Bombay High Court
The Municipal Council, Bhandara ... vs The Industrial Court, Nagpur And ... on 18 August, 2017
Bench: B.P. Dharmadhikari
LPA.93.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTER PATENT APPEAL NOS. 93/09 & 145/09
(ARISING OUT OF WRIT PETITION NO. 906/2001)
1] LETTER PATENT APPEAL NO. 93 OF 2009
The Municipal Council,
Bhandara,
through its Chief Officer,
Bhandara, Dist. Bhandara. .... APPELLANT
// VERSUS //
1] The Industrial Court, Nagpur,
2] Ashok Atmaramji Deshmukh,
aged about 59 years,
Occupation - Business,
Resident of Vijay Nagar,
Gujrati Colony, Bhandara. .... RESPONDENTS
Mr. M.I. Dhatrak, Advocate for appellant,
Ms. N.P. Mehta, A.G.P. for respondent no. 1,
Nobody for respondent no. 2.
2] LETTER PATENT APPEAL NO. 145 OF 2009
Ashok s/o Atmaramji Deshmukh,
aged about 59 years,
Occupation - Nil, Resident of
Vidhya Nagar, Gujrathi Colony,
Bhandara, Tah. & Distt. Bhandara ... APPELLANT
// VERSUS //
::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:56:48 :::
LPA.93.09
2
1] The Municipal Council,
Bhandara,
through its Chief Officer,
Tah. & Distt. Bhandara.
2] The Industrial Court, Nagpur,
Bench at Nagpur. .... RESPONDENTS
Nobody for appellant.
Mr. M.I. Dhatrak, Advocate for respondent no. 1.
CORAM : B.P. DHARMADHIKARI & ARUN D. UPADHYE, JJ.
DATED : AUGUST 18, 2017.
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.).
1] Judgment delivered on 29.1.2009 by learned Single Judge
in Writ Petition No. 906/01 is questioned by petitioner employer
therein in L.P.A. No. 93/09. Employee Ashok has questioned the very
same judgment in L.P.A. No. 145/09.
2] The learned Single Judge while partly allowing Writ Petition
found that the order of dismissal dated 17.12.1992 passed by
employer needed to be maintained but direction given by Labour
Court to employer to reinstate employee with full back wages has
been set aside. Employer has been given liberty to hold departmental
enquiry and to take action as per law afresh.
LPA.93.09
3] The learned Single Judge has also observed that if within
six weeks employer decides to take action, the employee would be
deemed to be under suspension. Otherwise, he would be reinstated
back in service. In that contingency, employer has been directed to
pay back wages at 25% from 7.12.1992 till 27.1.1997 and thereafter
at 50% till actual reinstatement. In case decision to hold departmental
enquiry was taken, the learned Single Judge directed employer to
treat employee under suspension and granted employee liberty to
claim subsistence allowance as per Rules.
4] Employer seeks deletion of the later direction to hold
enquiry or to reinstate. According to employer, order of termination
dated 17.12.1992 must be maintained as it is and no relief can be
given to employee.
5] The employee questions the liberty given to employer and
seeks relief of reinstatement with full back wages and continuity.
6] L.P.A. No. 145/09 has been filed by employee on 2.3.2009.
L.P.A. No. 93/09 came to be filed on 7.3.2009 by employer. In L.P.A.
filed by employer on 18.3.2009 while issuing notice Division Bench
directed that both L.P.As. should be listed together. On 27.4.2009 the
LPA.93.09
L.P.A. No. 93/09 came to be admitted for final hearing and this Court
then granted interim relief in terms of prayer clause in Civil Application
No. 163/09. Thus, effect and operation of judgment dated 29.1.2009
delivered by learned Single Judge came to be stayed, with the result,
no further decision whether to conduct enquiry or not has been taken
till date. Employee admittedly is more than 66 years old as of now.
7] In this backdrop, we have heard Mr. M.I. Dhatrak, learned
Advocate for employer and Ms. N.P. Mehta, learned A.G.P. for
respondent Industrial Court. Nobody has appeared for employee.
8] Mr. M.I. Dhatrak, learned Advocate for employer, submits
that the employee was convicted by Criminal Court and as such,
under Section 79(3) of the Maharashtra Municipal Council, Nagar
Panchayat and Industrial Township Act, 1965 holding of departmental
enquiry was not necessary. He submits that thus emphasis on
resolution of Standing Committee and direction to hold departmental
enquiry is unwarranted and erroneous. He further submits that
accordingly in fact a departmental enquiry was started, due
opportunity was given to employee and when he did not appear, the
matter was again placed before the Standing Committee. Standing
Committee in view of these developments, on 7.3.1992 permitted
LPA.93.09
Chief Officer to proceed further as per law. Hence, decision to
terminate was taken on 17.12.1992. He, therefore, prays for allowing
L.P.A. No. 93/09 and for dismissing L.P.A. No. 145/09.
