impugned judgment has sustained the order.

9. Despite the strenuous submissions of Shri Patil on behalf of the

respondent / employee, I find that the Labour Court, inspite of

referring to the judgment of the Honourable Supreme Court in the

matter of Hindustan Lever Vs. Ashok Vishnu Kate [AIR 1996 SC 285 =

1995 (6) SCC 326], and Deoraj Vs. State of Maharashtra [2004 DLGS

(Soft) 280], has protected the respondent until final disposal of the

case. It is apparent that the law laid down by the Honourable

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Supreme Court in these two judgments has been lost sight off by the

Labour Court. Paragraph 54 of the Hindustan Lever Judgment (supra)

reads as under:-

"54. Before parting with this case, however, we must strike

a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary actions and to hold

domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be

followed by such employers. These standing orders give sufficient protection to the concerned employees against

whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of charge- sheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant

Clauses 7 of item I of schedule IV before the final orders of

discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned

complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case

is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated."

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10. The Honourable Supreme Court while deciding the matter of

Workmen of the Motipur Sugar Factory Private Ltd., Vs. The Motipur

Sugar Factory Private Ltd., [AIR 1965 SCC 1803], has concluded that if

the fairness of the enquiry and the findings of the enquiry officer are

challenged, the following two issues have to be cast, which in the

instant case would be as under:-

(A) Whether the complainant proves that the enquiry is vitiated due to non-observance of the principles of natural

justice?

(B) Whether the complainant proves that the findings of the enquiry officer are perverse and deserve to be set aside?

11. The law laid down in Motipur Sugar Factory (supra) has been

consistently followed and still holds the field for the last more than

60 years. The Labour Court could not have sympathized with the

petitioner while granting interim relief in the matters of disciplinary

proceedings, which is most unusual.

12. Shri Patil has strenuously submitted that, since he has been

protected, the protection be continued and the Labour Court be

directed to decide the complaint within a time frame. This Court, in

the matter of Mumbai Cricket Association Vs. Pramod G. Shinde [2011

(7) All M.R. 678], has concluded that even if the disciplinary enquiry

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is set aside by the Labour Court or the Tribunal, there can be no

interim relief and the employee would not have a right to claim

subsistence allowance. The law laid down by the Honourable

Supreme Court has been followed by this Court in the Mumbai Cricket

Association's case (supra). In this backdrop, the impugned order

granting interim relief is unsustainable.