9] The perusal of order of removal dated 17.12.1992 reveals
that at that time employee Ashok was already under suspension. The
order informs him that pursuant to the Resolution No.1 of Standing
Committee dated 7.3.1992 he was retrenched from post of Naka
Mohrir with effect from 7.12.1992. Resolution of Standing Committee
dated 7.3.1992 and necessary developments are pointed out by an
employee in paragraph no. 8 of Written Statement filed before the
Labour Court at Bhandara. In that paragraph it is mentioned by
employer that various dates were given to employee by Enquiry
Officer and employee was also served with notice to remain present
on such dates. However, he did not turn up and also did not apply for
adjournment. Because of his continuous absence enquiry could not
be completed. Matter was, therefore, placed before the Standing
Committee as Standing Committee had earlier directed holding of
departmental enquiry. This Resolution passed by Standing
Committee on 25.3.1991, service of charge-sheet dated 13.5.1991
and non-participation thereafter by employee is not in dispute. Thus,
employer had in obedience to directions issued by Standing
LPA.93.09
Committee attempted to complete the departmental enquiry. When
the employee, i.e. complainant before Labour Court did not
cooperate, with proper report the matter was again placed before the
Standing Committee. Standing Committee then resolved vide
Resolution No. 2 on 31.10.1991 that employee should be given one
month's notice before termination. This notice was then served upon
him and he replied to it on 24.12.1991. Again the notice and reply
was put up before the Standing Committee on 7.3.1992. Standing
Committee did not find reply of employee satisfactory and hence,
resolved to terminate employee/complainant. The matter was then
submitted to Collector, Bhandara and after his approval the order of
termination was passed.
10] The order of termination dated 17.12.1992 mentions
resolution of Standing Committee dated 7.3.1992.
11] The imposition of fine and conviction by Criminal Court is
not in dispute. The learned Single Judge has referred to it in opening
paragraph of judgment. Employer Municipal Council received notice
from Police Station that three offences under the Prevention of
Gambling Act were registered against employee and in one matter he
was convicted under Section 12 thereof. He was sentenced to pay
LPA.93.09
fine of Rs.45/- and in default, to undergo imprisonment for ten days.
Two other cases were pending against him under Sections 4 & 5 of
the Gambling Act. Proceedings under Section 110 Criminal
Procedure Code were also initiated against him.
12] It is in this backdrop that the Chief Officer of Municipal
Council placed a report before the Standing Committee and sought
necessary orders. Standing Committee then on 25.3.1991 directed
holding of enquiry. Developments after this date are already narrated
by us supra.
13] Section 79 of the Maharashtra Municipal Council, Nagar
Panchayat and Industrial Township Act, 1965 is about punishment of
officers and servants. Section 79(3) prohibits removal or dismissal
from service unless employee is given a reasonable opportunity of
showing cause against it. The sub-section has two provisos and in
facts covered by said proviso, such an opportunity is also not
necessary. As per proviso (b), if Competent Authority is satisfied that
it is not reasonably practicable to give such person an opportunity of
showing cause, the opportunity need not be given. We are concerned
with proviso (a). Thus, where employee is being reduced, removed or
dismissed on the ground of conduct which has led to his conviction on
LPA.93.09
a criminal charge, grant of opportunity is not necessary.
14] In the present matter, employee was caught red handed at
his duty place, i.e. at Octroi Naka and for that he has been punished
by competent Criminal Court under Section 12-A of Prevention of
Gambling Act. Thus, it is not only gambling but gambling at duty
place which has led to his conviction. On account of this conviction,
the Chief Officer of Municipal Council wanted to proceed against
employee as per law. In the light of Section 79(3)(a) Municipal
Council could have dispensed with requirement of giving opportunity
and straightaway passed an order of removal/retrenchment, but
members of Standing Committee were benevolent and they decided
to give opportunity to employee. Accordingly, opportunity was given
to employee and a charge-sheet was served upon him. When he did
not participate in departmental enquiry, Chief Officer again submitted
a report and pointed out his non-participation. It is at that juncture
that Standing Committee has passed second resolution.
15] It is, therefore, obvious that in present facts when
conviction is not in dispute, opportunity granted to employee under
Section 79(3) is more than sufficient. Though legally no such
opportunity should have been granted, he was given the same and he
LPA.93.09
could not make effective use thereof and as he could not have
disproved his conviction.
16] In this situation, the employer Municipal Council has rightly
passed an order of removal from service on 17.12.1992.
17] We find that the sequence of events and mandate of
Section 79(3)(a) is lost sight of by the learned Single Judge.
18] Accordingly, we maintain the order of dismissal dated
17.12.1992 passed by employer Municipal Council and quash and set
aside all other directions issued to it by the learned Single Judge.
Thus, Writ Petition No. 906/01 filed by employer Municipal Council is
fully allowed.
19] L.P.A. No. 93/09 is accordingly allowed. Consequently,
L.P.A. No. 145/09 is dismissed. However, in the circumstances of the
case, there shall be no order as to costs.
JUDGE JUDGE.
J.
